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 February 2024
Commission File Number: 001-41407
TOP FINANCIAL
GROUP LIMITED
(Translation of registrant’s name into English)
118 Connaught Road West
Room 1101
Hong Kong
(Address of principal executive office)
Indicate by check mark whether the registrant
files or will file annual reports under cover of Form 20-F or Form 40-F.
Form 20-F
☒ Form 40-F
☐
On February 11, 2024,
Top Financial Group Limited (the “Company”, “we”, “us” or “our”) entered into a securities
purchase agreement (the “Purchase Agreement”) with an investor (the “Investor”) providing for the issuance and
sale of (i) 2,000,000 ordinary shares of the Company, par value $0.001 per share (the “Ordinary Shares”), and (ii) registered
warrants to purchase up to an aggregate of 2,000,000 Ordinary Shares at $2.75 per share, subject to adjustments thereunder, including
a reduction in the exercise price, in the event of a subsequent offering at a price less than the then current exercise price, to the
same price as the price in such offering (the “Registered Warrants”, and the
ordinary shares underlying such warrants, the “Registered Warrant Shares”) at a purchase price of $2.50 per Ordinary Share
and accompanying Registered Warrant. The Registered Warrants are exercisable immediately upon issuance and will expire three (3) months
from the date of issuance.
Pursuant to the Purchase
Agreement, the Ordinary Shares, the Registered Warrants and the Registered Warrant Shares will be issued to the Investor in a registered
direct offering (the “Offering”) and registered under the Securities Act of 1933, as amended, pursuant to a prospectus supplement to the Company’s currently effective registration statement on Form F-3 (File No.
333-273066), which was initially filed with the U.S. Securities and Exchange Commission (the “SEC”) on June 30, 2023 and declared
effective on September 29, 2023 (the “Shelf Registration Statement”). The Company filed the prospectus supplement for the Offering on February 13, 2024.
The Offering was conducted
pursuant to a placement agency agreement, dated February 11, 2024 (the “Placement Agency Agreement”), between the Company
and Univest Securities, LLC (the “Placement Agent”). The Placement Agent has agreed to use its “reasonable best efforts”
to solicit offers to purchase the Ordinary Shares and the Registered Warrants. The Placement Agent has no obligation to purchase any of
the Securities or to arrange for the purchase or sale of any specific number or dollar amount of Securities. The Company has agreed to
pay the Placement Agent a total cash fee equal to seven percent (7.0%) of the aggregate gross proceeds raised in this Offering. The Company
has also agreed to reimburse the Placement Agent for all travel and other out-of-pocket expenses, including the reasonable fees, costs
and disbursements of its legal fees which shall be limited to, in the aggregate, $150,000.
The Company expects the
Offering to close on or about February 14, 2024, subject to the satisfaction of customary closing conditions in the Purchase Agreement.
The Purchase Agreement contains customary representations, warranties and agreements of the Company and the Investor and customary indemnification
rights and obligations of the parties thereto. The Investor had pre-existing relationships with the Placement Agent; the Company did not
engage in general solicitation or advertising with regard to the issuance and sale of the Securities. The Investor represented that they
are accredited investors and purchased the Securities for investment and not with a view to distribution.
The Company will receive gross proceeds in the amount of $5 million,
before deducting placement agent’s cash fee, reimbursement of accountable expenses, and other estimated Offering fees and expenses
payable by the Company. The Company plans to use the net proceeds from this Offering for working capital and general corporate purposes.
The foregoing description of the Placement Agency
Agreement, the Purchase Agreement, and the Registered Warrants, are qualified in their entirety by reference to the full text of such
documents, the forms of which are attached as Exhibits 10.1, 10.2, and 4.1, respectively, to this report on Form 6-K, and which are incorporated
herein in their entirety by reference. The Company is filing the opinion of its Cayman Islands counsel, Harney Westwood & Riegels,
relating to the legality of the issuance and sale of the Ordinary Shares, the Registered Warrants, and the Registered Warrant Shares as
Exhibit 5.1 hereto, and the opinion of its U.S. counsel, Ortoli Rosenstadt LLP, relating to the legality of the issuance and sale of the
Registered Warrants as Exhibit 5.2 hereto. Exhibit 5.1 and Exhibit 5.2 are incorporated herein by reference and into the Shelf Registration
Statement.
The prospectus supplement relating to the Registered
Offering will be available on the SEC’s web site at http://www.sec.gov.
Exhibit Index
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto
duly authorized.
| Date: February 13, 2024 |
TOP Financial Group Limited |
| |
|
| |
By: |
/s/ Ka Fai Yuen |
| |
Name: |
Ka Fai Yuen |
| |
Title: |
Chief Executive Officer |
3
Exhibit 4.1
ORDINARY SHARE PURCHASE WARRANT
TOP FINANCIAL GROUP LIMITED
| Warrant Shares: _______ |
|
Initial Exercise Date: [__] 2024 |
| |
|
| |
|
Issue Date: [__] 2024 |
THIS ORDINARY SHARE PURCHASE WARRANT (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 February [__] 2024 (the “Initial
Exercise Date”) and on or prior to 5:00 p.m. (New York City time) on May [___], 2024 (the “Termination Date”),
but not thereafter, to subscribe for and purchase from Top Financial Group Limited, a Cayman Islands company (the “Company”),
up to [______] Ordinary Shares, par value $0.001 per share (the “Ordinary Share”) (as subject to adjustment hereunder,
the “Warrant Shares”). The purchase price of one Ordinary Share under this Warrant shall be equal to the Exercise Price,
as defined in Section 2(b), subject to adjustments set forth herein.
Section 1. Definitions.
Capitalized terms used and not otherwise defined herein shall have the meanings set forth in that certain Securities Purchase Agreement
(the “Purchase Agreement”), dated February [__], 2024, among the Company and the purchasers signatory thereto.
Section 2. Exercise.
a) 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 facsimile copy
(or.pdf copy via e-mail attachment) of the Notice of Exercise in the form annexed hereto as Exhibit A (the “Notice
of Exercise”). Within the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the
Standard Settlement Period (as defined in Section 2(d)(i) 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 drawn on
a United States bank. 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 of 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.
b) Exercise Price. The
exercise price per Ordinary Share under this Warrant shall be $2.75, subject to adjustment hereunder (the “Exercise Price”).
c) [intentionally omitted].
d) Mechanics
of Exercise.
i. 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 there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant Shares
by the Holder, and otherwise by book-entry, registered in the Company’s share register in the name of the Holder or its designee,
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) two (2) Trading Days after the
delivery to the Company of the Notice of Exercise, provided that payment of the aggregate Exercise Price is received by the Company by
such date and (ii) the number of Trading Days comprising the Standard Settlement Period, in each case 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 is received within the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the
Standard Settlement Period following delivery of the Notice of Exercise. 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 fifth Trading
Day after such liquidated damages begin to accrue) 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 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 is received by such Warrant Share Delivery Date.
“VWAP” means, for any
date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on
a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date) on the Trading
Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York
City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the
Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then listed
or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock 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 share of the Common Stock so reported, or (d) in
all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by
the Holders 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.
ii. 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.
iii. Rescission
Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(d)(i)
by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv. 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(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date (other than any such failure that
is solely due to any action or inaction by the Holder with respect to such exercise), 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 (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.
v. 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.
vi. 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 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.
vii. 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.
e) 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, nonexercised 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 nonconverted
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(e), 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(e) 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(e), 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% 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(e), provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of the 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(e) 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(e) 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.
Section 3. Certain
Adjustments.
a) Stock
Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise
makes a distribution or distributions on its Ordinary Shares or any other equity or equity equivalent securities payable in Ordinary
Shares (which, for avoidance of doubt, shall not include any Ordinary Shares 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 stock split)
outstanding Ordinary Shares into a smaller number of shares, or (iv) issues by reclassification of Ordinary Shares any shares of
capital stock 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(a) shall become effective immediately after the record date for the determination of shareholders
entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision,
combination or re-classification.
b) Adjustment
Upon Issuance of Ordinary Shares or Ordinary Share Equivalents. If and whenever on or after the date of the Purchase Agreement, the
Company issues or sells, or in accordance with this Section 3 is deemed to have issued or sold, any Ordinary Shares or Ordinary
Share Equivalents (including the issuance or sale of Ordinary Shares or Ordinary Share Equivalents owned or held by or for the account
of the Company, but excluding any Exempt Issuances) for a consideration per share (the “New Issuance Price”) less
than a price equal to the Exercise Price in effect immediately prior to such issuance 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 immediately after such Dilutive Issuance, the Exercise Price then in effect shall be reduced to an amount equal to the New Issuance
Price. For all purposes of the foregoing (including, without limitation, determining the adjusted Exercise Price and the New Issuance
Price under this Section 3(b)), the following shall be applicable;
i) Issuance
of Options. If the Company in any manner grants or sells any Options and the lowest price per share for which one Ordinary Share
is at any time issuable upon the exercise of any such Option or upon conversion, exercise or exchange of any Convertible Securities
issuable upon exercise of any such Option is less than the Applicable Price, then such share of Ordinary Share 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(b)(i), the lowest price per share for which one Ordinary Share is issuable upon the
exercise of any such Options or upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any
such Option” shall be equal to (1) the lower of (x) the sum of the lowest amounts of consideration (if any) received or
receivable by the Company with respect to any one Ordinary Share upon the granting 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 (y) the
lowest exercise price set forth in such Option for which one Ordinary Share is issuable upon the exercise of any such Options or
upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Option minus (2) the sum of
all amounts paid or payable to the holder of such Option (or any other Person) 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). Except as contemplated below, no further adjustment of the Exercise Price shall be made upon the actual issuance of
such Ordinary Shares or of such Convertible Securities upon the exercise of such Options or upon the actual issuance of such
Ordinary Shares upon conversion, exercise or exchange of such Convertible Securities.
ii) Issuance
of Convertible Securities. If the Company in any manner issues or sells any Convertible Securities and the lowest price per share
for which one Ordinary Share is at any time issuable upon the conversion, exercise or exchange thereof is less than the Applicable Price,
then such Ordinary Share shall be deemed to be outstanding and to have been issued and sold by the Company at the time of the issuance
or sale of such Convertible Securities for such price per share. For the purposes of this Section 3(b)(ii), the lowest price per
share for which one Ordinary Share is issuable upon the conversion, exercise or exchange thereof shall be equal to (1) the lower of (x)
the sum of the lowest amounts of consideration (if any) received or receivable by the Company with respect to one Ordinary Share upon
the issuance or sale of the Convertible Security and upon conversion, exercise or exchange of such Convertible Security and (y) the lowest
conversion price set forth in such Convertible Security for which one Ordinary Share is issuable upon conversion, exercise or exchange
thereof minus (2) the sum of all amounts paid or payable to the holder of such Convertible Security (or any other Person) upon the issuance
or sale of such Convertible Security plus the value of any other consideration received or receivable by, or benefit conferred on, the
holder of such Convertible Security (or any other Person). Except as contemplated below, no further adjustment of the Exercise Price shall
be made upon the actual issuance of such Ordinary Shares upon conversion, exercise or exchange of such Convertible Securities, and if
any such issuance or sale of such Convertible Securities is made upon exercise of any Options for which adjustment of this Warrant has
been or is to be made pursuant to other provisions of this Section 3(b), except as contemplated below, no further adjustment of the
Exercise Price shall be made by reason of such issuance or sale.
iii) Change
in Option Price or Rate of Conversion. If the purchase or exercise price provided for in any Options, the additional consideration,
if any, payable upon the issue, conversion, exercise or exchange of any Convertible Securities, or the rate at which any Convertible
Securities are convertible into or exercisable or exchangeable for Ordinary Shares increases or decreases at any time, 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(b)(iii),
if the terms of any Option or Convertible Security that was outstanding as of the date of the Securities Purchase Agreement are increased
or decreased in the manner described in the immediately preceding sentence, then such Option or Convertible Security and the Ordinary
Shares deemed issuable upon exercise, conversion or exchange thereof shall be deemed to have been issued as of the date of such increase
or decrease. No adjustment pursuant to this Section 3(b) shall be made if such adjustment would result in an increase of the Exercise
Price then in effect.
iv) Calculation
of Consideration Received. If any Option and/or Convertible Security and/or Adjustment Right is issued in connection with the issuance
or sale or deemed issuance or sale of any other securities of the Company (as determined by the Holder, the “Primary Security”,
and such Option and/or Convertible Security and/or Adjustment Right, the “Secondary Securities” and together with the
Primary Security, each a “Unit”), together comprising one integrated transaction, the aggregate consideration per Ordinary
Share with respect to such Primary Security shall be deemed to be the lower of (x) the purchase price of such Unit, (y) if such Primary
Security is an Option and/or Convertible Security, the lowest price per share for which one Ordinary Share is at any time issuable upon
the exercise or conversion of the Primary Security in accordance with Sections 3(b)(i) or 3(b)(ii) above and (z) the lowest VWAP of the
Ordinary Shares on any Trading Day during the five (5) Trading Day period (the “Adjustment Period”) immediately following
the public announcement of such Dilutive Issuance (for the avoidance of doubt, if such public announcement is released prior to the opening
of the principal Trading Market on a Trading Day, such Trading Day shall be the first Trading Day in such five Trading Day period and
if this Warrant is exercised, on any given Exercise Date during any such Adjustment Period, solely with respect to such portion of this
Warrant converted on such applicable Exercise Date, such applicable Adjustment Period shall be deemed to have ended on, and included,
the Trading Day immediately prior to such Exercise Date). If any Ordinary Shares, Options or Convertible Securities are issued or sold
or deemed to have been issued or sold for cash, the consideration received therefor will be deemed to be the net amount of consideration
received by the Company therefor. If any Ordinary Shares, Options or Convertible Securities are issued or sold for a consideration other
than cash, the amount of such consideration received by the Company will be the fair value of such consideration, except where such consideration
consists of publicly traded securities, in which case the amount of consideration received by the Company for such securities will be
the arithmetic average of the VWAPs of such security for each of the five (5) Trading Days immediately preceding the date of receipt.
