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
September
17, 2024
Commission
File Number 001-37974
VIVOPOWER
INTERNATIONAL PLC
(Translation
of registrant’s name into English)
The
Scalpel, 18th Floor, 52 Lime Street
London
EC3M 7AF
United
Kingdom
+44-203-667-5158
(Address
of principal executive office)
Indicate
by check mark whether the registrant files or will file annual reports under cover Form 20-F or Form 40-F:
Form
20- F ☒ Form 40-F ☐
Entry
into a Material Definitive Agreement
On
September 17, 2024, VivoPower International PLC (the “Company”) entered into a placement agency agreement (the “Placement
Agency Agreement”) with Chardan Capital Markets LLC, to act as the exclusive placement agent (the “Placement Agent”)
on a best efforts basis in connection with an offering of up to 10,000,000 of its ordinary shares, par value $0.12 per share (the “Ordinary
Shares”) at a price of $1.25 per Ordinary Share (the “Offering”). The Offering is made pursuant to the prospectus included
in the Company’s Registration Statement on Form F-1 (Registration No. 333-281065), initially filed with the U.S. Securities and
Exchange Commission (the “SEC”) on July 26, 2024 (as amended and supplemented, the “Registration Statement”).
The Registration Statement was declared effective on August 29, 2024. The final prospectus was filed on September 19, 2024. The documents
relating to this Offering, including the Registration Statement and the final prospectus, are available on the SEC’s website at
www.sec.gov.
Pursuant
to the terms of the Placement Agency Agreement, the Company agreed to pay the Placement Agent a cash fee equal to 6.5% of the gross proceeds
raised in the Offering. The Company also granted the Placement Agent, for a period of nine months from the closing of the Offering, the
right, on at least the same terms and conditions offered to the Company by other investment banking service providers, to provide investment
banking services to the Company on an exclusive basis in all matters for which investment banking services are sought by the Company,
which right is exercisable in the Placement Agent’s sole discretion.
In
addition, in accordance with the terms of the Placement Agency Agreement, each of the Company’s directors and officers, and certain
shareholders, have entered into lock-up agreements (the “Lock-Up Agreements”) that generally prohibit the sale, transfer,
or other disposition of the Company’s securities, without the prior written consent of the Placement Agent, for a period of 45
days following the date of closing of the Offering.
As
of the date of this Report on Form 6-K (this “Report”), the Company has issued an aggregate of 2,200,000 Ordinary Shares
in the Offering, providing the Company with approximately $2.3 million in net proceeds after transaction expenses. The Offering period
will terminate on or about September 30, 2024.
The
Company intends to use the net proceeds of the Offering, together with existing cash and cash equivalents, to fund its working capital
needs in connection with the expansion of its operations to the commercial electronic vehicle segment and to reduce its debts, including
monies owed to shareholders, and for general corporate purposes.
The
foregoing description of the Placement Agency Agreement and the Lock-Up Agreements are qualified in their entirety by reference to the
full text of the Placement Agency Agreement and the form of Lock-Up Agreement, which are attached hereto as Exhibit 10.1 and 10.2, respectively,
to this Report, and which are incorporated herein in their entirety by reference.
EXHIBIT
INDEX
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
| Date:
September 23, 2024 |
VivoPower
International PLC |
| |
|
| |
/s/
Kevin Chin |
| |
Kevin
Chin |
| |
Executive
Chairman |
Exhibit
10.1
PLACEMENT
AGENCY AGREEMENT
September
17, 2024
Chardan
Capital Markets, LLC
1
Pennsylvania Plaza
Suite
4800
New
York, NY 10119
Ladies
and Gentlemen:
Subject
to the terms and conditions herein (this “Agreement”), VivoPower International PLC, a company incorporated under the
laws of England and Wales (the “Company”), hereby agrees to sell up to an aggregate of 2,200,000 ordinary shares (the
“Shares”) of the Company, nominal value $0.12 (the “Ordinary Shares”) directly to various investors
(each, an “Investor” and, collectively, the “Investors”) through Chardan Capital Markets, LLC as
placement agent (the “Placement Agent”). The documents executed and delivered by the Company and the Investors in
connection with the Offering (as defined below), including, without limitation, a securities purchase agreement (the “Purchase
Agreement”), if applicable, shall be collectively referred to herein as the “Transaction Documents.” The purchase
price to the Investors for each Share is $1.25. The Placement Agent may retain other brokers or dealers to act as sub-agents or selected-dealers
on its behalf in connection with the Offering.
The
Company hereby confirms its agreement with the Placement Agent as follows:
Section
1. Agreement to Act as Placement Agent.
(a)
On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions
of this Agreement, the Placement Agent shall be the exclusive placement agent in connection with the offering and sale by the Company
of the Shares pursuant to the Company’s registration statement on Form F-1 (File No. 333-281065) (the “Registration Statement”)
with the terms of such offering (the “Offering”) to be subject to market conditions and negotiations between the Company,
the Placement Agent and the prospective Investors. The Placement Agent will act on a reasonable best-efforts basis and the Company agrees
and acknowledges that there is no guarantee of the successful placement of the Shares, or any portion thereof, in the prospective Offering.
Under no circumstances will the Placement Agent or any of its “Affiliates” (as defined below) be obligated to underwrite
or purchase any of the Shares for its own account or otherwise provide any financing. The Placement Agent shall act solely as the Company’s
agent and not as principal. The Placement Agent shall have no authority to bind the Company with respect to any prospective offer to
purchase Shares and the Company shall have the sole right to accept offers to purchase Shares and may reject any such offer, in whole
or in part. Subject to the prior approval of the Company, the Placement Agent may employ other Financial Industry Regulatory Authority
(“FINRA”) member firms as selected dealers at their discretion. Subject to the terms and conditions hereof, payment
of the purchase price for, and delivery of, the Shares shall be made at a closing (the “Closing” and, the date on
which the Closing occurs, the “Closing Date”). As compensation for services rendered, on the Closing Date, the Company
shall pay to the Placement Agent a cash fee equal to six point five percent (6.5%) of the gross proceeds received by the Company from
the sale of the Shares (the “Cash Fee”).
(b)
The term of the Placement Agent’s exclusive engagement shall begin on the date hereof and continue until the earlier of (i) the
Closing Date of the Offering (the “Exclusive Term”), and (iii) the date the Placement Agent or the Company terminates
the engagement according to the terms of the next sentence (such date, the “Termination Date” and the period of time
during which this Agreement remains in effect is referred to herein as the “Term”); provided, however, that this Agreement
may not be terminated unilaterally once the Offering has commenced. The engagement may be terminated at any time by either the Placement
Agent or the Company upon ten (10) days written notice to the other party, effective upon receipt of written notice to that effect by
the other party. Unless otherwise provided under this Agreement, the provisions concerning the Company’s obligation to pay any
fees actually earned pursuant to Section 1(a) hereof and to pay or reimburse the Placement Agent for any expenses incurred in
accordance with Section 7 hereof, and the provisions concerning confidentiality, indemnification and contribution contained herein
will survive any expiration or termination of this Agreement for any reason. All fees and expense payments or 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 and expenses
are earned or owed as of the Termination Date). Furthermore, the Company agrees that during the Placement Agent’s engagement hereunder,
all inquiries received by the Company from prospective U.S. Investors with respect to the Offering will be referred to the Placement
Agent. Additionally, except as set forth hereunder or otherwise disclosed to the Placement Agent in writing, the Company represents,
warrants and covenants that no brokerage or finder’s fees or commissions are or will be payable by the Company or any subsidiary
of the Company to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other third-party
with respect to the Offering. 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. Notwithstanding anything to the
contrary contained herein, the Company has the right to terminate this Agreement for Cause (as defined below) in compliance with FINRA
Rule 5110(g)(5)(B)(i). The exercise of such right of termination for Cause eliminates the Company’s obligations with respect to
the provisions relating to the termination fees and right of first refusal.
