Filed
pursuant to 424(b)(3)
Registration
Statement No. 333-276257
PROSPECTUS
SUPPLEMENT NO. 8
(To
Prospectus dated May 2, 2024)
SMX
(SECURITY MATTERS) PUBLIC LIMITED COMPANY
Issuance
of up to 12,121 Ordinary Shares
This
prospectus supplement (this “Prospectus Supplement”) is being filed to update and supplement our prospectus contained in
our Post-Effective Amendment No. 1 to Form F-1, dated May 2, 2024, as supplemented (the “Prospectus”), relating to the resale
of up to 12,121 ordinary shares (post-reverse stock split), $0.165 par value per share (the “Ordinary Shares”), by the selling
stockholders named elsewhere in the Prospectus (“Selling Stockholders”). The Ordinary Shares included in the Prospectus consist
of an aggregate of 12,121 Ordinary Shares underlying warrants held by each of the Selling Stockholders. The warrants are not registered
for resale.
Specifically,
this Prospectus Supplement is being filed to update and supplement the information included in the Prospectus with certain information
set forth below and contained in our Report on Form 6-K, which was submitted to the U.S. Securities and Exchange Commission (the “SEC”)
on September 16, 2024 (the “Form 6-K”). Accordingly, we have attached the Form 6-K to this Prospectus Supplement. Any statement
contained in the Prospectus shall be deemed to be modified or superseded to the extent that information in this Prospectus Supplement
modifies or supersedes such statement.
Capitalized
terms used but not defined herein have the meanings ascribed to them in the Prospectus.
This
Prospectus Supplement is not complete without, and may not be utilized except in connection with, the Prospectus, including any supplements
and amendments thereto.
We
may further amend or supplement the Prospectus and this Prospectus Supplement from time to time by filing amendments or supplements as
required. You should read the entire Prospectus, this Prospectus Supplement and any amendments or supplements carefully before you make
your investment decision.
Our
Ordinary Shares are listed on The Nasdaq Capital Market under the symbol “SMX” and our public warrants are listed on The
Nasdaq Capital Market under the symbol “SMXWW”. On September 16, 2024, the closing price of our Ordinary Shares was
$5.10.
Investing
in our Ordinary Shares involves significant risks. You should read the section entitled “Risk Factors” beginning on page
16 of the Prospectus for a discussion of certain risk factors that you should consider before investing in our Ordinary Shares.
Neither
the Securities and Exchange Commission nor any state securities commission or other regulatory body has approved or disapproved of these
securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The
date of this Prospectus Supplement is September 17, 2024
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 September 2024
Commission
File Number: 001-41639
SMX
(SECURITY MATTERS) PUBLIC LIMITED COMPANY
(Exact
Name of Registrant as Specified in Charter)
Mespil
Business Centre, Mespil House
Sussex
Road, Dublin 4, Ireland
Tel:
+353-1-920-1000
(Address
of Principal Executive Offices) (Zip Code)
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 ☐
On
September 11, 2024, SMX (Security Matters) Public Limited Company (the “Company”) entered into a private placement transaction
(the “Private Placement”), pursuant to a Securities Purchase Agreement (the “Agreement”) and a Registration Rights
Agreement (the “Registration Rights Agreement”) with certain institutional investors (the “Purchasers”) for aggregate
gross proceeds of $5.350 million, before deducting fees to the placement agents and other expenses payable by the Company in connection
with the Private Placement. The Company intends to use the net proceeds from the Private Placement for general corporate purposes and
for working capital purposes. Aegis Capital Corp. (“Aegis”), acted as the lead placement agent and ClearThink Securities
acted as a co-placement agent for the Private Placement.
The
offering consisted of the sale of 5,350,000 Common Units (or Pre-Funded Units), each consisting of one Ordinary Share or Pre-Funded Warrant
and two (2) Series A Common Warrants, each to purchase one (1) Ordinary Share per warrant at an exercise price of $1.00, and one (1)
Series B Common Warrants to purchase such number of Ordinary Shares as determined in the Series B Warrant. The public offering price
per Common Unit was $1.00 (or $0.9999 for each Pre-Funded Unit, which is equal to the public offering price per Common Unit to be sold
in the offering minus an exercise price of $0.0001 per Pre-Funded Warrant). The Pre-Funded Warrants will be immediately exercisable subject
to registration and may be exercised at any time until exercised in full. For each Pre-Funded Unit sold in the offering, the number of
Common Units in the offering will be decreased on a one-for-one basis. The initial exercise price of each Series A Common Warrant is
$1.00 per Ordinary Share. The Series A Common Warrants are exercisable immediately subject to registration and expire 66 months after
the initial issuance date. The number of securities issuable under the Series A Common Warrant is subject to adjustment. The initial
exercise price of each Series B Common Warrant is $0.00001 per Ordinary Share. The number of Ordinary Shares issuable under the Series
B Warrant, if any, is subject to adjustment to be determined pursuant to the trading price of the Ordinary Shares following the effectiveness
of a resale registration statement that the Company has undertaken to file on behalf the Purchasers.
Of
the gross proceeds, 20%, or $1,072,000, will be held in escrow and payable to the Purchasers under certain circumstances during the term
of the Series A Common Warrants and Series B Warrants, as set forth therein.
The
Company also entered into a Placement Agent Agreement with Aegis as lead placement agent, dated September 11, 2024, pursuant to which
Aegis agreed to serve as the placement agent for the Company in connection with the Private Placement. The Company agreed to pay Aegis
a cash placement fee equal to 10.0% of the gross cash proceeds received in the Private Placement and to pay ClearThink Securities a cash
placement fee equal to 2.0% of the gross cash proceeds received in the Private Placement.
The Company has
agreed to file a registration statement with the Securities and Exchange Commission (the “SEC”) to register the resale of
the Ordinary Shares and the Ordinary Shares underlying the Warrants and the Pre-Funded Warrants.
This
Report on Form 6-K shall not constitute an offer to sell or the solicitation of an offer to buy the securities described herein (the
“Securities”), nor shall there be any sale of these Securities in any state or jurisdiction in which such offer, solicitation
or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.
As
a condition to closing, the executive officers, directors and 10% holders of Ordinary Shares of the Company executed 90-day lock-up agreements
(the “Lock-Up Agreements”).
The
descriptions of the Placement Agent Agreement, the Agreement, the Registration Rights Agreement, the Warrants, Pre-Funded Warrant
and Lock-Up Agreements set forth above are qualified in their entirety by reference to the full text of those documents, which
are attached hereto as Exhibits 99.1, 99.2, 99.3, 99.4, 99.5, 99.6 and 99.7, respectively.
The
Securities are being sold in a private placement transaction not involving a public offering and have not been registered under
the Securities Act of 1933, as amended (the “Securities Act”) or applicable state securities laws, and may not be sold
in the United States absent registration or an applicable exemption from the registration requirements. Accordingly, the Securities
may not be reoffered or resold in the United States except pursuant to an effective registration statement or an applicable exemption
from the registration requirements of the Securities Act and such applicable state securities laws. The Securities were offered
only to accredited investors.
On
September 11, 2024, the Company issued a press release, a copy of which is furnished as Exhibit 99.8 to this Report on Form 6-K,
and on September 13, 2024, the Company issued a press release relating to the closing of the transactions, a copy of which is furnished
as Exhibit 99.9 to this Report on Form 6-K.
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:
September 16, 2024
| |
SMX
(SECURITY MATTERS) PUBLIC LIMITED COMPANY |
| |
|
| |
By: |
/s/
Haggai Alon |
| |
Name: |
Haggai
Alon |
| |
Title: |
Chief
Executive Officer |
Exhibit 99.1
September
11, 2024
PERSONAL
AND CONFIDENTIAL
Mr.
Haggai Alon, Chief Executive Officer
SMX
(Security Matters) Public Limited Company
Mespil
Business Centre
Mespil House, Sussex Road
Dublin 4, Ireland
| Re: | SMX
| PIPE Offering | Placement Agent Agreement |
Dear
Mr. Alon:
The
purpose of this placement agent agreement is to outline our agreement pursuant to which Aegis Capital Corp. (“Aegis”)
will act as the placement agent on a “best efforts” basis in connection with the proposed PIPE Offering (the “Placement”)
by SMX (Security Matters) Public Limited Company (collectively, with its subsidiaries and affiliates, the “Company”)
of units consisting of its Ordinary Shares and warrants to purchase its Ordinary Shares (the “Securities”).
This placement agent agreement sets forth certain conditions and assumptions upon which the Placement is premised. The Company expressly
acknowledges and agrees that Aegis’s obligations hereunder are on a reasonable “best efforts” basis only and that the
execution of this Agreement does not constitute a commitment by Aegis to purchase the Securities and does not ensure the successful placement
of the Securities or any portion thereof or the success of Aegis with respect to securing any other financing on behalf of the Company.
The Company confirms that entry into this placement agent agreement and completion of the Placement with Aegis will not breach or otherwise
violate the Company’s obligations to any other party or require any payments to such other party. For the sake of clarity, such
obligations may include but not be limited to obligations under an engagement letter, placement agency agreement, underwriting agreement,
advisory agreement, right of first refusal, tail fee obligation or other agreement.
1345
Avenue of the Americas · New York, New York · 10105
(212)
813-1010 · Fax (212) 813-1047 · Member FINRA, SIPC
The
terms of our agreement are as follows:
| 1. | Engagement.
The Company hereby engages Aegis, for the period beginning on the date hereof and ending
ten (10) business days thereafter or upon the completion of the Placement, whichever is sooner
(the “Engagement Period”), to act as the Company’s exclusive
investment bank in connection with the proposed Placement. During the Engagement Period or
until the consummation of the Placement, and as long as Aegis is proceeding in good faith
with preparations for the Placement, the Company agrees not to solicit, negotiate with or
enter into any agreement with any other source of financing (whether equity, debt or otherwise),
any underwriter, potential underwriter, placement agent, financial advisor, investment banking
firm or any other person or entity in connection with an offering of the Company’s
debt or equity securities or any other financing by the Company. Aegis will use its reasonable
“best efforts” to solicit offers to purchase the Securities from the Company
on the terms, and subject to the conditions, set forth in the Prospectus (as defined below).
Aegis shall use commercially reasonable efforts to assist the Company in obtaining performance
by each Purchaser (as defined below) whose offer to purchase Securities has been solicited
by Aegis, but Aegis shall not, except as otherwise provided in this Agreement, be obligated
to disclose the identity of any potential purchaser or have any liability to the Company
in the event any such purchase is not consummated for any reason. The Company acknowledges
that under no circumstances will Aegis be obligated to underwrite or purchase any Securities
for its own account and, in soliciting purchases of the Securities, Aegis shall act solely
as an agent of the Company. The services provided pursuant to this placement agent agreement
shall be on an “agency” basis and not on a “principal” basis. |
| 2. | The
Placement. The Placement is expected to consist of a sale of approximately $7.0 million
of the Company’s Securities. Aegis will act as placement agent for the Placement subject
to, among other matters referred to herein and additional customary conditions, completion
of Aegis’s due diligence examination of the Company and its affiliates, listing approval
by the Nasdaq Capital Market (“Exchange”) of the Securities to
be issued, and the execution of a definitive Securities Purchase Agreement in connection
with the Placement (the “Securities Purchase Agreement”). The actual
size of the Placement, the precise number of Securities to be offered by the Company and
the offering price will be the subject of continuing negotiations between the Company and
the investors thereto. In connection with the entry into the Securities Purchase Agreement,
the Company (i) will meet with Aegis and its representatives to discuss such due diligence
matters and to provide such documents as Aegis may require; (ii) will not file with the Commission
any document regarding the Placement without the prior approval of Aegis and its counsel;
(iii) will deliver to Aegis and the investors in the Placement such legal and accounting
opinions and letters (including, without limitation, accounting comfort letters, legal opinions,
negative assurance letters, good standing certificates and officers’ and secretary
certificates) as Aegis may require, all in form and substance acceptable to Aegis and (iv)
will ensure that Aegis is a third party beneficiary of all representations, warranties, covenants,
closing conditions and deliverables in connection with the Placement. |
| 3. | Placement
Compensation. The placement commission for Aegis will be 10.0% for the Placement
and 3.0% of the proceeds from the cash exercise of any warrants, payable upon exercise, and
the placement commission for Aegis’s co-placement agent(s) will be an aggregate placement
commission of 2% for the Placement. |
| 4. | Registration
Statement. To the extent the Company decides to proceed with the Placement, the Company
will, as soon as practicable and in no event later than the times set forth in the registration
rights agreement to be entered into with the investors in the Placement, prepare and file
with the Securities and Exchange Commission (the “Commission”)
a Registration Statement on Form F-1 (the “Registration Statement”)
under the Securities Act of 1933, as amended (the “Securities Act”)
and a prospectus included therein (the “Prospectus”) covering the
resale of the Securities to be offered and sold in the Placement. The Registration Statement
(including the Prospectus therein), and all amendments and supplements thereto, will be in
form reasonably satisfactory to the investors, Aegis and counsel to the investors and Aegis.
Other than any information provided by the investors or Aegis in writing specifically for
inclusion in the Registration Statement or the Prospectus, the Company will be solely responsible
for the contents of its Registration Statement and Prospectus and any and all other written
or oral communications provided by or on behalf of the Company to any actual or prospective
investor of the Securities, and the Company represents and warrants that such materials and
such other communications will not, as of the date of the offer or sale of the Securities,
contain any untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. If at any time prior to the completion
of the offer and sale of the Securities an event occurs that would cause the Registration
Statement or Prospectus (as supplemented or amended) to contain an untrue statement of a
material fact or to omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading, the Company
will notify Aegis immediately of such event and Aegis will suspend solicitations of the prospective
purchasers of the Securities until such time as the Company shall prepare a supplement or
amendment to the Registration Statement or Prospectus that corrects such statement or omission. |
| 5. | Lock-Ups.
In connection with the Placement, the Company’s directors, executive officers, employees
and shareholders holding at least ten percent (10%) of the outstanding ordinary shares will
enter into customary “lock-up” agreements in favor of the Placement Agent for
a period of ninety (90) days after the later of the Closing of the Placement or effectiveness
of the Registration Statement (the “Lock-Up Period”); provided,
however, that any sales by parties to the lock-ups shall be subject to the lock-up agreements
and provided further, that none of such ordinary shares shall be saleable in the public market
until the expiration of the Lock-Up Period. |
| 6. | Company
Standstill. In connection with the Placement, without the prior written consent of
the investors, the Company will not, for a period of ninety (90) days after the later of
the Closing of the Placement or effectiveness of the Registration Statement (the “Standstill
Period”), (a) offer, sell, issue, or otherwise transfer or dispose of, directly
or indirectly, any equity of the Company or any securities convertible into or exercisable
or exchangeable for equity of the Company; (b) file or caused to be filed any registration
statement with the Commission relating to the offering of any equity of the Company or any
securities convertible into or exercisable or exchangeable for equity of the Company; or
(c) enter into any agreement or announce the intention to effect any of the actions described
in subsections (a) or (b) hereof (all of such matters, the “Standstill Restrictions”).
Notwithstanding the foregoing, the Standstill Restrictions shall not apply in respect
of an Exempt Issuance. “Exempt Issuance” means (i) any conventional bank loans
that are not convertible into Ordinary Shares or Ordinary Share Equivalents and do not involve
any issuance of any Ordinary Shares or Ordinary Share Equivalents or other security of the
Company in connection therewith; (ii) Ordinary Shares or options issued to employees, officers
or directors of the Company pursuant to the Company’s equity incentive plans or pursuant
to the compensation agreements previously authorized by the Board of Directors; (iii) securities
issued upon the exercise or exchange of or conversion of any Securities issued hereunder
and/or other securities exercisable or exchangeable for or convertible into Ordinary Shares
issued and outstanding on the date of this Agreement, provided that such securities have
not been amended since the date of this Agreement to increase the number of such securities
or to decrease the exercise price, exchange price or conversion price of such securities
(other than in connection with share splits or combinations) or to extend the term of such
securities; (iv) the filing of any registration statement, or any amendment or supplement
thereto, solely with pursuant to any registration rights agreement or registration obligations
in effect on the date hereof; and (v) securities issued pursuant to acquisitions or strategic
transactions (whether by merger, consolidation, purchase of equity, purchase of assets, reorganization
or otherwise) 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 ninety (90) days following the Release Date,
and provided that any such issuance shall only be to a Person (or to the equityholders
of a Person) 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, but shall
not include a transaction in which the Company is issuing securities primarily for the purpose
of raising capital or to an entity whose primary business is investing in securities. Other
capitalized terms used in this Section 6 and not defined shall have the meanings ascribed
to those terms in the Securities Purchase Agreement. |
| 7. | Expenses.
The Company will be responsible for and will pay all expenses relating to the Placement,
including, without limitation, (a) all filing fees and expenses relating to the registration
of the Securities with the Commission; (b) all FINRA Public Offering filing fees; (c) all
fees and expenses relating to the listing of the Company’s equity or equity-linked
securities on an Exchange; (d) all fees, expenses and disbursements relating to the registration
or qualification of the Securities under the “blue sky” securities laws of such
states and other jurisdictions as Aegis may reasonably designate (including, without limitation,
all filing and registration fees, and the reasonable fees and disbursements of the Company’s
“blue sky” counsel, which will be Aegis’s counsel) unless such filings
are not required in connection with the Company’s proposed Exchange listing; (e) any
fees for counsel to lead investors in the Placement; (f) all fees, expenses and disbursements
relating to the registration, qualification or exemption of the Securities under the securities
laws of such foreign jurisdictions as Aegis may reasonably designate; (g) the costs of all
mailing and printing of the Placement documents; (h) transfer and/or stamp taxes, if any,
payable upon the transfer of Securities from the Company to Aegis; (i) the fees and expenses
of the Company’s accountants; and (j) $100,000 for reasonable legal fees and disbursements
for Aegis’s counsel. |
| 8. | Right
of First Refusal. If, for the period beginning on the Closing of the Placement and
ending twelve (12) months after the commencement of sales in the Placement, the Company or
any of its subsidiaries (a) decides to finance or refinance any indebtedness, Aegis (or any
affiliate designated by Aegis) shall have the right to act as sole book-runner, sole manager,
sole placement agent or sole agent with respect to such financing or refinancing; or (b)
decides to raise funds by means of a public offering (including at-the-market facility) or
a private placement or any other capital raising financing of equity, equity-linked or debt
securities, Aegis (or any affiliate designated by Aegis) shall have the right to act as sole
book-running manager, sole underwriter or sole placement agent for such financing. If Aegis
or one of its affiliates decides to accept any such engagement, the agreement governing such
engagement (each, a “Subsequent Transaction Agreement”) will contain,
among other things, provisions for customary fees for transactions of similar size and nature,
but in no event will the fees be less than those outlined herein, and the provisions of this
placement agent agreement, including indemnification, that are appropriate to such a transaction.
Notwithstanding the foregoing, the decision to accept the Company’s engagement under
this Section 8 shall be made by Aegis or one of its affiliates, by a written notice to the
Company, within ten (10) days of the receipt of the Company’s notification of its financing
needs, including a detailed term sheet. Aegis’s determination of whether in any case
to exercise its right of first refusal will be strictly limited to the terms on such term
sheet, and any waiver of such right of first refusal shall apply only to such specific terms.
If Aegis waives its right of first refusal, any deviation from such terms (including without
limitation after the launch of a subsequent transaction) shall void the waiver and require
the Company to seek a new waiver from the right of first refusal on the terms set forth in
this Section 8. |
| 9. | Tail
Financing. Aegis shall be entitled to compensation under Section 3 herein, calculated
in the manner set forth therein, with respect to any public or private offering or other
financing or capital raising transaction of any kind (“Tail Financing”)
to the extent that such financing or capital is provided to the Company by investors Aegis
has introduced to and/or contacted on behalf of the Company through an in-person, electronic
or telephonic communication or investors that Aegis had “wall-crossed” in connection
with this Placement (or any entity under common management or having a common investment
advisor), if such Tail Financing is consummated at any time within twelve (12) months after
the Closing, expiration or termination of this placement agent agreement. |
| 10. | Closing;
Closing Deliverables. Unless otherwise directed by the Placement Agent, settlement
of the Securities shall be made as set forth in the Securities Purchase Agreement. On the
Closing Date, the Securities to which the Closing relates shall be delivered through such
means as the parties to the Securities Purchase Agreement may hereafter agree. The Securities
shall be registered in such name or names and in such authorized denominations as set forth
in the Securities Purchase Agreement. |
10.1. Company
Deliveries.
10.1.1.
On the date hereof, the Company shall deliver each of the following:
10.1.1.1
This Agreement duly executed by the Company.
10.1.1.2
Reserved.
10.1.1.3
A certificate executed by the Chief Financial Officer of the Company in customary form reasonably satisfactory to the Placement
Agent and its counsel.
10.1.1.4
The Lock-Up Agreements.
10.1.1.5
The Registration Rights Agreement duly executed by the Company.
10.1.1.6
The Escrow Agreement.
10.1.2.
On or prior to the Closing Date, the Company shall deliver each the following:
10.1.2.1
Legal opinions of U.S. counsel to the Company and foreign counsel to the Company, addressed to the Placement Agent and the
Purchasers, in form and substance reasonably acceptable to the Placement Agent and Purchasers.
10.1.2.2
A copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to deliver, on an expedited basis, a
certificate (or at the request of the Purchaser, book entry statement) evidencing a number of Shares equal to such Purchaser’s
Subscription Amount divided by the Per Unit Purchase Price, registered in the name of such Purchaser; Shares, divided by the Per
Unit Purchase Price, registered in the name of such Purchaser.
10.1.2.3
For each Purchaser of Pre-Funded Warrants pursuant to Section 10, a Pre-Funded Warrant registered in the name of such Purchaser to
purchase up to a number of Ordinary Shares equal to the portion of such Purchaser’s Subscription Amount applicable to
Pre-Funded Warrants divided by the Per Unit Purchase Price, with an exercise price equal to $0.0001, subject to adjustment as
provided therein.
10.1.2.4
The Company shall have provided each Purchaser with the Company’s wire instructions, on Company letterhead and executed by the
Chief Executive Officer or Chief Financial Officer.
10.1.2.5
A duly executed and delivered Officers’ Certificate, in customary form reasonably satisfactory to the Placement Agent and its
counsel.
10.1.2.6
A cold comfort letter from the Company’s auditor, addressed to the Placement Agent in form and substance reasonably
satisfactory in all material respects.
10.1.2.7
Duly executed joint written instructions to the Escrow Agent.
10.1.2.8
The Series A PIPE Common Warrants registered in the name of such Purchaser to purchase up to a number of Ordinary Shares equal to
200.0% of the sum of the number of Shares and Pre-Funded Warrants stated on such Purchaser’s signature page hereto, each with
an exercise price equal to $1.00, subject to adjustment as provided therein.
10.1.2.9
The Series B PIPE Common Warrants registered in the name of such Purchaser to purchase up to a number of Ordinary Shares as set
forth therein, each with an exercise price equal to $0.00001, subject to adjustment as provided therein.
| 11. | Conditions
of the Obligations of the Placement Agent. The obligations of the Placement Agent
hereunder shall be subject to the accuracy of the representations and warranties on the part
of the Company set forth in the Securities Purchase Agreement (on which the Company authorizes
the Placement Agent to Rely), in each case as of the date hereof and as of the Closing Date
as though then made, to the timely performance by each of the Company of its covenants and
other obligations hereunder on and as of such dates, and to each of the following additional
conditions: |
11.1. Regulatory
Matters.
11.1.1.
Listing of Additional Shares. On or before the Closing Date, the Company shall have filed a notice with the Exchange with respect to
the Company’s additional listing of the securities sold in the Offering.
11.2.
Closing Deliverables. The Company shall have delivered all closing deliverables to the Placement Agent as set forth in Section 10.1
as of the time required and in form reasonably satisfactory to the Placement Agent.
11.2.1. No
Material Changes. Prior to and on the Closing Date: (i) there shall have been no Material Adverse Effect or development
involving a prospective Material Adverse Effect in the condition or prospects or the business activities, financial or otherwise, of
the Company from the latest dates as of which such condition is set forth in the Registration Statement, the Disclosure Package and
the Prospectus; (ii) no action, suit or proceeding, at law or in equity, shall have been pending or threatened against the Company
or any affiliates of the Company before or by any court or federal or state commission, board or other administrative agency wherein
an unfavorable decision, ruling or finding may materially adversely affect the business, operations, prospects or financial
condition or income of the Company, except as set forth in the Registration Statement and the Prospectus; (iii) no stop order shall
have been issued under the Securities Act and no proceedings therefor shall have been initiated or threatened by the Commission; and
(iv) the Registration Statement and the Prospectus and any amendments or supplements thereto shall contain all material statements
which are required to be stated therein in accordance with the Securities Act and the Securities Act Regulations and shall conform
in all material respects to the requirements of the Securities Act and the Securities Act Regulations, and neither the Registration
Statement nor the Prospectus nor any amendment or supplement thereto shall contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
11.2.2.
Additional Documents. At the Closing Date, Placement Agent’s counsel shall have been furnished with such documents and
opinions as they may require in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of
any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the
Securities as herein contemplated shall be satisfactory in form and substance to the Placement Agent and Placement Agent’s
counsel.
| 12. | Prior
Agreement. By entering into this Agreement, the parties agree that that certain letter
of engagement, dated September 10, 2024, entered into between the same parties hereof, shall
automatically terminate and cease to have any effect whatsoever and shall be superseded in
its entirety by this Agreement. |
| 13. | Termination.
Notwithstanding anything to the contrary contained herein, the Company agrees that the provisions
relating to the payment of fees, reimbursement of expenses, right of first refusal, tail
fee, indemnification and contribution, equitable remedies, confidentiality, conflicts, independent
contractor and waiver of the right to trial by jury will survive any termination or expiration
of this placement agent agreement. Notwithstanding anything to the contrary contained herein,
the Company has the right to terminate the placement agent agreement for cause in compliance
with FINRA Rule 5110(g)(5)(B)(i). The exercise of such right of termination for cause eliminates
the Company’s obligations with respect to the provisions relating to the tail fees
and right of first refusal. Notwithstanding anything to the contrary contained in this placement
agent agreement, in the event that no Placement is completed for any reason whatsoever during
the Engagement Period, the Company shall be obligated to pay to Aegis its actual and accountable
out-of-pocket expenses related to the Placement (including the fees and disbursements of
Placement Agent’s legal counsel) and if applicable, for electronic road show service
used in connection with the Placement. During the engagement hereunder: (i) the Company will
not, and will not permit its representatives to, other than in coordination with Aegis, contact
or solicit institutions, corporations or other entities or individuals as potential purchasers
of the Securities and (ii) the Company will not pursue any financing transaction which would
be in lieu of the Placement. Furthermore, the Company agrees that during Aegis’s engagement
hereunder, all inquiries from prospective investors will be referred to Aegis. Regardless
of termination and except as stated in this Section 13, Section 9 of this placement agent
agreement will still remain in full effect if an offering is consummated. |
| 14. | Publicity.
The Company agrees that it will not issue press releases or engage in any other publicity,
without Aegis’s prior written consent, commencing on the date hereof and continuing
until the final Closing of the Placement. |
| 15. | Information.
During the Engagement Period or until the Closing, the Company agrees to cooperate with Aegis
and to furnish, or cause to be furnished, to Aegis, any and all information and data concerning
the Company, and the Placement that Aegis deems appropriate (the “Information”).
The Company will provide Aegis reasonable access during normal business hours from and after
the date of execution of this placement agent agreement until the Closing to all of the Company’s
assets, properties, books, contracts, commitments and records and to the Company’s
officers, directors, employees, appraisers, independent accountants, legal counsel and other
consultants and advisors. Except as contemplated by the terms hereof or as required by applicable
law, Aegis will keep strictly confidential all non-public Information concerning the Company
provided to Aegis. No obligation of confidentiality will apply to Information that: (a) is
in the public domain as of the date hereof or hereafter enters the public domain without
a breach by Aegis, (b) was known or became known by Aegis prior to the Company’s disclosure
thereof to Aegis as demonstrated by the existence of its written records, (c) becomes known
to Aegis from a source other than the Company which information is not provided by the breach
of an obligation of confidentiality owed to the Company, (d) is disclosed by the Company
to a third party without restrictions on its disclosure or (e) is independently developed
by Aegis as demonstrated by its written records. For the avoidance of doubt, except as otherwise
provided herein, all information which is not publicly available relating to the Company’s
proprietary technology is proprietary and confidential. |
| 16. | No
Third Party Beneficiaries; No Fiduciary Obligations. This placement agent agreement
does not create, and shall not be construed as creating, rights enforceable by any person
or entity not a party hereto, except those entitled hereto by virtue of the indemnification
provisions hereof. The Company acknowledges and agrees that: (i) Aegis is not and shall not
be construed as a fiduciary of the Company and shall have no duties or liabilities to the
equity holders or the creditors of the Company or any other person or entity by virtue of
this placement agent agreement or the retention of Aegis hereunder, all of which are hereby
expressly waived; and (ii) Aegis is a full service securities firm engaged in a wide range
of businesses and from time to time, in the ordinary course of its business, Aegis or its
affiliates may hold long or short positions and trade or otherwise effect transactions for
its own account or the account of its customers in debt or equity securities or loans of
the companies which may be the subject of the transactions contemplated by this placement
agent agreement. During the course of Aegis’s engagement with the Company, Aegis may
have in its possession material, non-public information regarding other companies that could
potentially be relevant to the Company or the transactions contemplated herein but which
cannot be shared due to an obligation of confidence to such other companies. |
| 17. | Indemnification,
Advancement & Contribution. |
17.1. Indemnification.
The Company agrees to indemnify and hold harmless Aegis, its affiliates and each person controlling Aegis (within the meaning of
Section 15 of the Securities Act), and the directors, officers, agents and employees of Aegis, its affiliates and each such
controlling person (Aegis, and each such entity or person hereafter is referred to as an “Indemnified
Person”) from and against any losses, claims, damages, judgments, assessments, costs and other liabilities
(collectively, the “Liabilities”), and shall reimburse each Indemnified Person for all fees and expenses
(including the reasonable fees and expenses of counsel for the Indemnified Persons) (collectively, the
“Expenses”) and agrees to advance payment of such Expenses as they are incurred by an Indemnified Person
in investigating, preparing, pursuing or defending any actions, whether or not any Indemnified Person is a party thereto, arising
out of or based upon (i) any untrue statement or alleged untrue statement of a material fact contained in (A) the Registration
Statement, Prospectus or any other offering documents (as from time to time each may be amended and supplemented), (B) any materials
or information provided to investors by, or with the approval of, the Company in connection with the marketing of the Placement,
including any “road show” or investor presentations made to investors by the Company (whether in person or
electronically), or (C) any application or other document or written communication (collectively called “application”)
executed by the Company or based upon written information furnished by the Company in any jurisdiction in order to qualify the
Securities under the securities laws thereof or to file for an exemption from such requirement or filed with the Commission, any
state securities commission or agency, any national securities exchange; or (ii) the omission or alleged omission therefrom of 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, unless such statement or omission was made in reliance upon, and in conformity with,
information provided to the Company by Aegis in writing specifically for use in the Registration Statement, Prospectus or any other
offering documents with respect which or resulting from conduct by Aegis or another Indemnified Party, as to which Aegis shall
indemnify and hold harmless the Company, its officers, directors and controlling parties in the manner set forth in this Section 17.
The Company also agrees to reimburse and advance each Indemnified Person for all Expenses as they are incurred in connection with
such Indemnified Person’s enforcement of his or its rights under this Section 17.
17.2. Procedure.
Upon receipt by an Indemnified Person of actual notice of an action against such Indemnified Person with respect to which indemnity
may reasonably be expected to be sought under this Section 17, such Indemnified Person shall promptly notify the Company in writing;
provided that failure by any Indemnified Person so to notify the Company shall not relieve the Company from any obligation or
liability which the Company may have on account of this Section 17 or otherwise to such Indemnified Person. The Company shall, if
requested by Aegis, assume the defense of any such action (including the employment of counsel designated by Aegis and reasonably
satisfactory to the Company). Any Indemnified Person shall have the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person
unless: (i) the Company has failed promptly to assume the defense and employ separate counsel reasonably acceptable to Aegis for the
benefit of Aegis and the other Indemnified Persons or (ii) such Indemnified Person shall have been advised that in the opinion of
counsel that there is an actual or potential conflict of interest that prevents (or makes it imprudent for) the counsel designated
by and engaged by the Company for the purpose of representing the Indemnified Person, to represent both such Indemnified Person and
any other person represented or proposed to be represented by such counsel, in which event the Company shall pay the reasonable fees
and expenses of one counsel, plus local counsel, for all Indemnified Parties, which counsel shall, if Aegis is a defendant, be
designated by Aegis. The Company shall not be liable for any settlement of any action effected without its written consent (which
shall not be unreasonably withheld). In addition, the Company shall not, without the prior written consent of Aegis, settle,
compromise or consent to the entry of any judgment in or otherwise seek to terminate any pending or threatened action in respect of
which advancement, reimbursement, indemnification or contribution may be sought hereunder (whether or not such Indemnified Person is
a party thereto) unless such settlement, compromise, consent or termination (i) includes an unconditional release of each
Indemnified Person, acceptable to such Indemnified Party, from all Liabilities arising out of such action for which indemnification
or contribution may be sought hereunder and (ii) does not include a statement as to or an admission of fault, culpability or a
failure to act, by or on behalf of any Indemnified Person. The advancement, reimbursement, indemnification and contribution
obligations of the Company required hereby shall be made by periodic payments of the amount thereof during the course of the
investigation or defense, as every Liability and Expense is incurred and is due and payable, and in such amounts as fully satisfy
each and every Liability and Expense as it is incurred (and in no event later than 30 days following the date of any invoice
therefore).
17.3.
Contribution. In the event that a court of competent jurisdiction makes a finding, final beyond right of review, that indemnity is
unavailable to an Indemnified Person, the Company shall contribute to the Liabilities and Expenses paid or payable by such
Indemnified Person in such proportion as is appropriate to reflect (i) the relative benefits to the Company, on the one hand, and to
Aegis and any other Indemnified Person, on the other hand, of the matters contemplated by this Section 17 or (ii) if the allocation
provided by the immediately preceding clause is not permitted by applicable law, not only such relative benefits but also the
relative fault of the Company, on the one hand, and Aegis and any other Indemnified Person, on the other hand, in connection with
the matters as to which such Liabilities or Expenses relate, as well as any other relevant equitable considerations; provided that
in no event shall the Company contribute less than the amount necessary to ensure that all Indemnified Persons, in the aggregate,
are not liable for any Liabilities and Expenses in excess of the amount of commissions and non-accountable expense allowance
actually received by Aegis in the Placement. The relative fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or Aegis on the other and the parties’ relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission. The Company and Aegis agree that it would not be
just and equitable if contributions pursuant to this subsection 17.3 were determined by pro rata allocation or by any other method
of allocation which does not take account of the equitable considerations referred to above in this subsection 17.3. For purposes of
this paragraph, the relative benefits to the Company, on the one hand, and to Aegis on the other hand, of the matters contemplated
by this Section 17 shall be deemed to be in the same proportion as: (a) the total value received by the Company in the Placement,
whether or not such Placement is consummated, bears to (b) the commissions paid to Aegis under the Placement Agent Agreement.
Notwithstanding the above, no person guilty of fraudulent misrepresentation within the meaning of Section 11(f) of the Securities
Act shall be entitled to contribution from a party who was not guilty of fraudulent misrepresentation.
17.4. Limitation.
The Company also agrees that no Indemnified Person shall have any liability (whether direct or indirect, in contract or tort or
otherwise) to the Company for or in connection with advice or services rendered or to be rendered by any Indemnified Person pursuant
to this placement agent agreement, the transactions contemplated thereby or any Indemnified Person’s actions or inactions in
connection with any such advice, services or transactions, except to the extent that a court of competent jurisdiction has made a
finding that Liabilities (and related Expenses) of the Company have resulted exclusively from such Indemnified Person’s gross
negligence or willful misconduct in connection with any such advice, actions, inactions or services.
| 18. | Equitable
Remedies. Each party to this placement agent agreement acknowledges and agrees that
(a) a breach or threatened breach by the Company of any of its obligations under Section
8 or Section 9 or the exclusivity provisions of Section 1 would give rise to irreparable
harm to Aegis for which monetary damages would not be an adequate remedy and (b) if a breach
or a threatened breach by the Company of any such obligations occurs, Aegis will, in addition
to any and all other rights and remedies that may be available to such party at law, at equity,
or otherwise in respect of such breach, be entitled to equitable relief, including a temporary
restraining order, an injunction, specific performance of the terms of Section 8 or Section
9 or the exclusivity provisions of Section 1, as applicable, and any other relief that may
be available from a court of competent jurisdiction, without any requirement to (i) post
a bond or other security, or (ii) prove actual damages or that monetary damages will not
afford an adequate remedy. Each party to this placement agent agreement agrees that such
party shall not oppose or otherwise challenge the existence of irreparable harm, the appropriateness
of equitable relief or the entry by a court of competent jurisdiction of an order granting
equitable relief, in either case, consistent with the terms of this Section 18. |
| 19. | Governing
Law; Venue. This placement agent agreement will be deemed to have been made and delivered
in the State of New York, USA, and both the binding provisions of this placement agent agreement
and the transactions contemplated hereby will be governed as to validity, interpretation,
construction, effect and in all other respects by the internal laws of the State of New York,
without regard to the conflict of laws principles thereof. Each of Aegis and the Company:
(i) agrees that any legal suit, action or proceeding arising out of or relating to this placement
agent agreement and/or the transactions contemplated hereby will be instituted exclusively
in the courts located in the Borough of Manhattan, City of New York, County of New York,
State of New York (ii) waives any objection which it may have or hereafter to the venue of
any such suit, action or proceeding, and (iii) irrevocably consents to the jurisdiction of
the courts located in the City of New York, County of New York and State of New York, in
any such suit, action or proceeding. Each of Aegis and the Company further agrees to accept
and acknowledge service of any and all process which may be served in any such suit, action
or proceeding in such courts and agrees that service of process upon the Company mailed by
certified mail to the Company’s address will be deemed in every respect effective service
of process upon the Company, in any such suit, action or proceeding, and service of process
upon Aegis mailed by certified mail to Aegis’s address will be deemed in every respect
effective service process upon Aegis, in any such suit, action or proceeding. Notwithstanding
any provision of this placement agent agreement to the contrary, the Company agrees that
neither Aegis nor its affiliates, and the respective officers, directors, employees, agents
and representatives of Aegis, its affiliates and each other person, if any, controlling Aegis
or any of its affiliates, will have any liability (whether direct or indirect, in contract
or tort or otherwise) to the Company for or in connection with the engagement and transaction
described herein except for any such liability for losses, claims, damages or liabilities
incurred by the Company that are finally judicially determined to have resulted from the
bad faith or gross negligence of such individuals or entities. Aegis will act under this
placement agent agreement as an independent contractor with duties to the Company. |
| 20. | Miscellaneous.
The Company represents and warrants that it has all required power and authority to enter
into and carry out the terms and provisions of this placement agent agreement and the execution,
delivery and performance of this placement agent agreement does not breach or conflict with
any agreement, document or instrument to which it is a party or bound. The binding provisions
of this placement agent agreement are legally binding upon and inure to the benefit of both
the Company and Aegis and their respective assigns, successors, and legal representatives.
If any provision of this placement agent agreement is determined to be invalid or unenforceable
in any respect, such determination will not affect such provision in any other respect, and
the remainder of the placement agent agreement shall remain in full force and effect. This
placement agent agreement may be executed in counterparts (including electronic counterparts),
each of which shall be deemed an original but all of which together shall constitute one
and the same instrument. The undersigned hereby consents to receipt of this placement agent
agreement in electronic form and understands and agrees that this placement agent agreement
may be signed electronically. Signatures to this placement agent agreement transmitted in
electronic form will have the same effect as physical delivery of a paper document bearing
the original signature, and if any signature is delivered electronically evidencing an intent
to sign this placement agent agreement, such electronic mail or other electronic transmission
shall create a valid and binding obligation of the undersigned with the same force and effect
as if such signature were an original. Execution and delivery of this placement agent agreement
by electronic mail or other electronic transmission is legal, valid and binding for all purposes. |
If
you are in agreement with the foregoing, please sign and return to us one copy of this placement agent agreement. This placement agent
agreement may be executed in counterparts (including facsimile or .pdf counterparts), each of which shall be deemed an original but all
of which together shall constitute one and the same instrument.