If any Ordinary Shares, Options or Convertible Securities are issued to the owners of the non-surviving entity in connection with any
merger in which the Company is the surviving entity, the amount of consideration therefor will be deemed to be the fair value of such
portion of the net assets and business of the non-surviving entity as is attributable to such Ordinary Shares, Options or Convertible
Securities, as the case may be. The fair value of any consideration other than cash or publicly traded securities will be determined jointly
by the Company and the Holder. If such parties are unable to reach agreement within ten (10) days after the occurrence of an event requiring
valuation (the “Valuation Event”), the fair value of such consideration will be determined within five (5) Trading
Days after the tenth (10th) day following such Valuation Event by an independent, reputable appraiser jointly selected by the
Company and the Holder. The determination of such appraiser shall be final and binding upon all parties absent manifest error and the
fees and expenses of such appraiser shall be borne by the Company.
v) Record
Date. If the Company takes a record of the holders of the Ordinary Shares for the purpose of entitling them (A) to receive a
dividend or other distribution payable in Ordinary Shares, Options or in Convertible Securities or (B) to subscribe for or purchase
Ordinary Shares, Options or Convertible Securities, then such record date will be deemed to be the date of the issuance or sale of the
Ordinary Shares deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the
date of the granting of such right of subscription or purchase (as the case may be).
c) Subsequent
Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants, issues or
sells any Ordinary Share Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record holders
of any class of Ordinary Shares (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms
applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number
of Ordinary Shares acquirable upon complete exercise of this Warrant (without regard to any limitations 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).
d) 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 of holders of Ordinary Shares, by way of return of capital
or otherwise (including, without limitation, any distribution of 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,
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).
e) Fundamental
Transaction. 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,
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, (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 more than 50% of the outstanding
Ordinary Shares (not including any Ordinary Shares held by the other Person or other Persons making or party to, or associated or affiliated
with the other Persons making or party to, such stock or share purchase agreement or other business combination) (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(e) 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(e)
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, 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 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 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 Fundamental Transaction and the Termination Date, (B) an expected
volatility equal to the greater of 100% and the 100 day volatility 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 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 greater of (x) the last VWAP immediately prior to the public announcement of such Fundamental Transaction and
(y) the last VWAP immediately prior to the consummation of such Fundamental Transaction and (D) a remaining option time equal
to the time between the date of the public announcement of the applicable 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 within five
Business Days of the Holder’s election (or, if later, on the effective date 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(e) pursuant to written agreements in form and substance reasonably satisfactory to the Holder prior
to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security
of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable
for a corresponding number of shares of capital stock 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 capital stock (but
taking into account the relative value of the Ordinary Shares pursuant to such Fundamental Transaction and the value of such shares of
capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value
of this 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 succeed to, and be substituted
for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant and the other Transaction Documents
referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company
and shall assume all of the obligations of the Company under this Warrant and the other Transaction Documents with the same effect as
if such Successor Entity had been named as the Company herein.
f) 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.
g) Notice
to Holder.
i. 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 facsimile or 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.
ii. 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 capital
stock 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 is a party, any sale or transfer of all or
substantially all of the assets of the Company, 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 facsimile or email to the Holder at
its last facsimile number or email address as it shall appear upon the Warrant Register of the Company, at least 5 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 stock 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 stock 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 and provided, further that no notice shall be
required if the information is disseminated in a press release or document filed with the Securities and Exchange Commission . 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 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.
Section 4. Transfer
of Warrant.
a) Transferability.
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 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 of 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.
b) 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(a), 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 Issue Date of this Warrant and shall be
identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c) 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.
Section 5. Miscellaneous.
a) 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(d)(i), except as expressly
set forth in Section 3. Without limiting any rights of a Holder to receive cash payments pursuant to Section 2(d)(i) and Section
2(d)(iv) herein, in no event shall the Company be required to net cash settle an exercise of this Warrant.
b) 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 stock 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 stock certificate, if mutilated, the Company will make
and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.
c) 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.
d) Authorized
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 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
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).
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.
Before taking any action which 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.
e) Jurisdiction.
All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be determined in accordance
with the provisions of the Purchase Agreement.
f) Restrictions. The Holder
acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, will have restrictions upon resale
imposed by state and federal securities laws.
g) 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 Holder’s
right to exercise this Warrant terminates on the Termination Date. If the Company willfully and knowingly fails to comply with any provision
of this Warrant or the Purchase Agreement, 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.
h) Notices.
Any notice, request or other document required or permitted to be given or delivered to the Holder by the Company shall be delivered
in accordance with the notice provisions of the Purchase Agreement.
i) 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.
j) 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.
k) 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.
l) Amendment. This Warrant
may be modified or amended or the provisions hereof waived with the written consent of the Company and the Holder.
m) 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.
n) 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.
********************
(Signature Page Follows)
IN WITNESS WHEREOF, the Company has caused this
Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
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TOP FINANCIAL GROUP LIMITED |
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By: |
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Name: |
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Title: |
Exhibit A
NOTICE OF EXERCISE
TO: TOP FINANCIAL GROUP LIMITED
(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.
(3) Please issue said Warrant Shares in the name
of the undersigned or in such other name as is specified below:
The Warrant Shares (subject to the receipt of appropriate representations
and warranties from Holder) shall be delivered to the following DWAC Account Number:
(4) Accredited Investor. 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 B
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 shares.)
FOR VALUE RECEIVED, the foregoing Warrant and
all rights evidenced thereby are hereby assigned to
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| Name: |
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(Please Print) |
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| Address: |
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(Please Print) |
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| Phone Number: |
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| Email Address: |
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| Dated: _______________ __, ______ |
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| Holder’s Signature:______________________ |
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| Holder’s Address:______________________ |
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Exhibit 5.1
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Harney Westwood & Riegels
3501 The Center
99 Queen’s Road Central
Hong Kong
Tel: +852 5806 7800
Fax: +852 5806 7810
|
12 February 2024
raymond.ng@harneys.com
+852 5806 7883
051382-0009-RLN
TOP Financial Group Limited
118 Connaught Road West
Room 1101
Hong Kong
Dear Sir or Madam
TOP Financial Group Limited (the Company)
We are lawyers qualified to practise in the Cayman
Islands and have acted as Cayman Islands legal advisers to the Company in connection with an offering (the Offering) by
the Company of an aggregate of 2,000,000 ordinary shares of par value US$0.001 per share (the Ordinary Shares) and warrants
to purchase up to 2,000,000 ordinary shares of par value US$0.001 per share (the Warrants and such ordinary shares underlying
the Warrants, the Warrant Shares). The Ordinary Shares, Warrants and Warrant Shares will be sold by the Company pursuant
to the Company’s registration statement on Form F-3 (File No. 333-273066), as amended under the United States Securities Act of
1933, as amended (the Securities Act), initially filed with the Securities and Exchange Commission (the Commission)
on 30 June 2023, and declared effective on 29 September 2023 (the Registration Statement), a base prospectus dated 29 September
2023 (the Base Prospectus) and a final prospectus supplement dated 11 February 2024 (together with the Base Prospectus,
the Prospectus). In this opinion Companies Act means the Companies Act (2023 Revision) of the Cayman Islands.
We are furnishing this opinion as Exhibit 5.1
to the Form 6-K (the Form 6-K) to be filed by the Company with the Commission in connection with the Offering.
For the purposes of giving this opinion, we have
examined the Documents (as defined in Schedule 1). We have not examined any other documents, official or corporate records or external
or internal registers and have not undertaken or been instructed to undertake any further enquiry or due diligence in relation to the
transaction which is the subject of this opinion.
In giving this opinion we have relied upon the
assumptions set out in Schedule 2 which we have not independently verified.
The
British Virgin Islands is Harneys Hong Kong office’s main jurisdiction of practice.
Jersey
legal services are provided through a referral arrangement with Harneys (Jersey) which is an independently owned and controlled Jersey
law firm.
Resident
Partners: A Au | M Chu | JP Engwirda | Y Fan | P Kay | MW Kwok | IN Mann
R
Ng | ATC Ridgers | PJ Sephton |
|
Anguilla
| Bermuda | British Virgin Islands | Cayman Islands
Cyprus
| Hong Kong | Jersey | London | Luxembourg
Montevideo
| São Paulo | Shanghai | Singapore
harneys.com |
Based solely upon the foregoing examinations and
assumptions and upon such searches as we have conducted and having regard to legal considerations which we deem relevant, and subject
to the qualifications set out in Schedule 3, we are of the opinion that under the laws of the Cayman Islands:
| 1. | the allotment and issue of the Ordinary Shares as contemplated by the Registration Statement have been
duly authorised and, when allotted, issued and fully paid for in accordance with the Registration Statement, and when the names of the
shareholders are entered in the register of members of the Company, the Ordinary Shares will be validly allotted, issued and fully paid
and there will be no further obligation of the holders of any of the Ordinary Shares to make any further payment to the Company in respect
of such Ordinary Shares; and |
| 2. | the issue of the Warrants and (upon exercise of the Warrants) the allotment and issue of the Warrant Shares
as contemplated by the Registration Statement have been duly authorised. When the Warrant Shares are allotted, issued and fully paid for
in accordance with the Registration Statement and the Warrants, and when the names of the shareholders are entered in the register of
members of the Company, the Warrants Shares will be validly allotted, issued and fully paid and there will be no further obligation of
the holders of any of the Warrant Shares to make any further payment to the Company in respect of such Warrant Shares. |
This opinion is confined to the matters expressly
opined on herein and given on the basis of the laws of the Cayman Islands as they are in force and applied by the Cayman Islands courts
at the date of this opinion. We have made no investigation of, and express no opinion on, the laws of any other jurisdiction. Except as
specifically stated herein, we express no opinion as to matters of fact.
In connection with the above opinion, we hereby
consent to the filing of this opinion as an exhibit to the Form 6-K, which is incorporated by reference into the Registration Statement.
In giving such consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7
of the U.S. Securities Act of 1933, as amended, or the Rules and Regulations of the Commission thereunder.
This opinion is limited to the matters referred
to herein and shall not be construed as extending to any other matter or document not referred to herein.
This opinion shall be construed in accordance
with the laws of the Cayman Islands.
| Yours faithfully |
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/s/ Harney Westwood & Riegels |
|
| Harney Westwood & Riegels |
|
Schedule
1
List of Documents and Records Examined
| 1 | The certificate of incorporation and the certificate of incorporation on change of name of the Company
dated 1 August 2019 and 15 July 2022 respectively; |
| 2 | The memorandum and articles of association of the Company adopted by special resolution dated 13 July
2022; |
| 3 | The register of directors of the Company provided to us on 12 February 2024; |
Copies of 1 to 3 above have
been provided to us by the Company (the Corporate Documents, and together with 4 and 5 below, the Documents).
| 4 | A copy of the executed written resolutions of the board of directors of the Company dated 11 February
2024 (the Resolutions); and |
| 5 | The Registration Statement. |
Schedule
2
Assumptions
| 1 | Authenticity of Documents. Copy documents or drafts of documents provided to us are true and complete
copies of, or in the final forms of, the originals. All original Corporate Documents are authentic, all signatures, initials and seals
are genuine, all copies of the Registration Statement are true and correct copies and the Registration Statement conform in every material
respect to the latest drafts of the same produced to us and, where the Registration Statement has been provided to us in successive drafts
marked-up to indicate changes to such documents, all such changes have been so indicated. |
| 2 | Corporate Documents. All matters required by law to be recorded in the Corporate Documents are
so recorded, and all corporate minutes, resolutions, certificates, documents and records which we have reviewed are accurate and complete,
and all facts expressed in or implied thereby are accurate and complete as at the date of the passing of the Resolutions. |
| 3 | No Steps to Wind-up. The directors and shareholders of the Company have not taken any steps to
appoint a liquidator of the Company and no receiver has been appointed over any of the Company’s property or assets. |
| 4 | Resolutions. The Resolutions remain in full force and effect. |
| 5 | Unseen Documents. Save for the Corporate Documents provided to us there are no resolutions, agreements,
documents or arrangements which materially affect, amend or vary the transactions envisaged in the Registration Statement. |
Schedule
3
Qualifications
| 1 | Foreign Statutes. We express no opinion in relation to provisions making reference to foreign statutes
in the Registration Statement. |
| 2 | Commercial Terms. Except as specifically stated herein, we make no comment with respect to any
representations and warranties which may be made by or with respect to the Company in any of the documents or instruments cited in this
opinion or otherwise with respect to the commercial terms of the transactions the subject of this opinion. |
5
Exhibit 5.2
|
366 Madison Avenue
3rd Floor
New York, NY 10017
tel: (212) 588-0022
fax: (212) 826-9307 |
February 12, 2024
TOP Financial Group Limited
118 Connaught Road West
Room 1101
Hong Kong
Ladies and Gentlemen:
We are acting as special counsel to TOP Financial Group Limited, a Cayman Islands company (the “Company”), in connection with
the proposed sale and issuance (the “Offering”) of (i) 2,000,000 ordinary shares, nominal value $0.001 per share, of the Company
(the “Ordinary Shares”), and (ii) warrants (the “Warrants”) to purchase up to 2,000,000 Ordinary Shares in a registered
direct offering (the “Registered Offering”) and registered under the Securities Act of 1933, as amended (the “Securities
Act”), pursuant to a prospectus supplement relating to the Securities filed or to be filed with the Commission pursuant to Rule
424(b) promulgated under the Act (the “Prospectus Supplements”),to the Company’s currently effective registration statement
on Form F-3 (File No. 333-273066), which was initially filed with the U.S. Securities and Exchange Commission (the “SEC”)
on June 30, 2023 and declared effective on September 29, 2023 (the “Registration Statement”). As such counsel, you have requested
our opinion as to the matters described herein relating to the Warrants. The Ordinary Shares and the Warrants are to be sold pursuant
to a Securities Purchase Agreement (the “Purchase Agreement”) between the Company and the purchaser signatory thereto (the
“Purchaser”).
This opinion is being furnished
to you in connection with the Registration Statement.
In connection with this opinion,
we have examined the following documents:
| |
1. |
The Registration Statement, |
| |
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|
| |
2. |
The Purchase Agreement, |
| |
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| |
3. |
The Form of the Warrants as attached to the Purchase Agreement; |
| |
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4. |
a copy of the executed written resolution of the directors of the Company dated February 11, 2024, and |
| |
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6. |
such other documents and corporate records as we have deemed necessary or appropriate in order to enable us to render the opinion below. |
For purposes of this opinion,
we have assumed (i) the validity and accuracy of the documents and corporate records that we have examined, (ii) the genuineness of all
signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals, the conformity
to original documents of all documents submitted to us as certified or photostatic copies and the authenticity of the originals of such
documents and (iii) that all relevant documents have been, or will be, validly authorized, executed, delivered and performed by all of
the relevant parties. As to any facts material to the opinion expressed herein that we did not independently establish or verify, we have
relied upon statements and representations of officers and other representatives of the Company and have assumed that such statements
and representations are true, correct, and complete without regard to any qualification as to knowledge or belief. Our opinion is conditioned
upon, among other things, the initial and continuing truth, accuracy, and completeness of the items described above on which we are relying.
