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 2025
TOP KINGWIN LTD
(Exact name of registrant as specified in its charter)
Room 1304, Building No. 25, Tian’an Headquarters
Center, No. 555
North Panyu Avenue, Donghuan Street
Panyu District, Guangzhou,
Guangdong Province, PRC
(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 ☐
Convertible Note Offering
On February 18, 2025, the Company entered into
certain securities purchase agreement (the “SPA”) with a certain accredited investor (the “Purchaser”)
as such term is defined in Rule 501(a) of Regulation D of the Securities Act of 1933, as amended (the “Securities Act”),
pursuant to which the Company agreed to issue to the Purchaser a new series of convertible notes in the original principal amount up to
$1,000,000 (the “Note”), which Note shall be convertible into class A ordinary shares of the Company, par value of
$0.0001 per share (the “Ordinary Shares”), in accordance with the terms of the Note, for $900,000 in gross proceeds
(the “Offering”). The proceeds will be used for general corporate and working capital purposes at the discretion of
the Company.
R.F. Lafferty & Co., Inc. acted as the Company’s
exclusive placement agent for this Offering.
The Company and the Purchaser have each made customary
representations, warranties and covenants in the SPA. The Note will be issued to the Purchaser upon satisfaction of all closing conditions.
The Ordinary Shares issuable upon conversion of the Notes are hereinafter referred to as “Conversion Shares.”
The issuance of the Conversion Shares upon conversion
is pursuant to a shelf registration statement on Form F-3, as amended (File No. 333-283030), which was declared effective by the U.S.
Securities and Exchange Commission (the “SEC”) on February 13, 2024. The Offering will be made only by means of a prospectus
supplement that forms a part of such registration statement.
The Note bears interest at a rate of 11.75% per
annum, subject to adjustment from time to time in accordance with the terms of the Note. All outstanding principal and accrued interest
on the Note will become due and payable twelve months after the issuance of the Note (“Issuance Date”), and the Purchaser
has the option to extend the maturity term for another twenty-four months upon mutual agreement of the Company and the Purchaser. The
Note includes an original issue discount of 10%. The Company may not prepay any portion of the outstanding principal, accrued and unpaid
interest or accrued and unpaid late charges on principal and interest, if any. At any time after the Issuance Date, the Note is convertible
into validly issued, fully paid and non-assessable Ordinary Shares, on the terms and conditions set forth in the Note. Upon the occurrence
of an Event of Default, as defined in the Note, the Purchaser may require the Company to redeem all or any portion of the Note by delivering
written notice thereof.
Subject to the terms and conditions set forth
in the SPA, the Purchaser and the Company plan to participate in seven additional tranches of closings for the purchase by such Purchaser,
and the sale by the Company, including (i) six tranches of a Note (or Notes) in an aggregate original principal amount of up to $4,000,000
each, and (ii) one tranche of Note (or Notes) in an aggregate original principal amount of up to $4,500,000, as set forth in the Schedule
of Buyers to the SPA, with the aggregate original principal amount of these additional closings up to $28,500,000.
The forms of the SPA, the Note and the leak out
agreement are furnished as Exhibits 99.1, 99.2 and 99.3, respectively, to this Form 6-K and such documents are incorporated herein by
reference. The foregoing is only a brief description of the material terms of the SPA and the Note and does not purport to be a complete
description of the rights and obligations of the parties thereunder and is qualified in its entirety by reference to such exhibits.
The Company issued a press release announcing this matter on February
19, 2025. A copy of the press release is furnished as Exhibit 99.4 to this Report on Form 6-K.
Exhibits.
SIGNATURES
Pursuant to the requirements
of the Securities and Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
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Top KingWin Ltd. |
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| Date: February 19, 2025 |
By: |
/s/ Ruilin Xu |
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Name: |
Ruilin Xu |
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Title: |
Chief Executive Officer |
Exhibit
99.1
SECURITIES
PURCHASE AGREEMENT
This
SECURITIES PURCHASE AGREEMENT (the “Agreement”), dated as of February
18, 2025, is by and among Top KingWin Ltd., an exempted company incorporated under the laws
of the Cayman Islands with offices located at Room 1304, Building No. 25, Tian’an Headquarters
Center, No. 555, North Panyu Avenue, Donguan Street, Panyu District, Guangzhou, Guangdong
Province, China (the “Company”), and each of the investors listed on the
Schedule of Buyers attached hereto (individually, a “Buyer” and collectively,
the “Buyers”).
RECITALS
A.
The Company and each Buyer desire to enter into this transaction to purchase Notes (as defined
below) pursuant to a currently effective shelf registration statement on Form F-3 (Registration
Number 333-283030) (the “Registration Statement”), which has sufficient
availability for the issuance of the Securities (as defined below) on each Closing Date (as
defined below) and has been declared effective in accordance with the 1933 Act, by the SEC.
B.
The Company has authorized a new series of convertible notes of the Company, in the aggregate
original principal amount of up to $29,500,000, substantially in the form attached hereto
as Exhibit A (the “Notes”), which Notes shall be convertible
into Ordinary Shares (as defined below) (the Ordinary Shares issuable pursuant to the terms
of the Notes, including, without limitation, upon conversion or otherwise, collectively,
the “Conversion Shares”), in accordance with the terms of the Notes.
C.
Each Buyer wishes to purchase, and the Company wishes to sell, at the Initial Closing (as
defined below), upon the terms and conditions stated in this Agreement, a Note in the aggregate
original principal amount set forth opposite such Buyer’s name in column (2) on the
Schedule of Buyers (which aggregate principal amount for all Buyers shall not exceed $1,000,000)
(each, an “Initial Note”, and collectively, the “Initial Notes”)
(the Ordinary Shares issuable pursuant to the terms of the Initial Notes, including, without
limitation, upon conversion or otherwise, collectively, the “Initial Conversion
Shares”).
D.
Subject to the terms and conditions set forth in this Agreement, each Buyer and the Company
shall participate in Additional Closings (as defined below) for the purchase by such Buyer,
and the sale by the Company, of (a)(i) a Note (or Notes) in an aggregate original principal
amount of set forth opposite such Buyer’s name in column (3) on the Schedule of Buyers
(which aggregate principal amount for all Buyers shall not exceed $4,000,000 (the “Second
Tranche Maximum Amount” and such tranche of Notes, the ”Second Tranche”),
(ii) a Note (or Notes) in an aggregate original principal amount of set forth opposite such
Buyer’s name in column (4) on the Schedule of Buyers (which aggregate principal amount
for all Buyers shall not exceed $4,000,000) (the “Third Tranche Maximum Amount”
and such tranche of Notes, the “Third Tranche”), (iv) a Note (or Notes)
in an aggregate original principal amount of set forth opposite such Buyer’s name in
column (5) on the Schedule of Buyers (which aggregate principal amount for all Buyers shall
not exceed $4,000,000) (the “Fourth Tranche Maximum Amount” and such tranche
of Notes, the “Fourth Tranche”), (v) a Note (or Notes) in an aggregate
original principal amount of set forth opposite such Buyer’s name in column (6) on
the Schedule of Buyers (which aggregate principal amount for all Buyers shall not exceed
$4,000,000) (the “Fifth Tranche Maximum Amount” and such tranche of Notes,
the “Fifth Tranche”), (vi) a Note (or Notes) in an aggregate original
principal amount of set forth opposite such Buyer’s name in column (7) on the Schedule
of Buyers (which aggregate principal amount for all Buyers shall not exceed $4,000,000) (the
“Sixth Tranche Maximum Amount” and such tranche of Notes, the “Sixth
Tranche”), (vi) a Note (or Notes) in an aggregate original principal amount of
set forth opposite such Buyer’s name in column (8) on the Schedule of Buyers (which
aggregate principal amount for all Buyers shall not exceed $4,000,000) (the “Seventh
Tranche Maximum Amount” and such tranche of Notes, the “Seventh Tranche”)
and (vii) a Note (or Notes) in an aggregate original principal amount of set forth opposite
such Buyer’s name in column (9) on the Schedule of Buyers (which aggregate principal
amount for all Buyers shall not exceed $4,500,000) (the “Eighth Tranche Maximum
Amount” and together with the Second Tranche Maximum Amount, the Third Tranche
Maximum Amount, the Fourth Tranche Maximum Amount, the Fifth Tranche Maximum Amount, the
Sixth Tranche Maximum Amount and the Seventh Tranche Maximum Amount, each an “Additional
Tranche Maximum Amount” and such tranche of Notes, the “Eighth Tranche”
and, together with the Second Tranche, Third Tranche, Fourth Tranche, Fifth Tranche, Sixth
Tranche and Seventh Tranche, each an “Additional Tranche”) (each Note
to be sold at an Additional Closing, an “Additional Note”, and collectively,
the “Additional Notes”) (the Conversion Shares issuable pursuant to the
terms of the Additional Notes, collectively, the “Additional Conversion Shares”).
F.
The Notes and the Conversion Shares are collectively referred to herein as the “Securities.”
AGREEMENT
NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Company and each Buyer hereby agree as follows:
1.
PURCHASE AND SALE OF NOTES.
(a)
Purchase of Notes.
(i)
Purchase of Initial Notes. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(a) and 7(a) below,
the Company shall issue and sell to each Buyer, and each Buyer severally, but not jointly, agrees to purchase from the Company on the
Initial Closing Date (as defined below), an Initial Note in the original principal amount as is set forth opposite such Buyer’s
name in column (2) on the Schedule of Buyers (the “Initial Closing”).
(ii)
Purchase of Additional Notes. Subject to the satisfaction (or waiver) of the conditions set forth in Section 1(b)(ii), 6(b) and
7(b) below, the Company shall issue and sell to such Buyer, and such Buyer severally, but not jointly, with any other Buyer, shall purchase
from the Company, on the applicable Additional Closing Date (as defined below), such aggregate principal amount of Additional Notes as
specified in such Additional Closing Notice (as defined below) (such closing of the purchase of such Additional Notes, each, an “Additional
Closing”).
(b)
Closing. Each of the Initial Closing and any Additional Closings (collectively, the “Closings”) of the purchase
of Notes by the Buyers shall occur at the offices of Pryor Cashman LLP, 7 Times Square, 40th Floor, New York, New York 10036.
(i)
Initial Closing. The date and time of the Initial Closing (the “Initial Closing Date” and, together with each
Additional Closing Date (defined below), each, a “Closing Date”) shall be 9:30 a.m., New York time, on the first (1st)
Business Day on which the conditions to the Initial Closing set forth in Sections 6(a) and 7(a) below are satisfied or waived (or such
other date as is mutually agreed to by the Company and each Buyer). As used herein, “Business Day” means any day other
than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law to remain closed;
provided, however, for clarification, commercial banks shall not be deemed to be authorized or required by law to remain closed due to
“stay at home”, “shelter-in-place”, “non-essential employee” or any other similar orders or restrictions
or the closure of any physical branch locations at the direction of any governmental authority so long as the electronic funds transfer
systems (including for wire transfers) of commercial banks in The City of New York generally are open for use by customers on such day.
(ii)
Additional Closings.
| (1) | General.
Subject to the satisfaction (or waiver) of the conditions to closing set forth in this Section
1(b)(ii) and Sections 6(b) and 7(b) below, so long as no Equity Conditions Failure (as defined
in the Initial Notes) then exists (unless waived by the Required Holders), each Buyer, severally,
shall purchase, and the Company shall sell to such Buyer, (A) (i) with respect to each Additional
Tranche, at one or, if and as specified by such Buyer in an Additional Closing Acceleration
Notice, more Additional Closings (such Additional Closing(s), each, an “Additional
Tranche Closing”, and the date(s) thereof, the “Additional Closing Date(s)”),
at any time on or after the sixtieth (60th) Trading Day (as defined in the Initial
Notes) after, solely with respect to the Second Tranche, the Initial Closing Date and, with
respect to each other Additional Tranche, the sixtieth (60th) Trading Day after
the prior Additional Tranche Closing (each, an “Additional Closing Eligibility Date”).
Notwithstanding the foregoing, (i) any Trading Day period above shall be extended by the
number of Trading Days during such period on which any Buyer is restricted from trading due
to such Buyer’s possession of material non-public information of the Company and/or
any of its Subsidiaries and (ii) each Buyer shall, severally and not jointly, have the right
to effectuate an Additional Closing with respect to all or part of any Additional Tranche
prior to receipt of an Additional Closing Notice with respect to any Additional Tranche,
upon written notice (e-mail to suffice) to the Company (each, an “Additional Closing
Acceleration Notice”), which Additional Closing Acceleration Notice shall specify
the applicable Additional Closing Date and such Buyer’s Additional Note Amount with
respect thereto. If an Additional Closing with respect to any Additional Tranche has not
occurred on or prior to the twenty-four (24) month anniversary of the Initial Closing Date,
each Buyer, severally and not jointly, shall have the right, upon written notice to the Company
(each, a “Buyer Additional Closing Termination Notice”), to terminate
such Buyer’s obligations to effect Additional Closings hereunder with respect to any
or all remaining Additional Tranches. If an Additional Closing with respect to any Additional
Tranche has not occurred on or prior to the thirty-six (36) month anniversary of prior Closing
Date (the “Additional Closing Company Termination Date”), the Company
shall have the right, upon written notice to each Buyer (a “Company Additional Closing
Termination Notice”) to terminate the Company’s obligations to effect Additional
Closings hereunder with respect to any or all remaining Additional Tranches. |
| (2) | Mechanics.
Subject to the satisfaction of the conditions to closing set forth in this Section 1(b)(ii)
and Sections 6(b) and 7(b) below, so long as no Equity Conditions Failure then exists (unless
waived by the Required Holders), the Company shall deliver, two (2) Business Days prior to
each applicable Additional Closing Eligibility Date, a written notice thereof by e-mail and
overnight courier to each Buyer (other than any Buyer from whom the Company has received
an Additional Closing Acceleration Notice with respect to such Additional Closing) (each,
an “Additional Closing Notice”, and the date of an applicable Additional
Closing Notice, each an “Additional Closing Notice Date”). Each Additional
Closing Notice shall be irrevocable. Each Additional Closing Notice shall (A) certify no
Equity Conditions Failure then exists and, other than with respect to the expiration of the
applicable Additional Closing Eligibility Date and the deliverables to be delivered to each
Buyer at such Additional Closing, all the conditions to closing set forth in this Section
1(b)(ii) and Sections 6(b) and 7(b) below have been satisfied in full as of such applicable
Additional Closing Notice Date, (B) specify the proposed date of such Additional Closing
(which shall be the applicable Additional Closing Eligibility Date, subject to the right
of each Buyer, by written notice to the Company, to accelerate such applicable Additional
Closing Date to an earlier date), (C) specify the aggregate principal amount of Additional
Notes to be purchased by each Buyer at such applicable Additional Closing, which shall be
the applicable Additional Closing Maximum Amount of such applicable Buyer (or such other
amount as the Company and such Buyer shall mutually agree) (such aggregate principal amount
of Additional Notes set forth in such Additional Closing Notice to be purchased by such Buyer,
each, an “Additional Note Amount”). For the avoidance of doubt, the Company
shall not be entitled to effect an Additional Closing, if on such applicable Additional Closing
Date, there is an Equity Conditions Failure or if the Company fails to satisfy any of the
other conditions to closing herein (unless waived in writing by the applicable Buyer(s) participating
in such Additional Closing). |
(c)
Purchase Price. The aggregate purchase price for the Initial Notes to be purchased
by each Buyer at the Initial Closing (the “Initial Purchase Price”) shall
be the amount set forth opposite such Buyer’s name in column (2) on the Schedule of
Buyers. Each Buyer shall pay approximately $900 for each $1,000 of principal amount of Initial
Notes to be purchased by such Buyer at the Initial Closing. The aggregate purchase price
for the Additional Notes to be purchased by each Buyer at any given Additional Closing (each,
an “Additional Purchase Price,” and together with the Initial Purchase
Price, each, a “Purchase Price”) shall also be $900 for each $1,000 of
aggregate principal amount of Additional Notes to be issued in such Additional Closing (which,
together with the Additional Purchase Price of each prior Additional Closings, shall not
exceed the aggregate amount set forth opposite such Buyer’s name in the applicable
column on the Schedule of Buyers).
(d)
Form of Payment.
(i)
Initial Closing. On the Initial Closing Date, (A) each Buyer shall pay its respective Initial Purchase Price for the Initial Closing
(less, in the case of any Buyer, the amounts withheld pursuant to Section 4(j)) to the Company for the Initial Notes to be issued and
sold to such Buyer at the Initial Closing, by wire transfer of immediately available funds in accordance with the applicable Initial
Flow of Funds Letter (as defined below) and (B) the Company shall deliver to each Buyer an Initial Note in the aggregate original principal
amount as is set forth opposite such Buyer’s name in column (2) of the Schedule of Buyers, duly executed on behalf of the Company
and registered in the name of such Buyer or its designee.
(ii)
Additional Closings. On each Additional Closing Date, (A) each Buyer participating in such Additional Closing shall pay its respective
applicable Additional Purchase Price for such Additional Closing (less, in the case of any Buyer, the amounts withheld pursuant to Section
4(j)) to the Company for the Additional Notes to be issued and sold to such Buyer at such Additional Closing, by wire transfer of immediately
available funds with the applicable Additional Flow of Funds Letter (as defined below) and (B) the Company shall deliver to each such
applicable Buyer an Additional Note in the aggregate original principal amount as is set forth opposite such Buyer’s name in the
applicable column on the Schedule of Buyers, duly executed on behalf of the Company and registered in the name of such Buyer or its designee.
2.
BUYER’S REPRESENTATIONS AND WARRANTIES.
Each
Buyer, severally and not jointly, represents and warrants to the Company with respect to
only itself that, as of the date hereof and as of each Closing Date:
(a)
Organization; Authority. Such Buyer is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction
of its organization with the requisite power and authority to enter into and to consummate the transactions contemplated by the Transaction
Documents (as defined below) to which it is a party and otherwise to carry out its obligations hereunder and thereunder.
(b)
Validity; Enforcement. This Agreement and each of the Transaction Documents to which such Buyer is a party has been duly and validly
authorized, executed and delivered on behalf of such Buyer and shall constitute the legal, valid and binding obligations of such Buyer
enforceable against such Buyer in accordance with their respective terms, except as such enforceability may be limited by general principles
of equity or to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and other similar laws relating to, or affecting
generally, the enforcement of applicable creditors’ rights and remedies.
(c)
No Conflicts. The execution, delivery and performance by such Buyer of this Agreement and each of the Transaction Documents to
which such Buyer is a party and the consummation by such Buyer of the transactions contemplated hereby and thereby will not (i) result
in a violation of the organizational documents of such Buyer, or (ii) conflict with, or constitute a default (or an event which with
notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which such Buyer is a party, or (iii) result in a violation of any law, rule,
regulation, order, judgment or decree (including federal and state securities laws) applicable to such Buyer, except in the case of clauses
(ii) and (iii) above, for such conflicts, defaults, rights or violations which could not, individually or in the aggregate, reasonably
be expected to have a material adverse effect on the ability of such Buyer to perform its obligations hereunder.
(d)
No Group. Other than affiliates of such Buyer who are also Buyers under this Agreement, such Buyer is not under common control
with or acting in concert with any other Buyer and is not part of a “group” for purposes of the Securities Exchange Act of
1934, as amended (the “1934 Act”).
3.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The
Company represents and warrants to each of the Buyers that, as of the date hereof and as
of each Closing Date:
(a)
Organization and Qualification. Each of the Company and each of its Subsidiaries are entities duly organized and validly existing
and in good standing under the laws of the jurisdiction in which they are formed, and have the requisite power and authority to own their
properties and to carry on their business as now being conducted and as presently proposed to be conducted. Each of the Company and each
of its Subsidiaries is duly qualified as a foreign entity to do business and is in good standing (if a good standing concept exists in
such jurisdiction) in every jurisdiction in which its ownership of property or the nature of the business conducted by it makes such
qualification necessary, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected
to have a Material Adverse Effect (as defined below). As used in this Agreement, “Material Adverse Effect” means any
material adverse effect on (i) the business, properties, assets, liabilities, operations (including results thereof), condition (financial
or otherwise) or prospects of the Company or any Subsidiary, individually or taken as a whole, (ii) the transactions contemplated hereby
or in any of the other Transaction Documents or any other agreements or instruments to be entered into in connection herewith or therewith
or (iii) the authority or ability of the Company or any of its Subsidiaries to perform any of their respective obligations under any
of the Transaction Documents (as defined below). Other than the Persons (as defined below) set forth on Schedule 3(a), the Company
has no Subsidiaries. “Subsidiaries” means any Person in which the Company, directly or indirectly, (I) owns any of
the outstanding share capital or holds any equity or similar interest of such Person or (II) controls or operates all or any part of
the business, operations or administration of such Person, and each of the foregoing, is individually referred to herein as a “Subsidiary.”
(b)
Authorization; Enforcement; Validity. The Company has the requisite power and authority
to enter into and perform its obligations under this Agreement and the other Transaction
Documents and to issue the Securities in accordance with the terms hereof and thereof. The
execution and delivery of this Agreement and the other Transaction Documents by the Company,
and the consummation by the Company of the transactions contemplated hereby and thereby (including,
without limitation, the issuance of the Notes and the reservation for issuance and issuance
of the Conversion Shares issuable upon conversion of the Notes) have been duly authorized
by the Company’s board of directors or other governing body, as applicable, and (other
than (i) the filing with the SEC of (A) the applicable 6-K Filing (as defined below), (B)
a prospectus supplement in connection with the applicable Closing as required by the Registration
Statement pursuant to Rule 424(b) under the 1933 Act (the “Prospectus Supplement”)
supplementing the base prospectus forming part of the Registration Statement, (C) the filing
of an additional listing application with the Principal Market and (D) any other filings
as may be required by any state securities agencies (the “Required Approvals”)
and no further filing, consent or authorization is required by the Company, its Subsidiaries,
their respective boards of directors or their shareholders or other governing body. This
Agreement has been, and the other Transaction Documents to which it is a party will be prior
to such Closing, duly executed and delivered by the Company, and each constitutes the legal,
valid and binding obligations of the Company, enforceable against the Company in accordance
with its respective terms, except as such enforceability may be limited by general principles
of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or
similar laws relating to, or affecting generally, the enforcement of applicable creditors’
rights and remedies and except as rights to indemnification and to contribution may be limited
by federal or state securities law. “Transaction Documents” means, collectively,
this Agreement, the Notes, the Irrevocable Transfer Agent Instructions (as defined below),
the Leak-Out Agreement (as defined below) and each of the other agreements and instruments
entered into or delivered by any of the parties hereto in connection with the transactions
contemplated hereby and thereby, as may be amended from time to time.
(c)
Issuance of Securities; Registration Statement. The issuance of the Notes are duly authorized and upon issuance in accordance
with the terms of the Transaction Documents shall be validly issued, fully paid and non-assessable and free from all preemptive or similar
rights, mortgages, defects, claims, liens, pledges, charges, taxes, rights of first refusal, encumbrances, security interests and other
encumbrances (collectively “Liens”) with respect to the issuance thereof. As of the applicable Closing, the Company
shall have reserved from its duly authorized share capital not less than 100% of the sum of the maximum number of Conversion Shares issuable
upon conversion of the Notes (assuming for purposes hereof that (w) all Additional Notes issuable hereunder shall have been issued at
an Additional Closing on the Initial Closing Date, (x) the Notes are convertible at the Floor Price (as defined in the Notes), (y) interest
on the Notes shall accrue through the third (3rd) anniversary of the Initial Closing Date and will be converted in Ordinary
Shares at a conversion price equal to the Floor Price and (z) any such conversion shall not take into account any limitations on the
conversion of the Notes set forth in the Notes). Upon issuance or conversion in accordance with the Notes, the Conversion Shares, when
issued, will be validly issued, fully paid and nonassessable and free from all preemptive or similar rights or Liens with respect to
the issue thereof, with the holders being entitled to all rights accorded to a holder of Ordinary Shares. The issuance by the Company
of the Securities has been registered under the 1933 Act, the Securities are being issued pursuant to the Registration Statement and
all of the Securities are freely transferable and freely tradable by each of the Buyers without restriction, whether by way of registration
or some exemption therefrom. The Registration Statement is effective and available for the issuance of the Securities thereunder and
the Company has not received any notice that the SEC has issued or intends to issue a stop-order with respect to the Registration Statement
or that the SEC otherwise has suspended or withdrawn the effectiveness of the Registration Statement, either temporarily or permanently,
or intends or has threatened in writing to do so. The “Plan of Distribution” section under the Registration Statement permits
the issuance and sale of the Securities hereunder and as contemplated by the other Transaction Documents. Upon receipt of the Securities,
each of the Buyers will have good and marketable title to the Securities. The Registration Statement and any prospectus included therein,
including the Prospectus and the Prospectus Supplement, complied in all material respects with the requirements of the 1933 Act, the
1934 Act and the rules and regulations of the SEC promulgated thereunder and all other applicable laws and regulations. The Company meets
all of the requirements for the use of Form F-3 under the 1933 Act for the offering and sale of the Securities contemplated by this Agreement
and the other Transaction Documents, and the SEC has not notified the Company of any objection to the use of the form of the Registration
Statement pursuant to Rule 401(g)(1) under the 1933 Act. The Registration Statement meets the requirements set forth in Rule 415(a)(1)(x)
under the 1933 Act. At the earliest time after the filing of the Registration Statement that the Company or another offering participant
made a bona fide offer (within the meaning of Rule 164(h)(2) under the 1933 Act) relating to any of the Securities, the Company was not
and is not an “Ineligible Issuer” (as defined in Rule 405 under the 1933 Act). The Registration Statement has been filed
with the SEC not earlier than three years prior to the date hereof; and no notice of objection of the SEC to the use of such registration
statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the 1933 Act has been received by the Company. No
order suspending the effectiveness of the Registration Statement has been issued by the SEC and no proceeding for that purpose or pursuant
to Section 8A of the 1933 Act against the Company or related to the offering has been initiated or threatened by the SEC; as of the effective
time of the Registration Statement, the Registration Statement complied and will comply in all material respects with the 1933 Act and
did not contain and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement
thereto and as of such applicable Closing Date, the Prospectus did not and will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that the Company makes no representation and warranty with
respect to any statements or omissions in the Registration Statement and the Prospectus and any amendment or supplement thereto made
in reliance upon and in conformity with information relating to any underwriter or placement agent furnished to the Company in writing
by such underwriter or placement agent expressly for use therein. The Company (i) has not distributed any offering material in connection
with the offer or sale of any of the Securities and (ii) until no Buyer holds any of the Securities, shall not distribute any offering
material in connection with the offer or sale of any of the Securities to, or by, any of the Buyers (if required), in each case, other
than the Registration Statement, the Prospectus or the Prospectus Supplement. The offering of the Securities has been registered with
the SEC on Form F-3 under the 1933 Act , and the Securities are being offered pursuant to Rule 415 promulgated under the 1933 Act.
(d)
No Conflicts. The execution, delivery and performance of the Transaction Documents by the Company and the consummation by the
Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Notes, the Conversion
Shares and the reservation for issuance of the Conversion Shares) will not (i) result in a violation of the certificate of incorporation,
as may be amended from time to time, of the Company, the Memorandum and Articles of Association (as defined below), or the certificate
of formation, memorandum of association, articles of association, bylaws or other organizational documents of the Company, or any share
capital or other securities of the Company, (ii) conflict with, or constitute a default (or an event which with notice or lapse of time
or both would become a default) in any respect under, or give to others any rights of termination, amendment, acceleration or cancellation
of, any agreement, indenture or instrument to which the Company is a party, or (iii) result in a violation of any law, rule, regulation,
order, judgment or decree (including, without limitation, foreign, federal and state securities laws and regulations and the rules and
regulations of the Nasdaq Capital Market (the “Principal Market”) and including all applicable foreign, federal and
state laws, rules and regulations, including, without limitation, the laws, rules and regulations of the Cayman Islands applicable to
the Company or by which any property or asset of the Company is bound or affected).
(e)
Consents. Neither the Company nor any Subsidiary is required to obtain any consent
from, authorization or order of, or make any filing or registration with (other than the
Required Approvals), any Governmental Entity (as defined below) or any regulatory or self-regulatory
agency or any other Person in order for it to execute, deliver or perform any of its respective
obligations under or contemplated by the Transaction Documents, in each case, in accordance
with the terms hereof or thereof. All consents, authorizations, orders, filings and registrations
which the Company or any Subsidiary is required to obtain pursuant to the preceding sentence
have been or will be obtained or effected on or prior to such Closing Date, and neither the
Company nor any of its Subsidiaries are aware of any facts or circumstances which might prevent
the Company or any of its Subsidiaries from obtaining or effecting any of the registration,
application or filings contemplated by the Transaction Documents. The Company is not in violation
of the requirements of the Principal Market and has no knowledge of any facts or circumstances
which could reasonably lead to delisting or suspension of the Ordinary Shares in the foreseeable
future. “Governmental Entity” means any nation, state, county, city, town,
village, district, or other political jurisdiction of any nature, federal, state, local,
municipal, foreign, or other government, governmental or quasi-governmental authority of
any nature (including any governmental agency, branch, department, official, or entity and
any court or other tribunal), multi-national organization or body; or body exercising, or
entitled to exercise, any administrative, executive, judicial, legislative, police, regulatory,
or taxing authority or power of any nature or instrumentality of any of the foregoing, including
any entity or enterprise owned or controlled by a government or a public international organization
or any of the foregoing.
(f)
Acknowledgment Regarding Buyer’s Purchase of Securities. The Company acknowledges and agrees that each Buyer is acting solely
in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated hereby
and thereby and that no Buyer is (i) an officer or director of the Company or any of its Subsidiaries, (ii) an “affiliate”
(as defined in Rule 144) of the Company or any of its Subsidiaries or (iii) to its knowledge, a “beneficial owner” of more
than 10% of the Ordinary Shares (as defined for purposes of Rule 13d-3 of the 1934 Act). The Company further acknowledges that no Buyer
is acting as a financial advisor or fiduciary of the Company or any of its Subsidiaries (or in any similar capacity) with respect to
the Transaction Documents and the transactions contemplated hereby and thereby, and any advice given by a Buyer or any of its representatives
or agents in connection with the Transaction Documents and the transactions contemplated hereby and thereby is merely incidental to such
Buyer’s purchase of the Securities. The Company further represents to each Buyer that the Company’s and each Subsidiary’s
decision to enter into the Transaction Documents to which it is a party has been based solely on the independent evaluation by the Company,
each Subsidiary and their respective representatives.
(g)
Placement Agent’s Fees. The Company shall be responsible for the payment of
any placement agent’s fees, financial advisory fees, or brokers’ commissions
(other than for Persons engaged by any Buyer or its investment advisor) relating to or arising
out of the transactions contemplated hereby in connection with the sale of the Securities.
The Company shall pay, and hold each Buyer harmless against, any liability, loss or expense
(including, without limitation, attorney’s fees and out-of-pocket expenses) arising
in connection with any such claim. Neither the Company nor any of its Subsidiaries has engaged
any placement agent or other agent in connection with the offer or sale of the Securities.
(h)
No Integrated Offering. None of the Company, its Subsidiaries or any of their affiliates,
nor any Person acting on their behalf has, directly or indirectly, made any offers or sales
of any security or solicited any offers to buy any security, under circumstances that would
cause this offering of the Securities to require approval of shareholders of the Company
under any applicable shareholder approval provisions, including, without limitation, under
the rules and regulations of any exchange or automated quotation system on which any of the
securities of the Company are listed or designated for quotation. None of the Company, its
Subsidiaries, their affiliates nor any Person acting on their behalf will take any action
or steps that would cause the offering of any of the Securities to be integrated with other
offerings of securities of the Company.
(i)
Dilutive Effect. The Company understands and acknowledges that the number of Conversion Shares will increase in certain circumstances.
The Company further acknowledges that its obligation to issue the Conversion Shares pursuant to the terms of the Notes in accordance
with this Agreement and the Notes, is absolute and unconditional regardless of the dilutive effect that such issuance may have on the
ownership interests of other shareholders of the Company.
(j)
Application of Takeover Protections; Rights Agreement. The Company and its board of directors have taken all necessary action,
if any, in order to render inapplicable any control share acquisition, interested shareholder, business combination, poison pill (including,
without limitation, any distribution under a rights agreement), shareholder rights plan or other similar anti-takeover provision under
the Memorandum and Articles of Association or the laws of the jurisdiction of its incorporation or otherwise which is or could become
applicable to any Buyer as a result of the transactions contemplated by this Agreement, including, without limitation, the Company’s
issuance of the Securities and any Buyer’s ownership of the Securities. The Company has no shareholder rights plan or similar arrangement
relating to accumulations of beneficial ownership of Ordinary Shares or a change in control of the Company or any of its Subsidiaries.