[Signature
Page of SMX PIPE Offering Placement Agent Agreement Follows]
[Signature
Page of SMX PIPE Offering Placement Agent Agreement]
| |
Very
truly yours, |
| |
|
|
| |
Aegis
Capital Corp. |
| |
|
|
| |
By: |
/s/
Robert Eide |
| |
Name: |
Robert
Eide |
| |
Title: |
Chief
Executive Officer |
AGREED
AND ACCEPTED:
The
foregoing accurately sets forth our understanding and agreement with respect to the matters set forth herein.
SMX
(Security Matters) Public Limited Company
| By: |
/s/
Haggai Alon |
|
| Name: |
Haggai
Alon |
|
| Title: |
Chief
Executive Officer |
|
Exhibit
99.2
SECURITIES
PURCHASE AGREEMENT
This
Securities Purchase Agreement (this “Agreement”) is dated as of September 11, 2024, between SMX (Security Matters)
Public Limited Company, an Irish public limited company (the “Company”), and each purchaser identified on the
signature pages hereto (including their respective successors and assigns, each a “Purchaser” and collectively,
the “Purchasers”).
WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended
(the “Securities Act”), and Rule 506 promulgated thereunder, the Company desires to issue and sell to each
Purchaser, and each Purchaser, severally and not jointly, desires to purchase from the Company, securities of the Company as more fully
described in this Agreement.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the Company and each Purchaser agree as follows:
| 1. |
Definitions.
In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms have the meanings
set forth in this Section 1: |
1.1.
“Acquiring Person” shall have the meaning ascribed to such term in Section 4.5.
1.2.
“Action” shall have the meaning ascribed to such term in Section 3.1.10.
1.3.
“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is
controlled by or is under common control with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
1.4.
“Agreement” shall have the meaning ascribed to such term in the preamble.
1.5.
“BHCA” shall have the meaning ascribed to such term in Section 3.1.42.
1.6.
“Board of Directors” means the board of directors of the Company.
1.7.
“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
are generally open for use by customers on such day.
1.8.
“Buy-In Price” shall have the meaning ascribed to such term in Section 4.1.4.
1.9.
“Closing” means the closing of the purchase and sale of the Securities pursuant to Section 2.1.
1.10.
“Closing Date” means the Trading Day on which all of the Transaction Documents have been executed and delivered
by the applicable parties thereto, and all conditions precedent to (i) the Purchasers’ obligations to pay the Subscription Amount
and (ii) the Company’s obligations to deliver the Securities, in each case, have been satisfied or waived.
1.11.
“Code” means the Internal Revenue Code of 1986, as amended.
1.12.
“Commission” means the United States Securities and Exchange Commission.
1.13.
“Common Warrants” means the warrants to purchase Ordinary Shares delivered to the Purchasers at the Closing
in accordance with Section 2.2.1 hereof, which Common Warrants shall be in the forms of Exhibit 1.13.1 and Exhibit
1.13.2 attached hereto.
1.14.
“Company” shall have the meaning ascribed to such term in the preamble.
1.15.
“Company Counsel” means with respect to U.S. federal securities law and New York law, Ruskin Moscou Faltischek,
P.C., East Tower, 15th Floor, 1425 RXR Plaza, Uniondale, NY 11556-1425.
1.16.
“Disclosure Schedules” means the Disclosure Schedules of the Company delivered concurrently herewith.
1.17.
“Disclosure Time” means, (i) if this Agreement is signed on a day that is not a Trading Day or after 9:00 a.m.
(New York City time) and before midnight (New York City time) on any Trading Day, 9:01 a.m. (New York City time) on the Trading Day immediately
following the date hereof, unless otherwise instructed as to an earlier time by the Placement Agent, and (ii) if this Agreement is signed
between midnight (New York City time) and 9:00 a.m. (New York City time) on any Trading Day, no later than 9:01 a.m. (New York City time)
on the date hereof, unless otherwise instructed as to an earlier time by the Placement Agent.
1.18.
“Disqualification Event” shall have the meaning ascribed to such term in Section 3.1.44.
1.19.
“Escrow Agent” means Continental Stock Transfer & Trust Company, with offices at 1 State Street, 30th Floor,
New York, NY 10004.
1.20.
“Escrow Agreement” means the escrow agreement entered into prior to the date hereof, by and among the Company,
the Escrow Agent and the Placement Agent pursuant to which the Purchasers shall deposit Subscription Amounts with the Escrow Agent and
the Company shall deposit any True-up Payment (as defined in the Series A PIPE Common Warrant) with the Escrow Agent to be applied to
the transactions contemplated hereunder.
1.21.
“Evaluation Date” shall have the meaning ascribed to such term in Section 3.1.19.
1.22.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder.
1.23.
“Exempt Issuance” means (i) any conventional bank loans that are not convertible into Ordinary Shares or Ordinary
Share Equivalents and do not involve any issuance of any Ordinary Shares or Ordinary Share Equivalents or other security of the Company
in connection therewith; (ii) Ordinary Shares or options issued to employees, officers or directors of the Company pursuant to the Company’s
equity incentive plans or pursuant to the compensation agreements previously authorized by the Board of Directors; (iii) securities issued
upon the exercise or exchange of or conversion of any Securities issued hereunder and/or other securities exercisable or exchangeable
for or convertible into Ordinary Shares issued and outstanding on the date of this Agreement, provided that such securities have not
been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price
or conversion price of such securities (other than in connection with share splits or combinations) or to extend the term of such securities;
(iv) the filing of any registration statement, or any amendment or supplement thereto, solely with pursuant to any registration rights
agreement or registration obligations in effect on the date hereof; and (v) securities issued pursuant to acquisitions or strategic
transactions (whether by merger, consolidation, purchase of equity, purchase of assets, reorganization or otherwise) 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 ninety (90) days following the Release Date, and provided that any such issuance shall only be to a Person (or to the equityholders
of a Person) 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, but shall not
include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary
business is investing in securities.
1.24.
“FCPA” means the Foreign Corrupt Practices Act of 1977, as amended.
1.25.
“FDA” shall have the meaning ascribed to such term in Section 3.1.47.
1.26.
“FDCA” shall have the meaning ascribed to such term in Section 3.1.47.
1.27.
“Federal Reserve” shall have the meaning ascribed to such term in Section 3.1.42.
1.28.
“Foreign Counsel” means Arthur Cox LLP, Ten Earlsfort Terrace, Dublin 2, D02 T380, Ireland.
1.29.
“IFRS” shall have the meaning ascribed to such term in Section 3.1.8.
1.30.
“Indebtedness” shall have the meaning ascribed to such term in Section 3.1.28.
1.31.
“Intellectual Property Rights” shall have the meaning ascribed to such term in Section 3.1.16.
1.32.
“Issuer Covered Person” shall have the meaning ascribed to such term in Section 3.1.44.
1.33.
“IT Systems and Data” shall have the meaning ascribed to such term in Section 3.1.48.
1.34.
“Legend Removal Date” shall have the meaning ascribed to such term in Section 4.1.3.
1.35.
“Liens” means a lien, charge pledge, security interest, encumbrance, right of first refusal, preemptive right
or other restriction.
1.36.
“Lock-Up Agreement” means the Lock-Up Agreement, dated as of the date hereof, by and among the Company and
the directors, executive officers, employees and shareholders holding at least ten percent (10%) of the outstanding Ordinary Shares on
a fully converted basis, in the form of Exhibit 1.36 attached hereto.
1.37.
“Material Adverse Effect” shall have the meaning assigned to such term in Section 3.1.2.
1.38.
“Material Permits” shall have the meaning ascribed to such term in Section 3.1.14.
1.39.
“Money Laundering Laws” shall have the meaning ascribed to such term in Section 3.1.43.
1.40.
“OFAC” shall have the meaning ascribed to such term in Section 3.1.40.
1.41.
“Ordinary Share” means the ordinary shares of the Company, $0.165 par value per share, and any other class
of securities into which such securities may hereafter be reclassified or changed.
1.42.
“Ordinary Share Equivalents” means any securities of the Company or the Subsidiaries which would entitle the
holder thereof to acquire at any time Ordinary Shares, including, without limitation, any debt, preferred shares, right, option, warrant
or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof
to receive, Ordinary Shares.
1.43.
“Per Unit Purchase Price” equals $1.00 (less $0.0001 for each Pre-Funded Warrant), subject to adjustment
for reverse and forward share splits, share dividends, share combinations and other similar transactions of the Ordinary Shares that
occur after the date of this Agreement.
1.44.
“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association,
joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any
kind.
1.45.
“PFIC” shall have the meaning ascribed to such term in Section 4.17.
1.46.
“Pharmaceutical Product” shall have the meaning ascribed to such term in Section 3.1.47.
1.47.
“Placement Agent” means Aegis Capital Corp.
1.48.
“Placement Agent Agreement” means the placement agent agreement, dated on or about the date hereof, between
the Company and the Placement Agent.
1.49.
“Pre-Funded Warrants” means the pre-funded Ordinary Share purchase warrants, in the form of Exhibit 1.49
attached hereto delivered to the Purchasers at the Closing in accordance with Section 2.2.1 hereof, which Pre-Funded Warrants
shall be exercisable immediately and shall expire when exercised in full.
1.50.
“Proceeding” means an action, claim, suit, investigation or proceeding (including, without limitation, an informal
investigation or partial proceeding, such as a deposition), whether commenced or threatened.
1.51.
“Public Information Failure” shall have the meaning ascribed to such term in Section 4.2.2.
1.52.
“Purchaser” shall have the meaning ascribed to such term in the preamble.
1.53.
“Purchaser Party” shall have the meaning ascribed to such term in Section 4.8.
1.54.
“Registration Rights Agreement” means the Registration Rights Agreement, dated as of the date hereof, by and
among the Company and the Purchaser Parties, in the form of Exhibit 1.54 attached hereto.
1.55.
“Release Date” means the earlier of (i) the Resale Effective Date registering all of the Securities or (ii)
the date that the Securities can be sold, assigned or transferred without restriction or limitation pursuant to Rule 144 or Rule 144A
promulgated under the 1933 Act, as amended (or a successor rule thereto).
1.56.
“Required Approvals” shall have the meaning ascribed to such term in Section 3.1.5.
1.57.
“Resale Effective Date” means the earliest of the date that (a) the initial Resale Registration Statement registering
for resale all Shares and Warrant Shares has been declared effective by the Commission, (b) all of the Shares and Warrant Shares have
been sold pursuant to Rule 144 or may be sold pursuant to Rule 144 without the requirement for the Company to be in compliance with the
current public information required under Rule 144 and without volume or manner-of-sale restrictions, (c) following the one year anniversary
of the Closing Date provided that the applicable holder of Shares and Warrant Shares is not an Affiliate of the Company, or (d) all of
the Shares and Warrant Shares may be sold pursuant to an exemption from registration under Section 4(a)(1) of the Securities Act without
volume or manner-of-sale restrictions and Company Counsel has delivered to such holders a standing written unqualified opinion that resales
may then be made by such holders of the Shares and Warrant Shares pursuant to such exemption which opinion shall be in form and substance
reasonably acceptable to such holders.
1.58.
“Resale Registration Statement” means a registration statement meeting the requirements set forth in the Registration
Rights Agreement and covering the resale by the Purchasers of the Shares and Warrant Shares.
1.59.
“Rule 144” means Rule 144 promulgated by the Commission 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 Commission having substantially
the same purpose and effect as such Rule.
1.60.
“Rule 424” means Rule 424 promulgated by the Commission 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 Commission having substantially
the same purpose and effect as such Rule.
1.61.
“SEC Reports” shall have the meaning ascribed to such term in Section 3.1.8.
1.62.
“Securities” means the Shares, the Warrants and the Warrant Shares purchased pursuant to this Agreement.
1.63.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
1.64.
“Shares” means the Ordinary Shares issued or issuable to each Purchaser pursuant to this Agreement, but excluding
the Warrant Shares.
1.65.
“Short Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange
Act (but shall not be deemed to include locating and/or borrowing Ordinary Shares).
1.66.
“Subscription Amount” means, as to each Purchaser, the aggregate amount to be paid for Securities purchased
hereunder as specified below such Purchaser’s name on the signature page of this Agreement and next to the heading “Subscription
Amount,” in United States dollars and in immediately available funds.
1.67.
“Subsidiary” means any subsidiary of the Company as set forth in Schedule 3.1.1 and shall, where applicable,
also include any direct or indirect subsidiary of the Company formed or acquired after the date hereof.
1.68.
“Trading Day” means a day on which the principal Trading Market is open for trading.
1.69.
“Trading Market” means any of the following markets or exchanges on which the Ordinary Shares are listed or
quoted for trading on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global
Select Market, the New York Stock Exchange, the OTCQB, OTCQX, Pink Open Market (or any successors to any of the foregoing).
1.70.
“Transaction Documents” means this Agreement, the Securities, the Registration Rights Agreement, the Placement
Agent Agreement, the Escrow Agreement, the Lock-Up Agreements and all exhibits and schedules thereto and hereto and any other documents
or agreements executed in connection with the transactions contemplated hereunder.
1.71.
“Transfer Agent” means Continental Stock Transfer & Trust Company, the current transfer agent of the Company,
with a mailing address of 1 State Street, 30th Floor, New York, NY 10004-1561 and an email address of kwalters@continentalstock.com,
and any successor transfer agent of the Company.
1.72.
“VWAP” means, for any date, the price determined by the first of the following clauses that applies: (a) if
the Ordinary Shares are then listed or quoted on a Trading Market, the daily volume weighted average price of the Ordinary Shares for
such date (or the nearest preceding date) on the Trading Market on which the Ordinary Shares are then listed or quoted as reported by
Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX
is not a Trading Market, the volume weighted average price of the Ordinary Shares for such date (or the nearest preceding date) on OTCQB
or OTCQX as applicable, (c) if the Ordinary Shares are not then listed or quoted for trading on OTCQB or OTCQX and if prices for the
Ordinary Shares are then reported on the OTC Pink (or a similar organization or agency succeeding to its functions of reporting prices),
the most recent bid price per Ordinary Share so reported, or (d) in all other cases, the fair market value of the Ordinary Shares as
determined by an independent appraiser selected in good faith by the Purchasers of a majority in interest of the Securities then outstanding
and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
1.73.
“Warrants” means, collectively, the Pre-Funded Warrants and the Common Warrants.
1.74.
“Warrant Shares” means the Ordinary Shares underlying the Warrants.
2.1.
Closing. On the Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent with
the execution and delivery of this Agreement by the parties hereto, the Company agrees to sell, and the Purchasers, severally and not
jointly, agree to purchase, up to an aggregate of approximately $7.0 million of Shares and Warrants; provided, however, that a Purchaser
in its sole discretion, may elect to purchase Pre-Funded Warrants in lieu of Shares in such manner to result in the same aggregate purchase
price being paid by such Purchaser less $0.0001 per Pre-Funded Warrant. Each Purchaser shall deliver to the Company, via wire transfer,
immediately available funds equal to such Purchaser’s Subscription Amount as set forth on the signature page hereto executed by
such Purchaser, and the Company shall deliver to each Purchaser its respective Securities, as determined pursuant to Section 2.2.1, and
the Company and each Purchaser shall deliver the other items set forth in Section 2.2.2 deliverable at the Closing. Upon satisfaction
of the covenants and conditions set forth in Sections 2.3.1 and 2.3.2, the Closing shall occur at the offices of counsel to the Placement
Agent or such other location (or remotely by electronic means) as the parties shall mutually agree. Notwithstanding anything herein to
the contrary, if at any time on or after the time of execution of this Agreement by the Company and an applicable Purchaser, through
and including the time immediately prior to the Closing (the “Pre-Settlement Period”), if such Purchaser sells
to any Person all, or any portion, of any Shares or Warrant Shares to be issued hereunder to such Purchaser at the Closing (collectively,
the “Pre-Settlement Shares”), such Purchaser shall, automatically hereunder (without any additional required
actions by such Purchaser or the Company), be deemed to be unconditionally bound to purchase such Pre-Settlement Shares at the Closing;
provided, that the Company shall not be required to deliver any Pre-Settlement Shares to such Purchaser prior to the Company’s
receipt of the purchase price for such Pre-Settlement Shares hereunder, and provided further that the Company hereby acknowledges and
agrees that the foregoing shall not constitute a representation or covenant by such Purchaser as to whether or not such Purchaser will
elect to sell any Pre-Settlement Shares during the Pre-Settlement Period. The decision to sell any Pre-Settlement Shares will be made
in the sole discretion of such Purchaser from time to time, including during the Pre-Settlement Period.
2.2.
Deliveries.
2.2.1.
The Company shall deliver or cause to be delivered to each Purchaser or the Placement Agent, as appropriate, the following at the times
stated:
2.2.1.1
on the date hereof:
2.2.1.1.1.
this Agreement duly executed by the Company.
2.2.1.1.2.
a certificate executed by the Chief Financial Officer of the Company in customary form reasonably satisfactory to the Placement Agent
and its counsel.
2.2.1.1.3.
the Lock-Up Agreements.
2.2.1.1.4.
the Registration Rights Agreement duly executed by the Company.
2.2.1.1.5.
the Escrow Agreement.
2.2.1.2
on or prior to the Closing Date:
2.2.1.2.1.
legal opinions of Company Counsel and Foreign Counsel, addressed to the Placement Agent and the Purchasers, in form and substance reasonably
acceptable to the Placement Agent and the Purchasers.
2.2.1.2.2.
a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to deliver, on an expedited basis, a certificate
(or at the request of the Purchaser, book entry statement) evidencing a number of Shares equal to such Purchaser’s Subscription
Amount divided by the Per Unit Purchase Price, registered in the name of such Purchaser;
2.2.1.2.3.
for each Purchaser of Pre-Funded Warrants pursuant to Section 2.1, a Pre-Funded Warrant registered in the name of such Purchaser to purchase
up to a number of Ordinary Shares equal to the portion of such Purchaser’s Subscription Amount applicable to Pre-Funded Warrants
divided by the Per Unit Purchase Price, with an exercise price equal to $0.0001, subject to adjustment as provided therein.
2.2.1.2.4.
the Company shall have provided each Purchaser with the Company’s wire instructions, on Company letterhead and executed by the
Chief Executive Officer or Chief Financial Officer.
2.2.1.2.5.
a duly executed and delivered Officers’ Certificate, in customary form reasonably satisfactory to the Placement Agent and its counsel.
2.2.1.2.6.
the Series A PIPE Common Warrants registered in the name of such Purchaser to purchase up to a number of Ordinary Shares equal to 200.0%
of the sum of the number of Shares and Pre-Funded Warrants stated on such Purchaser’s signature page hereto, each with an exercise
price equal to $1.00, subject to adjustment as provided therein.
2.2.1.2.7.
the Series B PIPE Common Warrants registered in the name of such Purchaser to purchase up to a number of Ordinary Shares as set forth
therein, each with an exercise price equal to $0.00001, subject to adjustment as provided therein.
2.2.2.
Each Purchaser, and the Placement Agent, as applicable, shall deliver or cause to be delivered to the Company the following at the times
stated:
2.2.2.1
on the date hereof:
2.2.2.1.1.
this Agreement duly executed by such Purchaser.
2.2.2.1.2.
the Registration Rights Agreement duly executed by such Purchaser.
2.2.2.1.3.
the Escrow Agreement.
2.2.2.1.4.
duly executed joint written instructions to the Escrow Agent.
2.2.2.1.5.
the Placement Agent Agreement.
2.2.2.2
on or prior to the Closing Date, such Purchaser’s Subscription Amount by wire transfer to the account specified in writing by the
Company.
2.3.
Closing Conditions.
2.3.1.
The obligations of the Company hereunder in connection with the Closing are subject to each of the following conditions being met:
2.3.1.1
the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse
Effect, in all respects) when made and on the Closing Date of the representations and warranties of the Purchasers contained herein (unless
as of a specific date therein in which case they shall be accurate as of such date.
2.3.1.2
all obligations, covenants and agreements of each Purchaser required to be performed at or prior to the Closing Date shall have been
performed.
2.3.1.3
the delivery by each Purchaser of the items set forth in Section 2.2.2 of this Agreement.
2.3.2.
The respective obligations of the Purchasers hereunder in connection with the Closing are subject to each of the following conditions
being met:
2.3.2.1
Save as disclosed in the Disclosure Schedules, the accuracy in all material respects (or, to the extent representations or warranties
are qualified by materiality or Material Adverse Effect, in all respects) when made and on the Closing Date of the representations and
warranties of the Company contained herein (unless as of a specific date therein in which case they shall be accurate as of such date).
2.3.2.2
all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed.
2.3.2.3
the delivery by the Company of the items set forth in Section 2.2.1 of this Agreement.
2.3.2.4
there shall have been no Material Adverse Effect with respect to the Company since the date hereof.
2.3.2.5
from the date hereof to the Closing Date, trading in the Ordinary Shares shall not have been suspended by the Commission or the Company’s
principal Trading Market, and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall
not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such
service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities
nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such
magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of
such Purchaser, makes it impracticable or inadvisable to purchase the Securities at the Closing.
| 3. |
Representations
and Warranties. |
3.1.
Representations and Warranties of the Company. The Company hereby makes the following representations and warranties to
each Purchaser:
3.1.1.
Subsidiaries. All of the direct and indirect subsidiaries of the Company are set forth on Schedule 3.1.1. 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. If the Company has no subsidiaries, all other references to
the Subsidiaries or any of them in the Transaction Documents shall be disregarded.
3.1.2.
Organization and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized,
validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power
and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any
Subsidiary is in violation nor default of any of the provisions of its respective certificate or articles of incorporation, bylaws or
other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business and is in good
standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned
by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, could
not have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity or enforceability of any Transaction
Document, (ii) a material adverse effect on the results of operations, assets, business, or financial condition 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 (any of (i), (ii) or (iii), a “Material Adverse Effect”;
provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition
or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions, (ii) conditions generally
affecting the industry in which the Company or any Subsidiary operates, (iii) any changes in financial or securities markets in general,
(iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof, (v) any pandemic,
epidemics or human health crises (including COVID-19), (vi) any changes in applicable laws or accounting rules (including IFRS), (vii)
the announcement, pendency or completion of the transactions contemplated by the Transaction Documents, or (viii) any action required
or permitted by the Transaction Documents or any action taken (or omitted to be taken) with the written consent of or at the written
request of Purchaser). As to all Company and Subsidiary power, authority and qualification, no Proceeding has been instituted in any
such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification.
3.1.3.
Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate
the transactions contemplated by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations
hereunder and thereunder. The execution and delivery of this Agreement and each of the other Transaction Documents by the Company and
the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part
of the Company and no further action is required by the Company, the Board of Directors or the Company’s shareholders in connection
herewith or therewith other than in connection with the Required Approvals. This Agreement and each other Transaction Document to which
it is a party has been (or upon delivery will have been) duly executed by the Company and, when delivered in accordance with the terms
hereof and thereof, will constitute the legal, valid and binding obligation of the Company enforceable against the Company in accordance
with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium
and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to
the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution
provisions may be limited by applicable law.
3.1.4.
No Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents
to which it is a party, the issuance and sale of the Securities and the consummation by it of the transactions contemplated hereby and
thereby do not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or
articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with, or constitute a default (or an
event that with notice or lapse of time or both would become a default) under, result in the creation of any Lien upon any of the properties
or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment, anti-dilution or similar adjustments,
acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument
(evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by
which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals, conflict
with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or
governmental authority to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations),
or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and
(iii), such as could not have or reasonably be expected to result in a Material Adverse Effect.
3.1.5.
Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of,
give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority
or other Person in connection with the execution, delivery and performance by the Company of the Transaction Documents, other than: (i)
the filings required pursuant to Section 4.4 of this Agreement, (ii) the filing with the Commission of the Resale Registration Statement
pursuant to the Registration Rights Agreement, (iii) the notice and/or application(s) to each applicable Trading Market for the issuance
and sale of the Securities and the listing of the Shares and Warrant Shares for trading thereon in the time and manner required thereby,
(iv) the filing of Form D with the Commission and such other filings as are required to be made under applicable state securities laws
and the Irish Companies Act 2014 (the “Required Approvals”).
3.1.6.
Issuance of the Securities. The Securities are duly authorized and, when issued and paid for in accordance with the applicable
Transaction Documents, will be duly and validly issued, fully paid and nonassessable (which means that no further sums are required to
be paid by the holders thereof in connection with the issue thereof), free and clear of all Liens imposed by the Company other than restrictions
on transfer provided for in the Transaction Documents and applicable law. The Warrant Shares, when issued in accordance with the terms
of the Transaction Documents, will be validly issued, fully paid and nonassessable (which means that no further sums are required to
be paid by the holders thereof in connection with the issue thereof), free and clear of all Liens imposed by the Company other than restrictions
on transfer provided for in the Transaction Documents and applicable law. The Company has reserved from its duly authorized share capital
the maximum number of Ordinary Shares issuable pursuant to this Agreement and the Warrants.
3.1.7.
Capitalization. The capitalization of the Company as of the date hereof is as set forth on Schedule 3.1.7, which Schedule
3.1.7 shall also include the number of Ordinary Shares owned beneficially, and of record, by Affiliates of the Company as of the date
hereof. Other than as stated in Schedule 3.1.7, the Company has not issued any share capital since its most recently filed periodic report
under the Exchange Act, other than pursuant to the exercise of employee share options under the Company’s share option plans, the
issuance of Ordinary Shares to employees pursuant to the Company’s employee share purchase plans and pursuant to the conversion
and/or exercise of Ordinary Share Equivalents outstanding as of the date of the most recently filed periodic report under the Exchange
Act. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions
contemplated by the Transaction Documents. Except as set forth in Schedule 3.1.7, or pursuant to this Agreement, there are no outstanding
options, warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights
or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any Ordinary
Shares or the share capital of any Subsidiary, or contracts, commitments, understandings or arrangements by which the Company or any
Subsidiary is or may become bound to issue additional Ordinary Shares or Ordinary Share Equivalents or share capital of any Subsidiary.
The issuance and sale of the Securities will not obligate the Company or any Subsidiary to issue Ordinary Shares or other securities
to any Person (other than the Purchasers). Except as set forth in Schedule 3.1.7, there are no outstanding securities or instruments
of the Company or any Subsidiary with any provision that adjusts the exercise, conversion, exchange or reset price of such security or
instrument upon an issuance of securities by the Company or any Subsidiary. Except as set forth in Schedule 3.1.7, there are no outstanding
securities or instruments of the Company or any Subsidiary that contain any redemption or similar provisions, and there are no contracts,
commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to redeem a security of the
Company or such Subsidiary. The Company does not have any share appreciation rights or “phantom stock” plans or agreements
or any similar plan or agreement. All of the outstanding shares of share capital of the Company are duly authorized, validly issued,
fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, and none of such outstanding
shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. No further approval
or authorization of any shareholder, the Board of Directors or others is required for the issuance and sale of the Securities. There
are no shareholders’ agreements, voting agreements or other similar agreements with respect to the Company’s share capital
to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s shareholders.
3.1.8.
SEC Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents
required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof,
for the two years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material)
(the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred
to herein as the “SEC Reports”) on a timely basis or has received a valid extension of such time of filing
and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the SEC Reports complied
in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports,
when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Company has
never been an issuer subject to Rule 144(i) under the Securities Act. The financial statements of the Company included in the SEC Reports
comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect
thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with International Financial Reporting
Standards (“IFRS”) as issued by the International Accounting Standards Board and interpretations of the International
Financial Reporting Issues Committee, except as may be otherwise specified in such financial statements or the notes thereto, and fairly
present in all material respects the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof
and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial,
year-end audit adjustments.
3.1.9.
Material Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements
included within the SEC Reports, except as set forth on Schedule 3.1.9, (i) there has been no event, occurrence or development that has
had or that could reasonably be expected to result in a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent
or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice
and (B) liabilities not required to be reflected in the Company’s financial statements pursuant to IFRS or disclosed in filings
made with the Commission, (iii) the Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend
or distribution of cash or other property to its shareholders or purchased, redeemed or made any agreements to purchase or redeem any
shares of its share capital and (v) the Company has not issued any equity securities to any officer, director or Affiliate, except pursuant
to existing Company share option plans. The Company does not have pending before the Commission any request for confidential treatment
of information. Except for the issuance of the Securities contemplated by this Agreement, no event, liability, fact, circumstance, occurrence
or development has occurred or exists or is reasonably expected to occur or exist with respect to the Company or its Subsidiaries or
their respective businesses, properties, operations, assets or financial condition that would be required to be disclosed by the Company
under applicable securities laws at the time this representation is made or deemed made that has not been publicly disclosed at least
one (1) Trading Day prior to the date that this representation is made.
3.1.10.
Litigation. Except as set forth in Schedule 3.1.10, there is no action, suit, inquiry, notice of violation, proceeding
or investigation pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their
respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state,
county, local or foreign) (collectively, an “Action”). None of the Actions set forth on Schedule 3.1.10, (i)
adversely affects or challenges the legality, validity or enforceability of any of the Transaction Documents or (ii) would, if there
were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect. Neither the Company nor any Subsidiary,
nor any director or officer thereof, is or has been the subject of any Action involving a claim of violation of or liability under federal
or state securities laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the Company, there is not
pending or contemplated, any investigation by the Commission involving the Company or any current or former director or officer of the
Company, except in the ordinary course of business that would not have a Material Adverse Effect. The Commission has not issued any stop
order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary under the Exchange
Act or the Securities Act.
3.1.11.
Labor Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees
of the Company, which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’
employees is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither
the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe
that their relationships with their employees are good. To the knowledge of the Company, no executive officer of the Company or any Subsidiary
is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary
information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third
party, and the continued employment of each such executive officer 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 U.S. federal, state, local
and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment and wages and hours,
except where the failure to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
3.1.12.
Compliance. Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred
that has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under),
nor has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture,
loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound
(whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree, or order of any court, arbitrator
or other governmental authority or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental
authority, including without limitation all foreign, federal, state and local laws relating to taxes, environmental protection, occupational
health and safety, product quality and safety and employment and labor matters, except in each case as could not have or reasonably be
expected to result in a Material Adverse Effect.
3.1.13.
Environmental Laws. The Company and its Subsidiaries (i) are in compliance with all federal, state, local and foreign laws
relating to pollution or protection of human health or the environment (including ambient air, surface water, groundwater, land surface
or subsurface strata), including 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 (“Environmental Laws”);
(ii) have received all permits licenses or other approvals required of them under applicable Environmental Laws to conduct their respective
businesses; and (iii) are in compliance with all terms and conditions of any such permit, license or approval where in each clause (i),
(ii) and (iii), the failure to so comply could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
3.1.14.
Regulatory Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the
appropriate federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in
the SEC Reports, except where the failure to possess such permits could not reasonably be expected to result in a Material Adverse Effect
(“Material Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating
to the revocation or modification of any Material Permit.
3.1.15.
Title to Assets. The Company and the Subsidiaries have good and title to, or have valid and marketable rights to lease
or otherwise use, all real property and all personal property that is material to the business of the Company and the Subsidiaries, in
each case free and clear of all Liens, except for (i) Liens that do not materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries and (ii) Liens for the payment
of federal, state or other taxes, for which appropriate reserves have been made in accordance with IFRS, and the payment of which is
neither delinquent nor subject to penalties. Neither the Company nor any of its Subsidiaries has received any written notice of any claim
of any sort that has been asserted by anyone adverse to the rights of the Company or its Subsidiaries under any of the leases or subleases
or licenses or with respect to the properties mentioned above, or affecting or questioning the rights of the Company or any Subsidiary
to the continued possession or use of the leased or subleased or licensed premises or the properties mentioned above, other than such
claims which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
3.1.16.
Intellectual Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications,
trademarks, trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual
property rights and similar rights necessary or required for use in connection with their respective businesses as described in the SEC
Reports and which the failure to so have could have a Material Adverse Effect (collectively, the “Intellectual Property Rights”).
None of, and neither the Company nor any Subsidiary has received notice (written or otherwise) that any of, the Intellectual Property
Rights has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years after the
date of this Agreement. Neither the Company nor any Subsidiary has received, since the date of the latest audited financial statements
included within the SEC Reports, a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate
or infringe upon the rights of any Person, except as could not have or reasonably be expected to not have a Material Adverse Effect.
To the knowledge of the Company, all such Intellectual Property Rights are enforceable and there is no existing infringement by another
Person of any of the Intellectual Property Rights. The Company and its Subsidiaries have taken reasonable security measures to protect
the secrecy, confidentiality and value of all of their intellectual properties, except where failure to do so could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
3.1.17.
Insurance. The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged,
including, but not limited to, directors and officers insurance coverage in amount deemed prudent by the Company. Neither the Company
nor any Subsidiary has any reason to believe that it will not be able 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 without a significant increase
in cost.
3.1.18.
Transactions with Affiliates and Employees. Except as set forth on Schedule 3.1.18, during the past three fiscal years
and the subsequent interim period through the date of this Agreement, none of the officers or directors of the Company or any Subsidiary
and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to any transaction
with the Company or any Subsidiary (other than for services as employees, officers and directors), including any contract, agreement
or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from,
providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from any officer, director or
such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial
interest or is an officer, director, trustee, shareholder, member or partner, in each case in excess of $120,000 other than for (i) payment
of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) other
employee benefits, including share option agreements under any share option plan of the Company.
3.1.19.
Sarbanes-Oxley; Internal Accounting Controls. The Company and the Subsidiaries are in material compliance with any and
all applicable requirements of the Sarbanes-Oxley Act of 2002, as amended, that are effective as of the date hereof, and any and all
applicable rules and regulations promulgated by the Commission thereunder that are effective as of the date hereof and as of the Closing
Date. Except as set forth on Schedule 3.1.19, the Company and the Subsidiaries maintain a system of internal accounting controls sufficient
to provide reasonable assurance 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 IFRS and to maintain asset
accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and
(iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences. The Company and the Subsidiaries have established disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries and designed such disclosure controls and procedures
to ensure that information required to be disclosed by the Company in the reports it files or submits under the Exchange Act is recorded,
processed, summarized and reported, within the time periods specified in the Commission’s rules and forms. The Company’s
certifying officers have evaluated the effectiveness of the disclosure controls and procedures of the Company and the Subsidiaries as
of the end of the period covered by the most recently filed periodic report under the Exchange Act (such date, the “Evaluation
Date”). The Company presented in its most recently filed periodic report under the Exchange Act the conclusions of the
certifying officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation
Date. Since the Evaluation Date, there have been no changes in the internal control over financial reporting (as such term is defined
in the Exchange Act) of the Company and its Subsidiaries that have materially affected, or is reasonably likely to materially affect,
the internal control over financial reporting of the Company and its Subsidiaries.
3.1.20.
Certain Fees. Except for the fees and expenses of the Placement Agent and ClearThink Securities, a division of Enclave
Capital, LLC, as co-placement agent, no brokerage or finder’s fees or commissions are or will be payable by the Company or
any Subsidiary to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other Person with
respect to the transactions contemplated by the Transaction Documents. The Purchasers shall have no obligation with respect to any fees
or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section 3.1.20 that may be
due in connection with the transactions contemplated by the Transaction Documents.
3.1.21.
Private Placement. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section 3.2,
no registration under the Securities Act is required for the offer and sale of the Securities by the Company to the Purchasers as contemplated
hereby. The issuance and sale of the Securities hereunder does not contravene the rules and regulations of the Trading Market.
3.1.22.
Investment Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Securities,
will not be or be an Affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
The Company shall conduct its business in a manner so that it will not become an “investment company” subject to registration
under the Investment Company Act of 1940, as amended.
3.1.23.
Registration Rights. Except as disclosed on Schedule 3.1.23 and other than to each of the Purchasers pursuant to the Registration
Rights Agreement, no Person has any right to cause the Company or any Subsidiary to effect the registration under the Securities Act
of any securities of the Company or any Subsidiary.
3.1.24.
Listing and Maintenance Requirements. The Ordinary Shares are registered pursuant to Section 12(b) or 12(g) of the Exchange
Act, and the Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration
of the Ordinary Shares under the Exchange Act nor has the Company received any notification that the Commission is contemplating terminating
such registration. Except as disclosed on Schedule 3.1.24, the Company has not, in the 12 months preceding the date hereof, received
notice from any Trading Market on which the Ordinary Shares are or has been listed or quoted to the effect that the Company is not in
compliance with the listing or maintenance requirements of such Trading Market. The Company is, and has no reason to believe that it
will not in the foreseeable future continue to be, in compliance with all such listing and maintenance requirements. The Ordinary Shares
are currently eligible for electronic transfer through the Depository Trust Company or another established clearing corporation and the
Company is current in payment of the fees to the Depository Trust Company (or such other established clearing corporation) in connection
with such electronic transfer.
3.1.25.
Application of Takeover Protections. The Company and the Board of Directors have taken all necessary action, if any, in
order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights
agreement) or other similar anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents)
or the laws of its state of incorporation that is or could become applicable to the Purchasers as a result of the Purchasers and the
Company fulfilling their obligations or exercising their rights under the Transaction Documents, including without limitation as a result
of the Company’s issuance of the Securities and the Purchasers’ ownership of the Securities.
3.1.26.
Disclosure. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction
Documents, the Company confirms that neither it nor any other Person acting on its behalf has provided any of the Purchasers or their
agents or counsel with any information that it believes constitutes or might constitute material, non-public information. The Company
understands and confirms that the Purchasers will rely on the foregoing representation in effecting transactions in securities of the
Company. All of the disclosure furnished by or on behalf of the Company to the Purchasers regarding the Company and its Subsidiaries,
their respective businesses and the transactions contemplated hereby, 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. The press releases disseminated by the Company during the twelve months preceding the date
of this Agreement taken as a whole do not contain any untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made
and when made, not misleading. The Company acknowledges and agrees that no Purchaser makes or has made any representations or warranties
with respect to the transactions contemplated hereby other than those specifically set forth in Section 3.2 hereof.
3.1.27.
No Integrated Offering. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section
3.2, neither the Company, nor any of its Affiliates, nor any Person acting on its or 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 cause this offering of the
Securities to be integrated with prior offerings by the Company for purposes of (i) the Securities Act which would require the registration
of any such securities under the Securities Act, or (ii) any applicable shareholder approval provisions of any Trading Market on which
any of the securities of the Company are listed or designated.
3.1.28.
Solvency. Based on the consolidated financial condition of the Company as of the Closing Date, after giving effect to the
receipt by the Company of the proceeds from the sale of the Securities hereunder, (i) the fair saleable value of the Company’s
assets exceeds the amount that will be required to be paid on or in respect of the Company’s existing debts and other liabilities
(including known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital
to carry on its business as now conducted and as proposed to be conducted including its capital needs taking into account the particular
capital requirements of the business conducted by the Company, consolidated and projected capital requirements and capital availability
thereof, and (iii) the current cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate all
of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of
its liabilities when such amounts are required to be paid. The Company does not intend to incur debts beyond its ability to pay such
debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its debt). The Company has
no knowledge of any facts or circumstances which lead it to believe that it will file for reorganization or liquidation under the bankruptcy
or reorganization laws of any jurisdiction within one year after the Closing Date. Schedule 3.1.28 sets forth as of the date hereof all
outstanding secured and unsecured Indebtedness of the Company or any Subsidiary, or for which the Company or any Subsidiary has commitments.