February
12, 2024
Subject to the foregoing and
the qualifications set forth in the Registration Statement, we are of the opinion that when the Warrants are duly executed and delivered
by the Company and paid for by the Purchaser pursuant to the Purchase Agreement, such Common Warrants will constitute the legal, valid
and binding obligation of the Company, enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency
or other similar laws affecting creditors’ rights and to general equitable principles.
Our opinion is limited to
the application of the laws of the State of New York, the Securities Act and the rules and regulations of the SEC promulgated thereunder
only, and we express no opinion with respect to the applicability of other federal laws, the laws of other countries, the laws of any
other state of the United States or any other jurisdiction, or as to any matters of municipal law or the laws of any other local agencies
within any state. No opinion is expressed as to any federal securities laws except as specifically set forth herein, or as to any matters
of municipal law or the laws of any other local agencies within any state. No opinion is expressed as to any federal securities laws except
as specifically set forth herein. Our opinion represents only our interpretation of the law and has no binding, legal effect on, without
limitation, any court. It is possible that contrary positions may be asserted and that one or more courts may sustain such contrary positions.
Our opinion is expressed as of the date hereof, and we are under no obligation to supplement or revise this opinion to reflect any changes,
including changes which have retroactive effect (i) in applicable law, or (ii) in any fact, information, document, corporate record, covenant,
statement, representation, or assumption stated herein that becomes untrue, incorrect or incomplete.
This letter is furnished to
you for use in connection with the Registration Statement and is not to be used, circulated, quoted, or otherwise referred to for any
other purpose without our express written permission. We hereby consent to the filing of this opinion as an exhibit to or incorporate
by reference to the Registration Statement and to the use of our name in the Registration Statement wherever it appears. In giving such
consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act
or the rules and regulations of the SEC thereunder.
| Very truly yours, |
|
| |
|
| /s/ Ortoli Rosenstadt LLP |
|
| Ortoli Rosenstadt LLP |
|
Exhibit 10.1
PLACEMENT
AGENCY AGREEMENT
February 11th, 2024
TOP Financial Group Limited
118 Connaught Road West Room 1101
Hong Kong
Attn: Mr. Ka Fai Yuen, CEO
Dear Mr. Ka Fai Yuen:
This letter (the “Agreement”)
constitutes the agreement by and between Univest Securities, LLC (“Univest” or the “Placement Agent”)
and TOP Financial Group Limited, a Cayman Islands company (the “Company”), pursuant to which the Placement Agent shall
serve as the placement agent for the Company, on a “reasonable best efforts” basis, in connection with the proposed placements
(the “Placements”) of (i) via a registered direct offering of ordinary shares, par value $0.001 (“Ordinary
Shares”), of the Company (the “Offered Shares”) and (ii) warrants to purchase Ordinary Shares (the “Warrants”)
(collectively with the Offered Shares, the “Securities”). The terms of the Placements and the Securities shall be mutually
agreed upon by the Company and the purchasers (each, a “Purchaser” and collectively, the “Purchasers”)
and nothing herein shall be deemed to mean that the Placement Agent would have the power or authority to bind the Company or any Purchaser
or an obligation for the Company to issue any Securities or complete the Placements. This Agreement and the documents executed and delivered
by the Company and the Purchasers in connection with the Placements, including but not limited to the Purchase Agreement (as defined below)
and the forms of the Warrants, shall be collectively referred to herein as the “Transaction Documents.” The date of
the closing of the Placements shall be referred to herein as the “Closing Date.” The Company expressly acknowledges
and agrees that the obligations of the Placement Agent hereunder are on a reasonable best efforts basis only and that the execution of
this Agreement does not constitute a commitment by the Placement Agent to purchase the Securities and does not ensure the successful placement
of the Securities or any portion thereof or the success of the Placement Agent with respect to securing any other financing on behalf
of the Company. Following the prior written consent of the Company, the Placement Agent may retain other brokers or dealers to act as
sub-agents or selected-dealers on its behalf in connection with the Placements. The sale of the Securities to any Purchaser will be evidenced
by a securities purchase agreement (the “Purchase Agreement”) between the Company and such Purchaser in a form mutually
agreed upon by the Company and the Placement Agent. Capitalized terms that are not otherwise defined herein have the meanings given to
such terms in the Purchase Agreement. Prior to the signing of any Purchase Agreement, executive officers of the Company will be available
upon reasonable notice and during normal business hours to answer inquiries from prospective Purchasers.
SECTION 1. REPRESENTATIONS AND WARRANTIES
OF THE COMPANY; COVENANTS OF THE COMPANY.
A. Representations of
the Company. Each of the representations and warranties (together with any related disclosure schedules thereto) and covenants made
by the Company to the Purchasers in the Purchase Agreement in connection with the Placements is hereby incorporated herein by reference
into this Agreement (as though fully restated herein) and is, as of the date of this Agreement and as of the Closing Date, hereby made
to, and in favor of, the Placement Agent. In addition to the foregoing, the Company represents and warrants that:
1. The Company has prepared
and filed with the U.S. Securities and Exchange Commission (the “Commission”) a registration statement on Form F-3
(File No. 333-273066) for the registration under the Securities Act of 1933, as amended (the “Securities Act”), of
the Securities and the underlying shares of the Warrants (the “Warrant Shares”), which registration statement became
effective on September 29, 2023. At the time of such filing, the Company met the requirements of Form S-3 under the Securities Act. Such
registration statement meets the requirements set forth in Rule 415(a)(1)(x) under the Securities Act and complies with said Rule. The
Company will file with the Commission pursuant to Rule 424(b) under the Securities Act, and the rules and regulations (the “Rules
and Regulations”) of the Commission promulgated thereunder, a supplement to the form of prospectus included in such registration
statement relating to the placement of the Securities and the plan of distribution thereof and has advised the Placement Agent of all
further information (financial and other) with respect to the Company required to be set forth therein. Such registration statement, including
the exhibits thereto, as amended at the date of this Agreement, is hereinafter called the “Registration Statement”;
such prospectus in the form in which it appears in the Registration Statement is hereinafter called the “Base Prospectus”;
and the supplemented form of prospectus, in the form in which it will be filed with the Commission pursuant to Rule 424(b) (including
the Base Prospectus as so supplemented) is hereinafter called the “Prospectus Supplement.” Any reference in this Agreement
to the Registration Statement, the Base Prospectus or the Prospectus Supplement shall be deemed to refer to and include the documents
incorporated by reference therein (the “Incorporated Documents”) pursuant to Item 6 of Form F-3 which were filed under
the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on or before the date of this Agreement, or the
issue date of the Base Prospectus or the Prospectus Supplement, as the case may be; and any reference in this Agreement to the terms “amend,”
“amendment” or “supplement” with respect to the Registration Statement, the Base Prospectus or the Prospectus
Supplement shall be deemed to refer to and include the filing of any document under the Exchange Act after the date of this Agreement,
or the issue date of the Base Prospectus or the Prospectus Supplement, as the case may be, deemed to be incorporated therein by reference.
All references in this Agreement to financial statements and schedules and other information which is “contained,” “included,”
“described,” “referenced,” “set forth” or “stated” in the Registration Statement, the
Base Prospectus or the Prospectus Supplement (and all other references of like import) shall be deemed to mean and include all such financial
statements and schedules and other information which is or is deemed to be incorporated by reference in the Registration Statement, the
Base Prospectus or the Prospectus Supplement, as the case may be. No stop order suspending the effectiveness of the Registration Statement
or the use of the Base Prospectus or the Prospectus Supplement has been issued, and no proceeding for any such purpose is pending or has
been initiated or, to the Company’s knowledge, is threatened by the Commission. For purposes of this Agreement, “Free Writing
Prospectus” has the meaning set forth in Rule 405 under the Securities Act.
2. The Registration Statement
(and any further documents to be filed with the Commission) contains all exhibits and schedules as required by the Securities Act. Each
of the Registration Statement and any post-effective amendment thereto, at the time it became effective, complied in all material respects
with the Securities Act and the Exchange Act and the applicable Rules and Regulations and did not and, as amended or supplemented, if
applicable, will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The Base Prospectus and the Prospectus Supplement, each as of its respective
date, complied or will comply in all material respects with the Securities Act and the Exchange Act and the applicable Rules and Regulations.
Each of the Base Prospectus, and the Prospectus Supplement, as amended or supplemented, did not and will not contain as of the date thereof
any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading. The Incorporated Documents, when they were filed with the Commission,
conformed in all material respects to the requirements of the Exchange Act and the applicable Rules and Regulations, and none of such
documents, when they were filed with the Commission, contained any untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein (with respect to Incorporated Documents incorporated by reference in the Base Prospectus
or Prospectus Supplement), in the light of the circumstances under which they were made not misleading; and any further documents so filed
and incorporated by reference in the Base Prospectus, or Prospectus Supplement, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Exchange Act and the applicable Rules and Regulations, as applicable, and
will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading. No post-effective amendment to the Registration Statement reflecting
any facts or events arising after the date thereof which represent, individually or in the aggregate, a fundamental change in the information
set forth therein is required to be filed with the Commission. Except for this Agreement and the Transaction Documents, there are no documents
required to be filed with the Commission in connection with the transaction contemplated hereby that (x) have not been filed as required
pursuant to the Securities Act or (y) will not be filed within the requisite time period. There are no contracts or other documents required
to be described in the Base Prospectus, or Prospectus Supplement, or to be filed as exhibits or schedules to the Registration Statement,
which (x) have not been described or filed as required or (y) will not be filed within the requisite time period.
3. The Company is eligible
to use Free Writing Prospectuses in connection with the Placement pursuant to Rules 164 and 433 under the Securities Act. Any Free Writing
Prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the
Commission in accordance with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder.
Each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that
was prepared by or behalf of or used by the Company complies or will comply in all material respects with the requirements of the Securities
Act and the applicable rules and regulations of the Commission thereunder. The Company will not, without the prior consent of the Placement
Agent, prepare, use or refer to, any Free Writing Prospectus.
4. The Company has filed
all reports, schedules, forms, statements or other documents required to be filed by the Company under the Securities Act or Exchange
Act, during the three years preceding the date hereof or such shorter period as the Company was required by laws to file such material
(the foregoing materials filed during such period, including the exhibits thereto and documents incorporated by reference therein, the
“SEC Reports”). For the twelve months preceding the date hereof, the Company has filed the SEC Reports on a timely
basis (including any valid extension of such time of filing provided under Rule 12b-5 or under coronavirus-related relief by the SEC)
and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective filing or amendment dates, the
SEC Reports complied in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission
promulgated thereunder; and as of their respective filing or amendment dates, the SEC Reports did not contain any untrue statement of
a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under
which they were made, not misleading.
5. There are no affiliations
with any Financial Industry Regulatory Authority, Inc. (“FINRA”) member firm among the Company’s officers, directors
or, to the knowledge of the Company, any ten percent (10%) or greater shareholder of the Company, except as set forth in the Registration
Statement and the SEC Reports.
B. Covenants of the Company.
1. The Company has delivered
or made available, or will as promptly as practicable deliver or make available, to the Placement Agent complete conformed copies of the
Registration Statement and of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of
the Registration Statement (without exhibits), the Base Prospectus, and the Prospectus Supplement, as amended or supplemented, in such
quantities and at such places as the Placement Agent reasonably requests. Neither the Company nor any of its directors and officers has
distributed and none of them will distribute, prior to the Closing Date, any offering material in connection with the offering and sale
of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the Prospectus Supplement, the
Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by the Securities
Act.
2. The Company will advise
the Placement Agent promptly after it receives notice thereof of the time when any amendment to the Registration Statement has been filed
or becomes effective or any supplement to the Base Prospectus or the Prospectus Supplement has been filed and will furnish the Placement
Agent with copies thereof, the parties acknowledging that such obligation is satisfied by filing such materials on the EDGAR system of
the SEC. The Company will file promptly all reports and any definitive proxy or information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus Supplement and
for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise the Placement Agent,
promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement or to amend or supplement
any Prospectus or for additional information, and (ii) of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document, if any, or any
amendment or supplement thereto or any order preventing or suspending the use of the Base Prospectus or the final Prospectus or any prospectus
supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of the suspension of
the qualification of any of the Securities for offering or sale in any jurisdiction, of the institution or threatened institution of any
proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or
a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance of any such stop order or prevention
or suspension of such use. If the Commission shall enter any such stop order or order or notice of prevention or suspension at any time,
the Company will use its best efforts to obtain the lifting of such order at the earliest possible moment, or will file a new registration
statement and use its best efforts to have such new registration statement declared effective as soon as practicable. Additionally, the
Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, under the Securities Act,
including with respect to the timely filing of documents thereunder, and will use its best efforts to confirm that any filings made by
the Company under such Rule 424(b) are received in a timely manner by the Commission.
3. The Company will cooperate
with the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under the securities laws of such jurisdictions
(United States and foreign) as the Placement Agent and the Purchasers may reasonably request and will make such applications, file such
documents, and furnish such information as may be reasonably required for that purpose, provided the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified
or required to file such a consent, and provided further that the Company shall not be required to produce any new disclosure document.
The Company will, from time to time, prepare and file such statements, reports and other documents as are or may be required to continue
such qualifications in effect for so long a period as the Placement Agent may reasonably request for distribution of the Securities. The
Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or any such exemption relating
to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose,
and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its best
efforts to obtain the withdrawal thereof at the earliest possible moment.
4. The Company will comply
with the Securities Act and the Exchange Act, and the rules and regulations of the Commission thereunder, so as to permit the completion
of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and any Prospectus. If during the
period in which a prospectus is required by law to be delivered in connection with the distribution of any Securities contemplated by
the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event shall occur as a result
of which, in the judgment of the Company or in the opinion of the Placement Agent or counsel for the Placement Agent, it becomes necessary
to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein, in the light of the circumstances
under which they were made, as the case may be, not misleading, or if it is necessary at any time to amend or supplement the Incorporated
Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply with any law, the Company will promptly
prepare and file with the Commission, and furnish at its own expense to the Placement Agent and to dealers, an appropriate amendment to
the Registration Statement or supplement to the Registration Statement, the Incorporated Documents or any Prospectus that is necessary
in order to make the statements in the Incorporated Documents and any Prospectus as so amended or supplemented, in the light of the circumstances
under which they were made, as the case may be, not misleading, or so that the Registration Statement, the Incorporated Documents or any
Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration Statement or supplementing the Incorporated
Documents or any Prospectus in connection with the Placement, the Company will furnish the Placement Agent with a copy of such proposed
amendment or supplement and will not file any such amendment or supplement to which the Placement Agent reasonably objects.
5. During the Prospectus
Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market all reports and documents
required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act.
6. The Company will not
take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute,
the stabilization or manipulation of the price of any securities of the Company.