(k)
SEC Documents; Financial Statements. During the two (2) years prior to the date hereof, the Company has timely filed all reports,
schedules, forms, proxy statements, statements and other documents required to be filed by it with the SEC (other than Section 16 ownership
filings) pursuant to the reporting requirements of the 1934 Act (all of the foregoing filed prior to the date hereof and all exhibits
and appendices included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein
being hereinafter referred to as the “SEC Documents”). The Company has delivered or has made available to the Buyers
or their respective representatives true, correct and complete copies of each of the SEC Documents not available on the EDGAR system.
As of their respective dates, the SEC Documents complied in all material respects with the requirements of the 1934 Act and the rules
and regulations of the SEC promulgated thereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were
filed with the SEC, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. As
of their respective dates, the financial statements of the Company included in the SEC Documents complied in all material respects with
applicable accounting requirements and the published rules and regulations of the SEC with respect thereto as in effect as of the time
of filing. Such financial statements have been prepared in accordance with generally accepted accounting principles (“GAAP”),
consistently applied, during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes
thereto, or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary
statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results
of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments
which will not be material, either individually or in the aggregate). The reserves, if any, established by the Company or the lack of
reserves, if applicable, are reasonable based upon facts and circumstances known by the Company on the date hereof and there are no loss
contingencies that are required to be accrued by the Statement of Financial Accounting Standard No. 5 of the Financial Accounting Standards
Board which are not provided for by the Company in its financial statements or otherwise. No other information provided by or on behalf
of the Company to any of the Buyers which is not included in the SEC Documents (including, without limitation, information in the disclosure
schedules to this Agreement) contains any untrue statement of a material fact or omits to state any material fact necessary in order
to make the statements therein not misleading, in the light of the circumstance under which they are or were made. The Company is not
currently contemplating to amend or restate any of the financial statements (including, without limitation, any notes or any letter of
the independent accountants of the Company with respect thereto) included in the SEC Documents (the “Financial Statements”),
nor is the Company currently aware of facts or circumstances which would require the Company to amend or restate any of the Financial
Statements, in each case, in order for any of the Financials Statements to be in material compliance with GAAP and the rules and regulations
of the SEC. The Company has not been informed by its independent auditors that they recommend that the Company amend or restate any of
the Financial Statements or that there is any need for the Company to amend or restate any of the Financial Statements.
(l)
Absence of Certain Changes. Since the date of the Company’s most recent audited
financial statements contained in a Form 20-F, there has been no material adverse change
and no material adverse development in the business, assets, liabilities, properties, operations
(including results thereof), condition (financial or otherwise) or prospects of the Company
or any of its Subsidiaries. Since the date of the Company’s most recent audited financial
statements contained in a Form 20-F, neither the Company nor any of its Subsidiaries has
(i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate,
outside of the ordinary course of business or (iii) made any capital expenditures, individually
or in the aggregate, outside of the ordinary course of business. Neither the Company nor
any of its Subsidiaries has taken any steps to seek protection pursuant to any law or statute
relating to bankruptcy, insolvency, reorganization, receivership, liquidation or winding
up, nor does the Company or any Subsidiary have any knowledge or reason to believe that any
of their respective creditors intend to initiate involuntary bankruptcy proceedings or any
actual knowledge of any fact which would reasonably lead a creditor to do so. The Company
and its Subsidiaries, individually and on a consolidated basis, are not as of the date hereof,
and after giving effect to the transactions contemplated hereby to occur at such Closing,
will not be Insolvent (as defined below). For purposes of this Section 3(l), “Insolvent”
means, (i) with respect to the Company and its Subsidiaries, on a consolidated basis, (A)
the present fair saleable value of the Company’s and its Subsidiaries’ assets
is less than the amount required to pay the Company’s and its Subsidiaries’ total
Indebtedness (as defined below), (B) the Company and its Subsidiaries are unable to pay their
debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities
become absolute and matured or (C) the Company and its Subsidiaries intend to incur or believe
that they will incur debts that would be beyond their ability to pay as such debts mature;
and (ii) with respect to the Company and each Subsidiary, individually, (A) the present fair
saleable value of the Company’s or such Subsidiary’s (as the case may be) assets
is less than the amount required to pay its respective total Indebtedness, (B) the Company
or such Subsidiary (as the case may be) is unable to pay its respective debts and liabilities,
subordinated, contingent or otherwise, as such debts and liabilities become absolute and
matured or (C) the Company or such Subsidiary (as the case may be) intends to incur or believes
that it will incur debts that would be beyond its respective ability to pay as such debts
mature. Neither the Company nor any of its Subsidiaries has engaged in any business or in
any transaction, and is not about to engage in any business or in any transaction, for which
the Company’s or such Subsidiary’s remaining assets constitute unreasonably small
capital with which to conduct the business in which it is engaged as such business is now
conducted and is proposed to be conducted.
(m)
No Undisclosed Events, Liabilities, Developments or Circumstances. No event, liability, development or circumstance has occurred
or exists, or is reasonably expected to exist or occur with respect to the Company, any of its Subsidiaries or any of their respective
businesses, properties, liabilities, prospects, operations (including results thereof) or condition (financial or otherwise), that (i)
would be required to be disclosed by the Company under applicable securities laws on a registration statement on Form F-1 filed with
the SEC relating to an issuance and sale by the Company of its Ordinary Shares and which has not been publicly announced, (ii) could
have a material adverse effect on any Buyer’s investment hereunder or (iii) could have a Material Adverse Effect.
(n)
Conduct of Business; Regulatory Permits. Neither the Company nor any of its Subsidiaries is in violation of any term of or in
default under its Memorandum and Articles of Association, any certificate of designation, preferences or rights of any other outstanding
series of preferred shares of the Company or any of its Subsidiaries, or its organizational charter, certificate of formation, memorandum
of association, articles of association, certificate of incorporation or bylaws, as applicable. Neither the Company nor any of its Subsidiaries
is in violation of any judgment, decree or order or any statute, ordinance, rule or regulation applicable to the Company or any of its
Subsidiaries, and neither the Company nor any of its Subsidiaries will conduct its business in violation of any of the foregoing, except
in all cases for possible violations which could not, individually or in the aggregate, have a Material Adverse Effect. Without limiting
the generality of the foregoing, the Company is not in violation of any of the rules, regulations or requirements of the Principal Market
and has no knowledge of any facts or circumstances that could reasonably lead to delisting or suspension of the Ordinary Shares by the
Principal Market in the foreseeable future. During the two (2) years prior to the date hereof, (i) the Ordinary Shares has been listed
or designated for quotation on the Principal Market, (ii) trading in the Ordinary Shares has not been suspended by the SEC or the Principal
Market and (iii) the Company has received no communication, written or oral, from the SEC or the Principal Market regarding the suspension
or delisting of the Ordinary Shares from the Principal Market. The Company and each of its Subsidiaries possess all certificates, authorizations
and permits issued by the appropriate regulatory authorities necessary to conduct their respective businesses, except where the failure
to possess such certificates, authorizations or permits would not have, individually or in the aggregate, a Material Adverse Effect,
and neither the Company nor any such Subsidiary has received any notice of proceedings relating to the revocation or modification of
any such certificate, authorization or permit. There is no agreement, commitment, judgment, injunction, order or decree binding upon
the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries is a party which has or would reasonably be
expected to have the effect of prohibiting or materially impairing any business practice of the Company or any of its Subsidiaries, any
acquisition of property by the Company or any of its Subsidiaries or the conduct of business by the Company or any of its Subsidiaries
as currently conducted other than such effects, individually or in the aggregate, which have not had and would not reasonably be expected
to have a Material Adverse Effect on the Company or any of its Subsidiaries.
(o)
Foreign Corrupt Practices. Neither the Company, the Company’s subsidiary or any director, officer, agent, employee, nor
any other person acting for or on behalf of the foregoing (individually and collectively, a “Company Affiliate”) have
violated the U.S. Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”), or any other applicable anti-bribery
or anti-corruption laws, nor has any Company Affiliate offered, paid, promised to pay, or authorized the payment of any money, or offered,
given, promised to give, or authorized the giving of anything of value, to any officer, employee or any other person acting in an official
capacity for any Governmental Entity to any political party or official thereof or to any candidate for political office (individually
and collectively, a “Government Official”) or to any person under circumstances where such Company Affiliate knew
or was aware of a high probability that all or a portion of such money or thing of value would be offered, given or promised, directly
or indirectly, to any Government Official, for the purpose of:
(i)
(A) influencing any act or decision of such Government Official in his/her official capacity, (B) inducing such Government Official to
do or omit to do any act in violation of his/her lawful duty, (C) securing any improper advantage, or (D) inducing such Government Official
to influence or affect any act or decision of any Governmental Entity, or
(ii)
assisting the Company or its Subsidiaries in obtaining or retaining business for or with, or directing business to, the Company or its
Subsidiaries.
(p)
Sarbanes-Oxley Act. The Company and each Subsidiary is in material compliance with any and all applicable requirements of the
Sarbanes-Oxley Act of 2002, as amended, and any and all applicable rules and regulations promulgated by the SEC thereunder.
(q)
Transactions With Affiliates. Except as disclosed in the SEC Documents, no current or former employee, partner, director, officer
or shareholder (direct or indirect) of the Company or its Subsidiaries, or any associate, or, to the knowledge of the Company, any affiliate
of any thereof, or any relative with a relationship no more remote than first cousin of any of the foregoing, is presently, or has ever
been, (i) a party to any transaction with the Company or its Subsidiaries (including any contract, agreement or other arrangement providing
for the furnishing of services by, or rental of real or personal property from, or otherwise requiring payments to, any such director,
officer or shareholder or such associate or affiliate or relative Subsidiaries (other than for ordinary course services as employees,
officers or directors of the Company or any of its Subsidiaries)) or (ii) the direct or indirect owner of an interest in any corporation,
firm, association or business organization which is a competitor, supplier or customer of the Company or its Subsidiaries (except for
a passive investment (direct or indirect) in less than 5% of the common equity of a company whose securities are traded on or quoted
through an Eligible Market (defined below), nor does any such Person receive income from any source other than the Company or its Subsidiaries
which relates to the business of the Company or its Subsidiaries or should properly accrue to the Company or its Subsidiaries. No employee,
officer, shareholder or director of the Company or any of its Subsidiaries or member of his or her immediate family is indebted to the
Company or its Subsidiaries, as the case may be, nor is the Company or any of its Subsidiaries indebted (or committed to make loans or
extend or guarantee credit) to any of them, other than (i) for payment of salary for services rendered, (ii) reimbursement for reasonable
expenses incurred on behalf of the Company, and (iii) for other standard employee benefits made generally available to all employees
or executives (including share option agreements outstanding under any share option plan approved by the Board of Directors of the Company).
(r)
Equity Capitalization.
(i)
Definitions:
(A)
“Ordinary Shares” means (x) the Company’s Class A ordinary shares, $0.0001 par value per share, and (y) any
share capital into which such ordinary shares shall have been changed or any share capital resulting from a reclassification of such
ordinary shares.
(ii)
Authorized and Outstanding Share Capital. As of the date hereof, the authorized share capital of the Company consists of (i) 300,000,000
Ordinary Shares, of which, 179,180,431 Ordinary Shares are issued and outstanding and 0 Ordinary Shares are reserved for issuance pursuant
to Convertible Securities (as defined below) (other than the Notes) exercisable or exchangeable for, or convertible into, Ordinary Shares,
and (ii) 200,000,000 Class B ordinary shares, $0.0001 par value per share, of which, 3,786,960 shares are issued and outstanding. “Convertible
Securities” means any share capital or other security of the Company or any of its Subsidiaries that is at any time and under
any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof
to acquire, any share capital or other security of the Company (including, without limitation, Ordinary Shares) or any of its Subsidiaries.
(iii)
Valid Issuance; Available Shares; Affiliates. All of such outstanding shares are duly authorized and have been, or upon issuance
will be, validly issued and are fully paid and nonassessable. Schedule 3(r)(iii) sets forth the number of Ordinary Shares that
are (A) reserved for issuance pursuant to Convertible Securities (as defined below) (other than the Notes) and (B) that are, as of the
date hereof, owned by Persons who are “affiliates” (as defined in Rule 405 of the 1933 Act and calculated based on the assumption
that only officers, directors and holders of at least 10% of the Company’s issued and outstanding Ordinary Shares are “affiliates”
without conceding that any such Persons are “affiliates” for purposes of federal securities laws) of the Company or any of
its Subsidiaries. To the Company’s knowledge, no Person owns 10% or more of the Company’s issued and outstanding Ordinary
Shares (calculated based on the assumption that all Convertible Securities (as defined below), whether or not presently exercisable or
convertible, have been fully exercised or converted (as the case may be) taking account of any limitations on exercise or conversion
(including “blockers”) contained therein without conceding that such identified Person is a 10% shareholder for purposes
of federal securities laws).
(iv)
Existing Securities; Obligations. Except as disclosed in the SEC Documents: (A) none of the Company’s or any Subsidiary’s
shares, interests or share capital is subject to preemptive rights or any other similar rights or Liens suffered or permitted by the
Company or any Subsidiary; (B) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares, interests
or share capital of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company
or any of its Subsidiaries is or may become bound to issue additional shares, interests or share capital of the Company or any of its
Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities
or rights convertible into, or exercisable or exchangeable for, any shares, interests or share capital of the Company or any of its Subsidiaries;
(C) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any
of their securities under the 1933 Act (except pursuant to this Agreement); (D) there are no outstanding securities or instruments of
the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings
or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of
its Subsidiaries; (E) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by
the issuance of the Securities; and (F) neither the Company nor any Subsidiary has any share appreciation rights or “phantom share”
plans or agreements or any similar plan or agreement.
(v)
Organizational Documents. The Company has furnished to the Buyers true, correct and complete copies of the Company’s certificate
of incorporation, as amended and as in effect on the date hereof, and the Company’s memorandum and articles of association, as
amended and as in effect on the date hereof (the “Memorandum and Articles of Association”), and the terms of all Convertible
Securities and the material rights of the holders thereof in respect thereto.
(s)
Indebtedness and Other Contracts. Neither the Company nor any of its Subsidiaries, (i) except as disclosed in the SEC Documents
or Schedule 3(s) (provided, that Schedule 3(s) shall, in any event, include a list of all applicable documents disclosed
in the SEC Documents), has any outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents
or instruments evidencing Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is
or may become bound, (ii) is a party to any contract, agreement or instrument, the violation of which, or default under which, by the
other party(ies) to such contract, agreement or instrument could reasonably be expected to result in a Material Adverse Effect, (iii)
has any financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (iv)
is in violation of any term of, or in default under, any contract, agreement or instrument relating to any Indebtedness, except where
such violations and defaults would not result, individually or in the aggregate, in a Material Adverse Effect, or (v) is a party to any
contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s officers,
has or is expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries have any liabilities or obligations
required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary
course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or
could not have a Material Adverse Effect. For purposes of this Agreement: (x) “Indebtedness” of any Person means,
without duplication (A) all indebtedness for borrowed money, (B) all obligations issued, undertaken or assumed as the deferred purchase
price of property or services (including, without limitation, “capital leases” in accordance with GAAP) (other than trade
payables entered into in the ordinary course of business consistent with past practice), (C) all reimbursement or payment obligations
with respect to letters of credit, surety bonds and other similar instruments, (D) all obligations evidenced by notes, bonds, debentures
or similar instruments, including obligations so evidenced incurred in connection with the acquisition of property, assets or businesses,
(E) all indebtedness created or arising under any conditional sale or other title retention agreement, or incurred as financing, in either
case with respect to any property or assets acquired with the proceeds of such indebtedness (even though the rights and remedies of the
seller or bank under such agreement in the event of default are limited to repossession or sale of such property), (F) all monetary obligations
under any leasing or similar arrangement which, in connection with GAAP, consistently applied for the periods covered thereby, is classified
as a capital lease, (G) all indebtedness referred to in clauses (A) through (F) above secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien upon or in any property or assets (including accounts and
contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for
the payment of such indebtedness, and (H) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds
referred to in clauses (A) through (G) above; (y) “Contingent Obligation” means, as to any Person, any direct or indirect
liability, contingent or otherwise, of that Person with respect to any Indebtedness, lease, dividend or other obligation of another Person
if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the
obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with,
or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto and (z) “Person”
means an individual, limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization,
any other entity and any Governmental Entity or any department or agency thereof.
(t)
Litigation. There is no action, suit, arbitration, proceeding, inquiry or investigation before or by the Principal Market, any
court, public board, other Governmental Entity, self-regulatory organization or body pending or, to the knowledge of the Company, threatened
against or affecting the Company or any of its Subsidiaries, the Ordinary Shares or any of the Company’s or its Subsidiaries’
officers or directors, whether of a civil or criminal nature or otherwise, in their capacities as such, which is outside of the ordinary
course of business or individually or in the aggregate material to the Company or any of its Subsidiaries. No director, officer or employee
of the Company or any of its subsidiaries has willfully violated 18 U.S.C. §1519 or engaged in spoliation in reasonable anticipation
of litigation. Without limitation of the foregoing, there has not been, and to the knowledge of the Company, there is not pending or
contemplated, any investigation by the SEC involving the Company, any of its Subsidiaries or any current or former director or officer
of the Company or any of its Subsidiaries. The SEC has not issued any stop order or other order suspending the effectiveness of any registration
statement filed by the Company under the 1933 Act or the 1934 Act, including, without limitation, the Registration Statement. After reasonable
inquiry of its employees, the Company is not aware of any fact which might result in or form the basis for any such action, suit, arbitration,
investigation, inquiry or other proceeding. Neither the Company nor any of its Subsidiaries is subject to any order, writ, judgment,
injunction, decree, determination or award of any Governmental Entity.
(u)
Insurance. The Company any each of its Subsidiaries are insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as management of the Company believes to be prudent and customary in the businesses in which the
Company and its Subsidiaries are engaged. Neither the Company nor any such Subsidiary has been refused any insurance coverage sought
or applied for, and neither the Company nor any such Subsidiary has any reason to believe that it will be unable to renew its existing
insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue
its business at a cost that would not have a Material Adverse Effect.
(v)
Employee Relations. Neither the Company nor any of its Subsidiaries is a party to any collective bargaining agreement or employs
any member of a union. The Company and its Subsidiaries believe that their relations with their employees are good. No executive officer
(as defined in Rule 501(f) promulgated under the 1933 Act) or other key employee of the Company or any of its Subsidiaries has notified
the Company or any such Subsidiary that such officer intends to leave the Company or any such Subsidiary or otherwise terminate such
officer’s employment with the Company or any such Subsidiary. No current (or former) executive officer or other key employee of
the Company or any of its Subsidiaries is, or is now expected to be, in violation of any material term of any employment contract, confidentiality,
disclosure or proprietary information agreement, non-competition agreement, or any other contract or agreement or any restrictive covenant,
and the continued employment of each such executive officer or other key employee (as the case may be) does not subject the Company or
any of its Subsidiaries to any liability with respect to any of the foregoing matters. The Company and its Subsidiaries are in compliance
with all federal, state, local and foreign laws and regulations respecting labor, employment and employment practices and benefits, terms
and conditions of employment and wages and hours, except where failure to be in compliance would not, either individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect.
(w)
Title.
(i)
Real Property. Each of the Company and its Subsidiaries holds good title to, or a valid leasehold interest in, all real property,
leases in real property, facilities or other interests in real property owned or held by the Company or any of its Subsidiaries (the
“Real Property”) owned by the Company or any of its Subsidiaries (as applicable). The Real Property is free and clear
of all Liens and is not subject to any rights of way, building use restrictions, exceptions, variances, reservations, or limitations
of any nature except for (a) Liens for current taxes not yet due and (b) zoning laws and other land use restrictions that do not impair
the present or anticipated use of the property subject thereto. Any Real Property held under lease by the Company or any of its Subsidiaries
are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the
use made and proposed to be made of such property and buildings by the Company or any of its Subsidiaries.
(ii)
Fixtures and Equipment. Each of the Company and its Subsidiaries (as applicable) has
good title to, or a valid leasehold interest in, the tangible personal property, equipment,
improvements, fixtures, and other personal property and appurtenances that are used by the
Company or its Subsidiary in connection with the conduct of its business (the “Fixtures
and Equipment”). The Fixtures and Equipment are structurally sound, are in good
operating condition and repair, are adequate for the uses to which they are being put, are
not in need of maintenance or repairs except for ordinary, routine maintenance and repairs
and are sufficient for the conduct of the Company’s and/or its Subsidiaries’
businesses (as applicable) in the manner as conducted prior to the Initial Closing. Each
of the Company and its Subsidiaries owns all of its Fixtures and Equipment free and clear
of all Liens except for (a) liens for current taxes not yet due and (b) zoning laws and other
land use restrictions that do not impair the present or anticipated use of the property subject
thereto.
(x)
Intellectual Property Rights. The Company and its Subsidiaries own or possess adequate rights or licenses to use all trademarks,
trade names, service marks, service mark registrations, service names, original works of authorship, patents, patent rights, copyrights,
inventions, licenses, approvals, governmental authorizations, trade secrets and other intellectual property rights and all applications
and registrations therefor (“Intellectual Property Rights”) necessary to conduct their respective businesses as now
conducted and presently proposed to be conducted. Each of the patents owned by the Company or any of its Subsidiaries is listed on Schedule
3(x)(i). Except as set forth in Schedule 3(x)(ii), none of the Company’s Intellectual Property Rights have expired or
terminated or have been abandoned or are expected to expire or terminate or are expected to be abandoned, within three years from the
date of this Agreement. The Company does not have any knowledge of any infringement by the Company or its Subsidiaries of Intellectual
Property Rights of others. There is no claim, action or proceeding being made or brought, or to the knowledge of the Company or any of
its Subsidiaries, being threatened, against the Company or any of its Subsidiaries regarding its Intellectual Property Rights. Neither
the Company nor any of its Subsidiaries is aware of any facts or circumstances which might give rise to any of the foregoing infringements
or claims, actions or proceedings. The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality
and value of all of their Intellectual Property Rights.
(y)
Environmental Laws. (i) The Company and its Subsidiaries (A) are in compliance with any and all Environmental Laws (as defined
below), (B) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their
respective businesses and (C) are in compliance with all terms and conditions of any such permit, license or approval, except where,
in each of the foregoing clauses (A), (B) and (C), the failure to so comply could or have such permits, licenses or other approval, as
applicable, would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The term “Environmental
Laws” means all federal, state, local or foreign laws relating to pollution or protection of human health or the environment
(including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata), including, without limitation,
laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, or toxic or hazardous
substances or wastes (collectively, “Hazardous Materials”) into the environment, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, as well as all authorizations,
codes, decrees, demands or demand letters, injunctions, judgments, licenses, notices or notice letters, orders, permits, plans or regulations
issued, entered, promulgated or approved thereunder.
(ii)
No Hazardous Materials:
(A)
have been disposed of or otherwise released from any Real Property of the Company or any of its Subsidiaries in violation of any Environmental
Laws; or
(B)
are present on, over, beneath, in or upon any Real Property or any portion thereof in quantities that would constitute a violation of
any Environmental Laws. No prior use by the Company or any of its Subsidiaries of any Real Property has occurred that violates any Environmental
Laws, which violation would have a material adverse effect on the business of the Company or any of its Subsidiaries.
(iii)
Neither the Company nor any of its Subsidiaries knows of any other person who or entity which has stored, treated, recycled, disposed
of or otherwise located on any Real Property any Hazardous Materials, including, without limitation, such substances as asbestos and
polychlorinated biphenyls.
(iv)
None of the Real Properties are on any federal or state “Superfund” list or Liability Information System (“CERCLIS”)
list or any state environmental agency list of sites under consideration for CERCLIS, nor subject to any environmental related Liens.
(z)
Subsidiary Rights. The Company or one of its Subsidiaries has the unrestricted right to vote, and (subject to limitations imposed
by applicable law) to receive dividends and distributions on, all capital securities of its Subsidiaries as owned by the Company or such
Subsidiary.
(aa)
Tax Status. The Company and each of its Subsidiaries (i) has timely made or filed all foreign, federal and state income and all
other tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has timely paid all taxes and other
governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports and declarations,
except those being contested in good faith and (iii) has set aside on its books provision reasonably adequate for the payment of all
taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material
amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company and its Subsidiaries know of no
basis for any such claim. The Company is not operated in such a manner as to qualify as a passive foreign investment company, as defined
in Section 1297 of the Internal Revenue Code of 1986, as amended (the “Code”). The net operating loss carryforwards
(“NOLs”) for United States federal income tax purposes of the consolidated group of which the Company is the common
parent, if any, shall not be adversely effected by the transactions contemplated hereby. The transactions contemplated hereby do not
constitute an “ownership change” within the meaning of Section 382 of the Code, thereby preserving the Company’s ability
to utilize such NOLs.
(bb)
Internal Accounting and Disclosure Controls. The Company and its 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 1934 Act Rules 13a-15(e) and 15d-15(e)) for the Company and its 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 1934 Act is
recorded, processed, summarized and reported, within the time periods specified in the Securities and Exchange Commission’s rules
and forms. The Company’s certifying officers have evaluated the effectiveness of the disclosure controls and procedures of the
Company and its Subsidiaries as of the end of the period covered by the most recently filed periodic report under the 1934 Act (such
date, the “Evaluation Date”). The Company presented in its most recently filed periodic report under the 1934 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 1934 Act) of the Company and its Subsidiaries that have materially affected, or is reasonably likely to materially
affect, the internal control over financial reporting of the Company and its Subsidiaries.
(cc)
Off Balance Sheet Arrangements. There is no transaction, arrangement, or other relationship between the Company or any of its
Subsidiaries and an unconsolidated or other off balance sheet entity that is required to be disclosed by the Company in its 1934 Act
filings and is not so disclosed or that otherwise could be reasonably likely to have a Material Adverse Effect.
(dd)
Investment Company Status. The Company is not, and upon consummation of the sale of the Securities will not be, an “investment
company,” an affiliate of an “investment company,” a company controlled by an “investment company” or an
“affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”
as such terms are defined in the Investment Company Act of 1940, as amended.
(ee)
Acknowledgement Regarding Buyers’ Trading Activity. It is understood and acknowledged
by the Company that (i) following the public disclosure of the transactions contemplated
by the Transaction Documents, in accordance with the terms thereof, except as provided in
the Leak-Out Agreements, none of the Buyers have been asked by the Company or any of its
Subsidiaries to agree, nor has any Buyer agreed with the Company or any of its Subsidiaries,
to desist from effecting any transactions in or with respect to (including, without limitation,
purchasing or selling, long and/or short) any securities of the Company, or “derivative”
securities based on securities issued by the Company or to hold any of the Securities for
any specified term; (ii) any Buyer, and counterparties in “derivative” transactions
to which any such Buyer is a party, directly or indirectly, presently may have a “short”
position in the Ordinary Shares which was established prior to such Buyer’s knowledge
of the transactions contemplated by the Transaction Documents; (iii) each Buyer shall not
be deemed to have any affiliation with or control over any arm’s length counterparty
in any “derivative” transaction; and (iv) each Buyer may rely on the Company’s
obligation to timely deliver Ordinary Shares upon conversion, exercise or exchange, as applicable,
of the Securities as and when required pursuant to the Transaction Documents for purposes
of effecting trading in the Ordinary Shares of the Company. The Company further understands
and acknowledges that following the public disclosure of the transactions contemplated by
the Transaction Documents pursuant to the Press Releases and/or 6-K Filings (as defined below)one
or more Buyers may engage in hedging and/or trading activities (including, without limitation,
the location and/or reservation of borrowable Ordinary Shares) at various times during the
period that the Securities are outstanding, including, without limitation, during the periods
that the value and/or number of Conversion Shares deliverable with respect to the Securities
are being determined and such hedging and/or trading activities (including, without limitation,
the location and/or reservation of borrowable Ordinary Shares), if any, can reduce the value
of the existing shareholders’ equity interest in the Company both at and after the
time the hedging and/or trading activities are being conducted. The Company acknowledges
that such aforementioned hedging and/or trading activities do not constitute a breach of
this Agreement, the Notes, or any other Transaction Document or any of the documents executed
in connection herewith or therewith.
(ff)
Manipulation of Price. Neither the Company nor any of its Subsidiaries has, and, to the knowledge of the Company, no Person acting
on their behalf has, directly or indirectly, (i) taken any action designed to cause or to result in the stabilization or manipulation
of the price of any security of the Company or any of its Subsidiaries to facilitate the sale or resale of any of the Securities, (ii)
sold, bid for, purchased, or paid any compensation for soliciting purchases of, any of the Securities, (iii) paid or agreed to pay to
any Person any compensation for soliciting another to purchase any other securities of the Company or any of its Subsidiaries or (iv)
paid or agreed to pay any Person for research services with respect to any securities of the Company or any of its Subsidiaries.
(gg)
U.S. Real Property Holding Corporation. Neither the Company nor any of its Subsidiaries is, or has ever been, and so long as any
of the Securities are held by any of the Buyers, shall become, a U.S. real property holding corporation within the meaning of Section
897 of the Code, and the Company and each Subsidiary shall so certify upon any Buyer’s request.
(hh)
Registration Eligibility. The Company is eligible to register the issuance of the Securities to the Buyers using Form F-3 promulgated
under the 1933 Act.
(ii)
Transfer Taxes. On such Closing Date, all share transfer or other taxes (other than
income or similar taxes) which are required to be paid in connection with the issuance, sale
and transfer of the Securities to be sold to each Buyer hereunder will be, or will have been,
fully paid or provided for by the Company, and all laws imposing such taxes will be or will
have been complied with.
(jj)
Bank Holding Company Act. Neither the Company nor any of its Subsidiaries is subject to the Bank Holding Company Act of 1956,
as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the “Federal
Reserve”). Neither the Company nor any of its Subsidiaries or affiliates owns or controls, directly or indirectly, five percent
(5%) or more of the outstanding shares of any class of voting securities or twenty-five percent (25%) or more of the total equity of
a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its Subsidiaries
or affiliates exercises a controlling influence over the management or policies of a bank or any entity that is subject to the BHCA and
to regulation by the Federal Reserve.
(kk)
Shell Company Status. The Company is not, and has never been, an issuer identified in, or subject to, Rule 144(i).
(ll)
Illegal or Unauthorized Payments; Political Contributions. Neither the Company nor any of its Subsidiaries nor, to the best of
the Company’s knowledge (after reasonable inquiry of its officers and directors), any of the officers, directors, employees, agents
or other representatives of the Company or any of its Subsidiaries or any other business entity or enterprise with which the Company
or any Subsidiary is or has been affiliated or associated, has, directly or indirectly, made or authorized any payment, contribution
or gift of money, property, or services, whether or not in contravention of applicable law, (i) as a kickback or bribe to any Person
or (ii) to any political organization, or the holder of or any aspirant to any elective or appointive public office except for personal
political contributions not involving the direct or indirect use of funds of the Company or any of its Subsidiaries.
(mm)
Money Laundering. The Company and its Subsidiaries are in compliance with, and have not previously violated, the USA Patriot Act
of 2001 and all other applicable U.S. and non-U.S. anti-money laundering laws and regulations, including, without limitation, the laws,
regulations and Executive Orders and sanctions programs administered by the U.S. Office of Foreign Assets Control, including, but not
limited, to (i) Executive Order 13224 of September 23, 2001 entitled, “Blocking Property and Prohibiting Transactions With Persons
Who Commit, Threaten to Commit, or Support Terrorism” (66 Fed. Reg. 49079 (2001)); and (ii) any regulations contained in 31 CFR,
Subtitle B, Chapter V.
(nn)
Management. During the past three-year period, no current or former officer or director or, to the knowledge of the Company, no
current ten percent (10%) or greater shareholder of the Company or any of its Subsidiaries has been the subject of:
(i)
a petition under bankruptcy laws or any other insolvency or moratorium law or the appointment by a court of a receiver, fiscal agent
or similar officer for such Person, or any partnership in which such person was a general partner at or within two years before the filing
of such petition or such appointment, or any corporation or business association of which such person was an executive officer at or
within two years before the time of the filing of such petition or such appointment;
(ii)
a conviction in a criminal proceeding or a named subject of a pending criminal proceeding (excluding traffic violations that do not relate
to driving while intoxicated or driving under the influence);
(iii)
any order, judgment or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently or
temporarily enjoining any such person from, or otherwise limiting, the following activities:
(1)
Acting as a futures commission merchant, introducing broker, commodity trading advisor, commodity pool operator, floor broker, leverage
transaction merchant, any other person regulated by the United States Commodity Futures Trading Commission or an associated person of
any of the foregoing, or as an investment adviser, underwriter, broker or dealer in securities, or as an affiliated person, director
or employee of any investment company, bank, savings and loan association or insurance company, or engaging in or continuing any conduct
or practice in connection with such activity;
(2)
Engaging in any particular type of business practice; or
(3)
Engaging in any activity in connection with the purchase or sale of any security or commodity or in connection with any violation of
securities laws or commodities laws;
(iv)
any order, judgment or decree, not subsequently reversed, suspended or vacated, of any authority barring, suspending or otherwise limiting
for more than sixty (60) days the right of any such person to engage in any activity described in the preceding sub paragraph, or to
be associated with persons engaged in any such activity;
(v)
a finding by a court of competent jurisdiction in a civil action or by the SEC or other authority to have violated any securities law,
regulation or decree and the judgment in such civil action or finding by the SEC or any other authority has not been subsequently reversed,
suspended or vacated; or
(vi)
a finding by a court of competent jurisdiction in a civil action or by the Commodity Futures Trading Commission to have violated any
federal commodities law, and the judgment in such civil action or finding has not been subsequently reversed, suspended or vacated.