For the purposes of this Agreement, “Indebtedness” means (x) any liabilities for borrowed money or amounts
owed in excess of $50,000 (other than trade accounts payable incurred in the ordinary course of business), (y) all guaranties, endorsements
and other contingent obligations in respect of indebtedness of others, whether or not the same are or should be reflected in the Company’s
consolidated balance sheet (or the notes thereto), except guaranties by endorsement of negotiable instruments for deposit or collection
or similar transactions in the ordinary course of business; and (z) the present value of any lease payments in excess of $50,000 due
under leases required to be capitalized in accordance with IFRS. Neither the Company nor any Subsidiary is in default with respect to
any Indebtedness.
3.1.29.
Tax Status. Except as disclosed in Schedule 3.1.29, the Company and its Subsidiaries each (i) has made or filed all material
United States federal, state and local income and all foreign income and franchise tax returns, reports and declarations required by
any jurisdiction to which it is subject, (ii) has paid all material taxes and other governmental assessments and charges that are material
in amount, shown or determined to be due on such returns, reports and declarations and (iii) has set aside on its books provision reasonably
adequate for the payment of all material 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 or of any Subsidiary know of no basis for any such claim.
3.1.30.
No General Solicitation. Neither the Company nor any Person acting on behalf of the Company has offered or sold any of
the Securities by any form of general solicitation or general advertising. The Company has offered the Securities for sale only to the
Purchasers and certain other “accredited investors” within the meaning of Rule 501 under the Securities Act.
3.1.31.
Foreign Corrupt Practices Act. 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.
3.1.32.
Accountants. The Company’s accounting firm is Ziv Haft, with offices at Derech Menachem Begin 48, Tel Aviv-Yafo,
Israel. To the knowledge and belief of the Company, such accounting firm (i) is a registered public accounting firm as required by the
Exchange Act and (ii) shall express its opinion with respect to the financial statements to be included in the Company’s Annual
Report for the now current fiscal year.
3.1.33.
No Disagreements with Accountants and Lawyers. There are no 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.
3.1.34.
Acknowledgment Regarding Purchasers’ Purchase of Securities. The Company acknowledges and agrees that each of the
Purchasers is acting solely in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions
contemplated thereby. The Company further acknowledges that no Purchaser is acting as a financial advisor or fiduciary of the Company
(or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated thereby and any advice given
by any Purchaser or any of their respective representatives or agents in connection with the Transaction Documents and the transactions
contemplated thereby is merely incidental to the Purchasers’ purchase of the Securities. The Company further represents to each
Purchaser that the Company’s decision to enter into this Agreement and the other Transaction Documents has been based solely on
the independent evaluation of the transactions contemplated hereby by the Company and its representatives.
3.1.35.
Acknowledgment Regarding Purchaser’s Trading Activity. Notwithstanding anything in this Agreement or elsewhere herein
to the contrary (except for Sections 3.2.7 and 4.14 hereof), it is understood and acknowledged by the Company that: (i) none of the Purchasers
has been asked by the Company to agree, nor has any Purchaser agreed, to desist from purchasing or selling, long and/or short, securities
of the Company, or “derivative” securities based on securities issued by the Company or to hold the Securities for any specified
term, (ii) past or future open market or other transactions by any Purchaser, specifically including, without limitation, Short Sales
or “derivative” transactions, before or after the closing of this or future private placement transactions, may negatively
impact the market price of the Company’s publicly-traded securities, (iii) any Purchaser, and counter-parties in “derivative”
transactions to which any such Purchaser is a party, directly or indirectly, presently may have a “short” position in the
Ordinary Shares and (iv) each Purchaser shall not be deemed to have any affiliation with or control over any arm’s length counter-party
in any “derivative” transaction. The Company further understands and acknowledges that (y) one or more Purchasers may engage
in hedging activities at various times during the period that the Securities are outstanding, including, without limitation, during the
periods that the value of the Warrant Shares deliverable with respect to Securities are being determined, and (z) such hedging activities
(if any) could reduce the value of the existing shareholders’ equity interests in the Company at and after the time that the hedging
activities are being conducted. The Company acknowledges that such aforementioned hedging activities do not constitute a breach of any
of the Transaction Documents.
3.1.36.
Regulation M Compliance. The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly
or indirectly, any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company
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, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other
securities of the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the Company’s placement agent
in connection with the placement of the Securities.
3.1.37.
Officers’ Certificate. Any certificate signed by any duly authorized officer of the Company and delivered to the
Purchasers shall be deemed a representation and warranty by the Company to the Purchasers as to the matters covered thereby.
3.1.38.
D&O Questionnaires. To the Company’s knowledge, all information contained in the questionnaires most recently
completed by each of the Company’s directors and officers and beneficial owner of 5% or more of the Ordinary Shares or Ordinary
Share Equivalents is true and correct in all respects and the Company has not become aware of any information which would cause the information
disclosed in such questionnaires become inaccurate and incorrect.
3.1.39.
Share Option Plans. Each share option granted by the Company under the Company’s share option plan, if any, was granted
(i) in accordance with the terms of the Company’s share option plan 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 IFRS 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 Company policy or practice 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.
3.1.40.
Office of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s knowledge, any director,
officer, agent, employee or affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”).
3.1.41.
U.S. Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation
within the meaning of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon Purchaser’s
request.
3.1.42.
Bank Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates 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.
3.1.43.
Money Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance
with applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering
Laws”), and no Action or Proceeding by or before any court or governmental agency, authority or body or any arbitrator
involving the Company or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any
Subsidiary, threatened.
3.1.44.
No Disqualification Events. With respect to the Securities to be offered and sold hereunder in reliance on Rule 506 under
the Securities Act, none of the Company, any of its predecessors, any affiliated issuer, any director, executive officer, other officer
of the Company participating in the offering hereunder, 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 Securities
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 Securities 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 Purchasers a copy of any disclosures provided thereunder.
3.1.45.
Other Covered Persons. Other than the Placement Agent, the Company is not aware of any person (other than any Issuer Covered
Person) that has been or will be paid (directly or indirectly) remuneration for solicitation of purchasers in connection with the sale
of any Securities.
3.1.46.
Notice of Disqualification Events. The Company will notify the Purchasers and the Placement Agent in writing, prior to
the 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.
3.1.47.
FDA. As to each product subject to the jurisdiction of the U.S. Food and Drug Administration (“FDA”)
under the Federal Food, Drug and Cosmetic Act, as amended, and the regulations thereunder (“FDCA”) that is
manufactured, packaged, labeled, tested, distributed, sold, and/or marketed by the Company or any of its Subsidiaries (each such product,
a “Pharmaceutical Product”), such Pharmaceutical Product is being manufactured, packaged, labeled, tested,
distributed, sold and/or marketed by the Company in compliance with all applicable requirements under FDCA and similar laws, rules and
regulations relating to registration, investigational use, premarket clearance, licensure, or application approval, good manufacturing
practices, good laboratory practices, good clinical practices, product listing, quotas, labeling, advertising, record keeping and filing
of reports, except where the failure to be in compliance would not have a Material Adverse Effect. There is no pending, completed or,
to the Company’s knowledge, threatened, action (including any lawsuit, arbitration, or legal or administrative or regulatory proceeding,
charge, complaint, or investigation) against the Company or any of its Subsidiaries, and none of the Company or any of its Subsidiaries
has received any notice, warning letter or other communication from the FDA or any other governmental entity, which (i) contests the
premarket clearance, licensure, registration, or approval of, the uses of, the distribution of, the manufacturing or packaging of, the
testing of, the sale of, or the labeling and promotion of any Pharmaceutical Product, (ii) withdraws its approval of, requests the recall,
suspension, or seizure of, or withdraws or orders the withdrawal of advertising or sales promotional materials relating to, any Pharmaceutical
Product, (iii) imposes a clinical hold on any clinical investigation by the Company or any of its Subsidiaries, (iv) enjoins production
at any facility of the Company or any of its Subsidiaries, (v) enters or proposes to enter into a consent decree of permanent injunction
with the Company or any of its Subsidiaries, or (vi) otherwise alleges any violation of any laws, rules or regulations by the Company
or any of its Subsidiaries, and which, either individually or in the aggregate, would have a Material Adverse Effect. The properties,
business and operations of the Company have been and are being conducted in all material respects in accordance with all applicable laws,
rules and regulations of the FDA. The Company has not been informed by the FDA that the FDA will prohibit the marketing, sale, license
or use in the United States of any product proposed to be developed, produced or marketed by the Company nor has the FDA expressed any
concern as to approving or clearing for marketing any product being developed or proposed to be developed by the Company.
3.1.48.
Cybersecurity. (i) (a) There has been no security breach or other compromise of or relating to any of the Company’s
or any Subsidiary’s information technology and computer systems, networks, hardware, software, data (including the data of its
respective customers, employees, suppliers, vendors and any third party data maintained by or on behalf of it), equipment or technology
(collectively, “IT Systems and Data”) and (b) the Company and the Subsidiaries have not been notified of, and
has no knowledge of any event or condition that would reasonably be expected to result in, any security breach or other compromise to
its IT Systems and Data; (ii) the Company and the 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 Data and to the protection of such IT Systems and Data from unauthorized
use, access, misappropriation or modification, except, in the case of clauses (i) and (ii) herein, as would not, individually or in the
aggregate, have a Material Adverse Effect; (iii) the Company and the Subsidiaries have implemented and maintained commercially reasonable
safeguards to maintain and protect its material confidential information and the integrity, continuous operation, redundancy and security
of all IT Systems and Data; and (iv) the Company and the Subsidiaries have implemented backup and disaster recovery technology consistent
with industry standards and practices.
3.2.
Representations and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents
and warrants as of the date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein, in which
case they shall be accurate as of such date):
3.2.1.
Organization; Authority. Such Purchaser is either an individual or an entity duly incorporated or formed, validly existing
and in good standing under the law of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited
liability company or similar power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents
and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of the Transaction Documents and performance
by such Purchaser of the transactions contemplated by the Transaction Documents have been duly authorized by all necessary corporate,
partnership, limited liability company or similar action, as applicable, on the part of such Purchaser. Each Transaction Document to
which it is a party has been duly executed by such Purchaser, and when delivered by such Purchaser in accordance with the terms hereof,
will constitute the legal, valid and binding obligation of such Purchaser, enforceable against it in accordance with its terms, except
(i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited
by applicable law.
3.2.2.
Own Account. Such Purchaser understands that the Securities are “restricted securities” as defined in Rule
144 and have not been registered under the Securities Act or any applicable state securities law and is acquiring the Securities as principal
for its own account and not with a view to or for distributing or reselling such Securities or any part thereof in violation of the Securities
Act or any applicable state securities law, has no present intention of distributing any of such Securities in violation of the Securities
Act or any applicable state securities law and has no direct or indirect arrangement or understandings with any other persons to distribute
or regarding the distribution of such Securities in violation of the Securities Act or any applicable state securities law (this representation
and warranty shall not limit such Purchaser’s right to sell the Securities pursuant to a registration statement or otherwise in
compliance with applicable federal and state securities laws). Such Purchaser is acquiring the Securities hereunder in the ordinary course
of its business.
3.2.3.
Purchaser Status. At the time such Purchaser was offered the Securities, it was, and as of the date hereof it is, and on
each date on which it exercises any Warrants, it will be either: (i) an “accredited investor” as defined in Rule 501(a)(1),
(a)(2), (a)(3), (a)(7), (a)(8), (a)(9), (a)(12), or (a)(13) under the Securities Act or (ii) a “qualified institutional buyer”
as defined in Rule 144A(a)(1) under the Securities Act. Such Purchaser hereby represents that neither such Purchaser nor any of its Rule
506(d) Related Parties (as defined below) is a “bad actor” within the meaning of Rule 506(d) promulgated under the Securities
Act. For purposes of this Agreement, “Rule 506(d) Related Party” shall mean a person or entity covered by the “Bad
Actor disqualification” provision of Rule 506(d) of the Securities Act.
3.2.4.
Experience of Such Purchaser. Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication
and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment
in the Securities, and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic risk of
an investment in the Securities and, at the present time, is able to afford a complete loss of such investment.
3.2.5.
General Solicitation. Such Purchaser is not, to such Purchaser’s knowledge, purchasing the Securities as a result
of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar
media or broadcast over television or radio or presented at any seminar or, to the knowledge of such Purchaser, any other general solicitation
or general advertisement.
3.2.6.
Access to Information. Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents
(including all exhibits and schedules thereto) and the SEC Reports and has been afforded (i) the opportunity to ask such questions as
it has deemed necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering
of the Securities and the merits and risks of investing in the Securities; (ii) access to information about the Company and its financial
condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment;
and (iii) the opportunity to obtain such additional information that the Company possesses or can acquire without unreasonable effort
or expense that is necessary to make an informed investment decision with respect to the investment. Such Purchaser acknowledges and
agrees that neither the Placement Agent nor any Affiliate of the Placement Agent has provided such Purchaser with any information or
advice with respect to the Securities nor is such information or advice necessary or desired. Neither the Placement Agent nor any Affiliate
has made or makes any representation as to the Company or the quality of the Securities and the Placement Agent and any Affiliate may
have acquired non-public information with respect to the Company which such Purchaser agrees need not be and has not been provided to
it (other than with respect to the transactions contemplated by the Transaction Documents). In connection with the issuance of the Securities
to such Purchaser, neither the Placement Agent nor any of its Affiliates has acted as a financial advisor or fiduciary to such Purchaser.
3.2.7.
Certain Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, such Purchaser
has not, nor has any Person acting on behalf of or pursuant to any understanding with such Purchaser, directly or indirectly executed
any purchases or sales, including Short Sales, of the securities of the Company during the period commencing as of the time that such
Purchaser first received a term sheet (written or oral) from the Company or any other Person representing the Company setting forth the
material terms of the transactions contemplated hereunder and ending immediately prior to the execution hereof. Notwithstanding the foregoing,
in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of
such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers
managing other portions of such Purchaser’s assets, the representation set forth above shall only apply with respect to the portion
of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. Other
than to other Persons party to this Agreement or to such Purchaser’s representatives, including, without limitation, its officers,
directors, partners, legal and other advisors, employees, agents and Affiliates, such Purchaser has maintained the confidentiality of
all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). Notwithstanding
the foregoing, for the avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions,
with respect to locating or borrowing shares in order to effect Short Sales or similar transactions in the future.
The
Company acknowledges and agrees that the representations contained in this Section 3.2 shall not modify, amend or affect such Purchaser’s
right to rely on the Company’s representations and warranties contained in this Agreement or any representations and warranties
contained in any other Transaction Document or any other document or instrument executed and/or delivered in connection with this Agreement
or the consummation of the transactions contemplated hereby. Notwithstanding the foregoing, for the avoidance of doubt, nothing contained
herein shall constitute a representation or warranty, or preclude any actions, with respect to locating or borrowing shares in order
to effect Short Sales or similar transactions in the future.
| 4. |
Other
Agreements of the Parties. |
4.1.
Transfer Restrictions.
4.1.1.
The Securities may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of Securities
other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection
with a pledge as contemplated in Section 4.1.2, the Company may require the transferor thereof to provide to the Company an opinion of
counsel selected by the transferor and reasonably acceptable to the Company, the form and substance of which opinion shall be reasonably
satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Securities under the
Securities Act. As a condition of transfer, any such transferee shall agree in writing to be bound by the terms of this Agreement and
the Registration Rights Agreement and shall have the rights and obligations of a Purchaser under this Agreement and the Registration
Rights Agreement.
4.1.2.
The Purchasers agree to the imprinting, so long as is required by this Section 4.1, of a legend on any of the Securities in substantially
the following form:
[NEITHER]
THIS SECURITY [NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE] HAS [NOT] BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY [AND THE SECURITIES ISSUABLE UPON EXERCISE
OF THIS SECURITY] MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL
INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY
SUCH SECURITIES.
The
Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered
broker-dealer or grant a security interest in some or all of the Securities to a financial institution that is an “accredited investor”
as defined in Rule 501(a) under the Securities Act and, if required under the terms of such arrangement, such Purchaser may transfer
pledged or secured Securities to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company
and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no
notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable
documentation as a pledgee or secured party of Securities may reasonably request in connection with a pledge or transfer of the Securities,
including, if the Securities are subject to registration pursuant to the Registration Rights Agreement, the preparation and filing of
any required prospectus supplement under Rule 424(b)(3) under the Securities Act or other applicable provision of the Securities Act
to appropriately amend the list of Selling Shareholders (as defined in the Registration Rights Agreement) thereunder.
4.1.3.
Certificates evidencing the Shares and Warrant Shares shall not contain any legend (including the legend set forth in Section 4.1.2 hereof),
(i) while a registration statement (including the Resale Registration Statement) covering the resale of such security is effective under
the Securities Act, (ii) following any sale of such Shares or Warrant Shares pursuant to Rule 144 and the Company is then in compliance
with the current public information required under Rule 144 (assuming cashless exercise of the Warrants), (iii) if such Shares or Warrant
Shares are eligible for sale or may be sold under Rule 144 (assuming cashless exercise of the Warrants), without volume or manner-of-sale
restrictions, or (iv) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations
and pronouncements issued by the staff of the Commission). The Company shall cause its counsel to issue a legal opinion to the Transfer
Agent or the Purchaser if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser,
respectively. If all or any portion of a Warrant is exercised at a time when there is an effective registration statement to cover the
resale of the Warrant Shares, if the Shares or Warrant Shares may be sold under Rule 144 and the Company is then in compliance with the
current public information required under Rule 144 (assuming cashless exercise of the Warrants), or if the Shares or Warrant Shares may
be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under
Rule 144 as to such Shares or Warrant Shares or if such legend is not otherwise required under applicable requirements of the Securities
Act (including judicial interpretations and pronouncements issued by the staff of the Commission), then such Shares or Warrant Shares
shall be issued free of all legends. The Company agrees that following the Resale Effective Date or at such time as such legend is no
longer required under this Section 4.1.3, it will, no later than the earlier of (i) one (1) Trading Day and (ii) the number of Trading
Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer
Agent of a certificate representing Shares or Warrant Shares, as the case may be, issued with a restrictive legend (such date, the “Legend
Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such Shares that is free
from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent
that enlarge the restrictions on transfer set forth in this Section 4. Certificates for Securities subject to legend removal hereunder
shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository
Trust Company System as directed by such Purchaser. As used herein, “Standard Settlement Period” means the standard settlement
period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Ordinary Shares as in
effect on the date of delivery of a certificate representing Shares or Warrant Shares, as the case may be, issued with a restrictive
legend. In addition to such Purchaser’s other available remedies, the Company shall pay to the Purchaser, in cash, as partial liquidated
damages and not as a penalty, an amount equal to two percent (2%) of the total of the value of the Shares or Warrant Shares for which
the removal of the legend is sought (based on the VWAP of the Ordinary Shares on the date such Shares or Warrant Shares are submitted
to the Transfer Agent) for each day that said opinion is not delivered after the Legend Removal Date until such certificate is delivered
without a legend.
4.1.4.
In addition to such Purchaser’s other available remedies, the Company shall pay to a Purchaser, in cash, (i) as partial liquidated
damages and not as a penalty, for each $1,000 of Shares or Warrant Shares (based on the VWAP of the Ordinary Shares on the date such
Securities are submitted to the Transfer Agent) delivered for removal of the restrictive legend and subject to Section 4.1.3, $10 per
Trading Day (increasing to $20 per Trading Day five (5) Trading Days after the Legend Removal Date) for each Trading Day after the Legend
Removal Date until such certificate is delivered without a legend and (ii) if the Company fails to (a) issue and deliver (or cause to
be delivered) to a Purchaser by the Legend Removal Date a certificate representing the Securities so delivered to the Company by such
Purchaser that is free from all restrictive and other legends and (b) if after the Legend Removal Date such Purchaser purchases (in an
open market transaction or otherwise) Ordinary Shares to deliver in satisfaction of a sale by such Purchaser of all or any portion of
the number of Ordinary Shares, or a sale of a number of Ordinary Shares equal to all or any portion of the number of Ordinary Shares
that such Purchaser anticipated receiving from the Company without any restrictive legend, then, an amount equal to the excess of such
Purchaser’s total purchase price (including brokerage commissions and other out-of-pocket expenses, if any) for the Ordinary Shares
so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”)
over the product of (A) such number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend
Removal Date 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 delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending
on the date of such delivery and payment under this clause (ii).
4.1.5.
Each Purchaser, severally and not jointly with the other Purchasers, agrees with the Company that such Purchaser will sell any Securities
pursuant to either the registration requirements of the Securities Act, including any applicable prospectus delivery requirements, or
an exemption therefrom, and that if Securities are sold pursuant to a Resale Registration Statement, they will be sold in compliance
with the plan of distribution set forth therein, and acknowledges that the removal of the restrictive legend from certificates representing
Securities as set forth in this Section 4.1 is predicated upon the Company’s reliance upon this understanding.
4.2.
Furnishing of Information; Public Information.
4.2.1.
Until no Purchaser owns any Securities and the Common Warrants have terminated, the Company covenants to maintain the effectiveness of
the registration of the Ordinary Shares under Section 12(b) or 12(g) of the Exchange Act and to use reasonable best efforts to timely
file (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company
after the date hereof pursuant to the Exchange Act even if the Company is not then subject to the reporting requirements of the Exchange
Act.
4.2.2.
At any time during the period commencing from the six (6) month anniversary of the date hereof and ending at such time that all of the
Securities (assuming cashless exercise for the Warrants) may be sold without the requirement for the Company to be in compliance with
Rule 144(c)(1) and otherwise without restriction or limitation pursuant to Rule 144, if the Company (i) shall fail for any reason to
satisfy the current public information requirement under Rule 144(c) or (ii) 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 “Public
Information Failure”) then, in addition to such Purchaser’s other available remedies, the Company shall pay to a
Purchaser, in cash, as partial liquidated damages and not as a penalty, by reason of any such delay in or reduction of its ability to
sell the Securities, an amount in cash equal to two percent (2.0%) of the aggregate Subscription Amount of such Purchaser’s Securities
on the day of a Public Information Failure and on every thirtieth (30th) day (prorated for periods totaling less than thirty days) thereafter
until the earlier of (a) the date such Public Information Failure is cured and (b) such time that such public information is no longer
required for the Purchasers to transfer the Shares and Warrant Shares pursuant to Rule 144. The payments to which a Purchaser shall be
entitled pursuant to this Section 4.2.2 are referred to herein as “Public Information Failure Payments.” Public
Information Failure Payments shall be paid on the earlier of (i) the last day of the calendar month during which such Public Information
Failure Payments are incurred and (ii) the third (3rd) Business Day after the event or failure giving rise to the Public Information
Failure Payments is cured. In the event the Company fails to make Public Information Failure Payments in a timely manner, such Public
Information Failure Payments shall bear interest at the rate of 1.5% per month (prorated for partial months) until paid in full. Nothing
herein shall limit such Purchaser’s right to pursue actual damages for the Public Information Failure, and such Purchaser shall
have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance
and/or injunctive relief.
4.3.
Integration. The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any
security (as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Securities in a manner
that would require the registration under the Securities Act of the sale of the Securities or that would be integrated with the offer
or sale of the Securities for purposes of the rules and regulations of any Trading Market such that it would require shareholder approval
prior to the closing of such other transaction unless shareholder approval is obtained before the closing of such subsequent transaction.
4.4.
Securities Laws Disclosure; Publicity. The Company shall (a) by the Disclosure Time, issue a press release disclosing the
material terms of the transactions contemplated hereby, and (b) promptly furnish to the Commission a Report of Foreign Private Issuer
on Form 6-K, including the Transaction Documents as exhibits thereto, with the Commission. From and after the issuance of such press
release, the Company represents to the Purchasers that it shall have publicly disclosed all material, non-public information delivered
to any of the Purchasers by the Company or any of its Subsidiaries, or any of their respective officers, directors, employees or agents
(including, without limitation, the Placement Agent) in connection with the transactions contemplated by the Transaction Documents. In
addition, effective upon the issuance of such press release, the Company acknowledges and agrees that any and all confidentiality or
similar obligations under any agreement, whether written or oral, between the Company, any of its Subsidiaries, or any of their respective
officers, directors, agents (including, without limitation, the Placement Agent), employees or Affiliates on the one hand, and any of
the Purchasers or any of their Affiliates on the other hand, shall terminate and be of no further force or effect. The Company understands
and confirms that each Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company. The
Company and each Purchaser shall consult with each other in issuing any other press releases with respect to the transactions contemplated
hereby, and neither the Company nor any Purchaser shall issue any such press release nor otherwise make any such public statement without
the prior consent of the Company, with respect to any press release of any Purchaser, or without the prior consent of each Purchaser,
with respect to any press release of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure
is required by law, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement
or communication. Notwithstanding the foregoing, the Company shall not publicly disclose the name of any Purchaser, or include the name
of any Purchaser in any filing with the Commission or any regulatory agency or Trading Market, without the prior written consent of such
Purchaser, except (a) to the extent required by federal securities law in connection with (i) any Resale Registration Statement contemplated
by this Agreement or the Registration Rights Agreement and (ii) the filing of final Transaction Documents with the Commission and (b)
to the extent such disclosure is required by law or Trading Market regulations, in which such cases the Company shall (x) obtain prior
advice of competent counsel that such disclosure is required, (y) provide the Purchasers with prior notice of such disclosure permitted
under this Section 4.4 and (z) reasonably cooperate with such Purchasers regarding such disclosure.
4.5.
Shareholder Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other
Person, that any Purchaser is an “Acquiring Person” under any control share acquisition, business combination,
poison pill (including any distribution under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter
adopted by the Company, or that any Purchaser could be deemed to trigger the provisions of any such plan or arrangement, by virtue of
receiving Securities under the Transaction Documents or under any other agreement between the Company and the Purchasers.
4.6.
Non-Public Information. Except with respect to the material terms and conditions of the transactions contemplated by the
Transaction Documents, which shall be disclosed pursuant to Section 4.4, the Company covenants and agrees that neither it, nor any other
Person acting on its behalf will provide any Purchaser or its agents or counsel with any information that constitutes, or the Company
reasonably believes constitutes, material non-public information, unless prior thereto such Purchaser shall have consented in writing
to the receipt of such information and agreed in writing with the Company to keep such information confidential. The Company understands
and confirms that each Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company. To
the extent that the Company, any of its Subsidiaries, or any of their respective officers, directors, agents, employees or Affiliates
delivers any material, non-public information to a Purchaser without such Purchaser’s consent, the Company hereby covenants and
agrees that such Purchaser shall not have any duty of confidentiality to the Company, any of its Subsidiaries, or any of their respective
officers, directors, agents, employees or Affiliates, or a duty to the Company, any of its Subsidiaries or any of their respective officers,
directors, agents, employees or Affiliates not to trade on the basis of, such material, non-public information, provided that the Purchaser
shall remain subject to applicable law. To the extent that any notice provided pursuant to any Transaction Document constitutes, or contains,
material, non-public information regarding the Company or any Subsidiaries, the Company shall simultaneously with the delivery of such
notice furnish such notice to the Commission pursuant to a Report of Foreign Private Issuer on Form 6-K. The Company understands and
confirms that each Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company.
4.7.
Use of Proceeds. The Company shall use the net proceeds from the sale of the Securities hereunder for general corporate
purposes (which for the avoidance of doubt may include acquisitions, in the Company’s discretion), including working capital. The
Company shall not use such proceeds: (a) for the satisfaction of any portion of the Company’s debt (other than payment of trade
payables in the ordinary course of the Company’s business and prior practices), (b) for the redemption of any Ordinary Shares or
Ordinary Share Equivalents, (c) for the settlement of any outstanding litigation or (d) in violation of FCPA or OFAC regulations.
4.8.
Indemnification of Purchasers. Subject to the provisions of this Section 4.8, the Company will indemnify and hold each
Purchaser and its directors, officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally
equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls such
Purchaser (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders,
agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding
a lack of such title or any other title) of such controlling persons (each, a “Purchaser Party”) harmless from
any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid
in settlements, court costs and reasonable attorneys’ fees and costs of investigation that any such Purchaser Party may suffer
or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the
Company in this Agreement or in the other Transaction Documents, (b) any action instituted against the Purchaser Parties in any capacity
(including a Purchaser Party’s status as an investor), or any of them or their respective Affiliates, by the Company or any shareholder
of the Company who is not an Affiliate of such Purchaser Party, arising out of or relating to any of the transactions contemplated by
the Transaction Documents. For the avoidance of doubt, the indemnification provided herein is intended to, and shall also cover, direct
claims brought by the Company against the Purchaser Parties; provided, however, that such indemnification shall not cover any loss, claim,
damage or liability to the extent it is finally judicially determined to be attributable to such Purchaser Party’s material breach
of any of the representations, warranties or covenants made by such Purchaser Party in any Transaction Document or any conduct by such
Purchaser Party which is finally judicially determined to constitute fraud, gross negligence or willful misconduct) or (c) in connection
with any Resale Registration Statement of the Company providing for the resale by the Purchasers of the Shares or Warrant Shares issued
and issuable upon exercise of the Warrants, the Company will indemnify each Purchaser Party, to the fullest extent permitted by applicable
law, from and against any and all losses, claims, damages, liabilities, costs (including, without limitation, reasonable attorneys’
fees) and expenses, as incurred, arising out of or relating to (i) any untrue or alleged untrue statement of a material fact contained
in such Resale Registration Statement, any prospectus or any form of prospectus or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary
to make the statements therein (in the case of any prospectus or supplement thereto, in the light of the circumstances under which they
were made) not misleading, except to the extent, but only to the extent, that such untrue statements or omissions are based solely upon
information regarding such Purchaser Party furnished in writing to the Company by such Purchaser Party expressly for use therein, or
(ii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act or any state securities law, or any rule
or regulation thereunder in connection therewith). If any action shall be brought against any Purchaser Party in respect of which indemnity
may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and, except with respect
to direct claims brought by the Company, the Company shall have the right to assume the defense thereof with counsel of its own choosing
reasonably acceptable to the Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such action
and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except
to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed
after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion
of counsel to the applicable Purchaser Party (which may be internal counsel), a material conflict on any material issue between the position
of the Company and the position of such Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses
of no more than one such separate counsel. The Company will not be liable to any Purchaser Party under this Agreement for any settlement
by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed.
In addition, if any Purchaser Party takes actions to collect amounts due under any Transaction Documents or to enforce the provisions
of any Transaction Documents, then the Company shall pay the costs incurred by such Purchaser Party for such collection, enforcement
or action, including, but not limited to, attorneys’ fees and disbursements. The indemnification and other payment obligations
required by this Section 4.8 shall be made by periodic payments of the amount thereof during the course of the investigation, defense,
collection, enforcement or action, as and when bills are received or are incurred; provided, however, that if any Purchaser Party is
finally judicially determined not to be entitled to indemnification or payment under this Section 4.8, such Purchaser Party shall promptly
reimburse the Company for any payments that are advanced under this sentence. The indemnity agreements contained herein shall be in addition
to any cause of action or similar right of any Purchaser Party against the Company or others and any liabilities the Company may be subject
to pursuant to law.
4.9.
Listing of Ordinary Shares. The Company hereby agrees to use its best efforts to maintain the listing or quotation of the
Ordinary Shares on the Trading Market on which it is currently listed, and concurrently with the Closing, the Company shall apply to
list or quote all of the Shares and Warrant Shares on such Trading Market and promptly secure the listing of all of the Shares and Warrant
Shares on such Trading Market. The Company further agrees, if the Company applies to have the Ordinary Shares traded on any other Trading
Market, it will then include in such application all of the Shares and Warrant Shares, and will take such other action as is necessary
to cause all of the Shares and Warrant Shares to be listed or quoted on such other Trading Market as promptly as possible. The Company
will then take all action reasonably necessary to continue the listing and trading of its Ordinary Shares on a Trading Market and will
comply in all respects with the Company’s reporting, filing and other obligations under the bylaws or rules of the Trading Market.
The Company agrees to maintain the eligibility of the Ordinary Shares for electronic transfer through the Depository Trust Company or
another established clearing corporation, including, without limitation, by timely payment of fees to the Depository Trust Company or
such other established clearing corporation in connection with such electronic transfer.
4.10.
Subsequent Equity Sales.
4.10.1.
From the date hereof until ninety (90) days after the Release Date, neither the Company nor any Subsidiary shall (i) issue, enter into
any agreement to issue or announce the issuance or proposed issuance of any Ordinary Shares or Ordinary Share Equivalents or (ii) file
any registration statement or any amendment or supplement thereto, in each case other than as contemplated pursuant to the Registration
Rights Agreement or, solely with respect to securities issued pursuant to any share or option plan duly adopted for such purpose by the
Board of Directors or a committee of non-employee directors established for such purpose for services rendered to the Company, on Form
S-8.
4.10.2.
Notwithstanding the foregoing, this Section 4.10 shall not apply in respect of an Exempt Issuance.
4.11.
Certain Transactions and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants
that neither it, nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales,
including Short Sales, of any of the Company’s securities during the period commencing with the execution of this Agreement and
ending at such time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release
as described in Section 4.4. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the
transactions contemplated by this Agreement are publicly disclosed by the Company pursuant to the initial press release as described
in Section 4.4, such Purchaser will maintain the confidentiality of the existence and terms of this transaction. Notwithstanding the
foregoing and notwithstanding anything contained in this Agreement to the contrary, the Company expressly acknowledges and agrees that
(i) no Purchaser makes any representation, warranty or covenant hereby that it will not engage in effecting transactions in any securities
of the Company after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial
press release as described in Section 4.4, (ii) no Purchaser shall be restricted or prohibited from effecting any transactions in any
securities of the Company in accordance with applicable securities laws from and after the time that the transactions contemplated by
this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.4 and (iii) no Purchaser
shall have any duty of confidentiality or duty not to trade in the securities of the Company to the Company, any of its Subsidiaries,
or any of their respective officers, directors, employees, agents or Affiliates after the issuance of the initial press release as described
in Section 4.4. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate
portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the
investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth
above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase
the Securities covered by this Agreement.
4.12.
Form D; Blue Sky Filings. The Company agrees to timely file a Form D with respect to the Securities as required under Regulation
D and to provide a copy thereof, promptly upon request of any Purchaser. The Company shall 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 Purchasers at the Closing under
applicable securities or “Blue Sky” laws of the states of the United States, and shall provide evidence of such actions promptly
upon request of any Purchaser.
4.13.
Capital Changes. Until the date that is ninety (90) days after the Effective Date, the Company shall not undertake a reverse
or forward share split or reclassification of the Ordinary Shares without the prior written consent of the Purchasers holding a majority
in interest of the Shares and Pre-Funded Warrants, based on the initial Subscription Amounts hereunder.
4.14.
Acknowledgment of Dilution. The Company acknowledges that the issuance of the Securities may result in dilution of the
outstanding Ordinary Shares, which dilution may be substantial under certain market conditions. The Company further acknowledges that
its obligations under the Transaction Documents, including, without limitation, its obligation to issue the Shares and Warrant Shares
pursuant to the Transaction Documents, are unconditional and absolute and not subject to any right of set off, counterclaim, delay or
reduction, regardless of the effect of any such dilution or any claim the Company may have against any Purchaser and regardless of the
dilutive effect that such issuance may have on the ownership of the other shareholders of the Company.
4.15.
Lock-Up Agreements. The Company shall not amend, modify, waive or terminate any provision of any of the Lock-Up Agreements
(and any lock-up agreements contemplated in the Lock-Up Agreements) except to extend the term of the lock-up period and shall enforce
the provisions of each Lock-Up Agreement (and any lock-up agreements contemplated in the Lock-Up Agreements) in accordance with its terms.
If any party to a Lock-Up Agreement (and any lock-up agreements contemplated in the Lock-Up Agreements) breaches any provision of a Lock-Up
Agreement, the Company shall promptly use its best efforts to seek specific performance of the terms of such Lock-Up Agreement (and any
lock-up agreements contemplated in the Lock-Up Agreements).
4.16.
Registration Rights Agreement. On the date hereof, the Company shall enter into the Registration Rights Agreement and shall
not amend, modify, waive or terminate any provision of the Registration Rights Agreement, except pursuant to the terms of the Registration
Rights Agreement.
4.17.
QEF Election. If a Purchaser so requests in writing for any taxable year of the Company, the Company, after consulting
with its outside accounting firm, shall within fifteen (15) Business Days notify such Purchaser in writing that either (A) neither the
Company nor any of its Subsidiaries was a “passive foreign investment company” as defined in Section 1297 of the Code (“PFIC”)
for such year, or (B) the Company and/or one or more of its Subsidiaries was a PFIC for such year, in which event the Company shall provide
to such Purchaser, upon the reasonable written request of such Purchaser, the information reasonably necessary to allow such Purchaser
to elect to treat each of the Company and any applicable Subsidiaries (if any), respectively, as a “qualified electing fund”
(within the meaning of Section 1295 of the Code for such year, including a “PFIC Annual Information Statement” as described
in Treasury Regulation Section 1.1295-1(g)(1) (or any successor Treasury Regulation).
4.18.
Reservation of Ordinary Shares. As of the date hereof, the Company has reserved and the Company shall continue to reserve
and keep available at all times, free of preemptive rights, a sufficient number of Ordinary Shares for the purpose of enabling the Company
to issue Shares pursuant to this Agreement and Warrant Shares pursuant to any exercise of the Warrants.
4.19.
Exercise Procedures. The form of Notice of Exercise included in the Warrants set forth the totality of the procedures required
of the Purchasers in order to exercise the Warrants. No additional legal opinion, other information or instructions shall be required
of the Purchasers to exercise their Warrants. Without limiting the preceding sentences, no ink-original Notice of Exercise shall be required,
nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise form be required in order to
exercise the Warrants. The Company shall honor exercises of the Warrants and shall deliver Warrant Shares in accordance with the terms,
conditions and time periods set forth in the Transaction Documents.
5.1.
Termination. This Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations hereunder only
and without any effect whatsoever on the obligations between the Company and the other Purchasers, by written notice to the other parties,
if the Closing has not been consummated on or before the fifth (5th) Trading Day following the date hereof; provided,
however, that no such termination will affect the right of any party to sue for any breach by any other party (or parties).
5.2.
Fees and Expenses. Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the
fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident
to the negotiation, preparation, execution, delivery and performance of this Agreement. The Company shall pay all Transfer Agent fees
(including, without limitation, any fees required for same-day processing of any instruction letter delivered by the Company and any
exercise notice delivered by a Purchaser), stamp taxes and other taxes and duties levied in connection with the delivery of any Securities
to the Purchasers.
5.3.
Entire Agreement. The Transaction Documents, together with the exhibits and schedules thereto, contain the entire understanding
of the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings, oral or written,
with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules.
5.4.
Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall
be in writing and shall be deemed given and effective on the earliest of: (a) the time of transmission, if such notice or communication
is delivered via email at the email address as set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New York City
time) on a Trading Day, (b) the next Trading Day after the time of transmission, if such notice or communication is delivered via email
at the email address as set forth on the signature pages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New
York City time) on any Trading Day, (c) the second (2nd) Trading Day following the date of mailing, if sent by U.S. nationally
recognized overnight courier service or (d) upon actual receipt by the party to whom such notice is required to be given. The address
for such notices and communications shall be as set forth on the signature pages attached hereto. To the extent that any notice provided
pursuant to any Transaction Document constitutes, or contains material, non-public information regarding the Company or any of the Subsidiaries,
the Company shall simultaneously furnish such notice to the Commission pursuant to a Report of Foreign Private Issuer on Form 6-K.
5.5.
Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written
instrument signed, in the case of an amendment, by the Company and Purchasers which purchased at least 50.1% in interest of the Shares
and Pre-Funded Warrants based on the initial Subscription Amounts hereunder (or, prior to Closing, the Company and each Purchaser) or,
in the case of a waiver, by the party against whom enforcement of any such waived provision is sought, provided that if any amendment,
modification or waiver disproportionately and adversely impacts a Purchaser (or group of Purchasers), the consent of such disproportionately
impacted Purchaser (or group of Purchasers) shall also be required. No waiver of any default with respect to any provision, condition
or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver
of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder
in any manner impair the exercise of any such right. Any proposed amendment or waiver that disproportionately, materially and adversely
affects the rights and obligations of any Purchaser relative to the comparable rights and obligations of the other Purchasers shall require
the prior written consent of such adversely affected Purchaser. Any amendment effected in accordance with this Section 5.5 shall be binding
upon each Purchaser and holder of Securities and the Company.