7. [Intentionally
Omitted]
8. If any of the conditions
specified in this Section 1(B) shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Placement Agent and its
counsel, this Agreement and all obligations of the Placement Agent hereunder may be canceled at, or at any time prior to, the Closing
Date by the Placement Agent. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed
in writing.
C. Subsequent Equity
Sales. From the date hereof until seven (7) trading days (on which days the Nasdaq Capital Market is open for trading) after the
Closing Date, neither the Company nor any Subsidiary shall issue, enter into any agreement to issue or announce the issuance or
proposed issuance of any Ordinary Shares or Ordinary Share Equivalents other than through Exempt Issuance. From the date hereof
until seven (7) trading days after the Closing Date, the Company shall be prohibited from effecting or entering into an agreement to
effect any issuance by the Company or any of its Subsidiaries of any Ordinary Shares or Ordinary Share Equivalents (or a combination
of units thereof) involving a Variable Rate Transaction. For purposes of this Agreement, “Variable Rate
Transaction” shall mean 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 (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 Share 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 Share 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 Placement Agent 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.
SECTION 2. REPRESENTATIONS
OF THE PLACEMENT AGENT. The Placement Agent represents and warrants that it (i) is a member in good standing of FINRA, (ii) is registered
as a broker/dealer under the Exchange Act, (iii) is licensed as a broker/dealer under the laws of the States applicable to the offers
and sales of the Securities by the Placement Agent, (iv) is and will be a corporate entity validly existing under the laws of its place
of formation, and (v) has full power and authority to enter into and perform its obligations under this Agreement. The Placement Agent
will immediately notify the Company in writing of any change in its status as such. The Placement Agent covenants that it will use its
reasonable best efforts to conduct the Placement hereunder in compliance with the provisions of this Agreement and the requirements of
applicable law.
SECTION 3. COMPENSATION;
OTHER ARRANGEMENTS. In consideration of the services to be provided for hereunder by the Placement Agent, the Company shall pay
to the Placement Agent the following compensation with respect to the Securities which the Placement Agent is placing:
A. A cash fee (the “Cash
Fee”) equal to seven percent (7.0%) of the aggregate gross proceeds raised in the Placement. The Cash Fee shall be paid at the
closing of the Placements (the “Closing”).
B. [Intentionally Omitted].
C. Subject to compliance
with FINRA Rule 5110(g), the Company also agrees to reimburse the Placement Agent for all travel and other out-of-pocket expenses, including
the reasonable fees, costs and disbursements of its legal counsel, in an amount not to exceed an aggregate of one hundred fifty thousand
U.S. dollars (US$150,000). The Company will reimburse the Placement Agent at the Closing directly out of the gross proceeds raised in
the Placement. In the event this Agreement shall terminate prior to the consummation of the Placement, the Placement Agent, shall be entitled
to reimbursement for actual expenses upon providing reasonable documentation relating to the incurrence of such expenses.
D. If within seven (7)
trading days after the end of the Term (as defined below), the Company completes any financing of equity, equity-linked or debt or other
capital-raising activity of the Company for which any investors in the Placement were contacted by the Placement Agent in connection therewith
(other than the exercise by any person or entity of any options, warrants or other convertible securities), then the Company shall pay
to the Placement Agent a commission as described in Section 3(A) herein. At the end of the Term, the Placement Agent shall provide the
Company with a list of investors that were introduced to the Company during the Term and only these investors shall entitle the Placement
Agent to receive a commission as described in Section 3(A) herein.
E. The Placement Agent reserves
the right to reduce any item of its compensation or adjust (in the Company’s favor) the terms thereof as specified herein in the
event that a determination shall be made by FINRA to the effect that the Placement Agent’s aggregate compensation is in excess of
FINRA’s rules and regulations or that the terms thereof require adjustment.
SECTION 4. INDEMNIFICATION.
The Company agrees to the indemnification and other agreements set forth in the Indemnification Provisions (the
“Indemnification”) attached hereto as Addendum A, the provisions of which are incorporated herein by
reference and shall survive the termination or expiration of this Agreement.
SECTION 5. ENGAGEMENT
TERM. The Placement Agent’s engagement hereunder shall be until the Closing Date of the Placement; provided that, on or
after February 16th, 2024, the engagement may be terminated by the Company or the Placement Agent upon 2 days’
written notice to the other party, effective upon receipt of such written notice (such date, the “Termination
Date” and the period of time during which this Agreement remains in effect is referred to herein as the
“Term”). Notwithstanding anything to the contrary contained herein, the provisions concerning the Company’s
obligation to pay any fees actually earned pursuant to Section 3 hereof and the provisions concerning confidentiality,
indemnification and contribution contained herein and the Company’s obligations contained in the Indemnification Provisions
attached hereto as Addendum A will survive any expiration or termination of this Agreement. If this Agreement is
terminated prior to the completion of the Placement, all fees and expense reimbursements due to the Placement Agent shall be paid by
the Company to the Placement Agent on or before the Termination Date (in the event such fees are earned or owed as of the
Termination Date). The Placement Agent agrees not to use any confidential information concerning the Company provided to the
Placement Agent by the Company for any purposes other than those contemplated under this Agreement.
SECTION 6. PLACEMENT
AGENT’S INFORMATION. The Company agrees that any information or advice rendered by the Placement Agent in connection with this
engagement is for the confidential use of the Company only in its evaluation of the Placement and, except as otherwise required by law,
the Company will not disclose or otherwise refer to the advice or information in any manner without the Placement Agent’s prior
written consent.
SECTION 7. NO
FIDUCIARY RELATIONSHIP. This 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 attached hereto
as Addendum A hereof. The Company acknowledges and agrees that the Placement Agent is not nor shall it be construed
as a fiduciary of the Company and the Placement Agent shall not have any duties or liabilities to the equity holders or the
creditors of the Company or any other person by virtue of this Agreement or the retention of the Placement Agent hereunder, all of
which are hereby expressly waived.
SECTION 8. CLOSING.
The obligations of the Placement Agent, and the Closing of the sale of the Securities hereunder are subject to the accuracy, when
made and on the Closing Date, of the representations and warranties on the part of the Company contained herein and in the Purchase
Agreement, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the
performance by the Company of their obligations hereunder, and to each of the following additional terms and conditions, except as
otherwise disclosed to and acknowledged and waived by the Placement Agent.
A. No stop order suspending
the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been initiated or
threatened by the Commission, and any request for additional information on the part of the Commission (to be included in the Registration
Statement, the Base Prospectus, the Prospectus Supplement or otherwise) shall have been complied with to the reasonable satisfaction of
the Placement Agent. Any filings required to be made by the Company in connection with the Placement shall have been timely filed with
the Commission.
B. The Placement Agent
shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Registration Statement, the Base Prospectus,
the Prospectus Supplement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel
for the Placement Agent, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to
be stated therein or is necessary to make the statements therein not misleading.
C. All corporate proceedings
and other legal matters incident to the authorization, form, execution, delivery and validity of each of this Agreement, the other Transaction
Documents, the Securities, the Registration Statement, the Base Prospectus and the Prospectus Supplement and all other legal matters relating
to this Agreement and the transactions contemplated hereby and thereby shall be reasonably satisfactory in all material respects to counsel
for the Placement Agent and the Company shall have furnished to such counsel all documents and information that they may reasonably request
to enable them to pass upon such matters.
D. The Placement Agent
shall have completed its due diligence investigation of the Company to the satisfaction of the Placement Agent and its counsel.
E. The Placement Agent
shall have received from outside counsels to the Company such counsels’ written opinions, including, without limitation, a negative
assurance letter from applicable counsel, addressed to the Placement Agent and the Purchasers and dated as of the Closing Date, in form
and substance reasonably satisfactory to the Placement Agent.
F. [Intentionally omitted].
G. On the Closing Date,
Placement Agent shall have received a certificate of signed by the chief executive officers of the Company, dated, as applicable, as of
the date of such Closing, to the effect that, as of the date of this Agreement and as of the Closing Date, the representations and warranties
of the Company contained herein and in the Purchase Agreement were and are accurate in all material respects, except for such changes
as are contemplated by this Agreement and except as to representations and warranties that were expressly limited to a state of facts
existing at a time prior to the applicable Closing Date, and that, as of the applicable date, the obligations to be performed by the Company
hereunder on or prior thereto have been fully performed in all material respects.
H. On the Closing Date,
Placement Agent shall have received from the Company a certificate of the corporate secretary of the Company, or the Chief Financial Officer
of the Company if the Company does not have a corporate secretary, dated, as applicable, as of the date of such Closing, certifying to
the organizational documents of the Company, good standing in the jurisdiction of formation of the Company and board resolutions authorizing
the Placement of the Securities.
I. The Company (i) shall
not have sustained since the date of the latest audited financial statements included or incorporated by reference in the Registration
Statement, the Base Prospectus and the Prospectus Supplement, any loss or interference with its business as a result of any fire, explosion,
flood, terrorist act, epidemic or pandemic (including as a result of the coronavirus known as COVID-19), any change in general economic,
political or financial conditions in the United States or elsewhere, act of war or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in or contemplated by the Registration
Statement, the Base Prospectus and the Prospectus Supplement, and (ii) since such date there shall not have been any change in the capital
stock or long-term debt of the Company or any change, or any development involving a prospective change, in or affecting the business,
general affairs, management, financial position, shareholders’ equity, results of operations or prospects of the Company, otherwise
than as set forth in or contemplated by the Registration Statement, the Base Prospectus and the Prospectus Supplement, the effect of which,
in any such case described in clause (i) or (ii), is, in the judgment of the Placement Agent, so material and adverse as to make it impracticable
or inadvisable to proceed with the sale or delivery of the Securities on the terms and in the manner contemplated by the Base Prospectus,
the Prospectus Supplement and the Purchase Agreement.
J. The Ordinary Share is
registered under the Exchange Act and, as of the Closing Date, the Company has submitted the notification of listing of additional Ordinary
Shares, including the Offered Shares, the Warrants and the Warrant Shares to the Trading Market or other U.S. applicable national exchange,
and the Offered Shares and the Warrant Shares shall be listed for trading on the Trading Market or other applicable U.S. national exchange
and reasonable evidence of such action, if available, shall have been provided to the Placement Agent. The Company shall have taken no
action designed to terminate, or likely to have the effect of, terminating the registration of the Ordinary Shares under the Exchange
Act or delisting or suspending from trading the Ordinary Shares from the Trading Market or other applicable U.S. national exchange, nor
has the Company received any information suggesting that the Commission or the Trading Market or other U.S. applicable national exchange
is contemplating terminating such registration or listing.
K. No action shall have
been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which
would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect or potentially and adversely
affect the business or operations of the Company; and no injunction, restraining order or order of any other nature by any federal or
state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance or sale of the Securities
or materially and adversely affect or potentially and adversely affect the business or operations of the Company.
L. The Company shall have
prepared and filed with the Commission a Report on Form 6-K with respect to the Placement, including as an exhibit thereto this Agreement.
M. The Company shall have
entered into a Purchase Agreement with each of the Purchasers and such agreements shall be in full force and effect and shall contain
representations, warranties and covenants of the Company as agreed between the Company and the Purchasers.
N. FINRA shall have raised
no objection to the fairness and reasonableness of the terms and arrangements of this Agreement. In addition, the Company shall, if requested
by the Placement Agent, make or authorize Placement Agent’s counsel to make on the Company’s behalf, any filing with the FINRA
Corporate Financing Department pursuant to FINRA Rule 5110 with respect to the Placement and pay all filing fees required in connection
therewith.
O. The Company shall apply
the net proceeds from the Placement received by it in a manner consistent with the application thereof described under the caption or
heading “Use of Proceeds” in the Registration Statement, the Base Prospectus, the Prospectus Supplement and the Purchase Agreement.
P. Prior to the Closing
Date, the Company shall have furnished to the Placement Agent such further information, certificates and documents as the Placement Agent
may reasonably request.
If any of the conditions specified in this Section
8 shall not have been fulfilled when and as required by this Agreement, or if any of the certificates, opinions, written statements or
letters furnished to the Placement Agent or to Placement Agent’s counsel pursuant to this Section 8 shall not be reasonably satisfactory
in form and substance to the Placement Agent and to Placement Agent’s counsel, all obligations of the Placement Agent hereunder
may be cancelled by the Placement Agent at, or at any time prior to, the consummation of the Closing. Notice of such cancellation shall
be given to the Company in writing or orally. Any such oral notice shall be confirmed promptly thereafter in writing.
SECTION 9. RIGHT OF
FIRST REFUSAL. Subject to the Placement Agent’s consummation of this Placement, beginning on the Closing Date of such
Placement until the seven (7) trading days anniversary following the Closing Date or the end of the Term (the “ROFR
Period”), other than termination for Cause (as defined below), the Company grants the Placement Agent the right to provide
investment banking services to the Company on an exclusive basis in all matters for which the following investment banking services
are sought by the Company (such right, the “ROFR”), which right is exercisable in the Placement Agent’s
sole discretion and which right shall not have a duration of more than three (3) years from the commencement of the sales of the
Securities in the Placement or the termination of the Placement Agent’s engagement hereby in accordance with FINRA Rule
5110(g)(6)(A). For these purposes, investment banking services shall mean (a) acting as lead manager for any underwritten public
offering; (b) acting as exclusive placement agent, initial purchaser or financial advisor in connection with any private offering of
securities of the Company; and (c) acting as financial advisor in connection with any sale or other transfer by the Company,
directly or indirectly, of a majority or controlling portion of its capital stock or assets to another entity, any purchase or other
transfer by another entity, directly or indirectly, of a majority or controlling portion of the capital stock or assets of the
Company, and any merger or consolidation of the Company with another entity. Within three (3) days after the Company’s
decision to enter into any such transaction, the Company shall provide written notice to the Placement Agent, and the Placement
Agent shall notify the Company of its intention to exercise the ROFR within three (3) business days following receipt of such
written notice from the Company. Any decision by the Placement Agent to act in any such capacity shall be contained in separate
agreements, which agreements would contain, among other matters, provisions for customary fees for transactions of similar size and
nature, as may be mutually agreed upon by the parties thereto, and indemnification of the Placement Agent which are appropriate to
such transaction and shall be subject to general market conditions. If the Placement Agent declines to exercise the ROFR or in the
event the terms proposed by the Placement Agent are unsatisfactory to the Company, the Company shall have the right to retain any
other person or persons to provide such services on terms and conditions which are not more favorable to such other person or
persons than the terms declined by the Placement Agent in the first instance, or than the terms proposed by the Placement Agent in
the second instance. The ROFR granted hereunder may be terminated by the Company for “Cause”, which shall mean a
material breach by the Placement Agent of this Agreement or a material failure by the Placement Agent to provide the services as
contemplated by this Agreement. The services provided by the Placement Agent hereunder are solely for the benefit of the Company and
are not intended to confer any rights upon any persons or entities not a party hereto (including, without limitation,
securityholders, employees or creditors of the Company) as against the Placement Agent or its directors, officers, agents and
employees.