(c)
The Company and the Placement Agent agree that for a period of nine (9) months from the Closing Date, whether or not the engagement contemplated
under this Agreement is terminated (other than termination for Cause, as defined below), the Company hereby grants the Placement Agent
the right, on at least the same terms and conditions offered to us by other investment banking service providers, to provide investment
banking services to the Company on an exclusive basis in all matters for which investment banking services are sought by the Company
(such right, the “Right of First Refusal”), which right is exercisable in the Placement Agent’s sole discretion. For
these purposes, investment banking services shall include, without limitation, (a) acting as lead manager for any underwritten public
offering; (b) acting as a lead 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. The Placement Agent shall notify the Company of its intention to exercise the Right of First Refusal
within five (5) business days following notice in writing by 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, and indemnification of the Placement Agent and shall be subject to general
market conditions. If the Placement Agent declines to exercise the Right of First Refusal, 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, and the Placement Agent shall be entitled to the corresponding portion of service fees
reflecting its actual underwritten or placed amount (in case of a public offering) or its actual involvement in such transaction. The
Right of First Refusal 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, security holders, employees or creditors of
the Company) as against the Placement Agent or its directors, officers, agents and employees.
Section
2. Representations, Warranties and Covenants of the Company. The Company hereby represents, warrants and covenants to the Placement
Agent as of the date hereof, and as of the Closing Date, as follows:
(a)
Securities Law Filings. The Company has prepared and filed with the U.S. Securities and Exchange Commission (the “Commission”)
a registration statement on Form F-1 (Registration No. 333-281065) (as amended, the “Registration Statement”) for
the registration under the Securities Act of 1933, as amended (the “Securities Act”), of the Securities, which registration
statement became effective on August 29, 2024. Following the determination of pricing among the Company and the prospective Investors
introduced to the Company by Placement Agent, and subject to the Company’s acceptance of such Investors’ offers to purchase
Shares and, for such Investors executing Purchase Agreements, their respective execution and delivery of the Purchase Agreements, the
Company will file with the Commission pursuant to Rules 430A, 430B or 424(b) under the Securities Act, and the rules and regulations
(the “Rules and Regulations”) of the Commission promulgated thereunder, a final prospectus relating to the placement
of the Shares, the price and the plan of distribution thereof and will advise the Placement Agent of all further information (financial
and other) with respect to the Company required to be set forth therein. Such registration statement, at any given time, including the
exhibits thereto filed at such time, as amended at such time, is hereinafter called the “Registration Statement”; such prospectus
in the form in which it appears in the Registration Statement at the time of effectiveness, is hereinafter called the “Preliminary
Prospectus”; and the final prospectus, in the form in which it will be filed with the Commission pursuant to Rules 430A, 430B or
424(b) is hereinafter called the “Final Prospectus.” Any reference in this Agreement to the Registration Statement, the Preliminary
Prospectus or the Final Prospectus shall be deemed to refer to and include the documents incorporated by reference therein (the “Incorporated
Documents”), if any, which were or are filed under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), at any given time, 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 Preliminary Prospectus or the Final Prospectus 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
Preliminary Prospectus or the Prospectus Supplement, as the case may be, deemed to be incorporated therein by reference, if any. 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
Preliminary Prospectus or the Final 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 Preliminary Prospectus or the Final Prospectus, as the case may be. As used in this paragraph and elsewhere in this Agreement,
“Time of Sale Disclosure Package” means the Preliminary Prospectus, any securities purchase agreement between the Company
and the Investors, the final terms of the Offering provided to the Investors (orally or in writing) and any issuer free writing prospectus
as defined in Rule 433 of the Act (each, an “Issuer Free Writing Prospectus”), if any, that the parties hereto shall
hereafter expressly agree in writing to treat as part of the Time of Sale Disclosure Package. The term “any Prospectus” shall
mean, as the context requires, the Preliminary Prospectus, the Final Prospectus, and any supplement to either thereof. The Company has
not received any notice that the Commission has issued or intends to issue a stop order suspending the effectiveness of the Registration
Statement or the use of the Preliminary Prospectus or any prospectus supplement or intends to commence a proceeding for any such purpose.
(b)
Assurances. The Registration Statement, as amended (and any further related 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 applicable Rules and Regulations and
did 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 Preliminary Prospectus and the Final Prospectus, each as of its respective date, complied
or will comply in all material respects with the Securities Act and the applicable Rules and Regulations. Each of the Preliminary Prospectus
and the Final Prospectus, 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 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 promulgated thereunder, 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 Preliminary Prospectus or Final
Prospectus), in 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. Except
for this Agreement and the Transaction Documents, there are no contracts or other documents required to be described in the Preliminary
Prospectus or the Final Prospectus, or to be filed as exhibits or schedules to the Registration Statement, which have not been described
or filed as required. The representations set forth in this Section 2(b) do not apply to statements or omissions made in reliance upon
information furnished to the Company in writing by the Placement Agent expressly for use therein, it being understood and agreed that
the only such information furnished by the Placement Agent consists of the disclosure under the last sentence under “Lock-Up Agreements”
and “Regulation M” in the “Plan of Distribution” sections of the Preliminary Prospectus and Final Prospectus,
respectively (the “Placement Agent Information”).
(c)
Offering Materials. 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 Shares other than the Time of Sale Disclosure
Package.
(d)
Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions
contemplated by this Agreement and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of each
of this Agreement 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 Company’s Board of Directors
(the “Board of Directors”) or the Company’s shareholders in connection therewith other than in connection with
the Required Approvals (as defined in the Purchase Agreement). This Agreement has been duly executed by the Company and, when delivered
in accordance with the terms hereof, assuming due authorization, execution and delivery by the Placement Agent, 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.
(e)
No Conflicts. The execution, delivery and performance by the Company of this Agreement and the transactions contemplated hereby
and pursuant to the Time of Sale Disclosure Package, the issuance and sale of the Shares and the consummation by it of the transactions
contemplated hereby and thereby to which it is a party do not and will not (i) conflict with or violate any provision of the Company’s
or any Subsidiary’s certificate or articles of association, bylaws or other organizational or charter documents, or (ii) conflict
with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation
of any Lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment,
acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument
(evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by
which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals, conflict
with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or
governmental authority to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations),
or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and
(iii), such as could not have or reasonably be expected to result in: (x) a material adverse effect on the legality, validity or enforceability
of this Agreement or any other agreement entered into between the Company and the Investors, (y) a material adverse effect on the results
of operations, assets, business, prospects or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole,
or (z) a material adverse effect on the Company’s ability to perform in any material respect on a timely basis its obligations
under this Agreement or the transactions contemplated under the Preliminary Prospectus and Final Prospectus (any of (x), (y) or (z),
a “Material Adverse Effect”). As used in this Agreement, “Subsidiary” means all of the direct and
indirect subsidiaries of the Company as set forth in the Incorporated Documents. As used in this Section 2(e), “Lien”
means liens, charges, security interests, encumbrances, rights of first refusal, preemptive rights or other restrictions.
(f)
Certificates. Any certificate signed by an officer of the Company and delivered to the Placement Agent or to the Placement Agent’s
Counsel shall be deemed to be a representation and warranty by the Company to the Placement Agent as to the matters set forth therein.
(g)
Reliance. The Company acknowledges that the Placement Agent will rely upon the accuracy and truthfulness of the foregoing representations
and warranties and hereby consents to such reliance.