(oo)
Share Option Plans. Each share option granted by the Company was granted (i) in accordance with the terms of the applicable share
option plan of the Company and (ii) with an exercise price at least equal to the fair market value of the Ordinary Shares on the date
such share option would be considered granted under GAAP and applicable law. No share option granted under the Company’s share
option plan has been backdated. The Company has not knowingly granted, and there is no and has been no policy or practice of the Company
to knowingly grant, share options prior to, or otherwise knowingly coordinate the grant of share options with, the release or other public
announcement of material information regarding the Company or its Subsidiaries or their financial results or prospects.
(pp)
No Disagreements with Accountants and Lawyers. There are no material disagreements of any kind presently existing, or reasonably
anticipated by the Company to arise, between the Company and the accountants and lawyers formerly or presently employed by the Company
and the Company is current with respect to any fees owed to its accountants and lawyers which could affect the Company’s ability
to perform any of its obligations under any of the Transaction Documents. In addition, on or prior to the date hereof, the Company had
discussions with its accountants about its financial statements previously filed with the SEC. Based on those discussions, the Company
has no reason to believe that it will need to restate any such financial statements or any part thereof.
(qq)
No Additional Agreements. The Company does not have any agreement or understanding with any Buyer with respect to the transactions
contemplated by the Transaction Documents other than as specified in the Transaction Documents.
(rr)
Public Utility Holding Company Act. None of the Company nor any of its Subsidiaries is a “holding company,” or an
“affiliate” of a “holding company,” as such terms are defined in the Public Utility Holding Act of 2005.
(ss)
Federal Power Act. None of the Company nor any of its Subsidiaries is subject to regulation as a “public utility”
under the Federal Power Act, as amended.
(tt)
Cybersecurity. The Company and its Subsidiaries’ information technology assets and equipment, computers, systems, networks,
hardware, software, websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate
and perform in all material respects as required in connection with the operation of the business of the Company and its subsidiaries
as currently conducted, free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants
that would reasonably be expected to have a Material Adverse Effect on the Company’s business. The Company and its Subsidiaries
have implemented and maintained commercially reasonable physical, technical and administrative controls, policies, procedures, and safeguards
to maintain and protect their material confidential information and the integrity, continuous operation, redundancy and security of all
IT Systems and data, including “Personal Data,” used in connection with their businesses. “Personal Data”
means (i) a natural person’s name, street address, telephone number, e-mail address, photograph, social security number or tax
identification number, driver’s license number, passport number, credit card number, bank information, or customer or account number;
(ii) any information which would qualify as “personally identifying information” under the Federal Trade Commission Act,
as amended; (iii) “personal data” as defined by the European Union General Data Protection Regulation (“GDPR”)
(EU 2016/679); (iv) any information which would qualify as “protected health information” under the Health Insurance Portability
and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act (collectively, “HIPAA”);
and (v) any other piece of information that allows the identification of such natural person, or his or her family, or permits the collection
or analysis of any data related to an identified person’s health or sexual orientation. There have been no breaches, violations,
outages or unauthorized uses of or accesses to same, except for those that have been remedied without material cost or liability or the
duty to notify any other person or such, nor any incidents under internal review or investigations relating to the same except in each
case, where such would not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. The
Company and its Subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations
of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy
and security of IT Systems and Personal Data and to the protection of such IT Systems and Personal Data from unauthorized use, access,
misappropriation or modification except in each case, where such would not, either individually or in the aggregate, reasonably be expected
to result in a Material Adverse Effect.
(uu)
Compliance with Data Privacy Laws. The Company and its Subsidiaries are, and at all prior times were, in compliance with all applicable
state and federal data privacy and security laws and regulations, including without limitation HIPAA, and the Company and its Subsidiaries
have taken commercially reasonable actions to prepare to comply with, and since May 25, 2018, have been and currently are in compliance
with, the GDPR (collectively, the “Privacy Laws”) except in each case, where such would not, either individually or
in the aggregate, reasonably be expected to result in a Material Adverse Effect. To ensure compliance with the Privacy Laws, the Company
and its Subsidiaries have in place, comply with, and take appropriate steps reasonably designed to ensure compliance in all material
respects with their policies and procedures relating to data privacy and security and the collection, storage, use, disclosure, handling,
and analysis of Personal Data (the “Policies”). The Company and its Subsidiaries have at all times made all disclosures
to users or customers required by applicable laws and regulatory rules or requirements, and none of such disclosures made or contained
in any Policy have, to the knowledge of the Company, been inaccurate or in violation of any applicable laws and regulatory rules or requirements
in any material respect. The Company further certifies that neither it nor any Subsidiary: (i) has received notice of any actual or potential
liability under or relating to, or actual or potential violation of, any of the Privacy Laws, and has no knowledge of any event or condition
that would reasonably be expected to result in any such notice; (ii) is currently conducting or paying for, in whole or in part, any
investigation, remediation, or other corrective action pursuant to any Privacy Law; or (iii) is a party to any order, decree, or agreement
that imposes any obligation or liability under any Privacy Law.
(vv)
Registration Rights. No holder of securities of the Company has rights to the registration of any securities of the Company because
of the filing of the Registration Statement or the issuance of the Securities hereunder that could expose the Company to material liability
or any Buyer to any liability or that could impair the Company’s ability to consummate the issuance and sale of the Securities
in the manner, and at the times, contemplated hereby, which rights have not been waived by the holder thereof as of the date hereof.
(ww)
Disclosure. The Company confirms that neither it nor any other Person acting on its behalf has provided any of the Buyers or their
agents or counsel with any information that constitutes or could reasonably be expected to constitute material, non-public information
concerning the Company or any of its Subsidiaries, other than the existence of the transactions contemplated by this Agreement and the
other Transaction Documents. The Company understands and confirms that each of the Buyers will rely on the foregoing representations
in effecting transactions in securities of the Company. All disclosure provided to the Buyers regarding the Company and its Subsidiaries,
their businesses and the transactions contemplated hereby, including the schedules to this Agreement, furnished by or on behalf of the
Company or any of its Subsidiaries is true and correct and does not contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made,
not misleading. All of the written information furnished after the date hereof by or on behalf of the Company or any of its Subsidiaries
to each Buyer pursuant to or in connection with this Agreement and the other Transaction Documents, taken as a whole, will be true and
correct in all material respects as of the date on which such information is so provided and will not contain any untrue statement of
a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances
under which they were made, not misleading. Each press release issued by the Company or any of its Subsidiaries during the twelve (12)
months preceding the date of this Agreement did not at the time of release contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances
under which they are made, not misleading. No event or circumstance has occurred or information exists with respect to the Company or
any of its Subsidiaries or its or their business, properties, liabilities, prospects, operations (including results thereof) or conditions
(financial or otherwise), which, under applicable law, rule or regulation, requires public disclosure at or before the date hereof or
announcement by the Company but which has not been so publicly disclosed. All financial projections and forecasts that have been prepared
by or on behalf of the Company or any of its Subsidiaries and made available to you have been prepared in good faith based upon reasonable
assumptions and represented, at the time each such financial projection or forecast was delivered to each Buyer, the Company’s
best estimate of future financial performance (it being recognized that such financial projections or forecasts are not to be viewed
as facts and that the actual results during the period or periods covered by any such financial projections or forecasts may differ from
the projected or forecasted results). The Company acknowledges and agrees that no Buyer makes or has made any representations or warranties
with respect to the transactions contemplated hereby other than those specifically set forth in Section 2.
4.
COVENANTS.
(a)
Best Efforts. Each Buyer shall use its best efforts to timely satisfy each of the covenants hereunder and conditions to be satisfied
by it as provided in Section 6 of this Agreement. The Company shall use its best efforts to timely satisfy each of the covenants hereunder
and conditions to be satisfied by it as provided in Section 7 of this Agreement.
(b)
Amendments to the Registration Statement; Prospectus Supplements; Free Writing Prospectuses.
(i)
Except as provided in this Agreement and other than periodic reports required to be filed pursuant to the 1934 Act, the Company shall
not file with the SEC any amendment to the Registration Statement that relates to the Buyers, this Agreement or any other Transaction
Document or the transactions contemplated hereby or thereby or file with the SEC any Prospectus Supplement that relates to the Buyers,
this Agreement or any other Transaction Document or the transactions contemplated hereby or thereby with respect to which (a) the Buyers
shall not previously have been advised, (b) the Company shall not have given due consideration to any comments thereon received from
the Buyers or their counsel, or (c) the Buyers shall reasonably object after being so advised, unless the Company reasonably has determined
that it is necessary to amend the Registration Statement or make any supplement to the Prospectus to comply with the 1933 Act or any
other applicable law or regulation, in which case the Company shall promptly (but in no event later than 24 hours) so inform the Buyers,
the Buyers shall be provided with a reasonable opportunity to review and comment upon any disclosure relating to the Buyers and the Company
shall expeditiously furnish to the Buyers an electronic copy thereof. In addition, for so long as, in the reasonable opinion of counsel
for the Buyers, the Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the 1933 Act) is required to be delivered
in connection with any acquisition or sale of Securities by the Buyers, the Company shall not file any Prospectus Supplement with respect
to the Securities without delivering or making available a copy of such Prospectus Supplement, together with the Prospectus, to the Buyers
promptly.
(ii)
The Company has not made, and agrees that unless it obtains the prior written consent of the Buyers it will not make, an offer relating
to the Securities that would constitute an “issuer free writing prospectus” as defined in Rule 433 promulgated under the
1933 Act (an “Issuer Free Writing Prospectus”) or that would otherwise constitute a “free writing prospectus”
as defined in Rule 405 promulgated under the 1933 Act (a “Free Writing Prospectus”) required to be filed by the Company
or the Buyers with the SEC or retained by the Company or the Buyers under Rule 433 under the 1933 Act. The Buyers have not made, and
agree that unless they obtain the prior written consent of the Company they will not make, an offer relating to the Securities that would
constitute a Free Writing Prospectus required to be filed by the Company with the SEC or retained by the Company under Rule 433 under
the 1933 Act. Any such Issuer Free Writing Prospectus or other Free Writing Prospectus consented to by the Buyers or the Company is referred
to in this Agreement as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will
treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will
comply, as the case may be, with the requirements of Rules 164 and 433 under the 1933 Act applicable to any Permitted Free Writing Prospectus,
including in respect of timely filing with the SEC, legending and record keeping.
(c)
Prospectus Delivery. Immediately prior to execution of this Agreement, the Company shall have delivered to the Buyers, and as
soon as practicable after execution of this Agreement the Company shall file, Prospectus Supplements with respect to the Securities to
be issued on the applicable Closing Date, as required under, and in conformity with, the 1933 Act, including Rule 424(b) thereunder.
The Company shall provide the Buyers a reasonable opportunity to comment on a draft of each Prospectus Supplement and any Issuer Free
Writing Prospectus, shall give due consideration to all such comments and, subject to the provisions of Section 4(b) hereof, shall deliver
or make available to the Buyers, without charge, an electronic copy of each form of Prospectus Supplement, together with the Prospectus,
and any Permitted Free Writing Prospectus on such Closing Date. The Company consents to the use of the Prospectus (and of any Prospectus
Supplements thereto) in accordance with the provisions of the 1933 Act and with the securities or “blue sky” laws of the
jurisdictions in which the Securities may be sold by the Buyers, in connection with the offering and sale of the Securities and for such
period of time thereafter as the Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the 1933 Act) is required
by the 1933 Act to be delivered in connection with sales of the Securities. If during such period of time any event shall occur that
in the judgment of the Company and its counsel is required to be set forth in the Registration Statement or the Prospectus or any Permitted
Free Writing Prospectus or should be set forth therein in order to make the statements made therein (in the case of the Prospectus, in
light of the circumstances under which they were made) not misleading, or if it is necessary to amend the Registration Statement or supplement
or amend the Prospectus or any Permitted Free Writing Prospectus to comply with the 1933 Act or any other applicable law or regulation,
the Company shall forthwith prepare and, subject to Section 4(b) above, file with the SEC an appropriate amendment to the Registration
Statement or Prospectus Supplement to the Prospectus (or supplement to the Permitted Free Writing Prospectus) and shall expeditiously
furnish or make available to the Buyer an electronic copy thereof.
(d)
Stop Orders. The Company shall advise the Buyers promptly (but in no event later than 24 hours) and shall confirm such advice
in writing: (i) of the Company’s receipt of notice of any request by the SEC for amendment of or a supplement to the Registration
Statement, the Prospectus, any Permitted Free Writing Prospectus or for any additional information; (ii) of the Company’s receipt
of notice of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or prohibiting or suspending
the use of the Prospectus or any Prospectus Supplement, or of the suspension of qualification of the Securities for offering or sale
in any jurisdiction, or the initiation or contemplated initiation of any proceeding for such purpose; (iii) of the Company becoming aware
of the happening of any event, which makes any statement of a material fact made in the Registration Statement, the Prospectus or any
Permitted Free Writing Prospectus untrue or which requires the making of any additions to or changes to the statements then made in the
Registration Statement, the Prospectus or any Permitted Free Writing Prospectus in order to state a material fact required by the 1933
Act to be stated therein or necessary in order to make the statements then made therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading, or of the necessity to amend the Registration Statement or supplement the Prospectus
or any Permitted Free Writing Prospectus to comply with the 1933 Act or any other law or (iv) if at any time following the date hereof
the Registration Statement is not effective or is not otherwise available for the issuance of the Securities or any Prospectus contained
therein is not available for use for any other reason. Thereafter, the Company shall promptly notify such holders when the Registration
Statement, the Prospectus, any Permitted Free Writing Prospectus and/or any amendment or supplement thereto, as applicable, is effective
and available for the issuance of the Securities. If at any time the SEC shall issue any stop order suspending the effectiveness of the
Registration Statement or prohibiting or suspending the use of the Prospectus or any Prospectus Supplement, the Company shall use best
efforts to obtain the withdrawal of such order at the earliest possible time.
(e)
Blue Sky. The Company shall, on or before each Closing Date, take such action as the Company shall reasonably determine is necessary
in order to obtain an exemption for, or to, qualify the Securities for sale to the Buyers at such applicable Closing pursuant to this
Agreement under applicable securities or “Blue Sky” laws of the states of the United States (or to obtain an exemption from
such qualification), and shall provide evidence of any such action so taken to the Buyers on or prior to such applicable Closing Date.
Without limiting any other obligation of the Company under this Agreement, the Company shall timely make all filings and reports relating
to the offer and sale of the Securities required under all applicable securities laws (including, without limitation, all applicable
federal securities laws and all applicable “Blue Sky” laws), and the Company shall comply with all applicable foreign, federal,
state and local laws, statutes, rules, regulations and the like relating to the offering and sale of the Securities to the Buyers.
(f)
Reporting Status. Until the date on which the Buyers shall have sold all of the Securities
(the “Reporting Period”), the Company shall timely file all reports required
to be filed with the SEC pursuant to the 1934 Act, and the Company shall not terminate its
status as an issuer required to file reports under the 1934 Act even if the 1934 Act or the
rules and regulations thereunder would no longer require or otherwise permit such termination.
(g)
Use of Proceeds. The Company will use the proceeds from the sale of the Securities as described in the Prospectus Supplement,
but not, directly or indirectly, for (i) the satisfaction of any indebtedness of the Company or any of its Subsidiaries, (ii) the redemption
or repurchase of any securities of the Company or any of its Subsidiaries, or (iii) the settlement of any outstanding litigation.
(h)
Financial Information. The Company agrees to send the following to each holder of Notes (each, an “Investor”)
during the Reporting Period (i) unless the following are filed with the SEC through EDGAR and are available to the public through the
EDGAR system, within one (1) Business Day after the filing thereof with the SEC, a copy of its Annual Report on Form 20-F, Report of
Foreign Issuer on Form 6-K, any other interim reports or any consolidated balance sheets, income statements, shareholders’ equity
statements and/or cash flow statements for any period other than annual, any Report of Foreign Issuer on Form 6-K and any registration
statements (other than on Form S-8) or amendments filed pursuant to the 1933 Act, (ii) unless the following are either filed with the
SEC through EDGAR or are otherwise widely disseminated via a recognized news release service (such as PR Newswire), on the same day as
the release thereof, e-mail copies of all press releases issued by the Company or any of its Subsidiaries and (iii) unless the following
are filed with the SEC through EDGAR, copies of any notices and other information made available or given to the shareholders of the
Company generally, contemporaneously with the making available or giving thereof to the shareholders.
(i)
Listing. The Company shall promptly secure the listing or designation for quotation (as the case may be) of all of the Underlying
Securities upon each national securities exchange and automated quotation system, if any, upon which the Ordinary Shares is then listed
or designated for quotation (as the case may be) (subject to official notice of issuance) and shall maintain such listing or designation
for quotation (as the case may be) of all Underlying Securities from time to time issuable under the terms of the Transaction Documents
on such national securities exchange or automated quotation system. The Company shall maintain the Ordinary Shares’ listing or
authorization for quotation (as the case may be) on the Principal Market, The New York Stock Exchange, the NYSE American, the Nasdaq
Global Select Market, or the Nasdaq Global Market (each, an “Eligible Market”). Neither the Company nor any of its
Subsidiaries shall take any action which could be reasonably expected to result in the delisting or suspension of the Ordinary Shares
on an Eligible Market. The Company shall pay all fees and expenses in connection with satisfying its obligations under this Section 4(i).
“Underlying Securities” means (i) the Conversion Shares and (ii) any share capital of the Company issued or issuable with
respect to the Conversion Shares or the Notes, respectively, including, without limitation, (1) as a result of any stock split, stock
dividend, recapitalization, exchange or similar event or otherwise and (2) ordinary shares of the Company into which the Ordinary Shares
are converted or exchanged and share capital of a Successor Entity (as defined in the Notes) into which the Ordinary Shares are converted
or exchanged, in each case, without regard to any limitations on conversion of the Notes.
(j)
Fees. The Company shall reimburse the lead Buyer for all costs and expenses incurred
by it or its affiliates in connection with the structuring, documentation, diligence, negotiation
and applicable closing and post-closing, as applicable, of the transactions contemplated
by the Transaction Documents (including, without limitation, as applicable, all reasonable
legal fees of outside counsel and disbursements of Pryor Cashman LLP, counsel to the lead
Buyer, any other reasonable fees and expenses in connection with the structuring, documentation,
negotiation and closing of the transactions contemplated by the Transaction Documents and
due diligence and regulatory filings in connection therewith) (the “Transaction
Expenses”) and shall be withheld by the lead Buyer from its Purchase Price at such
applicable Closing, less $20,000 previously paid by the Company to the lead Buyer; provided,
that the Company shall promptly reimburse Pryor Cashman LLP on demand for all Transaction
Expenses not so reimbursed through such withholding at such applicable Closing. The Company
shall be responsible for the payment of any placement agent’s fees, financial advisory
fees, transfer agent fees, DTC (as defined below) fees or broker’s commissions (other
than for Persons engaged by any Buyer) relating to or arising out of the transactions contemplated
hereby. The Company shall pay, and hold each Buyer harmless against, any liability, loss
or expense (including, without limitation, reasonable attorneys’ fees and out-of-pocket
expenses) arising in connection with any claim relating to any such payment. Except as otherwise
set forth in the Transaction Documents, each party to this Agreement shall bear its own expenses
in connection with the sale of the Securities to the Buyers.
(k)
Pledge of Securities. Notwithstanding anything to the contrary contained in this Agreement,
the Company acknowledges and agrees that the Securities may be pledged by an Investor in
connection with a bona fide margin agreement or other loan or financing arrangement that
is secured by the Securities. The Company hereby agrees to execute and deliver such documentation
as a pledgee of the Securities may reasonably request in connection with a pledge of the
Securities to such pledgee by a Buyer.
(l)
Disclosure of Transactions and Other Material Information.
| (i) | Disclosure of Transaction. |
| (1) | Initial
Closing. The Company shall, on or before 9:30 a.m., New York time, on the first (1st)
Business Day after the date of this Agreement, (A) issue a press release (the “Initial
Press Release”) reasonably acceptable to the Buyers disclosing all material terms
of the transactions contemplated by the Transaction Documents and (B) file a Report of Foreign
Issuer on Form 6-K describing all the material terms of the transactions contemplated by
the Transaction Documents in the form required by the 1934 Act and attaching all the material
Transaction Documents (including, without limitation, this Agreement (and all schedules to
this Agreement), the form of Notes, and the form of Leak-Out Agreement) (including all attachments,
the “Initial 6-K Filing”). From and after the filing of the Initial 6-K
Filing, the Company shall have disclosed all material, non-public information (if any) provided
to any of the Buyers by the Company or any of its Subsidiaries or any of their respective
officers, directors, employees or agents in connection with the transactions contemplated
by the Transaction Documents. In addition, effective upon the filing of the Initial 6-K Filing,
the Company acknowledges and agrees that any and all confidentiality or similar obligations
under any agreement, whether written or oral, between the Company, any of its Subsidiaries
or any of their respective officers, directors, affiliates, employees or agents, on the one
hand, and any of the Buyers or any of their affiliates, on the other hand, shall terminate. |
| (2) | Additional
Closings. The Company shall, on or before 9:30 a.m., New York time, on the first (1st)
Business Day after the From and after each Additional Closing Notice Date, either issue a
press release (each, an “Additional Press Release”) or file a Current
Report on Form 6-K (each, an “Additional 6-K Filing,” and together with
the Initial 6-K filing, the “6-K Filings”), in each case reasonably acceptable
to such Buyer participating in such Additional Closing, disclosing that “an institutional
investor” and the Company have elected to effect an Additional Closing. From and after
the filing of the Additional Press Release or Additional 6-K Filing, solely to the extent
such Additional Closing Notice constitutes material non-public information (as specified
by the Company), the filing of the Initial 6-K Filing (but prior to the occurrence of any
Additional Closing), the Company shall have disclosed all material, non-public information
(if any) provided to any of the Buyers by the Company or any of its Subsidiaries or any of
their respective officers, directors, employees or agents in connection with the transactions
contemplated by the Transaction Documents. In addition, effective upon the filing of the
Additional 6-K Filing, the Company acknowledges and agrees that any and all confidentiality
or similar obligations under any agreement, whether written or oral, between the Company,
any of its Subsidiaries or any of their respective officers, directors, affiliates, employees
or agents, on the one hand, and any of the Buyers or any of their affiliates, on the other
hand, shall terminate. |
(ii)
Limitations on Disclosure. The Company shall not, and the Company shall cause each of its Subsidiaries and each of its and their
respective officers, directors, employees and agents not to, provide any Buyer with any material, non-public information regarding the
Company or any of its Subsidiaries from and after the date hereof without the express prior written consent of such Buyer (which may
be granted or withheld in such Buyer’s sole discretion). In the event of a breach of any of the foregoing covenants, including,
without limitation, Section 4(q) of this Agreement, or any of the covenants or agreements contained in any other Transaction Document,
by the Company, any of its Subsidiaries, or any of its or their respective officers, directors, employees and agents (as determined in
the reasonable good faith judgment of such Buyer), in addition to any other remedy provided herein or in the Transaction Documents, such
Buyer may deliver written notice to the Company to request that the Company promptly publicly release such applicable material, non-public
information. If the Company fails to publicly release such material, non-public information on or prior to the second (2nd)
Trading Day after such written notice by such Buyer, such Buyer shall have the right to make a public disclosure, in the form of a press
release, public advertisement or otherwise, of such breach or such material, non-public information, as applicable, without the prior
approval by the Company, any of its Subsidiaries, or any of its or their respective officers, directors, employees or agents. No Buyer
shall have any liability to the Company, any of its Subsidiaries, or any of its or their respective officers, directors, employees, affiliates,
shareholders or agents, for any such disclosure. To the extent that the Company delivers any material, non-public information to a Buyer
without such Buyer’s consent, the Company hereby covenants and agrees that such Buyer shall not have any duty of confidentiality
with respect to, or a duty not to trade on the basis of, such material, non-public information. Subject to the foregoing, neither the
Company, its Subsidiaries nor any Buyer shall issue any press releases or any other public statements with respect to the transactions
contemplated hereby; provided, however, the Company shall be entitled, without the prior approval of any Buyer, to make the Press Release
and any press release or other public disclosure with respect to such transactions (i) in substantial conformity with the 6-K Filings
and contemporaneously therewith and (ii) as is required by applicable law and regulations (provided that in the case of clause (i) each
Buyer shall be consulted by the Company in connection with any such press release or other public disclosure prior to its release). Without
the prior written consent of the applicable Buyer (which may be granted or withheld in such Buyer’s sole discretion), the Company
shall not (and shall cause each of its Subsidiaries and affiliates to not) disclose the name of such Buyer in any filing, announcement,
release or otherwise, except as required by applicable law or regulations; provided, however, that with respect to any filing or submission
required by applicable law or regulations, (i) such filing or submission shall contain only such information as is necessary or advisable
to comply with applicable law or regulations and (ii) unless specifically prohibited by applicable law or court order, the Company shall
promptly notify the Buyers of the requirement to make such submission or filing and provide the Buyers with a copy thereof. Notwithstanding
anything contained in this Agreement to the contrary and without implication that the contrary would otherwise be true, the Company expressly
acknowledges and agrees that no Buyer shall have (unless expressly agreed to by a particular Buyer after the date hereof in a written
definitive and binding agreement executed by the Company and such particular Buyer (it being understood and agreed that no Buyer may
bind any other Buyer with respect thereto)), any duty of confidentiality with respect to, or a duty not to trade on the basis of, any
material, non-public information regarding the Company or any of its Subsidiaries.
(m)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Securities,
the Company will not, without the prior written consent of the Required Holders, issue any
Notes (other than to the Buyers as contemplated hereby) and the Company shall not issue any
other securities that would cause a breach or default under the Notes. The Company agrees
that for each period commencing on a Closing Date hereunder, through, and including, the
twentieth (20th) Trading Day immediately following such Closing Date (each, a
“Restricted Period”), neither the Company nor any of its Subsidiaries
shall directly or indirectly:
| (i) | file
a registration statement under the 1933 Act relating to securities that are not the Underlying
Securities (other than a registration statement on Form S-4, Form S-8 or such supplements
or amendments to registration statements that are outstanding and have been declared effective
by the SEC as of the date hereof (including the Registration Statement) (solely to the extent
necessary to keep such registration statements effective and available and not with respect
to any Subsequent Placement)); or |
| (ii) | issue,
offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce
any issuance, offer, sale, grant of any option or right to purchase or other disposition
of) any equity security or any equity-linked or related security (including, without limitation,
any “equity security” (as that term is defined under Rule 405 promulgated under
the 1933 Act)), any Convertible Securities (as defined below), any debt, any preferred shares
or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement
(whether occurring during the Restricted Period or at any time thereafter) is referred to
as a “Subsequent Placement”). Notwithstanding the foregoing, this Section
4(m) shall not apply in respect of the issuance of (A) Ordinary Shares or standard options
to purchase Ordinary Shares to directors, officers, consultants, advisors, or employees of
the Company in their capacity as such pursuant to an Approved Share Plan (as defined below),
provided that (1) all such issuances (taking into account the Ordinary Shares issuable upon
exercise of such options) after the date hereof pursuant to this clause (A) do not, in the
aggregate, exceed more than 15% of the Ordinary Shares issued and outstanding on an annual
basis immediately prior to the date hereof and (2) the exercise price of any such options
is not lowered, none of such options are amended to increase the number of shares issuable
thereunder and none of the terms or conditions of any such options are otherwise materially
changed in any manner that materially and adversely affects any of the Buyers, other than
in connection with adjustments for share splits, share dividends, share combinations, recapitalizations
or other similar transactions; (B) Ordinary Shares issued upon the conversion or exercise
of Convertible Securities (other than standard options to purchase Ordinary Shares issued
pursuant to an Approved Share Plan that are covered by clause (A) above) issued prior to
the date hereof, provided that the conversion, exercise or other method of issuance (as the
case may be) of any such Convertible Security is made solely pursuant to the conversion,
exercise or other method of issuance (as the case may be) provisions of such Convertible
Security that were in effect on the date immediately prior to the date of this Agreement,
the conversion, exercise or issuance price of any such Convertible Securities (other than
standard options to purchase Ordinary Shares issued pursuant to an Approved Share Plan that
are covered by clause (A) above) is not lowered, none of such Convertible Securities (other
than standard options to purchase Ordinary Shares issued pursuant to an Approved Share Plan
that are covered by clause (A) above) are amended to increase the number of shares issuable
thereunder and none of the terms or conditions of any such Convertible Securities (other
than standard options to purchase Ordinary Shares issued pursuant to an Approved Share Plan
that are covered by clause (A) above) are otherwise materially changed in any manner that
adversely affects any of the Buyers; (C) the Conversion Shares; and (D) issuances of debt
or equity securities of the Company to any Buyer or affiliates thereof (each of the foregoing
in clauses (A) through (D), collectively the “Excluded Securities”). “Approved
Share Plan” means any employee benefit plan which has been approved by the board
of directors of the Company prior to or subsequent to the date hereof pursuant to which Ordinary
Shares and standard options to purchase Ordinary Shares may be issued to any employee, consultant,
advisor, officer or director for services provided to the Company in their capacity as such. |
(n)
Reservation of Shares. So long as any of the Notes remain outstanding, the Company
shall take all action necessary to at all times have authorized, and reserved for the purpose
of issuance, no less than 100% of the sum of (i) the maximum number of Ordinary Shares issuable
upon conversion of all the Notes then outstanding (assuming for purposes hereof that (w)
all Additional Notes issuable hereunder shall have been issued at an Additional Closing on
the Initial Closing Date, (x) the Notes are convertible at the Floor Price as of such applicable
date of determination, (y) interest on the Notes shall accrue through the third anniversary
of the Initial Closing Date and will be converted in Ordinary Shares at a conversion price
equal to the Floor Price as of such applicable date of determination and (z) any such conversion
shall not take into account any limitations on the conversion of the Notes set forth in the
Notes)) (collectively, the “Required Reserve Amount”); provided that at
no time shall the number of Ordinary Shares reserved pursuant to this Section 4(n) be reduced
other than proportionally in connection with any conversion and/or redemption, as applicable
of Notes. If at any time the number of Ordinary Shares authorized and reserved for issuance
is not sufficient to meet the Required Reserve Amount, the Company will promptly take all
corporate action necessary to authorize and reserve a sufficient number of shares, including,
without limitation, calling a meeting of shareholders to authorize additional shares to meet
the Company’s obligations pursuant to the Transaction Documents, in the case of an
insufficient number of authorized shares, obtain shareholder approval of an increase in such
authorized number of shares, and voting the management shares of the Company in favor of
an increase in the authorized shares of the Company to ensure that the number of authorized
shares is sufficient to meet the Required Reserve Amount.
(o)
Conduct of Business. The business of the Company and its Subsidiaries shall not be conducted in violation of any law, ordinance
or regulation of any Governmental Entity, except where such violations would not reasonably be expected to result, either individually
or in the aggregate, in a Material Adverse Effect.
(p)
Other Notes; Variable Securities. Until the three (3) month anniversary of the funding in full, or termination, of the final Additional
Tranche in accordance with Section 1(b)(ii), the Company and each Subsidiary shall be prohibited from effecting or entering into an agreement
to effect any Subsequent Placement involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction
in which the Company or any Subsidiary (i) issues or sells any Convertible Securities either (A) at a conversion, exercise or exchange
rate or other price that is based upon and/or varies with the trading prices of or quotations for the Ordinary Shares at any time after
the initial issuance of such Convertible Securities, or (B) with a conversion, exercise or exchange price that is subject to being reset
at some future date after the initial issuance of such Convertible Securities or upon the occurrence of specified or contingent events
directly or indirectly related to the business of the Company or the market for the Ordinary Shares, other than pursuant to a customary
“weighted average” anti-dilution provision or (ii) enters into any agreement (including, without limitation, an equity line
of credit or an “at-the-market” offering) whereby the Company or any Subsidiary may sell securities at a future determined
price (other than standard and customary “preemptive” or “participation” rights). Each Buyer shall be entitled
to obtain injunctive relief against the Company and its Subsidiaries to preclude any such issuance, which remedy shall be in addition
to any right to collect damages.
(q)
Participation Right. Until the later of (i) the funding in full or termination, as applicable, of each Additional Tranche in accordance
with Section 1(b)(ii) and (ii) such time as no Notes remain outstanding, neither the Company nor any of its Subsidiaries shall, directly
or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4(q). The Company acknowledges
and agrees that the right set forth in this Section 4(q) is a right granted by the Company, separately, to each Buyer.