SECTION 10. GOVERNING
LAW. This Agreement will be governed by, and construed in accordance with, the laws of the State of New York applicable to
agreements made and to be performed entirely in such State. This Agreement may not be assigned by either party without the prior
written consent of the other party. This Agreement shall be binding upon and inure to the benefit of the parties hereto, and their
respective successors and permitted assigns. Any right to trial by jury with respect to any dispute arising under this Agreement or
any transaction or conduct in connection herewith is waived. Any dispute arising under this Agreement may be brought into the courts
of the State of New York or into the Federal Court located in New York, New York and, by execution and delivery of this Agreement,
the Company hereby accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction of aforesaid
courts. Each party hereto hereby irrevocably waives personal service of process and consents to process being served in any such
suit, action or proceeding by delivering a copy thereof via 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 manner
permitted by law. If either party shall commence an action or proceeding to enforce any provisions of a Transaction Document, then
the prevailing party in such action or proceeding shall be reimbursed by the other party for its attorney’s fees and other
costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
SECTION 11. ENTIRE
AGREEMENT/MISC. This Agreement (including the Indemnification Provisions attached hereto as Addendum A) embodies the entire
agreement and understanding between the parties hereto with respect to this Placement, and supersedes all prior agreements and understandings,
relating to the subject matter hereof. If any provision of this Agreement is determined to be invalid or unenforceable in any respect,
such determination will not affect such provision in any other respect or any other provision of this Agreement, which will remain in
full force and effect. This Agreement may not be amended or otherwise modified or waived except by an instrument in writing signed by
both the Placement Agent and the Company. The representations, warranties, agreements and covenants contained herein shall survive the
Closing of the Placement and delivery of the Securities. 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
hereto and delivered to the other party hereto, it being understood that both parties hereto need not sign the same counterpart. In the
event that any signature is delivered by facsimile transmission or a .pdf format 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 facsimile
or .pdf signature page were an original thereof.
SECTION 12. CONFIDENTIALITY.
The Placement Agent (i) will keep the Confidential Information (as such term is defined below) confidential and will not (except as
required by applicable law or Trading Market or other stock exchange requirement, regulation or legal process (“Legal
Requirement”)), without the Company’s prior written consent, disclose to any person any Confidential Information,
and (ii) will not use any Confidential Information other than in connection with the Placement. The Placement Agent further agrees
to disclose the Confidential Information only to its Representatives (as such term is defined below) who need to know the
Confidential Information for the purpose of the Placement, and who are informed by the Placement Agent of the confidential nature of
the Confidential Information. The term “Confidential Information” shall mean, all confidential, proprietary and
non-public information (whether written, oral or electronic communications) furnished by the Company to the Placement Agent or its
Representatives in connection with such Placement Agent’s evaluation of the Placement. The term “Confidential
Information” will not, however, include information which (i) is or becomes publicly available other than as a result of a
disclosure by the Placement Agent or its Representatives in violation of this Agreement, (ii) is or becomes available to the
Placement Agent or any of its Representatives on a non-confidential basis from a third-party, (iii) is known to the Placement Agent
or any of its Representatives prior to disclosure by the Company or any of its Representatives, or (iv) is or has been independently
developed by the Placement Agent and/or the Representatives without use of any Confidential Information furnished to it by the
Company. The term “Representatives” shall mean with respect to the Placement Agent, its directors, board
committees, officers, employees, financial advisors, attorneys and accountants. This provision shall be in full force until the
earlier of (a) the date on which the Confidential Information ceases to be confidential and (b) two years from the date hereof.
Notwithstanding any of the foregoing, in the event that the Placement Agent or any of its Representatives are required by Legal
Requirement to disclose any of the Confidential Information, the Placement Agent and its Representatives will furnish only that
portion of the Confidential Information which the Placement Agent or its Representative, as applicable, is required to disclose by
Legal Requirement as advised by counsel, and will use reasonable efforts to obtain reliable assurance that confidential treatment
will be accorded the Confidential Information so disclosed.
SECTION 13. 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 date of transmission, if such notice or communication is sent to the
email address specified on the signature pages attached hereto prior to 6:30 p.m. (New York City time) on a business day, (b) the
next business day after the date of transmission, if such notice or communication is sent to the email address on the signature
pages attached hereto on a day that is not a business day or later than 6:30 p.m. (New York City time) on any business day, (c) the
third business day following the date of mailing, if sent by U.S. internationally recognized air 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 hereto.
SECTION 14. PRESS
ANNOUNCEMENTS. The Company agrees that the Placement Agent shall, from and after any Closing, have the right to reference
the Placement and the Placement Agent’s role in connection therewith in the Placement Agent’s marketing materials and on
its website and to place advertisements in financial and other newspapers and journals, in each case at its own expense.
[The remainder of this page has been intentionally
left blank.]
Please confirm that the foregoing
correctly sets forth our agreement by signing and returning to Univest the enclosed copy of this Agreement.
| |
Very truly yours, |
| |
|
| |
UNIVEST SECURITIES, LLC |
| |
|
| |
By: |
/s/ Edric Yi Guo |
| |
|
Name: Edric Yi Guo |
| |
|
Title: CEO and Head of Investment Banking |
| |
|
|
| |
Address for notice: |
| |
|
| |
75 Rockefeller Plaza #1838 |
| |
New York, New York 10019 |
| |
Attention: Edric Guo |
| |
Email: yguo@univest.us |
Accepted and Agreed to as of
the date first written above:
| TOP FINANCIAL GROUP LIMITED |
|
| |
|
| By: |
/s/ Ka Fai Yuen |
|
| |
Name: Ka Fai Yuen |
|
| |
Title: Chief Executive Officer |
|
| |
|
| Address for notice: |
|
| |
|
| TOP Financial Group Limited |
|
| 118 Connaught Road West Room 1101 |
|
| Hong Kong |
|
| Attn: Mr. Ka Fai Yuen, CEO |
|
| Email: paul.yuen@zyzq.com.hk |
|
[Signature Page to Placement Agency Agreement
Between TOP Financial Group Limited and Univest Securities, LLC]
ADDENDUM
A
INDEMNIFICATION
PROVISIONS
In connection with the engagement
of Univest Securities, LLC (“Univest” or the “Lead Manager”) or together with other broker dealers registered
with FINRA and caused by Univest to also act as a manager in connection with the Placements of the Securities (the “Lead Managers”)
to be issued by TOP Financial Group Limited (the “Company”) pursuant to the Placement Agency Agreement, dated February 11,
2024, by and between the Company and the Lead Manager(s), as it may be amended from time to time in writing (the “Agreement”),
the Company hereby agrees as follows (capitalized terms used herein without definition shall have the meanings ascribed to such terms
in the Agreement):
1. To the extent
permitted by law, the Company shall indemnify the Lead Manager(s) and each of their respective affiliates, directors, officers,
employees, agents and controlling persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
against all joint or several losses, claims, damages, expenses and liabilities (or actions, including shareholder actions, in
respect thereof), as the same are incurred (including the reasonable fees and expenses of counsel), relating to or arising out of
its activities hereunder or pursuant to the Agreement, including, without limitation, those which arise out of or are based on (i)
any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment
thereto), including the information deemed to be a part of the Registration Statement at the time of effectiveness and at any
subsequent time pursuant to Rules 430A and 430B of the Securities Act and the rules and regulations thereunder, as applicable, or
the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements
therein not misleading, (ii) any untrue statement or alleged untrue statement of a material fact contained in any Prospectus or
Prospectus Supplement (or any amendment or supplement to any of the foregoing) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not
misleading, (iii) any untrue statement or alleged untrue statement of a material fact contained in any materials or information
provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Securities,
including any roadshow or investor presentations made to investors by the Company (whether in person or electronically) or the
omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or (iv) in whole or in part any inaccuracy in any material respect in the
representations and warranties of the Company contained herein or in the Purchase Agreement; provided however, with regard to the
Lead Managers, the Company shall not be obligated to indemnify the Lead Manager(s) or such other person or entities under this
Section 1 to the extent that any losses, claims, damages, expenses or liabilities (or actions in respect thereof) are found in a
final judgment (not subject to appeal) by a court of competent jurisdiction to have resulted primarily and directly from the willful
misconduct or gross negligence of the Lead Manager(s) in performing the services described herein, as the case may be. The Company
also agrees that no Lead Manager shall have any liability (whether direct or indirect, in contract or tort or otherwise) to the
Company or its security holders or creditors related to or arising out of the engagement of the Lead Manager(s) pursuant to, or the
performance by the Lead Manager(s) of the services contemplated by, this Agreement except to the extent that any loss, claim, damage
or liability is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted primarily from the
willful misconduct or gross negligence of the Lead Manager(s).
2. Promptly after receipt
by the Lead Manager(s) of notice of any claim or the commencement of any action or proceeding with respect to which the Lead Manager(s)
are entitled to indemnity hereunder, the Lead Manager(s) will notify the Company in writing of such claim or of the commencement of such
action or proceeding, and the Company will assume the defense of such action or proceeding and will employ counsel reasonably satisfactory
to the Lead Manager(s) and will pay the fees and expenses of such counsel. Notwithstanding the preceding sentence, the Lead Manager(s)
will be entitled to employ counsel separate from counsel for the Company and from any other party in such action if counsel for the Lead
Manager(s) reasonably determines that it would be inappropriate under the applicable rules of professional responsibility for the same
counsel to represent both the Company and the Lead Manager(s). In such event, the reasonable fees and disbursements of no more than one
such separate counsel will be paid by the Company. The Company will have the exclusive right to settle the claim or proceeding provided
that the Company will not settle any such claim, action or proceeding without the prior written consent of the Lead Manager(s), which
will not be unreasonably withheld.
3. The Company agrees
to notify the Lead Manager(s) promptly of the assertion against it or any other person of any claim or the commencement of any action
or proceeding relating to a transaction contemplated by the Agreement.
4. If for any reason
the foregoing indemnity is unavailable to the Lead Manager(s) or insufficient to hold such Lead Manager(s) harmless, then the Company
shall contribute to the amount paid or payable by the Lead Manager(s), as the case may be, as a result of such losses, claims, damages
or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand,
and the Lead Manager(s) on the other, but also the relative fault of the Company on the one hand and the Lead Manager(s) on the other
that resulted in such losses, claims, damages or liabilities, as well as any relevant equitable considerations. The amounts paid or payable
by a party in respect of losses, claims, damages and liabilities referred to above shall be deemed to include any legal or other fees
and expenses incurred in defending any litigation, proceeding or other action or claim. Notwithstanding the provisions hereof, the share
of the liability of the Lead Manager(s) hereunder shall not be in excess of the amount of fees actually received, or to be received, by
the Lead Manager(s) under the Agreement (excluding any amounts received as reimbursement of expenses incurred by the Lead Manager(s) t).
5. These Indemnification
Provisions shall remain in full force and effect whether or not the transactions contemplated by the Agreement are completed and
shall survive the termination of the Agreement, and shall be in addition to any liability that the Company might otherwise have to
any indemnified party under the Agreement or otherwise.
[The remainder of this page has been intentionally
left blank.]
| |
Very truly yours, |
| |
|
| |
UNIVEST SECURITIES, LLC |
| |
|
| |
By: |
/s/ Edric Yi Guo |
| |
|
Name: Edric Yi Guo |
| |
|
Title: CEO and Head of Investment Banking |
| |
|
|
| |
Address for notice: |
| |
|
| |
75 Rockefeller Plaza #1838 |
| |
New York, New York 10019 |
| |
Attention: Edric Guo |
| |
Email: yguo@univest.us |
Accepted and Agreed to as of
the date first written above:
| TOP FINANCIAL GROUP LIMITED |
|
| |
|
| By: |
/s/ Ka Fai Yuen |
|
| |
Name: Ka Fai Yuen |
|
| |
Title: Chief Executive Officer |
|
| |
|
| Address for notice: |
|
| |
|
| TOP Financial Group Limited |
|
| 118 Connaught Road West Room 1101 |
|
| Hong Kong |
|
| Attn: Mr. Ka Fai Yuen, CEO |
|
| Email: paul.yuen@zyzq.com.hk |
|
Exhibit 10.2
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this “Agreement”)
is dated as of February 11, 2024, between TOP Financial Group Limited, a company organized under the laws of Cayman Islands (the “Company”),
and each purchaser identified on the signature pages hereto (each, including its successors and assigns, a “Purchaser”
and collectively the “Purchasers”).
WHEREAS, subject to the terms and conditions set
forth in this Agreement and pursuant to an effective registration statement under the Securities Act (as defined below), 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 agrees as follows:
ARTICLE I.
DEFINITIONS
1.1 Definitions. In addition to the terms defined elsewhere
in this Agreement, for all purposes of this Agreement, the following terms have the meanings set forth in this Section 1.1:
“Acquiring Person” shall have
the meaning ascribed to such term in Section 4.5.
“Action” shall have the meaning
ascribed to such term in Section 3.1(j).
“Affiliate” means any Person
that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person
as such terms are used in and construed under Rule 405 under the Securities Act.
“Board of Directors” means the
board of directors of the Company.
“Business Day” means any day
other than Saturday, Sunday, or other day on which banking institutions in the State of New York are authorized or required by law to
remain closed; provided, further however, that, for calculating Business Days with respect to any action to be taken by the Company hereunder.
“Closing” means the closing
of the purchase and sale of the Securities pursuant to Section 2.1.
“Closing Date” means the Trading
Day on which all of the Transaction Documents have been executed and delivered by the applicable parties thereto, and all conditions precedent
to (i) the Purchasers’ obligations to pay the Subscription Amount at the Closing and (ii) the Company’s obligations
to deliver the Securities, in each case, at the Closing have been satisfied or waived, but in no event later than the second (2nd)
Trading Day following the date hereof.
“Commission” means the United
States Securities and Exchange Commission.
“Company Cayman Counsel” means
Harney Westwood & Riegels.
“Company U.S. Counsel” means
Ortoli Rosenstadt LLP with offices located at 366 Madison Avenue, 3rd Floor, New York, NY 10017.
“Disclosure Schedules” means
the Disclosure Schedules of the Company delivered concurrently herewith.
“Disclosure Time” means, (i)
if this Agreement is signed on a day that is not a Trading Day or after 9:00 a.m. (New York City time) and before midnight (New York
City time) on any Trading Day, 9:01 a.m. (New York City time) on the Trading Day immediately following the date hereof, unless otherwise
instructed as to an earlier time by the 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.