(h)
Forward-Looking Statements. No forward-looking statements (within the meaning of Section 27A of the Securities Act and Section
21E of the Exchange Act) contained in the Time of Sale Disclosure Package has been made or reaffirmed without a reasonable basis or has
been disclosed other than in good faith.
(i)
FINRA Affiliations. There are no affiliations with any firm that is a member of the FINRA participating in the Offering among
the Company’s officers, directors or, to the knowledge of the Company, any 10% or greater shareholder of the Company.
(j)
Representations and Warranties Incorporated by Reference. Each of the representations and warranties (together with any related
disclosure schedules thereto) made by the Company to the Investors in the form of Purchase Agreement, filed as exhibit 10.14 to the Registration
Statement on August 26, 2024, is hereby incorporated herein by reference (as though fully restated herein) and is hereby made to, and
in favor of, the Placement Agent.
Section
3. Representations of the Placement Agent. The Placement Agent, represents and warrants that it (i) is a member in good standing
of the FINRA, (ii) is a broker-dealer registered under the Exchange Act, (iii) is licensed as a broker-dealer under the laws of the United
States of America, applicable to the offers and sales of the Securities, (iv) is and will be a corporate body validly existing under
the laws of its place of incorporation, (v) has full power and authority to enter into and perform its obligations under this Agreement
and (vi) has not, in connection with the Offering, disclosed to any Investors information that is different from or inconsistent with
the information contained in the Time of Sale Disclosure Package and the Transaction Documents. The Placement Agent will promptly notify
the Company in writing of any change in its status with respect to subsections (i) through (vi) above. The Placement Agent covenants
that it will use its reasonable best efforts to conduct the Offering hereunder in compliance with the provisions of this Agreement and
the requirements of applicable law.
Section
4. Delivery and Payment.
(a)
Closing for the Offering. The Closing shall occur at the offices of Hunter Taubman Fischer & Li LLC, 950 Third Avenue, 19th
Floor, New York, New York 10022 (“Placement Agent Counsel”) (or at such other place as shall be agreed upon
by the Placement Agent and the Company). Subject to the terms and conditions hereof, at the Closing payment of the purchase price for
the Shares sold on such Closing Date shall be made by Federal Funds wire transfer, against delivery of such Shares, and such Shares shall
be registered in such name or names and shall be in such denominations, as the Placement Agent may request at least one business day
before the time of purchase.
(b)
Payment for the Shares. The Shares are being sold to the Investors at the public offering price as set forth in the Final Prospectus.
The purchase of the Shares by each of the Investors shall be evidenced by the receipt of funds in the account designated by the Company
and the Placement Agent and, if required by the Investor, execution of a Purchase Agreement by each such Investor and the Company.
(c)
Delivery of the Shares. Delivery of the Shares shall be made through the facilities of The Depository Trust Company unless the
Placement Agent shall otherwise instruct.
(d)
Offering Period. The Offering Period shall commence on the date hereof and will continue until the earlier of (i) the completion
of the sale of all Shares in the Offering and (ii) the date that is fifteen (15) calendar days following the date hereof (the “Offering
Period”).
Section
5. Covenants and Agreements of the Company. The Company further covenants and agrees with the Placement Agent as follows:
(a)
Registration Statement Matters. During the Prospectus Delivery Period (as defined below), 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 Final Prospectus has been filed and will furnish the Placement Agent with copies thereof. During the
Prospectus Delivery Period, 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 any
Prospectus. During the Prospectus Delivery Period, 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 Preliminary Prospectus, 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 the Shares 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 commercially reasonable 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 commercially reasonable
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 during
the Prospectus Delivery Period, 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 reasonable efforts to confirm that any filings
made by the Company under such Rule 424(b) are received in a timely manner by the Commission.
(b)
Blue Sky Compliance. The Company will cooperate with the Placement Agent and the Investors in endeavoring to qualify the Shares
for sale under the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Investors 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 Shares. The Company will advise the Placement Agent promptly of the suspension of the qualification or
registration of (or any such exemption relating to) the Shares 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 commercially reasonable efforts to obtain the withdrawal thereof at the earliest possible moment.
(c)
Amendments and Supplements to a Prospectus and Other Matters. 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 Shares 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 Shares 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
reasonable opinion of the Placement Agent or Placement Agent’s Counsel, 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 Offering, 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.
(d)
Copies of any Amendments and Supplements to a Prospectus. The Company will furnish the Placement Agent, without charge, during
the period beginning on the date hereof and ending upon the completion of the Offering, as many copies of any Prospectus or prospectus
supplement and any amendments and supplements thereto, as the Placement Agent may reasonably request.
(e)
Free Writing Prospectus. The Company covenants that it will not, unless it obtains the prior written consent of the Placement
Agent, make any offer relating to the Shares that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute
a “free writing prospectus” (as defined in Rule 405 of the Securities Act) required to be filed by the Company with
the Commission or retained by the Company under Rule 433 of the Securities Act. In the event that the Placement Agent expressly consents
in writing to any such free writing prospectus (a “Permitted Free Writing Prospectus”), the Company covenants that
it shall (i) treat each Permitted Free Writing Prospectus as an Company Free Writing Prospectus, and (ii) comply with the requirements
of Rule 164 and 433 of the Securities Act applicable to such Permitted Free Writing Prospectus, including in respect of timely filing
with the Commission, legending and record keeping.
(f)
Transfer Agent. The Company will maintain, at its expense, a registrar and transfer agent for the Shares.
(g)
Earnings Statement. As soon as practicable and in accordance with applicable requirements under the Securities Act, but in any
event not later than twelve (12) months after the Closing Date, the Company will make generally available to its security holders and
to the Placement Agent an earnings statement, covering a period of at least twelve (12) consecutive months beginning after the Closing
Date, that satisfies the provisions of Section 11(a) and Rule 158 under the Securities Act.
(h)
Periodic Reporting Obligations. During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the
Commission and the Nasdaq Stock Market LLC (“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.
(i)
Additional Documents. The Company will enter into any subscription, purchase or other customary agreements as the Placement
Agent or the Investors deem necessary or appropriate to consummate the Closing in connection with the Offering, all of which will be
in form and substance reasonably acceptable to the Placement Agent and the Investors. The Company agrees that the Placement Agent may
rely upon, and each is a third-party beneficiary of, the representations and warranties, and applicable covenants, set forth in any purchase,
subscription or other agreement entered into with Investors in connection with the Offering.
(j)
No Manipulation of Price. 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.
(k)
Acknowledgment. The Company acknowledges that any advice given by the Placement Agent to the Company is solely for the benefit
and use of the Board of Directors of the Company and may not be used, reproduced, disseminated, quoted or referred to, without the Placement
Agent’s prior written consent.
(l)
Announcement of Offering. The Company acknowledges and agrees that the Placement Agent may at its sole expense, subsequent to
the Closing, make public its involvement with the Offering.
(m)
Reliance on Others. The Company confirms that it will rely on its own counsel and accountants for legal and accounting advice.
(n)
Research Matters. By entering into this Agreement, the Placement Agent provides
no promise, either explicitly or implicitly, of favorable or continued research coverage of the Company and the Company hereby acknowledges
and agrees that the Placement Agent’s selection as the placement agent for the Offering was in no way conditioned, explicitly or
implicitly, on the Placement Agent’s providing favorable or any research coverage of the Company. In accordance with FINRA Rule
2711(e), the parties acknowledge and agree that the Placement Agent has not directly or indirectly offered favorable research, a specific
rating or a specific price target, or threatened to change research, a rating or a price target, to the Company or inducement for the
receipt of business or compensation.