(i)
At least three (3) Trading Days prior to any proposed or intended Subsequent Placement, the
Company shall deliver to each Buyer a written notice (each such notice, a “Pre-Notice”),
which Pre-Notice shall not contain any information (including, without limitation, material,
non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes
or contains material, non-public information, a statement asking whether the Investor is
willing to accept material non-public information or (B) if the proposed Offer Notice does
not constitute or contain material, non-public information, (x) a statement that the Company
proposes or intends to effect a Subsequent Placement, (y) a statement that the statement
in clause (x) above does not constitute material, non-public information and (z) a statement
informing such Buyer that it is entitled to receive an Offer Notice (as defined below) with
respect to such Subsequent Placement upon its written request. Upon the written request of
a Buyer within two (2) Trading Day after the Company’s delivery to such Buyer of such
Pre-Notice, and only upon a written request by such Buyer, the Company shall promptly, but
no later than one (1) Trading Day after such request, deliver to such Buyer an irrevocable
written notice (the “Offer Notice”) of any proposed or intended issuance
or sale or exchange (the “Offer”) of the securities being offered (the
“Offered Securities”) in a Subsequent Placement, which Offer Notice shall
(A) identify and describe the Offered Securities, (B) describe the price and other terms
upon which they are to be issued, sold or exchanged, and the number or amount of the Offered
Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which
or with which the Offered Securities are to be offered, issued, sold or exchanged and (D)
offer to issue and sell to or exchange with such Buyer in accordance with the terms of the
Offer such Buyer’s pro rata portion of 35% of the Offered Securities, provided that
the number of Offered Securities which such Buyer shall have the right to subscribe for under
this Section 4(q) shall be (x) based on such Buyer’s pro rata portion of the aggregate
original principal amount of the Notes purchased hereunder by all Buyers (the “Basic
Amount”), and (y) with respect to each Buyer that elects to purchase its Basic
Amount, any additional portion of the Offered Securities attributable to the Basic Amounts
of other Buyers as such Buyer shall indicate it will purchase or acquire should the other
Buyers subscribe for less than their Basic Amounts (the “Undersubscription Amount”),
which process shall be repeated until each Buyer shall have an opportunity to subscribe for
any remaining Undersubscription Amount.
(ii)
To accept an Offer, in whole or in part, such Buyer must deliver a written notice to the Company prior to the end of the second (2nd)
Business Day after such Buyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion
of such Buyer’s Basic Amount that such Buyer elects to purchase and, if such Buyer shall elect to purchase all of its Basic Amount,
the Undersubscription Amount, if any, that such Buyer elects to purchase (in either case, the “Notice of Acceptance”).
If the Basic Amounts subscribed for by all Buyers are less than the total of all of the Basic Amounts, then each Buyer who has set forth
an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for,
the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference
between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”),
each Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription
Amount as the Basic Amount of such Buyer bears to the total Basic Amounts of all Buyers that have subscribed for Undersubscription Amounts,
subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires
to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each
Buyer a new Offer Notice and the Offer Period shall expire on the third (3rd) Business Day after such Buyer’s receipt
of such new Offer Notice.
(iii)
The Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all
or any part of such Offered Securities as to which a Notice of Acceptance has not been given by a Buyer (the “Refused Securities”)
pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in
the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest
rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer
Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of
the transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement,
which shall be filed with the SEC on a Report of Foreign Issuer on Form 6-K with such Subsequent Placement Agreement and any documents
contemplated therein filed as exhibits thereto.
(iv)
In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms
specified in Section 4(q)(iii) above), then each Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance
or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than
the number or amount of the Offered Securities that such Buyer elected to purchase pursuant to Section 4(q)(ii) above multiplied by a
fraction, (i) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell
or exchange (including Offered Securities to be issued or sold to Buyers pursuant to this Section 4(q) prior to such reduction) and (ii)
the denominator of which shall be the original amount of the Offered Securities. In the event that any Buyer so elects to reduce the
number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the
reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Buyers in accordance
with Section 4(q)(i) above.
(v)
Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Buyer shall acquire from the
Company, and the Company shall issue to such Buyer, the number or amount of Offered Securities specified in its Notice of Acceptance,
as reduced pursuant to Section 4(q)(iv) above if such Buyer has so elected, upon the terms and conditions specified in the Offer. The
purchase by such Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and
such Buyer of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such
Buyer and its counsel.
(vi)
Any Offered Securities not acquired by a Buyer or other Persons in accordance with this Section 4(q) may not be issued, sold or exchanged
until they are again offered to such Buyer under the procedures specified in this Agreement.
(vii)
The Company and each Buyer agree that if any Buyer elects to participate in the Offer, neither
the Subsequent Placement Agreement with respect to such Offer nor any other transaction documents
related thereto (collectively, the “Subsequent Placement Documents”) shall
include any term or provision whereby such Buyer shall be required to agree to any restrictions
on trading as to any securities of the Company or be required to consent to any amendment
to or termination of, or grant any waiver, release or the like under or in connection with,
any agreement previously entered into with the Company or any instrument received from the
Company.
(viii)
Notwithstanding anything to the contrary in this Section 4(q) and unless otherwise agreed to by such Buyer, the Company shall either
confirm in writing to such Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose
its intention to issue the Offered Securities, in either case, in such a manner such that such Buyer will not be in possession of any
material, non-public information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth
(5th) Business Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and
no notice regarding the abandonment of such transaction has been received by such Buyer, such transaction shall be deemed to have been
abandoned and such Buyer shall not be in possession of any material, non-public information with respect to the Company or any of its
Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall provide
such Buyer with another Offer Notice and such Buyer will again have the right of participation set forth in this Section 4(q). The Company
shall not be permitted to deliver more than one such Offer Notice to such Buyer in any sixty (60) day period, except as expressly contemplated
by the last sentence of Section 4(q)(ii).
(ix)
The restrictions contained in this Section 4(q) shall not apply in connection with the issuance of any Excluded Securities. The Company
shall not circumvent the provisions of this Section 4(q) by providing terms or conditions to one Buyer that are not provided to all.
(r)
Dilutive Issuances. For so long as any Notes remain outstanding, the Company shall not, in any manner, enter into or affect any
Dilutive Issuance (as defined in the Notes) if the effect of such Dilutive Issuance is to cause the Company to be required to issue upon
conversion of any Notes any Ordinary Shares in excess of that number of Ordinary Shares which the Company may issue upon conversion of
the Notes without breaching the Company’s obligations under the rules or regulations of the Principal Market.
(s)
Passive Foreign Investment Company. The Company shall conduct its business, and shall cause its Subsidiaries to conduct their
respective businesses, in such a manner as will ensure that the Company will not be deemed to constitute a passive foreign investment
company within the meaning of Section 1297 of the Code.
(t)
[Reserved]
(u)
Corporate Existence. So long as any Buyer beneficially owns any Notes, the Company shall not be party to any Fundamental Transaction
(as defined in the Notes) unless the Company is in compliance with the applicable provisions governing Fundamental Transactions set forth
in the Notes.
(v)
Share Splits. Until the Notes and all notes issued pursuant to the terms thereof are
no longer outstanding, the Company shall not effect any share combination, reverse share
split or other similar transaction (or make any public announcement or disclosure with respect
to any of the foregoing) without the prior written consent of the Required Holders (as defined
below), except that prior written consent of the Require Holders shall not be necessary,
if such share combination, reverse share split or other similar transaction is for compliance
with continued listing requirements of the Principal Market or the Eligible Market the Ordinary
Shares of the Company are then listed.
(w)
Conversion Procedures. The form of Conversion Notice (as defined in the Notes) included in the Notes set forth the totality of
the procedures required of the Buyers in order to convert the Notes. Except as provided in Section 5(d), no additional legal opinion,
other information or instructions shall be required of the Buyers to convert their Notes. The Company shall honor conversions of the
Notes and shall deliver the Conversion Shares in accordance with the terms, conditions and time periods set forth in the Notes. Without
limiting the preceding sentences, no ink-original Conversion Notice shall be required, nor shall any medallion guarantee (or other type
of guarantee or notarization) of any Conversion Notice form be required in order to convert the Notes.
(x)
Regulation M. The Company will not take any action prohibited by Regulation M under the 1934 Act, in connection with the distribution
of the Securities contemplated hereby.
(y)
[Reserved]
(z)
Closing Documents. On or prior to fourteen (14) calendar days after each Closing Date, the Company agrees to deliver, or cause
to be delivered, to each Buyer and Pryor Cashman LLP a complete closing set of the executed Transaction Documents, Securities and any
other document required to be delivered to any party pursuant to Section 7 hereof or otherwise.
5.
REGISTER; TRANSFER AGENT INSTRUCTIONS; LEGEND.
(a)
Register. The Company shall maintain at its principal executive offices (or such other office or agency of the Company as it may
designate by notice to each holder of Securities), a register for the Notes in which the Company shall record the name and address of
the Person in whose name the Notes have been issued (including the name and address of each transferee), the principal amount of the
Notes held by such Person and the number of Conversion Shares issuable pursuant to the terms of the Notes. The Company shall keep the
register open and available at all times during business hours for inspection of any Buyer or its legal representatives.
(b)
Transfer Agent Instructions. The Company shall issue irrevocable instructions to its transfer agent and any subsequent transfer
agent (as applicable, the “Transfer Agent”) in a form acceptable to each of the Buyers (the “Irrevocable
Transfer Agent Instructions”) to issue certificates or credit shares to the applicable balance accounts at The Depository Trust
Company (“DTC”), registered in the name of each Buyer or its respective nominee(s), for the Conversion Shares in such
amounts as specified from time to time by each Buyer to the Company upon conversion of the Notes. The Company represents and warrants
that no instruction other than the Irrevocable Transfer Agent Instructions referred to in this Section 5(b) will be given by the Company
to its transfer agent with respect to the Securities, and that the Securities shall otherwise be freely transferable on the books and
records of the Company, as applicable, to the extent provided in this Agreement and the other Transaction Documents. If a Buyer effects
a sale, assignment or transfer of any Securities, the Company shall permit the transfer and shall promptly instruct its transfer agent
to issue one or more certificates or credit shares to the applicable balance accounts at DTC in such name and in such denominations as
specified by such Buyer to effect such sale, transfer or assignment. The Company acknowledges that the remedy at law for a breach of
its obligations under this Section 5(b) will be inadequate and agrees, in the event of a breach or threatened breach by the Company of
the provisions of this Section 5(b), that a Buyer shall be entitled, in addition to all other available remedies, to an order and/or
injunction restraining any breach and requiring immediate issuance and transfer, without the necessity of showing economic loss and without
any bond or other security being required. The Company shall cause its counsel to issue the legal opinion referred to in the Irrevocable
Transfer Agent Instructions, if requested or required, as applicable, by the Transfer Agent, to the Transfer Agent as follows: (i) upon
each conversion of the Notes (unless such issuance is covered by a prior legal opinion previously delivered to the Transfer Agent and
(ii) on each date a registration statement with respect to the issuance or resale of any Securities is declared effective by the SEC.
Any fees (with respect to the transfer agent, counsel to the Company or otherwise) associated with the issuance of such opinion or the
removal of any legends on any of the Securities shall be borne by the Company.
(c)
Legends. Certificates and any other instruments evidencing the Securities shall not bear any restrictive or other legend.
6.
CONDITIONS TO THE COMPANY’S OBLIGATION TO SELL.
(a)
The obligation of the Company hereunder to issue and sell the Initial Notes to each Buyer at the Initial Closing is subject to the satisfaction,
at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for the Company’s
sole benefit and may be waived by the Company at any time in its sole discretion by providing each Buyer with prior written notice thereof:
(i)
Such Buyer shall have executed each of the other Transaction Documents to which it is a party
and delivered the same to the Company.
(ii)
Such Buyer and each other Buyer shall have delivered to the Company the Purchase Price (less,
in the case of any Buyer, the amounts withheld pursuant to Section 4(j)) for the Initial
Note being purchased by such Buyer at the Initial Closing by wire transfer of immediately
available funds in accordance with the Initial Flow of Funds Letter.
(iii)
The representations and warranties of such Buyer shall be true and correct in all material respects as of the date when made and as of
the Initial Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific
date, which shall be true and correct as of such specific date), and such Buyer shall have performed, satisfied and complied in all material
respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by such
Buyer at or prior to the Initial Closing Date.
(iv)
Such Buyer shall have duly executed and delivered to the Company a leak-out agreement, in the form attached hereto as Exhibit B
(each, a “Leak-Out Agreement”).
(b)
The obligation of the Company hereunder to issue and sell an Additional Note to each Buyer at the applicable Additional Closing is subject
to the satisfaction, at or before such Additional Closing Date, of each of the following conditions, provided that these conditions are
for the Company’s sole benefit and may be waived by the Company at any time in its sole discretion by providing each Buyer with
prior written notice thereof:
(i)
Such Buyer shall have executed each of the other Transaction Documents to which it is a party and delivered the same to the Company.
(ii)
Such Buyer and each other Buyer shall have delivered to the Company the applicable Additional Purchase Price (less, in the case of such
Buyer, the amounts withheld pursuant to Section 4(j)) for the Additional Note being purchased by such Buyer at such Additional Closing
by wire transfer of immediately available funds in accordance with the Additional Flow of Funds Letter.
(iii)
The representations and warranties of such Buyer shall be true and correct in all material respects as of the date when made and as of
such Additional Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific
date, which shall be true and correct as of such specific date), and such Buyer shall have performed, satisfied and complied in all material
respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by such
Buyer at or prior to such Additional Closing Date.
7.
CONDITIONS TO EACH BUYER’S OBLIGATION TO PURCHASE.
(a)
The obligation of each Buyer hereunder to purchase its Initial Note at the Initial Closing is subject to the satisfaction, at or before
the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer’s sole benefit
and may be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(i)
The Company and each Subsidiary (as the case may be) shall have duly executed and delivered to such Buyer each of the Transaction Documents
to which it is a party and the Company shall have duly executed and delivered to such Buyer a Note in such original principal amount
as is set forth across from such Buyer’s name in column (2) of the Schedule of Buyers being purchased by such Buyer at the Initial
Closing pursuant to this Agreement.
(ii)
Such Buyer shall have received the legal opinion with respect to matters of Cayman Islands law of Ogier, the Company’s Cayman Islands
legal counsel, and the legal opinion with respect to matters of U.S. law of Hunter Taubman Fischer & Li LLC, the Company’s
United States counsel, each dated as of the Initial Closing Date, in the form acceptable to such Buyer.
(iii)
The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, in the form acceptable to such
Buyer, which instructions shall have been delivered to and acknowledged in writing by the Company’s transfer agent and shall remain
in full force and effect as of such Initial Closing Date.
(iv)
The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing (if a good standing concept exists
in such jurisdiction) of the Company and each of its North American Subsidiaries in each such entity’s jurisdiction of formation
issued by the Secretary of State (or comparable office) of such jurisdiction of formation as of a date within ten (10) days of the Initial
Closing Date. As used herein, “North American Subsidiary” shall mean each Subsidiary domiciled in the United States
of America or Canada.
(v)
[Reserved]
(vi)
[Reserved]
(vii)
[Reserved]
(viii)
The Company shall have delivered to such Buyer a certificate, in the form acceptable to such Buyer, executed by the Secretary or the
Chief Financial Officer of the Company and dated as of the Initial Closing Date, as to (i) the resolutions consistent with Section 3(b)
as adopted by the Company’s board of directors in a form reasonably acceptable to such Buyer, (ii) the certificate of incorporation,
as amended, of the Company and (iii) the Memorandum and Articles of Association of the Company, each as in effect at the Initial Closing.
(ix)
Each and every representation and warranty of the Company shall be true and correct in all material respects (except for such representations
and warranties that are qualified by materiality or material adverse effect, which shall be true and correct in all respects) as of the
date when made and as of the Initial Closing Date as though originally made at that time (except for representations and warranties that
speak as of a specific date, which shall be true and correct as of such specific date) and the Company shall have performed, satisfied
and complied in all material respects with (except for covenants, agreements or conditions that are qualified by materiality or material
adverse effect, which shall be performed, satisfied and complied in all respects with) the covenants, agreements and conditions required
to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a
certificate, duly executed by the Chief Executive Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect
and as to such other matters as may be reasonably requested by such Buyer in the form acceptable to such Buyer.
(x)
The Company shall have delivered to such Buyer a letter from the Company’s transfer agent certifying the number of Ordinary Shares
outstanding on the Initial Closing Date immediately prior to the Initial Closing.
(xi)
The Ordinary Shares (A) shall be designated for quotation or listed (as applicable) on the Principal Market and (B) shall not have been
suspended, as of the Initial Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension
by the SEC or the Principal Market have been threatened, as of the Initial Closing Date, either (I) in writing by the SEC or the Principal
Market or (II) by falling below the minimum maintenance requirements of the Principal Market.
(xii)
The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of
the Securities, including without limitation, those required by the Principal Market, if any.
(xiii)
No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed
by any court or Governmental Entity of competent jurisdiction that prohibits the consummation of any of the transactions contemplated
by the Transaction Documents.
(xiv)
Since the date of execution of this Agreement, no event or series of events shall have occurred that reasonably would have or result
in a Material Adverse Effect.
(xv)
The Company shall have obtained approval of the Principal Market to list or designate for quotation (as the case may be) the Conversion
Shares.
(xvi)
the company and each other Buyer shall have duly executed and delivered a Leak-Out Agreement.
(xvii)
Such Buyer shall have received a letter on the letterhead of the Company duly executed by the Chief Executive Officer of the Company,
setting forth the wire amounts of each Buyer and the wire transfer instructions of the Company (the “Initial Flow of Funds Letter”).
(xviii)
From the date hereof to the Initial Closing Date, (i) trading in the Ordinary Shares shall not have been suspended by the SEC or the
Principal Market (except for any suspension of trading of limited duration, which suspension shall be terminated prior to the Initial
Closing) and (ii) at any time prior to the Initial 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 the Principal Market, nor shall a banking moratorium have been declared either by the United States or New York State
authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity
of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment
of each Buyer, makes it impracticable or inadvisable to purchase the Securities at the Initial Closing.
(xix)
The Registration Statement shall be effective and available for the issuance and sale of the Initial Notes to be issued in the Initial
Closing and the Conversion Shares issuable upon conversion thereof and the Company shall have delivered to such Buyer the Prospectus
and the Prospectus Supplement with respect thereto and required hereunder and thereunder.
(xx)
The Company and its Subsidiaries shall have delivered to such Buyer such other documents, instruments or certificates relating to the
transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.
(b)
The obligation of each Buyer hereunder to purchase the applicable Additional Note at the applicable Additional Closing is subject to
the satisfaction, at or before such Additional Closing Date, of each of the following conditions, provided that these conditions are
for each Buyer’s sole benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company with
prior written notice thereof:
(i)
The Company shall have duly executed and delivered to such Buyer each of the applicable Transaction Documents to which it is a party
and the Company shall have duly executed and delivered to such Buyer such Additional Note being purchased by such Buyer at such Additional
Closing pursuant to this Agreement.
(ii)
Such Buyer shall have received the legal opinion with respect to matters of Cayman Islands law of Ogier, the Company’s Cayman Islands
legal counsel, and the legal opinion with respect to matters of U.S. law of Hunter Taubman Fischer & Li LLC, the Company’s
United States counsel, each dated as of such Additional Closing Date, in the form acceptable to such Buyer.
(iii)
The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, in the form acceptable to such
Buyer, which instructions shall have been delivered to and acknowledged in writing by the Company’s transfer agent and shall remain
in full force and effect as of such Additional Closing Date.
(iv)
The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing (if a good standing concept exists
in such jurisdiction) of the Company and each of its North American Subsidiaries in each such entity’s jurisdiction of formation
issued by the Secretary of State (or comparable office) of such jurisdiction of formation as of a date within ten (10) days of such Additional
Closing Date.
(v)
[Reserved]
(vi)
[Reserved]
(vii)
[Reserved]
(viii)
The Company shall have delivered to such Buyer a certificate, in the form acceptable to such Buyer, executed by the Secretary or the
Chief Financial Officer of the Company and dated as of such Additional Closing Date, as to (i) the resolutions consistent with Section
3(b) as adopted by the Company’s board of directors in a form reasonably acceptable to such Buyer, (ii) the certificate of incorporation,
as amended, of the Company and (iii) the Memorandum and Articles of Association of the Company, each as in effect at such Additional
Closing.
(ix)
Each and every representation and warranty of the Company shall be true and correct in all material respects (except for such representations
and warranties that are qualified by materiality or material adverse effect, which shall be true and correct in all respects) as of the
date when made and as of such Additional Closing Date as though originally made at that time (except for representations and warranties
that speak as of a specific date, which shall be true and correct as of such specific date) and the Company shall have performed, satisfied
and complied in all material respects with (except for covenants, agreements or conditions that are qualified by materiality or material
adverse effect, which shall be performed, satisfied and complied in all material respects with) the covenants, agreements and conditions
required to be performed, satisfied or complied with by the Company at or prior to such Additional Closing Date (after giving effect
to an update of the schedules to the Securities Purchase Agreement, which in the aggregate, is not material and adverse to the Company
or the Buyers). Such Buyer shall have received a certificate, duly executed by the Chief Executive Officer of the Company, dated as of
such Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer in the
form acceptable to such Buyer.
(x)
The Company shall have delivered to such Buyer a letter from the Company’s transfer agent certifying the number of Ordinary Shares
outstanding on such Additional Closing Date immediately prior to such Additional Closing.
(xi)
The Ordinary Shares (A) shall be designated for quotation or listed (as applicable) on the Principal Market and (B) shall not have been
suspended, as of such Additional Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension
by the SEC or the Principal Market have been threatened, as of such Additional Closing Date, either (I) in writing by the SEC or the
Principal Market or (II) by falling below the minimum maintenance requirements of the Principal Market.
(xii)
The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of
the Securities, including without limitation, those required by the Principal Market, if any.
(xiii)
No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed
by any court or Governmental Entity of competent jurisdiction that prohibits the consummation of any of the transactions contemplated
by the Transaction Documents.
(xiv)
Since the date of execution of this Agreement, no event or series of events shall have occurred that reasonably would have or result
in a Material Adverse Effect.
(xv)
The Company shall have obtained approval of the Principal Market to list or designate for quotation (as the case may be) the Conversion
Shares issuable upon conversion of such Additional Notes to be sold in such Additional Closing.
(xvi)
Such Buyer shall have received a letter on the letterhead of the Company, duly executed by the Chief Executive Officer of the Company,
setting forth the wire amounts of each Buyer and the wire transfer instructions of the Company with respect to such Additional Closing
(each, an “Additional Flow of Funds Letter”).
(xvii)
From the date hereof to such Additional Closing Date, (i) trading in the Ordinary Shares shall not have been suspended by the SEC or
the Principal Market (except for any suspension of trading of limited duration, which suspension shall be terminated prior to such Additional
Closing) and (ii) at any time prior to such Additional 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 the Principal Market, nor shall a banking moratorium have been declared either by the United States or New York State
authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity
of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment
of each Buyer, makes it impracticable or inadvisable to purchase the Securities at such Additional Closing.
(xviii)
The Registration Statement shall be effective and available for the issuance and sale of the Additional Notes to be issued in such Additional
Closing and the Conversion Shares issuable upon conversion thereof and the Company shall have delivered to such Buyer the Prospectus
and the Prospectus Supplement with respect thereto as required hereunder and thereunder.
(xix)
No Equity Conditions Failure (as defined in the Initial Notes) exists as of such applicable Additional Closing Date.
(xx)
No bona fide dispute shall exist, by and between (or among) any of the Buyers, any holder of Notes and/or the Company, which dispute
is reasonably related to this Agreement, any of the Securities and/or the transactions contemplated hereby or thereby, as applicable.
(xxi)
The Company and its Subsidiaries shall have delivered to such Buyer such other documents, instruments or certificates relating to the
transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.
8.
TERMINATION.
In
the event that the Initial Closing shall not have occurred with respect to a Buyer within
five (5) days of the date hereof, then such Buyer shall have the right to terminate its obligations
under this Agreement with respect to itself at any time on or after the close of business
on such date without liability of such Buyer to any other party; provided, however, (i) the
right to terminate this Agreement under this Section 8 shall not be available to such Buyer
if the failure of the transactions contemplated by this Agreement to have been consummated
by such date is the result of such Buyer’s breach of this Agreement and (ii) the abandonment
of the sale and purchase of the Notes shall be applicable only to such Buyer providing such
written notice, provided further that no such termination shall affect any obligation of
the Company under this Agreement to reimburse such Buyer for the expenses described in Section
4(j) above. Nothing contained in this Section 8 shall be deemed to release any party from
any liability for any breach by such party of the terms and provisions of this Agreement
or the other Transaction Documents or to impair the right of any party to compel specific
performance by any other party of its obligations under this Agreement or the other Transaction
Documents.
9.
MISCELLANEOUS.
(a)
Governing Law; Jurisdiction; Jury Trial. All questions concerning the construction, validity, enforcement and interpretation of
this Agreement shall be governed by the internal laws of the State of Delaware, without giving effect to provision or rule (whether of
the State of Delaware or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State
of Delaware. The Company hereby irrevocably submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware,
for the adjudication of any dispute hereunder or in connection herewith or under any of the other Transaction Documents or with any transaction
contemplated hereby or thereby, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient
forum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives personal service of process
and consents to process being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address for
such notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. Nothing
contained herein shall be deemed or operate to preclude any Buyer from bringing suit or taking other legal action against the Company
in any other jurisdiction to collect on the Company’s obligations to such Buyer or to enforce a judgment or other court ruling
in favor of such Buyer. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR
THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR UNDER ANY OTHER TRANSACTION DOCUMENT OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT,
ANY OTHER TRANSACTION DOCUMENT OR ANY TRANSACTION CONTEMPLATED HEREBY OR THEREBY. The choice of the laws of the State of Delaware
as the governing law of this Agreement is a valid choice of law and would be recognized and given effect to in any action brought before
a court of competent jurisdiction in the Cayman Islands except for those laws (i) which such court considers to be procedural in nature,
(ii) which are revenue or penal laws or (iii) the application of which would be inconsistent with public policy, as such term is interpreted
under the laws of the Cayman Islands. The choice of laws of the State of Delaware as the governing law of this Agreement will be honored
by competent courts in the Cayman Islands subject to compliance with relevant Cayman Islands civil procedural requirements. The Company
or any of its properties, assets or revenues does not have any right of immunity, or to the extent that the Company or any of its properties,
assets, or revenues may have or may hereafter become entitled to any such right of immunity the Company hereby waives such right to the
extent permitted by law, under Cayman Islands or Delaware law, from any legal action, suit or proceeding, from the giving of any relief
in any such legal action, suit or proceeding, from set-off or counterclaim, from the jurisdiction of any Cayman Islands, Delaware or
United States federal court, from service of process, attachment upon or prior to judgment, or attachment in aid of execution of judgment,
or from execution of a judgment, or other legal process or proceeding for the giving of any relief or for the enforcement of a judgment,
in any such court, with respect to its obligations, liabilities or any other matter under or arising out of or in connection with this
Agreement; and, to the extent that the Company, or any of its properties, assets or revenues may have or may hereafter become entitled
to any such right of immunity in any such court in which proceedings may at any time be commenced, the Company hereby waives such right
to the extent permitted by law and hereby consents to such relief and enforcement as provided in this Agreement and the other Transaction
Documents.
(b)
Counterparts. This Agreement may be executed in two or more identical counterparts, all of which shall be considered one and the
same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party. In the event
that any signature is delivered by facsimile transmission or by an e-mail which contains a portable document format (.pdf) file of an
executed signature page, such signature page shall create a valid and binding obligation of the party executing (or on whose behalf such
signature is executed) with the same force and effect as if such signature page were an original thereof.
(c)
Headings; Gender. The headings of this Agreement are for convenience of reference and shall not form part of, or affect the interpretation
of, this Agreement. Unless the context clearly indicates otherwise, each pronoun herein shall be deemed to include the masculine, feminine,
neuter, singular and plural forms thereof. The terms “including,” “includes,” “include” and words
of like import shall be construed broadly as if followed by the words “without limitation.” The terms “herein,”
“hereunder,” “hereof” and words of like import refer to this entire Agreement instead of just the provision in
which they are found.
(d)
Severability; Maximum Payment Amounts. If any provision of this Agreement is prohibited by law or otherwise determined to be invalid
or unenforceable by a court of competent jurisdiction, the provision that would otherwise be prohibited, invalid or unenforceable shall
be deemed amended to apply to the broadest extent that it would be valid and enforceable, and the invalidity or unenforceability of such
provision shall not affect the validity of the remaining provisions of this Agreement so long as this Agreement as so modified continues
to express, without material change, the original intentions of the parties as to the subject matter hereof and the prohibited nature,
invalidity or unenforceability of the provision(s) in question does not substantially impair the respective expectations or reciprocal
obligations of the parties or the practical realization of the benefits that would otherwise be conferred upon the parties. The parties
will endeavor in good faith negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s),
the effect of which comes as close as possible to that of the prohibited, invalid or unenforceable provision(s). Notwithstanding anything
to the contrary contained in this Agreement or any other Transaction Document (and without implication that the following is required
or applicable), it is the intention of the parties that in no event shall amounts and value paid by the Company and/or any of its Subsidiaries
(as the case may be), or payable to or received by any of the Buyers, under the Transaction Documents (including without limitation,
any amounts that would be characterized as “interest” under applicable law) exceed amounts permitted under any applicable
law. Accordingly, if any obligation to pay, payment made to any Buyer, or collection by any Buyer pursuant to the Transaction Documents
is finally judicially determined to be contrary to any such applicable law, such obligation to pay, payment or collection shall be deemed
to have been made by mutual mistake of such Buyer, the Company and its Subsidiaries and such amount shall be deemed to have been adjusted
with retroactive effect to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by the applicable
law. Such adjustment shall be effected, to the extent necessary, by reducing or refunding, at the option of such Buyer, the amount of
interest or any other amounts which would constitute unlawful amounts required to be paid or actually paid to such Buyer under the Transaction
Documents. For greater certainty, to the extent that any interest, charges, fees, expenses or other amounts required to be paid to or
received by such Buyer under any of the Transaction Documents or related thereto are held to be within the meaning of “interest”
or another applicable term to otherwise be violative of applicable law, such amounts shall be pro-rated over the period of time to which
they relate.
(e)
Entire Agreement; Amendments. This Agreement, the other Transaction Documents and the schedules and exhibits attached hereto and
thereto and the instruments referenced herein and therein supersede all other prior oral or written agreements between the Buyers, the
Company, its Subsidiaries, their affiliates and Persons acting on their behalf, including, without limitation, any transactions by any
Buyer with respect to Ordinary Shares or the Securities, and the other matters contained herein and therein, and this Agreement, the
other Transaction Documents, the schedules and exhibits attached hereto and thereto and the instruments referenced herein and therein
contain the entire understanding of the parties solely with respect to the matters covered herein and therein; provided, however, nothing
contained in this Agreement or any other Transaction Document shall (or shall be deemed to) (i) have any effect on any agreements any
Buyer has entered into with, or any instruments any Buyer has received from, the Company or any of its Subsidiaries prior to the date
hereof with respect to any prior investment made by such Buyer in the Company or (ii) waive, alter, modify or amend in any respect any
obligations of the Company or any of its Subsidiaries, or any rights of or benefits to any Buyer or any other Person, in any agreement
entered into prior to the date hereof between or among the Company and/or any of its Subsidiaries and any Buyer, or any instruments any
Buyer received from the Company and/or any of its Subsidiaries prior to the date hereof, and all such agreements and instruments shall
continue in full force and effect. Except as specifically set forth herein or therein, neither the Company nor any Buyer makes any representation,
warranty, covenant or undertaking with respect to such matters. For clarification purposes, the Recitals are part of this Agreement.