“DVP” shall have the meaning
ascribed to such term in Section 2.1.
“Evaluation Date” shall have
the meaning ascribed to such term in Section 3.1(s).
“Exchange Act” means the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exempt Issuance” means the
issuance of (a) Ordinary Shares, restricted share units or options to employees, consultants, officers, or directors of the Company pursuant
to any agreements in existence as of the date hereof, or any share or option plan in existence as of the date hereof or that is adopted
by a majority of the directors of the Company in the future, provided that such issuances to consultants are issued as “restricted
securities” (as defined in Rule 144) and carry no registration rights, (b) Ordinary Shares upon the exercise or exchange of or conversion
of securities exercisable or exchangeable for or convertible into Ordinary Shares pursuant to terms of existing agreements that are outstanding
as of the date of this Agreement and the filing of any registration statement and amendments thereto that are required in connection an
issuance pursuant to this clause (b), 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 or to extend the
term of such securities (excluding, for the avoidance of doubt, any anti-dilution adjustments expressly provided for in the terms of such
securities as of the date of this Agreement), (c) securities issued pursuant to acquisitions or strategic transactions approved by a majority
of the disinterested directors of the Company or pursuant to a private placement transaction, provided that, in any case, 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 prohibition period in Section 4.10(a) herein and, with solely
respect to acquisitions or strategic transactions noted in this clause (c), provided that such issuance shall only be to a Person in the
same industry as the Company or in a business synergistic with the business of the Company, (d) issuances of Ordinary Shares to
consultants or vendors of the Company, provided that such securities are issued as “restricted securities” (as defined in
Rule 144) and carry no registration rights; and (e) issuances of Ordinary Shares to existing holders of the Company’s securities
in compliance with the terms of agreements entered into with, or instruments issued to, such holders, provided that such agreements regarding
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 or to extend the term of such securities, and provided further that such
securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights.
“FCPA” means the Foreign Corrupt
Practices Act of 1977, as amended.
“GAAP” means generally accepted
accounting principles in the United States.
“Intellectual Property” shall
have the meaning ascribed to such term in Section 3.1(p).
“Liens” means a lien, charge,
pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Material Adverse Effect” shall
have the meaning assigned to such term in Section 3.1(b).
“Material Permits” shall have
the meaning ascribed to such term in Section 3.1(m).
“Money Laundering Laws” shall
have the meaning ascribed to such term in Section 3.1(nn).
“OFAC” shall have the meaning
ascribed to such term in Section 3.1(hh)
“Ordinary Shares” means the
ordinary shares of the Company, par value 0.001 per share.
“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 share, 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.
“Per Share Purchase Price” equals
$2.50, subject to adjustment for reverse and forward share splits, share dividends, share combinations and other similar transactions
of Ordinary Shares that occur between the date hereof and the Closing Date.
“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.
“Placement Agency Agreement”
means that certain Placement Agency Agreement by and between the Company and the Placement Agent, dated as of the date hereof.
“Placement Agent” means Univest
Securities, LLC.
“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.
“Prospectus” means the final
base prospectus filed pursuant to the Registration Statement.
“Prospectus Supplement” means
the prospectus supplement filed pursuant to the Registration Statement relating to the offering of Securities pursuant to this Agreement.
“Purchaser Party” shall have
the meaning ascribed to such term in Section 4.8.
“Registration Statement” means
the effective registration statement with the Commission on Form F-3 (File No. 333-273066), which registers the sale of the Securities.
“Required Approvals” shall have
the meaning ascribed to such term in Section 3.1(e).
“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.
“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.
“SEC Reports” shall have the
meaning ascribed to such term in Section 3.1(h).
“Securities” means the Shares,
the Warrants, and the Warrant Shares.
“Securities Act” means the Securities
Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Shares” means the Ordinary
Shares issued and issuable to each Purchaser pursuant to this Agreement.
“Short Sales” means all “short
sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include locating and/or borrowing
Ordinary Shares).
“Subscription Amount” means,
as to each Purchaser, the aggregate amount to be paid for Ordinary Shares and Warrants, 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.
“Subsidiary” means any subsidiary
of the Company as set forth in the SEC Reports and shall, where applicable, also include any direct or indirect subsidiary of the Company
formed or acquired after the date hereof.
“Trading Day” means a day on
which the principal Trading Market is open for trading.
“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, or the New York Stock Exchange (or any successors
to any of the foregoing).
“Transaction Documents” means
this Agreement, the Warrants, the Placement Agency Agreement and all exhibits and schedules thereto and hereto and any other documents
or agreements executed in connection with the transactions contemplated hereunder.
“Transfer Agent” means Securities
Transfer Corporation, the current transfer agent of the Company, at its principal office in 2901 N Dallas Parkway, Suite 380, Plano, Texas
75093 and any successor transfer agent of the Company.
“Warrants” means, collectively,
the Ordinary Share purchase warrants delivered to the Purchasers at the Closing in accordance with Section 2.2(a) hereof, which Warrants
shall be exercisable from the date of issuance and have a term of exercise equal to five (5) years from the initial exercise date, in
the form of Exhibit A attached hereto.
“Warrant Shares” means the Ordinary
Shares issuable upon exercise of the Warrants.
ARTICLE II.
PURCHASE AND SALE
2.1 Closing. On the Closing Date, upon the terms and subject
to the conditions set forth herein, approximately 2 Trading Days following 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
$5,000,000 of Securities, which is based on, (i) the number of Ordinary Shares set forth under the heading “Subscription Amount”
on the Purchaser’s signature page hereto, at the Per Share Purchase Price, and (ii) Warrants exercisable for Ordinary Shares as
calculated pursuant to 2.2(a).
Each Purchaser’s Subscription Amount as set forth on the signature
page hereto executed by such Purchaser shall be made available for Delivery Versus Payment (“DVP”) settlement with
the Company or its designee(s). At the Closing, the Company shall deliver, or cause to be delivered, to each Purchaser its respective
Shares and Warrants as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth
in Section 2.2 deliverable at the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Closing
shall occur at the offices of the Placement Agent or such other location (including remotely by electronic transmission) as the parties
shall mutually agree. Unless otherwise directed by the Placement Agent, settlement of the Shares shall occur via DVP (i.e., on the Closing
Date, the Company shall issue the Shares registered in the Purchasers’ names and addresses and released by the Transfer Agent directly
to the account(s) at the Placement Agent identified by each Purchaser; upon receipt of such Shares, the Placement Agent shall promptly
electronically deliver such Shares to the applicable Purchaser, and payment therefor shall be made by the Placement Agent (or its clearing
firm) by wire transfer to the Company). 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 the Closing (the “Pre-Settlement Period”), such
Purchaser sells to any Person all, or any portion, of any Shares to be issued hereunder to such Purchaser at the Closing (collectively,
the “Pre-Settlement Shares”), such Person shall, automatically hereunder (without any additional required actions by
such Purchaser or the Company), be deemed to be a Purchaser under this Agreement unconditionally bound to purchase, and the Company shall
be deemed unconditionally bound to sell, such Pre-Settlement Shares to such Person 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 Subscription Amount for
such Pre-Settlement Shares hereunder; provided, further, that the Company hereby acknowledges and agrees that the forgoing 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 Shares will be made in the sole discretion of such Purchaser from time to time, including
during the Pre-Settlement Period. Notwithstanding the foregoing, with respect to any Notice(s) of Exercise (as defined in the Warrants)
delivered on or prior to 12:00 p.m. (New York City time) on the Closing Date, which may be delivered at any time after the time of execution
of this 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
Closing Date and the Closing Date shall be the Warrant Share Delivery Date (as defined in the Warrants) for purposes hereunder.
2.2 Deliveries.
| |
(a) |
On or prior to the Closing Date, the Company shall deliver or cause to be delivered to each Purchaser the following: |
| |
(i) |
this Agreement duly executed by the Company; |
| |
(ii) |
the Company’s wire instructions, on Company letterhead and executed by the Company’s Chief Executive Officer or Chief Financial Officer; |
| |
(iii) |
subject to the last sentence in Section 2.1, a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to deliver on an expedited basis via The Depository Trust Company Deposit or Withdrawal at Custodian system Shares equal to the portion of such Purchaser’s Subscription Amount divided by the Per Share Purchase Price, registered in the name of such Purchaser; |
| |
(iv) |
the Prospectus and the Prospectus Supplement (which may be delivered in accordance with Rule 172 under the Securities Act); |
| |
(v) |
a Warrant registered in the name of such Purchaser to purchase up to a number of Ordinary Shares equal to 100% of such Purchaser’s Shares with an exercise price equal to $2.75 per share, subject to adjustment therein; |
| (vi) | a
certificate executed by the Chief Executive Officer of the Company, dated as of the date of the Closing Date, in form and substance reasonably
acceptable to the Purchasers and Placement Agent; |
| (vii) | a
certificate executed by the Chief Financial Officer of the Company, dated as of the date of the Closing Date, certifying certain financial
information of the Company, in form and substance reasonably acceptable to the Purchasers and Placement Agent; |
| (viii) | a
certificate executed by the Secretary or the Chief Financial Officer of the Company, if the Company does not have a Secretary, dated
as of the date of Closing, in form and substance reasonably acceptable to the Purchasers and the Placement Agent; and |
| |
(ix) |
a legal opinion of each of Company U.S. Counsel and Company Cayman Counsel, in form reasonably acceptable to the Placement Agent and the Purchasers. |
| |
(b) |
On or prior to the Closing Date, each Purchaser shall deliver or cause to be delivered to the Company, the following: |
| |
(i) |
this Agreement duly executed by such Purchaser; and |
| |
(ii) |
such Purchaser’s Subscription Amount with respect to the Securities purchased by such Purchaser, which shall be made available for DVP settlement with the Company or its designee(s). |
2.3 Closing Conditions.
| |
(a) |
The obligations of the Company hereunder in connection with the Closing are subject to the following conditions: |
| |
(i) |
the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the Closing Date of the representations and warranties of the Purchasers contained herein (unless as of a specific date therein in which case they shall be accurate as of such date); |
| |
(ii) |
all obligations, covenants and agreements of each Purchaser required to be performed at or prior to the Closing Date shall have been performed; and |
| |
(iii) |
the delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement. |
| |
(b) |
The respective obligations of the Purchasers hereunder in connection with the Closing are subject to the following conditions: |
| |
(i) |
the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the Closing Date of the representations and warranties of the Company contained herein (unless as of a specific date therein in which case they shall be accurate as of such date); |
| |
(ii) |
all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed; |
| |
(iii) |
the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement; |
| |
(iv) |
there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and |
| |
(v) |
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 after the date of this Agreement 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. |
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Company. Except
as set forth in the Company’s SEC Reports and the Disclosure Schedules, which Disclosure Schedules shall be deemed a part hereof
and shall qualify any representation made herein to the extent of the disclosures contained in the corresponding section of the Disclosure
Schedules, the Company hereby makes the following representations and warranties to each Purchaser:
| |
(a) |
Subsidiaries. All of the direct and indirect subsidiaries of the Company are set forth on Schedule 3.1(a). The Company owns, directly or indirectly, all of the capital stock or other equity interests of each Subsidiary, free and clear of any Liens, and all of the issued and outstanding shares of capital stock 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. 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 capital stock or equity interests, as applicable, of any Subsidiary, or contracts, commitments, understandings or arrangements by which any Subsidiary is or may become bound to issue capital stock or equity interests, as applicable. |
| |
(b) |
Organization and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized, validly existing, and, if applicable under the laws of the jurisdiction in which they are formed, 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 memorandum of association, articles of association, certificate or articles of incorporation, bylaws, operating agreement, or other organizational or charter documents. No proceedings have been instituted in Cayman Islands or China for the dissolution of the Company or any of its Subsidiaries. Each of the Company and the Subsidiaries is duly qualified to conduct business and is in good standing (to the extent such concept is applicable in such jurisdiction) as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, would not have or reasonably be expected to result in, individually or in the aggregate, to have a material adverse effect on the (i) legality, validity or enforceability of any Transaction Document, or the (ii) business, properties, management, financial position, shareholders’ equity and the results of operations of the Company and its Subsidiaries taken as a whole or would materially and adversely affect the ability of the Company to perform its obligations under this Agreement and 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. |
| |
(c) |
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 to which it is a party and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of this Agreement and each of the other Transaction Documents to which it is a party 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, a committee of 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 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. |
| |
(d) |
No Conflicts. Except as set forth in Schedule 3.1(d), 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 memorandum of association, articles of association, certificate or articles of incorporation, bylaws, operating agreement, 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) assuming the accuracy of the Purchasers’ representations and warranties set forth in Section 3.2(c) and that the Placement Agent, acting on behalf of the Company, has not offered the Securities or otherwise engaged in solicitation or advertising to any Person in China, 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. |
| |
(e) |
Filings, Consents and Approvals. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section 3.2(c) and that the Placement Agent, acting on behalf of the Company, has not offered the Securities or otherwise engaged in solicitation or advertising to any Person in China, 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 to which it is a party, other than: (i) the filings required pursuant to Section 4.4 of this Agreement, (ii) the filing with the Commission of the Prospectus Supplement, (iii) notices and/or application(s) to the Company’s principal Trading Market for the listing of the Shares for trading thereon in the time and manner required thereby, and (iv) filings required by the Financial Industry Regulatory Authority (“FINRA”) (collectively, the “Required Approvals”). |
| |
(f) |
Issuance of the Securities; Registration. The Shares are duly authorized and, when issued and paid for in accordance with the applicable Transaction Documents, will be duly and validly issued, fully paid and non-assessable, free and clear of all Liens imposed by the Company. The Warrants are duly authorized and, when issued in accordance with this Agreement, will be duly and validly issued, fully paid and non-assessable, and free and clear of all Liens imposed by the Company. The Warrant Shares are duly authorized and, when issued in accordance with the terms of the applicable Warrants upon the exercise thereof, will be validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company. The Company has reserved from its duly authorized share capital the maximum number of Ordinary Shares issuable pursuant to this Agreement and the Warrants. The Company has prepared and filed the Registration Statement in conformity with the requirements of the Securities Act, which Registration Statement became effective on May 5, 2023, including the Prospectus, and such amendments and supplements thereto as may have been required to the date of this Agreement. The Registration Statement is effective under the Securities Act and no stop order preventing or suspending the effectiveness of the Registration Statement or suspending or preventing the use of the Prospectus or the Prospectus Supplement has been issued by the Commission and no proceedings for that purpose have been instituted or, to the knowledge of the Company, are threatened by the Commission. The Company, if required by the rules and regulations of the Commission, shall file the Prospectus or Prospectus Supplement with the Commission pursuant to Rule 424(b). At the time the Registration Statement and any amendments thereto became effective as determined under the Securities Act, at the date of this Agreement and at the Closing Date, the Registration Statement and any amendments thereto conformed and will conform in all material respects to the requirements of the Securities Act and did not and 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 not misleading; and the Prospectus, Prospectus Supplement and any amendments or supplements thereto, at the time the Prospectus, the Prospectus Supplement or any amendment or supplement thereto was issued and at the Closing Date, conformed and will conform in all material respects to the requirements of the Securities Act and did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Company was at the time of the filing of the Registration Statement eligible to use Form F-3. The Company is eligible to use Form F-3 under the Securities Act and it meets the transaction requirements with respect to the aggregate market value of the common equity held by non-affiliates prior to this offering as set forth in General Instruction I.B.I of Form F-3. |
| |
(g) |
Capitalization. The capitalization of the Company as of February 11, 2024 is as set forth on Schedule 3.1(g)(i), which Schedule 3.1(g)(i) shall also include the number of Ordinary Shares owned beneficially, and of record, by Affiliates of the Company as of February 11, 2024. Except as set forth on Schedule 3.1(g)(ii), 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 on Schedule 3.1(g)(i) and as a result of the purchase and sale of the Securities, 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 other securities, 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. The issuance and sale of the Securities will not obligate the Company or any Subsidiary to issue Ordinary Shares or other securities of the Company to any Person (other than the Purchasers). Except as set forth on Schedule 3.1(g)(i), 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 under any of such securities. 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 share” plans or agreements or any similar plan or agreement. All of the outstanding Ordinary Shares of the Company are duly authorized, validly issued, fully paid and non-assessable, have been issued in compliance in all material respects with all federal and state securities laws where applicable, and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. Except for the Required Approvals, no further approval or authorization of any shareholder of the Company, the Board of Directors of the Company or others is required for the issuance and sale of the Securities. There are no shareholder agreements, voting agreements or other similar agreements with respect to the Company’s share capital to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s shareholders. |
| |
(h) |