Section
6. Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder shall be subject to the
accuracy in all material respects of the representations and warranties on the part of the Company set forth in Section 2 hereof,
in each case as of the date hereof and as of the applicable Closing Date as though then made, to the timely performance by each of the
Company of its covenants and other obligations hereunder on and as of such dates, and to each of the following additional conditions:
(a)
Compliance with Registration Requirements; No Stop Order; No Objection from FINRA. Each Prospectus (in accordance with Rule 424(b))
and “free writing prospectus” (as defined in Rule 405 of the Securities Act), if any, shall have been duly filed with
the Commission, as appropriate; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or, to the Company’s knowledge, threatened by the Commission;
no order preventing or suspending the use of any Prospectus shall have been issued and no proceeding for that purpose shall have been
initiated or, to the Company’s knowledge, threatened by the Commission; no order having the effect of ceasing or suspending the
distribution of the Shares or any other securities of the Company shall have been issued by any securities commission, securities regulatory
authority or stock exchange and no proceedings for that purpose shall have been instituted or shall be pending or, to the knowledge of
the Company, contemplated by any securities commission, securities regulatory authority or stock exchange; all requests for additional
information on the part of the Commission shall have been complied with; and FINRA shall have raised no objection to the fairness and
reasonableness of the placement terms and arrangements.
(b)
Corporate Proceedings. All corporate proceedings and other legal matters in connection with this Agreement, the Registration Statement
and each Prospectus, and the registration, sale and delivery of the Shares, shall have been completed or resolved in a manner reasonably
satisfactory to the Placement Agent’s Counsel, and such counsel shall have been furnished with such papers and information as it
may reasonably have requested to enable such counsel to pass upon the matters referred to in this Section 6.
(c)
No Material Adverse Change. Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, in the Placement
Agent’s reasonable judgment after consultation with the Company, there shall not have occurred any material adverse change or development
involving a prospective material adverse change in the condition or the business activities, financial or otherwise, of the Company from
the latest dates as of which such condition is set forth in the Registration Statement and Prospectus (each, a “Material Adverse
Change”).
(d)
Opinion of Counsels for the Company. The Placement Agent shall have received on the Closing Date the opinion of U.S. legal counsel
and U.K. legal counsel to the Company, dated as of the Closing Date and addressed to the Placement Agent, each in form and substance
substantially similar to the opinions delivered by U.S. legal counsel and U.K. legal counsel to the Company in connection with an offering
of the type contemplated hereby, which shall be deemed reasonably satisfactory to the Placement Agent. The Placement Agent shall have
received on the Closing Date a negative assurance letter from Nummi & Associates, which shall be in a form and substance reasonably
satisfactory to the Placement Agent.
(e)
Officers’ Certificate. The Placement Agent shall have received on the Closing Date, a certificate of the Company, dated
as of the Closing Date and which may be relied upon by the Placement Agent, signed by the Chief Executive Officer and Chief Financial
Officer of the Company, in their respective capacities as such officers only, in a form reasonably acceptable to the Placement Agent,
to the effect that:
(i)
The representations and warranties of the Company in this Agreement are true and correct in all material respects, as if made on and
as of the Closing Date, and the Company has complied in all material respects with all the agreements and satisfied all the conditions
on its part to be performed or satisfied at or prior to the Closing Date;
(ii)
No stop order suspending the effectiveness of the Registration Statement or the use of the Final Prospectus has been issued and no proceedings
for that purpose have been instituted or are pending or, to the Company’s knowledge, threatened under the Securities Act; no order
having the effect of ceasing or suspending the distribution of the Shares or any other securities of the Company has been issued by any
securities commission, securities regulatory authority or stock exchange in the United States and no proceedings for that purpose have
been instituted or are pending or, to the knowledge of the Company, contemplated by any securities commission, securities regulatory
authority or stock exchange in the United States;
(iii)
When the Registration Statement became effective, at the time of sale, and at all times subsequent thereto up to the delivery of such
certificate, the Registration Statement and the Incorporated Documents, if any, when such documents became effective or were filed with
the Commission, and any Prospecuts, contained all material information required to be included therein by the Securities Act and the
Exchange Act and the applicable rules and regulations of the Commission thereunder, as the case may be, and in all material respects
conformed to the requirements of the Securities Act and the Exchange Act and the applicable rules and regulations of the Commission thereunder,
as the case may be, and the Registration Statement and the Incorporated Documents, if any, and any Prospectus, did not and do not include
any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading (provided, however, that the preceding representations
and warranties contained in this paragraph (iii) shall not apply to any statements or omissions made in reliance upon and in conformity
with the Placement Agent Information) and, since the effective date of the Registration Statement, there has occurred no event required
by the Securities Act and the rules and regulations of the Commission thereunder to be set forth in the Incorporated Documents which
has not been so set forth; and
(iv)
Subsequent to the respective dates as of which information is given in the Registration Statement, the Incorporated Documents and any
Prospectus, there has not been: (a) any Material Adverse Change; (b) any transaction that is material to the Company and the Subsidiaries
taken as a whole, except transactions entered into in the ordinary course of business; (c) any obligation, direct or contingent, that
is material to the Company and the Subsidiaries taken as a whole, incurred by the Company or any Subsidiary, except obligations incurred
in the ordinary course of business; (d) any material change in the capital stock (except changes thereto resulting from the exercise
of outstanding stock options or warrants) or outstanding indebtedness of the Company or any Subsidiary; (e) any dividend or distribution
of any kind declared, paid or made on the capital stock of the Company; or (f) any loss or damage (whether or not insured) to the property
of the Company or any Subsidiary which has been sustained or will have been sustained which has a Material Adverse Effect; except, in
each case, in connection with the potential business combination transaction between Tembo and Cactus Acquisition Corp. 1 Limited.
(f)
Chief Financial Officer’s Certificate. The Placement Agent shall have received on the Closing Date, a certificate of the
Company, dated as of the Closing Date and which may be relied upon by the Placement Agent, signed by the Chief Financial Officer of the
Company, with respect to certain financial and other data contained in or incorporated by reference into the Registration Statement,
in a form reasonably acceptable to the Placement Agent.
(g)
Exchange Act Registration and Stock Exchange Listing. The Shares shall have been registered under the Exchange Act and shall have
been approved for listing on the Trading Market, subject to official notice of issuance, and the Company shall not have taken any action
designed to terminate, or likely to have the effect of terminating, the registration of the Shares under the Exchange Act or delisting
or suspending from trading the Shares from the Trading Market, nor shall the Company have received any information suggesting that the
Commission or the Trading Market is contemplating terminating such registration or listing.
(h)
Lock-Up Agreement. On or prior to the date of this Agreement, the Company shall have furnished to the Placement Agent a letter
substantially in the form of Exhibit A hereto (the “Lock-Up Agreement”) from each executive officer, director and
5% shareholder of the Company addressed to the Placement Agent. The Company will use its reasonable best efforts to enforce the terms
of each Lock-Up Agreement and will issue stop-transfer instructions to the transfer agent for the ordinary shares with respect to any
transaction or contemplated transaction that would constitute a breach of or default under the applicable Lock-Up Agreement.
(i)
Additional Documents. On or before the Closing Date, the Placement Agent and Placement Agent’s Counsel shall have received
such information and documents as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of
the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction
of any of the conditions or agreements, herein contained.
If
any condition specified in this Section 6 is not satisfied when and as required to be satisfied, this Agreement may be terminated
by the Placement Agent by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability
on the part of any party to any other party, except that Section 1(a), Section 1(b), Section 7 (Payment of Expenses),
Section 8 (Indemnification and Contribution) and Section 9 (Representations and Indemnities to Survive Delivery) shall
at all times be effective and shall survive such termination.