No provision of this Agreement may be amended other than by an instrument in writing signed by the Company and the Required Holders (as
defined below), and any amendment to any provision of this Agreement made in conformity with the provisions of this Section 9(e) shall
be binding on all Buyers and holders of Securities, as applicable; provided that no such amendment shall be effective to the extent that
it (A) applies to less than all of the holders of the Securities then outstanding or (B) imposes any obligation or liability on any Buyer
without such Buyer’s prior written consent (which may be granted or withheld in such Buyer’s sole discretion). No waiver
shall be effective unless it is in writing and signed by an authorized representative of the waiving party, provided that the Required
Holders may waive any provision of this Agreement, and any waiver of any provision of this Agreement made in conformity with the provisions
of this Section 9(e) shall be binding on all Buyers and holders of Securities, as applicable, provided that no such waiver shall be effective
to the extent that it (1) applies to less than all of the holders of the Securities then outstanding (unless a party gives a waiver as
to itself only) or (2) imposes any obligation or liability on any Buyer without such Buyer’s prior written consent (which may be
granted or withheld in such Buyer’s sole discretion). No consideration (other than reimbursement of legal fees) shall be offered
or paid to any Person to amend or consent to a waiver or modification of any provision of any of the Transaction Documents unless the
same consideration also is offered to all of the parties to the Transaction Documents, all holders of the Notes. From the date hereof
and while any Notes are outstanding, the Company shall not be permitted to receive any consideration from a Buyer or a holder of Notes
that is not otherwise contemplated by the Transaction Documents in order to, directly or indirectly, induce the Company or any Subsidiary
(i) to treat such Buyer or holder of Notes in a manner that is more favorable than to other similarly situated Buyers or holders of Notes,
or (ii) to treat any Buyer(s) or holder(s) of Notes in a manner that is less favorable than the Buyer or holder of Notes that is paying
such consideration; provided, however, that the determination of whether a Buyer has been treated more or less favorably than another
Buyer shall disregard any securities of the Company purchased or sold by any Buyer. The Company has not, directly or indirectly, made
any agreements with any Buyers relating to the terms or conditions of the transactions contemplated by the Transaction Documents except
as set forth in the Transaction Documents. Without limiting the foregoing, the Company confirms that, except as set forth in this Agreement,
no Buyer has made any commitment or promise or has any other obligation to provide any financing to the Company, any Subsidiary or otherwise.
As a material inducement for each Buyer to enter into this Agreement, the Company expressly acknowledges and agrees that (x) no due diligence
or other investigation or inquiry conducted by a Buyer, any of its advisors or any of its representatives shall affect such Buyer’s
right to rely on, or shall modify or qualify in any manner or be an exception to any of, the Company’s representations and warranties
contained in this Agreement or any other Transaction Document and (y) unless a provision of this Agreement or any other Transaction Document
is expressly preceded by the phrase “except as disclosed in the SEC Documents,” nothing contained in any of the SEC Documents
shall affect such Buyer’s right to rely on, or shall modify or qualify in any manner or be an exception to any of, the Company’s
representations and warranties contained in this Agreement or any other Transaction Document. “Required Holders” means
(I) prior to the Closing Date, each Buyer entitled to purchase Notes at the Closing and (II) on or after the Closing Date, holders of
a majority of the Underlying Securities as of such time (excluding any Underlying Securities held by the Company or any of its Subsidiaries
as of such time) issued or issuable hereunder or pursuant to the Notes (or the Buyers, with respect to any waiver or amendment of Section
4(q)); provided, that such majority must include ATW Partners Opportunities Management, LLC.
(f)
Notices. Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement
must be in writing and will be deemed to have been delivered: (i) upon receipt, when delivered personally; (ii) upon receipt, when sent
by electronic mail (provided that such sent email is kept on file (whether electronically or otherwise) by the sending party and the
sending party does not receive an automatically generated message from the recipient’s email server that such e-mail could not
be delivered to such recipient); or (iii) one (1) Business Day after deposit with an overnight courier service with next day delivery
specified, in each case, properly addressed to the party to receive the same. The mailing addresses and e-mail addresses for such communications
shall be:
If
to the Company:
Top
KingWin Ltd
Room 1304, Building No. 25 Tian’an Headquarters Center,
No. 555 North Panyu Avenue, Donguan Street
Panyu
District, Guangzhou, Guangdong Province, PRC
Telephone: +86 400 661 3113
Attention: Ruilin Xu
E-Mail: ruilin.xu@tcjhgw.cn
With
a copy (for informational purposes only) to:
Hunter
Taubman Fischer & Li LLC
950 Third Avenue, 19th Floor
New
York, NY 10022
Telephone: (212) 530-2210
Attention: Joan Wu
E-Mail: jwu@htflawyers.com
If
to the Transfer Agent:
VStock
Transfer LLC
18 Lafayette Place
Woodmere,
New York 11598
Telephone: (212) 828-8436
Attention: N/A
E-Mail: action@vstocktransfer.com
If
to a Buyer, to its mailing address and e-mail address set forth on the Schedule of Buyers, with copies to such Buyer’s representatives
as set forth on the Schedule of Buyers,
with
a copy (for informational purposes only) to:
Pryor
Cashman LLP
7
Times Square, 40th Floor
New York, NY 10036
Telephone: (212) 326-4100
Attention: M. Ali Panjwani, Esq.
E-mail: apanjwani@pryorcashman.com
or
to such other mailing address and/or e-mail address and/or to the attention of such other Person as the recipient party has specified
by written notice given to each other party five (5) days prior to the effectiveness of such change, provided that Pryor Cashman LLP
shall only be provided copies of notices sent to the lead Buyer. Written confirmation of receipt (A) given by the recipient of such notice,
consent, waiver or other communication, (B) mechanically or electronically generated by the sender’s e-mail containing the time,
date and recipient’s e-mail or (C) provided by an overnight courier service shall be rebuttable evidence of personal service, receipt
by e-mail or receipt from an overnight courier service in accordance with clause (i), (ii) or (iii) above, respectively.
(g)
Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors
and assigns, including any purchasers of any of the Notes (but excluding any purchasers of Underlying Securities, unless pursuant to
a written assignment by such Buyer). The Company shall not assign this Agreement or any rights or obligations hereunder without the prior
written consent of the Required Holders, including, without limitation, by way of a Fundamental Transaction (as defined in the Notes)
(unless the Company is in compliance with the applicable provisions governing a Fundamental Transaction (as defined in the Notes) (unless
the Company is in compliance with the applicable provisions governing Fundamental Transactions set forth in the Notes). A Buyer may assign
some or all of its rights hereunder in connection with any transfer of any of its Securities without the consent of the Company, in which
event such assignee shall be deemed to be a Buyer hereunder with respect to such assigned rights.
(h)
No Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted
successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, other than the
Indemnitees referred to in Section 9(k).
(i)
Survival. The representations, warranties, agreements and covenants shall survive
each Closing. Each Buyer shall be responsible only for its own representations, warranties,
agreements and covenants hereunder.
(j)
Further Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and
shall execute and deliver all such other agreements, certificates, instruments and documents, as any other party may reasonably request
in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated
hereby.
(k)
Indemnification.
(i)
In consideration of each Buyer’s execution and delivery of the Transaction Documents and acquiring the Securities thereunder and
in addition to all of the Company’s other obligations under the Transaction Documents, the Company shall defend, protect, indemnify
and hold harmless each Buyer and each holder of any Securities and all of their shareholders, partners, members, officers, directors,
employees and direct or indirect investors and any of the foregoing Persons’ agents or other representatives (including, without
limitation, those retained in connection with the transactions contemplated by this Agreement) (collectively, the “Indemnitees”)
from and against any and all actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and expenses
in connection therewith (irrespective of whether any such Indemnitee is a party to the action for which indemnification hereunder is
sought), and including reasonable attorneys’ fees and disbursements (the “Indemnified Liabilities”), incurred
by any Indemnitee as a result of, or arising out of, or relating to (i) any misrepresentation or breach of any representation or warranty
made by the Company or any Subsidiary in any of the Transaction Documents, (ii) any breach of any covenant, agreement or obligation of
the Company or any Subsidiary contained in any of the Transaction Documents or (iii) any cause of action, suit, proceeding or claim brought
or made against such Indemnitee by a third party (including for these purposes a derivative action brought on behalf of the Company or
any Subsidiary) or which otherwise involves such Indemnitee that arises out of or results from (A) the execution, delivery, performance
or enforcement of any of the Transaction Documents, (B) any transaction financed or to be financed in whole or in part, directly or indirectly,
with the proceeds of the issuance of the Securities, (C) any disclosure properly made by such Buyer pursuant to Section 4(i), or (D)
the status of such Buyer or holder of the Securities either as an investor in the Company pursuant to the transactions contemplated by
the Transaction Documents or as a party to this Agreement (including, without limitation, as a party in interest or otherwise in any
action or proceeding for injunctive or other equitable relief). To the extent that the foregoing undertaking by the Company may be unenforceable
for any reason, the Company shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities
which is permissible under applicable law.
(ii)
Promptly after receipt by an Indemnitee under this Section 9(k) of notice of the commencement of any action or proceeding (including
any governmental action or proceeding) involving an Indemnified Liability, such Indemnitee shall, if a claim in respect thereof is to
be made against the Company under this Section 9(k), deliver to the Company a written notice of the commencement thereof, and the Company
shall have the right to participate in, and, to the extent the Company so desires, to assume control of the defense thereof with counsel
mutually satisfactory to the Company and the Indemnitee; provided, however, that an Indemnitee shall have the right to retain its own
counsel with the fees and expenses of such counsel to be paid by the Company if: (A) the Company has agreed in writing to pay such fees
and expenses; (B) the Company shall have failed promptly to assume the defense of such Indemnified Liability and to employ counsel reasonably
satisfactory to such Indemnitee in any such Indemnified Liability; or (C) the named parties to any such Indemnified Liability (including
any impleaded parties) include both such Indemnitee and the Company, and such Indemnitee shall have been advised by counsel that a conflict
of interest is likely to exist if the same counsel were to represent such Indemnitee and the Company (in which case, if such Indemnitee
notifies the Company in writing that it elects to employ separate counsel at the expense of the Company, then the Company shall not have
the right to assume the defense thereof and such counsel shall be at the expense of the Company), provided further, that in the case
of clause (C) above the Company shall not be responsible for the reasonable fees and expenses of more than one (1) separate legal counsel
for the Indemnitees. The Indemnitee shall reasonably cooperate with the Company in connection with any negotiation or defense of any
such action or Indemnified Liability by the Company and shall furnish to the Company all information reasonably available to the Indemnitee
which relates to such action or Indemnified Liability. The Company shall keep the Indemnitee reasonably apprised at all times as to the
status of the defense or any settlement negotiations with respect thereto. The Company shall not be liable for any settlement of any
action, claim or proceeding effected without its prior written consent, provided, however, that the Company shall not unreasonably withhold,
delay or condition its consent. The Company shall not, without the prior written consent of the Indemnitee, consent to entry of any judgment
or enter into any settlement or other compromise which does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnitee of a release from all liability in respect to such Indemnified Liability or litigation, and such settlement
shall not include any admission as to fault on the part of the Indemnitee. Following indemnification as provided for hereunder, the Company
shall be subrogated to all rights of the Indemnitee with respect to all third parties, firms or corporations relating to the matter for
which indemnification has been made. The failure to deliver written notice to the Company within a reasonable time of the commencement
of any such action shall not relieve the Company of any liability to the Indemnitee under this Section 9(k), except to the extent that
the Company is materially and adversely prejudiced in its ability to defend such action.
(iii)
The indemnification required by this Section 9(k) shall be made by periodic payments of the amounts thereof during the course of the
investigation or defense, within ten (10) days after bills are received or Indemnified Liabilities are incurred.
(iv)
The indemnity agreement contained herein shall be in addition to (A) any cause of action or similar right of the Indemnitee against the
Company or others, and (B) any liabilities the Company may be subject to pursuant to the law.
(l)
Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual
intent, and no rules of strict construction will be applied against any party. No specific representation or warranty shall limit the
generality or applicability of a more general representation or warranty. Each and every reference to share prices, Ordinary Shares and
any other numbers in this Agreement that relate to the Ordinary Shares shall be automatically adjusted for any share splits, share dividends,
share combinations, recapitalizations or other similar transactions that occur with respect to the Ordinary Shares after the date of
this Agreement. Notwithstanding anything in this Agreement to the contrary, for the avoidance of doubt, nothing contained herein shall
constitute a representation or warranty against, or a prohibition of, any actions with respect to the borrowing of, arrangement to borrow,
identification of the availability of, and/or securing of, securities of the Company in order for such Buyer (or its broker or other
financial representative) to effect short sales or similar transactions in the future.
(m)
Remedies. Each Buyer and in the event of assignment by Buyer of its rights and obligations hereunder, each holder of Securities,
shall have all rights and remedies set forth in the Transaction Documents and all rights and remedies which such holders have been granted
at any time under any other agreement or contract and all of the rights which such holders have under any law. Any Person having any
rights under any provision of this Agreement shall be entitled to enforce such rights specifically (without posting a bond or other security),
to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights granted by law. Furthermore,
the Company recognizes that in the event that it or any Subsidiary fails to perform, observe, or discharge any or all of its or such
Subsidiary’s (as the case may be) obligations under the Transaction Documents, any remedy at law would be inadequate relief to
the Buyers. The Company therefore agrees that the Buyers shall be entitled to specific performance and/or temporary, preliminary and
permanent injunctive or other equitable relief from any court of competent jurisdiction in any such case without the necessity of proving
actual damages and without posting a bond or other security. The remedies provided in this Agreement and the other Transaction Documents
shall be cumulative and in addition to all other remedies available under this Agreement and the other Transaction Documents, at law
or in equity (including a decree of specific performance and/or other injunctive relief).
(n)
Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) the Transaction
Documents, whenever any Buyer exercises a right, election, demand or option under a Transaction Document and the Company or any Subsidiary
does not timely perform its related obligations within the periods therein provided, then such Buyer may rescind or withdraw, in its
sole discretion from time to time upon written notice to the Company or such Subsidiary (as the case may be), any relevant notice, demand
or election in whole or in part without prejudice to its future actions and rights.
(o)
Payment Set Aside; Currency. To the extent that the Company makes a payment or payments to any Buyer hereunder or pursuant to
any of the other Transaction Documents or any of the Buyers enforce or exercise their rights hereunder or thereunder, and such payment
or payments or the proceeds of such enforcement or exercise or any part thereof are subsequently invalidated, declared to be fraudulent
or preferential, set aside, recovered from, disgorged by or are required to be refunded, repaid or otherwise restored to the Company,
a trustee, receiver or any other Person under any law (including, without limitation, any bankruptcy law, foreign, state or federal law,
common law or equitable cause of action), then to the extent of any such restoration the obligation or part thereof originally intended
to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such enforcement or setoff
had not occurred. Unless otherwise expressly indicated, all dollar amounts referred to in this Agreement and the other Transaction Documents
are in United States Dollars (“U.S. Dollars”), and all amounts owing under this Agreement and all other Transaction
Documents shall be paid in U.S. Dollars. All amounts denominated in other currencies (if any) shall be converted into the U.S. Dollar
equivalent amount in accordance with the Exchange Rate on the date of calculation. “Exchange Rate” means, in relation
to any amount of currency to be converted into U.S. Dollars pursuant to this Agreement, the U.S. Dollar exchange rate as published in
the Wall Street Journal on the relevant date of calculation.
(p)
Judgment Currency.
(i)
If for the purpose of obtaining or enforcing judgment against the Company in connection with this Agreement or any other Transaction
Document in any court in any jurisdiction it becomes necessary to convert into any other currency (such other currency being hereinafter
in this Section 9(p) referred to as the “Judgment Currency”) an amount due in U.S. Dollars under this Agreement, the
conversion shall be made at the Exchange Rate prevailing on the Trading Day immediately preceding:
(1)
the date actual payment of the amount due, in the case of any proceeding in the courts of New York or in the courts of any other jurisdiction
that will give effect to such conversion being made on such date: or
(2)
the date on which the foreign court determines, in the case of any proceeding in the courts of any other jurisdiction (the date as of
which such conversion is made pursuant to this Section 9(p)(i)(2) being hereinafter referred to as the “Judgment Conversion
Date”).
(ii)
If in the case of any proceeding in the court of any jurisdiction referred to in Section 9(p)(i)(2) above, there is a change in the Exchange
Rate prevailing between the Judgment Conversion Date and the date of actual payment of the amount due, the applicable party shall pay
such adjusted amount as may be necessary to ensure that the amount paid in the Judgment Currency, when converted at the Exchange Rate
prevailing on the date of payment, will produce the amount of US Dollars which could have been purchased with the amount of Judgment
Currency stipulated in the judgment or judicial order at the Exchange Rate prevailing on the Judgment Conversion Date.
(iii)
Any amount due from the Company under this provision shall be due as a separate debt and shall not be affected by judgment being obtained
for any other amounts due under or in respect of this Agreement or any other Transaction Document.
(q)
Independent Nature of Buyers’ Obligations and Rights. The obligations of each Buyer under the Transaction Documents are
several and not joint with the obligations of any other Buyer, and no Buyer shall be responsible in any way for the performance of the
obligations of any other Buyer under any Transaction Document. Nothing contained herein or in any other Transaction Document, and no
action taken by any Buyer pursuant hereto or thereto, shall be deemed to constitute the Buyers as, and the Company acknowledges that
the Buyers do not so constitute, a partnership, an association, a joint venture or any other kind of group or entity, or create a presumption
that the Buyers are in any way acting in concert or as a group or entity, and the Company shall not assert any such claim with respect
to such obligations or the transactions contemplated by the Transaction Documents or any matters, and the Company acknowledges that the
Buyers are not acting in concert or as a group, and the Company shall not assert any such claim, with respect to such obligations or
the transactions contemplated by the Transaction Documents. The decision of each Buyer to purchase Securities pursuant to the Transaction
Documents has been made by such Buyer independently of any other Buyer. Each Buyer acknowledges that no other Buyer has acted as agent
for such Buyer in connection with such Buyer making its investment hereunder and that no other Buyer will be acting as agent of such
Buyer in connection with monitoring such Buyer’s investment in the Securities or enforcing its rights under the Transaction Documents.
The Company and each Buyer confirms that each Buyer has independently participated with the Company and its Subsidiaries in the negotiation
of the transaction contemplated hereby with the advice of its own counsel and advisors. Each Buyer shall be entitled to independently
protect and enforce its rights, including, without limitation, the rights arising out of this Agreement or out of any other Transaction
Documents, and it shall not be necessary for any other Buyer to be joined as an additional party in any proceeding for such purpose.
The use of a single agreement to effectuate the purchase and sale of the Securities contemplated hereby was solely in the control of
the Company, not the action or decision of any Buyer, and was done solely for the convenience of the Company and its Subsidiaries and
not because it was required or requested to do so by any Buyer. It is expressly understood and agreed that each provision contained in
this Agreement and in each other Transaction Document is between the Company, each Subsidiary and a Buyer, solely, and not between the
Company, its Subsidiaries and the Buyers collectively and not between and among the Buyers.
[signature
pages follow]
IN
WITNESS WHEREOF, each Buyer and the Company have caused their respective signature page to this Agreement to be duly executed as
of the date first written above.
| |
COMPANY: |
| |
|
|
| |
Top
KingWin Ltd.
|
| |
|
| |
By: |
|
| |
|
Name: |
Ruilin Xu |
| |
|
Title: |
Chief Executive Officer |
IN
WITNESS WHEREOF, each Buyer and the Company have caused their respective signature page to this Agreement to be duly executed as
of the date first written above.
| |
BUYER: |
| |
|
| |
JAK Opportunities VIII LLC |
| |
|
|
| |
By: |
|
| |
|
Name:
|
Antonio Ruiz-Gimenez |
| |
|
Title: |
Authorized Signatory |
SCHEDULE
OF BUYERS
| (1) |
(2) |
(3) |
(4) |
(5) |
(6) |
(7) |
(8) |
(9) |
(10) |
| |
|
|
|
|
|
|
|
|
|
| Buyer |
Aggregate
Principal Amount (Initial Tranche) |
Aggregate
Principal Amount (2nd Tranche) |
Aggregate
Principal Amount (3rd Tranche) |
Aggregate
Principal Amount (Fourth Tranche) |
Aggregate
Principal Amount (Fifth Tranche) |
Aggregate
Principal Amount (Sixth Tranche) |
Aggregate
Principal Amount (Seventh Tranche) |
Aggregate
Principal Amount (Eighth Tranche) |
Address |
| JAK
Opportunities VIII LLC |
$1,000,000 |
$4,000,000 |
$4,000,000 |
$4,000,000 |
$4,000,000 |
$4,000,000 |
$4,000,000 |
$4,500,000 |
c/o
ATW Partners LLC 1 Pennsylvania Plaza, Suite 4810 New York, NY 10119
Attention: Antonio Ruiz-Gimenez Email: aruizg@atwpartners.com;
notice@atwpartners.com |
46
Exhibit 99.2
FORM OF CONVERTIBLE NOTE
THE PRINCIPAL AMOUNT REPRESENTED BY THIS NOTE
AND, ACCORDINGLY, THE SECURITIES ISSUABLE UPON CONVERSION HEREOF MAY BE LESS THAN THE AMOUNTS SET FORTH ON THE FACE HEREOF PURSUANT TO
SECTION 3(c)(iii) OF THIS NOTE.
THIS NOTE HAS BEEN ISSUED WITH ORIGINAL ISSUE
DISCOUNT (“OID”). PURSUANT TO TREASURY REGULATION §1.1275-3(b)(1), MS. JIE YANG, A REPRESENTATIVE OF THE COMPANY HEREOF
WILL, BEGINNING TEN DAYS AFTER THE ISSUANCE DATE OF THIS NOTE, PROMPTLY MAKE AVAILABLE TO THE HOLDER UPON REQUEST THE INFORMATION DESCRIBED
IN TREASURY REGULATION §1.1275-3(b)(1)(i). MS. JIE YANG MAY BE REACHED AT TELEPHONE NUMBER +86 (020) 31566692.
Top KingWin
Ltd.
Convertible
Note
| Issuance Date: [●] 2025__ |
Original Principal Amount: U.S. $[●] |
FOR VALUE RECEIVED,
Top KingWin Ltd., an exempted company incorporated under the laws of the Cayman Islands (the “Company”), hereby promises
to pay to the order of [BUYER] or its registered assigns (”Holder”) the amount set forth above as the Original Principal
Amount (as reduced pursuant to the terms hereof pursuant to redemption, conversion or otherwise, the “Principal”) when
due, whether upon the Maturity Date (as defined below), or upon acceleration, redemption or otherwise (in each case in accordance with
the terms hereof) and to pay interest (“Interest”) on any outstanding Principal at the applicable Interest Rate (as
defined below) from the date set forth above as the Issuance Date (the “Issuance Date”) until the same becomes due
and payable, whether upon the Maturity Date or upon acceleration, conversion, redemption or otherwise (in each case in accordance with
the terms hereof). This convertible note (including all convertible notes issued in exchange, transfer or replacement hereof, this “Note”)
is one of an issue of convertible notes (collectively, the “Notes”, and such other convertible notes, the “Other
Notes”) issued pursuant to (i) Section 1 of that certain Securities Purchase Agreement, dated as of February 18, 2025 (the “Subscription
Date”), by and among the Company and the investors (the “Buyers”) referred to therein, as amended from time
to time (the “Securities Purchase Agreement”) and (ii) the Company’s Registration Statement on Form F-3 (File
number 333-283030) (the “Registration Statement”). Certain capitalized terms used herein are defined in Section 33.
1. PAYMENTS OF PRINCIPAL.
On the Maturity Date, the Company shall pay to the Holder an amount in cash representing all outstanding Principal, accrued and unpaid
Interest and accrued and unpaid Late Charges (as defined in Section 26(c)), if any, on such Principal and Interest. Other than as specifically
permitted by this Note, the Company may not prepay any portion of the outstanding Principal, accrued and unpaid Interest or accrued and
unpaid Late Charges on Principal and Interest, if any.
2. INTEREST; INTEREST RATE.
(a) Interest on
this Note shall commence accruing on the Issuance Date and shall be computed on the basis of a 360-day year and twelve 30-day months.
Interest shall be payable on the first Trading Day of each Fiscal Quarter (each, an “Interest Date”), to the record
holder of this Note on the applicable Interest Date, in Ordinary Shares (as defined below; such Ordinary Shares issued for the payment
of Interest, the “Interest Shares”) so long as there has been no Equity Conditions Failure; provided however, that
the Company may, at its option following notice to the Holder, pay Interest on any Interest Date in cash (“Cash Interest”)
or in a combination of Cash Interest and Interest Shares. The Company shall deliver a written notice (each, an “Interest Election
Notice”) to each holder of the Notes on or prior to the tenth (10th) Trading Day immediately prior to the applicable Interest
Date (the date such notice is delivered to all of the holder, the “Interest Notice Date”) which notice (i) either (A)
confirms that Interest to be paid on such Interest Date shall be paid entirely in Interest Shares or (B) elects to pay Interest as Cash
Interest or a combination of Cash Interest and Interest Shares and specifies the amount of Interest that shall be paid as Cash Interest
and the amount of Interest, if any, that shall be paid in Interest Shares and (ii) certifies that there has been no Equity Conditions
Failure. If an Equity Conditions Failure has occurred as of the Interest Notice Date, then unless the Company has elected to pay such
Interest as Cash Interest, the Interest Election Notice shall indicate that unless the Holder waives the Equity Conditions Failure, the
Interest shall be paid as Cash Interest. Notwithstanding anything herein to the contrary, if no Equity Conditions Failure has occurred
as of the Interest Notice Date but an Equity Conditions Failure occurs at any time prior to the Interest Date, (A) the Company shall provide
the Holder a subsequent notice to that effect and (B) unless the Holder waives the Equity Conditions Failure, the Interest shall be paid
in cash. Interest to be paid on an Interest Date in Interest Shares shall be paid in a number of fully paid and nonassessable Ordinary
Shares registered under the 1933 Act (rounded to the nearest whole share in accordance with Section 3(a)) equal to the quotient of (1)
the amount of Interest payable on such Interest Date less any Cash Interest paid and (2) the Interest Conversion Price in effect on the
applicable Interest Date.
(b) When any Interest
Shares are to be paid on an Interest Date, the Company shall (i) (A) provided that the Company’s transfer agent (the “Transfer
Agent”) is participating in the Depository Trust Company (“DTC”) Fast Automated Securities Transfer Program
(“FAST”), credit such aggregate number of Interest Shares to which the Holder shall be entitled to the Holder’s
or its designee’s balance account with DTC through its Deposit/Withdrawal at Custodian system, or (B) if the Transfer Agent is not
participating in FAST, issue and deliver on the applicable Interest Date, to the address set forth in the register maintained by the Company
for such purpose pursuant to the Securities Purchase Agreement or to such address as specified by the Holder in writing to the Company
at least two (2) Business Days prior to the applicable Interest Date, a certificate, registered in the name of the Holder or its designee,
for the number of Interest Shares to which the Holder shall be entitled and (ii) with respect to each Interest Date, pay to the Holder,
in cash by wire transfer of immediately available funds, the amount of any Cash Interest.
(c) Prior to the
payment of Interest on an Interest Date, Interest on this Note shall accrue at the Interest Rate and be payable by way of inclusion of
the Interest in the Conversion Amount (as defined below) on each Conversion Date (as defined below) in accordance with Section 3(b)(i)
or upon any redemption in accordance with Section 13 or any required payment upon any Bankruptcy Event of Default. From and after the
occurrence and during the continuance of any Event of Default, the Interest Rate in effect with respect to such determination shall automatically
be increased to the Default Rate. In the event that such Event of Default is subsequently cured (and no other Event of Default then exists,
including, without limitation, for the Company’s failure to pay such Interest at the Default Rate on the applicable Interest Date),
the adjustment referred to in the preceding sentence shall cease to be effective as of the calendar day immediately following the date
of such cure; provided that the Interest as calculated and unpaid at such increased rate during the continuance of such Event of Default
shall continue to apply to the extent relating to the days after the occurrence of such Event of Default through and including the date
of such cure of such Event of Default.
3. CONVERSION OF NOTES.
At any time after the Issuance Date, this Note shall be convertible into validly issued, fully paid and non-assessable Ordinary Shares,
on the terms and conditions set forth in this Section 3.
(a) Conversion
Right. Subject to the provisions of Section 3(d), at any time or times on or after the Issuance Date, the Holder shall be entitled
to convert any portion of the outstanding and unpaid Conversion Amount into validly issued, fully paid and non-assessable Ordinary Shares
in accordance with Section 3(c), at the Conversion Rate (as defined below), including after the Maturity Date, solely in the event all
outstanding Principal, accrued and unpaid Interest and accrued and unpaid Late Charges are not repaid by the Company on the Maturity Date.
The Company shall not issue any fraction of an Ordinary Share upon any conversion. If the issuance would result in the issuance of a fraction
of an Ordinary Share, the Company shall round such fraction of an Ordinary Share up to the nearest whole share. The Company shall pay
any and all transfer, stamp, issuance and similar taxes, costs and expenses (including, without limitation, fees and expenses of the Transfer
Agent) that may be payable with respect to the issuance and delivery of Ordinary Shares upon conversion of any Conversion Amount.
(b) Conversion
Rate. The number of Ordinary Shares issuable upon conversion of any Conversion Amount pursuant to Section 3(a) shall be determined
by dividing (x) such Conversion Amount by (y) the Conversion Price (the “Conversion Rate”).
(i) “Conversion
Amount” means 115% of the sum of (A) the portion of the Principal of this Note to be converted, redeemed or otherwise with respect
to which this determination is being made, (B) accrued and unpaid Interest with respect to such Principal of this Note, (C) accrued and
unpaid Late Charges with respect to such Principal of this Note and Interest, if any, and (D) any other unpaid amounts pursuant to this
Note, if any.
(ii) “Conversion
Price” means, as of any Conversion Date or other date of determination, $[ ]1, subject to adjustment as provided
herein.
(c) Mechanics of Conversion.
(i) Optional
Conversion. To convert any Conversion Amount into Ordinary Shares on any date (a “Conversion Date”), the Holder
shall deliver (whether via electronic mail or otherwise), for receipt on or prior to 11:59 p.m., New York time, on such date, a copy of
an executed notice of conversion in the form attached hereto as Exhibit I (each, a “Conversion Notice”) to the
Company. If required by Section 3(c)(iii), within two (2) Trading Days following a conversion of this Note as aforesaid, the Holder shall
surrender this Note to a nationally recognized overnight delivery service for delivery to the Company (or an indemnification undertaking
with respect to this Note in the case of its loss, theft or destruction as contemplated by Section 20(b)). On or before the first (1st)
Trading Day following the date of receipt of a Conversion Notice, the Company shall transmit by electronic mail an acknowledgment, in
the form attached hereto as Exhibit II, of confirmation of receipt of such Conversion Notice (each, an “Acknowledgement”)
to the Holder and the Transfer Agent, which confirmation shall constitute an instruction to the Transfer Agent to process such Conversion
Notice in accordance with the terms herein. On or before the second (2nd) Trading Day following the date on which the Company has received
a Conversion Notice (or such earlier date as required pursuant to the 1934 Act or other applicable law, rule or regulation for the settlement
of a trade initiated on the applicable Conversion Date of such Ordinary Shares issuable pursuant to such Conversion Notice) (the “Share
Delivery Deadline”), the Company shall (1) provided that the Transfer Agent is participating in FAST, credit such aggregate
number of Ordinary Shares to which the Holder shall be entitled pursuant to such conversion to the Holder’s or its designee’s
balance account with DTC through its Deposit/Withdrawal at Custodian system or (2) if the Transfer Agent is not participating in FAST,
upon the request of the Holder, issue and deliver (via reputable overnight courier) to the address as specified in the Conversion Notice,
a certificate, registered in the name of the Holder or its designee, for the number of Ordinary Shares to which the Holder shall be entitled
pursuant to such conversion. If this Note is physically surrendered for conversion pursuant to Section 3(c)(iii) and the outstanding Principal
of this Note is greater than the Principal portion of the Conversion Amount being converted, then the Company shall as soon as practicable
and in no event later than two (2) Business Days after receipt of this Note and at its own expense, issue and deliver to the Holder (or
its designee) a new Note (in accordance with Section 20(d)) representing the outstanding Principal not converted. The Person or Persons
entitled to receive the Ordinary Shares issuable upon a conversion of this Note shall be treated for all purposes as the record holder
or holders of such Ordinary Shares on the Conversion Date.
| 1 | Insert with respect to the Initial Notes (as defined in the
Securities Purchase Agreement): The Closing Bid Price of the Ordinary Shares on the Trading Day ended immediately preceding the time
of execution of the Securities Purchase Agreement. |
Insert with respect to the Additional Notes (as defined in the Securities
Purchase Agreement): the greater of (x) the Floor Price and (y) 80% of the lowest VWAP of the Ordinary Shares during the ten (10) consecutive
Trading Day period ending and including the Trading Day immediately preceding the applicable Additional Closing Date.