5.6.
Headings. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed
to limit or affect any of the provisions hereof.
5.7.
Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors
and permitted assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent
of each Purchaser (other than by merger). Any Purchaser may assign any or all of its rights under this Agreement to any Person to whom
such Purchaser assigns or transfers any Securities, provided that such transferee agrees in writing to be bound, with respect to the
transferred Securities, by the provisions of the Transaction Documents that apply to the “Purchasers.”
5.8.
No Third-Party Beneficiaries. The Placement Agent shall be the third party beneficiary of the representations and warranties
of the Company in Section 3.1 and the representations and warranties of the Purchasers in Section 3.2. This Agreement is intended for
the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision
hereof be enforced by, any other Person, except as otherwise set forth in Section 4.8 and this Section 5.8.
5.9.
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents
shall be governed by and construed and enforced in accordance with the law of the State of New York. Each party agrees that all legal
Proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement and any other
Transaction Documents (whether brought against a party hereto or its respective affiliates, directors, officers, shareholders, partners,
members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York. Each party
hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City and County of New York for
the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including
with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any
Action or Proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such Action or Proceeding
is improper or is an inconvenient venue for such Proceeding. Each party hereby irrevocably waives personal service of process and consents
to process being served in any such Action or Proceeding by mailing a copy thereof via registered or certified mail or overnight delivery
(with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service
shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any
way any right to serve process in any other manner permitted by law. If any party shall commence an Action or Proceeding to enforce any
provisions of the Transaction Documents, then, in addition to the obligations of the Company under Section 4.8, the prevailing party
in such Action or Proceeding shall be reimbursed by the non-prevailing party for its reasonable attorneys’ fees and other costs
and expenses incurred with the investigation, preparation and prosecution of such Action or Proceeding.
5.10.
Survival. The representations and warranties contained herein shall survive the Closing and the delivery of the Securities.
5.11.
Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered
one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other party,
it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by e-mail delivery
of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) with the same force and effect as if such “.pdf” signature page were an original thereof.
5.12.
Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction
to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall
remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would
have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
5.13.
Rescission and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar
provisions of) any of the other Transaction Documents, whenever any Purchaser exercises a right, election, demand or option under a Transaction
Document and the Company does not timely perform its related obligations within the periods therein provided, then such Purchaser may
rescind or withdraw, in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election
in whole or in part without prejudice to its future actions and rights; provided, however, that, in the case of a rescission
of an exercise of a Warrant, the applicable Purchaser shall be required to return any Ordinary Shares subject to any such rescinded exercise
notice concurrently with the return to such Purchaser of the aggregate exercise price paid to the Company for such Shares and the restoration
of such Purchaser’s right to acquire such Shares pursuant to such Purchaser’s Warrant (including, issuance of a replacement
warrant certificate evidencing such restored right).
5.14.
Replacement of Securities. If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed,
the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation),
or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to
the Company of such loss, theft or destruction. The applicant for a new certificate or instrument under such circumstances shall also
pay any reasonable third-party costs (including customary indemnity) associated with the issuance of such replacement Securities.
5.15.
Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of
damages, each of the Purchasers and the Company will be entitled to specific performance under the Transaction Documents. The parties
agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations contained in
the Transaction Documents and hereby agree to waive and not to assert in any Action for specific performance of any such obligation the
defense that a remedy at law would be adequate.
5.16.
Payment Set Aside. To the extent that the Company makes a payment or payments to any Purchaser pursuant to any Transaction
Document or a Purchaser enforces or exercises its rights 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, 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.
5.17.
Independent Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction
Document are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for
the performance or non-performance of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein
or in any other Transaction Document, and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute
the Purchasers as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchasers
are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by the Transaction Documents.
Each Purchaser shall be entitled to independently protect and enforce its rights including, without limitation, the rights arising out
of this Agreement or out of the other Transaction Documents, and it shall not be necessary for any other Purchaser to be joined as an
additional party in any Proceeding for such purpose. Each Purchaser has been represented by its own separate legal counsel in its review
and negotiation of the Transaction Documents. For reasons of administrative convenience only, each Purchaser and its respective counsel
have chosen to communicate with the Company through the legal counsel to the Placement Agent. The legal counsel of the Placement Agent
does not represent any of the Purchasers and only represents the Placement Agent. The Company has elected to provide all Purchasers with
the same terms and Transaction Documents for the convenience of the Company and not because it was required or requested to do so by
any of the Purchasers. It is expressly understood and agreed that each provision contained in this Agreement and in each other Transaction
Document is between the Company and a Purchaser, solely, and not between the Company and the Purchasers collectively and not between
and among the Purchasers.
5.18.
Liquidated Damages. The Company’s obligations to pay any partial liquidated damages or other amounts owing under
the Transaction Documents is a continuing obligation of the Company and shall not terminate until all unpaid partial liquidated damages
and other amounts have been paid notwithstanding the fact that the instrument or security pursuant to which such partial liquidated damages
or other amounts are due and payable shall have been canceled.
5.19.
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right
required or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding
Business Day.
5.20.
Construction. The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity
to revise the Transaction Documents and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition,
each and every reference to share prices and Ordinary Shares in any Transaction Document shall be subject to adjustment for reverse and
forward share splits, share dividends, share combinations and other similar transactions of the Ordinary Shares that occur after the
date of this Agreement.
5.21.
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.
[SMX
Securities Purchase Agreement Signature Pages Follows]
[SMX
Securities Purchase Agreement – Company Signature Page]
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
| SMX
(SECURITY MATTERS) PUBLIC LIMITED COMPANY |
|
Address
for Notice: |
| |
|
|
|
|
| By: |
|
|
Email: |
haggai@securitymattersltd.com |
| Name: |
Haggai
Alon |
|
|
|
| Title: |
Chief
Executive Officer |
|
|
|
[SMX
Securities Purchase Agreement – Investor Signature Page]
IN
WITNESS WHEREOF, the undersigned has caused this Securities Purchase Agreement to be duly executed by its authorized signatory as of
the date first indicated above.
| Name
of Purchaser: |
[●] |
| |
|
| Signature
of Authorized Signatory of Purchaser: |
|
| |
|
| Name
of Authorized Signatory: |
[●] |
| |
|
| Title
of Authorized Signatory: |
[●] |
| |
|
| Email
Address of Authorized Signatory: |
[●] |
| |
|
| Address
for Notice to Purchaser: |
[●] |
| |
|
| Address
for Delivery of Securities to Purchaser (if not same as address for notice): |
[●] |
| |
|
| Subscription
Amount: |
[●] |
| |
|
| Shares: |
[●] |
| |
|
| Pre-funded
Warrants: |
[●] |
| |
|
| Beneficial
Ownership Blocker: |
[●] |
| |
|
| Common
Warrants: |
[●] |
| |
|
| Beneficial
Ownership Blocker: |
[●] |
| |
|
| Employer
Identification Number: |
[●] |
Exhibit
1.13.1
Form
of Series A PIPE Common Warrant
Exhibit
1.13.2
Form
of Series B PIPE Common Warrant
Exhibit
1.36
Form
of Lock-Up Agreement
Exhibit
1.49
Form
of PIPE Pre-Funded Warrant
Exhibit
1.54
Form
of Registration Rights Agreement
Exhibit
99.3
REGISTRATION
RIGHTS AGREEMENT
This
Registration Rights Agreement (this “Agreement”) is made and entered into as of September 11, 2024, between
SMX (Security Matters) Public Limited Company, an Irish corporation (the “Company”), and each of the several
purchasers signatory hereto (each such purchaser, a “Purchaser” and, collectively, the “Purchasers”).
This
Agreement is made pursuant to the Securities Purchase Agreement, dated as of the date hereof, between the Company and each Purchaser
(the “Purchase Agreement”).
The
Company and each Purchaser hereby agrees as follows:
| 1. | Definitions.
Capitalized terms used and not otherwise defined herein that are defined in the Purchase
Agreement shall have the meanings given such terms in the Purchase Agreement. As used in
this Agreement, the following terms shall have the following meanings: |
1.1.
“Advice” shall have the meaning set forth in Section 6.3.
1.2.
“Effectiveness Date” means, with respect to the Initial Registration Statement required to be filed hereunder,
thirty (30) calendar days following the Filing Date (or, in the event of a full review by the Commission, sixty (60) calendar days following
the Filing Date) and with respect to any additional Registration Statements which may be required pursuant to Section 2.3 or Section
3.3, thirty (30) calendar days following the date on which an additional Registration Statement is required to be filed hereunder (or,
in the event of a full review by the Commission, sixty (60) calendar days following the date such additional Registration Statement is
required to be filed hereunder); provided, however, that in the event the Company is notified by the Commission that one
or more of the above Registration Statements will not be reviewed or is no longer subject to further review and comments, the Effectiveness
Date as to such Registration Statement shall be the fifth (5th) Trading Day following the date on which the Company is so notified if
such date precedes the dates otherwise required above, provided, further, if such Effectiveness Date falls on a day that is not a Trading
Day, then the Effectiveness Date shall be the next succeeding Trading Day.
1.3.
“Effectiveness Period” shall have the meaning set forth in Section 2.1.
1.4.
“Event” shall have the meaning set forth in Section 2.4.
1.5.
“Event Date” shall have the meaning set forth in Section 2.4.
1.6.
“Filing Date” means, with respect to the Initial Registration Statement required hereunder fifteen (15) calendar
days after the Closing Date and, with respect to any additional Registration Statements which may be required pursuant to Section 2.3
or Section 3.3, the earliest practical date on which the Company is permitted by SEC Guidance to file such additional Registration Statement
related to the Registrable Securities.
1.7.
“Holder” or “Holders” means the holder or holders, as the case may be, from time
to time of Registrable Securities.
1.8.
“Indemnified Party” shall have the meaning set forth in Section 5.3.
1.9.
“Indemnifying Party” shall have the meaning set forth in Section 5.3.
1.10.
“Initial Registration Statement” means the initial Registration Statement filed pursuant to this Agreement.
1.11.
“Losses” shall have the meaning set forth in Section 5.1.
1.12.
“Plan of Distribution” shall have the meaning set forth in Section 2.1.
1.13.
“Prospectus” means the prospectus included in a Registration Statement (including, without limitation, a prospectus
that includes any information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated by the Commission pursuant to the Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable Securities covered by a Registration Statement, and all other
amendments and supplements to the Prospectus, including post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
1.14.
“Registrable Securities” means, as of any date of determination, (a) all Ordinary Shares held by the Purchasers,
(b) all Warrant Shares then issued and issuable upon exercise of the Warrants and Pre-Funded Warrants (assuming on such date the Warrants
and Pre-Funded Warrants are exercised in full without regard to any exercise limitations therein and further assuming any adjustments
to any Warrants, subject to any Floor Price as set forth therein), and (c) any securities issued or then issuable upon any share split,
dividend or other distribution, recapitalization or similar event with respect to the foregoing; provided, however,
that any such Registrable Securities shall cease to be Registrable Securities (and the Company shall not be required to maintain the
effectiveness of any, or file another, Registration Statement hereunder with respect thereto) for so long as (a) a Registration Statement
with respect to the sale of such Registrable Securities is declared effective by the Commission under the Securities Act and such Registrable
Securities have been disposed of by the Holder in accordance with such effective Registration Statement, (b) such Registrable Securities
have been previously sold in accordance with Rule 144, or (c) such securities become eligible for resale and without the requirement
for the Company to be in compliance with the current public information requirement under Rule 144 (if such requirement is applicable)
as set forth in a written opinion letter to such effect, addressed, delivered and acceptable to the Transfer Agent and the affected Holders
(assuming that such securities and any securities issuable upon exercise, conversion or exchange of which, or as a dividend upon which,
such securities were issued or are issuable, were at no time held by any Affiliate of the Company, as reasonably determined by the Company,
upon the advice of counsel to the Company.
1.15.
“Registration Statement” means any registration statement required to be filed hereunder pursuant to Section
2.1 and any additional registration statements contemplated by Section 2.3 or Section 3.3, including (in each case) the Prospectus, amendments
and supplements to any such registration statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto,
and all material incorporated by reference or deemed to be incorporated by reference in any such registration statement.
1.16.
“Rule 415” means Rule 415 promulgated by the Commission 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 Commission having substantially
the same purpose and effect as such Rule.
1.17.
“Rule 424” means Rule 424 promulgated by the Commission 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 Commission having substantially
the same purpose and effect as such Rule.
1.18.
“Selling Shareholder Questionnaire” shall have the meaning set forth in Section 3.1.
1.19.
“SEC Guidance” means (i) any publicly-available written or oral guidance of the Commission staff, or any comments,
requirements or requests of the Commission staff and (ii) the Securities Act.
| 2. | Registration
Statement. |
2.1.
On or prior to each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale
of all of the Registrable Securities that are not then registered on an effective Registration Statement for an offering to be made on
a continuous basis pursuant to Rule 415. Each Registration Statement filed hereunder shall be on Form F-1 (or Form F-3 to the extent
the Company is eligible to use such registration statement form, subject to the provisions of Section 2.5) and shall contain (unless
otherwise directed by at least 85% in interest of the Holders) substantially the “Plan of Distribution” attached hereto
as Annex 2.1.1 and substantially the “Selling Shareholders” section attached hereto as Annex 2.1.2;
provided, however, that no Holder shall be required to be named as an “underwriter” without such Holder’s
express prior written consent. Subject to the terms of this Agreement, the Company shall use its best efforts to cause a Registration
Statement filed under this Agreement (including, without limitation, under Section 3.3) to be declared effective under the Securities
Act as promptly as possible after the filing thereof, but in any event no later than the applicable Effectiveness Date, and shall use
its best efforts to keep such Registration Statement continuously effective under the Securities Act until the date that all Registrable
Securities covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144, or (ii) may be sold without
volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement for the Company to be in compliance with the current
public information requirement under Rule 144 (to the extent applicable), as determined by the counsel to the Company pursuant to a written
opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the “Effectiveness
Period”). The Company shall telephonically request effectiveness of a Registration Statement as of 5:00 p.m. (New York
City time) on a Trading Day. The Company shall immediately notify the Holders via facsimile or by e-mail of the effectiveness of a Registration
Statement on the same Trading Day that the Company telephonically confirms effectiveness with the Commission, which shall be the date
requested for effectiveness of such Registration Statement. The Company shall, by 9:30 a.m. (New York City time) on the Trading Day after
the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424. Failure to so
notify the Holder within one (1) Trading Day of such notification of effectiveness or failure to file a final Prospectus as foresaid
shall be deemed an Event under Section 2.4.
2.2.
Notwithstanding the registration obligations set forth in Section 2.1, if the Commission informs the Company that all of the Registrable
Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration
statement, the Company agrees to promptly inform each of the Holders thereof and use its commercially reasonable efforts to file amendments
to the Initial Registration Statement as required by the Commission, covering the maximum number of Registrable Securities permitted
to be registered by the Commission, on Form F-1 or such other form available to register for resale the Registrable Securities as a secondary
offering, subject to the provisions of Section 2.5; with respect to filing on Form F-1 or other appropriate form, and subject to the
provisions of Section 2.4 with respect to the payment of liquidated damages; provided, however, that prior to filing such
amendment, the Company shall be obligated to use diligent efforts to advocate with the Commission for the registration of all of the
Registrable Securities in accordance with the SEC Guidance, including without limitation, Compliance and Disclosure Interpretation 612.09.
2.3.
Notwithstanding any other provision of this Agreement and subject to the payment of liquidated damages pursuant to Section 2.4, if the
Commission or any SEC Guidance sets forth a limitation on the number of Registrable Securities permitted to be registered on a particular
Registration Statement as a secondary offering (and notwithstanding that the Company used diligent efforts to advocate with the Commission
for the registration of all or a greater portion of Registrable Securities), unless otherwise directed in writing by a Holder as to its
Registrable Securities, the number of Registrable Securities to be registered on such Registration Statement will be reduced as follows:
2.3.1.
First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities;
2.3.2.
Second, the Company shall reduce Registrable Securities represented by the Warrant Shares (applied, in the case that some Warrant Shares
may be registered, to the Holders on a pro rata basis based on the total number of unregistered Warrant Shares held by such Holders);
and
2.3.3.
Third, the Company shall reduce Registrable Securities represented by Ordinary Shares (applied, in the case that some Ordinary Shares
may be registered, to the Holders on a pro rata basis based on the total number of unregistered Ordinary Shares held by such Holders).
In
the event of a cutback hereunder, the Company shall give the Holder at least five (5) Trading Days prior written notice along with the
calculations as to such Holder’s allotment. In the event the Company amends the Initial Registration Statement in accordance with
the foregoing, the Company will use its best efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance
provided to the Company or to registrants of securities in general, one or more registration statements on Form F-1 or such other form
available to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement,
as amended.
2.4.
If: (i) the Initial Registration Statement is not filed on or prior to its Filing Date (if the Company files the Initial Registration
Statement without affording the Holders the opportunity to review and comment on the same as required by Section 3.1 herein or the Company
subsequently withdraws the filing of the Registration Statement, the Company shall be deemed to have not satisfied this clause (i)) as
of the Filing Date, or (ii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance
with Rule 461 promulgated by the Commission pursuant to the Securities Act, within five Trading Days of the date that the Company is
notified (orally or in writing, whichever is earlier) by the Commission that such Registration Statement will not be “reviewed”
or will not be subject to further review, or (iii) prior to the effective date of a Registration Statement, the Company fails to file
a pre-effective amendment and otherwise respond in writing to comments made by the Commission in respect of such Registration Statement
within ten (10) calendar days after the receipt of comments by or notice from the Commission that such amendment is required in order
for such Registration Statement to be declared effective, or (iv) a Registration Statement registering for resale all of the Registrable
Securities is not declared effective by the Commission by the Effectiveness Date of the Initial Registration Statement (provided if the
Registration Statement does not allow for the resale of Registrable Securities at prevailing market prices (i.e., only allows for fixed
price sales), the Company shall have been deemed to have not satisfied this clause), or (v) after the effective date of a Registration
Statement, such Registration Statement ceases for any reason to remain continuously effective as to all Registrable Securities included
in such Registration Statement, or the Holders are otherwise not permitted to utilize the Prospectus therein to resell such Registrable
Securities, for more than ten (10) consecutive calendar days or more than an aggregate of fifteen (15) calendar days (which need not
be consecutive calendar days) during any 12-month period (any such failure or breach being referred to as an “Event”,
and for purposes of clauses (i) and (iv), the date on which such Event occurs, and for purpose of clause (ii) the date on which such
five (5) Trading Day period is exceeded, and for purpose of clause (iii) the date which such ten (10) calendar day period is exceeded,
and for purpose of clause (v) the date on which such ten (10) or fifteen (15) calendar day period, as applicable, is exceeded being referred
to as “Event Date”), then, in addition to any other rights the Holders may have hereunder or under applicable
law, on each such Event Date and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured
by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages
and not as a penalty, equal to the product of 2.0% multiplied by the aggregate Subscription Amount paid by such Holder pursuant to the
Purchase Agreement. If the Company fails to pay any partial liquidated damages pursuant to this Section 2.4 in full within seven days
after the date payable, the Company will pay interest thereon at a rate of 15% per annum (or such lesser maximum amount that is permitted
to be paid by applicable law) to the Holder, accruing daily from the date such partial liquidated damages are due until such amounts,
plus all such interest thereon, are paid in full. The partial liquidated damages pursuant to the terms hereof shall apply on a daily
pro rata basis for any portion of a month prior to the cure of an Event.
2.5.
If Form F-1 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 another appropriate form and (ii) undertake to register the Registrable Securities on Form F-1
as soon as such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect
until such time as a Registration Statement on Form F-1 covering the Registrable Securities has been declared effective by the Commission.
2.6.
Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate
of a Holder as any Underwriter without the prior written consent of such Holder.
| 3. | Registration
Procedures. In connection with the Company’s registration obligations hereunder,
the Company shall: |
3.1.
Not less than five (5) Trading Days prior to the filing of each Registration Statement and not less than one (1) Trading Day prior to
the filing of any related Prospectus or any amendment or supplement thereto (including any document that would be incorporated or deemed
to be incorporated therein by reference), the Company shall (i) furnish to each Holder copies of all such documents proposed to be filed,
which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of such Holders,
and (ii) cause its officers and directors, counsel and independent registered public accountants to respond to such inquiries as shall
be necessary, in the reasonable opinion of respective counsel to each Holder, to conduct a reasonable investigation within the meaning
of the Securities Act. The Company shall not file a Registration Statement or any such Prospectus or any amendments or supplements thereto
to which the Holders of a majority of the Registrable Securities shall reasonably object in good faith, provided that, the Company is
notified of such objection in writing no later than five (5) Trading Days after the Holders have been so furnished copies of a Registration
Statement or one (1) Trading Day after the Holders have been so furnished copies of any related Prospectus or amendments or supplements
thereto. Each Holder agrees to furnish to the Company a completed questionnaire in the form attached to this Agreement as Annex 3.1
(a “Selling Shareholder Questionnaire”) on a date that is not less than two (2) Trading Days prior to the
Filing Date or by the end of the fourth (4th) Trading Day following the date on which such Holder receives draft materials
in accordance with this Section.
3.2.
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to a Registration Statement and the Prospectus
used in connection therewith as may be necessary to keep a Registration Statement continuously effective as to the applicable Registrable
Securities for the Effectiveness Period and prepare and file with the Commission such additional Registration Statements in order to
register for resale under the Securities Act all of the Registrable Securities, (ii) cause the related Prospectus to be amended or supplemented
by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant
to Rule 424, (iii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration
Statement or any amendment thereto and provide as promptly as reasonably possible to the Holders true and complete copies of all correspondence
from and to the Commission relating to a Registration Statement (provided that, the Company shall excise any information contained therein
which would constitute material non-public information regarding the Company), and (iv) comply in all material respects with the applicable
provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by a Registration
Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition
by the Holders thereof set forth in such Registration Statement as so amended or in such Prospectus as so supplemented.
3.3.
If during the Effectiveness Period, the number of Registrable Securities at any time exceeds 100% of the number of Ordinary Shares then
registered in a Registration Statement, then the Company shall file as soon as reasonably practicable, but in any case prior to the applicable
Filing Date, an additional Registration Statement covering the resale by the Holders of not less than the number of such Registrable
Securities.
3.4.
Notify the Holders of Registrable Securities to be sold (which notice shall, pursuant to clauses (iii) through (vi) hereof, be accompanied
by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible
(and, in the case of (i)(A) below, not less than one (1) Trading Day prior to such filing) and (if requested by any such Person) confirm
such notice in writing no later than one (1) Trading Day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective
amendment to a Registration Statement is proposed to be filed, (B) when the Commission notifies the Company whether there will be a “review”
of such Registration Statement and whenever the Commission comments in writing on such Registration Statement, and (C) with respect to
a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the Commission or
any other federal or state governmental authority for amendments or supplements to a Registration Statement or Prospectus or for additional
information, (iii) of the issuance by the Commission or any other federal or state governmental authority of any stop order suspending
the effectiveness of a Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings
for that purpose, (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any Proceeding
for such purpose, (v) of the occurrence of any event or passage of time that makes the financial statements included in a Registration
Statement ineligible for inclusion therein or any statement made in a Registration Statement or Prospectus or any document incorporated
or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to a Registration Statement,
Prospectus or other documents so that, in the case of a Registration Statement or the Prospectus, as the case may be, it will not contain
any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading, and (vi) of the occurrence or existence of any pending
corporate development with respect to the Company that the Company believes may be material and that, in the determination of the Company,
makes it not in the best interest of the Company to allow continued availability of a Registration Statement or Prospectus; provided,
however, that in no event shall any such notice contain any information which would constitute material, non-public information
regarding the Company and the Company agrees that the Holders shall not have any duty of confidentiality to the Company and shall not
have any duty to the Company not to trade on the basis of such information.
3.5.
Use its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order stopping or suspending the effectiveness
of a Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction, at the earliest practicable moment.
3.6.
Furnish to each Holder, without charge, at least one conformed copy of each such Registration Statement and each amendment thereto, including
financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference to the extent requested
by such Person, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference)
promptly after the filing of such documents with the Commission, provided that any such item which is available on the EDGAR system (or
successor thereto) need not be furnished in physical form.
3.7.
Subject to the terms of this Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto
by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and
any amendment or supplement thereto, except after the giving of any notice pursuant to Section 3.4.
3.8.
Prior to any resale of Registrable Securities by a Holder, use its commercially reasonable efforts to register or qualify or cooperate
with the selling Holders in connection with the registration or qualification (or exemption from the Registration or qualification) of
such Registrable Securities for the resale by the Holder under the securities or Blue Sky laws of such jurisdictions within the United
States as any Holder reasonably requests in writing, to keep each registration or qualification (or exemption therefrom) effective during
the Effectiveness Period and to do any and all other acts or things reasonably necessary to enable the disposition in such jurisdictions
of the Registrable Securities covered by each Registration Statement, provided that the Company shall not be required to qualify generally
to do business in any jurisdiction where it is not then so qualified, subject the Company to any material tax in any such jurisdiction
where it is not then so subject or file a general consent to service of process in any such jurisdiction.
3.9.
If requested by a Holder, cooperate with such Holder to facilitate the timely preparation and delivery of certificates representing Registrable
Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permitted
by the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered
in such names as any such Holder may request.
3.10.
Upon the occurrence of any event contemplated by Section 3.4, as promptly as reasonably possible under the circumstances taking into
account the Company’s good faith assessment of any adverse consequences to the Company and its shareholders of the premature disclosure
of such event, prepare a supplement or amendment, including a post-effective amendment, to a Registration Statement or a supplement to
the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document
so that, as thereafter delivered, neither a Registration Statement nor such Prospectus will contain an 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 light of the circumstances
under which they were made, not misleading. If the Company notifies the Holders in accordance with clauses (iii) through (vi) of Section
3.4 above to suspend the use of any Prospectus until the requisite changes to such Prospectus have been made, then the Holders shall
suspend use of such Prospectus. The Company will use its best efforts to ensure that the use of the Prospectus may be resumed as promptly
as is practicable. The Company shall be entitled to exercise its right under this Section 3.10 to suspend the availability of a Registration
Statement and Prospectus, subject to the payment of partial liquidated damages otherwise required pursuant to Section 2.4, for a period
not to exceed 60 calendar days (which need not be consecutive days) in any 12-month period.
3.11.
Otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission under the Securities
Act and the Exchange Act, including, without limitation, Rule 172 under the Securities Act, file any final Prospectus, including any
supplement or amendment thereof, with the Commission pursuant to Rule 424 under the Securities Act, promptly inform the Holders in writing
if, at any time during the Effectiveness Period, the Company does not satisfy the conditions specified in Rule 172 and, as a result thereof,
the Holders are required to deliver a Prospectus in connection with any disposition of Registrable Securities and take such other actions
as may be reasonably necessary to facilitate the registration of the Registrable Securities hereunder.
3.12.
The Company shall use its best efforts to maintain eligibility for use of Form F-3 (or any successor form thereto) for the registration
of the resale of Registrable Securities.
3.13.
The Company may require each selling Holder to furnish to the Company a certified statement as to the number of Ordinary Shares beneficially
owned by such Holder and, if required by the Commission, the natural persons thereof that have voting and dispositive control over the
Ordinary Shares. During any periods that the Company is unable to meet its obligations hereunder with respect to the registration of
the Registrable Securities solely because any Holder fails to furnish such information within three Trading Days of the Company’s
request, any liquidated damages that are accruing at such time as to such Holder only shall be tolled and any Event that may otherwise
occur solely because of such delay shall be suspended as to such Holder only, until such information is delivered to the Company.
| 4. | Registration
Expenses. All fees and expenses incident to the performance of, or compliance with,
this Agreement by the Company shall be borne by the Company whether or not any Registrable
Securities are sold pursuant to a Registration Statement. The fees and expenses referred
to in the foregoing sentence shall include, without limitation, (i) all registration and
filing fees (including, without limitation, fees and expenses of the Company’s counsel
and independent registered public accountants) (A) with respect to filings made with the
Commission, (B) with respect to filings required to be made with any Trading Market on which
the Ordinary Shares are then listed for trading, and (C) in compliance with applicable state
securities or Blue Sky laws reasonably agreed to by the Company in writing (including, without
limitation, fees and disbursements of counsel for the Company in connection with Blue Sky
qualifications or exemptions of the Registrable Securities), (ii) printing expenses (including,
without limitation, expenses of printing certificates for Registrable Securities), (iii)
messenger, telephone and delivery expenses, (iv) fees and disbursements of counsel for the
Company, (v) Securities Act liability insurance, if the Company so desires such insurance
to be purchased at the sole discretion of the Company, and (vi) fees and expenses of all
other Persons retained by the Company in connection with the consummation of the transactions
contemplated by this Agreement. In addition, the Company shall be responsible for all of
its internal expenses incurred in connection with the consummation of the transactions contemplated
by this Agreement (including, without limitation, all salaries and expenses of its officers
and employees performing legal or accounting duties), the expense of any annual audit and
the fees and expenses incurred in connection with the listing of the Registrable Securities
on any securities exchange as required hereunder. In no event shall the Company be responsible
for any broker or similar commissions of any Holder or, except to the extent provided for
in the Transaction Documents, any legal fees or other costs of the Holders. |
5.1.
Indemnification by the Company. The Company shall, notwithstanding any termination of this Agreement, indemnify and hold
harmless each Holder, the officers, directors, members, partners, agents, brokers (including brokers who offer and sell Registrable Securities
as principal as a result of a pledge or any failure to perform under a margin call of Ordinary Shares), investment advisors and employees
(and any other Persons with a functionally equivalent role of a Person holding such titles, notwithstanding a lack of such title or any
other title) of each of them, each Person who controls any such Holder (within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act) and the officers, directors, members, shareholders, partners, agents and employees (and any other Persons with
a functionally equivalent role of a Person holding such titles, notwithstanding a lack of such title or any other title) of each such
controlling Person, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities,
costs (including, without limitation, reasonable attorneys’ fees) and expenses (collectively, “Losses”),
as incurred, arising out of or relating to (1) any untrue or alleged untrue statement of a material fact contained in a Registration
Statement, any Prospectus or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising
out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements
therein (in the case of any Prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading
or (2) any violation or alleged violation by the Company of the Securities Act, the Exchange Act or any state securities law, or any
rule or regulation thereunder, in connection with the performance of its obligations under this Agreement, except to the extent, but
only to the extent, that (i) such untrue statements or omissions are based solely upon information regarding such Holder furnished in
writing to the Company by such Holder expressly for use therein, or to the extent that such information relates to such Holder or such
Holder’s proposed method of distribution of Registrable Securities and was reviewed and expressly approved in writing by such Holder
expressly for use in a Registration Statement, such Prospectus or in any amendment or supplement thereto (it being understood that the
Holder has approved Annex 2.1.1 hereto for this purpose) or (ii) in the case of an occurrence of an event of the type specified in Section
3.4(iii)-(vi), the use by such Holder of an outdated, defective or otherwise unavailable Prospectus after the Company has notified such
Holder in writing that the Prospectus is outdated, defective or otherwise unavailable for use by such Holder and prior to the receipt
by such Holder of the Advice contemplated in Section 6.3. The Company shall notify the Holders promptly of the institution, threat or
assertion of any Proceeding arising from or in connection with the transactions contemplated by this Agreement of which the Company is
aware. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such indemnified
person and shall survive the transfer of any Registrable Securities by any of the Holders in accordance with Section 6.7.
5.2.
Indemnification by Holders. Each Holder shall, severally and not jointly, indemnify and hold harmless the Company, its
directors, officers, agents and employees, each Person who controls the Company (within the meaning of Section 15 of the Securities Act
and Section 20 of the Exchange Act), and the directors, officers, agents or employees of such controlling Persons, to the fullest extent
permitted by applicable law, from and against all Losses, as incurred, to the extent arising out of or based solely upon: any untrue
or alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus, or in any amendment or supplement
thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required
to be stated therein or necessary to make the statements therein (in the case of any Prospectus or supplement thereto, in light of the
circumstances under which they were made) not misleading (i) to the extent, but only to the extent, that such untrue statement or omission
is contained in any information so furnished in writing by such Holder to the Company expressly for inclusion in such Registration Statement
or such Prospectus or (ii) to the extent, but only to the extent, that such information relates to such Holder’s information provided
in the Selling Shareholder Questionnaire or the proposed method of distribution of Registrable Securities and was reviewed and expressly
approved in writing by such Holder expressly for use in a Registration Statement (it being understood that the Holder has approved Annex
2.1.1 hereto for this purpose), such Prospectus or in any amendment or supplement thereto. In no event shall the liability of a selling
Holder be greater in amount than the dollar amount of the proceeds (net of all expenses paid by such Holder in connection with any claim
relating to this Section 5 and the amount of any damages such Holder has otherwise been required to pay by reason of such untrue statement
or omission) received by such Holder upon the sale of the Registrable Securities included in the Registration Statement giving rise to
such indemnification obligation.
5.3.
Conduct of Indemnification Proceedings. If any Proceeding shall be brought or asserted against any Person entitled to indemnity
hereunder (an “Indemnified Party”), such Indemnified Party shall promptly notify the Person from whom indemnity
is sought (the “Indemnifying Party”) in writing, and the Indemnifying Party shall have the right to assume
the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all fees
and expenses incurred in connection with defense thereof, provided that the failure of any Indemnified Party to give such notice shall
not relieve the Indemnifying Party of its obligations or liabilities pursuant to this Agreement, except (and only) to the extent that
it shall be finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review)
that such failure shall have materially and adversely prejudiced the Indemnifying Party.
An
Indemnified Party shall have the right to employ separate counsel in any such Proceeding and to participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party
has agreed in writing to pay such fees and expenses, (2) the Indemnifying Party shall have failed promptly to assume the defense of such
Proceeding and to employ counsel reasonably satisfactory to such Indemnified Party in any such Proceeding, or (3) the named parties to
any such Proceeding (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party, and counsel to
the Indemnified Party shall reasonably believe that a material conflict of interest is likely to exist if the same counsel were to represent
such Indemnified Party and the Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing
that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to
assume the defense thereof and the reasonable fees and expenses of no more than one separate counsel shall be at the expense of the Indemnifying
Party). The Indemnifying Party shall not be liable for any settlement of any such Proceeding effected without its written consent, which
consent shall not be unreasonably withheld or delayed. No Indemnifying Party shall, without the prior written consent of the Indemnified
Party, effect any settlement of any pending Proceeding in respect of which any Indemnified Party is a party, unless such settlement includes
an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding.
Subject
to the terms of this Agreement, all reasonable fees and expenses of the Indemnified Party (including reasonable fees and expenses to
the extent incurred in connection with investigating or preparing to defend such Proceeding in a manner not inconsistent with this Section)
shall be paid to the Indemnified Party, as incurred, within ten Trading Days of written notice thereof to the Indemnifying Party, provided
that the Indemnified Party shall promptly reimburse the Indemnifying Party for that portion of such fees and expenses applicable to such
actions for which such Indemnified Party is finally determined by a court of competent jurisdiction (which determination is not subject
to appeal or further review) not to be entitled to indemnification hereunder.
5.4.
Contribution. If the indemnification under Section 5.1 or 5.2 is unavailable to an Indemnified Party or insufficient to
hold an Indemnified Party harmless for any Losses, then each Indemnifying Party shall contribute to the amount paid or payable by such
Indemnified Party, in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and Indemnified Party
in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations.
The relative fault of such Indemnifying Party and Indemnified Party shall be determined by reference to, among other things, whether
any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material
fact, has been taken or made by, or relates to information supplied by, such Indemnifying Party or Indemnified Party, and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount
paid or payable by a party as a result of any Losses shall be deemed to include, subject to the limitations set forth in this Agreement,
any reasonable attorneys’ or other fees or expenses incurred by such party in connection with any Proceeding to the extent such
party would have been indemnified for such fees or expenses if the indemnification provided for in this Section was available to such
party in accordance with its terms.
The
parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 5.4 were determined by pro rata
allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately
preceding paragraph. In no event shall the contribution obligation of a Holder of Registrable Securities be greater in amount than the
dollar amount of the proceeds (net of all expenses paid by such Holder in connection with any claim relating to this Section 5 and the
amount of any damages such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission) received by it upon the sale of the Registrable Securities giving rise to such contribution obligation.
The
indemnity and contribution agreements contained in this Section are in addition to any liability that the Indemnifying Parties may have
to the Indemnified Parties.
6.1.
Remedies. In the event of a breach by the Company or by a Holder of any of their respective obligations under this Agreement,
each Holder or the Company, as the case may be, in addition to being entitled to exercise all rights granted by law and under this Agreement,
including recovery of damages, shall be entitled to specific performance of its rights under this Agreement. Each of the Company and
each Holder agrees that monetary damages would not provide adequate compensation for any losses incurred by reason of a breach by it
of any of the provisions of this Agreement and hereby further agrees that, in the event of any action for specific performance in respect
of such breach, it shall not assert or shall waive the defense that a remedy at law would be adequate.
6.2.
No Piggyback on Registrations; Prohibition on Filing Other Registration Statements. Neither the Company nor any of its
security holders (other than the Holders in such capacity pursuant hereto) may include securities of the Company in any Registration
Statements other than the Registrable Securities. The Company shall not file any other registration statements until all Registrable
Securities are registered pursuant to a Registration Statement that is declared effective by the Commission, provided that this Section
6.2 shall not prohibit the Company from filing amendments to registration statements filed prior to the date of this Agreement.
6.3.
Discontinued Disposition. By its acquisition of Registrable Securities, each Holder agrees that, upon receipt of a notice
from the Company of the occurrence of any event of the kind described in Section 3.4(iii) through (vi), such Holder will forthwith discontinue
disposition of such Registrable Securities under a Registration Statement until it is advised in writing (the “Advice”)
by the Company that the use of the applicable Prospectus (as it may have been supplemented or amended) may be resumed. The Company will
use its best efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable. The Company agrees and acknowledges
that any periods during which the Holder is required to discontinue the disposition of the Registrable Securities hereunder shall be
subject to the provisions of Section 2.4.
6.4.
Piggy-Back Registrations. If, at any time during the Effectiveness Period, there is not an effective Registration Statement
covering all of the Registrable Securities and the Company shall determine to prepare and file with the Commission a registration statement
relating to an offering for its own account or the account of others under the Securities Act of any of its equity securities, other
than on Form S-4 or Form S-8 (each as promulgated under the Securities 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 Holder a written notice of such determination and,
if within fifteen days after the date of the delivery of such notice, any such Holder shall so request in writing, the Company shall
include in such registration statement all or any part of such Registrable Securities such Holder requests to be registered; provided,
however, that the Company shall not be required to register any Registrable Securities pursuant to this Section 6.4 that are eligible
for resale pursuant to Rule 144 (without volume restrictions and provided the Company is in compliance with the current public information
requirement under Rule 144) promulgated by the Commission pursuant to the Securities Act or that are the subject of a then effective
Registration Statement that is available for resales or other dispositions by such Holder.
6.5.
Amendments and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, unless the same shall be
in writing and signed by the Company and the Holders of 50.1% or more of the then outstanding Registrable Securities (for purposes of
clarification, this includes any Registrable Securities issuable upon exercise or conversion of any Security); provided that no such
amendment, action or omission that adversely affects, alters or changes the interests of any Holder in a manner disproportionate to the
other Holders shall be effective against such Holder without the prior written consent of such Holder. If a Registration Statement does
not register all of the Registrable Securities pursuant to a waiver or amendment done in compliance with the previous sentence, then
the number of Registrable Securities to be registered for each Holder shall be reduced pro rata among all Holders and each Holder shall
have the right to designate which of its Registrable Securities shall be omitted from such Registration Statement. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with respect to a matter that relates exclusively to the rights of
a Holder or some Holders and that does not directly or indirectly affect the rights of other Holders may be given only by such Holder
or Holders of all of the Registrable Securities to which such waiver or consent relates; provided, however, that the provisions
of this sentence may not be amended, modified, or supplemented except in accordance with the provisions of the first sentence of this
Section 6.5. 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 also is offered to all of the parties to this Agreement.