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 one year preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such materials) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, together with the Prospectus, 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. In addition, any further documents so filed and incorporated by reference to the Prospectus and Prospectus Supplement, when such documents are filed with the Commission, will conform in all material respects to the requirements of the Exchange Act and the applicable rules and regulations, as applicable, and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made not misleading. The financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with GAAP, except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company 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. |
| |
(i) |
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(i), (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 strategic acquisitions and (B) liabilities not required to be reflected in the Company’s financial statements pursuant to GAAP or disclosed in filings made with the Commission, (iii) the Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution of cash or other property to its shareholders or purchased, redeemed or made any agreements to purchase or redeem any of its shares and (v) the Company has not issued any equity securities to any officer, director or Affiliate, except pursuant to existing Company share option and equity incentive 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 or as set forth on Schedule 3.1(i), 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, prospects, 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. |
| |
(j) |
Litigation. Except as set forth on Schedule 3.1(j), 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”) which (i) adversely affects or challenges the legality, validity or enforceability of any of the Transaction Documents, the Shares, or the Warrant Shares (ii) would, if there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect. Except as set forth on Schedule 3.1(j), 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, which could result in a Material Adverse Effect. Except as set forth on Schedule 3.1(j), there has not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation by the Commission or any other government agencies in any jurisdictions involving the Company or any current or former director or officer of the Company. The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary under the Exchange Act or the Securities Act. |
| |
(k) |
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 applicable 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. |
| |
(l) |
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 of (i), (ii) and (iii) as would not have or reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect. |
| |
(m) |
Environmental Laws. (i) The Company and its Subsidiaries (x) are in compliance with all, and have not violated any, applicable federal, state, local and foreign laws (including common law), rules, regulations, requirements, decisions, judgments, decrees, orders and other legally enforceable requirements relating to pollution or the protection of human health or safety, the environment, natural resources, hazardous or toxic substances or wastes, including biohazardous and medical waste, pollutants or contaminants (collectively, “Environmental Laws”); (y) have received and are in compliance with all, and have not violated any, permits, licenses, certificates or other authorizations or approvals required of them under any Environmental Laws to conduct their respective businesses; and (z) have not received notice of any actual or potential liability or obligation under or relating to, or any actual or potential violation of, any Environmental Laws, including for the investigation or remediation of any use, disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, or relating to human exposure to hazardous or toxic substances or wastes and have no knowledge of any event or condition that would reasonably be expected to result in any such notice, and (ii) there are no costs or liabilities associated with Environmental Laws of or relating to the Company or its Subsidiaries, except in the case of each of (i) and (ii) above, for any such matter as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and (iii) except as described in each of the Prospectus and the Prospectus Supplement, (x) there is no proceeding that is pending, or to the knowledge of the Company, contemplated, against the Company or any of its Subsidiaries under any Environmental Laws in which a governmental or regulatory authority is also a party, other than such proceeding regarding which it is reasonably believed no monetary sanctions of $100,000 or more will be imposed, (y) the Company and its Subsidiaries are not aware of any facts or issues regarding compliance with Environmental Laws, or liabilities or other obligations under Environmental Laws or concerning hazardous or toxic substances or wastes, pollutants or contaminants, that could reasonably be expected to have a material adverse effect on the capital expenditures, earnings or competitive position of the Company and its Subsidiaries, and (z) none of the Company or its Subsidiaries anticipates material capital expenditures relating to any Environmental Laws. |
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(n) |
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 certificates, authorizations or permits would 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 or any Claim alleging any violation of any applicable law or Material Permit, except where such revocation or modification or Claim alleging any such violation would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect. |
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(o) |
Title to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned by them and good and marketable title in all personal property owned by them 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 as 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 Chinese, federal, state or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP and, the payment of which is neither delinquent nor subject to penalties. Any real property and facilities held under lease by the Company and the Subsidiaries are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance in all material respects. |
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(p) |
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 a 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 from the date of this Agreement, except as would not reasonably be expected to have a Material Adverse Effect. 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 and neither is aware of any facts which would form a reasonable basis for any such claim, except as would 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, except as set forth in Schedule 3.1(p), there is no existing infringement by another Person of any of the Intellectual Property Rights, in each case, except as would not reasonably be expected to have a Material Adverse Effect. 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 would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company has no knowledge of any facts that would preclude it from having valid license rights or clear title to the Intellectual Property Rights. The Company has no knowledge that it lacks or will be unable to obtain any rights or licenses to use all Intellectual Property Rights that are necessary to conduct its business. To the knowledge of the Company, none of the Intellectual Property Rights used by the Company or any of its Subsidiaries in their respective businesses has been obtained or is being used by the Company or such Subsidiary in violation of any contractual obligation binding on the Company or any of its Subsidiaries in violation of the rights of any person. The Company and its Subsidiaries have taken all reasonable steps in accordance with normal industry practice to protect and maintain the Intellectual Property Rights including, without limitation, the execution of appropriate nondisclosure and invention assignment agreements. The consummation of the transactions contemplated by this Agreement will not result in the loss or impairment of, or payment of, and additional amounts with respect to, nor require the consent of, any other person regarding the Company’s or any of its Subsidiaries’ right to own or use any of the Intellectual Property Rights as owned or used in the conduct of such party’s business as currently conducted. To the knowledge of the Company and its Subsidiaries, no employee of any of the Company or its subsidiaries is the subject of any pending claim or proceeding involving a violation of any term of any employment contract, invention disclosure agreement, patent disclosure agreement, noncompetition agreement, non-solicitation agreement, nondisclosure agreement or restrictive covenant to or with a former employer, where the basis of such violation relates to such employee’s employment with the Company or its Subsidiaries or actions undertaken by the employee while employed with the Company or its Subsidiaries. |
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(q) |
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 at least equal to the aggregate Subscription Amount. 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. |
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(r) |
Transactions with Affiliates and Employees. Except as set forth on Schedule 3.1(r), none of the executive 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 or a Subsidiary and (iii) other employee benefits, including stock option and other equity based compensation agreements under any stock option and equity incentive plans of the Company. |
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(s) |
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 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 in the Company’s SEC Reports, 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 GAAP 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 Form 20-F under the Exchange Act (such date, the “Evaluation Date”). The Company presented in its most recently filed Form 20-F 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) that have materially affected, or is reasonably likely to materially affect, the internal control over financial reporting of the Company and its Subsidiaries. |
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(t) |
Certain Fees. Except as set forth in the Prospectus Supplement, 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 (for the avoidance of doubt, the foregoing shall not include any fees and/or commissions owed to the Transfer Agent). Other than for Persons engaged by any Purchaser, if any, the Purchasers shall have no obligation with respect to any fees or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section that may be due in connection with the transactions contemplated by the Transaction Documents. |
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(u) |
Investment Company. The Company is not and immediately after receipt of payment for the Securities, will not be, 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. |
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(v) |
Registration Rights. Except as set forth in the SEC Reports, 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. |
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(w) |
Listing and Maintenance Requirements. The Ordinary Shares are registered pursuant to Section 12(b) 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. 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 have 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 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. |
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(x) |
Application of Takeover Protections. The Company and the Board of Directors have taken all necessary action, if any, subject to and to the extent permitted under applicable law, 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 articles of association 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. |
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(y) |
Disclosure. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company confirms that neither it nor any other Person acting on its behalf has provided any of the Purchasers or their agents or counsel with any information that it believes constitutes or might constitute material, non-public information which is not otherwise disclosed in the Prospectus or Prospectus Supplement. 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, including the Disclosure Schedules to this Agreement, is true and correct in all material respects 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 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. |
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(z) |
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 any applicable stockholder approval provisions of any Trading Market on which any of the securities of the Company are listed or designated. |
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(aa) |
Tax Compliance. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect, the Company and its Subsidiaries each (i) has made or filed all Chinese, 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 taxes and other governmental assessments and charges, fines or penalties that are material in amount, shown or determined to be due on such returns, reports and declarations except for such taxes, if any, as are being contested in good faith and as to which adequate reserves have been established by the Company in accordance with GAAP and (iii) adequate reserves for taxes have been established by the Company in accordance with GAAP. 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. |
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(bb) |
Foreign Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary, any agent or other person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate funds, (iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person acting on its behalf of which the Company is aware) which is in violation of law, or (iv) violated in any material respect any provision of FCPA. |
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(cc) |
Accountants. The Company’s independent registered public accounting firm is as set forth in the Prospectus Supplement. To the knowledge and belief of the Company, such accounting firm is a registered public accounting firm as required by the Exchange Act and shall express its opinion with respect to the financial statements to be included in the Company’s annual report on Form 20-F for the fiscal year ending March 31, 2024. |
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(dd) |
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. |
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(ee) |
Acknowledgment Regarding Purchaser’s Trading Activity. Anything in this Agreement or elsewhere herein to the contrary notwithstanding (except for Sections 3.2(f) and 4.12 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 Shares 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 Ordinary Shares are outstanding, 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. |
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(ff) |
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 Ordinary Shares, (ii) sold, bid for, purchased, or, paid any compensation for soliciting purchases of, any of the Ordinary Shares, 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 Placement Agent in connection with the placement of the Securities. |
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(gg) |
Cybersecurity. (i)(x) During the last three years, to the knowledge of the Company, 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 (y) 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 material security breach or other compromise to its IT Systems and Data; (ii) the Company and the Subsidiaries are presently in compliance in all material respects 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 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 commercially reasonable industry standards and practices. |
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(hh) |
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”). |
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(ii) |
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, suit 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 |
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(jj) |
Promotional Stock Activities. Neither the Company nor any Subsidiary of the Company and, to the knowledge of the Company, none of their respective officers, directors, managers, affiliates or agents have engaged in any stock promotional activity that could give rise to a complaint, inquiry, or trading suspension by the SEC alleging (i) a violation of the anti-fraud provisions of the federal securities laws, (ii) violations of the anti-touting provisions, (iii) improper “gun-jumping”; or (iv) promotion without proper disclosure of compensation. |
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):
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(a) |
Organization; Authority. Such Purchaser is either an individual or an entity duly incorporated or formed, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership limited liability company or similar power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of the Transaction Documents and performance by such Purchaser of the transactions contemplated by the Transaction Documents have been duly authorized by all necessary corporate, partnership, limited liability company or similar action, as applicable, on the part of such Purchaser. Each Transaction Document to which it is a party has been duly executed by such Purchaser, and when delivered by such Purchaser in accordance with the terms hereof, will constitute the valid and legally binding obligation of such Purchaser, enforceable against it in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law. |
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(b) |
Understandings or Arrangements. Such Purchaser is acquiring the Securities as principal for its own account and has no direct or indirect arrangement or understandings with any other persons to distribute or regarding the distribution of such Securities (this representation and warranty not limiting such Purchaser’s right to sell the Securities pursuant to the 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. Such Purchaser is acquiring such Securities as principal for his, her or 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 not limiting such Purchaser’s right to sell such Securities pursuant to a registration statement or otherwise in compliance with applicable federal and state securities laws). |
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(c) |
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) or (a)(8) under the Securities Act, or (ii) a “qualified institutional buyer” as defined in Rule 144A(a) under the Securities Act. |
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(d) |
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. |
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(e) |
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, the merits and risks of investing in the Securities and ordinary legal proceedings; (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 provided to it. 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. |
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(f) |
Certain Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, such Purchaser and its Affiliates has not, nor has any Person acting on behalf of or pursuant to any understanding with such Purchaser or its Affiliates, directly or indirectly executed any purchases or sales, including Short Sales, of the securities of the Company, or taken, directly or indirectly, any action designed to or that would reasonably be expected to cause or result in any stabilization or manipulation of the price 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, which terms include definitive pricing 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 order to effect Short Sales or similar transactions in the future. |
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(g) |
No Voting Agreements. The Purchaser is not a party to any agreement or arrangement, whether written or oral, between the Purchaser and any other Purchaser and any of the Company’s shareholders as of the date hereof, regulating the management of the Company, the shareholders’ rights in the Company, the transfer of shares in the Company, including any voting agreements, shareholder agreements or any other similar agreement even if its title is different or has any other relations or agreements with any of the Company’s shareholders, directors or officers. |
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(h) |
Brokers. No agent, broker, investment banker, person or firm acting in a similar capacity on behalf of or under the authority of the Purchaser is or will be entitled to any broker’s or finder’s fee or any other commission or similar fee, directly or indirectly, for which the Company or any of its Affiliates after the Closing could have any liabilities in connection with this Agreement, any of the transactions contemplated by this Agreement, or on account of any action taken by the Purchaser in connection with the transactions contemplated by this Agreement. |
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(i) |
Independent Advice. Each Purchaser understands that nothing in this Agreement or any other materials presented by or on behalf of the Company to the Purchaser in connection with the purchase of the Securities constitutes legal, tax or investment advice. |
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(j) |
General Solicitation. Such Purchaser is not 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. |
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, except as set forth in this Agreement, with respect to locating or borrowing shares in order to effect Short
Sales or similar transactions in the future.