Section
7. Payment of Expenses. Subject to compliance with FINRA Rule 5110(f)(2)(D), the Company agrees to pay all reasonable costs, fees
and expenses incurred by the Company in connection with the performance of its obligations hereunder and in connection with the transactions
contemplated hereby, including, without limitation: (i) all expenses incident to the issuance, delivery and qualification of the Shares
(including all printing and engraving costs); (ii) all fees and expenses of the registrar and transfer agent of the Shares; (iii) all
necessary issue, transfer and other stamp taxes in connection with the issuance and sale of the Shares; (iv) all fees and expenses of
the Company’s counsel, independent public or certified public accountants and other advisors; (v) all costs and expenses incurred
in connection with the preparation, printing, filing, shipping and distribution of the Registration Statement (including financial statements,
exhibits, schedules, consents and certificates of experts), the Preliminary Prospectus, the Final Prospectus and each prospectus supplement,
if any, and all amendments and supplements thereto, and this Agreement; (vi) all filing fees, reasonable attorneys’ fees and expenses
incurred by the Company or the Placement Agent in connection with qualifying or registering (or obtaining exemptions from the qualification
or registration of) all or any part of the Shares for offer and sale under the state securities or blue sky laws or the securities laws
of any other country; (vii) if applicable, the filing fees incident to the review and approval by FINRA of the Placement Agent’s
participation in the offering and distribution of the Shares; (viii) the fees and expenses associated with including the Shares on the
Trading Market; (ix) all costs and expenses incident to the travel and accommodation of the Company’s employees on the “roadshow,”
if any; provided that all fees and expenses incurred by the Placement Agent in (vi) and (vii) above must be pre-approved by the Company.
The Company shall be obligated to pay or reimburse the Placement Agent for any reasonable and documented out of pocket fees and disbursements
of the Placement Agent’s legal counsel. The maximum amount that the Company shall be required to pay or reimburse the Placement
Agreement (including with respect to Placement Agent’s legal counsel) pursuant to this section shall be US$125,000; provided, that,
the Company shall only be obligated to reimburse reasonable and documented out of pocket fees and expenses.
Section
8. Indemnification and Contribution.
(a)
The Company agrees to indemnify and hold harmless the Placement Agent, its affiliates and each person controlling the Placement Agent
(within the meaning of Section 15 of the Securities Act), and the directors, officers, agents and employees of the Placement Agent, its
affiliates and each such controlling person (the Placement Agent, and each such entity or person, an “Agent Indemnified Person”)
from and against any losses, claims, damages, judgments, assessments, costs and other liabilities (collectively, the “Liabilities”),
and shall reimburse each Agent Indemnified Person for all reasonable and documented out of pocket fees and expenses (including the reasonable
and documented out of pocket fees and expenses of one counsel for all Agent Indemnified Persons, except as otherwise expressly provided
herein) (collectively, the “Expenses”) as they are incurred by an Agent Indemnified Person in investigating, preparing,
pursuing or defending any actions, whether or not any Agent Indemnified Person is a party thereto, (i) caused by, or arising out of or
in connection with, any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, any
Incorporated Document, or any Prospectus or by any omission or alleged omission to state therein a material fact necessary to make the
statements therein, in light of the circumstances under which they were made, not misleading (other than untrue statements or alleged
untrue statements in, or omissions or alleged omissions from, information relating to an Agent Indemnified Person furnished in writing
by or on behalf of such Agent Indemnified Person expressly for use in the Registration Statement, any Incorporated Document, or any Prospectus)
or (ii) otherwise arising out of or in connection with advice or services rendered or to be rendered by any Agent Indemnified Person
pursuant to this Agreement, the transactions contemplated thereby or any Agent Indemnified Person’s actions or inactions in connection
with any such advice, services or transactions; provided, however, that, in the case of clause (ii) only, the Company shall
not be responsible for any Liabilities or Expenses of any Agent Indemnified Person that are finally judicially determined to have resulted
primarily from such Agent Indemnified Person’s (x) gross negligence, willful misconduct or bad faith in connection with any of
the advice, actions, inactions or services referred to above or (y) use of any offering materials or information concerning the Company
in connection with the offer or sale of the Shares in the Offering which were not authorized for such use by the Company and which use
constitutes gross negligence or willful misconduct. The Company also agrees to reimburse each Agent Indemnified Person for all Expenses
as they are incurred in connection with enforcing such Agent Indemnified Person’s rights under this Agreement.
(b)
The Placement Agent agrees to indemnify and hold harmless the Company, its affiliates and each person controlling the Company (within
the meaning of Section 15 of the Securities Act), and the directors, officers, agents and employees of the Company, its affiliates and
each such controlling person (the Company, and each such entity or person. an “Company Indemnified Person”) from and
against any Liabilities, and shall reimburse each Company Indemnified Person for all Expenses as they are incurred by a Company Indemnified
Person in investigating, preparing, pursuing or defending any actions, whether or not any Company Indemnified Person is a party thereto,
(i) caused by, or arising out of or in connection with, any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement, any Incorporated Document, or any Prospectus or by any omission or alleged omission to state therein a
material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading but
in each case only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information concerning such Placement Agent furnished in writing to the Company by or on behalf of
such Placement Agent specifically for inclusion therein, or (ii) otherwise arising out of or in connection with advice or services rendered
or to be rendered by such Placement Agent pursuant to this Agreement, the transactions contemplated thereby or any Company Indemnified
Person’s actions or inactions in connection with any such advice, services or transactions; provided, however, that, in the case
of clause (ii) only, the Placement Agent shall only be responsible for any Liabilities or Expenses of any Company Indemnified Person
the extent that the Placement Agent’s actions are finally judicially determined to have resulted solely from Placement Agent’s
(x) gross negligence, willful misconduct or bad faith in connection with any of the advice, actions, inactions or services referred to
above or (y) use of any offering materials or information concerning the Company in connection with the offer or sale of the Shares in
the Offering which were not authorized for such use by the Company and which use constitutes gross negligence or willful misconduct.
The Placement Agent also agrees to reimburse each Company Indemnified Person for all Expenses as they are incurred in connection with
enforcing such Company Indemnified Person’s rights under this Agreement. Notwithstanding the provisions of this Section 8(b),
in no event shall any indemnity by a Placement Agent under this Section 8(b) exceed the total commissions received by such Placement
Agent in connection with the Offering.
The
“Indemnifying Person” shall refer to the Company or the Placement Agent, as the case may be, hereinafter in this Section
8, and the “Indemnified Person” shall refer to the Agent Indemnified Person or the Company Indemnified Person, as the case
may be, hereinafter in this Section 8.
(c)
Upon receipt by an Indemnified Person of actual notice of an Action against such Indemnified Person with respect to which indemnity may
be sought under this Agreement, such Indemnified Person shall promptly notify the Indemnifying Person in writing; provided that failure
by any Indemnified Person so to notify the Indemnifying Person shall not relieve the Indemnifying Person from any liability which the
Indemnifying Person may have on account of this indemnity or otherwise to such Indemnified Person, except to the extent the Indemnifying
Person shall have been prejudiced by such failure. The Indemnifying Person shall, if requested by the Indemnified Person, assume the
defense of any such Action including the employment of counsel reasonably satisfactory to the Indemnified Person, which counsel may also
be counsel to the Indemnifying Person. Any Indemnified Person shall have the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless:
(i) the Indemnifying Person has failed promptly to assume the defense and employ counsel or (ii) the named parties to any such Action
(including any impeded parties) include such Indemnified Person and the Indemnifying Person, and such Indemnified Person shall have been
advised in the reasonable opinion of counsel that there is an actual conflict of interest that prevents the counsel selected by the Indemnifying
Person from representing both the Indemnifying Person (or another client of such counsel) and any Indemnified Person; provided that the
Indemnifying Person shall not in such event be responsible hereunder for the fees and expenses of more than one firm of separate counsel
for all Indemnified Persons in connection with any Action or related Actions, in addition to any local counsel. The Indemnifying Person
shall not be liable for any settlement of any Action effected without its written consent (which shall not be unreasonably withheld).