(ii) Company’s
Failure to Timely Convert. If the Company shall fail, for any reason or for no reason, on or prior to the applicable Share Delivery
Deadline, if the Transfer Agent is not participating in FAST, to issue and deliver to the Holder (or its designee) a certificate for the
number of Ordinary Shares to which the Holder is entitled and register such Ordinary Shares on the Company’s share register or,
if the Transfer Agent is participating in FAST, to credit the balance account of the Holder or the Holder’s designee with DTC for
such number of Ordinary Shares to which the Holder is entitled upon the Holder’s conversion of this Note (as the case may be) (a
“Conversion Failure”), then, in addition to all other remedies available to the Holder, (1) the Company shall pay in
cash to the Holder on each day after such Share Delivery Deadline that the issuance of such Ordinary Shares is not timely effected an
amount equal to 1.5% of the product of (A) the sum of the number of Ordinary Shares not issued to the Holder on or prior to the Share
Delivery Deadline and to which the Holder is entitled, multiplied by (B) any VWAP of the Ordinary Shares on any Trading Day (as selected
by the Holder in writing) during the period beginning on the applicable Conversion Date and ending on the applicable Share Delivery Deadline
and (2) the Holder, upon written notice to the Company, may void its Conversion Notice with respect to, and retain or have returned (as
the case may be) any portion of this Note that has not been converted pursuant to such Conversion Notice, provided that the voiding of
a Conversion Notice shall not affect the Company’s obligations to make any payments which have accrued prior to the date of such
notice pursuant to this Section 3(c)(ii) or otherwise. In addition to the foregoing, if on or prior to the Share Delivery Deadline if
the Transfer Agent is not participating in FAST, the Company shall fail to issue and deliver to the Holder (or its designee) a certificate
and register such Ordinary Shares on the Company’s share register or, if the Transfer Agent is participating in FAST, the Transfer
Agent shall fail to credit the balance account of the Holder or the Holder’s designee with DTC for the number of Ordinary Shares
to which the Holder is entitled upon the Holder’s conversion hereunder or pursuant to the Company’s obligation pursuant to
clause (II) below, and if on or after such Share Delivery Deadline the Holder acquires (in an open market transaction, stock loan or otherwise)
Ordinary Shares corresponding to all or any portion of the number of Ordinary Shares issuable upon such conversion that the Holder is
entitled to receive from the Company and has not received from the Company in connection with such Conversion Failure (a “Buy-In”),
then, in addition to all other remedies available to the Holder, the Company shall, within two (2) Business Days after receipt of the
Holder’s request and in the Holder’s discretion, either: (I) pay cash to the Holder in an amount equal to the Holder’s
total purchase price (including brokerage commissions, stock loan costs and other out-of-pocket expenses, if any) for the Ordinary Shares
so acquired (including, without limitation, by any other Person in respect, or on behalf, of the Holder) (the “Buy-In Price”),
at which point the Company’s obligation to so issue and deliver such certificate (and to issue such Ordinary Shares) or credit the
balance account of such Holder or such Holder’s designee, as applicable, with DTC for the number of Ordinary Shares to which the
Holder is entitled upon the Holder’s conversion hereunder (as the case may be) (and to issue such Ordinary Shares) shall terminate,
or (II) promptly honor its obligation to so issue and deliver to the Holder a certificate or certificates representing such Ordinary Shares
or credit the balance account of such Holder or such Holder’s designee, as applicable, with DTC for the number of Ordinary Shares
to which the Holder is entitled upon the Holder’s conversion hereunder (as the case may be) and pay cash to the Holder in an amount
equal to the excess (if any) of the Buy-In Price over the product of (x) such number of Ordinary Shares multiplied by (y) the lowest VWAP
of the Ordinary Shares on any Trading Day during the period commencing on the date of the applicable Conversion Notice and ending on the
date of such issuance and payment under this clause (II) (the “Buy-In Payment Amount”). Nothing shall limit the Holder’s
right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation, a decree of specific
performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing Ordinary
Shares (or to electronically deliver such Ordinary Shares) upon the conversion of this Note as required pursuant to the terms hereof.
(iii) Registration;
Book-Entry. The Company shall maintain a register (the “Register”) for the recordation of the names and addresses
of the holders of each Note and the principal amount of the Notes held by such holders (the “Registered Notes”). The
entries in the Register shall be conclusive and binding for all purposes absent manifest error. The Company and the holders of the Notes
shall treat each Person whose name is recorded in the Register as the owner of a Note for all purposes (including, without limitation,
the right to receive payments of Principal and Interest hereunder) notwithstanding notice to the contrary. A Registered Note may be assigned,
transferred or sold in whole or in part only by registration of such assignment or sale on the Register. Upon its receipt of a written
request to assign, transfer or sell all or part of any Registered Note by the holder thereof, the Company shall record the information
contained therein in the Register and issue one or more new Registered Notes in the same aggregate principal amount as the principal amount
of the surrendered Registered Note to the designated assignee or transferee pursuant to Section 20, provided that if the Company does
not so record an assignment, transfer or sale (as the case may be) of all or part of any Registered Note within two (2) Business Days
of such a request, then the Register shall be automatically deemed updated to reflect such assignment, transfer or sale (as the case may
be). Following conversion of any portion of this Note in accordance with the terms hereof, the Holder shall not be required to physically
surrender this Note to the Company unless (A) the full Conversion Amount represented by this Note is being converted (in which event this
Note shall be delivered to the Company following conversion thereof as contemplated by Section 3(c)(i)) or (B) the Holder has provided
the Company with prior written notice (which notice may be included in a Conversion Notice) requesting reissuance of this Note upon physical
surrender of this Note. The Holder and the Company shall maintain records showing the Principal, Interest and Late Charges converted and/or
paid (as the case may be) and the dates of such conversions, and/or payments (as the case may be) or shall use such other method, reasonably
satisfactory to the Holder and the Company, so as not to require physical surrender of this Note upon conversion. If the Company does
not update the Register to record such Principal, Interest and Late Charges converted and/or paid (as the case may be) and the dates of
such conversions, and/or payments (as the case may be) within two (2) Business Days of such occurrence, then the Register shall be automatically
deemed updated to reflect such occurrence.
(iv) Pro Rata
Conversion; Disputes. In the event that the Company receives a Conversion Notice from more than one holder of Notes for the same Conversion
Date and the Company can convert some, but not all, of such portions of the Notes submitted for conversion, the Company, subject to Section
3(d), shall convert from each holder of Notes electing to have Notes converted on such date a pro rata amount of such holder’s portion
of its Notes submitted for conversion based on the principal amount of Notes submitted for conversion on such date by such holder relative
to the aggregate principal amount of all Notes submitted for conversion on such date. In the event of a dispute as to the number of Ordinary
Shares issuable to the Holder in connection with a conversion of this Note, the Company shall issue to the Holder the number of Ordinary
Shares not in dispute and resolve such dispute in accordance with Section 25.
(d) Limitations
on Conversions.
(i) Beneficial
Ownership. The Company shall not effect the conversion of any portion of this Note, and the Holder shall not have the right to convert
any portion of this Note pursuant to the terms and conditions of this Note and any such conversion shall be null and void and treated
as if never made, to the extent that after giving effect to such conversion, the Holder together with the other Attribution Parties collectively
would beneficially own in excess of 9.99% (the “Maximum Percentage”) of the Ordinary Shares outstanding immediately
after giving effect to such conversion. For purposes of the foregoing sentence, the aggregate number of Ordinary Shares beneficially owned
by the Holder and the other Attribution Parties shall include the number of Ordinary Shares held by the Holder and all other Attribution
Parties plus the number of Ordinary Shares issuable upon conversion of this Note with respect to which the determination of such sentence
is being made, but shall exclude Ordinary Shares which would be issuable upon (A) conversion of the remaining, nonconverted portion of
this Note beneficially owned by the Holder or any of the other Attribution Parties and (B) exercise or conversion of the unexercised or
nonconverted portion of any other securities of the Company (including, without limitation, any convertible notes or convertible preferred
stock or warrants) beneficially owned by the Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous
to the limitation contained in this Section 3(d)(i). For purposes of this Section 3(d)(i), beneficial ownership shall be calculated in
accordance with Section 13(d) of the 1934 Act. For purposes of determining the number of outstanding Ordinary Shares the Holder may acquire
upon the conversion of this Note without exceeding the Maximum Percentage, the Holder may rely on the number of outstanding Ordinary Shares
as reflected in (x) the Company’s most recent Annual Report on Form 20-F, Report of Foreign Issuer on Form 6-K or other public filing
with the SEC, as the case may be, (y) a more recent public announcement by the Company or (z) any other written notice by the Company
or the Transfer Agent, if any, setting forth the number of Ordinary Shares outstanding (the “Reported Outstanding Share Number”).
If the Company receives a Conversion Notice from the Holder at a time when the actual number of outstanding Ordinary Shares is less than
the Reported Outstanding Share Number, the Company shall notify the Holder in writing of the number of Ordinary Shares then outstanding
and, to the extent that such Conversion Notice would otherwise cause the Holder’s beneficial ownership, as determined pursuant to
this Section 3(d)(i), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of Ordinary Shares to be
purchased pursuant to such Conversion Notice. For any reason at any time, upon the written or oral request of the Holder, the Company
shall within one (1) Business Day confirm orally and in writing or by electronic mail to the Holder the number of Ordinary Shares then
outstanding. In any case, the number of outstanding Ordinary Shares shall be determined after giving effect to the conversion or exercise
of securities of the Company, including this Note, by the Holder and any other Attribution Party since the date as of which the Reported
Outstanding Share Number was reported. In the event that the issuance of Ordinary Shares to the Holder upon conversion of this Note results
in the Holder and the other Attribution Parties being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of
the number of outstanding Ordinary Shares (as determined under Section 13(d) of the 1934 Act), the number of shares so issued by which
the Holder’s and the other Attribution Parties’ aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess
Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder shall not have the power to vote or
to transfer the Excess Shares. Upon delivery of a written notice to the Company, the Holder may from time to time increase (with such
increase not effective until the sixty-first (61st) day after delivery of such notice)
or decrease the Maximum Percentage to any other percentage not in excess of 9.99% as specified in such notice; provided that (i) any such
increase in the Maximum Percentage will not be effective until the sixty-first (61st)
day after such notice is delivered to the Company and (ii) any such increase or decrease will apply only to the Holder and the other Attribution
Parties and not to any other holder of Notes that is not an Attribution Party of the Holder. For purposes of clarity, the Ordinary Shares
issuable pursuant to the terms of this Note in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder
for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the 1934 Act. No prior inability to convert this Note pursuant
to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination
of convertibility. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity
with the terms of this Section 3(d)(i) to the extent necessary to correct this paragraph (or any portion of this paragraph) which may
be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 3(d)(i) or to make changes or
supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived
and shall apply to a successor holder of this Note.
(e) Right of
Alternate Conversion.
(i) General.
(1) Alternate Optional
Conversion. Subject to Section 3(d), at any time, at the option of the Holder, the Holder may convert (each, an “Alternate
Optional Conversion”, and the date of such Alternate Optional Conversion, an “Alternate Optional Conversion Date”)
all, or any part, of this Note into Ordinary Shares (such portion of the Conversion Amount subject to such Alternate Optional Conversion,
the “Alternate Optional Conversion Amount”) at the Alternate Conversion Price.
(2) Alternate Conversion
Upon an Event of Default. Subject to Section 3(d), at any time during an Event of Default Redemption Right Period (regardless of whether
such Event of Default has been waived in writing in accordance with the terms of this Note and the other Transaction Documents (as defined
in the Securities Purchase Agreement), or if the Company has delivered an Event of Default Notice to the Holder or if the Holder has delivered
an Event of Default Redemption Notice to the Company or otherwise notified the Company that an Event of Default has occurred), the Holder
may, at the Holder’s option, convert (each, an “Alternate Event of Default Conversion” and together with each
Alternate Optional Conversion, each, an “Alternate Conversion”, and the date of such Alternate Event of Default Conversion,
each, an “Alternate Event of Default Conversion Date”, and together with each Alternate Optional Conversion Date, each,
an “Alternate Conversion Date”) all, or any part of, the Conversion Amount (such portion of the Conversion Amount subject
to such Alternate Conversion, the “Alternate Event of Default Conversion Amount” and together with each Alternate Optional
Conversion Amount, each, an “Alternate Conversion Amount”) into Ordinary Shares at the Alternate Conversion Price.
(ii) Mechanics of Alternate
Conversion. On any Alternate Conversion Date, the Holder may voluntarily convert any Alternate Conversion Amount pursuant to Section
3(c) (with “Alternate Conversion Price” replacing “Conversion Price” for all purposes hereunder with respect to
such Alternate Conversion and, solely with respect to the calculation of the number of Ordinary Shares issuable upon conversion of any
Conversion Amount in an Alternate Event of Default Conversion, with “Redemption Premium of the Conversion Amount” replacing
“Conversion Amount” in clause (x) of the definition of Conversion Rate above with respect to such Alternate Conversion) by
designating in the Conversion Notice delivered pursuant to this Section 3(e) of this Note that the Holder is electing to use the Alternate
Conversion Price for such conversion; provided that in the event of the Conversion Floor Price Condition, on the applicable Alternate
Conversion Date the Company shall also deliver to the Holder or, at the Company’s option, add to the outstanding Principal amount
of this Note, the applicable Alternate Conversion Floor Amount. Notwithstanding anything to the contrary in this Section 3(e), but subject
to Section 3(d), until the Company delivers Ordinary Shares representing the applicable Alternate Conversion Amount to the Holder, such
Alternate Conversion Amount may be converted by the Holder into Ordinary Shares pursuant to Section 3(c) without regard to this Section
3(e). In the event of an Alternate Conversion pursuant to this Section 3(e) of all, or any portion, of this Note, the Holder’s damages
would be uncertain and difficult to estimate because of the parties’ inability to predict future interest rates and the uncertainty
of the availability of a suitable substitute investment opportunity for the Holder. Accordingly, any redemption premium due under this
Section 3(e), together with the Alternate Conversion Price used in such Alternate Conversion, as applicable, is intended by the parties
to be, and shall be deemed, a reasonable estimate of, the Holder’s actual loss of its investment opportunity and not as a penalty.
4. RIGHTS UPON EVENT OF
DEFAULT.
(a) Event of
Default. Each of the following events shall constitute an “Event of Default” and each of the events in clauses
(vi), (vii) and (viii) shall constitute a “Bankruptcy Event of Default”:
(i) the suspension
from trading or the failure of the Ordinary Shares to be trading or listed (as applicable) on an Eligible Market for a period of ten (10)
consecutive Trading Days;
(ii) the Company’s
(A) failure to cure a Conversion Failure by delivery of the required number of Ordinary Shares within five (5) Trading Days after the
applicable Conversion Date or (B) notice, written or oral, to any holder of the Notes, including, without limitation, by way of public
announcement or through any of its agents, at any time, of its intention not to comply, as required, with a request for conversion of
any Notes into Ordinary Shares that is requested in accordance with the provisions of the Notes, other than pursuant to Section 3(d);
(iii) except to
the extent the Company is in compliance with Section 12(b) below, at any time following the tenth (10th)
consecutive day that the Holder’s Authorized Share Allocation (as defined in Section 12(a) below) is less than the number of Ordinary
Shares that the Holder would be entitled to receive upon a conversion of the full Conversion Amount of this Note (without regard to any
limitations on conversion set forth in Section 3(d) or otherwise);
(iv) the Company’s
failure to pay to the Holder any amount of Principal, Interest, Late Charges or other amounts when and as due under this Note (including,
without limitation, the Company’s failure to pay any redemption payments or amounts hereunder) or any other Transaction Documents
or any other agreement, document, certificate or other instrument delivered in connection with the transactions contemplated hereby and
thereby, except, in the case of a failure to pay Interest and Late Charges when and as due, in which case only if such failure remains
uncured for a period of at least five (5) Trading Days;
(v) the occurrence
of any unscheduled redemption or acceleration of maturity of at least an aggregate of $375,000 of Indebtedness (as defined in the Securities
Purchase Agreement) of the Company or any of its Subsidiaries, other than with respect to any Other Notes;
(vi) bankruptcy,
insolvency, reorganization or liquidation proceedings or other proceedings for the relief of debtors shall be instituted by or against
the Company or any Subsidiary and, if instituted against the Company or any Subsidiary by a third party, shall not be dismissed within
thirty (30) days of their initiation;
(vii) the commencement
by the Company or any Subsidiary of a voluntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it
to the entry of a decree, order, judgment or other similar document in respect of the Company or any Subsidiary in an involuntary case
or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or to the commencement
of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization
or relief under any applicable federal, state or foreign law, or the consent by it to the filing of such petition or to the appointment
of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company
or any Subsidiary or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the
execution of a composition of debts, or the occurrence of any other similar federal, state or foreign proceeding, or the admission by
it in writing of its inability to pay its debts generally as they become due, the taking of corporate action by the Company or any Subsidiary
in furtherance of any such action or the taking of any action by any Person to commence a Uniform Commercial Code foreclosure sale or
any other similar action under federal, state or foreign law;
(viii) the entry
by a court of (i) a decree, order, judgment or other similar document in respect of the Company or any Subsidiary of a voluntary or involuntary
case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or (ii)
a decree, order, judgment or other similar document adjudging the Company or any Subsidiary as bankrupt or insolvent, or approving as
properly filed a petition seeking liquidation, reorganization, arrangement, adjustment or composition of or in respect of the Company
or any Subsidiary under any applicable federal, state or foreign law or (iii) a decree, order, judgment or other similar document appointing
a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or any Subsidiary or of any
substantial part of its property, or ordering the winding up or liquidation of its affairs;
(ix) a final judgment
or judgments for the payment of money aggregating in excess of $375,000 are rendered against the Company and/or any of its Subsidiaries
and which judgments are not, within thirty (30) days after the entry thereof, bonded, discharged, settled or stayed pending appeal, or
are not discharged within thirty (30) days after the expiration of such stay; provided, however, any judgment which is covered by insurance
or an indemnity from a credit worthy party shall not be included in calculating the $375,000 amount set forth above so long as the Company
provides the Holder a written statement from such insurer or indemnity provider (which written statement shall be reasonably satisfactory
to the Holder) to the effect that such judgment is covered by insurance or an indemnity and the Company or such Subsidiary (as the case
may be) will receive the proceeds of such insurance or indemnity within thirty (30) days of the issuance of such judgment;
(x) the Company
and/or any Subsidiary, individually or in the aggregate, either (i) fails to pay, when due, or within any applicable grace period, any
payment with respect to any Indebtedness in excess of $375,000 due to any third party (other than, with respect to unsecured Indebtedness
only, payments contested by the Company and/or such Subsidiary (as the case may be) in good faith by proper proceedings and with respect
to which adequate reserves have been set aside for the payment thereof in accordance with GAAP) or is otherwise in breach or violation
of any agreement for monies owed or owing in an amount in excess of $375,000, which breach or violation permits the other party thereto
to declare a default or otherwise accelerate amounts due thereunder, or (ii) suffer to exist any other circumstance or event that would,
with or without the passage of time or the giving of notice, result in a default or event of default under any agreement binding the Company
or any Subsidiary, which default or event of default would or is likely to have a material adverse effect on the business, assets, operations
(including results thereof), liabilities, properties, condition (including financial condition) or prospects of the Company or any of
its Subsidiaries, individually or in the aggregate;
(xi) other than
as specifically set forth in another clause of this Section 4(a), the Company or any Subsidiary breaches any representation or warranty
in any material respect (other than representations or warranties that are qualified by materiality, which may not be breached in any
respect), or any covenant or other term or condition of any Transaction Document, except, in the case of a breach of a covenant or other
term or condition that is curable, only if such breach remains uncured for a period of two (2) consecutive Trading Days;
(xii) a materially
false or inaccurate certification (including a materially false or inaccurate deemed certification) by the Company that either (A) the
Equity Conditions are satisfied, (B) there has been no Equity Conditions Failure, or (C) as to whether any Event of Default has occurred;
(xiii) any Material
Adverse Effect (as defined in the Securities Purchase Agreement) occurs;
(xiv) any provision
of any Transaction Document shall at any time for any reason (other than pursuant to the express terms thereof) cease to be valid and
binding on or enforceable against the parties thereto, or the validity or enforceability thereof shall be contested by any party thereto,
or a proceeding shall be commenced by the Company or any Subsidiary or any governmental authority having jurisdiction over any of them,
seeking to establish the invalidity or unenforceability thereof, or the Company or any Subsidiary shall deny in writing that it has any
liability or obligation purported to be created under any Transaction Document;
(xv) any Event
of Default (as defined in the Other Notes) occurs with respect to any Other Notes.
(b) Notice of
an Event of Default; Redemption Right. Upon the occurrence of an Event of Default with respect to this Note or any Other Note, the
Company shall within one (1) Business Day deliver written notice thereof via electronic mail and overnight courier (with next day delivery
specified) (an “Event of Default Notice”) to the Holder. At any time after the earlier of the Holder’s receipt
of an Event of Default Notice and the Holder becoming aware of an Event of Default (such earlier date, the “Event of Default
Right Commencement Date”) and ending (such ending date, the “Event of Default Right Expiration Date”, and
each such period, an “Event of Default Redemption Right Period”) upon the later of (A) the earlier of (x) the cure
of such applicable Event of Default and (y) the waiver by the Holder in writing of such applicable Event of Default in accordance with
the terms of this Note and the other Transaction Documents, as applicable, and (B) the thirteenth (13th)
Trading Day after the Holder’s receipt of an Event of Default Notice that includes (I) a reasonable description of the applicable
Event of Default, (II) a certification as to whether, in the opinion of the Company, such Event of Default is capable of being cured and,
if applicable, a reasonable description of any existing plans of the Company to cure such Event of Default and (III) a certification as
to the date the Event of Default occurred and, if cured on or prior to the date of such Event of Default Notice, the applicable Event
of Default Right Expiration Date, the Holder may require the Company to redeem (regardless of whether such Event of Default has been cured
on or prior to the Event of Default Right Expiration Date) all or any portion of this Note by delivering written notice thereof (the “Event
of Default Redemption Notice”) to the Company which Event of Default Redemption Notice shall indicate the portion of this Note
the Holder is electing to redeem. Each portion of this Note subject to redemption by the Company pursuant to this Section 4(b) shall be
redeemed by the Company at a price equal to the greater of (i) the product of (A) the Conversion Amount to be redeemed multiplied by (B)
the Redemption Premium and (ii) the product of (X) the Conversion Rate with respect to the Conversion Amount in effect at such time as
the Holder delivers an Event of Default Redemption Notice multiplied by (Y) the greatest VWAP of the Ordinary Shares on any Trading Day
during the period commencing on the date immediately preceding such Event of Default and ending on the date the Company makes the entire
payment required to be made under this Section 4(b) (the “Event of Default Redemption Price”). Redemptions required
by this Section 4(b) shall be made in accordance with the provisions of Section 13. To the extent redemptions required by this Section
4(b) are deemed or determined by a court of competent jurisdiction to be prepayments of this Note by the Company, such redemptions shall
be deemed to be voluntary prepayments. Notwithstanding anything to the contrary in this Section 4, but subject to Section 3(d), until
the Event of Default Redemption Price (together with any Late Charges thereon) is paid in full, the Conversion Amount submitted for redemption
under this Section 4(b) (together with any Late Charges thereon) may be converted, in whole or in part, by the Holder into Ordinary Shares
pursuant to the terms of this Note. In the event of the Company’s redemption of any portion of this Note under this Section 4(b),
the Holder’s damages would be uncertain and difficult to estimate because of the parties’ inability to predict future interest
rates and the uncertainty of the availability of a suitable substitute investment opportunity for the Holder. Accordingly, any redemption
premium due under this Section 4(b) is intended by the parties to be, and shall be deemed, a reasonable estimate of the Holder’s
actual loss of its investment opportunity and not as a penalty. Any redemption upon an Event of Default shall not constitute an election
of remedies by the Holder, and all other rights and remedies of the Holder shall be preserved.
(c) Mandatory
Redemption upon Bankruptcy Event of Default. Notwithstanding anything to the contrary herein, and notwithstanding any conversion that
is then required or in process, upon any Bankruptcy Event of Default, whether occurring prior to or following the Maturity Date, the Company
shall immediately pay to the Holder an amount in cash representing (i) all outstanding Principal, accrued and unpaid Interest and accrued
and unpaid Late Charges on such Principal and Interest, multiplied by (ii) the Redemption Premium, in addition to any and all other amounts
due hereunder, without the requirement for any notice or demand or other action by the Holder or any other person or entity, provided
that the Holder may, in its sole discretion, waive such right to receive payment upon a Bankruptcy Event of Default, in whole or in part,
and any such waiver shall not affect any other rights of the Holder hereunder, including any other rights in respect of such Bankruptcy
Event of Default, any right to conversion, and any right to payment of the Event of Default Redemption Price or any other Redemption Price,
as applicable.
5. RIGHTS UPON FUNDAMENTAL
TRANSACTION.
(a) Assumption.
The Company shall not enter into or be party to a Fundamental Transaction unless the Successor Entity (other than with respect to a Going-Private
Change of Control) assumes in writing all of the obligations of the Company under this Note and the other Transaction Documents in accordance
with the provisions of this Section 5(a) pursuant to written agreements in form and substance satisfactory to the Holder and approved
by the Holder prior to such Fundamental Transaction, including agreements to deliver to each holder of Notes in exchange for such Notes
a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to the Notes, including,
without limitation, having a principal amount and interest rate equal to the principal amounts then outstanding and the interest rates
of the Notes held by such holder, having similar conversion rights as the Notes and having similar ranking and security to the Notes,
and satisfactory to the Holder. Upon the occurrence of any Fundamental Transaction, the Successor Entity shall succeed to, and be substituted
for (so that from and after the date of such Fundamental Transaction, the provisions of this Note and the other Transaction Documents
referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company
and shall assume all of the obligations of the Company under this Note and the other Transaction Documents with the same effect as if
such Successor Entity had been named as the Company herein. Upon consummation of a Fundamental Transaction, the Successor Entity shall
deliver to the Holder confirmation that there shall be issued upon conversion or redemption of this Note at any time after the consummation
of such Fundamental Transaction, in lieu of the Ordinary Shares (or other securities, cash, assets or other property (except such items
still issuable under Sections 6 and 17, which shall continue to be receivable thereafter)) issuable upon the conversion or redemption
of the Notes prior to such Fundamental Transaction, such shares of the publicly traded ordinary shares (or their equivalent) of the Successor
Entity (including its Parent Entity) which the Holder would have been entitled to receive upon the happening of such Fundamental Transaction
had this Note been converted immediately prior to such Fundamental Transaction (without regard to any limitations on the conversion of
this Note), as adjusted in accordance with the provisions of this Note. Notwithstanding the foregoing, the Holder may elect, at its sole
option, by delivery of written notice to the Company to waive this Section 5(a) to permit the Fundamental Transaction without the assumption
of this Note. The provisions of this Section 5 shall apply similarly and equally to successive Fundamental Transactions and shall be applied
without regard to any limitations on the conversion of this Note.
(b) Notice of
a Change of Control; Redemption Right. No sooner than twenty (20) Trading Days nor later than ten (10) Trading Days prior to the consummation
of a Change of Control (the “Change of Control Date”), but not prior to the public announcement of such Change of Control,
the Company shall deliver written notice thereof via electronic mail and overnight courier to the Holder (a “Change of Control
Notice”). At any time during the period beginning after the Holder’s receipt of a Change of Control Notice or the Holder
becoming aware of a Change of Control if a Change of Control Notice is not delivered to the Holder in accordance with the immediately
preceding sentence (as applicable) and ending on twenty (20) Trading Days after the later of (A) the date of consummation of such Change
of Control or (B) the date of receipt of such Change of Control Notice or (C) the date of the announcement of such Change of Control,
the Holder may require the Company to redeem all or any portion of this Note by delivering written notice thereof (“Change of
Control Redemption Notice”) to the Company, which Change of Control Redemption Notice shall indicate the Conversion Amount the
Holder is electing to redeem. The portion of this Note subject to redemption pursuant to this Section 5 shall be redeemed by the Company
in cash at a price equal to the greatest of (i) the product of (w) the Redemption Premium multiplied by (y) the Conversion Amount being
redeemed, (ii) the product of (A) the Conversion Amount being redeemed multiplied by (B) the quotient determined by dividing (I) the greatest
VWAP of the Ordinary Shares during the period beginning on the date immediately preceding the earlier to occur of (1) the consummation
of the applicable Change of Control and (2) the public announcement of such Change of Control and ending on the date the Holder delivers
the Change of Control Redemption Notice by (II) the Conversion Price then in effect and (iii) the product of (y) the product of (A) the
Conversion Amount being redeemed multiplied by (B) the quotient of (I) the aggregate cash consideration and the aggregate cash value of
any non-cash consideration per Ordinary Share to be paid to the holders of Ordinary Shares upon consummation of such Change of Control
(any such non-cash consideration constituting publicly-traded securities shall be valued at the highest of the VWAP of such securities
as of the Trading Day immediately prior to the consummation of such Change of Control, the VWAP of such securities on the Trading Day
immediately following the public announcement of such proposed Change of Control and the VWAP of such securities on the Trading Day immediately
prior to the public announcement of such proposed Change of Control) divided by (II) the Conversion Price then in effect (the “Change
of Control Redemption Price”). Redemptions required by this Section 5 shall be made in accordance with the provisions of Section
13 and shall have priority to payments to shareholders in connection with such Change of Control. To the extent redemptions required by
this Section 5(b) are deemed or determined by a court of competent jurisdiction to be prepayments of this Note by the Company, such redemptions
shall be deemed to be voluntary prepayments. Notwithstanding anything to the contrary in this Section 5, but subject to Section 3(d),
until the Change of Control Redemption Price (together with any Late Charges thereon) is paid in full, the Conversion Amount submitted
for redemption under this Section 5(b) (together with any Late Charges thereon) may be converted, in whole or in part, by the Holder into
Ordinary Shares pursuant to Section 3. In the event of the Company’s redemption of any portion of this Note under this Section 5(b),
the Holder’s damages would be uncertain and difficult to estimate because of the parties’ inability to predict future interest
rates and the uncertainty of the availability of a suitable substitute investment opportunity for the Holder. Accordingly, any redemption
premium due under this Section 5(b) is intended by the parties to be, and shall be deemed, a reasonable estimate of the Holder’s
actual loss of its investment opportunity and not as a penalty.
6. RIGHTS UPON ISSUANCE
OF PURCHASE RIGHTS AND OTHER CORPORATE EVENTS.
(a) Purchase
Rights. In addition to any adjustments pursuant to Sections 7 or 17 below, if at any time the Company grants, issues or sells any
Options, Convertible Securities or rights to purchase shares, warrants, securities or other property pro rata to all or substantially
all of the record holders of any class of Ordinary Shares, excluding the Excluded Transactions (the “Purchase Rights”),
then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the
Holder could have acquired if the Holder had held the number of Ordinary Shares acquirable upon complete conversion of this Note (without
taking into account any limitations or restrictions on the convertibility of this Note and assuming for such purpose that the Note was
converted at the Alternate Conversion Price as of the applicable record date) immediately prior to the date on which a record is taken
for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of Ordinary
Shares are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that to the extent
that the Holder’s right to participate in any such Purchase Right would result in the Holder and the other Attribution Parties exceeding
the Maximum Percentage, then the Holder shall not be entitled to participate in such Purchase Right to the extent of the Maximum Percentage
(and shall not be entitled to beneficial ownership of such Ordinary Shares as a result of such Purchase Right (and beneficial ownership)
to the extent of any such excess) and such Purchase Right to such extent shall be held in abeyance (and, if such Purchase Right has an
expiration date, maturity date or other similar provision, such term shall be extended by such number of days held in abeyance, if applicable)
for the benefit of the Holder until such time or times, if ever, as its right thereto would not result in the Holder and the other Attribution
Parties exceeding the Maximum Percentage, at which time or times the Holder shall be granted such right (and any Purchase Right granted,
issued or sold on such initial Purchase Right or on any subsequent Purchase Right held similarly in abeyance (and, if such Purchase Right
has an expiration date, maturity date or other similar provision, such term shall be extended by such number of days held in abeyance,
if applicable)) to the same extent as if there had been no such limitation). For purpose of the Notes, “Excluded Transactions”
mean the dividend or other distribution of the equity interests of any direct or indirect Subsidiary and any corporate restructurings,
reorganizations, and other transactions completed in connection with the foregoing.
(b) Other Corporate
Events. In addition to and not in substitution for any other rights hereunder, prior to the consummation of any Fundamental Transaction
pursuant to which holders of Ordinary Shares are entitled to receive securities or other assets with respect to or in exchange for Ordinary
Shares (a “Corporate Event”), the Company shall make appropriate provision to ensure that the Holder will thereafter
have the right to receive upon a conversion of this Note, at the Holder’s option (i) in addition to the Ordinary Shares receivable
upon such conversion, such securities or other assets to which the Holder would have been entitled with respect to such Ordinary Shares
had such Ordinary Shares been held by the Holder upon the consummation of such Corporate Event (without taking into account any limitations
or restrictions on the convertibility of this Note) or (ii) in lieu of the Ordinary Shares otherwise receivable upon such conversion,
such securities or other assets received by the holders of Ordinary Shares in connection with the consummation of such Corporate Event
in such amounts as the Holder would have been entitled to receive had this Note initially been issued with conversion rights for the form
of such consideration (as opposed to Ordinary Shares) at a conversion rate for such consideration commensurate with the Conversion Rate.
Provision made pursuant to the preceding sentence shall be in a form and substance satisfactory to the Holder. The provisions of this
Section 6 shall apply similarly and equally to successive Corporate Events and shall be applied without regard to any limitations on the
conversion or redemption of this Note.