6.6.
Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall
be delivered as set forth in the Purchase Agreement.
6.7.
Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns
of each of the parties and shall inure to the benefit of each Holder. The Company may not assign (except by merger) its rights or obligations
hereunder without the prior written consent of all of the Holders of the then outstanding Registrable Securities. Each Holder may assign
their respective rights hereunder in the manner and to the Persons as permitted under the Purchase Agreement.
6.8.
No Inconsistent Agreements. The Company has not entered, as of the date hereof, nor shall the Company, 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 Holders in this Agreement or otherwise conflicts with the provisions hereof. Except as set forth on Schedule 6.8, the Company
has not previously entered into any agreement granting any registration rights with respect to any of its securities to any Person that
have not been satisfied in full.
6.9.
Execution and Counterparts. This Agreement may be executed in two or more counterparts, all of which when taken together
shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered
to the other party, it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered
by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party
executing (or on whose behalf such signature is executed) with the same force and effect as if such “.pdf” signature page
were an original thereof.
6.10.
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall
be determined in accordance with the provisions of the Purchase Agreement.
6.11.
Cumulative Remedies. The remedies provided herein are cumulative and not exclusive of any other remedies provided by law.
6.12.
Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction
to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall
remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would
have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
6.13.
Headings. The headings in this Agreement are for convenience only, do not constitute a part of the Agreement and shall
not be deemed to limit or affect any of the provisions hereof.
6.14.
Independent Nature of Holders’ Obligations and Rights. The obligations of each Holder hereunder are several and not
joint with the obligations of any other Holder hereunder, and no Holder shall be responsible in any way for the performance of the obligations
of any other Holder hereunder. Nothing contained herein or in any other agreement or document delivered at any closing, and no action
taken by any Holder pursuant hereto or thereto, shall be deemed to constitute the Holders as a partnership, an association, a joint venture
or any other kind of group or entity, or create a presumption that the Holders are in any way acting in concert or as a group or entity
with respect to such obligations or the transactions contemplated by this Agreement or any other matters, and the Company acknowledges
that the Holders are not acting in concert or as a group, and the Company shall not assert any such claim, with respect to such obligations
or transactions. Each Holder shall be entitled to protect and enforce its rights, including without limitation the rights arising out
of this Agreement, and it shall not be necessary for any other Holder 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 was solely in the control of the Company,
not the action or decision of any Holder, and was done solely for the convenience of the Company and not because it was required or requested
to do so by any Holder. It is expressly understood and agreed that each provision contained in this Agreement is between the Company
and a Holder, solely, and not between the Company and the Holders collectively and not between and among Holders.
[SMX
Registration Rights Agreement Signature Pages Follow]
[SMX
Registration Rights Agreement – Company Signature Page]
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the date first written above.
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SMX
(SECURITY MATTERS) PUBLIC LIMITED COMPANY |
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By: |
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Name: |
Haggai
Alon |
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Title: |
Chief
Executive Officer |
[SMX
Registration Rights Agreement – Holder Signature Page]
| Name
of Holder: |
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| Signature
of Authorized Signatory of Holder: |
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| Name
of Authorized Signatory: |
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| Title
of Authorized Signatory: |
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| Email
Address of Authorized Signatory: |
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Annex
2.1.1
Plan
of Distribution
Each
Selling Shareholder (the “Selling Shareholders”) of the securities and any of their pledgees, assignees and successors-in-interest
may, from time to time, sell any or all of their securities covered hereby on the principal Trading Market or any other stock exchange,
market or trading facility on which the securities are traded or in private transactions. These sales may be at fixed or negotiated prices.
A Selling Shareholder may use any one or more of the following methods when selling securities:
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● |
ordinary
brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
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● |
block
trades in which the broker-dealer will attempt to sell the securities as agent but may position and resell a portion of the block
as principal to facilitate the transaction; |
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● |
purchases
by a broker-dealer as principal and resale by the broker-dealer for its account; |
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● |
an
exchange distribution in accordance with the rules of the applicable exchange; |
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● |
privately
negotiated transactions; |
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● |
settlement
of short sales; |
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● |
in
transactions through broker-dealers that agree with the Selling Shareholders to sell a specified number of such securities at a stipulated
price per security; |
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● |
through
the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; |
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● |
a
combination of any such methods of sale; or |
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● |
any
other method permitted pursuant to applicable law. |
The
Selling Shareholders may also sell securities under Rule 144 or any other exemption from registration under the Securities Act of 1933,
as amended (the “Securities Act”), if available, rather than under this prospectus.
Broker-dealers
engaged by the Selling Shareholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions
or discounts from the Selling Shareholders (or, if any broker-dealer acts as agent for the purchaser of securities, from the purchaser)
in amounts to be negotiated, but, except as set forth in a supplement to this Prospectus, in the case of an agency transaction not in
excess of a customary brokerage commission in compliance with FINRA Rule 2121; and in the case of a principal transaction a markup or
markdown in compliance with FINRA Rule 2121.
In
connection with the sale of the securities or interests therein, the Selling Shareholders may enter into hedging transactions with broker-dealers
or other financial institutions, which may in turn engage in short sales of the securities in the course of hedging the positions they
assume. The Selling Shareholders may also sell securities short and deliver these securities to close out their short positions, or loan
or pledge the securities to broker-dealers that in turn may sell these securities. The Selling Shareholders may also enter into option
or other transactions with broker-dealers or other financial institutions or create one or more derivative securities which require the
delivery to such broker-dealer or other financial institution of securities offered by this prospectus, which securities such broker-dealer
or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The
Selling Shareholders and any broker-dealers or agents that are involved in selling the securities may be deemed to be “underwriters”
within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers
or agents and any profit on the resale of the securities purchased by them may be deemed to be underwriting commissions or discounts
under the Securities Act. Each Selling Shareholder has informed the Company that it does not have any written or oral agreement or understanding,
directly or indirectly, with any person to distribute the securities.
The
Company is required to pay certain fees and expenses incurred by the Company incident to the registration of the securities. The Company
has agreed to indemnify the Selling Shareholders against certain losses, claims, damages and liabilities, including liabilities under
the Securities Act.
We
agreed to keep this prospectus effective until the earlier of (i) the date on which the securities may be resold by the Selling Shareholders
without registration and without regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for
the Company to be in compliance with the current public information under Rule 144 under the Securities Act or any other rule of similar
effect or (ii) all of the securities have been sold pursuant to this prospectus or Rule 144 under the Securities Act or any other rule
of similar effect. The resale securities will be sold only through registered or licensed brokers or dealers if required under applicable
state securities laws. In addition, in certain states, the resale securities covered hereby may not be sold unless they have been registered
or qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and is
complied with.
Under
applicable rules and regulations under the Exchange Act, any person engaged in the distribution of the resale securities may not simultaneously
engage in market making activities with respect to the Ordinary Shares for the applicable restricted period, as defined in Regulation
M, prior to the commencement of the distribution. In addition, the Selling Shareholders will be subject to applicable provisions of the
Exchange Act and the rules and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of the
Ordinary Shares by the Selling Shareholders or any other person. We will make copies of this prospectus available to the Selling Shareholders
and have informed them of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including
by compliance with Rule 172 under the Securities Act).
Annex
2.1.2
SELLING
SHAREHOLDERS
The
Ordinary Shares being offered by the selling shareholders are those previously issued to the selling shareholders, and those issuable
to the selling shareholders, upon exercise of the warrants. For additional information regarding the issuances of those Ordinary Shares
and warrants, see “Private Placement of Ordinary Shares and Warrants” above. We are registering the Ordinary Shares in order
to permit the selling shareholders to offer the Ordinary Shares for resale from time to time. Except for the ownership of the Ordinary
Shares and the warrants, 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 of the Ordinary Shares by each of
the selling shareholders. The second column lists the number of Ordinary Shares beneficially owned by each selling shareholder, based
on its ownership of the Ordinary Shares and warrants, as of [●], 2024, assuming exercise of the warrants held by the selling shareholders
on that date, without regard to any limitations on exercises.
The
third column lists the Ordinary Shares being offered by this prospectus by the selling shareholders.
In
accordance with the terms of a registration rights agreement with the selling shareholders, this prospectus generally covers the resale
of the sum of (i) the number of Ordinary Shares issued to the selling shareholders in the “Private Placement of Ordinary Shares
and Warrants” described above and (ii) the maximum number of Ordinary Shares issuable upon exercise of the related warrants, determined
as if the outstanding warrants were exercised in full as of the trading day immediately preceding the date this registration statement
was initially filed with the SEC, each as of the trading day immediately preceding the applicable date of determination and all subject
to adjustment as provided in the registration rights agreement, without regard to any limitations on the exercise of the warrants. The
fourth column assumes the sale of all of the Ordinary Shares offered by the selling shareholders pursuant to this prospectus.
Under
the terms of the warrants, a selling shareholder may not exercise the warrants to the extent such exercise would cause such selling shareholder,
together with its affiliates and attribution parties, to beneficially own a number of Ordinary Shares which would exceed 4.99% or 9.99%,
as applicable, of our then outstanding Ordinary Shares following such exercise, excluding for purposes of such determination Ordinary
Shares issuable upon exercise of the warrants that have not been exercised. The number of Ordinary Shares in the second column does not
reflect this limitation. The selling shareholders may sell all, some or none of their Ordinary 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
Owned
After
Offering |
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Annex
3.1
SMX
(SECURITY MATTERS) PUBLIC LIMITED COMPANY
Selling
Shareholder Notice and Questionnaire
The
undersigned beneficial owner of Ordinary Shares (the “Registrable Securities”) of SMX (Security Matters) Public
Limited Company, an Irish corporation (the “Company”), understands that the Company has filed or intends to
file with the Securities and Exchange Commission (the “Commission”) a registration statement (the “Registration
Statement”) for the registration and resale under Rule 415 of the Securities Act of 1933, as amended (the “Securities
Act”), of the Registrable Securities, in accordance with the terms of the Registration Rights Agreement (the “Registration
Rights Agreement”) to which this document is annexed. A copy of the Registration Rights Agreement is available from the
Company upon request at the address set forth below. All capitalized terms not otherwise defined herein shall have the meanings ascribed
thereto in the Registration Rights Agreement.
Certain
legal consequences arise from being named as a selling shareholder in the Registration Statement and the related prospectus. Accordingly,
holders and beneficial owners of Registrable Securities are advised to consult their own securities law counsel regarding the consequences
of being named or not being named as a selling shareholder in the Registration Statement and the related prospectus.
NOTICE
The
undersigned beneficial owner (the “Selling Shareholder”) of Registrable Securities hereby elects to include
the Registrable Securities owned by it in the Registration Statement.
The
undersigned hereby provides the following information to the Company and represents and warrants that such information is accurate:
QUESTIONNAIRE
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(a) |
Full
Legal Name of Selling Shareholder |
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(b) |
Full
Legal Name of Registered Holder (if not the same as (a) above) through which Registrable Securities are held: |
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(c) |
Full
Legal Name of Natural Control Person (which means a natural person who directly or indirectly alone or with others has power to vote
or dispose of the securities covered by this Questionnaire): |
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| 2. |
Address
for Notices to Selling Shareholder: |
| Telephone: |
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| Email: |
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| Contact
Person: |
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(a) |
Are
you a broker-dealer? |
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Yes ☐ No ☐ |
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(b) |
If
“yes” to Section 3(a), did you receive your Registrable Securities as compensation for investment banking services to
the Company? |
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Yes ☐ No ☐ |
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Note: |
If
“no” to Section 3(b), the Commission’s staff has indicated that you should be identified as an underwriter in the
Registration Statement. |
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(c) |
Are
you an affiliate of a broker-dealer? |
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Yes ☐ No ☐ |
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(d) |
If
you are an affiliate of a broker-dealer, do you certify that you purchased the Registrable Securities in the ordinary course of business,
and at the time of the purchase of the Registrable Securities to be resold, you had no agreements or understandings, directly or
indirectly, with any person to distribute the Registrable Securities? |
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Yes ☐ No ☐ |
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Note:
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If
“no” to Section 3(d), the Commission’s staff has indicated that you should be identified as an underwriter in the
Registration Statement. |
| 4. |
Beneficial
Ownership of Securities of the Company Owned by the Selling Shareholder. |
Except
as set forth below in this Item 4, the undersigned is not the beneficial or registered owner of any securities of the Company other than
the securities issuable pursuant to the Purchase Agreement.
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(a) |
Type
and Amount of other securities beneficially owned by the Selling Shareholder: |
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| 5. |
Relationships
with the Company: |
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Except
as set forth below, neither the undersigned nor any of its affiliates, officers, directors or principal equity holders (owners of
5% of more of the equity securities of the undersigned) has held any position or office or has had any other material relationship
with the Company (or its predecessors or affiliates) during the past three years. |
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State
any exceptions here: |
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The
undersigned agrees to promptly notify the Company of any material inaccuracies or changes in the information provided herein that may
occur subsequent to the date hereof at any time while the Registration Statement remains effective; provided, that the undersigned shall
not be required to notify the Company of any changes to the number of securities held or owned by the undersigned or its affiliates.
By
signing below, the undersigned consents to the disclosure of the information contained herein in its answers to Items 1 through 5 and
the inclusion of such information in the Registration Statement and the related prospectus and any amendments or supplements thereto.
The undersigned understands that such information will be relied upon by the Company in connection with the preparation or amendment
of the Registration Statement and the related prospectus and any amendments or supplements thereto.
IN
WITNESS WHEREOF the undersigned, by authority duly given, has caused this Notice and Questionnaire to be executed and delivered either
in person or by its duly authorized agent.
| Date:
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Beneficial |
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Owner: |
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By: |
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Name: |
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Title: |
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PLEASE
EMAIL A .PDF COPY OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE TO HAGGAI@SECURITYMATTERSLTD.COM, WITH A COPY TO SFOX@RMFPC.COM.
Exhibit
99.4
NEITHER
THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE
OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
SERIES
A PIPE COMMON WARRANT TO PURCHASE ORDINARY SHARES
SMX
(SECURITY MATTERS) PUBLIC LIMITED COMPANY
| Warrant
Shares: [●] |
Initial
Exercise Date: September 11, 2024 |
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Issuance
Date: September 12, 2024 |
THIS
WARRANT TO PURCHASE ORDINARY SHARES (the “Warrant”) certifies that, for value received, [●] or its
assigns (the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions
hereinafter set forth, at any time on or after the Initial Exercise Date and on or prior to 5:00 p.m. (New York City time) on March 12,
2030 (the “Termination Date”) but not thereafter, to subscribe for and purchase from SMX (Security Matters)
Public Limited Company, an Irish corporation (the “Company”), up to [●] ordinary shares (as subject to
adjustment hereunder, the “Warrant Shares”). The purchase price of one (1) Ordinary Share under this Warrant
shall be equal to the Exercise Price, as defined in Section 2.2.
| 1. | Definitions.
In addition to the terms defined elsewhere in this Warrant or in the Securities Purchase
Agreement dated September 11, 2024 by and among the Company and the investors (the
“Purchasers”) referred to therein (the “Securities
Purchase Agreement”), the following terms have the meanings indicated in this
Section 1: |
1.1. “Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
1.2. “Bid
Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Ordinary
Shares are then listed or quoted on a Trading Market, the bid price of the Ordinary Shares for the time in question (or the nearest preceding
date) on the Trading Market on which the Ordinary Shares are then listed or quoted as reported by Bloomberg L.P. (based on a Trading
Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the VWAP of
the Ordinary Shares for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Ordinary Shares are not
then listed or quoted for trading on OTCQB or OTCQX and if prices for the Ordinary Shares are then reported on the Pink Open Market (or
a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per Ordinary Share so reported,
or (d) in all other cases, the fair market value of an Ordinary Share as determined by an independent appraiser selected in good faith
by the Holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company, the fees and expenses
of which shall be paid by the Company.
1.3. “Board
of Directors” means the board of directors of the Company.
1.4. “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.
1.5. “Commission”
means the United States Securities and Exchange Commission.
1.6. “Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
1.7.
“Floor Price” means $0.49, a price equal to twenty percent (20%) of the Nasdaq Minimum Price prior to
pricing on the date of the Securities Purchase Agreement, as defined in Nasdaq Listing Rule 5635(d)(1)(A) (which price shall be appropriately
adjusted for any share dividend, share split, share combination, reclassification or similar transaction following the date of the Securities
Purchase Agreement).
1.8. “Ordinary
Share” means the ordinary shares of the Company, $0.165 par value per share, and any other class of securities into which
such securities may hereafter be reclassified or changed.
1.9. “Ordinary
Share Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire
at any time Ordinary Shares, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that
is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Ordinary Shares.
1.10. “Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
1.11. “Registrable
Securities” shall have the meaning ascribed to such term in the Registration Rights Agreement.
1.12. “Registration
Rights Agreement” means that certain Registration Rights Agreement dated as of the Subscription Date by and among the Company
and the Purchasers.
1.13. “Registration
Statement” means a registration statement meeting the requirements set forth in the Registration Rights Agreement and covering
the resale by the Purchasers of the Registrable Securities.
1.14. “Reset
Date” means following the close of trading on the earliest of (i) the date on which for ten (10) consecutive Trading Days
all Registrable Securities have become and remained registered pursuant to an effective Registration Statement that is available for
the resale of all Registrable Securities, provided, however, if less than all Registrable Securities have become registered for resale
on the date that a Registration Statement is declared effective, the Holder with respect to itself only, shall have the right in its
sole and absolute discretion to deem such condition satisfied, including with regard only to the Registrable Securities that have been
so registered, (ii) the date on which the Holder, for ten (10) consecutive Trading Days can sell all Registrable Securities pursuant
to Rule 144 without restriction or limitation and the Company has not had a Public Information Failure or (iii) twelve (12) months and
ten (10) Trading Days immediately following the Issuance Date.
1.15. “Reset
Period” means the period commencing on the tenth (10th) Trading Day immediately preceding the Reset Date and ending after
the close of trading on the Reset Date.
1.16. “Reset
Price” means the greater of (i) 90% of the lowest single day VWAP of the Ordinary Shares during the Reset Period and (ii)
the Floor Price (as adjusted for forward and reverse share splits, recapitalizations, share dividends and the like after the execution
of the Securities Purchase Agreement).
1.17. “Reset
Share Amount” means the number of Ordinary Shares equal to the number (if positive) obtained by subtracting (I) the sum
of (x) the number of Ordinary Shares purchased by the Holder on the Closing Date (as adjusted for forward and reverse share splits, recapitalizations,
share dividends and the like after the execution of the Securities Purchase Agreement) and (y) the number of Ordinary Shares issuable
upon exercise in full of any Pre-funded Warrants (without regard to any limitation on exercise contained therein) purchased by the Holder
on the Closing Date (as adjusted for forward and reverse share splits, recapitalizations, share dividends and the like after the execution
of the Securities Purchase Agreement), from (II) the quotient determined by dividing (x) the sum of (i) the aggregate Purchase Price
paid by the Holder on the Closing Date and (ii) the aggregate of all exercise prices paid or payable by the Holder upon exercise in full
of the Pre-Funded Warrants, by (y) the applicable Reset Price determined as of the Reset Date.
1.18. “Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
1.19. “Subsidiary”
means any subsidiary of the Company and shall, where applicable, also include any direct or indirect subsidiary of the Company formed
or acquired after the date hereof.
1.20. “Trading
Day” means a day on which the Ordinary Shares are traded on a Trading Market.
1.21. “Trading
Market” means any of the following markets or exchanges on which the Ordinary Shares are listed or quoted for trading on
the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New
York Stock Exchange, OTCQB or OTCQX (or any successors to any of the foregoing).
1.22. “Transaction
Documents” means the Securities Purchase Agreement dated September 10, 2024, these Warrants, such other Warrants as contemplated
in the Securities Purchase Agreement, the Registration Rights Agreement, the Placement Agent Agreement, the Lock-Up Agreement and all
exhibits and schedules thereto and hereto and any other documents or agreements executed in connection with the transactions contemplated
hereunder.
1.23. “Transfer
Agent” means Continental Stock Transfer & Trust Company, the current transfer agent of the Company, with a mailing
address of 1 State Street, 30th Floor, New York, NY 10004-1561, and any successor transfer agent of the Company.
1.24. “VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Ordinary Shares are then listed
or quoted on a Trading Market, the daily volume weighted average price of the Ordinary Shares for such date (or the nearest preceding
date) on the Trading Market on which the Ordinary Shares are then listed or quoted as reported by Bloomberg L.P. (based on a Trading
Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume
weighted average price of the Ordinary Shares for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the
Ordinary Shares are not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Ordinary Shares are then reported on
the Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price
per Ordinary Share so reported, or (d) in all other cases, the fair market value of an Ordinary Share as determined by an independent
appraiser selected in good faith by the holders of a majority in interest of the Warrants then outstanding and reasonably acceptable
to the Company, the fees and expenses of which shall be paid by the Company.
1.25. “Warrants”
means this Warrant and other Ordinary Shares purchase warrants issued by the Company pursuant to the Securities Purchase Agreement.
2.1. Exercise
of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times
on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed PDF copy submitted
by e-mail (or e-mail attachment) of the Notice of Exercise substantially in the form attached hereto as Exhibit 2.1 (the “Notice
of Exercise”). Within the earlier of (i) one (1) Trading Day and (ii) the number of Trading Days comprising the Standard
Settlement Period (as defined in Section 2.4.1 herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate
Exercise Price for the Warrant Shares specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn
on a United States bank unless the cashless exercise procedure specified in Section 2.3 below is specified in the applicable Notice of
Exercise. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization)
of any Notice of Exercise be required. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically
surrender this Warrant to the Company until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has
been exercised in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading
Days after the date on which the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in
purchases of a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number
of Warrant Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company
shall maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection
to any Notice of Exercise within one (1) Trading Day of receipt of such notice. The Holder and any assignee, by acceptance of this
Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant
Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated
on the face hereof.
2.2.
Exercise Price. The exercise price per Warrant Share shall be $1.00, subject to adjustment hereunder (the “Exercise
Price”).
2.3. Cashless
Exercise. If at the time of exercise hereof there is no effective registration statement registering, or the prospectus contained
therein is not available for the issuance of the Warrant Shares to the Holder or the resale of the Warrant Shares by the Holder, then
this Warrant may also be exercised, in whole or in part, at such time by means of a “cashless exercise” in which the Holder
shall be entitled to receive a number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
| (A)
= | as
applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable
Notice of Exercise if such Notice of Exercise is (1) both executed and delivered pursuant
to Section 2.1 hereof on a day that is not a Trading Day or (2) both executed and delivered
pursuant to Section 2.1 hereof on a Trading Day prior to the opening of “regular trading
hours” (as defined in Rule 600(b) 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 Notice of Exercise or (z) the Bid Price
of the Ordinary Shares on the principal Trading Market as reported by Bloomberg L.P. as of
the time of the Holder’s execution of the applicable Notice of Exercise if such Notice
of Exercise is executed during “regular trading hours” on a Trading Day and is
delivered within two (2) hours thereafter (including until two (2) hours after the close
of “regular trading hours” on a Trading Day) pursuant to Section 2.1 hereof or
(iii) the VWAP on the date of the applicable Notice of Exercise if the date of such Notice
of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered pursuant
to Section 2.1 hereof after the close of “regular trading hours” on such Trading
Day; |
| (B)
= | the
Exercise Price of this Warrant, as adjusted hereunder; and |
| (X)
= | the
number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance
with the terms of this Warrant if such exercise were by means of a cash exercise rather than
a cashless exercise. |
If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Rule 144(d)(3),
the holding period of the Warrant Shares being issued may be tacked on to the holding period of this Warrant. Without limiting any other
provision in the Transaction Documents, assuming (i) the Holder is not an Affiliate of the Company, and (ii) all of the applicable conditions
of Rule 144 promulgated under the Securities Act with respect to Holder and the Warrant Shares are met in the case of such a cashless
exercise, the Company agrees that the Company will cause the removal of the legend from such Warrant Shares (including by delivering
an opinion of the Company’s counsel to the Company’s transfer agent at its own expense to ensure the foregoing), and the
Company agrees that the Holder is under no obligation to sell the Warrant Shares issuable upon the exercise of the Warrant prior to removing
the legend. The Company agrees not to take any position contrary to this Section 2.3.
Notwithstanding
anything herein to the contrary, on the Termination Date, this Warrant shall be automatically exercised via cashless exercise pursuant
to this Section 2.3.
2.4.
Mechanics of Exercise.
2.4.1. Delivery
of Warrant Shares upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer
Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust
Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant
in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale
of the Warrant Shares by Holder or (B) the Warrant Shares are eligible for resale by the Holder without volume or manner-of-sale limitations
pursuant to Rule 144 (assuming cashless exercise of the Warrants), and otherwise by physical delivery of a certificate or by electronic
delivery (at the election of the Holder), for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise
to the address specified by the Holder in the Notice of Exercise by the date that is the earlier of (i) one (1) Trading Day after the
delivery to the Company of the Notice of Exercise and (ii) the number of Trading Days comprising the Standard Settlement Period after
the delivery to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery Date”). Upon
delivery of the Notice of Exercise, 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 of delivery of the Warrant Shares, provided
that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received within the earlier of (i) one
(1) Trading Day and (ii) the number of Trading Days comprising the Standard Settlement Period following delivery of the Notice of Exercise.
Notwithstanding anything herein to the contrary, upon delivery of the Notice of Exercise, the Holder shall be deemed for purposes of
Regulation SHO under the Exchange Act to have become the holder of the Warrant Shares irrespective of the date of delivery of the Warrant
Shares. If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant
Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant
Shares subject to such exercise (based on the VWAP of the Ordinary Shares on the date of the applicable Notice of Exercise), $10 per
Trading Day (increasing to $20 per Trading Day on the third (3rd) Trading Day after the Warrant Share Delivery Date) for each Trading
Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees
to maintain a Transfer Agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As
used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading
Days, on the Company’s primary Trading Market with respect to the Ordinary Shares as in effect on the date of delivery of the Notice
of Exercise. Notwithstanding the foregoing, with respect to any Notice(s) of Exercise delivered on or prior to 12:00 p.m. (New York City
time) on the Initial Exercise Date, which may be delivered at any time after the time of execution of the Securities Purchase Agreement,
the Company agrees to deliver the Warrant Shares subject to such notice(s) by 4:00 p.m. (New York City time) on the Initial Exercise
Date and the Initial Exercise Date shall be the Warrant Share Delivery Date for purposes hereunder, provided that payment of the aggregate
Exercise Price (other than in the case of a cashless exercise) is received by such Warrant Share Delivery Date.
2.4.2. Delivery
of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder
and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing
the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other
respects be identical with this Warrant.
2.4.3. Rescission
Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2.4.1
by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
2.4.4. Compensation
for Buy-In on Failure to Timely Deliver Warrant Shares upon Exercise. In addition to any other rights available to the Holder,
if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions of Section
2.4.1 above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required by its
broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, Ordinary Shares
to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise (a
“Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s
total purchase price (including brokerage commissions, if any) for the Ordinary Shares so purchased exceeds (y) the amount obtained by
multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise at
issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B) at the option of the
Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise was not honored and
return any amount received by the Company in respect of the Exercise Price for those Warrant Shares (in which case such exercise shall
be deemed rescinded) or deliver to the Holder the number of Ordinary Shares that would have been issued had the Company timely complied
with its exercise and delivery obligations hereunder. For example, if the Holder purchases Ordinary Shares having a total purchase price
of $11,000 to cover a Buy-In with respect to an attempted exercise of Ordinary Shares with an aggregate sale price giving rise to such
purchase obligation of $10,000, under clause (A) of the immediately preceding sentence the Company shall be required to pay the Holder
$1,000. The Holder shall provide the Company written notice indicating the amounts payable to the Holder in respect of the Buy-In and,
upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit a Holder’s right to pursue any other
remedies available to 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 Ordinary Shares upon exercise of the Warrant as required pursuant
to the terms hereof.
2.4.5. No
Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of
this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company
shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied
by the Exercise Price or round up to the next whole share.
2.4.6. Charges,
Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other
incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company, and
such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided,
however, that, in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when
surrendered for exercise shall be accompanied by the Assignment Form attached hereto as Exhibit 2.4.6 duly executed by the Holder
and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental
thereto. The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all fees to the
Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day electronic
delivery of the Warrant Shares.
2.4.7. Closing
of Books. The Company will not close its shareholder books or records in any manner which prevents the timely exercise of this
Warrant, pursuant to the terms hereof.
2.5. Holder’s
Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise
any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance after exercise
as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other Persons acting
as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)),
would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the
number of Ordinary Shares beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of Ordinary
Shares issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of
Ordinary Shares which would be issuable upon (i) exercise of the remaining, unexercised portion of this Warrant beneficially owned by
the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion
of any other securities of the Company (including, without limitation, any other Ordinary Share Equivalents) subject to a limitation
on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its Affiliates or Attribution
Parties. Except as set forth in the preceding sentence, for purposes of this Section 2.5, beneficial ownership shall be calculated in
accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged by the
Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act
and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the limitation
contained in this Section 2.5 applies, the determination of whether this Warrant is exercisable (in relation to other securities owned
by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable shall be in the
sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination of whether
this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties)
and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company shall
have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status as contemplated
above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder.
For purposes of this Section 2.5, in determining the number of outstanding Ordinary Shares, a Holder may rely on the number of outstanding
Ordinary Shares as reflected in (A) the Company’s most recent periodic or annual report filed with the Commission, as the case
may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company or the Transfer Agent
setting forth the number of Ordinary Shares outstanding. Upon the written or oral request of a Holder, the Company shall within one (1)
Trading Day confirm orally and in writing 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 or its Affiliates or Attribution Parties since the date as of which such number of outstanding Ordinary Shares was reported.
The “Beneficial Ownership Limitation” shall be 4.99% (or, upon election by a Holder prior to the issuance of
any Warrants, 9.99%) of the number of Ordinary Shares outstanding immediately after giving effect to the issuance of Ordinary Shares
issuable upon exercise of this Warrant. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation
provisions of this Section 2.5, provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of Ordinary
Shares outstanding immediately after giving effect to the issuance of Ordinary Shares upon exercise of this Warrant held by the Holder
and the provisions of this Section 2.5 shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective
until the 61st day after such notice is delivered to the Company. The provisions of this paragraph shall be construed and
implemented in a manner otherwise than in strict conformity with the terms of this Section 2.5 to correct this paragraph (or any portion
hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes
or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply
to a successor holder of this Warrant.
3.1. Share
Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a share dividend or otherwise makes
a distribution or distributions on Ordinary Shares or any other equity or equity equivalent securities payable in Ordinary Shares (which,
for avoidance of doubt, shall not include any Ordinary Shares issued by the Company upon exercise of this Warrant), (ii) subdivides outstanding
Ordinary Shares into a larger number of shares, (iii) combines (including by way of reverse share split) outstanding Ordinary Shares
into a smaller number of shares, or (iv) issues by reclassification of Ordinary Shares any shares of share capital of the Company, then
in each case the Exercise Price shall be multiplied by a fraction of which the numerator shall be the number of Ordinary Shares (excluding
treasury shares, if any) outstanding immediately before such event and of which the denominator shall be the number of Ordinary Shares
outstanding immediately after such event, and the number of Shares issuable upon exercise of this Warrant shall be proportionately adjusted
such that the aggregate Exercise Price of this Warrant shall remain unchanged. Any adjustment made pursuant to this Section 3.1 shall
become effective immediately after the record date for the determination of shareholders entitled to receive such dividend or distribution
and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.
3.2. Subsequent
Equity Sales. If, at any time while this Warrant is outstanding (such period, the “Adjustment Period”),
the Company issues, sells, enters into an agreement to sell, or grants any option to purchase, or sells, enters into an agreement to
sell, or grants any right to reprice, or otherwise disposes of or issues (or announces any offer, sale, grant or any option to purchase
or other disposition), or, in accordance with this Section 3.2, is deemed to have issued or sold, any Ordinary Shares or Ordinary Share
Equivalents for a consideration per share less than a price equal to the Exercise Price in effect immediately prior to such issue or
sale or deemed issuance or sale (such Exercise Price then in effect is referred to as the “Applicable Price”)
(the foregoing a “Dilutive Issuance”), then simultaneously with the consummation (or, if earlier, the announcement)
of such Dilutive Issuance, the Exercise Price then in effect shall be reduced to an amount equal to 90% of the lower of (a) the Dilutive
Issuance price or (b) the lowest VWAP during the five (5) consecutive Trading Days immediately following the Dilutive Issuance (such
lower price, the “Base Share Price”) and the number of Warrant Shares issuable hereunder shall be proportionately
increased such that the aggregate Exercise Price of this Warrant on the Issuance Date for the Warrant Shares then outstanding shall remain
unchanged; provided that the reduced Exercise Price shall not be less than the Floor Price. If the Company enters into a Variable Rate
Transaction, the Company shall be deemed to have issued Ordinary Shares or Ordinary Share Equivalents at the lowest possible price, conversion
price or exercise price at which such securities may be issued, converted or exercised. Notwithstanding the foregoing, no adjustments
shall be made, paid or issued under this Section 3.2 in respect of an Exempt Issuance. For the avoidance of doubt, in the event the Exercise
Price has been adjusted pursuant to this Section 3.2 and the Dilutive Issuance that triggered such adjustment does not occur, is not
consummated, is unwound or is cancelled after the facts for any reason whatsoever, in no event shall the Exercise Price be readjusted
to the Exercise Price that would have been in effect if such Dilutive Issuance had not occurred or been consummated. For all purposes
of the foregoing, the following shall be applicable:
3.2.1. Issuance
of Options. If, during the Adjustment Period, the Company in any manner grants or sells any Options and the lowest price per
share for which one Ordinary Share is issuable upon the exercise of any such Option or upon conversion, exercise or exchange of any convertible
securities (“Convertible Securities”) issuable upon exercise of any such Option (such Ordinary Shares issuable
upon such exercise of any Option or upon conversion, exercise or exchange of any Convertible Securities, the “Convertible
Securities Shares”) is less than the Applicable Price, then such Ordinary Shares shall be deemed to be outstanding and
to have been issued and sold by the Company at the time of the granting or sale of such Option for such price per share. For purposes
of this Section 3.2.1, the “lowest price per share for which one Ordinary Share is 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” shall be equal
to (A) the sum of (1) the lowest amount of consideration (if any) received or receivable by the Company with respect to any one Convertible
Securities Share upon the granting 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 and (2) the lowest exercise price set forth in such Option for which one
Convertible Securities Share is 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, minus (B) the sum of all amounts paid or payable to the holder of such Option (or
any other Person), with respect to any one Convertible Securities Share, upon the granting 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 plus the value of
any other consideration received or receivable by, or benefit conferred on, the holder of such Option (or any other Person), with respect
to any one Convertible Securities Share. Except as contemplated below, no further adjustment of the Exercise Price shall be made upon
the actual issuance of such Convertible Securities Share or of such Convertible Securities upon the exercise of such Options or upon
the actual issuance of such Convertible Securities Share upon conversion, exercise or exchange of such Convertible Securities.
3.2.2. Issuance
of Convertible Securities. If, during the Adjustment Period, the Company in any manner issues or sells any Convertible Securities
and the lowest price per share for which one Convertible Securities Share is issuable upon the conversion, exercise or exchange thereof
is less than the Applicable Price, then such Convertible Securities 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 of such Convertible Securities for such price per share. For the purposes of
this Section 3.2.2, the “lowest price per share for which one Convertible Securities Share is issuable upon the conversion, exercise
or exchange thereof” shall be equal to (A) the sum of (1) the lowest amount of consideration (if any) received or receivable by
the Company with respect to one Convertible Securities Share upon the issuance or sale of the Convertible Security and upon conversion,
exercise or exchange of such Convertible Security and (2) the lowest conversion price set forth in such Convertible Security for which
one Convertible Securities Share is issuable upon conversion, exercise or exchange thereof, minus (B) the sum of all amounts paid or
payable to the holder of such Convertible Security (or any other Person), with respect to any one Convertible Securities Share, upon
the issuance or sale 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), with respect to any one Convertible Securities Share. Except as contemplated
below, no further adjustment of the Exercise Price shall be made upon the actual issuance of such Convertible Securities Share upon conversion,
exercise or exchange of such Convertible Securities, and if any such issue or sale of such Convertible Securities is made upon exercise
of any Options for which adjustment of the Exercise Price has been or is to be made pursuant to other provisions of this Section 3.2,
except as contemplated below, no further adjustment of the Exercise Price shall be made by reason of such issue or sale.
3.2.3. Change
in Option Price or Rate of Conversion. If, during the Adjustment Period, 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 3.1), 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 3.2.3, if the terms of any Option or Convertible Security that was outstanding as of the date of issuance
of this Warrant are increased or decreased in the manner described in the immediately preceding sentence, then such Option or Convertible
Security and the Convertible Securities Share 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 3.2 shall be made if such adjustment would
result in an increase of the Exercise Price then in effect.
3.2.4. Calculation
of Consideration Received. If any Option or Convertible Security is issued in connection with the issuance or sale or deemed
issuance or sale of any other securities of the Company (the “Primary Security”, and such Option or Convertible
Security, the “Secondary Securities” and together with the Primary Security, each a “Unit”),
together comprising one integrated transaction, the aggregate consideration per share with respect to such Primary Security shall be
deemed to be the lowest 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 3.2.1 or 3.2.2 above and (z) the lowest VWAP of the Ordinary Shares on any Trading Day during the five (5)
consecutive Trading Days 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 (5) Trading Day period). 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 cash 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 market 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 market 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 market 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.
3.2.5. Record
Date. If, during the Adjustment Period, the Company takes a record of shareholders 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 issue or sale of 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).
3.3. Exercise
Price and Warrant Shares Reset.
3.3.1. Warrant
Shares Reset Process. On the Reset Date, the Exercise Price shall be adjusted to equal the lower of (i) the Exercise Price then
in effect and (ii) the Reset Price. Upon such reset of the Exercise Price pursuant to this Section 3.3.1, the number of Warrant Shares
issuable upon exercise of this Warrant shall be increased such that the aggregate Exercise Price payable hereunder, after taking into
account the decrease in the Exercise Price, shall be equal to the aggregate Exercise Price on the Issuance Date (adjusted for any Warrants
exercised or sold by the Holder prior to such Reset Date) for the Warrant Shares then outstanding, subject to adjustment for any prior
exercises pursuant to Section 3.3.2 or any partial resets pursuant to Section 3.3.3, as applicable.
3.3.2. Exercise
Prior to Reset Date. Notwithstanding the foregoing, if a Holder requests to exercise this Warrant, in whole or in part, prior
to the Reset Date on any given date on which (i) the exercised Warrant Shares are registered pursuant to an effective Registration Statement
that is available for the resale of such Warrant Shares, (ii) the Holder can sell the exercised Warrant Shares pursuant to Rule 144 without
restriction or limitation and the Company has not had a Public Information Failure or (iii) twelve (12) months immediately following
the Issuance Date (any such date, an “Exercise Date”), then solely with respect to such portion of this Warrant
being exercised on such applicable Exercise Date, (a) such applicable Reset Date shall be deemed to mean the Exercise Date, (b) such
applicable Reset Period shall be deemed to have commenced on the applicable date set forth in clause (i), (ii) or (iii) hereof and ended
following the close of trading on the Trading Day immediately prior to the Exercise Date and (c) the applicable Reset Price and Reset
Share Amount for such exercised Warrants shall be calculated pursuant to Section 3.3. For the avoidance of doubt, following the calculation
of the Reset Price and Reset Share Amount pursuant to this Section 3.3.2, the Company’s obligations with regard to such exercised
Warrants shall be deemed satisfied and no additional Reset Price and Reset Share Amount shall apply to such exercised Warrants.