In addition, the Indemnifying Person shall not, without the prior written consent of the Indemnified Person (which shall not be unreasonably
withheld), settle, compromise or consent to the entry of any judgment in or otherwise seek to terminate any pending or threatened Action
in respect of which indemnification or contribution may be sought hereunder unless such settlement, compromise, consent or termination
includes an unconditional release of each Indemnified Person from all Liabilities arising out of such Action for which indemnification
or contribution may be sought hereunder. The indemnification required hereby shall be made by periodic payments of the amount thereof
during the course of the investigation or defense, as such expense, loss, damage or liability is incurred and is due and payable. “Action”
means any action, suit, inquiry, notice of violation, proceeding or investigation 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).
(d)
In the event that the foregoing indemnity is unavailable to an Indemnified Person other than in accordance with this Agreement, the Indemnifying
Person shall contribute to the Liabilities and Expenses paid or payable by such Indemnified Person in such proportion as is appropriate
to reflect (i) the relative benefits to the Indemnifying Person, on the one hand, and to the Indemnified Person and any other Indemnified
Person, on the other hand, of the matters contemplated by this Agreement or (ii) if the allocation provided by the immediately preceding
clause is not permitted by applicable law, not only such relative benefits but also the relative fault of the Indemnifying Person, on
the one hand, and the Indemnified Person and any other Indemnified Person, on the other hand, in connection with the matters as to which
such Liabilities or Expenses relate, as well as any other relevant equitable considerations; provided that in no event shall the Indemnifying
Person contribute less than the amount necessary to ensure that all Indemnified Persons, in the aggregate, are not liable for any Liabilities
and Expenses in excess of the amount of fees actually received by the Indemnified Person pursuant to this Agreement. For purposes of
this paragraph, the relative benefits to the Company, on the one hand, and to the Placement Agent on the other hand, of the matters contemplated
by this Agreement shall be deemed to be in the same proportion as (a) the total value paid or contemplated to be paid to or received
or contemplated to be received by the Company in the transaction or transactions that are within the scope of this Agreement, whether
or not any such transaction is consummated, bears to (b) the fees paid to the Placement Agent under this Agreement. Notwithstanding the
above, no person guilty of fraudulent misrepresentation within the meaning of Section 11(f) of the Securities Act, as amended, shall
be entitled to contribution from a party who was not guilty of fraudulent misrepresentation.
(e)
The Indemnifying Person also agrees that no Indemnified Person shall have any liability (whether direct or indirect, in contract or tort
or otherwise) to the Indemnifying Person for or in connection with advice or services rendered or to be rendered by any Indemnified Person
pursuant to this Agreement, the transactions contemplated thereby or any Indemnified Person’s actions or inactions in connection
with any such advice, services or transactions except for Liabilities (and related Expenses) of the Indemnifying Person that are finally
judicially determined to have resulted solely from such Indemnified Person’s gross negligence or willful misconduct in connection
with any such advice, actions, inactions or services.
(f)
The reimbursement, indemnity and contribution obligations of the Indemnifying Person set forth herein shall apply to any modification
of this Agreement and shall remain in full force and effect regardless of any termination of, or the completion of any Indemnified Person’s
services under or in connection with, this Agreement.
Section
9. Representations and Indemnities to Survive Delivery. The respective indemnities, agreements, representations, warranties and other
statements of the Company or any person controlling the Company, of its officers, and of the Placement Agent set forth in or made pursuant
to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of the Placement Agent,
the Company, or any of its or their respective partners, officers or directors or any controlling person, as the case may be, and will
survive delivery of and payment for the Shares sold hereunder and any termination of this Agreement. A successor to the Placement Agent,
or to the Company, its directors or officers or any person controlling the Company, shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Agreement.
Section
10. Notices. All communications hereunder shall be in writing and shall be mailed, hand delivered or e-mailed and confirmed to the
parties hereto as follows:
If
to the Placement Agent to the address set forth above, attention: George Kaufman, e-mail: gkaufman@chardan.com
With
a copy (which shall not constitute notice) to:
Hunter
Taubman Fischer & Li LLC
950
Third Avenue, 19th Floor
New
York, NY 10022
Attention:
Louis Taubman, Esq.
E-mail:
ltaubman@htflawyers.com
If
to the Company:
VivoPower
International PLC
The
Scalpel, 18th Floor, 52 Lime Street
London
EC3M 7AF
United
Kingdom
Attention:
Kevin Chin
Email:
ktfc@vivopower.com
With
a copy (which shall not constitute notice) to:
White
& Case LLP
1221
Avenue of the Americas
New
York, New York 10020
Attention:
Elliott M. Smith, Esq.
Email:
elliott.smith@whitecase.com
Any
party hereto may change the address for receipt of communications by giving written notice to the others.
Section
11. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto, and to the benefit of the employees,
officers and directors and controlling persons referred to in Section 8 hereof, and to their respective successors, and personal
representative, and no other person will have any right or obligation hereunder.
Section
12. Partial Unenforceability. The invalidity or unenforceability of any section, paragraph or provision of this Agreement shall not
affect the validity or enforceability of any other section, paragraph or provision hereof. If any Section, paragraph or provision of
this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and
only such minor changes) as are necessary to make it valid and enforceable.
Section
13. Governing Law Provisions. This Agreement and the transactions contemplated hereby shall be governed as to validity, interpretation,
construction, effect and in all other respects by the internal laws of the State of New York, without regard to the conflict of laws
principles thereof. Each of the Placement Agent and the Company: (i) agrees that any legal suit, action or proceeding arising out of
or relating to this Agreement and/or the transactions contemplated hereby shall be instituted exclusively in New York Supreme Court,
County of New York, or in the United States District Court for the Southern District of New York, (ii) waives any objection which it
may have or hereafter to the venue of any such suit, action or proceeding, and (iii) irrevocably consents to the jurisdiction of the
New York Supreme Court, County of New York, and the United States District Court for the Southern District of New York in any such suit,
action or proceeding. Each of the Placement Agent and the Company further agrees to accept and acknowledge service of any and all process
which may be served in any such suit, action or proceeding in the New York Supreme Court, County of New York, or in the United States
District Court for the Southern District of New York and agrees that service of process upon the Company mailed by certified mail to
the Company’s address shall be deemed in every respect effective service of process upon the Company, in any such suit, action
or proceeding, and service of process upon the Placement Agent mailed by certified mail to the Placement Agent’s address shall
be deemed in every respect effective service process upon the Placement Agent, in any such suit, action or proceeding. If either party
shall commence an action or proceeding to enforce any provision of this Agreement, then the prevailing party in such action or proceeding
shall be reimbursed by the other party for its reasonable attorney’s fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
Section
14. General Provisions.
(a)
This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or oral and all contemporaneous
oral agreements, understandings and negotiations with respect to the subject matter hereof. Notwithstanding anything herein to the contrary,
the Engagement Agreement, dated August 23, 2023 (the “Engagement Agreement”), between the Company and the Placement
Agent, shall continue to be effective and the terms therein shall continue to survive and be enforceable by the Placement Agent in accordance
with its terms, provided that, in the event of a conflict between the terms of the Engagement Agreement and this Agreement, the terms
of this Agreement shall prevail. This Agreement may be executed in two or more counterparts, each one of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same instrument. Facsimile or other electronically scanned
and transmitted signatures (including by email attachment) and electronic signatures (including by DocuSign) shall be deemed originals
for all purposes of this Agreement. This Agreement may not be amended or modified unless in writing by all of the parties hereto, and
no condition herein (express or implied) may be waived unless waived in writing by each party whom the condition is meant to benefit.