7. RIGHTS UPON ISSUANCE
OF OTHER SECURITIES.
(a) Adjustment
of Conversion Price upon Issuance of Ordinary Shares. If and whenever on or after the Subscription Date the Company grants, issues
or sells (or enters into any agreement to grant, issue or sell), or in accordance with this Section 7(a) is deemed to have granted, issued
or sold, any Ordinary Shares (including the granting, issuance or sale of Ordinary Shares owned or held by or for the account of the Company,
but excluding any Excluded Securities granted, issued or sold or deemed to have been granted, issued or sold) for a consideration per
share (the “New Issuance Price”) less than a price equal to the Conversion Price in effect immediately prior to such
granting, issuance or sale or deemed granting, issuance or sale (such Conversion Price then in effect is referred to herein as the “Applicable
Price”) (the foregoing a “Dilutive Issuance”), then, immediately after such Dilutive Issuance, the Conversion
Price then in effect shall be reduced to an amount equal to the New Issuance Price. For all purposes of the foregoing (including, without
limitation, determining the adjusted Conversion Price and the New Issuance Price under this Section 7(a)), the following shall be applicable:
(i) Issuance
of Options. If the Company in any manner grants, issues or sells (or enters into any agreement to grant, issue or sell) any Options
and the lowest price per share for which one Ordinary Share is at any time issuable upon the exercise of any such Option or upon conversion,
exercise or exchange of any Convertible Securities issuable upon exercise of any such Option or otherwise pursuant to the terms thereof
is less than the Applicable Price, then such Ordinary Share shall be deemed to be outstanding and to have been issued and sold by the
Company at the time of the granting, issuance or sale of such Option for such price per share. For purposes of this Section 7(a)(i), the
“lowest price per share for which one Ordinary Share is at any time issuable upon the exercise of any such Option or upon conversion,
exercise or exchange of any Convertible Securities issuable upon exercise of any such Option or otherwise pursuant to the terms thereof”
shall be equal to (1) the lower of (x) the sum of the lowest amounts of consideration (if any) received or receivable by the Company with
respect to any one Ordinary Share upon the granting, issuance or sale of such Option, upon exercise of such Option and upon conversion,
exercise or exchange of any Convertible Security issuable upon exercise of such Option or otherwise pursuant to the terms thereof and
(y) the lowest exercise price set forth in such Option for which one Ordinary Share is issuable (or may become issuable assuming all possible
market conditions) upon the exercise of any such Options or upon conversion, exercise or exchange of any Convertible Securities issuable
upon exercise of any such Option or otherwise pursuant to the terms thereof, minus (2) the sum of all amounts paid or payable to the holder
of such Option (or any other Person), if any, with respect to any one Ordinary Share upon the granting, issuance or sale of such Option,
upon exercise of such Option and upon conversion, exercise or exchange of any Convertible Security issuable upon exercise of such Option
or otherwise pursuant to the terms thereof plus the value of any other consideration (including, without limitation, consideration consisting
of cash, debt forgiveness, assets or any other property) received or receivable by, or benefit conferred on, the holder of such Option
(or any other Person). Except as contemplated below, no further adjustment of the Conversion Price shall be made upon the actual issuance
of such Ordinary Share or of such Convertible Securities upon the exercise of such Options or otherwise pursuant to the terms thereof
or upon the actual issuance of such Ordinary Shares upon conversion, exercise or exchange of such Convertible Securities.
(ii) Issuance
of Convertible Securities. If the Company in any manner issues or sells (or enters into any agreement to issue or sell) any Convertible
Securities and the lowest price per share for which one Ordinary Share is at any time issuable upon the conversion, exercise or exchange
thereof or otherwise pursuant to the terms thereof is less than the Applicable Price, then such Ordinary Share shall be deemed to be outstanding
and to have been issued and sold by the Company at the time of the issuance or sale (or the time of execution of such agreement to issue
or sell, as applicable) of such Convertible Securities for such price per share. For the purposes of this Section 7(a)(ii), the “lowest
price per share for which one Ordinary Share is at any time issuable upon the conversion, exercise or exchange thereof or otherwise pursuant
to the terms thereof” shall be equal to (1) the lower of (x) the sum of the lowest amounts of consideration (if any) received or
receivable by the Company with respect to one Ordinary Share upon the issuance or sale (or pursuant to the agreement to issue or sell,
as applicable) of the Convertible Security and upon conversion, exercise or exchange of such Convertible Security or otherwise pursuant
to the terms thereof and (y) the lowest conversion price set forth in such Convertible Security for which one Ordinary Share is issuable
(or may become issuable assuming all possible market conditions) upon conversion, exercise or exchange thereof or otherwise pursuant to
the terms thereof minus (2) the sum of all amounts paid or payable to the holder of such Convertible Security (or any other Person), if
any, with respect to any one Ordinary Share upon the issuance or sale (or the agreement to issue or sell, as applicable) of such Convertible
Security plus the value of any other consideration received or receivable (including, without limitation, any consideration consisting
of cash, debt forgiveness, assets or other property) by, or benefit conferred on, the holder of such Convertible Security (or any other
Person). Except as contemplated below, no further adjustment of the Conversion Price shall be made upon the actual issuance of such Ordinary
Shares upon conversion, exercise or exchange of such Convertible Securities or otherwise pursuant to the terms thereof, and if any such
issuance or sale of such Convertible Securities is made upon exercise of any Options for which adjustment of the Conversion Price has
been or is to be made pursuant to other provisions of this Section 7(a), except as contemplated below, no further adjustment of the Conversion
Price shall be made by reason of such issuance or sale.
(iii) Change
in Option Price or Rate of Conversion. If the purchase or exercise price provided for in any Options, the additional consideration,
if any, payable upon the issue, conversion, exercise or exchange of any Convertible Securities, or the rate at which any Convertible Securities
are convertible into or exercisable or exchangeable for Ordinary Shares increases or decreases at any time (other than proportional changes
in conversion or exercise prices, as applicable, in connection with an event referred to in Section 7(b) below), the Conversion Price
in effect at the time of such increase or decrease shall be adjusted to the Conversion Price which would have been in effect at such time
had such Options or Convertible Securities provided for such increased or decreased purchase price, additional consideration or increased
or decreased conversion rate (as the case may be) at the time initially granted, issued or sold. For purposes of this Section 7(a)(i),
if the terms of any Option or Convertible Security (including, without limitation, any Option or Convertible Security that was outstanding
as of the Subscription Date) are increased or decreased in the manner described in the immediately preceding sentence, then such Option
or Convertible Security and the Ordinary Shares deemed issuable upon exercise, conversion or exchange thereof shall be deemed to have
been issued as of the date of such increase or decrease. No adjustment pursuant to this Section 7(a) shall be made if such adjustment
would result in an increase of the Conversion Price then in effect.
(iv) Calculation
of Consideration Received. If any Option and/or Convertible Security and/or Adjustment Right is issued in connection with the issuance
or sale or deemed issuance or sale of any other securities of the Company (as determined by the Holder, the “Primary Security”,
and such Option and/or Convertible Security and/or Adjustment Right, the “Secondary Securities”), together comprising
one integrated transaction (or one or more transactions if such issuances or sales or deemed issuances or sales of securities of the Company
either (A) have at least one investor or purchaser in common, (B) are consummated in reasonable proximity to each other and/or (C) are
consummated under the same plan of financing), the aggregate consideration per Ordinary Share with respect to such Primary Security shall
be deemed to be equal to the difference of (x) the lowest price per share for which one Ordinary Share was issued (or was deemed to be
issued pursuant to Section 7(a)(i) or 7(a)(ii) above, as applicable) in such integrated transaction solely with respect to such Primary
Security, minus (y) with respect to such Secondary Securities, the sum of (I) the Black Scholes Consideration Value of each such Option,
if any, (II) the fair market value (as determined by the Holder in good faith) or the Black Scholes Consideration Value, as applicable,
of such Adjustment Right, if any, and (III) the fair market value (as determined by the Holder) of such Convertible Security, if any,
in each case, as determined on a per share basis in accordance with this Section 7(a)(iv). 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 (for the purpose of
determining the consideration paid for such Ordinary Shares, Option or Convertible Security, but not for the purpose of the calculation
of the Black Scholes Consideration Value) 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 (for the purpose of determining the consideration paid for such Ordinary Share, Option or Convertible Security,
but not for the purpose of the calculation of the Black Scholes Consideration Value) 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 (for the purpose of determining
the consideration paid for such Ordinary Share, Option or Convertible Security, but not for the purpose of the calculation of the Black
Scholes Consideration Value) will be deemed to be the fair value of such portion of the net assets and business of the non-surviving entity
as is attributable to such Ordinary Shares, Options or Convertible Securities (as the case may be). The fair value of any consideration
other than cash or publicly traded securities will be determined jointly by the Company and the Holder. If such parties are unable to
reach agreement within ten (10) days after the occurrence of an event requiring valuation (the “Valuation Event”),
the fair value of such consideration will be determined within five (5) Trading Days after the tenth (10th)
day following such Valuation Event by an independent, reputable appraiser jointly selected by the Company and the Holder. The determination
of such appraiser shall be final and binding upon all parties absent manifest error and the fees and expenses of such appraiser shall
be borne by the Company.
(v) Record
Date. If the Company takes a record of the holders of Ordinary Shares for the purpose of entitling them (A) to receive a dividend
or other distribution payable in Ordinary Shares, Options or in Convertible Securities or (B) to subscribe for or purchase Ordinary Shares,
Options or Convertible Securities, then such record date will be deemed to be the date of the issuance or sale of the Ordinary Shares
deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting
of such right of subscription or purchase (as the case may be).
(b) Adjustment
of Conversion Price upon Subdivision or Combination of Ordinary Shares. Without limiting any provision of Section 6, Section 17 or
Section 7(a), if the Company at any time on or after the Subscription Date subdivides (by any share split, share dividend, share combination,
recapitalization or other similar transaction) one or more classes of its outstanding Ordinary Shares into a greater number of shares,
the Conversion Price in effect immediately prior to such subdivision will be proportionately reduced. Without limiting any provision of
Section 6, Section 17 or Section 7(a), if the Company at any time on or after the Subscription Date combines (by any share split, share
dividend, share combination, recapitalization or other similar transaction) one or more classes of its outstanding Ordinary Shares into
a smaller number of shares, the Conversion Price in effect immediately prior to such combination will be proportionately increased. Any
adjustment pursuant to this Section 7(b) shall become effective immediately after the effective date of such subdivision or combination.
If any event requiring an adjustment under this Section 7(b) occurs during the period that a Conversion Price is calculated hereunder,
then the calculation of such Conversion Price shall be adjusted appropriately to reflect such event.
(c) Holder’s
Right of Adjusted Conversion Price. In addition to and not in limitation of the other provisions of this Section 7, if the Company
in any manner issues or sells or enters into any agreement to issue or sell, any Ordinary Shares, Options or Convertible Securities (any
such securities, “Variable Price Securities”), after the Subscription Date that are issuable pursuant to such agreement
or convertible into or exchangeable or exercisable for Ordinary Shares at a price which varies or may vary with the market price of the
Ordinary Shares, including by way of one or more reset(s) to a fixed price, but exclusive of such formulations reflecting customary anti-dilution
provisions (such as share splits, share combinations, share dividends and similar transactions) (each of the formulations for such variable
price being herein referred to as, the “Variable Price”), the Company shall provide written notice thereof via electronic
mail and overnight courier to the Holder on the date of such agreement and the issuance of such Ordinary Shares, Convertible Securities
or Options. From and after the date the Company enters into such agreement or issues any such Variable Price Securities, the Holder shall
have the right, but not the obligation, in its sole discretion to substitute the Variable Price for the Conversion Price upon conversion
of this Note by designating in the Conversion Notice delivered upon any conversion of this Note that solely for purposes of such conversion
the Holder is relying on the Variable Price rather than the Conversion Price then in effect. The Holder’s election to rely on a
Variable Price for a particular conversion of this Note shall not obligate the Holder to rely on a Variable Price for any future conversion
of this Note.
(d) [Reserved]
(e) Other Events.
In the event that the Company (or any Subsidiary) shall take any action to which the provisions hereof are not strictly applicable, or,
if applicable, would not operate to protect the Holder from dilution or if any event occurs of the type contemplated by the provisions
of this Section 7 but not expressly provided for by such provisions (including, without limitation, the granting of stock appreciation
rights, phantom stock rights or other rights with equity features), then the Company’s board of directors shall in good faith determine
and implement an appropriate adjustment in the Conversion Price so as to protect the rights of the Holder, provided that no such adjustment
pursuant to this Section 7(e) will increase the Conversion Price as otherwise determined pursuant to this Section 7, provided further
that if the Holder does not accept such adjustments as appropriately protecting its interests hereunder against such dilution, then the
Company’s board of directors and the Holder shall agree, in good faith, upon an independent investment bank of nationally recognized
standing to make such appropriate adjustments, whose determination shall be final and binding absent manifest error and whose fees and
expenses shall be borne by the Company.
(f) Calculations.
All calculations under this Section 7 shall be made by rounding to the nearest cent or the nearest 1/100th
of a share, as applicable. The number of Ordinary Shares outstanding at any given time shall not include shares owned or held by or for
the account of the Company, and the disposition of any such shares shall be considered an issue or sale of Ordinary Shares.
(g) Voluntary
Adjustment by Company. Subject to the rules and regulations of the Principal Market, the Company may at any time during the term of
this Note, with the prior written consent of the Required Holders (as defined in the Securities Purchase Agreement), reduce the then current
Conversion Price of each of the Notes to any amount and for any period of time deemed appropriate by the board of directors of the Company.
8. REDEMPTIONS AT THE COMPANY’S
ELECTION.
(a) Company Optional
Redemption. At any time, the Company shall have the right to redeem all, but not less than all, of the Conversion Amount then remaining
under this Note (the “Company Optional Redemption Amount”) on the Company Optional Redemption Date (each as defined
below) (a “Company Optional Redemption”). The portion of this Note subject to redemption pursuant to this Section 8(a)
shall be redeemed by the Company in cash at a price (the “Company Optional Redemption Price”) equal to the Redemption
Premium of the Conversion Amount being redeemed as of the Company Optional Redemption Date. The Company may exercise its right to require
redemption under this Section 8(a) by delivering a written notice thereof by electronic mail and overnight courier to all, but not less
than all, of the holders of Notes (the “Company Optional Redemption Notice” and the date all of the holders of Notes
received such notice is referred to as the “Company Optional Redemption Notice Date”). The Company may deliver only
one Company Optional Redemption Notice hereunder and such Company Optional Redemption Notice shall be irrevocable. The Company Optional
Redemption Notice shall (x) state the date on which the Company Optional Redemption shall occur (the “Company Optional Redemption
Date”) which date shall not be less than thirty (30) Trading Days nor more than thirty five (35) Trading Days following the
Company Optional Redemption Notice Date, and (y) state the aggregate Conversion Amount of the Notes which is being redeemed in such Company
Optional Redemption from the Holder and all of the other holders of the Notes pursuant to this Section 8(a) (and analogous provisions
under the Other Notes) on the Company Optional Redemption Date. Notwithstanding anything herein to the contrary, at any time prior to
the date the Company Optional Redemption Price is paid, in full, the Company Optional Redemption Amount may be converted, in whole or
in part, by the Holder into Ordinary Shares pursuant to Section 3. All Conversion Amounts converted by the Holder after the Company Optional
Redemption Notice Date shall reduce the Company Optional Redemption Amount of this Note required to be redeemed on the Company Optional
Redemption Date. Redemptions made pursuant to this Section 8(a) shall be made in accordance with Section 13. In the event of the Company’s
redemption of this Note under this Section 8(a), the Holder’s damages would be uncertain and difficult to estimate because of the
parties’ inability to predict future interest rates and the uncertainty of the availability of a suitable substitute investment
opportunity for the Holder. Accordingly, any redemption premium due under this Section 8(a) is intended by the parties to be, and shall
be deemed, a reasonable estimate of the Holder’s actual loss of its investment opportunity and not as a penalty. For the avoidance
of doubt, the Company shall have no right to effect a Company Optional Redemption if any Event of Default has occurred and is continuing,
but any Event of Default shall have no effect upon the Holder’s right to convert this Note in its discretion.
(b) Pro Rata
Redemption Requirement. If the Company elects to cause a Company Optional Redemption of this Note pursuant to Section 8(a), then it
must simultaneously take the same action with respect to all of the Other Notes, pro rata.
9. [RESERVED]
10. [RESERVED]
11. NONCIRCUMVENTION.
The Company hereby covenants and agrees that the Company will not, by amendment of its Memorandum and Articles of Association (as defined
in the Securities Purchase Agreement) or through any reorganization, transfer of assets, consolidation, merger, scheme of arrangement,
dissolution, issue or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of
the terms of this Note, and will at all times in good faith carry out all of the provisions of this Note and take all action as may be
required to protect the rights of the Holder of this Note. Without limiting the generality of the foregoing or any other provision of
this Note or the other Transaction Documents, the Company (a) shall not increase the par value of any Ordinary Shares receivable upon
conversion of this Note above the Conversion Price then in effect, and (b) shall take all such actions as may be necessary or appropriate
in order that the Company may validly and legally issue fully paid and nonassessable Ordinary Shares upon the conversion of this Note.
Notwithstanding anything herein to the contrary, if after the sixty (60) calendar day anniversary of the Issuance Date, the Holder is
not permitted to convert this Note in full for any reason (other than pursuant to restrictions set forth in Section 3(d) hereof), the
Company shall use its best efforts to promptly remedy such failure, including, without limitation, obtaining such consents or approvals
as necessary to permit such conversion into Ordinary Shares.
12. RESERVATION OF AUTHORIZED
SHARES.
(a) Reservation.
So long as any Notes remain outstanding, the Company shall at all times reserve at least 100% of the number of Ordinary Shares as shall
from time to time be necessary to effect the conversion, including without limitation, Alternate Conversions, of all of the Notes then
outstanding (without regard to any limitations on conversions and assuming such Notes remain outstanding until the Maturity Date) at the
Alternate Conversion Price then in effect (the “Required Reserve Amount”). The Required Reserve Amount (including,
without limitation, each increase in the number of shares so reserved) shall be allocated pro rata among the holders of the Notes based
on the original principal amount of the Notes held by each holder on the Initial Closing Date or increase in the number of reserved shares,
as the case may be (the “Authorized Share Allocation”). In the event that a holder shall sell or otherwise transfer
any of such holder’s Notes, each transferee shall be allocated a pro rata portion of such holder’s Authorized Share Allocation.
Any Ordinary Shares reserved and allocated to any Person which ceases to hold any Notes shall be allocated to the remaining holders of
Notes, pro rata based on the principal amount of the Notes then held by such holders.
(b) Insufficient
Authorized Shares. If, notwithstanding Section 12(a), and not in limitation thereof, at any time while any of the Notes remain outstanding
the Company does not have a sufficient number of authorized and unreserved Ordinary Shares to satisfy its obligation to reserve for issuance
upon conversion of the Notes at least a number of Ordinary Shares equal to the Required Reserve Amount (an “Authorized Share
Failure”), then the Company shall immediately take all action necessary to increase the Company’s authorized Ordinary
Shares to an amount sufficient to allow the Company to reserve the Required Reserve Amount for the Notes then outstanding. Without limiting
the generality of the foregoing sentence, as soon as practicable after the date of the occurrence of an Authorized Share Failure, but
in no event later than sixty (60) days after the occurrence of such Authorized Share Failure, the Company shall hold a meeting of its
shareholders for the approval of an increase in the number of authorized Ordinary Shares. In connection with such meeting, the Company
shall provide each shareholder with a proxy statement and shall use its best efforts to solicit its shareholders’ approval of such
increase in authorized Ordinary Shares and to cause its board of directors to recommend to the shareholders that they approve such proposal.
In the event that the Company is prohibited from issuing Ordinary Shares pursuant to the terms of this Note due to the failure by the
Company to have sufficient Ordinary Shares available out of the authorized but unissued Ordinary Shares (such unavailable number of Ordinary
Shares, the “Authorized Failure Shares”), in lieu of delivering such Authorized Failure Shares to the Holder, the Company
shall pay cash in exchange for the redemption of such portion of the Conversion Amount convertible into such Authorized Failure Shares
at a price equal to the sum of (i) the product of (x) such number of Authorized Failure Shares and (y) the greatest VWAP of the Ordinary
Shares on any Trading Day during the period commencing on the date the Holder delivers the applicable Conversion Notice with respect to
such Authorized Failure Shares to the Company and ending on the date of such issuance and payment under this Section 12(a); and (ii) to
the extent the Holder purchases (in an open market transaction or otherwise) Ordinary Shares to deliver in satisfaction of a sale by the
Holder of Authorized Failure Shares, any brokerage commissions and other out-of-pocket expenses, if any, of the Holder incurred in connection
therewith. Nothing contained in Section 12(a) or this Section 12(b) shall limit any obligations of the Company under any provision of
the Securities Purchase Agreement.
13. REDEMPTIONS.
(a) Mechanics.
The Company shall deliver the applicable Event of Default Redemption Price to the Holder in cash within five (5) Business Days after the
Company’s receipt of the Holder’s Event of Default Redemption Notice (each, an “Event of Default Redemption Date”).
If the Holder has submitted a Change of Control Redemption Notice in accordance with Section 5(b), the Company shall deliver the applicable
Change of Control Redemption Price to the Holder in cash concurrently with the consummation of such Change of Control if such notice is
received prior to the consummation of such Change of Control and within five (5) Business Days after the Company’s receipt of such
notice otherwise (each, an “Change of Control Redemption Date”). The Company shall deliver the applicable Company Optional
Redemption Price to the Holder in cash on the applicable Company Optional Redemption Date. Notwithstanding anything herein to the contrary,
in connection with any redemption hereunder at a time the Holder is entitled to receive a cash payment under any of the other Transaction
Documents, at the option of the Holder delivered in writing to the Company, the applicable Redemption Price hereunder shall be increased
by the amount of such cash payment owed to the Holder under such other Transaction Document and, upon payment in full or conversion in
accordance herewith, shall satisfy the Company’s payment obligation under such other Transaction Document. In the event of a redemption
of less than all of the Conversion Amount of this Note, the Company shall promptly cause to be issued and delivered to the Holder a new
Note (in accordance with Section 20(d)) representing the outstanding Principal which has not been redeemed. In the event that the Company
does not pay the applicable Redemption Price to the Holder within the time period required, at any time thereafter and until the Company
pays such unpaid Redemption Price in full, the Holder shall have the option, in lieu of redemption, to require the Company to promptly
return to the Holder all or any portion of this Note representing the Conversion Amount that was submitted for redemption and for which
the applicable Redemption Price (together with any Late Charges thereon) has not been paid. Upon the Company’s receipt of such notice,
(x) the applicable Redemption Notice shall be null and void with respect to such Conversion Amount, (y) the Company shall immediately
return this Note, or issue a new Note (in accordance with Section 20(d)), to the Holder, and in each case the principal amount of this
Note or such new Note (as the case may be) shall be increased by an amount equal to the difference between (1) the applicable Redemption
Price (as the case may be, and as adjusted pursuant to this Section 13, if applicable) minus (2) the Principal portion of the Conversion
Amount submitted for redemption and (z) the Conversion Price of this Note or such new Notes (as the case may be) shall be automatically
adjusted with respect to each conversion effected thereafter by the Holder to the lowest of (A) the Conversion Price as in effect on the
date on which the applicable Redemption Notice is voided, (B) greater of (x) the Floor Price and (y) 75% of the lowest Closing Bid Price
of the Ordinary Shares during the period beginning on and including the date on which the applicable Redemption Notice is delivered to
the Company and ending on and including the date on which the applicable Redemption Notice is voided and (C) greater of (x) the Floor
Price and (y) 75% of the quotient of (I) the sum of the five (5) lowest VWAPs of the Ordinary Shares during the twenty (20) consecutive
Trading Day period ending and including the applicable Conversion Date divided by (II) five (5) (it being understood and agreed that all
such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination or other similar transaction
during such period). The Holder’s delivery of a notice voiding a Redemption Notice and exercise of its rights following such notice
shall not affect the Company’s obligations to make any payments of Late Charges which have accrued prior to the date of such notice
with respect to the Conversion Amount subject to such notice.
(b) Redemption
by Other Holders. Upon the Company’s receipt of notice from any of the holders of the Other Notes for redemption or repayment
as a result of an event or occurrence substantially similar to the events or occurrences described in Section 4(b) or Section 5(b) (each,
an “Other Redemption Notice”), the Company shall immediately, but no later than one (1) Business Day of its receipt
thereof, forward to the Holder by facsimile or electronic mail a copy of such notice. If the Company receives a Redemption Notice and
one or more Other Redemption Notices, during the seven (7) Business Day period beginning on and including the date which is two (2) Business
Days prior to the Company’s receipt of the Holder’s applicable Redemption Notice and ending on and including the date which
is two (2) Business Days after the Company’s receipt of the Holder’s applicable Redemption Notice and the Company is unable
to redeem all principal, interest and other amounts designated in such Redemption Notice and such Other Redemption Notices received during
such seven (7) Business Day period, then the Company shall redeem a pro rata amount from each holder of the Notes (including the Holder)
based on the principal amount of the Notes submitted for redemption pursuant to such Redemption Notice and such Other Redemption Notices
received by the Company during such seven (7) Business Day period.
14. VOTING RIGHTS.
The Holder shall have no voting rights as the holder of this Note, except as required by law and as expressly provided in this Note.
15. COVENANTS. Until
all of the Notes have been converted, redeemed or otherwise satisfied in accordance with their terms:
(a) Incurrence
of Indebtedness. The Company shall not, and the Company shall cause each of its Subsidiaries to not, directly or indirectly, incur
or guarantee, assume or suffer to exist any Indebtedness (other than (i) the Indebtedness evidenced by this Note and the Other Notes and
(ii) other Permitted Indebtedness).
(b) Existence
of Liens. The Company shall not, and the Company shall cause each of its Subsidiaries to not, directly or indirectly, allow or suffer
to exist any mortgage, lien, pledge, charge, security interest or other encumbrance upon or in any property or assets (including accounts
and contract rights) owned by the Company or any of its Subsidiaries (collectively, “Liens”) other than Permitted Liens.
(c) Restricted
Payments and Investments. The Company shall not, and the Company shall cause each of its Subsidiaries to not, directly or indirectly,
redeem, defease, repurchase, repay or make any payments in respect of, by the payment of cash or cash equivalents (in whole or in part,
whether by way of open market purchases, tender offers, private transactions or otherwise), all or any portion of any Indebtedness (other
than the Notes) whether by way of payment in respect of principal of (or premium, if any) or interest on, such Indebtedness, if at the
time such payment with respect to such Indebtedness is due or is otherwise made or, after giving effect to such payment, (i) an event
constituting an Event of Default has occurred and is continuing or (ii) an event that with the passage of time and without being cured
would constitute an Event of Default has occurred and is continuing. The Company shall not, and the Company shall cause each of its Subsidiaries
to not, directly or indirectly, make any Investment other than Permitted Investments.
(d) Restriction
on Redemption and Cash Dividends. The Company shall not, and the Company shall cause each of its Subsidiaries to not, directly or
indirectly, redeem, repurchase or declare or pay any cash dividend or distribution on any of its capital stock.
(e) Restriction
on Transfer of Assets. The Company shall not, and the Company shall cause each of its Subsidiaries to not, directly or indirectly,
sell, lease, license, assign, transfer, spin-off, split-off, close, convey or otherwise dispose of any assets or rights of the Company
or any Subsidiary owned or hereafter acquired whether in a single transaction or a series of related transactions (each, an “Asset
Sale”), other than (i) sales, leases, licenses, assignments, transfers, conveyances and other dispositions of such assets or
rights by the Company and its Subsidiaries in the ordinary course of business consistent with its past practice, (ii) sales, leases, licenses,
assignments, transfers, conveyances and other dispositions of such assets or rights by the Company and its Subsidiaries to third parties
that do not cause the Company to be deemed a “shell company” as defined in Rule 12b-2 under the 1934 Act and pursuant to which
the gross proceeds received by the Company reflect the fair market value of the assets or rights of the Company and any of its Subsidiaries
included in such Asset Sale, (iii) sales of inventory and product in the ordinary course of business or (iv) a Permitted Sale/Leaseback
Transaction (as defined below). “Permitted Sale/Leaseback Transaction” means a transaction where the Company sells
an asset and then leases it back from the buyer with the specific terms to be determined within a separate agreement, the terms of which
that would not reasonably be expected to result in an Event of Default hereunder.
(f) Maturity
of Indebtedness. Except as set forth on Schedule 15(g) attached hereto, the Company shall not, and the Company shall cause each of
its Subsidiaries to not, directly or indirectly, permit any Indebtedness of the Company or any of its Subsidiaries to mature or accelerate
prior to the Maturity Date.
(g) [Reserved].
(h) Preservation
of Existence, Etc. The Company shall maintain and preserve, and cause each of its Subsidiaries to maintain and preserve, its existence,
rights and privileges, and become or remain, and cause each of its Subsidiaries to become or remain, duly qualified and in good standing
in each jurisdiction in which the character of the properties owned or leased by it or in which the transaction of its business makes
such qualification necessary.
(i) Maintenance
of Properties, Etc. The Company shall maintain and preserve, and cause each of its Subsidiaries to maintain and preserve, all of its
properties which are necessary or useful in the proper conduct of its business in good working order and condition, ordinary wear and
tear excepted, and comply, and cause each of its Subsidiaries to comply, at all times with the provisions of all leases to which it is
a party as lessee or under which it occupies property, so as to prevent any loss or forfeiture thereof or thereunder.
(j) Maintenance
of Intellectual Property. The Company will, and will cause each of its Subsidiaries to, take all action necessary or advisable to
maintain all of the Intellectual Property Rights (as defined in the Securities Purchase Agreement) of the Company and/or any of its Subsidiaries
that are necessary or material to the conduct of its business in full force and effect.
(k) Maintenance
of Insurance. The Company shall maintain, and cause each of its Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations (including, without limitation, comprehensive general liability, hazard, rent and business interruption
insurance) with respect to its properties (including all real properties leased or owned by it) and business, in such amounts and covering
such risks as is required by any governmental authority having jurisdiction with respect thereto or as is carried generally in accordance
with sound business practice by companies in similar businesses similarly situated.
(l) Transactions
with Affiliates. The Company shall not, nor shall it permit any of its Subsidiaries to, enter into, renew, extend or be a party to,
any transaction or series of related transactions (including, without limitation, the purchase, sale, lease, transfer or exchange of property
or assets of any kind or the rendering of services of any kind) with any Affiliate, except transactions in the ordinary course of business
in a manner and to an extent consistent with past practice and necessary or desirable for the prudent operation of its business, for fair
consideration and on terms no less favorable to it or its Subsidiaries than would be obtainable in a comparable arm’s length transaction
with a Person that is not an Affiliate thereof.
(m) Restricted
Issuances. The Company shall not, directly or indirectly, without the prior written consent of the holders of a majority in aggregate
principal amount of the Notes then outstanding, (i) issue any Notes (other than as contemplated by the Securities Purchase Agreement and
the Notes) or (ii) issue any other securities that would cause a breach or default under the Notes.
(n) Financial
Covenants; Announcement of Operating Results.
(i) The Company shall
maintain, as of the end of each Fiscal Quarter (and/or Fiscal Year, as applicable) a balance of Available Cash in an aggregate amount
equal to or exceed, as applicable, $1 million (the “Minimum Available Cash Amount”) (the “Financial Test”).
(ii) Operating
Results Announcement. Commencing on the Issuance Date, the Company shall publicly disclose and disseminate (such date, the “Announcement
Date”), if the Financial Test fails to be satisfied (each such failure, a “Financial Covenant Failure”),
a statement to that effect no later than the tenth (10th) day after the end of such Fiscal
Quarter or Fiscal Year, as applicable, and such announcement shall include a statement to the effect that a Financial Covenant Failure
by the Company exists (or does not exist, as applicable) for such Fiscal Quarter. On the Announcement Date, the Company shall also provide
to the Holder a certification, executed on behalf of the Company by the Chief Financial Officer of the Company, certifying that the Company
satisfied the Financial Test for such Fiscal Quarter or Fiscal Year, as applicable, if that is the case. If a Financial Covenant Failure
by the Company exists for a Fiscal Quarter, on or prior to the Announcement Date, the Company shall provide to the Holders a written certification,
executed on behalf of the Company by the Chief Financial Officer of the Company, certifying that a Financial Covenant Failure exists for
such Fiscal Quarter or Fiscal Year, as applicable (a “Financial Covenant Event Notice”). Concurrently with the delivery
of each Financial Covenant Event Notice to the Holders, the Company shall also make publicly available (as part of an Annual Report on
Form 20-F or on a Report of Foreign Private Issuer on Form 6-K, or otherwise) the Financial Covenant Event Notice and the fact that an
Event of Default has occurred under the Notes.