3.3.3. Partial
Reset. If less than all of the Registrable Securities have been registered pursuant to clause (i) of the definition of Reset
Date and a Holder has deemed the condition satisfied as to such Registrable Securities, then the Reset Date shall apply only to such
portion of the Registrable Securities, and the Company’s obligations will continue to apply with regard to the Registrable Securities
for which the definition of Reset Date has not been not satisfied.
3.4. Subsequent
Rights Offerings. In addition to any adjustments pursuant to Section 3.1 above, if at any time the Company grants, issues or
sells any Ordinary Share Equivalents or rights to purchase share, 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 exercise of this Warrant (without regard to any limitations
on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record
is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders
of Ordinary Shares are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that, to the extent
that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership
Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such
Ordinary Shares as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for
the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
3.5. Pro
Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or other
distribution of its assets (or rights to acquire its assets) to all (or substantially all) holders of Ordinary Shares, by way of return
of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way
of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”),
at any time after the issuance of this Warrant, then, in each such case, 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 on exercise hereof, including without limitation, the Beneficial
Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the
date as of which the record holders of Ordinary Shares are to be determined for the participation in such Distribution (provided, however,
that, to the extent that the Holder’s right to participate in any such Distribution would result in the Holder exceeding the Beneficial
Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial
ownership of any Ordinary Shares as a result of such Distribution to such extent) and the portion of such Distribution shall be held
in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the
Beneficial Ownership Limitation). To the extent that this Warrant has not been partially or completely exercised at the time of such
Distribution, such portion of the Distribution shall be held in abeyance for the benefit of the Holder until the Holder has exercised
this Warrant.
3.6. Fundamental
Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related
transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company or any Subsidiary, directly
or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of
its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer
(whether by the Company or another Person) is completed pursuant to which holders of Ordinary Shares are permitted to sell, tender or
exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Ordinary
Shares or 50% or more of the voting power of the common equity of the Company, (iv) the Company, directly or indirectly, in one or more
related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share
exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or
(v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other
business combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with
another Person or group of Persons whereby such other Person or group acquires 50% or more of the outstanding Ordinary Shares or 50%
or more of the voting power of the common equity of the Company (each a “Fundamental Transaction”), then, upon
any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been issuable
upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to
any limitation in Section 2.5 on the exercise of this Warrant), the number of Ordinary Shares of the successor or acquiring corporation
or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”)
receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares for which this Warrant is exercisable
immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2.5 on the exercise of this Warrant).
For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate
Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share in such Fundamental Transaction,
and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value
of any different components of the Alternate Consideration. If holders of Ordinary Shares are given any choice as to the securities,
cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration
it receives upon any exercise of this Warrant following such Fundamental Transaction. Notwithstanding anything to the contrary, in the
event of a Fundamental Transaction, the Company or any Successor Entity (as defined below) shall, at the Holder’s option, exercisable
at any time concurrently with, or within 30 days after, the consummation of the Fundamental Transaction (or, if later, the date of the
public announcement of the applicable Fundamental Transaction), purchase this Warrant from the Holder by paying to the Holder an amount
of cash equal to the Black Scholes Value (as defined below) of the remaining unexercised portion of this Warrant on the date of the consummation
of such Fundamental Transaction; provided, however, that, if the Fundamental Transaction is not within the Company’s control, including
not approved by the Company’s Board of Directors, the Holder shall only be entitled to receive from the Company or any Successor
Entity the same type or form of consideration (and in the same proportion), at the Black Scholes Value of the unexercised portion of
this Warrant, that is being offered and paid to the holders of Ordinary Shares of the Company in connection with the Fundamental Transaction,
whether that consideration be in the form of cash, stock or any combination thereof, or whether the holders of Ordinary Shares are given
the choice to receive from among alternative forms of consideration in connection with the Fundamental Transaction; provided, further,
that if holders of Ordinary Shares of the Company are not offered or paid any consideration in such Fundamental Transaction, such holders
of Ordinary Shares will be deemed to have received common stock/shares of the Successor Entity (which Entity may be the Company following
such Fundamental Transaction) in such Fundamental Transaction. “Black Scholes Value” means the value of this
Warrant based on the Black-Scholes Option Pricing Model obtained from the “OV” function on Bloomberg, L.P. (“Bloomberg”)
determined as of the day of consummation of the applicable contemplated Fundamental Transaction for pricing purposes and reflecting (A)
a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the time between the date of the public announcement
of the applicable contemplated Fundamental Transaction and the Termination Date, (B) an expected volatility equal to the greater of (1)
100% and (2) the 100 day volatility as obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor)
as of the Trading Day immediately following the public announcement of the applicable contemplated Fundamental Transaction, (C) the underlying
price per share used in such calculation shall be the greater of (i) the sum of the price per share being offered in cash, if any, plus
the value of any non-cash consideration, if any, being offered in such Fundamental Transaction and (ii) the highest VWAP during the period
beginning on the Trading Day immediately preceding the public announcement of the applicable contemplated Fundamental Transaction (or
the consummation of the applicable Fundamental Transaction, if earlier) and ending on the Trading Day of the Holder’s request pursuant
to this Section 3.6 and (D) a remaining option time equal to the time between the date of the public announcement of the applicable contemplated
Fundamental Transaction and the Termination Date and (E) a zero cost of borrow. The payment of the Black Scholes Value will be made by
wire transfer of immediately available funds (or such other consideration) within the later of (i) five (5) Business Days after the Holder’s
election and (ii) the date of consummation of the Fundamental Transaction. The Company shall cause any successor entity in a Fundamental
Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the
obligations of the Company under this Warrant and the other Transaction Documents in accordance with the provisions of this Section 3.6
pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable
delay) prior to such Fundamental Transaction and shall, at the option of the Holder, 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 that
is exercisable for a corresponding number of shares of share capital of such Successor Entity (or its parent entity) 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 shares of share
capital (but taking into account the relative value of the Ordinary Shares prior to such Fundamental Transaction and the value of such
shares of share capital, such number of shares 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 which is reasonably satisfactory in
form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall be added to the
term “Company” under this Warrant (so that from and after the occurrence or consummation of such Fundamental Transaction,
each and every provision of this Warrant and the other Transaction Documents referring to the “Company” shall refer instead
to each of the Company and the Successor Entity or Successor Entities, jointly and severally), and the Successor Entity or Successor
Entities, jointly and severally with the Company, may exercise every right and power of the Company prior thereto and the Successor Entity
or Successor Entities shall assume all of the obligations of the Company prior thereto under this Warrant and the other Transaction Documents
with the same effect as if the Company and such Successor Entity or Successor Entities, jointly and severally, had been named as the
Company herein. For the avoidance of doubt, the Holder shall be entitled to the benefits of the provisions of this Section 3.6 regardless
of (i) whether the Company has sufficient authorized Ordinary Shares for the issuance of Warrant Shares and/or (ii) whether a Fundamental
Transaction occurs prior to the Initial Exercise Date.
3.7. Calculations.
All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes
of this Section 3, the number of Ordinary Shares deemed to be issued and outstanding as of a given date shall be the sum of the number
of Ordinary Shares (excluding treasury shares, if any) issued and outstanding.
3.8. Notice
to Holder.
3.8.1. Adjustment
to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly
deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number
of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
3.8.2. Notice
to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the
Ordinary Shares, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Ordinary Shares, (C) the
Company shall authorize the granting to all holders of the Ordinary Share rights or warrants to subscribe for or purchase any shares
of share capital of any class or of any rights, (D) the approval of any shareholders of the Company shall be required in connection with
any reclassification of the Ordinary Shares, any consolidation or merger to which the Company (or any of its Subsidiaries) is a party,
any sale or transfer of all or substantially all of its assets, or any compulsory share exchange whereby the Ordinary Shares are converted
into other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or
winding up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by email to the Holder at its last
email address as it shall appear upon the Warrant Register of the Company, at least 20 calendar days prior to the applicable record or
effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend,
distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Ordinary Shares
of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which
such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date
as of which it is expected that holders of the Ordinary Shares of record shall be entitled to exchange their Ordinary Shares for securities,
cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that
the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action
required to be specified in such notice. To the extent that any notice provided in this Warrant constitutes, or contains, material, non-public
information regarding the Company or any of the Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant
to a Report of Foreign Private Issuer on Form 6-K. The Holder shall remain entitled to exercise this Warrant during the period commencing
on the date of such notice to the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
3.9. Share
Combination Event Adjustment. In addition to the adjustments set forth in Section 3.1 above, if at any time and from time to
time on or after the Issuance Date there occurs any share split, reverse 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 lowest VWAP during the period commencing five (5) consecutive
Trading Days immediately preceding and ending five (5) consecutive Trading Days immediately following the Share Combination Event Date
(the “Share Combination Adjustment Period”, and such price, the “Event Market Price”)
is less than the Exercise Price then in effect (after giving effect to the adjustment in clause 3.1 above), then immediately following
the close of trading on the primary Trading Market on the last day of the Share Combination Adjustment Period, the Exercise Price then
in effect shall be reduced (but in no event increased) to an amount equal to 90% of the Event Market Price and the number of Warrant
Shares issuable hereunder shall be increased such that the aggregate Exercise Price of this Warrant on the Issuance Date for the Warrant
Shares then outstanding shall remain unchanged following such event; provided, however, if the Share Combination Event is effective after
close of Trading on the primary Trading Market, then the Share Combination Event Date shall be deemed to occur on the next Trading Day,
and the Share Combination Adjustment Period shall be adjusted accordingly; provided, further, that the adjustment to the Exercise Price
in this sentence shall not reduce the Exercise Price below the Floor Price. For the avoidance of doubt, (a) if the adjustment in the
immediately preceding sentence would otherwise result in an increase in the Exercise Price hereunder, no adjustment shall be made, and
if this Warrant is exercised, on any given exercise date during the Share Combination Adjustment Period, solely with respect to such
portion of this Warrant exercised on such applicable exercise date, such applicable Share Combination Adjustment Period shall be deemed
to have ended on, and included, the Trading Day immediately prior to such exercise date and the Event Market Price on such applicable
exercise date will be the lowest VWAP of the Ordinary Shares immediately during such the Share Combination Adjustment Period prior to
such exercise date and ending on, and including the Trading Day immediately prior to such exercise date and (b) all adjustments pursuant
to this Section 3.9 shall also be subject to Section 3.1 above, including any Event Market Price.
3.10.
True-Up Payment. Following an adjustment to the Exercise Price pursuant to Section 3.2, Section 3.3 or Section 3.9, if
the adjusted Exercise Price would have been below the Floor Price but for limitation of the Floor Price itself, then within five (5)
Trading Days after any adjustment to the Base Share Price or Event Market Price, as applicable, the Company shall make a payment (the
“True-up Payment”) to the Holder for the economic difference between the Base Share Price or Event Market Price,
as applicable, and the Floor Price in cash. The True-up Payment shall be calculated as follows: the difference between (A) the number
of Warrant Shares that would be issued if the Exercise Price was reduced to the Base Share Price or Event Market Price, as applicable,
without limitation of the Floor Price, minus (B) the number of Warrant Shares delivered using the Floor Price, multiplied by (C) the
daily VWAP of the Ordinary Shares on the Trading Day before the date the True-up Payment is due pursuant to this Section 3.10 [(A-B)*C)].
The aggregate of all True-up Payments shall be limited to not more than $1,070,000 (the “True-up Maximum Payment”),
distributed pro rata to Holders of the Warrants, based on the percentage of Warrants outstanding (as adjusted for forward and reverse
share splits, recapitalizations, share dividends and the like after the execution of the Securities Purchase Agreement). By way of example,
if 10 million Warrants were issued and 3 million were exercised, the maximum payment would be 70% of the True-up Maximum Payment. Notwithstanding
the foregoing, no True-up Payment shall be paid or payable by the Company so long as the Exercise Price is less than or equal to the
Base Share Price or Event Market Price, as applicable (as determined as of a date not more than two (2) Trading Days following the date
on which such Base Share Price or Event Market Price, as applicable, is determined). The amount of the True-up Payment Maximum Payment
will be paid and held in escrow at Closing.
3.11. Voluntary
Adjustment by Company. Subject to the rules and regulations of the Trading Market and the consent of the Holder, the Company
may at any time during the term of this Warrant reduce the then current Exercise Price to any amount and for any period of time deemed
appropriate by the Board of Directors.
3.12.
Variable Rate Transactions. The Company, at any time while a majority-in-interest of Holders of the Warrants are outstanding:
shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of
Ordinary Shares or Ordinary Share Equivalents (or a combination of units thereof) involving a Variable Rate Transaction. “Variable
Rate Transaction” means a transaction in which the Company (i) issues or sells any debt or equity securities that are convertible
into, exchangeable or exercisable for, or include the right to receive, additional Ordinary Shares either (A) at a conversion price,
exercise price 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 debt or equity 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 debt or equity security 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
or (ii) enters into, or effects a transaction under, any agreement, including, but not limited to, an equity line of credit, whereby
the Company may issue securities at a future determined price. The Holder shall be entitled to obtain injunctive relief against the Company
to preclude any such issuance, which remedy shall be in addition to any right to collect damages and any adjustments herein. For the
sake of clarity, this Section 3.12 shall not apply to conversions or exercises of securities by holders thereof as described in clause
(iii) of Section 1.23 of the Securities Purchase Agreement.
4.1. Transferability.
Subject to compliance with any applicable securities laws and the conditions set forth in Section 4.4 hereof, this Warrant and all rights
hereunder (including, without limitation, any registration rights) are transferable, in whole or in part, upon surrender of this Warrant
at the principal office of the Company or its designated agent, together with a written assignment of this Warrant substantially in the
form attached hereto as Exhibit 2.4.6 duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes
payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a
new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in
such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned,
and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically
surrender this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall surrender
this Warrant to the Company within three (3) Trading Days after the date on which the Holder delivers an assignment form to the Company
assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase
of Warrant Shares without having a new Warrant issued.
4.2. New
Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the
Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the
Holder or its agent or attorney. Subject to compliance with Section 4.1, as to any transfer which may be involved in such division or
combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or
combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the initial Issuance Date of this
Warrant and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
4.3. Warrant
Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant
Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder
of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other
purposes, absent actual notice to the contrary.
4.4. Transfer
Restrictions. If, at the time of the surrender of this Warrant in connection with any transfer of this Warrant, the transfer
of this Warrant shall not be either (i) registered pursuant to an effective registration statement under the Securities Act and under
applicable state securities or blue sky laws or (ii) eligible for resale without volume or manner-of-sale restrictions or current public
information requirements pursuant to Rule 144, the Company may require, as a condition of allowing such transfer, that (x) the transferor
(other than in connection with a transfer to an Affiliate of the transferor) provide to the Company an opinion of counsel to the effect
that such transfer does not require registration of such transferred Warrant under the Securities Act and (y) that the transferee agree
in writing to be bound by the terms of the Securities Purchase Agreement and Registration Rights Agreement, with all the rights and obligations
of a Purchaser under such agreements.
4.5. Representation
by the Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring this Warrant and, upon any
exercise hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account and not with a view to or for distributing
or reselling such Warrant Shares or any part thereof in violation of the Securities Act or any applicable state securities law, except
pursuant to sales registered or exempted under the Securities Act.
5.1. No
Rights as Shareholder until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights, dividends
or other rights as a shareholder of the Company prior to the exercise hereof as set forth in Section 2.4.1, except as expressly set forth
in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant to Section
2.3 or to receive cash payments pursuant to Section 2.4.1 and Section 2.4.4 herein, in no event shall the Company be required to net
cash settle an exercise of this Warrant.
5.2. Loss,
Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory
to it of the loss, theft, destruction or mutilation of this Warrant or any share certificate relating to the Warrant Shares, and in case
of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include
the posting of any bond), and upon surrender and cancellation of such Warrant or share certificate, if mutilated, the Company will make
and deliver a new Warrant or share certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or share certificate.
5.3. Saturdays,
Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or
granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business
Day.
5.4.
Authorized Shares.
5.4.1. Reservation
of Authorized and Unissued Shares. The Company covenants that, during the period the Warrant is outstanding, it will reserve
from its authorized and unissued Ordinary Shares a sufficient number of Ordinary Shares to provide for the issuance of the Warrant Shares
upon the exercise of any purchase rights under this Warrant and assuming that the Maximum Eligibility Number is being determined based
on a Reset Price equal to clause (ii) of the Floor Price. The Company further covenants that its issuance of this Warrant shall constitute
full authority to its officers who are charged with the duty of issuing the necessary Warrant Shares upon the exercise of the purchase
rights under this Warrant. The Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may
be issued as provided herein without violation of any applicable law or regulation, or of any requirements of the Trading Market upon
which the Ordinary Shares may be listed. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase
rights represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant and payment for such Warrant
Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable (which means that no further sums are
required to be paid by the holders thereof in connection with the issue thereof) and free from all taxes, liens and charges created by
the Company in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue).
5.4.2. Noncircumvention.
Except and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation,
amending its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue
or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this
Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may
be necessary or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality
of the foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise
immediately prior to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company
may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant, assuming that the Maximum
Eligibility Number is being determined based on a Reset Price equal to clause (ii) of the Floor Price and (iii) use commercially reasonable
efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may
be, necessary to enable the Company to perform its obligations under this Warrant.
5.4.3. Authorizations,
Exemptions and Consents. Before taking any action that would result in an adjustment in the number of Warrant Shares for which
this Warrant is exercisable or in the Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents
thereto, as may be necessary from any public regulatory body or bodies having jurisdiction thereof.
5.5. Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be governed by
and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts
of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions
contemplated by this Warrant (whether brought against a party hereto or their respective affiliates, directors, officers, shareholders,
partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York.
Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York,
Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein, 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 improper or is an inconvenient
venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any
such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery)
to such party at the address in effect for notices to it under this Warrant and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any
other manner permitted by law. If either party shall commence an action, suit or proceeding to enforce any provisions of this Warrant,
the prevailing party in such action, suit or proceeding shall be reimbursed by the other party for their reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding. Notwithstanding
the foregoing, nothing in this paragraph shall limit or restrict the federal district court in which a Holder may bring a claim under
the federal securities laws.
5.6. Restrictions.
The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and the Holder does not
utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
5.7. Nonwaiver
and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate
as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies, notwithstanding the fact that the right
to exercise this Warrant terminates on the Termination Date. No provision of this Warrant shall be construed as a waiver by the Holder
of any rights which the Holder may have under the federal securities laws and the rules and regulations of the Commission thereunder.
Without limiting any other provision of this Warrant or the Securities Purchase Agreement, if the Company willfully and knowingly fails
to comply with any provision of this Warrant, which results in any material damages to the Holder, the Company shall pay to the Holder
such amounts as shall be sufficient to cover any costs and expenses including, but not limited to, reasonable attorneys’ fees,
including those of appellate proceedings, incurred by the Holder in collecting any amounts due pursuant hereto or in otherwise enforcing
any of its rights, powers or remedies hereunder.
5.8. Notices.
Any and all notices or other communications or deliveries to be provided by the Holders hereunder including, without limitation, any
Notice of Exercise, shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier service,
addressed to the Company, at Mespil Business Centre, Mespil House, Sussex Road, Dublin 4, Ireland, Attention: Haggai Alon, Chief Executive
Officer, email address: haggai@securitymattersltd.com, or such other email address or address as the Company may specify for such purposes
by notice to the Holders. Any and all notices or other communications or deliveries to be provided by the Company hereunder shall be
in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier service addressed to each Holder
at the e-mail address or address of such Holder appearing on the books of the Company. Any notice or other communication or deliveries
hereunder shall be deemed given and effective on the earliest of (i) the time of transmission, if such notice or communication is delivered
via e-mail at the e-mail address set forth in this Section 5.8 prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading
Day after the time of transmission, if such notice or communication is delivered via e-mail at the e-mail address set forth in this Section
5.8 on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day
following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the party
to whom such notice is required to be given. To the extent that any notice provided hereunder constitutes, or contains, material, non-public
information regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant
to a Report of Foreign Private Issuer on Form 6-K.
5.9. Limitation
of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase
Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for
the purchase price of any Ordinary Shares or as a shareholder of the Company, whether such liability is asserted by the Company or by
creditors of the Company.
5.10. Remedies.
The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any
action for specific performance that a remedy at law would be adequate.
5.11. Successors
and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure
to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of
Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be
enforceable by the Holder or holder of Warrant Shares.
5.12. Amendment.
This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company, on the one hand, and
a majority-in-interest of Holders of the Warrants, on the other hand.
5.13. Severability.
Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
5.14. Headings.
The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this
Warrant.
********************
[SMX
Investor Series A PIPE Common Warrant Signature Page Follows]
[SMX
Investor Series A PIPE Common Warrant Signature Page]
IN
WITNESS WHEREOF, the Company has caused this Series A PIPE Common Warrant to be executed by its officer thereunto duly authorized as
of the date first above indicated.
| |
SMX
(SECURITY MATTERS) PUBLIC LIMITED COMPANY |
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|
|
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By: |
|
| |
Name: |
Haggai
Alon |
| |
Its: |
Chief
Executive Officer |
Exhibit
2.1
NOTICE
OF EXERCISE
To: SMX
(SECURITY MATTERS) PUBLIC LIMITED COMPANY
(1) The
undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised
in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) Payment
shall take the form of (check applicable box):
| |
☐ |
in lawful money of the United States. |
| |
☐ |
if permitted the cancellation of such number of Warrant Shares as is necessary,
in accordance with the formula set forth in subsection 2.3, to exercise this Warrant with respect to the maximum number of Warrant Shares
purchasable pursuant to the cashless exercise procedure set forth in subsection 2.3. |
(3) Please
issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
_______________________________
The
Warrant Shares shall be delivered to the following DWAC Account Number:
_______________________________
_______________________________
_______________________________
(4) The
undersigned is an “accredited investor” as defined in Regulation D promulgated under the Securities Act of 1933, as amended.
[SIGNATURE
OF HOLDER]
| Name
of Investing Entity: |
|
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| Signature
of Authorized Signatory of Investing Entity: |
|
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|
| Name
of Authorized Signatory: |
|
| |
|
| Title
of Authorized Signatory: |
|
| |
|
| Date:
|
|
Exhibit
2.4.6
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, execute this form and supply required information. Do not use this form to exercise the Warrant to purchase
Ordinary Shares.)
FOR
VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
| Name: |
|
| Address: |
|
| Phone
Number: |
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| Email
Address: |
|
| Date: |
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| Holder’s
Signature: |
|
| Holder’s
Address: |
|
Exhibit
99.5
NEITHER
THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE
OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
SERIES
B PIPE COMMON WARRANT TO PURCHASE ORDINARY SHARES
SMX
(SECURITY MATTERS) PUBLIC LIMITED COMPANY
| Warrant
Shares: The Maximum Eligibility Number |
Initial
Exercise Date: September 11, 2024 |
| |
Issuance
Date: September 12, 2024 |
THIS
WARRANT TO PURCHASE ORDINARY SHARES (the “Warrant”) certifies that, for value received, [●] or its
assigns (the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions
hereinafter set forth, at any time on or after the Initial Exercise Date until this Warrant is exercised in full (the “Termination
Date”) , to subscribe for and purchase from SMX (Security Matters) Public Limited Company, an Irish corporation (the “Company”),
up to a maximum of [●]1 ordinary shares (as subject to adjustment hereunder, the “Warrant Shares”).
The purchase price of one (1) Ordinary Share under this Warrant shall be equal to the Exercise Price, as defined in Section 2.2.
| 1. |
Definitions.
In addition to the terms defined elsewhere in this Warrant or in the Securities Purchase Agreement dated September 11, 2024
by and among the Company and the investors (the “Purchasers”) referred to therein (the “Securities
Purchase Agreement”), the following terms have the meanings indicated in this Section 1: |
1.1.
“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is
controlled by or is under common control with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
1
Insert the number of shares equal to the difference obtained by subtracting (i) the sum of the
aggregate number of purchased shares and shares underlying the Pre-funded Warrants (without
regard to any limitation on exercise contained therein) purchased by the Holder pursuant to the
Securities Purchase Agreement on the Issuance Date, from (ii) the quotient obtained by dividing (x) the aggregate Purchase
Price (as defined in the Securities Purchase Agreement) paid by the Holder pursuant to the Securities Purchase Agreement by (y) the number
referenced in clause (ii) of the definition of Floor Price.
1.2.
“Bid Price” means, for any date, the price determined by the first of the following clauses that applies: (a)
if the Ordinary Shares are then listed or quoted on a Trading Market, the bid price of the Ordinary Shares for the time in question (or
the nearest preceding date) on the Trading Market on which the Ordinary Shares are then listed or quoted as reported by Bloomberg L.P.
(based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading
Market, the VWAP of the Ordinary Shares for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Ordinary
Shares are not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Ordinary Shares are then reported on the Pink
Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per Ordinary
Share so reported, or (d) in all other cases, the fair market value of an Ordinary Share as determined by an independent appraiser selected
in good faith by the Holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company, the
fees and expenses of which shall be paid by the Company.
1.3.
“Board of Directors” means the board of directors of the Company.
1.4.
“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.
1.5.
“Commission” means the United States Securities and Exchange Commission.
1.6.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder.
1.7.
“Floor Price” means $0.49, a price equal to twenty percent (20%) of the Nasdaq Minimum Price prior to
pricing on the date of the Securities Purchase Agreement, as defined in Nasdaq Listing Rule 5635(d)(1)(A) (which price shall be appropriately
adjusted for any share dividend, share split, share combination, reclassification or similar transaction following the date of the Securities
Purchase Agreement).
1.8.
“Maximum Eligibility Number” means initially zero (0) and such number shall be increased (but not decreased)
on the Reset Date in accordance with Section 3.2, subject to any exercise pursuant to Section 3.2.2.
1.9.
“Ordinary Share” means the ordinary shares of the Company, $0.165 par value per share, and any other class
of securities into which such securities may hereafter be reclassified or changed.
1.10.
“Ordinary Share Equivalents” means any securities of the Company or the Subsidiaries which would entitle the
holder thereof to acquire at any time Ordinary Shares, including, without limitation, any debt, preferred stock, right, option, warrant
or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof
to receive, Ordinary Shares.
1.11.
“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association,
joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any
kind.
1.12.
“Registrable Securities” shall have the meaning ascribed to such term in the Registration Rights Agreement.
1.13.
“Registration Rights Agreement” means that certain Registration Rights Agreement dated as of the Subscription
Date by and among the Company and the Purchasers.
1.14.
“Registration Statement” means a registration statement meeting the requirements set forth in the Registration
Rights Agreement and covering the resale by the Purchasers of the Registrable Securities.
1.15.
“Reset Date” means following the close of trading on the earliest of (i) the date on which for ten (10) consecutive
Trading Days all Registrable Securities have become and remained registered pursuant to an effective Registration Statement that is available
for the resale of all Registrable Securities, provided, however, if less than all Registrable Securities have become registered for resale
on the date that a Registration Statement is declared effective, the Holder with respect to itself only, shall have the right in its
sole and absolute discretion to deem such condition satisfied, including with regard only to the Registrable Securities that have been
so registered, (ii) the date on which the Holder, for ten (10) consecutive Trading Days can sell all Registrable Securities pursuant
to Rule 144 without restriction or limitation and the Company has not had a Public Information Failure or (iii) twelve (12) months and
ten (10) Trading Days immediately following the Issuance Date.
1.16.
“Reset Period” means the period commencing on the tenth (10th) Trading Day immediately preceding the Reset
Date and ending after the close of trading on the Reset Date.
1.17.
“Reset Price” means the greater of (i) the lowest single day VWAP of the Ordinary Shares during the Reset Period
and (ii) the Floor Price (as adjusted for forward and reverse share splits, recapitalizations, share dividends and the like after the
execution of the Securities Purchase Agreement).
1.18.
“Reset Share Amount” means the number of Ordinary Shares equal to the number (if positive) obtained by subtracting
(I) the sum of (x) the number of Ordinary Shares purchased by the Holder on the Closing Date (as adjusted for forward and reverse share
splits, recapitalizations, share dividends and the like after the execution of the Securities Purchase Agreement) and (y) the number
of Ordinary Shares issuable upon exercise in full of any Pre-funded Warrants (without regard to any limitation on exercise contained
therein) purchased by the Holder on the Closing Date (as adjusted for forward and reverse share splits, recapitalizations, share dividends
and the like after the execution of the Securities Purchase Agreement), from (II) the quotient determined by dividing (x) the sum of
(i) the aggregate Purchase Price paid by the Holder on the Closing Date and (ii) the aggregate of all exercise prices paid or payable
by the Holder upon exercise in full of the Pre-Funded Warrants, by (y) the applicable Reset Price determined as of the Reset Date.
1.19.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
1.20.
“Subsidiary” means any subsidiary of the Company and shall, where applicable, also include any direct or indirect
subsidiary of the Company formed or acquired after the date hereof.
1.21.
“Trading Day” means a day on which the Ordinary Shares are traded on a Trading Market.
1.22.
“Trading Market” means any of the following markets or exchanges on which the Ordinary Shares are listed or
quoted for trading on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global
Select Market, the New York Stock Exchange, OTCQB or OTCQX (or any successors to any of the foregoing).
1.23.
“Transaction Documents” means the Securities Purchase Agreement dated September 10, 2024, these Warrants, such
other Warrants as contemplated in the Securities Purchase Agreement, the Registration Rights Agreement, the Placement Agent Agreement,
the Lock-Up Agreement and all exhibits and schedules thereto and hereto and any other documents or agreements executed in connection
with the transactions contemplated hereunder.
1.24.
“Transfer Agent” means Continental Stock Transfer & Trust Company, the current transfer agent of the Company,
with a mailing address of 1 State Street, 30th Floor, New York, NY 10004-1561, and any successor transfer agent of the Company.
1.25.
“VWAP” means, for any date, the price determined by the first of the following clauses that applies: (a) if
the Ordinary Shares are then listed or quoted on a Trading Market, the daily volume weighted average price of the Ordinary Shares for
such date (or the nearest preceding date) on the Trading Market on which the Ordinary Shares are then listed or quoted as reported by
Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX
is not a Trading Market, the volume weighted average price of the Ordinary Shares for such date (or the nearest preceding date) on OTCQB
or OTCQX as applicable, (c) if the Ordinary Shares are not then listed or quoted for trading on OTCQB or OTCQX and if prices for the
Ordinary Shares are then reported on the Pink Open Market (or a similar organization or agency succeeding to its functions of reporting
prices), the most recent bid price per Ordinary Share so reported, or (d) in all other cases, the fair market value of an Ordinary Share
as determined by an independent appraiser selected in good faith by the holders of a majority in interest of the Warrants then outstanding
and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
1.26.
“Warrants” means this Warrant and other Ordinary Shares purchase warrants issued by the Company pursuant to
the Securities Purchase Agreement.
2.1.
Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any
time or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed
PDF copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise substantially in the form attached hereto as Exhibit 2.1
(the “Notice of Exercise”). Within the earlier of (i) one (1) Trading Day and (ii) the number of Trading
Days comprising the Standard Settlement Period (as defined in Section 2.4.1 herein) following the date of exercise as aforesaid, the
Holder shall deliver the aggregate Exercise Price for the Warrant Shares specified in the applicable Notice of Exercise by wire transfer
or cashier’s check drawn on a United States bank unless the cashless exercise procedure specified in Section 2.3 below is specified
in the applicable Notice of Exercise. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other
type of guarantee or notarization) of any Notice of Exercise be required. Notwithstanding anything herein to the contrary, the Holder
shall not be required to physically surrender this Warrant to the Company until the Holder has purchased all of the Warrant Shares available
hereunder and the Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation
within three (3) Trading Days after the date on which the final Notice of Exercise is delivered to the Company. Partial exercises of
this Warrant resulting in purchases of a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering
the outstanding number of Warrant Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased.
The Holder and the Company shall maintain records showing the number of Warrant Shares purchased and the date of such purchases. The
Company shall deliver any objection to any Notice of Exercise within one (1) Trading Day of receipt of such notice. The Holder and
any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the
purchase of a portion of the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time
may be less than the amount stated on the face hereof.
2.2.
Exercise Price. The aggregate exercise price of this Warrant (including the par value of the Ordinary Shares), except for
a nominal exercise price of $0.00001 per Warrant Share, subject to adjustment hereunder (such nominal exercise price, the “Exercise
Price”), was pre-funded to the Company in the Unit Purchase Price on or prior to the Initial Exercise Date and, consequently,
no additional consideration (other than such Exercise Price) shall be required to be paid by the Holder to any Person to effect any exercise
of this Warrant. The Holder shall not be entitled to the return or refund of all, or any portion, of such pre-paid aggregate exercise
price under any circumstance or for any reason whatsoever.
2.3.
Cashless Exercise. This Warrant may also be exercised, in whole or in part, by means of a “cashless exercise”
in which the Holder shall be entitled to receive a number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by
(A), where:
| |
(A)
= |
as
applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of
Exercise is (1) both executed and delivered pursuant to Section 2.1 hereof on a day that is not a Trading Day or (2) both executed
and delivered pursuant to Section 2.1 hereof on a Trading Day prior to the opening of “regular trading hours” (as defined
in Rule 600(b) 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 Notice of Exercise or (z) the Bid Price of
the Ordinary Shares on the principal Trading Market as reported by Bloomberg L.P. as of the time of the Holder’s execution
of the applicable Notice of Exercise if such Notice of Exercise is executed during “regular trading hours” on a Trading
Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close of “regular trading hours”
on a Trading Day) pursuant to Section 2.1 hereof or (iii) the VWAP on the date of the applicable Notice of Exercise if the date of
such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered pursuant to Section 2.1 hereof
after the close of “regular trading hours” on such Trading Day; |
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|
|
| |
(B)
= |
the
Exercise Price of this Warrant, as adjusted hereunder; and |
| |
|
|
| |
(X)
= |
the
number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such
exercise were by means of a cash exercise rather than a cashless exercise. |
If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Rule 144(d)(3),
the holding period of the Warrant Shares being issued may be tacked on to the holding period of this Warrant. Without limiting any other
provision in the Transaction Documents, assuming (i) the Holder is not an Affiliate of the Company, and (ii) all of the applicable conditions
of Rule 144 promulgated under the Securities Act with respect to Holder and the Warrant Shares are met in the case of such a cashless
exercise, the Company agrees that the Company will cause the removal of the legend from such Warrant Shares (including by delivering
an opinion of the Company’s counsel to the Company’s transfer agent at its own expense to ensure the foregoing), and the
Company agrees that the Holder is under no obligation to sell the Warrant Shares issuable upon the exercise of the Warrant prior to removing
the legend. The Company agrees not to take any position contrary to this Section 2.3.
Notwithstanding
anything herein to the contrary, on the Termination Date, this Warrant shall be automatically exercised via cashless exercise pursuant
to this Section 2.3.
2.4.
Mechanics of Exercise.
2.4.1.
Delivery of Warrant Shares upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted
by the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository
Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant
in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale
of the Warrant Shares by Holder or (B) the Warrant Shares are eligible for resale by the Holder without volume or manner-of-sale limitations
pursuant to Rule 144 (assuming cashless exercise of the Warrants), and otherwise by physical delivery of a certificate or by electronic
delivery (at the election of the Holder), for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise
to the address specified by the Holder in the Notice of Exercise by the date that is the earlier of (i) one (1) Trading Day after the
delivery to the Company of the Notice of Exercise and (ii) the number of Trading Days comprising the Standard Settlement Period after
the delivery to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery Date”). Upon
delivery of the Notice of Exercise, 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 of delivery of the Warrant Shares, provided
that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received within the earlier of (i) one
(1) Trading Day and (ii) the number of Trading Days comprising the Standard Settlement Period following delivery of the Notice of Exercise.
Notwithstanding anything herein to the contrary, upon delivery of the Notice of Exercise, the Holder shall be deemed for purposes of
Regulation SHO under the Exchange Act to have become the holder of the Warrant Shares irrespective of the date of delivery of the Warrant
Shares. If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant
Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant
Shares subject to such exercise (based on the VWAP of the Ordinary Shares on the date of the applicable Notice of Exercise), $10 per
Trading Day (increasing to $20 per Trading Day on the third (3rd) Trading Day after the Warrant Share Delivery Date) for each Trading
Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees
to maintain a Transfer Agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As
used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading
Days, on the Company’s primary Trading Market with respect to the Ordinary Shares as in effect on the date of delivery of the Notice
of Exercise. Notwithstanding the foregoing, with respect to any Notice(s) of Exercise delivered on or prior to 12:00 p.m. (New York City
time) on the Initial Exercise Date, which may be delivered at any time after the time of execution of the Securities Purchase Agreement,
the Company agrees to deliver the Warrant Shares subject to such notice(s) by 4:00 p.m. (New York City time) on the Initial Exercise
Date and the Initial Exercise Date shall be the Warrant Share Delivery Date for purposes hereunder, provided that payment of the aggregate
Exercise Price (other than in the case of a cashless exercise) is received by such Warrant Share Delivery Date. NOTWITHSTANDING ANY
PROVISION OF THIS WARRANT TO THE CONTRARY, NO MORE THAN THE MAXIMUM ELIGIBILITY NUMBER OF WARRANT SHARES SHALL BE EXERCISABLE HEREUNDER.
2.4.2.
Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request
of a Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new
Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant
shall in all other respects be identical with this Warrant.
2.4.3.
Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant
to Section 2.4.1 by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
2.4.4.
Compensation for Buy-In on Failure to Timely Deliver Warrant Shares upon Exercise. In addition to any other rights available
to the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions
of Section 2.4.1 above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required
by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, Ordinary
Shares to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise
(a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s
total purchase price (including brokerage commissions, if any) for the Ordinary Shares so purchased exceeds (y) the amount obtained by
multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise at
issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B) at the option of the
Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise was not honored and
return any amount received by the Company in respect of the Exercise Price for those Warrant Shares (in which case such exercise shall
be deemed rescinded) or deliver to the Holder the number of Ordinary Shares that would have been issued had the Company timely complied
with its exercise and delivery obligations hereunder. For example, if the Holder purchases Ordinary Shares having a total purchase price
of $11,000 to cover a Buy-In with respect to an attempted exercise of Ordinary Shares with an aggregate sale price giving rise to such
purchase obligation of $10,000, under clause (A) of the immediately preceding sentence the Company shall be required to pay the Holder
$1,000. The Holder shall provide the Company written notice indicating the amounts payable to the Holder in respect of the Buy-In and,
upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit a Holder’s right to pursue any other
remedies available to 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 Ordinary Shares upon exercise of the Warrant as required pursuant
to the terms hereof.
2.4.5.
No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise
of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company
shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied
by the Exercise Price or round up to the next whole share.
2.4.6.
Charges, Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer
tax or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the
Company, and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder;
provided, however, that, in the event that Warrant Shares are to be issued in a name other than the name of the Holder,
this Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto as Exhibit 2.4.6 duly executed
by the Holder and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax
incidental thereto. The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all
fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day
electronic delivery of the Warrant Shares.
2.4.7.
Closing of Books. The Company will not close its shareholder books or records in any manner which prevents the timely exercise
of this Warrant, pursuant to the terms hereof.
2.5.