Section headings herein are for the convenience of the parties only and shall not affect the construction or interpretation of this Agreement.
(b)
The Company acknowledges that in connection with the Offering of the Shares: (i) the Placement Agent has acted at arm’s length,
is not an agent of, and owes no fiduciary duties to the Company or any other person, (ii) the Placement Agent owes the Company only those
duties and obligations set forth in this Agreement and (iii) the Placement Agent may have interests that differ from those of the Company.
The Company waives to the full extent permitted by applicable law any claims it may have against the Placement Agent arising from an
alleged breach of fiduciary duty in connection with the offering of the Shares.
[The
remainder of this page has been intentionally left blank.]
If
the foregoing is in accordance with your understanding of our agreement, please sign below whereupon this instrument, along with all
counterparts hereof, shall become a binding agreement in accordance with its terms.
| |
Very
truly yours, |
| |
|
| |
VIVOPOWER
INTERNATIONAL PLC
|
| |
|
| |
|
|
| |
By: |
/s/
Kevin Chin |
| |
Name: |
Kevin
Chin |
| |
Title:
|
Chief
Executive Officer |
Accepted
and Agreed to as of
the
date first written above:
Chardan
Capital Markets, LLC
|
|
| |
|
|
| By:
|
/s/
George Kaufman |
|
| Name:
|
George
Kaufman |
|
| Title:
|
Partner
and Head of Investment Banking |
|
Exhibit
A
Form
of Lock-Up Agreement
[●],
2024
Chardan
Capital Markets, LLC
1
Pennsylvania Plaza
Suite
4800
New
York, NY 10119
Re:
Placement of VivoPower International PLC
Ladies
and Gentlemen:
The
undersigned, a holder of securities of VivoPower International PLC, a company incorporated under the laws of England and Wales (the “Company”),
or in the undersigned’s capacity as a director or executive officer of the Company, understands that the Company proposes to enter
into an agreement (the “Placement Agreement”) with you as the placement agent (the “Placement Agent”),
providing for the public offering (the “Offering”) of the Shares. Capitalized terms used herein and not otherwise defined
shall have the meanings set forth for them in the Placement Agreement.
In
consideration of the Placement Agent’s agreement to proceed with the Placement of the Shares, and for other good and valuable consideration,
receipt of which is hereby acknowledged, the undersigned hereby agrees, for the benefit of the Company and the Placement Agent that,
without the prior written consent of the Placement Agent, the undersigned will not, during the period specified in the following paragraph
(the “Lock-Up Period”), directly or indirectly, unless otherwise provided herein, (a) offer, sell, agree to offer
or sell, solicit offers to purchase, convert, exercise, exchange, grant any call option or purchase any put option with respect to, pledge,
encumber, assign, borrow or otherwise dispose of or transfer (each a “Transfer”) any Relevant Security (as defined
below) or otherwise publicly disclose the intention to do so, or (b) establish or increase any “put equivalent position”
or liquidate or decrease any “call equivalent position” (in each case within the meaning of Section 16 of the Securities
Exchange Act of 1934 (the “Exchange Act”) and the rules and regulations thereunder) with respect to any Relevant Security
or otherwise enter into any swap, derivative or other transaction or arrangement that Transfers to another, in whole or in part, any
economic consequence of ownership of a Relevant Security, whether or not such transaction is to be settled by the delivery of Relevant
Securities, other securities, cash or other consideration, or otherwise publicly disclose the intention to do so. As used herein, the
term “Relevant Security” means any Ordinary Shares, or any other security of the Company or any other entity that is convertible
into, or exercisable or exchangeable for, Ordinary Shares or any other equity security of the Company, in each case owned beneficially
or otherwise by the undersigned on the the Closing Date or acquired by the undersigned during the Lock-Up Period.
The
Lock-Up Period will commence on the date of this Lock-up Agreement and continue and include the date that is forty-five (45) days after
the Closing Date of the Offering.
In
addition, the undersigned further agrees that, except for the Registration Statement or any Prospectus filed or to be filed in connection
with the Offering, without the prior written consent of the Placement Agent, during the Lock-Up Period the undersigned will not: (i)
file or participate in the filing with the Commission of any registration statement or circulate or participate in the circulation of
any preliminary or final prospectus or other disclosure document, in each case with respect to any proposed offering or sale of a Relevant
Security, or (ii) exercise any rights the undersigned may have to require registration with the Commission of any proposed offering or
sale of a Relevant Security. The restrictions in this Agreement shall not apply to any exercise (including (x) a cashless exercise or
(y) any broker-assisted exercise and payment of tax obligations occurring during the Lock Up Period) of options or warrants to purchase
Ordinary Shares; provided that any Ordinary Shares received upon such exercise, conversion or exchange will be subject to this Lock-Up
Agreement.
In
furtherance of the undersigned’s obligations hereunder, the undersigned hereby authorizes the Company during the Lock-Up Period
to cause any transfer agent for the Relevant Securities to decline to transfer, and to note stop transfer restrictions on the share register
and other records relating to, the Relevant Securities for which the undersigned is the record owner and the transfer of which would
be a violation of this Lock-Up Agreement and, in the case of Relevant Securities for which the undersigned is the beneficial but not
the record owner, agrees that during the Lock-Up Period it will cause the record owner to cause the relevant transfer agent to decline
to transfer, and to note stop transfer restrictions on the share register and other records relating to, such Relevant Securities to
the extent such transfer would be a violation of this Lock-Up Agreement.
Notwithstanding
the foregoing, the undersigned may transfer the undersigned’s Relevant Securities:
(i)
as a bona fide gift or gifts,
(ii)
to any trust, partnership, limited liability company or other legal entity commonly used for estate planning purposes which is established
for the direct or indirect benefit of the undersigned or a member of members of the immediate family of the undersigned,
(iii)
if the undersigned is a corporation, partnership, limited liability company, trust or other business entity (1) to another corporation,
partnership, limited liability company, trust or other business entity that is a direct or indirect affiliate (as defined in Rule 405
under the Securities Act) of the undersigned, (2) to limited partners, limited liability company members or stockholders of the undersigned,
or (3) in connection with a sale, merger or transfer of all or substantially all of the assets of the undersigned or any other change
of control of the undersigned, not undertaken for the purpose of avoiding the restrictions imposed by this Lock-Up Agreement,
(iv)
if the undersigned is a trust, to the beneficiary of such trust,
(v)
by testate or intestate succession,
(vi)
by operation of law, such as pursuant to a qualified domestic order or in connection with a divorce settlement, or
(vii)
pursuant to the Placement Agreement;
provided,
in the case of clauses (i)-(vi), that (A) such transfer shall not involve a disposition for value, (B) the transferee agrees in writing
with the Placement Agent and the Company to be bound by the terms of this Lock-Up Agreement, and (C) such transfer would not require
any filing under Section 16(a) of the Exchange Act and no such filing is voluntarily made.
For
purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more
remote than first cousin.
The
undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this Lock-Up Agreement and
that this Lock-Up Agreement has been duly authorized (if the undersigned is not a natural person) and constitutes the legal, valid and
binding obligation of the undersigned, enforceable in accordance with its terms. Upon request, the undersigned will execute any additional
documents necessary in connection with the enforcement hereof. Any obligations of the undersigned shall be binding upon the successors
and assigns of the undersigned from the date of this Lock-Up Agreement.