ARTICLE IV.
OTHER AGREEMENTS OF THE PARTIES
4.1 Legends. The Ordinary Shares and, if all or any portion
of a Warrant is exercised at a time when there is an effective registration statement to cover the issuance or resale of the Warrant Shares,
the Warrant Shares issued pursuant to any such exercise shall be issued free of legends. If at any time following the date hereof
the Registration Statement is not effective or is not otherwise available for the sale of the Ordinary Shares, the Warrants or the Warrant
Shares, the Company shall immediately notify the holders of the Warrants in writing that such registration statement is not then effective
and thereafter shall promptly notify such holders when the registration statement is effective again and available for the sale of the
Shares, the Warrants or the Warrant Shares (it being understood and agreed that the foregoing shall not limit the ability of the Company
to issue, or any Purchaser to sell, any of the Shares, the Warrants or the Warrant Shares in compliance with applicable federal and state
securities laws). The Company shall use commercially reasonable best efforts to keep a registration statement (including the Registration
Statement) registering the issuance of the Warrant Shares effective during the term of the Warrants.
4.2 Furnishing of Information; Public Information. Until
the earliest of the time that (i) no Purchaser owns Securities, or (ii) the Warrants have expired, the Company covenants to use reasonable
best efforts to maintain the registration of the Ordinary Shares under Section 12(b) or 12(g) of the Exchange Act and 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.
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 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)
file a Report on Form 6-K, including the Transaction Documents as exhibits thereto, with the Commission within the time required by the
Exchange Act. From and after the issuance of such press release, the Company represents to the Purchasers that it shall have publicly
disclosed all material, non-public information delivered to any of the Purchasers by the Company or any of its 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, employees or Affiliates, including, without limitation,
the Placement Agent, 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 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, conditioned
or delayed, except if such disclosure is required by law, in which case the disclosing party shall promptly provide the other party with
prior notice of such public statement or communication. Notwithstanding the foregoing, the Company shall not publicly disclose the name
of any Purchaser, or include the name of any Purchaser in any filing with the Commission or any regulatory agency or Trading Market, without
the prior written consent of such Purchaser, except (a) as required by federal securities law in connection with the filing of final Transaction
Documents with the Commission, and (b) to the extent such disclosure is required by law or FINRA or Trading Market regulations, in which
case the Company shall provide the Purchasers with prior notice of such disclosure permitted under this clause (b).
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 the Company reasonably believes constitutes material non-public information, unless prior thereto such
Purchaser shall have entered into a written agreement with the Company regarding the confidentiality and use of such information; notwithstanding
the foregoing, each 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 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, the
merits and risks of investing in the Securities and ordinary legal proceedings. 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 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, and 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 file such notice with the
Commission pursuant to a Report on Form 6-K. The Company understands and confirms that each Purchaser shall be relying on the foregoing
covenant in effecting transactions in securities of the Company.
4.7 Use of Proceeds. Except as set forth in the Prospectus
Supplement, the Company shall use the net proceeds from the sale of the Securities hereunder for working capital purposes and general
corporate procedures, and 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, repayment of obligations outstanding as of the date
of this Agreement consistent with prior practices or prepayment of obligations outstanding as of the date of this Agreement related to
a prepaid advance agreement), (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 or similar applicable 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
or (b) any action instituted against a Purchaser Party in any capacity, or any of them or their respective Affiliates, by any shareholder
of the Company who is not an Affiliate of such Purchaser Party, with respect to any of the transactions contemplated by the Transaction
Documents (unless such action is based upon a material breach of such Purchaser Party’s representations, warranties or covenants
under the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such shareholder or any violations
by such Purchaser Party of state or federal securities laws or any conduct by such Purchaser Party which is finally judicially determined
to constitute fraud, gross negligence or willful misconduct). 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 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, 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 and documented fees and expenses of no more than one such separate counsel. The Company will not be liable to any Purchaser
Party under this Agreement (y) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which
shall not be unreasonably withheld, conditioned or delayed; or (z) to the extent, but only to the extent that a loss, claim, damage or
liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made
by such Purchaser Party in this Agreement or in the other Transaction Documents. The indemnification required by this Section 4.8 shall
be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or
are incurred. 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 commercially reasonable best efforts to maintain the listing or quotation of the Ordinary Shares on each Trading Market on which
each 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 Markets and promptly secure the listing of all of the Shares and Warrant Shares on such Trading Markets. 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 the Ordinary Shares on a Trading Market and will comply in all material respects with the Company’s
reporting, filing and other obligations under the bylaws or rules of the Trading Market. The Company agrees to use commercially reasonable
efforts 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.
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(a) |
From the date hereof until seven (7) Trading Days after the Closing Date, unless otherwise waived by the Purchasers, 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 amendment or supplement thereto, other than the Prospectus Supplement or filing a registration statement on Form S-8 in connection with any employee benefit plan. |
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(b) |
Notwithstanding the foregoing, this Section 4.10 shall not apply in respect of an Exempt Issuance. |
4.11 Equal Treatment of Purchasers. No consideration (including
any modification of the Transaction Documents) shall be offered or paid to any Person to amend or consent to a waiver or modification
of any provision of the Transaction Documents unless the same consideration is also offered to all of the parties to the Transaction Documents.
For clarification purposes, this provision constitutes a separate right granted to each Purchaser by the Company and negotiated separately
by each Purchaser, and is intended for the Company to treat the Purchasers as a class and shall not in any way be construed as the Purchasers
acting in concert or as a group with respect to the purchase, disposition or voting of the Ordinary Shares or otherwise.
4.12 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 and the information included in the Disclosure Schedules. 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 or its Subsidiaries 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.
4.13 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.
4.14 Reservations of 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 Ordinary Shares pursuant to this Agreement and Warrant Shares
pursuant to any exercise of the Warrants.
ARTICLE V.
MISCELLANEOUS
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), 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, the Prospectus and the Prospectus Supplement, contain the entire understanding of the parties
with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings, oral or written, with respect
to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules.
5.4 Notices. Any and all notices or other communications
or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earliest
of: (a) the time of transmission, if such notice or communication is delivered via facsimile at the facsimile number or email attachment
at the email address as set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New York City time) on a Trading Day,
(b) the next Trading Day after the time of transmission, if such notice or communication is delivered via facsimile at the facsimile number
or email attachment at the email address as set forth on the signature pages attached hereto on a day that is not a Trading Day or later
than 5:30 p.m. (New York City time) on any Trading Day, (c) the second (2nd) Trading Day following the date of mailing, if sent by U.S.
nationally recognized overnight courier service or (d) upon actual receipt by the party to whom such notice is required to be given. The
address for such notices and communications shall be as set forth on the signature pages attached hereto. To the extent that any notice
provided pursuant to any Transaction Document constitutes, or contains, material, non-public information regarding the Company or any
Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Report on Form 6-K.
5.5 Amendments; Waivers. No provision of this Agreement
may be waived, modified, supplemented or amended except in a written instrument signed, in the case of an amendment, by the Company and
the Purchasers who purchased at least 50.1% in interest of the Shares based on the initial Subscription Amounts hereunder (or, prior to
the 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 or modification disproportionately and adversely impacts a Purchaser (or group of Purchasers),
the consent of such disproportionately impacted Purchaser (or group of Purchasers) (or at least 50.1% in interest of the 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 internal laws of the State of New York, without regard to the principles of conflicts of law thereof. Each party agrees that all legal
proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement and any other Transaction
Documents (whether brought against a party hereto or its respective affiliates, directors, officers, shareholders, partners, members,
employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby
irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan
for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein
(including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert
in any 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 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, suit
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, suit 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 for the applicable statute of limitations.
5.11 Execution. This Agreement may be executed in two or
more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts
have been signed by each party and delivered to each other party, it being understood that the parties need not sign the same counterpart.
In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file,
such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with
the same force and effect as if such facsimile or “.pdf” signature page was 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, within two Trading Days from the date such performance was due, 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 in accordance with the terms thereof, 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 Placement Agent Counsel.
Placement Agent Counsel 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 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.
5.19 [Reserved.]
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 relating to 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.
(Signature Pages Follow)
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.
| TOP FINANCIAL GROUP LIMITED |
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Address for Notice: |
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TOP Financial Group Limited |
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118 Connaught Road West Room 1101 |
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Hong Kong
Attn: Mr. Ka Fai Yuen, CEO |
| |
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Email: paul.yuen@zyzq.com.hk |
| |
|
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| By: |
|
|
|
| Name: |
Mr. Ka Fai Yuen |
|
|
| Title: |
Chief Executive Officer |
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|
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR PURCHASER FOLLOWS]
[PURCHASER SIGNATURE PAGES TO TOP SECURITIES PURCHASE
AGREEMENT]
IN WITNESS WHEREOF, the undersigned have caused
this Securities Purchase Agreement to be duly executed by their respective authorized signatories 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: ______________________________________
Facsimile Number of Authorized Signatory: ___________________________________
Address for Notice to Purchaser:
Address for Delivery of Warrant Shares to the Purchaser (if not same
as address for notice):
DWAC for Ordinary Shares:
Subscription Amount: $___________________
Ordinary Shares: ___________________
Warrant Shares underlying the Warrants: ________
Beneficial Ownership Blocker ☐ 4.99%
or ☐ 9.99%
EIN Number: ___________________
☐ Notwithstanding
anything contained in this Agreement to the contrary, by checking this box (i) the obligations of the above-signed to purchase the
securities set forth in this Agreement to be purchased from the Company by the above-signed, and the obligations of the Company to sell
such securities to the above-signed, shall be unconditional and all conditions to Closing shall be disregarded, (ii) the Closing shall
occur on the second (2nd) Trading Day following the date of this Agreement and (iii) any condition to Closing contemplated by this Agreement
(but prior to being disregarded by clause (i) above) that required delivery by the Company or the above-signed of any agreement, instrument,
certificate or the like or purchase price (as applicable) shall no longer be a condition and shall instead be an unconditional obligation
of the Company or the above-signed (as applicable) to deliver such agreement, instrument, certificate or the like or purchase price (as
applicable) to such other party on the Closing Date.
[SIGNATURE PAGES CONTINUE]
Exhibit A
Form of Warrant
(See Attached)
Exhibit 99.1
TOP Financial Announces $5 Million Registered Direct Offering
Hong Kong China, Feb. 12, 2024 (GLOBE NEWSWIRE) -- TOP Financial Group
Limited (the "Company") (NASDAQ: TOP), a fast-growing online brokerage firm located in Hong Kong specializing in the trading
of local and foreign equities, futures, options products and other financial services, today announced that it has entered into a definitive
agreement with certain investor for the purchase and sale of 2,000,000 ordinary shares together with warrants to purchase up to 2,000,000
ordinary shares at a combined purchase price of $2.50 per share and accompanying warrant (together the “Securities”), pursuant
to a registered direct offering resulting in total gross proceeds of approximately $5 million before deducting placement agent commissions
and other estimated offering expenses. The warrants will have an exercise price of $2.75, will be exercisable immediately after the date
of issuance and will expire three months following the initial exercise date. The closing of the offering and sale of the Securities is
expected to occur on or about February 14, 2024, subject to the satisfaction of customary closing conditions.
Univest Securities, LLC is acting as the sole placement agent for the
offering.
This offering is being made pursuant to an effective shelf registration
statement on Form F-3 (File No 333-273066) previously filed with the U.S. Securities and Exchange Commission (the “SEC”).
A prospectus supplement describing the terms of the proposed offering will be filed with the SEC and will be available on the SEC’s
website located at http://www.sec.gov. Electronic copies of the prospectus supplement may be obtained, when available, from Univest
Securities, LLC at info@univest.us, or by calling +1 (212) 343-8888.
This press release shall not constitute an offer to sell or a solicitation
of an offer to buy these Securities, nor shall there be any sale of these Securities in any state or other jurisdiction in which such
offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state
or other jurisdiction.
About TOP Financial Group
Founded in Hong Kong, the Company, through its operating subsidiaries,
operates online brokerage platforms specializing in the trading of local and foreign equities, futures, and options products.
The trading platforms, which the operating subsidiaries license from
third parties enable its investors to trade on renowned stock and futures exchanges around the world, including the Chicago Mercantile
Exchange (“CME”), Hong Kong Futures Exchange (“HKFE”), The New York Mercantile Exchange (“NYMEX”), The
Chicago Board of Trade (“CBOT”), The Commodity Exchange (“COMEX”), Eurex Exchange (“EUREX”), ICE
Clear Europe Limited (“ICEU”), Singapore Exchange (“SGX”), Australia Securities Exchange (“ASX”), Bursa
Malaysia Derivatives Berhad (“BMD”), and Osaka Exchange (OSE). The operating subsidiaries are licensed with the Securities
and Futures Commission of Hong Kong (“HKSFC”) to carry out type 1 (dealing in securities), type 2 (dealing in futures
contracts) regulated activities, and are licensed with the HKSFC to carry out type 4 (advising on securities), type 5 (advising on futures
contracts), and type 9 (asset management) regulated activities in Hong Kong. For more information, please visit http://www.zyfgl.com/.
Forward-Looking Statement
This press release contains forward-looking statements as defined
by the Private Securities Litigation Reform Act of 1995. Forward-looking statements include statements concerning plans, objectives,
goals, strategies, future events or performance, and underlying assumptions and other statements that are other than statements of historical
facts. When the Company uses words such as “may, “will, “intend,” “should,” “believe,” “expect,”
“anticipate,” “project,” “estimate” or similar expressions that do not relate solely to historical matters,
it is making forward-looking statements. Forward-looking statements are not guarantees of future performance and involve risks and uncertainties
that may cause the actual results to differ materially from the Company’s expectations discussed in the forward-looking statements. These
statements are subject to uncertainties and risks including, but not limited to, the uncertainties related to market conditions and the
completion of the initial public offering on the anticipated terms or at all, and other factors discussed in the “Risk Factors”
section of the registration statement filed with the SEC. For these reasons, among others, investors are cautioned not to place
undue reliance upon any forward-looking statements in this press release. Additional factors are discussed in the Company's filings with
the SEC, which are available for review at www.sec.gov. The Company undertakes no obligation to publicly revise these forward-looking
statements to reflect events or circumstances that arise after the date hereof.
For more information, please contact:
The Company:
IR Department
Email: IR@zyzq.com.hk
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