Holder’s Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not
have the right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to
such issuance after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates,
and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution
Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of
the foregoing sentence, the number of Ordinary Shares beneficially owned by the Holder and its Affiliates and Attribution Parties shall
include the number of Ordinary Shares issuable upon exercise of this Warrant with respect to which such determination is being made,
but shall exclude the number of Ordinary Shares which would be issuable upon (i) exercise of the remaining, unexercised portion of this
Warrant beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised
or unconverted portion of any other securities of the Company (including, without limitation, any other Ordinary Share Equivalents) subject
to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its
Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2.5, beneficial ownership
shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being
acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d)
of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent
that the limitation contained in this Section 2.5 applies, the determination of whether this Warrant is exercisable (in relation to other
securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable
shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination
of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution
Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company
shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status
as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder. For purposes of this Section 2.5, in determining the number of outstanding Ordinary Shares, a Holder may rely on the number
of outstanding Ordinary Shares as reflected in (A) the Company’s most recent periodic or annual report filed with the Commission,
as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company or the Transfer
Agent setting forth the number of Ordinary Shares outstanding. Upon the written or oral request of a Holder, the Company shall within
one (1) Trading Day confirm orally and in writing 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 or its Affiliates or Attribution Parties since the date as of which such number of outstanding Ordinary Shares
was reported. The “Beneficial Ownership Limitation” shall be 4.99% (or, upon election by a Holder prior to
the issuance of any Warrants, 9.99%) of the number of Ordinary Shares outstanding immediately after giving effect to the issuance of
Ordinary Shares issuable upon exercise of this Warrant. The Holder, upon notice to the Company, may increase or decrease the Beneficial
Ownership Limitation provisions of this Section 2.5, provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the
number of Ordinary Shares outstanding immediately after giving effect to the issuance of Ordinary Shares upon exercise of this Warrant
held by the Holder and the provisions of this Section 2.5 shall continue to apply. Any increase in the Beneficial Ownership Limitation
will not be effective until the 61st day after such notice is delivered to the Company. The provisions of this paragraph shall
be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 2.5 to correct this paragraph
(or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or
to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph
shall apply to a successor holder of this Warrant.
3.1.
Share Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a share dividend or
otherwise makes a distribution or distributions on Ordinary Shares or any other equity or equity equivalent securities payable in Ordinary
Shares (which, for avoidance of doubt, shall not include any Ordinary Shares issued by the Company upon exercise of this Warrant), (ii)
subdivides outstanding Ordinary Shares into a larger number of shares, (iii) combines (including by way of reverse share split) outstanding
Ordinary Shares into a smaller number of shares, or (iv) issues by reclassification of Ordinary Shares any shares of share capital of
the Company, then in each case the Exercise Price shall be multiplied by a fraction of which the numerator shall be the number of Ordinary
Shares (excluding treasury shares, if any) outstanding immediately before such event and of which the denominator shall be the number
of Ordinary Shares outstanding immediately after such event, and the number of Shares issuable upon exercise of this Warrant shall be
proportionately adjusted such that the aggregate Exercise Price of this Warrant shall remain unchanged. Any adjustment made pursuant
to this Section 3.1 shall become effective immediately after the record date for the determination of shareholders entitled to receive
such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination
or re-classification.
3.2.
Maximum Eligibility Number Reset.
3.2.1.
Reset Process. The Maximum Eligibility Number shall be increased (but not decreased) on the Reset Date to equal the Reset
Share Amount, subject to adjustment for any prior exercises pursuant to Section 3.2.2 or any partial resets pursuant to Section 3.2.3,
as applicable.
3.2.2.
Exercise Prior to Reset Date. Notwithstanding the foregoing, if a Holder requests to exercise this Warrant, in whole or
in part, prior to the Reset Date on any given date on which (i) the exercised Warrant Shares are registered pursuant to an effective
Registration Statement that is available for the resale of such Warrant Shares, (ii) the Holder can sell the exercised Warrant Shares
pursuant to Rule 144 without restriction or limitation and the Company has not had a Public Information Failure or (iii) twelve (12)
months immediately following the Issuance Date (any such date, an “Exercise Date”), then solely with respect
to such portion of this Warrant being exercised on such applicable Exercise Date, (a) such applicable Reset Date shall be deemed to mean
the Exercise Date, (b) such applicable Reset Period shall be deemed to have commenced on the applicable date set forth in clause (i),
(ii) or (iii) hereof and ended following the close of trading on the Trading Day immediately prior to the Exercise Date and (c) the applicable
Reset Price and Reset Share Amount for such exercised Warrants shall be calculated pursuant to Section 3.2. For the avoidance of doubt,
following the calculation of the Reset Price and Reset Share Amount pursuant to this Section 3.2.2, the Company’s obligations with
regard to such exercised Warrants shall be deemed satisfied and no additional Reset Price and Reset Share Amount shall apply to such
exercised Warrants.
3.2.3.
Partial Reset. If less than all of the Registrable Securities have been registered pursuant to clause (i) of the definition
of Reset Date and a Holder has deemed the condition satisfied as to such Registrable Securities, then the Reset Date shall apply only
to such portion of the Registrable Securities, and the Company’s obligations will continue to apply with regard to the Registrable
Securities for which the definition of Reset Date has not been not satisfied.
3.3.
Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 3.1 above, if at any time the Company grants,
issues or sells any Ordinary Share Equivalents or rights to purchase share, 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 exercise of this Warrant (without regard
to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date
on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which
the record holders of Ordinary Shares are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that,
to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial
Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership
of such Ordinary Shares as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance
for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
3.4.
Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend
or other distribution of its assets (or rights to acquire its assets) to all (or substantially all) holders of Ordinary Shares, by way
of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options
by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”),
at any time after the issuance of this Warrant, then, in each such case, 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 on exercise hereof, including without limitation, the Beneficial
Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the
date as of which the record holders of Ordinary Shares are to be determined for the participation in such Distribution (provided, however,
that, to the extent that the Holder’s right to participate in any such Distribution would result in the Holder exceeding the Beneficial
Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial
ownership of any Ordinary Shares as a result of such Distribution to such extent) and the portion of such Distribution shall be held
in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the
Beneficial Ownership Limitation). To the extent that this Warrant has not been partially or completely exercised at the time of such
Distribution, such portion of the Distribution shall be held in abeyance for the benefit of the Holder until the Holder has exercised
this Warrant.
3.5.
Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in
one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company or
any Subsidiary, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all
or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender
offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Ordinary Shares are permitted
to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of
the outstanding Ordinary Shares or 50% or more of the voting power of the common equity of the Company, (iv) the Company, directly or
indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares
or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities,
cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase
agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme
of arrangement) with another Person or group of Persons whereby such other Person or group acquires 50% or more of the outstanding Ordinary
Shares or 50% or more of the voting power of the common equity of the Company (each a “Fundamental Transaction”),
then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have
been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without
regard to any limitation in Section 2.5 on the exercise of this Warrant), the number of Ordinary Shares of the successor or acquiring
corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”)
receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares for which this Warrant is exercisable
immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2.5 on the exercise of this Warrant).
For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate
Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share in such Fundamental Transaction,
and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value
of any different components of the Alternate Consideration. If holders of Ordinary Shares are given any choice as to the securities,
cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration
it receives upon any exercise of this Warrant following such Fundamental Transaction. Notwithstanding anything to the contrary, in the
event of a Fundamental Transaction, the Company or any Successor Entity (as defined below) shall, at the Holder’s option, exercisable
at any time concurrently with, or within 30 days after, the consummation of the Fundamental Transaction (or, if later, the date of the
public announcement of the applicable Fundamental Transaction), purchase this Warrant from the Holder by paying to the Holder an amount
of cash equal to the Black Scholes Value (as defined below) of the remaining unexercised portion of this Warrant on the date of the consummation
of such Fundamental Transaction; provided, however, that, if the Fundamental Transaction is not within the Company’s control, including
not approved by the Company’s Board of Directors, the Holder shall only be entitled to receive from the Company or any Successor
Entity the same type or form of consideration (and in the same proportion), at the Black Scholes Value of the unexercised portion of
this Warrant, that is being offered and paid to the holders of Ordinary Shares of the Company in connection with the Fundamental Transaction,
whether that consideration be in the form of cash, stock or any combination thereof, or whether the holders of Ordinary Shares are given
the choice to receive from among alternative forms of consideration in connection with the Fundamental Transaction; provided, further,
that if holders of Ordinary Shares of the Company are not offered or paid any consideration in such Fundamental Transaction, such holders
of Ordinary Shares will be deemed to have received common stock/shares of the Successor Entity (which Entity may be the Company following
such Fundamental Transaction) in such Fundamental Transaction. “Black Scholes Value” means the value of this
Warrant based on the Black-Scholes Option Pricing Model obtained from the “OV” function on Bloomberg, L.P. (“Bloomberg”)
determined as of the day of consummation of the applicable contemplated Fundamental Transaction for pricing purposes and reflecting (A)
a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the time between the date of the public announcement
of the applicable contemplated Fundamental Transaction and the Termination Date, (B) an expected volatility equal to the greater of (1)
100% and (2) the 100 day volatility as obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor)
as of the Trading Day immediately following the public announcement of the applicable contemplated Fundamental Transaction, (C) the underlying
price per share used in such calculation shall be the greater of (i) the sum of the price per share being offered in cash, if any, plus
the value of any non-cash consideration, if any, being offered in such Fundamental Transaction and (ii) the highest VWAP during the period
beginning on the Trading Day immediately preceding the public announcement of the applicable contemplated Fundamental Transaction (or
the consummation of the applicable Fundamental Transaction, if earlier) and ending on the Trading Day of the Holder’s request pursuant
to this Section 3.5 and (D) a remaining option time equal to the time between the date of the public announcement of the applicable contemplated
Fundamental Transaction and the Termination Date and (E) a zero cost of borrow. The payment of the Black Scholes Value will be made by
wire transfer of immediately available funds (or such other consideration) within the later of (i) five (5) Business Days after the Holder’s
election and (ii) the date of consummation of the Fundamental Transaction. The Company shall cause any successor entity in a Fundamental
Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the
obligations of the Company under this Warrant and the other Transaction Documents in accordance with the provisions of this Section 3.5
pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable
delay) prior to such Fundamental Transaction and shall, at the option of the Holder, 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 that
is exercisable for a corresponding number of shares of share capital of such Successor Entity (or its parent entity) 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 shares of share
capital (but taking into account the relative value of the Ordinary Shares prior to such Fundamental Transaction and the value of such
shares of share capital, such number of shares 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 which is reasonably satisfactory in
form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall be added to the
term “Company” under this Warrant (so that from and after the occurrence or consummation of such Fundamental Transaction,
each and every provision of this Warrant and the other Transaction Documents referring to the “Company” shall refer instead
to each of the Company and the Successor Entity or Successor Entities, jointly and severally), and the Successor Entity or Successor
Entities, jointly and severally with the Company, may exercise every right and power of the Company prior thereto and the Successor Entity
or Successor Entities shall assume all of the obligations of the Company prior thereto under this Warrant and the other Transaction Documents
with the same effect as if the Company and such Successor Entity or Successor Entities, jointly and severally, had been named as the
Company herein. For the avoidance of doubt, the Holder shall be entitled to the benefits of the provisions of this Section 3.5 regardless
of (i) whether the Company has sufficient authorized Ordinary Shares for the issuance of Warrant Shares and/or (ii) whether a Fundamental
Transaction occurs prior to the Initial Exercise Date.
3.6.
Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share,
as the case may be. For purposes of this Section 3, the number of Ordinary Shares deemed to be issued and outstanding as of a given date
shall be the sum of the number of Ordinary Shares (excluding treasury shares, if any) issued and outstanding.
3.7.
Notice to Holder.
3.7.1.
Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the
Company shall promptly deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting
adjustment to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
3.7.2.
Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever
form) on the Ordinary Shares, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Ordinary Shares,
(C) the Company shall authorize the granting to all holders of the Ordinary Share rights or warrants to subscribe for or purchase any
shares of share capital of any class or of any rights, (D) the approval of any shareholders of the Company shall be required in connection
with any reclassification of the Ordinary Shares, any consolidation or merger to which the Company (or any of its Subsidiaries) is a
party, any sale or transfer of all or substantially all of its assets, or any compulsory share exchange whereby the Ordinary Shares are
converted into other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation
or winding up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by email to the Holder at its
last email address as it shall appear upon the Warrant Register of the Company, at least 20 calendar days prior to the applicable record
or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend,
distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Ordinary Shares
of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which
such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date
as of which it is expected that holders of the Ordinary Shares of record shall be entitled to exchange their Ordinary Shares for securities,
cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that
the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action
required to be specified in such notice. To the extent that any notice provided in this Warrant constitutes, or contains, material, non-public
information regarding the Company or any of the Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant
to a Report of Foreign Private Issuer on Form 6-K. The Holder shall remain entitled to exercise this Warrant during the period commencing
on the date of such notice to the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
3.8.
Voluntary Adjustment by Company. Subject to the rules and regulations of the Trading Market and the consent of the Holder,
the Company may at any time during the term of this Warrant reduce the then current Exercise Price to any amount and for any period of
time deemed appropriate by the Board of Directors.
3.9.
Variable Rate Transactions. The Company, at any time while a majority-in-interest of Holders of the Warrants are outstanding:
shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of
Ordinary Shares or Ordinary Share Equivalents (or a combination of units thereof) involving a Variable Rate Transaction. “Variable
Rate Transaction” means a transaction in which the Company (i) issues or sells any debt or equity securities that are convertible
into, exchangeable or exercisable for, or include the right to receive, additional Ordinary Shares either (A) at a conversion price,
exercise price 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 debt or equity 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 debt or equity security 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
or (ii) enters into, or effects a transaction under, any agreement, including, but not limited to, an equity line of credit, whereby
the Company may issue securities at a future determined price. The Holder shall be entitled to obtain injunctive relief against the Company
to preclude any such issuance, which remedy shall be in addition to any right to collect damages and any adjustments herein. For the
sake of clarity, this Section 3.12 shall not apply to conversions or exercises of securities by holders thereof as described in clause
(iii) of Section 1.23 of the Securities Purchase Agreement.
4.1.
Transferability. Subject to compliance with any applicable securities laws and the conditions set forth in Section 4.4
hereof, this Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable, in whole or
in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written assignment
of this Warrant substantially in the form attached hereto as Exhibit 2.4.6 duly executed by the Holder or its agent or attorney and funds
sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the
Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination
or denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of
this Warrant not so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder
shall not be required to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full, in which
case, the Holder shall surrender this Warrant to the Company within three (3) Trading Days after the date on which the Holder delivers
an assignment form to the Company assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised
by a new holder for the purchase of Warrant Shares without having a new Warrant issued.
4.2.
New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office
of the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed
by the Holder or its agent or attorney. Subject to compliance with Section 4.1, as to any transfer which may be involved in such division
or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided
or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the initial Issuance Date of
this Warrant and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
4.3.
Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose
(the “Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and
treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to
the Holder, and for all other purposes, absent actual notice to the contrary.
4.4.
Transfer Restrictions. If, at the time of the surrender of this Warrant in connection with any transfer of this Warrant,
the transfer of this Warrant shall not be either (i) registered pursuant to an effective registration statement under the Securities
Act and under applicable state securities or blue sky laws or (ii) eligible for resale without volume or manner-of-sale restrictions
or current public information requirements pursuant to Rule 144, the Company may require, as a condition of allowing such transfer, that
(x) the transferor (other than in connection with a transfer to an Affiliate of the transferor) provide to the Company an opinion of
counsel to the effect that such transfer does not require registration of such transferred Warrant under the Securities Act and (y) that
the transferee agree in writing to be bound by the terms of the Securities Purchase Agreement and Registration Rights Agreement, with
all the rights and obligations of a Purchaser under such agreements.
4.5.
Representation by the Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring this Warrant
and, upon any exercise hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account and not with a view to
or for distributing or reselling such Warrant Shares or any part thereof in violation of the Securities Act or any applicable state securities
law, except pursuant to sales registered or exempted under the Securities Act.
5.1.
No Rights as Shareholder until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting
rights, dividends or other rights as a shareholder of the Company prior to the exercise hereof as set forth in Section 2.4.1, except
as expressly set forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise”
pursuant to Section 2.3 or to receive cash payments pursuant to Section 2.4.1 and Section 2.4.4 herein, in no event shall the Company
be required to net cash settle an exercise of this Warrant.
5.2.
Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any share certificate relating to the Warrant Shares,
and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant,
shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or share certificate, if mutilated, the
Company will make and deliver a new Warrant or share certificate of like tenor and dated as of such cancellation, in lieu of such Warrant
or share certificate.
5.3.
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right
required or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding
Business Day.
5.4.
Authorized Shares.
5.4.1.
Reservation of Authorized and Unissued Shares. The Company covenants that, during the period the Warrant is outstanding,
it will reserve from its authorized and unissued Ordinary Shares a sufficient number of Ordinary Shares to provide for the issuance of
the Warrant Shares upon the exercise of any purchase rights under this Warrant and assuming that the Maximum Eligibility Number is being
determined based on a Reset Price equal to clause (ii) of the Floor Price. The Company further covenants that its issuance of this Warrant
shall constitute full authority to its officers who are charged with the duty of issuing the necessary Warrant Shares upon the exercise
of the purchase rights under this Warrant. The Company will take all such reasonable action as may be necessary to assure that such Warrant
Shares may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of the Trading
Market upon which the Ordinary Shares may be listed. The Company covenants that all Warrant Shares which may be issued upon the exercise
of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant and payment
for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable (which means that no
further sums are required to be paid by the holders thereof in connection with the issue thereof) and free from all taxes, liens and
charges created by the Company in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously
with such issue).
5.4.2.
Noncircumvention. Except and to the extent as waived or consented to by the Holder, the Company shall not by any action,
including, without limitation, amending its certificate of incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance
of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking
of all such actions as may be necessary or appropriate to protect the rights of Holder as set forth in this Warrant against impairment.
Without limiting the generality of the foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount
payable therefor upon such exercise immediately prior to such increase in par value, (ii) take all such action as may be necessary or
appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of
this Warrant, assuming that the Maximum Eligibility Number is being determined based on a Reset Price equal to clause (ii) of the Floor
Price and (iii) use commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory
body having jurisdiction thereof, as may be, necessary to enable the Company to perform its obligations under this Warrant.
5.4.3.
Authorizations, Exemptions and Consents. Before taking any action that would result in an adjustment in the number of Warrant
Shares for which this Warrant is exercisable or in the Exercise Price, the Company shall obtain all such authorizations or exemptions
thereof, or consents thereto, as may be necessary from any public regulatory body or bodies having jurisdiction thereof.
5.5.
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall
be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles
of conflicts of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of
the transactions contemplated by this Warrant (whether brought against a party hereto or their respective affiliates, directors, officers,
shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City
of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City
of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated
hereby or discussed herein, 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 improper or is an inconvenient
venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any
such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery)
to such party at the address in effect for notices to it under this Warrant and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any
other manner permitted by law. If either party shall commence an action, suit or proceeding to enforce any provisions of this Warrant,
the prevailing party in such action, suit or proceeding shall be reimbursed by the other party for their reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding. Notwithstanding
the foregoing, nothing in this paragraph shall limit or restrict the federal district court in which a Holder may bring a claim under
the federal securities laws.
5.6.
Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered,
and the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
5.7.
Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder
shall operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies, notwithstanding the fact
that the right to exercise this Warrant terminates on the Termination Date. No provision of this Warrant shall be construed as a waiver
by the Holder of any rights which the Holder may have under the federal securities laws and the rules and regulations of the Commission
thereunder. Without limiting any other provision of this Warrant or the Securities Purchase Agreement, if the Company willfully and knowingly
fails to comply with any provision of this Warrant, which results in any material damages to the Holder, the Company shall pay to the
Holder such amounts as shall be sufficient to cover any costs and expenses including, but not limited to, reasonable attorneys’
fees, including those of appellate proceedings, incurred by the Holder in collecting any amounts due pursuant hereto or in otherwise
enforcing any of its rights, powers or remedies hereunder.
5.8.
Notices. Any and all notices or other communications or deliveries to be provided by the Holders hereunder including, without
limitation, any Notice of Exercise, shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight
courier service, addressed to the Company, at Mespil Business Centre, Mespil House, Sussex Road, Dublin 4, Ireland, Attention: Haggai
Alon, Chief Executive Officer, email address: haggai@securitymattersltd.com, or such other email address or address as the Company may
specify for such purposes by notice to the Holders. Any and all notices or other communications or deliveries to be provided by the Company
hereunder shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier service addressed
to each Holder at the e-mail address or address of such Holder appearing on the books of the Company. Any notice or other communication
or deliveries hereunder shall be deemed given and effective on the earliest of (i) the time of transmission, if such notice or communication
is delivered via e-mail at the e-mail address set forth in this Section 5.8 prior to 5:30 p.m. (New York City time) on any date, (ii)
the next Trading Day after the time of transmission, if such notice or communication is delivered via e-mail at the e-mail address set
forth in this Section 5.8 on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the
second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual
receipt by the party to whom such notice is required to be given. To the extent that any notice provided hereunder constitutes, or contains,
material, non-public information regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice with the
Commission pursuant to a Report of Foreign Private Issuer on Form 6-K.
5.9.
Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant
to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of
the Holder for the purchase price of any Ordinary Shares or as a shareholder of the Company, whether such liability is asserted by the
Company or by creditors of the Company.
5.10.
Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to
assert the defense in any action for specific performance that a remedy at law would be adequate.
5.11.
Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby
shall inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted
assigns of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant
and shall be enforceable by the Holder or holder of Warrant Shares.
5.12.
Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company,
on the one hand, and a majority-in-interest of Holders of the Warrants, on the other hand.
5.13.
Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
5.14.
Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be
deemed a part of this Warrant.
********************
[SMX
Investor Series B PIPE Common Warrant Signature Page Follows]
[SMX
Investor Series B PIPE Common Warrant Signature Page]
IN
WITNESS WHEREOF, the Company has caused this Series B PIPE Common Warrant to be executed by its officer thereunto duly authorized as
of the date first above indicated.
| |
SMX
(SECURITY MATTERS) PUBLIC LIMITED COMPANY |
| |
|
|
| |
By: |
|
| |
Name: |
Haggai
Alon |
| |
Its: |
Chief
Executive Officer |
Exhibit
2.1
NOTICE
OF EXERCISE
| To: |
SMX
(SECURITY MATTERS) PUBLIC LIMITED COMPANY |
(1)
The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only
if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2)
Payment shall take the form of (check applicable box):
| |
[ ] |
in
lawful money of the United States. |
| |
|
|
| |
[ ] |
if
permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection
2.3, to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise
procedure set forth in subsection 2.3. |
(3)
Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
_______________________________
The
Warrant Shares shall be delivered to the following DWAC Account Number:
_______________________________
_______________________________
_______________________________
(4)
The undersigned is an “accredited investor” as defined in Regulation D promulgated under the Securities Act of 1933, as amended.
[SIGNATURE
OF HOLDER]
| Name
of Investing Entity: |
|
| Signature
of Authorized Signatory of Investing Entity: |
|
| Name
of Authorized Signatory: |
|
| Title
of Authorized Signatory: |
|
| Date:
|
|
Exhibit
2.4.6
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, execute this form and supply required information. Do not use this form to exercise the Warrant to purchase
Ordinary Shares.)
FOR
VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
| Name: |
|
| Address: |
|
| Phone
Number: |
|
| Email
Address: |
|
| Date: |
|
| Holder’s
Signature: |
|
| Holder’s
Address: |
|
Exhibit
99.6
NEITHER
THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE
OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
PIPE
PRE-FUNDED WARRANT TO PURCHASE ORDINARY SHARES
SMX
(SECURITY MATTERS) PUBLIC LIMITED COMPANY
| Warrant
Shares: [●] |
Initial
Exercise Date: September 11, 2024 |
| |
Issuance
Date: September 12, 2024 |
THIS
PRE-FUNDED WARRANT TO PURCHASE ORDINARY SHARES (the “Warrant”) certifies that, for value received, [●]
or its assigns (the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the
conditions hereinafter set forth, at any time until this Warrant is exercised in full (the “Termination Date”)
, to subscribe for and purchase from SMX (Security Matters) Public Limited Company, an Irish corporation (the “Company”),
up to [●] ordinary shares (as subject to adjustment hereunder, the “Warrant Shares”). The purchase price
of one (1) Ordinary Share under this Warrant shall be equal to the Exercise Price, as defined in Section 2.2.
| 1. |
Definitions.
In addition to the terms defined elsewhere in this Warrant or in the Securities Purchase Agreement dated September 11, 2024
by and among the Company and the investors (the “Purchasers”) referred to therein (the “Securities
Purchase Agreement”), the following terms have the meanings indicated in this Section 1: |
1.1.
“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is
controlled by or is under common control with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
1.2.
“Bid Price” means, for any date, the price determined by the first of the following clauses that applies: (a)
if the Ordinary Shares are then listed or quoted on a Trading Market, the bid price of the Ordinary Shares for the time in question (or
the nearest preceding date) on the Trading Market on which the Ordinary Shares are then listed or quoted as reported by Bloomberg L.P.
(based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading
Market, the volume weighted average price of the Ordinary Shares for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable,
(c) if the Ordinary Shares are not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Ordinary Shares are then
reported on the Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent
bid price per Ordinary Share so reported, or (d) in all other cases, the fair market value of an Ordinary Share as determined by an independent
appraiser selected in good faith by the Holders of a majority in interest of the Warrants then outstanding and reasonably acceptable
to the Company, the fees and expenses of which shall be paid by the Company.
1.3.
“Board of Directors” means the board of directors of the Company.
1.4.
“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.
1.5.
“Commission” means the United States Securities and Exchange Commission.
1.6.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder.
1.7.
“Ordinary Share” means the ordinary shares of the Company, $0.165 par value per share, and any other class
of securities into which such securities may hereafter be reclassified or changed.
1.8.
“Ordinary Share Equivalents” means any securities of the Company or the Subsidiaries which would entitle the
holder thereof to acquire at any time Ordinary Shares, including, without limitation, any debt, preferred stock, right, option, warrant
or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof
to receive, Ordinary Shares.
1.9.
“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association,
joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any
kind.
1.10.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
1.11.
“Series A Warrant” shall have the meaning ascribed to such term in the Securities Purchase Agreement.
1.12.
“Subsidiary” means any subsidiary of the Company and shall, where applicable, also include any direct or indirect
subsidiary of the Company formed or acquired after the date hereof.
1.13.
“Trading Day” means a day on which the Ordinary Shares are traded on a Trading Market.
1.14.
“Trading Market” means any of the following markets or exchanges on which the Ordinary Shares are listed or
quoted for trading on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global
Select Market, the New York Stock Exchange, OTCQB or OTCQX (or any successors to any of the foregoing).
1.15.
“Transaction Documents” means the Securities Purchase Agreement dated September 10, 2024, these Warrants, such
other Warrants as contemplated in the Securities Purchase Agreement, the Registration Rights Agreement, the Placement Agent Agreement,
the Lock-Up Agreement and all exhibits and schedules thereto and hereto and any other documents or agreements executed in connection
with the transactions contemplated hereunder.
1.16.
“Transfer Agent” means Continental Stock Transfer & Trust Company, the current transfer agent of the Company,
with a mailing address of 1 State Street, 30th Floor, New York, NY 10004-1561, and any successor transfer agent of the Company.
1.17.
“VWAP” means, for any date, the price determined by the first of the following clauses that applies: (a) if
the Ordinary Shares are then listed or quoted on a Trading Market, the daily volume weighted average price of the Ordinary Shares for
such date (or the nearest preceding date) on the Trading Market on which the Ordinary Shares are then listed or quoted as reported by
Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX
is not a Trading Market, the volume weighted average price of the Ordinary Shares for such date (or the nearest preceding date) on OTCQB
or OTCQX as applicable, (c) if the Ordinary Shares are not then listed or quoted for trading on OTCQB or OTCQX and if prices for the
Ordinary Shares are then reported on the Pink Open Market (or a similar organization or agency succeeding to its functions of reporting
prices), the most recent bid price per Ordinary Share so reported, or (d) in all other cases, the fair market value of an Ordinary Share
as determined by an independent appraiser selected in good faith by the holders of a majority in interest of the Warrants then outstanding
and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
1.18.
“Warrants” means this Warrant and other Ordinary Shares purchase warrants issued by the Company pursuant to
the Securities Purchase Agreement.
2.1.
Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any
time or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed
PDF copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise substantially in the form attached hereto as Exhibit 2.1
(the “Notice of Exercise”). Within the earlier of (i) one (1) Trading Day and (ii) the number of Trading
Days comprising the Standard Settlement Period (as defined in Section 2.4.1 herein) following the date of exercise as aforesaid, the
Holder shall deliver the aggregate Exercise Price for the Warrant Shares specified in the applicable Notice of Exercise by wire transfer
or cashier’s check drawn on a United States bank unless the cashless exercise procedure specified in Section 2.3 below is specified
in the applicable Notice of Exercise. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other
type of guarantee or notarization) of any Notice of Exercise be required. Notwithstanding anything herein to the contrary, the Holder
shall not be required to physically surrender this Warrant to the Company until the Holder has purchased all of the Warrant Shares available
hereunder and the Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation
within three (3) Trading Days after the date on which the final Notice of Exercise is delivered to the Company. Partial exercises of
this Warrant resulting in purchases of a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering
the outstanding number of Warrant Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased.
The Holder and the Company shall maintain records showing the number of Warrant Shares purchased and the date of such purchases. The
Company shall deliver any objection to any Notice of Exercise within one (1) Trading Day of receipt of such notice. The Holder and
any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the
purchase of a portion of the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time
may be less than the amount stated on the face hereof.
2.2.
Exercise Price. The aggregate exercise price of this Warrant, except for a nominal exercise price of $0.0001 per Warrant
Share, subject to adjustment hereunder (such nominal exercise price, the “Exercise Price”), was pre-funded
to the Company on or prior to the Initial Exercise Date and, consequently, no additional consideration (other than such Exercise Price)
shall be required to be paid by the Holder to any Person to effect any exercise of this Warrant. The Holder shall not be entitled to
the return or refund of all, or any portion, of such pre-paid aggregate exercise price under any circumstance or for any reason whatsoever.
2.3.
Cashless Exercise. This Warrant may also be exercised, in whole or in part, by means of a “cashless exercise”
in which the Holder shall be entitled to receive a number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by
(A), where:
| |
(A)
= |
as
applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of
Exercise is (1) both executed and delivered pursuant to Section 2.1 hereof on a day that is not a Trading Day or (2) both executed
and delivered pursuant to Section 2.1 hereof on a Trading Day prior to the opening of “regular trading hours” (as defined
in Rule 600(b) 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 Notice of Exercise or (z) the Bid Price of
the Ordinary Shares on the principal Trading Market as reported by Bloomberg L.P. as of the time of the Holder’s execution
of the applicable Notice of Exercise if such Notice of Exercise is executed during “regular trading hours” on a Trading
Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close of “regular trading hours”
on a Trading Day) pursuant to Section 2.1 hereof or (iii) the VWAP on the date of the applicable Notice of Exercise if the date of
such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered pursuant to Section 2.1 hereof
after the close of “regular trading hours” on such Trading Day; |
| |
(B)
= |
the
Exercise Price of this Warrant, as adjusted hereunder; and |
| |
|
|
| |
(X)
= |
the
number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such
exercise were by means of a cash exercise rather than a cashless exercise. |
If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Rule 144(d)(3),
the holding period of the Warrant Shares being issued may be tacked on to the holding period of this Warrant. Without limiting any other
provision in the Transaction Documents, assuming (i) the Holder is not an Affiliate of the Company, and (ii) all of the applicable conditions
of Rule 144 promulgated under the Securities Act with respect to Holder and the Warrant Shares are met in the case of such a cashless
exercise, the Company agrees that the Company will cause the removal of the legend from such Warrant Shares (including by delivering
an opinion of the Company’s counsel to the Company’s transfer agent at its own expense to ensure the foregoing), and the
Company agrees that the Holder is under no obligation to sell the Warrant Shares issuable upon the exercise of the Warrant prior to removing
the legend. The Company agrees not to take any position contrary to this Section 2.3.
2.4.
Mechanics of Exercise.
2.4.1.
Delivery of Warrant Shares upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted
by the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository
Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant
in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale
of the Warrant Shares by Holder or (B) the Warrant Shares are eligible for resale by the Holder without volume or manner-of-sale limitations
pursuant to Rule 144 (assuming cashless exercise of the Warrants), and otherwise by physical delivery of a certificate or by electronic
delivery (at the election of the Holder), for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise
to the address specified by the Holder in the Notice of Exercise by the date that is the earlier of (i) one (1) Trading Day after the
delivery to the Company of the Notice of Exercise and (ii) the number of Trading Days comprising the Standard Settlement Period after
the delivery to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery Date”). Upon
delivery of the Notice of Exercise, 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 of delivery of the Warrant Shares, provided
that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received within the earlier of (i) one
(1) Trading Day and (ii) the number of Trading Days comprising the Standard Settlement Period following delivery of the Notice of Exercise.
Notwithstanding anything herein to the contrary, upon delivery of the Notice of Exercise, the Holder shall be deemed for purposes of
Regulation SHO under the Exchange Act to have become the holder of the Warrant Shares irrespective of the date of delivery of the Warrant
Shares. If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant
Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant
Shares subject to such exercise (based on the VWAP of the Ordinary Shares on the date of the applicable Notice of Exercise), $10 per
Trading Day (increasing to $20 per Trading Day on the third (3rd) Trading Day after the Warrant Share Delivery Date) for each Trading
Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees
to maintain a Transfer Agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As
used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading
Days, on the Company’s primary Trading Market with respect to the Ordinary Shares as in effect on the date of delivery of the Notice
of Exercise. Notwithstanding the foregoing, with respect to any Notice(s) of Exercise delivered on or prior to 12:00 p.m. (New York City
time) on the Initial Exercise Date, which may be delivered at any time after the time of execution of the Securities Purchase Agreement,
the Company agrees to deliver the Warrant Shares subject to such notice(s) by 4:00 p.m. (New York City time) on the Initial Exercise
Date and the Initial Exercise Date shall be the Warrant Share Delivery Date for purposes hereunder, provided that payment of the aggregate
Exercise Price (other than in the case of a cashless exercise) is received by such Warrant Share Delivery Date.
2.4.2.
Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request
of a Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new
Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant
shall in all other respects be identical with this Warrant.
2.4.3.
Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant
to Section 2.4.1 by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
2.4.4.
Compensation for Buy-In on Failure to Timely Deliver Warrant Shares upon Exercise. In addition to any other rights available
to the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions
of Section 2.4.1 above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required
by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, Ordinary
Shares to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise
(a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s
total purchase price (including brokerage commissions, if any) for the Ordinary Shares so purchased exceeds (y) the amount obtained by
multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise at
issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B) at the option of the
Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise was not honored and
return any amount received by the Company in respect of the Exercise Price for those Warrant Shares (in which case such exercise shall
be deemed rescinded) or deliver to the Holder the number of Ordinary Shares that would have been issued had the Company timely complied
with its exercise and delivery obligations hereunder. For example, if the Holder purchases Ordinary Shares having a total purchase price
of $11,000 to cover a Buy-In with respect to an attempted exercise of Ordinary Shares with an aggregate sale price giving rise to such
purchase obligation of $10,000, under clause (A) of the immediately preceding sentence the Company shall be required to pay the Holder
$1,000. The Holder shall provide the Company written notice indicating the amounts payable to the Holder in respect of the Buy-In and,
upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit a Holder’s right to pursue any other
remedies available to 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 Ordinary Shares upon exercise of the Warrant as required pursuant
to the terms hereof.
2.4.5.
No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise
of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company
shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied
by the Exercise Price or round up to the next whole share.
2.4.6.
Charges, Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer
tax or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the
Company, and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder;
provided, however, that, in the event that Warrant Shares are to be issued in a name other than the name of the Holder,
this Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto as Exhibit 2.4.6 duly executed
by the Holder and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax
incidental thereto. The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all
fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day
electronic delivery of the Warrant Shares.
2.4.7.
Closing of Books. The Company will not close its shareholder books or records in any manner which prevents the timely exercise
of this Warrant, pursuant to the terms hereof.
2.5.
Holder’s Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not
have the right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to
such issuance after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates,
and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution
Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of
the foregoing sentence, the number of Ordinary Shares beneficially owned by the Holder and its Affiliates and Attribution Parties shall
include the number of Ordinary Shares issuable upon exercise of this Warrant with respect to which such determination is being made,
but shall exclude the number of Ordinary Shares which would be issuable upon (i) exercise of the remaining, unexercised portion of this
Warrant beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised
or unconverted portion of any other securities of the Company (including, without limitation, any other Ordinary Share Equivalents) subject
to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its
Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2.5, beneficial ownership
shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being
acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d)
of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent
that the limitation contained in this Section 2.5 applies, the determination of whether this Warrant is exercisable (in relation to other
securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable
shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination
of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution
Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company
shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status
as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder. For purposes of this Section 2.5, in determining the number of outstanding Ordinary Shares, a Holder may rely on the number
of outstanding Ordinary Shares as reflected in (A) the Company’s most recent periodic or annual report filed with the Commission,
as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company or the Transfer
Agent setting forth the number of Ordinary Shares outstanding. Upon the written or oral request of a Holder, the Company shall within
one (1) Trading Day confirm orally and in writing 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 or its Affiliates or Attribution Parties since the date as of which such number of outstanding Ordinary Shares
was reported. The “Beneficial Ownership Limitation” shall be 4.99% (or, upon election by a Holder prior to
the issuance of any Warrants, 9.99%) of the number of Ordinary Shares outstanding immediately after giving effect to the issuance of
Ordinary Shares issuable upon exercise of this Warrant. The Holder, upon notice to the Company, may increase or decrease the Beneficial
Ownership Limitation provisions of this Section 2.5, provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the
number of Ordinary Shares outstanding immediately after giving effect to the issuance of Ordinary Shares upon exercise of this Warrant
held by the Holder and the provisions of this Section 2.5 shall continue to apply. Any increase in the Beneficial Ownership Limitation
will not be effective until the 61st day after such notice is delivered to the Company. The provisions of this paragraph shall
be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 2.5 to correct this paragraph
(or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or
to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph
shall apply to a successor holder of this Warrant.
3.1.
Share Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a share dividend or
otherwise makes a distribution or distributions on Ordinary Shares or any other equity or equity equivalent securities payable in Ordinary
Shares (which, for avoidance of doubt, shall not include any Ordinary Shares issued by the Company upon exercise of this Warrant), (ii)
subdivides outstanding Ordinary Shares into a larger number of shares, (iii) combines (including by way of reverse share split) outstanding
Ordinary Shares into a smaller number of shares, or (iv) issues by reclassification of Ordinary Shares any capital shares of the Company,
then in each case the Exercise Price shall be multiplied by a fraction of which the numerator shall be the number of Ordinary Shares
(excluding treasury shares, if any) outstanding immediately before such event and of which the denominator shall be the number of Ordinary
Shares outstanding immediately after such event, and the number of Shares issuable upon exercise of this Warrant shall be proportionately
adjusted such that the aggregate Exercise Price of this Warrant shall remain unchanged. Any adjustment made pursuant to this Section
3.1 shall become effective immediately after the record date for the determination of shareholders entitled to receive such dividend
or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.
3.2.
Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 3.1 above, if at any time the Company grants,
issues or sells any Ordinary Share Equivalents or rights to purchase share, 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 exercise of this Warrant (without regard
to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date
on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which
the record holders of Ordinary Shares are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that,
to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial
Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership
of such Ordinary Shares as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance
for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
3.3.
Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend
or other distribution of its assets (or rights to acquire its assets) to all (or substantially all) holders of Ordinary Shares, by way
of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options
by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”),
at any time after the issuance of this Warrant, then, in each such case, 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 on exercise hereof, including without limitation, the Beneficial
Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the
date as of which the record holders of Ordinary Shares are to be determined for the participation in such Distribution (provided, however,
that, to the extent that the Holder’s right to participate in any such Distribution would result in the Holder exceeding the Beneficial
Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial
ownership of any Ordinary Shares as a result of such Distribution to such extent) and the portion of such Distribution shall be held
in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the
Beneficial Ownership Limitation). To the extent that this Warrant has not been partially or completely exercised at the time of such
Distribution, such portion of the Distribution shall be held in abeyance for the benefit of the Holder until the Holder has exercised
this Warrant.
3.4.
Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in
one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company or
any Subsidiary, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all
or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender
offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Ordinary Shares are permitted
to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of
the outstanding Ordinary Shares or 50% or more of the voting power of the common equity of the Company, (iv) the Company, directly or
indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares
or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities,
cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase
agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme
of arrangement) with another Person or group of Persons whereby such other Person or group acquires 50% or more of the outstanding Ordinary
Shares or 50% or more of the voting power of the common equity of the Company (each a “Fundamental Transaction”),
then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have
been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without
regard to any limitation in Section 2.5 on the exercise of this Warrant), the number of Ordinary Shares of the successor or acquiring
corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”)
receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares for which this Warrant is exercisable
immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2.5 on the exercise of this Warrant).
For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate
Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share in such Fundamental Transaction,
and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value
of any different components of the Alternate Consideration. If holders of Ordinary Shares are given any choice as to the securities,
cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration
it receives upon any exercise of this Warrant following such Fundamental Transaction. Notwithstanding anything to the contrary, in the
event of a Fundamental Transaction, the Company or any Successor Entity (as defined below) shall, at the Holder’s option, exercisable
at any time concurrently with, or within 30 days after, the consummation of the Fundamental Transaction (or, if later, the date of the
public announcement of the applicable Fundamental Transaction), purchase this Warrant from the Holder by paying to the Holder an amount
of cash equal to the Black Scholes Value (as defined below) of the remaining unexercised portion of this Warrant on the date of the consummation
of such Fundamental Transaction; provided, however, that, if the Fundamental Transaction is not within the Company’s control, including
not approved by the Company’s Board of Directors, the Holder shall only be entitled to receive from the Company or any Successor
Entity the same type or form of consideration (and in the same proportion), at the Black Scholes Value of the unexercised portion of
this Warrant, that is being offered and paid to the holders of Ordinary Shares of the Company in connection with the Fundamental Transaction,
whether that consideration be in the form of cash, stock or any combination thereof, or whether the holders of Ordinary Shares are given
the choice to receive from among alternative forms of consideration in connection with the Fundamental Transaction; provided, further,
that if holders of Ordinary Shares of the Company are not offered or paid any consideration in such Fundamental Transaction, such holders
of Ordinary Shares will be deemed to have received common stock/shares of the Successor Entity (which Entity may be the Company following
such Fundamental Transaction) in such Fundamental Transaction. “Black Scholes Value” means the value of this
Warrant based on the Black-Scholes Option Pricing Model obtained from the “OV” function on Bloomberg, L.P. (“Bloomberg”)
determined as of the day of consummation of the applicable contemplated Fundamental Transaction for pricing purposes and reflecting (A)
a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the time between the date of the public announcement
of the applicable contemplated Fundamental Transaction and the Termination Date, (B) an expected volatility equal to the greater of (1)
100% and (2) the 100 day volatility as obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor)
as of the Trading Day immediately following the public announcement of the applicable contemplated Fundamental Transaction, (C) the underlying
price per share used in such calculation shall be the greater of (i) the sum of the price per share being offered in cash, if any, plus
the value of any non-cash consideration, if any, being offered in such Fundamental Transaction and (ii) the highest VWAP during the period
beginning on the Trading Day immediately preceding the public announcement of the applicable contemplated Fundamental Transaction (or
the consummation of the applicable Fundamental Transaction, if earlier) and ending on the Trading Day of the Holder’s request pursuant
to this Section 3.4 and (D) a remaining option time equal to the time between the date of the public announcement of the applicable contemplated
Fundamental Transaction and the Termination Date and (E) a zero cost of borrow. The payment of the Black Scholes Value will be made by
wire transfer of immediately available funds (or such other consideration) within the later of (i) five (5) Business Days after the Holder’s
election and (ii) the date of consummation of the Fundamental Transaction. The Company shall cause any successor entity in a Fundamental
Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the
obligations of the Company under this Warrant and the other Transaction Documents in accordance with the provisions of this Section 3.4
pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable
delay) prior to such Fundamental Transaction and shall, at the option of the Holder, 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 that
is exercisable for a corresponding number of shares of such Successor Entity (or its parent entity) 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 Successor Entity shares (but
taking into account the relative value of the Ordinary Shares prior to such Fundamental Transaction and the value of such Successor Entity
shares, such number of Successor Entity shares and such exercise price for the purpose of protecting the economic value of this Warrant
immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to
the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall be added to the term “Company”
under this Warrant (so that from and after the occurrence or consummation of such Fundamental Transaction, each and every provision of
this Warrant and the other Transaction Documents referring to the “Company” shall refer instead to each of the Company and
the Successor Entity or Successor Entities, jointly and severally), and the Successor Entity or Successor Entities, jointly and severally
with the Company, may exercise every right and power of the Company prior thereto and the Successor Entity or Successor Entities shall
assume all of the obligations of the Company prior thereto under this Warrant and the other Transaction Documents with the same effect
as if the Company and such Successor Entity or Successor Entities, jointly and severally, had been named as the Company herein. For the
avoidance of doubt, the Holder shall be entitled to the benefits of the provisions of this Section 3.4 regardless of (i) whether the
Company has sufficient authorized Ordinary Shares for the issuance of Warrant Shares and/or (ii) whether a Fundamental Transaction occurs
prior to the Initial Exercise Date.
3.5.
Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share,
as the case may be. For purposes of this Section 3, the number of Ordinary Shares deemed to be issued and outstanding as of a given date
shall be the sum of the number of Ordinary Shares (excluding treasury shares, if any) issued and outstanding.
3.6.
Notice to Holder.
3.6.1.
Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the
Company shall promptly deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting
adjustment to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
3.6.2.
Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever
form) on the Ordinary Shares, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Ordinary Shares,
(C) the Company shall authorize the granting to all holders of the Ordinary Shares rights or warrants to subscribe for or purchase any
other shares of any class or of any rights, (D) the approval of any shareholders of the Company shall be required in connection with
any reclassification of the Ordinary Shares, any consolidation or merger to which the Company (or any of its Subsidiaries) is a party,
any sale or transfer of all or substantially all of its assets, or any compulsory share exchange whereby the Ordinary Shares are converted
into other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or
winding up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by email to the Holder at its last
email address as it shall appear upon the Warrant Register of the Company, at least 20 calendar days prior to the applicable record or
effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend,
distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Ordinary Shares
of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which
such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date
as of which it is expected that holders of the Ordinary Shares of record shall be entitled to exchange their Ordinary Shares for securities,
cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that
the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action
required to be specified in such notice. To the extent that any notice provided in this Warrant constitutes, or contains, material, non-public
information regarding the Company or any of the Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant
to a Report of Foreign Private Issuer on Form 6-K. The Holder shall remain entitled to exercise this Warrant during the period commencing
on the date of such notice to the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
4.1.
Transferability. Subject to compliance with any applicable securities laws and the conditions set forth in Section 4.4
hereof, this Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable, in whole or
in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written assignment
of this Warrant substantially in the form attached hereto as Exhibit 2.4.6 duly executed by the Holder or its agent or attorney and funds
sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the
Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination
or denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of
this Warrant not so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder
shall not be required to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full, in which
case, the Holder shall surrender this Warrant to the Company within three (3) Trading Days after the date on which the Holder delivers
an assignment form to the Company assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised
by a new holder for the purchase of Warrant Shares without having a new Warrant issued.
4.2.
New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office
of the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed
by the Holder or its agent or attorney. Subject to compliance with Section 4.1, as to any transfer which may be involved in such division
or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided
or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the initial Issuance Date of
this Warrant and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
4.3.
Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose
(the “Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and
treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to
the Holder, and for all other purposes, absent actual notice to the contrary.
4.4.
Transfer Restrictions. If, at the time of the surrender of this Warrant in connection with any transfer of this Warrant,
the transfer of this Warrant shall not be either (i) registered pursuant to an effective registration statement under the Securities
Act and under applicable state securities or blue sky laws or (ii) eligible for resale without volume or manner-of-sale restrictions
or current public information requirements pursuant to Rule 144, the Company may require, as a condition of allowing such transfer, that
(x) the transferor (other than in connection with a transfer to an Affiliate of the transferor) provide to the Company an opinion of
counsel to the effect that such transfer does not require registration of such transferred Warrant under the Securities Act and (y) that
the transferee agree in writing to be bound by the terms of the Securities Purchase Agreement and Registration Rights Agreement, with
all the rights and obligations of a Purchaser under such agreements.
4.5.
Representation by the Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring this Warrant
and, upon any exercise hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account and not with a view to
or for distributing or reselling such Warrant Shares or any part thereof in violation of the Securities Act or any applicable state securities
law, except pursuant to sales registered or exempted under the Securities Act.
5.1.
No Rights as Shareholder until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting
rights, dividends or other rights as a shareholder of the Company prior to the exercise hereof as set forth in Section 2.4.1, except
as expressly set forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise”
pursuant to Section 2.3 or to receive cash payments pursuant to Section 2.4.1 and Section 2.4.4 herein, in no event shall the Company
be required to net cash settle an exercise of this Warrant.
5.2.
Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any share certificate relating to the Warrant Shares,
and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant,
shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or share certificate, if mutilated, the
Company will make and deliver a new Warrant or share certificate of like tenor and dated as of such cancellation, in lieu of such Warrant
or share certificate.
5.3.
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right
required or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding
Business Day.
5.4.
Authorized Shares.
5.4.1.
Reservation of Authorized and Unissued Shares. The Company covenants that, during the period the Warrant is outstanding,
it will reserve from its authorized and unissued Ordinary Shares a sufficient number of Ordinary Shares to provide for the issuance of
the Warrant Shares upon the exercise of any purchase rights under this Warrant. The Company further covenants that its issuance of this
Warrant shall constitute full authority to its officers who are charged with the duty of issuing the necessary Warrant Shares upon the
exercise of the purchase rights under this Warrant. The Company will take all such reasonable action as may be necessary to assure that
such Warrant Shares may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of
the Trading Market upon which the Ordinary Shares may be listed. The Company covenants that all Warrant Shares which may be issued upon
the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant
and payment for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable (which means
that no further sums are required to be paid by the holders thereof in connection with the issue thereof) and free from all taxes, liens
and charges created by the Company in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously
with such issue).
5.4.2.
Noncircumvention. Except and to the extent as waived or consented to by the Holder, the Company shall not by any action,
including, without limitation, amending its certificate of incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance
of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking
of all such actions as may be necessary or appropriate to protect the rights of Holder as set forth in this Warrant against impairment.
Without limiting the generality of the foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount
payable therefor upon such exercise immediately prior to such increase in par value, (ii) take all such action as may be necessary or
appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of
this Warrant and (iii) use commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any public
regulatory body having jurisdiction thereof, as may be, necessary to enable the Company to perform its obligations under this Warrant.
5.4.3.
Authorizations, Exemptions and Consents. Before taking any action that would result in an adjustment in the number of Warrant
Shares for which this Warrant is exercisable or in the Exercise Price, the Company shall obtain all such authorizations or exemptions
thereof, or consents thereto, as may be necessary from any public regulatory body or bodies having jurisdiction thereof.
5.5.
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall
be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles
of conflicts of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of
the transactions contemplated by this Warrant (whether brought against a party hereto or their respective affiliates, directors, officers,
shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City
of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City
of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated
hereby or discussed herein, 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 improper or is an inconvenient
venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any
such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery)
to such party at the address in effect for notices to it under this Warrant and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any
other manner permitted by law. If either party shall commence an action, suit or proceeding to enforce any provisions of this Warrant,
the prevailing party in such action, suit or proceeding shall be reimbursed by the other party for their reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding. Notwithstanding
the foregoing, nothing in this paragraph shall limit or restrict the federal district court in which a Holder may bring a claim under
the federal securities laws.
5.6.
Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered,
and the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
5.7.
Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder
shall operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies, notwithstanding the fact
that the right to exercise this Warrant terminates on the Termination Date. No provision of this Warrant shall be construed as a waiver
by the Holder of any rights which the Holder may have under the federal securities laws and the rules and regulations of the Commission
thereunder. Without limiting any other provision of this Warrant or the Securities Purchase Agreement, if the Company willfully and knowingly
fails to comply with any provision of this Warrant, which results in any material damages to the Holder, the Company shall pay to the
Holder such amounts as shall be sufficient to cover any costs and expenses including, but not limited to, reasonable attorneys’
fees, including those of appellate proceedings, incurred by the Holder in collecting any amounts due pursuant hereto or in otherwise
enforcing any of its rights, powers or remedies hereunder.
5.8.
Notices. Any and all notices or other communications or deliveries to be provided by the Holders hereunder including, without
limitation, any Notice of Exercise, shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight
courier service, addressed to the Company, at Mespil Business Centre, Mespil House, Sussex Road, Dublin 4, Ireland, Attention: Haggai
Alon, Chief Executive Officer, email address: haggai@securitymattersltd.com, or such other email address or address as the Company may
specify for such purposes by notice to the Holders. Any and all notices or other communications or deliveries to be provided by the Company
hereunder shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier service addressed
to each Holder at the e-mail address or address of such Holder appearing on the books of the Company. Any notice or other communication
or deliveries hereunder shall be deemed given and effective on the earliest of (i) the time of transmission, if such notice or communication
is delivered via e-mail at the e-mail address set forth in this Section 5.8 prior to 5:30 p.m. (New York City time) on any date, (ii)
the next Trading Day after the time of transmission, if such notice or communication is delivered via e-mail at the e-mail address set
forth in this Section 5.8 on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the
second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual
receipt by the party to whom such notice is required to be given. To the extent that any notice provided hereunder constitutes, or contains,
material, non-public information regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice with the
Commission pursuant to a Report of Foreign Private Issuer on Form 6-K.
5.9.
Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant
to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of
the Holder for the purchase price of any Ordinary Shares or as a shareholder of the Company, whether such liability is asserted by the
Company or by creditors of the Company.
5.10.
Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to
assert the defense in any action for specific performance that a remedy at law would be adequate.
5.11.
Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby
shall inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted
assigns of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant
and shall be enforceable by the Holder or holder of Warrant Shares.
5.12.
Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company,
on the one hand, and a majority-in-interest of Holders of the Warrants, on the other hand.
5.13.
Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
5.14.
Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be
deemed a part of this Warrant.
********************
[SMX
Investor PIPE Pre-Funded Warrant Signature Page Follows]
[SMX
Investor PIPE Pre-Funded Warrant Signature Page]
IN
WITNESS WHEREOF, the Company has caused this PIPE Pre-Funded Warrant to be executed by its officer thereunto duly authorized as of the
date first above indicated.
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SMX
(SECURITY MATTERS) PUBLIC LIMITED COMPANY |
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By: |
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Name: |
Haggai
Alon |
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Its: |
Chief
Executive Officer |
Exhibit
2.1
NOTICE
OF EXERCISE
| To: |
SMX
(SECURITY MATTERS) PUBLIC LIMITED COMPANY |
(1)
The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only
if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2)
Payment shall take the form of (check applicable box):
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in
lawful money of the United States. |
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[ ] |
if
permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection
2.3, to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise
procedure set forth in subsection 2.3. |
(3)
Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
_______________________________
The
Warrant Shares shall be delivered to the following DWAC Account Number:
_______________________________
_______________________________
_______________________________
(4)
The undersigned is an “accredited investor” as defined in Regulation D promulgated under the Securities Act of 1933, as amended.
[SIGNATURE
OF HOLDER]
| Name
of Investing Entity: |
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| Signature
of Authorized Signatory of Investing Entity: |
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| Name
of Authorized Signatory: |
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| Title
of Authorized Signatory: |
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| Date:
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Exhibit
2.4.6
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, execute this form and supply required information. Do not use this form to exercise the Warrant to purchase
Ordinary Shares.)
FOR
VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
| Name: |
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| Phone
Number: |
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| Email
Address: |
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| Date: |
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| Holder’s
Signature: |
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| Holder’s
Address: |
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Exhibit 99.7
SMX
(Security Matters) Public Limited Company – Lock-up Agreement
September
11, 2024
SMX
(Security Matters) Public Limited Company
Mespil
Business Centre
Mespil
House, Sussex Road
Dublin
4, Ireland
Ladies
and Gentlemen:
The
undersigned understands that SMX (Security Matters) Public Limited Company, an Irish corporation (the “Company”),
entered into a Securities Purchase Agreement (the “SPA”) on September 11, 2024 with each purchaser (each, an
“Investor”, and collectively “Investors”) identified on the signature page of the
SPA, providing for the private placement (the “Transaction”) of Ordinary Shares, $0.165 par value per share,
of the Company (“Shares”), warrants and pre-funded warrants (together, “Warrants”)
to purchase Ordinary Shares, and in connection therewith, to enter into a registration rights agreement with the Investors.
To
induce the Company to continue its efforts in connection with the Transaction, the undersigned hereby irrevocably enters into this Lock-Up
Agreement (this “Agreement”) agrees that the undersigned will not, during the period commencing on the date
hereof and ending ninety (90) days after the Release Date (as defined in the SPA) (the “Lock-Up Period”), (1)
offer, pledge, sell, contract to sell, grant, lend, or otherwise transfer or dispose of, directly or indirectly, any Shares or any securities
convertible into or exercisable or exchangeable for Shares, whether now owned or hereafter acquired by the undersigned (or any Affiliate
of the undersigned) or with respect to which the undersigned (or any Affiliate of the undersigned) has or hereafter acquires the power
of disposition (collectively, the “Lock-Up Securities”); (2) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of ownership of the Lock-Up Securities, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up Securities, in cash or otherwise; (3) make any
demand for or exercise any right with respect to the registration of any Lock-Up Securities; or (4) publicly disclose the intention to
make any offer, sale, pledge or disposition, or to enter into any transaction, swap, hedge or other arrangement relating to any Lock-Up
Securities.
Notwithstanding
the foregoing, and subject to the conditions below, the undersigned may transfer Lock-Up Securities in connection with:
| 1. |
transfers
of Lock-Up Securities as a bona fide gift, by will or intestacy or to a family member or trust for the benefit of the undersigned
(for purposes of this lock-up agreement, “family member” means any relationship by blood, marriage or adoption, not more
remote than first cousin) provided that the transferee agrees to sign and deliver a lock-up agreement substantially in the
form of this lock-up agreement for the balance of the Lock-Up Period; |
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| 2. |
transfers
of Lock-Up Securities to a charity or educational institution; |
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if
the undersigned is a corporation, partnership, limited liability company or other business entity, (i) any transfers of Lock-Up Securities
to another corporation, partnership or other business entity that controls, is controlled by or is under common control with the
undersigned or (ii) distributions of Lock-Up Securities to members, partners, shareholders, subsidiaries or affiliates (as defined
in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigned as of the date of this Agreement, provided
that the transferee agrees to sign and deliver a lock-up agreement substantially in the form of this lock-up agreement for the
balance of the Lock-Up Period; |
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if
the undersigned is a trust, to a trustee or beneficiary of the trust provided that in the case of any transfer pursuant to
the foregoing clauses (b), (c) (d) or (e), (i) any such transfer shall not involve a disposition for value, (ii) each transferee
shall sign and deliver to the Company a lock-up agreement substantially in the form of this lock-up agreement and (iii) no filing
under Section 13 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other
public announcement shall be required or shall be voluntarily made during the Lock-Up Period; |
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the
receipt by the undersigned from the Company of Shares upon the vesting of restricted share awards or share units or upon the exercise
of options to purchase the Shares issued under an equity incentive plan of the Company or an employment arrangement (the “Plan
Shares”) or the transfer or withholding of Shares or any securities convertible into Shares to the Company upon
a vesting event of the Company’s securities or upon the exercise of options to purchase the Company’s securities, in
each case on a “cashless” or “net exercise” basis or to cover tax obligations of the undersigned in connection
with such vesting or exercise provided that if the undersigned is required to file a report under Section 13 of the Exchange
Act reporting a reduction in beneficial ownership of Shares during the Lock-Up Period, the undersigned shall include a statement
in such schedule or report to the effect that the purpose of such transfer was to cover tax withholding obligations of the undersigned
in connection with such vesting or exercise and, provided further that the Plan Shares shall be subject to the terms of this
lock-up agreement; |
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the
establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of Lock-Up Securities provided
that (i) such plan does not provide for the transfer of Lock-Up Securities during the Lock-Up Period and (ii) to the extent a
public announcement or filing under the Exchange Act, if any, is required of or voluntarily made by or on behalf of the undersigned
or the Company regarding the establishment of such plan, such public announcement or filing shall include a statement to the effect
that no transfer of Lock-Up Securities may be made under such plan during the Lock-Up Period; |
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the
transfer of Lock-Up Securities that occurs by operation of law, such as pursuant to a qualified domestic order or in connection with
a divorce settlement, provided that the transferee agrees to sign and deliver a lock-up agreement substantially in the form
of this lock-up agreement for the balance of the Lock-Up Period, and provided further that any filing under Section 13 of
the Exchange Act that is required to be made during the Lock-Up Period as a result of such transfer shall include a statement that
such transfer has occurred by operation of law; and provided further that competent legal counsel for the Company shall have
first advised that such transfer is a mandatory and not voluntary transfer; and |
| 8. |
the
transfer of Lock-Up Securities pursuant to a bona fide third party tender offer, merger, consolidation or other similar transaction
made to all holders of the Shares involving a change of control (as defined below) of the Company after the closing of the Transaction
and approved by the Company’s board of directors; provided that in the event that the tender offer, merger, consolidation
or other such transaction is not completed, the Lock-Up Securities owned by the undersigned shall remain subject to the restrictions
contained in this lock-up agreement. For purposes of clause (i) above, “change of control” shall mean the consummation
of any bona fide third party tender offer, merger, amalgamation, consolidation or other similar transaction the result of which is
that any “person” (as defined in Section 13(d)(3) of the Exchange Act), or group of persons, becomes the beneficial owner
(as defined in Rules 13d-3 and 13d-5 of the Exchange Act) of a majority of total voting power of the voting shares of the Company.
The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar
against the transfer of the undersigned’s Lock-Up Securities except in compliance with this lock-up agreement. |
This
Agreement may not be amended or otherwise modified in any respect without the written consent of each of the Company and the undersigned.
This Agreement shall be governed by and construed in accordance with the law of the State of New York. The undersigned hereby irrevocably
submits to the exclusive jurisdiction of the United States District Court sitting in the Southern District of New York and the courts
of the State of New York located in the City and County of New York, for the purposes of any suit, action or proceeding arising out of
or relating to this Agreement, and hereby waives, and agrees not to assert in any such suit, action or proceeding, any claim that (i)
it is not personally subject to the jurisdiction of such court, (ii) the suit, action or proceeding is brought in an inconvenient forum,
or (iii) the venue of the suit, action or proceeding is improper. The undersigned hereby irrevocably waives personal service of process
and consents to process being served in any such suit, action or proceeding by receiving a copy thereof sent to the Company at the address
in effect for notices to it under the SPA and agrees that such service shall constitute good and sufficient service of process and notice
thereof. The undersigned hereby waives any right to a trial by jury. Nothing contained herein shall be deemed to limit in any way any
right to serve process in any manner permitted by law. The undersigned agrees and understands that this Agreement does not intend to
create any relationship between the undersigned and any Purchaser and that no Purchaser is entitled to cast any votes on the matters
herein contemplated and that no issuance or sale of the Securities is created or intended by virtue of this Agreement.
The
undersigned understands that the Company is relying upon this lock-up agreement in proceeding toward consummation of the Transaction.
The undersigned further understands that this lock-up agreement is irrevocable and shall be binding upon the undersigned’s heirs,
legal representative, successors and assigns. This Letter Agreement is intended for the benefit of the parties hereto and their respective
successors and permitted assigns and is not for the benefit of, nor may any provisions hereof be enforced by, any of other person or
entity.
The
undersigned understands that, if the SPA is not executed by October 10, 2024 or if the SPA (other than the provisions thereof which survive
termination) shall terminate or be terminated prior to payment for and delivery of the Shares to be sold thereunder, then this lock-up
agreement shall be void and of no further force or effect.
Whether
or not the Transaction actually occurs depends on a number of factors, including market conditions. Any Transaction will only be made
pursuant to the SPA.
[SMX
Lock-Up Agreement Signature Page Follows]
[SMX
Lock-Up Agreement Signature Page]
The
undersigned has read and agrees to be bound by the terms of this Lock-Up Agreement dated as of September 10, 2024.
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Very
truly yours, |
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(Signature) |
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Name: |
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Address: |
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Exhibit
99.8
PRESS
RELEASE
SMX
(Security Matters) Public Limited Company Announces
$5.35
Million Private Placement
NEW
YORK, NY, SEPTEMBER 11, 2024 — SMX (Security Matters) Public Limited Company (NASDAQ: SMX) (the “Company”), a pioneer
in digitizing physical objects for a circular economy, today announced that it has entered into definitive agreements with institutional
investors for the purchase and sale of approximately $5,350,000 of Ordinary Shares and pre-funded and investor warrants at a price of
$1.00 per Common Unit.
The
offering consisted of the sale of 5,350,000 Common Units (or Pre-Funded Units), each consisting of one Ordinary Share or Pre-Funded Warrant
and two (2) Series A Common Warrants, each to purchase one (1) Ordinary Share per warrant at an exercise price of $1.00, and one (1)
Series B Common Warrants to purchase such number of Ordinary Shares as determined in the Series B warrant. The public offering price
per Common Unit was $1.00 (or $0.9999 for each Pre-Funded Unit, which is equal to the public offering price per Common Unit to be sold
in the offering minus an exercise price of $0.0001 per Pre-Funded Warrant). The Pre-Funded Warrants will be immediately exercisable subject
to registration and may be exercised at any time until exercised in full. For each Pre-Funded Unit sold in the offering, the number of
Common Units in the offering will be decreased on a one-for-one basis. The initial exercise price of each Series A Common Warrant is
$1.00 per Ordinary Share. The Series A Common Warrants are exercisable immediately subject to registration and expire 66 months after
the initial issuance date. The number of securities issuable under the Series A Common Warrant is subject to adjustment as described
in more detail in the report on Form 6-K filed in connection with the offering. The initial exercise price of each Series B Common Warrant
is $0.00001 per Ordinary Share. The Series B Common Warrants are exercisable immediately subject to registration. The number of securities
issuable under the Series B Common Warrant is subject to adjustment as described in more detail in the report on Form 6-K filed in connection
with the offering.
Aggregate
gross proceeds to the Company are expected to be approximately $5,350,000 million. The transaction is expected to close on or about September
12, 2024, subject to the satisfaction of customary closing conditions. The Company expects to use the net proceeds from the offering,
together with its existing cash, for general corporate purposes and working capital.
Aegis
Capital Corp. is acting as lead Placement Agent for the private placement. ClearThink Securities is acting as co-Placement Agent. Dickinson
Wright and Arthur Cox are acting as counsel to the Company. Kaufman & Canoles, P.C. is acting as counsel to Aegis Capital Corp.
The
securities described above are being sold in a private placement transaction not involving a public offering and have not been registered
under the Securities Act of 1933, as amended (the “Securities Act”), or applicable state securities laws. Accordingly, the
securities may not be reoffered or resold in the United States except pursuant to an effective registration statement or an applicable
exemption from the registration requirements of the Securities Act and such applicable state securities laws. The securities were offered
only to accredited investors. Pursuant to a registration rights agreement with the investors, the Company has agreed to file one or more
registration statements with the SEC covering the resale of the Ordinary Shares and the Shares issuable upon exercise of the pre-funded
warrants and warrants.
This
press release shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of these securities
in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under
the securities laws of any such state or jurisdiction.
About
SMX (Security Matters) Public Limited Company
As
global businesses face new and complex challenges relating to carbon neutrality and meeting new governmental and regional regulations
and standards, SMX is able to offer players along the value chain access to its marking, tracking, measuring and digital platform technology
to transition more successfully to a low-carbon economy.
For
further information contact:
SMX
GENERAL ENQUIRIES
E: info@securitymattersltd.com
Forward-Looking
Statements
The
foregoing material may contain “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933
and Section 21E of the Securities Exchange Act of 1934, each as amended. Forward-looking statements include all statements that do not
relate solely to historical or current facts, including without limitation statements regarding the Company’s product development
and business prospects, and can be identified by the use of words such as “may,” “will,” “expect,”
“project,” “estimate,” “anticipate,” “plan,” “believe,” “potential,”
“should,” “continue” or the negative versions of those words or other comparable words. Forward-looking statements
are not guarantees of future actions or performance. These forward-looking statements are based on information currently available to
the Company and its current plans or expectations and are subject to a number of risks and uncertainties that could significantly affect
current plans. Should one or more of these risks or uncertainties materialize, or the underlying assumptions prove incorrect, actual
results may differ significantly from those anticipated, believed, estimated, expected, intended, or planned. Although the Company believes
that the expectations reflected in the forward-looking statements are reasonable, the Company cannot guarantee future results, performance,
or achievements. Except as required by applicable law, including the security laws of the United States, the Company does not intend
to update any of the forward-looking statements to conform these statements to actual results.
Forward-Looking
Statements
The
information in this press release includes “forward-looking statements” within the meaning of the Private Securities Litigation
Reform Act of 1995. Forward-looking statements include, but are not limited to, statements regarding expectations, hopes, beliefs, intentions
or strategies regarding the future. In addition, any statements that refer to projections, forecasts or other characterizations of future
events or circumstances, including any underlying assumptions, are forward-looking statements. The words “anticipate,” “believe,”
“contemplate,” “continue,” “could,” “estimate,” “expect,” “forecast,”
“intends,” “may,” “will,” “might,” “plan,” “possible,” “potential,”
“predict,” “project,” “should,” “would” and similar expressions may identify forward-looking
statements, but the absence of these words does not mean that a statement is not forward-looking. Forward-looking statements in this
press release may include, for example: matters relating to the Company’s fight against abusive and possibly illegal trading tactics
against the Company’s stock; successful launch and implementation of SMX’s joint projects with manufacturers and other supply
chain participants of steel, rubber and other materials; changes in SMX’s strategy, future operations, financial position, estimated
revenues and losses, projected costs, prospects and plans; SMX’s ability to develop and launch new products and services, including
its planned Plastic Cycle Token; SMX’s ability to successfully and efficiently integrate future expansion plans and opportunities;
SMX’s ability to grow its business in a cost-effective manner; SMX’s product development timeline and estimated research
and development costs; the implementation, market acceptance and success of SMX’s business model; developments and projections
relating to SMX’s competitors and industry; and SMX’s approach and goals with respect to technology. These forward-looking
statements are based on information available as of the date of this press release, and current expectations, forecasts and assumptions,
and involve a number of judgments, risks and uncertainties. Accordingly, forward-looking statements should not be relied upon as representing
views as of any subsequent date, and no obligation is undertaken to update forward-looking statements to reflect events or circumstances
after the date they were made, whether as a result of new information, future events or otherwise, except as may be required under applicable
securities laws. As a result of a number of known and unknown risks and uncertainties, actual results or performance may be materially
different from those expressed or implied by these forward-looking statements. Some factors that could cause actual results to differ
include: the ability to maintain the listing of the Company’s shares on Nasdaq; changes in applicable laws or regulations; any
lingering effects of the COVID-19 pandemic on SMX’s business; the ability to implement business plans, forecasts, and other expectations,
and identify and realize additional opportunities; the risk of downturns and the possibility of rapid change in the highly competitive
industry in which SMX operates; the risk that SMX and its current and future collaborators are unable to successfully develop and commercialize
SMX’s products or services, or experience significant delays in doing so; the risk that the Company may never achieve or sustain
profitability; the risk that the Company will need to raise additional capital to execute its business plan, which may not be available
on acceptable terms or at all; the risk that the Company experiences difficulties in managing its growth and expanding operations; the
risk that third-party suppliers and manufacturers are not able to fully and timely meet their obligations; the risk that SMX is unable
to secure or protect its intellectual property; the possibility that SMX may be adversely affected by other economic, business, and/or
competitive factors; and other risks and uncertainties described in SMX’s filings from time to time with the Securities and Exchange
Commission.
Exhibit
99-9
SMX
(Security Matters) Public Limited Company Closes $5.35 Million Private Placement
NEW
YORK, NY, SEPTEMBER 12, 2024 — SMX (Security Matters) Public Limited Company (NASDAQ: SMX) (the “Company”), a pioneer
in digitizing physical objects for a circular economy, today announced the closing of its previously announced private placement of approximately
$5,350,000 of Ordinary Shares and pre-funded and investor warrants at a price of $1.00 per Common Unit.
The
offering consisted of the sale of 5,350,000 Common Units (or Pre-Funded Units), each consisting of one Ordinary Share or Pre-Funded Warrant
and two (2) Series A Common Warrants, each to purchase one (1) Ordinary Share per warrant at an exercise price of $1.00, and one (1)
Series B Common Warrant to purchase such number of Ordinary Shares as determined in the Series B Warrant. The public offering price per
Common Unit was $1.00 (or $0.9999 for each Pre-Funded Unit, which is equal to the public offering price per Common Unit to be sold in
the offering minus an exercise price of $0.0001 per Pre-Funded Warrant). The Pre-Funded Warrants are immediately exercisable subject
to registration and may be exercised at any time until exercised in full. For each Pre-Funded Unit sold in the offering, the number of
Common Units in the offering will be decreased on a one-for-one basis. The initial exercise price of each Series A Common Warrant is
$1.00 per Ordinary Share. The Series A Common Warrants are exercisable immediately subject to registration and expire 66 months after
the initial issuance date. The number of securities issuable under the Series A Common Warrant is subject to adjustment as described
in more detail in the report on Form 6-K filed in connection with the offering. The initial exercise price of each Series B Common Warrant
is $0.00001. The Series B Common Warrants are exercisable immediately subject to registration. The number of securities issuable under
the Series B Common Warrant is subject to adjustment as described in more detail in the Report on Form 6-K filed in connection with the
offering.
Aggregate
gross proceeds to the Company were approximately $5,350,000, of which 20%, or $1,072,000, are being held in escrow to satisfy potential
obligations of the Company under the terms of the Warrants. The transaction closed on September 12, 2024. The Company expects to use
the net proceeds from the offering, together with its existing cash, for general corporate purposes and working capital.
Aegis
Capital Corp. is acting as lead Placement Agent for the private placement. ClearThink Securities is acting as co-Placement Agent. Dickinson
Wright, Ruskin Moscou Faltischek, PC and Arthur Cox acted as counsel to the Company. Kaufman & Canoles, P.C. is acting as counsel
to Aegis Capital Corp.
The
securities described above were sold in a private placement transaction not involving a public offering and have not been registered
under the Securities Act of 1933, as amended (the “Securities Act”), or applicable state securities laws. Accordingly, the
securities may not be reoffered or resold in the United States except pursuant to an effective registration statement or an applicable
exemption from the registration requirements of the Securities Act and such applicable state securities laws. The securities were offered
only to accredited investors. Pursuant to a registration rights agreement with the investors, the Company has agreed to file one or more
registration statements with the SEC covering the resale of the Ordinary Shares and the Shares issuable upon exercise of the pre-funded
warrants and warrants.
 |
 |
SMX
| C/O- Arthur Cox, Mespil Business Centre, Mespil House, Sussex Road, Dublin 4, Ireland, D04T4A6 |
This
press release shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of these securities
in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under
the securities laws of any such state or jurisdiction.
About
SMX (Security Matters) Public Limited Company
As
global businesses face new and complex challenges relating to carbon neutrality and meeting new governmental and regional regulations
and standards, SMX is able to offer players along the value chain access to its marking, tracking, measuring and digital platform technology
to transition more successfully to a low-carbon economy.
For
further information contact:
SMX
GENERAL ENQUIRIES
E: info@securitymattersltd.com
Forward-Looking
Statements
The
foregoing material may contain “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933
and Section 21E of the Securities Exchange Act of 1934, each as amended. Forward-looking statements include all statements that do not
relate solely to historical or current facts, including without limitation statements regarding the Company’s product development
and business prospects, and can be identified by the use of words such as “may,” “will,” “expect,”
“project,” “estimate,” “anticipate,” “plan,” “believe,” “potential,”
“should,” “continue” or the negative versions of those words or other comparable words. Forward-looking statements
are not guarantees of future actions or performance. These forward-looking statements are based on information currently available to
the Company and its current plans or expectations and are subject to a number of risks and uncertainties that could significantly affect
current plans. Should one or more of these risks or uncertainties materialize, or the underlying assumptions prove incorrect, actual
results may differ significantly from those anticipated, believed, estimated, expected, intended, or planned. Although the Company believes
that the expectations reflected in the forward-looking statements are reasonable, the Company cannot guarantee future results, performance,
or achievements. Except as required by applicable law, including the security laws of the United States, the Company does not intend
to update any of the forward-looking statements to conform these statements to actual results.
|
|
SMX
| C/O- Arthur Cox, Mespil Business Centre, Mespil House, Sussex Road, Dublin 4, Ireland, D04T4A6 |
Forward-Looking
Statements
The
information in this press release includes “forward-looking statements” within the meaning of the Private Securities Litigation
Reform Act of 1995. Forward-looking statements include, but are not limited to, statements regarding expectations, hopes, beliefs, intentions
or strategies regarding the future. In addition, any statements that refer to projections, forecasts or other characterizations of future
events or circumstances, including any underlying assumptions, are forward-looking statements. The words “anticipate,” “believe,”
“contemplate,” “continue,” “could,” “estimate,” “expect,” “forecast,”
“intends,” “may,” “will,” “might,” “plan,” “possible,” “potential,”
“predict,” “project,” “should,” “would” and similar expressions may identify forward-looking
statements, but the absence of these words does not mean that a statement is not forward-looking. Forward-looking statements in this
press release may include, for example: matters relating to the Company’s fight against abusive and possibly illegal trading tactics
against the Company’s stock; successful launch and implementation of SMX’s joint projects with manufacturers and other supply
chain participants of steel, rubber and other materials; changes in SMX’s strategy, future operations, financial position, estimated
revenues and losses, projected costs, prospects and plans; SMX’s ability to develop and launch new products and services, including
its planned Plastic Cycle Token; SMX’s ability to successfully and efficiently integrate future expansion plans and opportunities;
SMX’s ability to grow its business in a cost-effective manner; SMX’s product development timeline and estimated research
and development costs; the implementation, market acceptance and success of SMX’s business model; developments and projections
relating to SMX’s competitors and industry; and SMX’s approach and goals with respect to technology. These forward-looking
statements are based on information available as of the date of this press release, and current expectations, forecasts and assumptions,
and involve a number of judgments, risks and uncertainties. Accordingly, forward-looking statements should not be relied upon as representing
views as of any subsequent date, and no obligation is undertaken to update forward-looking statements to reflect events or circumstances
after the date they were made, whether as a result of new information, future events or otherwise, except as may be required under applicable
securities laws. As a result of a number of known and unknown risks and uncertainties, actual results or performance may be materially
different from those expressed or implied by these forward-looking statements. Some factors that could cause actual results to differ
include: the ability to maintain the listing of the Company’s shares on Nasdaq; changes in applicable laws or regulations; any
lingering effects of the COVID-19 pandemic on SMX’s business; the ability to implement business plans, forecasts, and other expectations,
and identify and realize additional opportunities; the risk of downturns and the possibility of rapid change in the highly competitive
industry in which SMX operates; the risk that SMX and its current and future collaborators are unable to successfully develop and commercialize
SMX’s products or services, or experience significant delays in doing so; the risk that the Company may never achieve or sustain
profitability; the risk that the Company will need to raise additional capital to execute its business plan, which may not be available
on acceptable terms or at all; the risk that the Company experiences difficulties in managing its growth and expanding operations; the
risk that third-party suppliers and manufacturers are not able to fully and timely meet their obligations; the risk that SMX is unable
to secure or protect its intellectual property; the possibility that SMX may be adversely affected by other economic, business, and/or
competitive factors; and other risks and uncertainties described in SMX’s filings from time to time with the Securities and Exchange
Commission.
info@securitymattersltd.com
|
|
SMX
| C/O- Arthur Cox, Mespil Business Centre, Mespil House, Sussex Road, Dublin 4, Ireland, D04T4A6 |
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