The
undersigned, whether or not participating in the Placement, understands that the Placement Agent is proceeding with the Placement in
reliance upon this Lock-Up Agreement.
The
undersigned understands that the undersigned shall be released from all obligations under this Lock-Up Agreement if (i) the Company notifies
the Placement Agent that it does not intend to proceed with the Offering or (ii) the Placement Agreement does not become effective, or
if the Placement Agreement shall terminate or be terminated prior to payment for and delivery of the Shares to be sold thereunder.
This
Lock-Up Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflict
of laws principles thereof. Delivery of a signed copy of this Lock-Up Agreement by facsimile or e-mail/.pdf transmission shall be effective
as the delivery of the original hereof.
Very
truly yours,
Signature:
_________________________________________
Name
(printed): _____________________________________
Title
(if applicable): __________________________________
Entity
(if applicable): _________________________________
Exhibit
10.2
[●],
2024
Chardan
Capital Markets, LLC
1
Pennsylvania Plaza
Suite
4800
New
York, NY 10119
Re:
Placement of VivoPower International PLC
Ladies
and Gentlemen:
The
undersigned, a holder of securities of VivoPower International PLC, a company incorporated under the laws of England and Wales (the “Company”),
or in the undersigned’s capacity as a director or executive officer of the Company, understands that the Company proposes to enter
into an agreement (the “Placement Agreement”) with you as the placement agent (the “Placement Agent”),
providing for the public offering (the “Offering”) of the Shares. Capitalized terms used herein and not otherwise defined
shall have the meanings set forth for them in the Placement Agreement.
In
consideration of the Placement Agent’s agreement to proceed with the Placement of the Shares, and for other good and valuable consideration,
receipt of which is hereby acknowledged, the undersigned hereby agrees, for the benefit of the Company and the Placement Agent that,
without the prior written consent of the Placement Agent, the undersigned will not, during the period specified in the following paragraph
(the “Lock-Up Period”), directly or indirectly, unless otherwise provided herein, (a) offer, sell, agree to offer
or sell, solicit offers to purchase, convert, exercise, exchange, grant any call option or purchase any put option with respect to, pledge,
encumber, assign, borrow or otherwise dispose of or transfer (each a “Transfer”) any Relevant Security (as defined
below) or otherwise publicly disclose the intention to do so, or (b) establish or increase any “put equivalent position”
or liquidate or decrease any “call equivalent position” (in each case within the meaning of Section 16 of the Securities
Exchange Act of 1934 (the “Exchange Act”) and the rules and regulations thereunder) with respect to any Relevant Security
or otherwise enter into any swap, derivative or other transaction or arrangement that Transfers to another, in whole or in part, any
economic consequence of ownership of a Relevant Security, whether or not such transaction is to be settled by the delivery of Relevant
Securities, other securities, cash or other consideration, or otherwise publicly disclose the intention to do so. As used herein, the
term “Relevant Security” means any Ordinary Shares, or any other security of the Company or any other entity that is convertible
into, or exercisable or exchangeable for, Ordinary Shares or any other equity security of the Company, in each case owned beneficially
or otherwise by the undersigned on the the Closing Date or acquired by the undersigned during the Lock-Up Period.
The
Lock-Up Period will commence on the date of this Lock-up Agreement and continue and include the date that is forty-five (45) days after
the Closing Date of the Offering.
In
addition, the undersigned further agrees that, except for the Registration Statement or any Prospectus filed or to be filed in connection
with the Offering, without the prior written consent of the Placement Agent, during the Lock-Up Period the undersigned will not: (i)
file or participate in the filing with the Commission of any registration statement or circulate or participate in the circulation of
any preliminary or final prospectus or other disclosure document, in each case with respect to any proposed offering or sale of a Relevant
Security, or (ii) exercise any rights the undersigned may have to require registration with the Commission of any proposed offering or
sale of a Relevant Security. The restrictions in this Agreement shall not apply to any exercise (including (x) a cashless exercise or
(y) any broker-assisted exercise and payment of tax obligations occurring during the Lock Up Period) of options or warrants to purchase
Ordinary Shares; provided that any Ordinary Shares received upon such exercise, conversion or exchange will be subject to this Lock-Up
Agreement.
In
furtherance of the undersigned’s obligations hereunder, the undersigned hereby authorizes the Company during the Lock-Up Period
to cause any transfer agent for the Relevant Securities to decline to transfer, and to note stop transfer restrictions on the share register
and other records relating to, the Relevant Securities for which the undersigned is the record owner and the transfer of which would
be a violation of this Lock-Up Agreement and, in the case of Relevant Securities for which the undersigned is the beneficial but not
the record owner, agrees that during the Lock-Up Period it will cause the record owner to cause the relevant transfer agent to decline
to transfer, and to note stop transfer restrictions on the share register and other records relating to, such Relevant Securities to
the extent such transfer would be a violation of this Lock-Up Agreement.
Notwithstanding
the foregoing, the undersigned may transfer the undersigned’s Relevant Securities:
(i)
as a bona fide gift or gifts,
(ii)
to any trust, partnership, limited liability company or other legal entity commonly used for estate planning purposes which is established
for the direct or indirect benefit of the undersigned or a member of members of the immediate family of the undersigned,
(iii)
if the undersigned is a corporation, partnership, limited liability company, trust or other business entity (1) to another corporation,
partnership, limited liability company, trust or other business entity that is a direct or indirect affiliate (as defined in Rule 405
under the Securities Act) of the undersigned, (2) to limited partners, limited liability company members or stockholders of the undersigned,
or (3) in connection with a sale, merger or transfer of all or substantially all of the assets of the undersigned or any other change
of control of the undersigned, not undertaken for the purpose of avoiding the restrictions imposed by this Lock-Up Agreement,
(iv)
if the undersigned is a trust, to the beneficiary of such trust,
(v)
by testate or intestate succession,
(vi)
by operation of law, such as pursuant to a qualified domestic order or in connection with a divorce settlement, or
(vii)
pursuant to the Placement Agreement;
provided,
in the case of clauses (i)-(vi), that (A) such transfer shall not involve a disposition for value, (B) the transferee agrees in writing
with the Placement Agent and the Company to be bound by the terms of this Lock-Up Agreement, and (C) such transfer would not require
any filing under Section 16(a) of the Exchange Act and no such filing is voluntarily made.
For
purposes of this Lock-Up Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more
remote than first cousin.
The
undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this Lock-Up Agreement and
that this Lock-Up Agreement has been duly authorized (if the undersigned is not a natural person) and constitutes the legal, valid and
binding obligation of the undersigned, enforceable in accordance with its terms. Upon request, the undersigned will execute any additional
documents necessary in connection with the enforcement hereof. Any obligations of the undersigned shall be binding upon the successors
and assigns of the undersigned from the date of this Lock-Up Agreement.
The
undersigned, whether or not participating in the Placement, understands that the Placement Agent is proceeding with the Placement in
reliance upon this Lock-Up Agreement.
The
undersigned understands that the undersigned shall be released from all obligations under this Lock-Up Agreement if (i) the Company notifies
the Placement Agent that it does not intend to proceed with the Offering or (ii) the Placement Agreement does not become effective, or
if the Placement Agreement shall terminate or be terminated prior to payment for and delivery of the Shares to be sold thereunder.
This
Lock-Up Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflict
of laws principles thereof. Delivery of a signed copy of this Lock-Up Agreement by facsimile or e-mail/.pdf transmission shall be effective
as the delivery of the original hereof.
Very
truly yours,
Signature:
_________________________________________
Name
(printed): _____________________________________
Title
(if applicable): __________________________________
Entity
(if applicable): _________________________________
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