(o) PCAOB Registered
Auditor. At all times any Notes remain outstanding, the Company shall have engaged an independent auditor to audit its financial statements
that is registered with (and in compliance with the rules and regulations of) the Public Company Accounting Oversight Board.
(p) Stay, Extension
and Usury Laws. To the extent that it may lawfully do so, the Company (A) agrees that it will not at any time insist upon, plead,
or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law (wherever or whenever enacted
or in force) that may affect the covenants or the performance of this Note; and (B) expressly waives all benefits or advantages of any
such law and agrees that it will not, by resort to any such law, hinder, delay or impede the execution of any power granted to the Holder
by this Note, but will suffer and permit the execution of every such power as though no such law has been enacted.
(q) Taxes.
The Company and its Subsidiaries shall pay when due all taxes, fees or other charges of any nature whatsoever (together with any related
interest or penalties) now or hereafter imposed or assessed against the Company and its Subsidiaries or their respective assets or upon
their ownership, possession, use, operation or disposition thereof or upon their rents, receipts or earnings arising therefrom (except
where the failure to pay would not, individually or in the aggregate, have a material effect on the Company or any of its Subsidiaries).
The Company and its Subsidiaries shall file on or before the due date therefor all personal property tax returns (except where the failure
to file would not, individually or in the aggregate, have a material effect on the Company or any of its Subsidiaries). Notwithstanding
the foregoing, the Company and its Subsidiaries may contest, in good faith and by appropriate proceedings, taxes for which they maintain
adequate reserves therefor in accordance with GAAP.
(r) Independent
Investigation. At the request of the Holder either (x) at any time when an Event of Default has occurred and is continuing or (y)
upon the occurrence of an event that with the passage of time or giving of notice would constitute an Event of Default or (z) at any time
the Holder reasonably believes an Event of Default may have occurred or be continuing, the Company shall hire an independent, reputable
investment bank selected by the Company and approved by the Holder (such approval not to be unreasonably withheld, conditioned or delayed)
to investigate as to whether any breach of this Note has occurred (the “Independent Investigator”). If the Independent
Investigator determines that such breach of this Note has occurred, the Independent Investigator shall notify the Company of such breach
and the Company shall deliver written notice to each holder of a Note of such breach. In connection with such investigation, the Independent
Investigator may, during normal business hours, inspect all contracts, books, records, personnel, offices and other facilities and properties
of the Company and its Subsidiaries as the Independent Investigator determines are reasonably necessary to its investigation. The Company
shall furnish the Independent Investigator with such financial and operating data and other information with respect to the business and
properties of the Company as the Independent Investigator may reasonably request. The Company shall permit the Independent Investigator
to discuss the affairs, finances and accounts of the Company with, and to make proposals and furnish advice with respect thereto to, the
Company’s officers, directors, key employees and independent public accountants or any of them (and by this provision the Company
authorizes said accountants to discuss with such Independent Investigator the finances and affairs of the Company and any Subsidiaries),
all at such reasonable times, upon reasonable notice, and as often as may be reasonably requested.
16. [Reserved]
17. DISTRIBUTION OF ASSETS.
In addition to any adjustments pursuant to Sections 6(a) or 7, if the Company shall declare or make any dividend or other distributions
of its assets (or rights to acquire its assets) to any or all holders of Ordinary Shares, by way of return of capital or otherwise (including
without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification,
corporate rearrangement, scheme of arrangement or other similar transaction) (the “Distributions”), then the Holder
will be entitled to such Distributions as if the Holder had held the number of Ordinary Shares acquirable upon complete conversion of
this Note (without taking into account any limitations or restrictions on the convertibility of this Note and assuming for such purpose
that the Note was converted at the Alternate Conversion Price as of the applicable record date) immediately prior to the date on which
a record is taken for such Distribution or, if no such record is taken, the date as of which the record holders of Ordinary Shares are
to be determined for such Distributions (provided, however, that to the extent that the Holder’s right to participate in any such
Distribution would result in the Holder and the other Attribution Parties exceeding the Maximum Percentage, then the Holder shall not
be entitled to participate in such Distribution to the extent of the Maximum Percentage (and shall not be entitled to beneficial ownership
of such Ordinary Shares as a result of such Distribution (and beneficial ownership) to the extent of any such excess) and the portion
of such Distribution shall be held in abeyance for the benefit of the Holder until such time or times, if ever, as its right thereto would
not result in the Holder and the other Attribution Parties exceeding the Maximum Percentage, at which time or times the Holder shall be
granted such Distribution (and any Distributions declared or made on such initial Distribution or on any subsequent Distribution held
similarly in abeyance) to the same extent as if there had been no such limitation).
18. AMENDING THE TERMS
OF THIS NOTE. Except for Section 3(d), which may not be amended, modified or waived by the parties hereto, the prior written consent
of the Required Holders (as defined in the Securities Purchase Agreement) shall be required for any change, waiver or amendment to this
Note. Any amendment, modification or waiver so approved shall be binding upon all existing and future holders of this Note and any Other
Notes; provided, however, that no such change, waiver or, as applied to any of the Notes held by any particular holder of Notes, shall,
without the written consent of that particular holder (i) disproportionally and adversely affect any rights under the Notes of any holder
of Notes; or (ii) modify any of the provisions of, or impair the right of any holder of Notes under, this Section 18.
19. TRANSFER. This
Note and any Ordinary Shares issued upon conversion of this Note may be offered, sold, assigned or transferred by the Holder without the
consent of the Company, subject only to the provisions of Section 2(g) of the Securities Purchase Agreement.
20. REISSUANCE OF THIS
NOTE.
(a) Transfer.
If this Note is to be transferred, the Holder shall surrender this Note to the Company, whereupon the Company will forthwith issue and
deliver upon the order of the Holder a new Note (in accordance with Section 20(d)), registered as the Holder may request, representing
the outstanding Principal being transferred by the Holder and, if less than the entire outstanding Principal is being transferred, a new
Note (in accordance with Section 20(d)) to the Holder representing the outstanding Principal not being transferred. The Holder and any
assignee, by acceptance of this Note, acknowledge and agree that, by reason of the provisions of Section 3(c)(iii) following conversion
or redemption of any portion of this Note, the outstanding Principal represented by this Note may be less than the Principal stated on
the face of this Note.
(b) Lost, Stolen
or Mutilated Note. Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft, destruction
or mutilation of this Note (as to which a written certification and the indemnification contemplated below shall suffice as such evidence),
and, in the case of loss, theft or destruction, of any indemnification undertaking by the Holder to the Company in customary and reasonable
form and, in the case of mutilation, upon surrender and cancellation of this Note, The Company shall execute and, following authentication
of such new Note, deliver to the Holder a new Note (in accordance with Section 20(d)) representing the outstanding Principal.
(c) Note Exchangeable
for Different Denominations. This Note is exchangeable, upon the surrender hereof by the Holder at the principal office of the Company,
for a new Note or Notes (in accordance with Section 20(d) and in principal amounts of at least $1,000) representing in the aggregate the
outstanding Principal of this Note, and each such new Note will represent such portion of such outstanding Principal as is designated
by the Holder at the time of such surrender.
(d) Issuance
of New Notes. Whenever the Company is required to issue a new Note pursuant to the terms of this Note, such new Note (i) shall be
of like tenor with this Note, (ii) shall represent, as indicated on the face of such new Note, the Principal remaining outstanding (or
in the case of a new Note being issued pursuant to Section 20(a) or Section 20(c), the Principal designated by the Holder which, when
added to the principal represented by the other new Notes issued in connection with such issuance, does not exceed the Principal remaining
outstanding under this Note immediately prior to such issuance of new Notes), (iii) shall have an issuance date, as indicated on the face
of such new Note, which is the same as the Issuance Date of this Note, (iv) shall have the same rights and conditions as this Note and
(v) shall represent accrued and unpaid Interest and Late Charges on the Principal and Interest of this Note, from the Issuance Date.
21. REMEDIES, CHARACTERIZATIONS,
OTHER OBLIGATIONS, BREACHES AND INJUNCTIVE RELIEF. The remedies provided in this Note shall be cumulative and in addition to all other
remedies available under this Note and any of the other Transaction Documents at law or in equity (including a decree of specific performance
and/or other injunctive relief), and nothing herein shall limit the Holder’s right to pursue actual and consequential damages for
any failure by the Company to comply with the terms of this Note. No failure on the part of the Holder to exercise, and no delay in exercising,
any right, power or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise by the Holder of any
right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. In addition,
the exercise of any right or remedy of the Holder at law or equity or under this Note or any of the documents shall not be deemed to be
an election of Holder’s rights or remedies under such documents or at law or equity. The Company covenants to the Holder that there
shall be no characterization concerning this instrument other than as expressly provided herein. Amounts set forth or provided for herein
with respect to payments, conversion and the like (and the computation thereof) shall be the amounts to be received by the Holder and
shall not, except as expressly provided herein, be subject to any other obligation of the Company (or the performance thereof). The Company
acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Holder and that the remedy at law for
any such breach may be inadequate. The Company therefore agrees that, in the event of any such breach or threatened breach, the Holder
shall be entitled, in addition to all other available remedies, to specific performance and/or temporary, preliminary and permanent injunctive
or other equitable relief from any court of competent jurisdiction in any such case without the necessity of proving actual damages and
without posting a bond or other security. The Company shall provide all information and documentation to the Holder that is requested
by the Holder to enable the Holder to confirm the Company’s compliance with the terms and conditions of this Note (including, without
limitation, compliance with Section 7).
22. PAYMENT OF COLLECTION,
ENFORCEMENT AND OTHER COSTS. If (a) this Note is placed in the hands of an attorney for collection or enforcement or is collected
or enforced through any legal proceeding or the Holder otherwise takes action to collect amounts due under this Note or to enforce the
provisions of this Note or (b) there occurs any bankruptcy, reorganization, receivership of the Company or other proceedings affecting
Company creditors’ rights and involving a claim under this Note, then the Company shall pay the costs incurred by the Holder for
such collection, enforcement or action or in connection with such bankruptcy, reorganization, receivership or other proceeding, including,
without limitation, attorneys’ fees and disbursements. The Company expressly acknowledges and agrees that no amounts due under this
Note shall be affected, or limited, by the fact that the purchase price paid for this Note was less than the original Principal amount
hereof.
23. CONSTRUCTION; HEADINGS.
This Note shall be deemed to be jointly drafted by the Company and the initial Holder and shall not be construed against any such Person
as the drafter hereof. The headings of this Note are for convenience of reference and shall not form part of, or affect the interpretation
of, this Note. Unless the context clearly indicates otherwise, each pronoun herein shall be deemed to include the masculine, feminine,
neuter, singular and plural forms thereof. The terms “including,” “includes,” “include” and words
of like import shall be construed broadly as if followed by the words “without limitation.” The terms “herein,”
“hereunder,” “hereof” and words of like import refer to this entire Note instead of just the provision in which
they are found. Unless expressly indicated otherwise, all section references are to sections of this Note. Terms used in this Note and
not otherwise defined herein, but defined in the other Transaction Documents, shall have the meanings ascribed to such terms on the Initial
Closing Date in such other Transaction Documents unless otherwise consented to in writing by the Holder.
24. FAILURE OR INDULGENCE
NOT WAIVER. No failure or delay on the part of the Holder in the exercise of any power, right or privilege hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise
thereof or of any other right, power or privilege. No waiver shall be effective unless it is in writing and signed by an authorized representative
of the waiving party. Notwithstanding the foregoing, nothing contained in this Section 24 shall permit any waiver of any provision of
Section 3(d).
25. DISPUTE RESOLUTION.
(a) Submission
to Dispute Resolution.
(i) In the case of
a dispute relating to a Closing Bid Price, a Closing Sale Price, a Conversion Price, an Alternate Conversion Price, a Black Scholes Consideration
Value, a VWAP or a fair market value or the arithmetic calculation of a Conversion Rate, or the applicable Redemption Price (as the case
may be) (including, without limitation, a dispute relating to the determination of any of the foregoing), the Company or the Holder (as
the case may be) shall submit the dispute to the other party via electronic mail (A) if by the Company, within two (2) Business Days after
the occurrence of the circumstances giving rise to such dispute or (B) if by the Holder at any time after the Holder learned of the circumstances
giving rise to such dispute. If the Holder and the Company are unable to promptly resolve such dispute relating to such Closing Bid Price,
such Closing Sale Price, such Conversion Price, such Alternate Conversion Price, such Black Scholes Consideration Value, such VWAP or
such fair market value, or the arithmetic calculation of such Conversion Rate or such applicable Redemption Price (as the case may be),
at any time after the second (2nd) Business Day following such initial notice by the Company
or the Holder (as the case may be) of such dispute to the Company or the Holder (as the case may be), then the Holder may, at its sole
option, select an independent, reputable investment bank to resolve such dispute.
(ii) The Holder and
the Company shall each deliver to such investment bank (A) a copy of the initial dispute submission so delivered in accordance with the
first sentence of this Section 25 and (B) written documentation supporting its position with respect to such dispute, in each case, no
later than 5:00 p.m. (New York time) by the fifth (5th) Business Day immediately following
the date on which the Holder selected such investment bank (the “Dispute Submission Deadline”) (the documents referred
to in the immediately preceding clauses (A) and (B) are collectively referred to herein as the “Required Dispute Documentation”)
(it being understood and agreed that if either the Holder or the Company fails to so deliver all of the Required Dispute Documentation
by the Dispute Submission Deadline, then the party who fails to so submit all of the Required Dispute Documentation shall no longer be
entitled to (and hereby waives its right to) deliver or submit any written documentation or other support to such investment bank with
respect to such dispute and such investment bank shall resolve such dispute based solely on the Required Dispute Documentation that was
delivered to such investment bank prior to the Dispute Submission Deadline). Unless otherwise agreed to in writing by both the Company
and the Holder or otherwise requested by such investment bank, neither the Company nor the Holder shall be entitled to deliver or submit
any written documentation or other support to such investment bank in connection with such dispute (other than the Required Dispute Documentation).
(iii) The Company
and the Holder shall cause such investment bank to determine the resolution of such dispute and notify the Company and the Holder of such
resolution no later than ten (10) Business Days immediately following the Dispute Submission Deadline. The fees and expenses of such investment
bank shall be borne solely by the Company, and such investment bank’s resolution of such dispute shall be final and binding upon
all parties absent manifest error.
(b) Miscellaneous.
The Company expressly acknowledges and agrees that (i) this Section 25 constitutes an agreement to arbitrate between the Company and the
Holder (and constitutes an arbitration agreement) under the Delaware Uniform Arbitration Act, (ii) a dispute relating to a Conversion
Price includes, without limitation, disputes as to (A) whether an issuance or sale or deemed issuance or sale of Ordinary Shares occurred
under Section 7(a), (B) the consideration per share at which an issuance or deemed issuance of Ordinary Shares occurred, (C) whether any
issuance or sale or deemed issuance or sale of Ordinary Shares was an issuance or sale or deemed issuance or sale of Excluded Securities,
(D) whether an agreement, instrument, security or the like constitutes and Option or Convertible Security and (E) whether a Dilutive Issuance
occurred, (iii) the terms of this Note and each other applicable Transaction Document shall serve as the basis for the selected investment
bank’s resolution of the applicable dispute, such investment bank shall be entitled (and is hereby expressly authorized) to make
all findings, determinations and the like that such investment bank determines are required to be made by such investment bank in connection
with its resolution of such dispute and in resolving such dispute such investment bank shall apply such findings, determinations and the
like to the terms of this Note and any other applicable Transaction Documents, (iv) the Holder (and only the Holder), in its sole discretion,
shall have the right to submit any dispute described in this Section 25 to the Court of Chancery of the State of Delaware in lieu of utilizing
the procedures set forth in this Section 25 and (v) nothing in this Section 25 shall limit the Holder from obtaining any injunctive relief
or other equitable remedies (including, without limitation, with respect to any matters described in this Section 25).
26. NOTICES; CURRENCY;
PAYMENTS.
(a) Notices.
Whenever notice is required to be given under this Note, unless otherwise provided herein, such notice shall be given in accordance with
Section 9(f) of the Securities Purchase Agreement. The Company shall provide the Holder with prompt written notice of all actions taken
pursuant to this Note, including in reasonable detail a description of such action and the reason therefore. Without limiting the generality
of the foregoing, the Company will give written notice to the Holder (i) immediately upon any adjustment of the Conversion Price, setting
forth in reasonable detail, and certifying, the calculation of such adjustment and (ii) at least fifteen (15) days prior to the date on
which the Company closes its books or takes a record (A) with respect to any dividend or distribution upon Ordinary Shares, (B) with respect
to any grant, issuances, or sales of any Options, Convertible Securities or rights to purchase stock, warrants, securities or other property
to holders of Ordinary Shares or (C) for determining rights to vote with respect to any Fundamental Transaction, dissolution or liquidation,
provided in each case that such information shall be made known to the public prior to or in conjunction with such notice being provided
to the Holder.
(b) Currency.
All dollar amounts referred to in this Note are in United States Dollars (“U.S. Dollars”), and all amounts owing under
this Note shall be paid in U.S. Dollars. All amounts denominated in other currencies (if any) shall be converted into the U.S. Dollar
equivalent amount in accordance with the Exchange Rate on the date of calculation. “Exchange Rate” means, in relation
to any amount of currency to be converted into U.S. Dollars pursuant to this Note, the U.S. Dollar exchange rate as published in the Wall
Street Journal on the relevant date of calculation (it being understood and agreed that where an amount is calculated with reference to,
or over, a period of time, the date of calculation shall be the final date of such period of time).
(c) Payments.
Whenever any payment of cash is to be made by the Company to any Person pursuant to this Note, unless otherwise expressly set forth herein,
such payment shall be made in lawful money of the United States of America by a certified check drawn on the account of the Company and
sent via overnight courier service to such Person at such address as previously provided to the Company in writing (which address, in
the case of each of the Buyers, shall initially be as set forth on the Schedule of Buyers attached to the Securities Purchase Agreement),
provided that the Holder may elect to receive a payment of cash via wire transfer of immediately available funds by providing the Company
with prior written notice setting out such request and the Holder’s wire transfer instructions. Whenever any amount expressed to
be due by the terms of this Note is due on any day which is not a Business Day, the same shall instead be due on the next succeeding day
which is a Business Day. Any amount of Principal or other amounts due under the Transaction Documents which is not paid when due (except
to the extent such amount is simultaneously accruing Interest at the Default Rate hereunder) shall result in a late charge being incurred
and payable by the Company in an amount equal to interest on such amount at the rate of eighteen percent (18%) per annum from the date
such amount was due until the same is paid in full (“Late Charge”).
27. CANCELLATION. After
all Principal, accrued Interest, Late Charges and other amounts at any time owed on this Note have been paid in full, this Note shall
automatically be deemed canceled, shall be surrendered to the Company for cancellation and shall not be reissued.
28. WAIVER OF NOTICE.
To the extent permitted by law, the Company hereby irrevocably waives demand, notice, presentment, protest and all other demands and notices
in connection with the delivery, acceptance, performance, default or enforcement of this Note and the Securities Purchase Agreement.
29. GOVERNING LAW.
This Note shall be construed and enforced in accordance with, and all questions concerning the construction, validity, interpretation
and performance of this Note shall be governed by, the internal laws of the State of Delaware, without giving effect to any provision
or rule (whether of the State of Delaware or any other jurisdictions) that would cause the application of the laws of any jurisdictions
other than the State of Delaware. Except as otherwise required by Section 25 above, the Company hereby irrevocably submits to the exclusive
jurisdiction of the Court of Chancery of the State of Delaware, for the adjudication of any dispute hereunder or in connection herewith
or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding
is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Nothing contained herein shall be
deemed to limit in any way any right to serve process in any manner permitted by law. Nothing contained herein shall be deemed to limit
in any way any right to serve process in any manner permitted by law. Nothing contained herein (i) shall be deemed or operate to preclude
the Holder from bringing suit or taking other legal action against the Company in any other jurisdiction to collect on the Company’s
obligations to the Holder, to realize on any collateral or any other security for such obligations, or to enforce a judgment or other
court ruling in favor of the Holder or (ii) shall limit, or shall be deemed or construed to limit, any provision of Section 25. THE
COMPANY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE
HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS NOTE OR ANY TRANSACTION CONTEMPLATED HEREBY.
30. JUDGMENT CURRENCY.
(a) If for the purpose
of obtaining or enforcing judgment against the Company in any court in any jurisdiction it becomes necessary to convert into any other
currency (such other currency being hereinafter in this Section 30 referred to as the “Judgment Currency”) an amount
due in U.S. dollars under this Note, the conversion shall be made at the Exchange Rate prevailing on the Trading Day immediately preceding:
(i) the date actual
payment of the amount due, in the case of any proceeding in the courts of Delaware or in the courts of any other jurisdiction that will
give effect to such conversion being made on such date: or
(ii) the date
on which the foreign court determines, in the case of any proceeding in the courts of any other jurisdiction (the date as of which such
conversion is made pursuant to this Section 30(a)(ii) being hereinafter referred to as the “Judgment Conversion Date”).
(b) If in the case
of any proceeding in the court of any jurisdiction referred to in Section 30(a)(ii) above, there is a change in the Exchange Rate prevailing
between the Judgment Conversion Date and the date of actual payment of the amount due, the applicable party shall pay such adjusted amount
as may be necessary to ensure that the amount paid in the Judgment Currency, when converted at the Exchange Rate prevailing on the date
of payment, will produce the amount of US dollars which could have been purchased with the amount of Judgment Currency stipulated in the
judgment or judicial order at the Exchange Rate prevailing on the Judgment Conversion Date.
(c) Any amount due
from the Company under this provision shall be due as a separate debt and shall not be affected by judgment being obtained for any other
amounts due under or in respect of this Note.
31. SEVERABILITY. If
any provision of this Note is prohibited by law or otherwise determined to be invalid or unenforceable by a court of competent jurisdiction,
the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended to apply to the broadest extent that
it would be valid and enforceable, and the invalidity or unenforceability of such provision shall not affect the validity of the remaining
provisions of this Note so long as this Note as so modified continues to express, without material change, the original intentions of
the parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability of the provision(s) in question
does not substantially impair the respective expectations or reciprocal obligations of the parties or the practical realization of the
benefits that would otherwise be conferred upon the parties. The parties will endeavor in good faith negotiations to replace the prohibited,
invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as close as possible to that of the prohibited,
invalid or unenforceable provision(s).
32. MAXIMUM PAYMENTS.
Without limiting Section 9(d) of the Securities Purchase Agreement, nothing contained herein shall be deemed to establish or require the
payment of a rate of interest or other charges in excess of the maximum permitted by applicable law. In the event that the rate of interest
required to be paid or other charges hereunder exceed the maximum permitted by such law, any payments in excess of such maximum shall
be credited against amounts owed by the Company to the Holder and thus refunded to the Company.
33. CERTAIN DEFINITIONS.
For purposes of this Note, the following terms shall have the following meanings:
(a) “1933
Act” means the Securities Act of 1933, as amended, and the rules and regulations thereunder.
(b) “1934
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.
(c) “Adjusted
Floor Price” means as determined on an Adjustment Date, the lower of (i) the Floor Price then in effect and (ii) 20% of the
lower of (x) the closing price of the Ordinary Shares of the Principal Market (as reported by the Principal Market) as of the Trading
Day ended immediately prior to such applicable Adjustment Date and (y) the quotient of (I) the sum of each the closing price of the Ordinary
Shares of the Principal Market (as reported by the Principal Market) on each Trading Day of the five (5) Trading Day period ended on,
and including, the Trading Day ended immediately prior to such applicable Adjustment Date, divided by (II) five (5). All such determinations
to be appropriately adjusted for any stock split, stock dividend, stock combination or other similar transaction during any such measuring
period.
(d) “Adjustment
Right” means any right granted with respect to any securities issued in connection with, or with respect to, any issuance or
sale (or deemed issuance or sale in accordance with Section 7) of Ordinary Shares (other than rights of the type described in Section
6(a) hereof) that could result in a decrease in the net consideration received by the Company in connection with, or with respect to,
such securities (including, without limitation, any cash settlement rights, cash adjustment or other similar rights).
(e) “Affiliate”
means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by, or is under common control
with, such Person, it being understood for purposes of this definition that “control” of a Person means the power directly
or indirectly either to vote 10% or more of the stock having ordinary voting power for the election of directors of such Person or direct
or cause the direction of the management and policies of such Person whether by contract or otherwise.
(f) Reserved
(g) Reserved
(h) “Alternate
Conversion Floor Amount” means an amount in cash, to be delivered by wire transfer of immediately available funds pursuant to
wire instructions delivered to the Company by the Holder in writing, equal to the product obtained by multiplying (A) the VWAP on the
day the Holder delivers the applicable Conversion Notice and (B) the difference obtained by subtracting (I) the number of Ordinary Shares
delivered (or to be delivered) to the Holder on the applicable Share Delivery Deadline with respect to such Alternate Conversion from
(II) the quotient obtain by dividing (x) the applicable Conversion Amount that the Holder has elected to be the subject of the applicable
Alternate Conversion, by (y) the applicable Alternate Conversion Price without giving effect to clause (x) of such definition.
(i) “Alternate
Conversion Price” means, with respect to any Alternate Conversion that price which shall be the lowest of (i) the applicable
Conversion Price as in effect on the applicable Conversion Date of the applicable Alternate Conversion, (ii) the greater of (x) the Floor
Price and (y) 80% of the lowest VWAP of the Ordinary Shares during the ten (10) consecutive Trading Day period ending and including the
Trading Day immediately preceding the delivery or deemed delivery of the applicable Conversion Notice (such period, the “Alternate
Conversion Measuring Period”). All such determinations to be appropriately adjusted for any share dividend, share split, share
combination, reclassification or similar transaction that proportionately decreases or increases the Ordinary Shares during such Alternate
Conversion Measuring Period.
(j) “Approved
Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent
to the Subscription Date pursuant to which Ordinary Shares and standard options to purchase Ordinary Shares may be issued to any employee,
consultant, advisor, officer or director for services provided to the Company in their capacity as such.
(k) “Attribution
Parties” means, collectively, the following Persons and entities: (i) any investment vehicle, including, any funds, feeder funds
or managed accounts, currently, or from time to time after the Issuance Date, directly or indirectly managed or advised by the Holder’s
investment manager or any of its Affiliates or principals, (ii) any direct or indirect Affiliates of the Holder or any of the foregoing,
(iii) any Person acting or who could be deemed to be acting as a Group together with the Holder or any of the foregoing and (iv) any other
Persons whose beneficial ownership of the Company’s Ordinary Shares would or could be aggregated with the Holder’s and the
other Attribution Parties for purposes of Section 13(d) of the 1934 Act. For clarity, the purpose of the foregoing is to subject collectively
the Holder and all other Attribution Parties to the Maximum Percentage.
(l) “Available
Cash” means, with respect to any date of determination, an amount equal to the aggregate amount of the Cash of the Company and
its Subsidiaries (excluding for this purpose cash held in restricted accounts) as of such date of determination held in bank accounts
of financial banking institutions.
(m) “Black
Scholes Consideration Value” means the value of the applicable Option, Convertible Security or Adjustment Right (as the case
may be) as of the date of issuance thereof calculated using the Black Scholes Option Pricing Model obtained from the “OV”
function on Bloomberg utilizing (i) an underlying price per share equal to the Closing Sale Price of the Ordinary Shares on the Trading
Day immediately preceding the public announcement of the execution of definitive documents with respect to the issuance of such Option,
Convertible Security or Adjustment Right (as the case may be), (ii) a risk-free interest rate corresponding to the U.S. Treasury rate
for a period equal to the remaining term of such Option, Convertible Security or Adjustment Right (as the case may be) as of the date
of issuance of such Option, Convertible Security or Adjustment Right (as the case may be), (iii) a zero cost of borrow and (iv) 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 date of issuance of such Option, Convertible
Security or Adjustment Right (as the case may be).
(n) “Bloomberg”
means Bloomberg, L.P.
(o) “Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, for clarification, commercial
banks shall not be deemed to be authorized or required by law to remain closed due to “stay at home”, “shelter-in-place”,
“non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the
direction of any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial
banks in The City of New York generally are open for use by customers on such day.
(p) “Cash”
of the Company and its Subsidiaries on any date shall be determined from such Persons’ books maintained in accordance with GAAP,
and means, without duplication, the cash, cash equivalents and Eligible Marketable Securities accrued by the Company and its wholly owned
Subsidiaries on a consolidated basis on such date.
(q) “Change
of Control” any Fundamental Transaction other than (i) any merger of the Company or any of its, direct or indirect, wholly-owned
Subsidiaries with or into any of the foregoing Persons, (ii) any reorganization, recapitalization or reclassification of the Ordinary
Shares in which holders of the Company’s voting power immediately prior to such reorganization, recapitalization or reclassification
continue after such reorganization, recapitalization or reclassification to hold publicly traded securities and, directly or indirectly,
are, in all material respects, the holders of the voting power of the surviving entity (or entities with the authority or voting power
to elect the members of the board of directors (or their equivalent if other than a corporation) of such entity or entities) after such
reorganization, recapitalization or reclassification, (iii) pursuant to a migratory merger effected solely for the purpose of changing
the jurisdiction of incorporation of the Company or (iv) a merger in connection with a bona fide acquisition by the Company of any Person
in which (x) the gross consideration paid, directly or indirectly, by the Company in such acquisition is not equal to or greater than
50% of the Company’s market capitalization as calculated on the date of the announcement of such merger and the date of the consummation
of such merger, (y) such merger does not contemplate a change to the identity of a majority of the board of directors of the Company and
(z) holders of the Company’s voting power immediately prior to such merger and/or acquisition continue after such merger and/or
acquisition to hold publicly traded securities and, directly or indirectly, are, in all material respects, the holders of the voting power
of the surviving entity (or entities with the authority or voting power to elect the members of the board of directors (or their equivalent
if other than a corporation) of such entity or entities) after such merger and/or acquisition. Notwithstanding anything herein to the
contrary, any Going-Private Change of Control shall be deemed a Change of Control.
(r) “Closing
Bid Price” and “Closing Sale Price” means, for any security as of any date, the last closing bid price and
last closing trade price, respectively, for such security on the Principal Market, as reported by Bloomberg, or, if the Principal Market
begins to operate on an extended hours basis and does not designate the closing bid price or the closing trade price (as the case may
be) then the last bid price or last trade price, respectively, of such security prior to 4:00:00 p.m., New York time, as reported by Bloomberg,
or, if the Principal Market is not the principal securities exchange or trading market for such security, the last closing bid price or
last trade price, respectively, of such security on the principal securities exchange or trading market where such security is listed
or traded as reported by Bloomberg, or if the foregoing do not apply, the last closing bid price or last trade price, respectively, of
such security in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg, or, if no closing
bid price or last trade price, respectively, is reported for such security by Bloomberg, the average of the bid prices, or the ask prices,
respectively, of any market makers for such security as reported in The Pink Open Market (or a similar organization or agency succeeding
to its functions of reporting prices). If the Closing Bid Price or the Closing Sale Price cannot be calculated for a security on a particular
date on any of the foregoing bases, the Closing Bid Price or the Closing Sale Price (as the case may be) of such security on such date
shall be the fair market value as mutually determined by the Company and the Holder. If the Company and the Holder are unable to agree
upon the fair market value of such security, then such dispute shall be resolved in accordance with the procedures in Section 25. All
such determinations shall be appropriately adjusted for any stock splits, stock dividends, stock combinations, recapitalizations or other
similar transactions during such period.
(s) “Convertible
Securities” means any stock or other security (other than Options) that is at any time and under any circumstances, directly
or indirectly, convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any Ordinary
Shares.
(t) “Conversion
Floor Price Condition” means that the relevant Alternate Conversion Price is being determined based on clause (x) of such definition.
(u) “Current
Public Information Failure“ means either (x) the Company fails for any reason to satisfy the requirements of Rule 144(c)(1)
of the 1933 Act, including, without limitation, the failure to satisfy the current public information requirement under Rule 144(c) of
the 1933 Act or (y) the Company has ever been an issuer described in Rule 144(i)(1)(i) of the 1933 Act or becomes such an issuer in the
future, and the Company shall fail to satisfy any condition set forth in Rule 144(i)(2) of the 1933 Act.
(v) “Current
Subsidiary” means any Person in which the Company on the Subscription Date, directly or indirectly, (i) owns any of the outstanding
capital stock or holds any equity or similar interest of such Person or (ii) controls or operates all or any part of the business, operations
or administration of such Person, and all of the foregoing, collectively, “Current Subsidiaries”.
(w) “Default
Rate” means eighteen percent (18%) per annum.
(x) “Eligible
Marketable Securities” as of any date means marketable securities which would be reflected on a consolidated balance sheet of
the Company and its Subsidiaries prepared as of such date in accordance with GAAP, and which are permitted under the Company’s investment
policies as in effect on the Issuance Date or approved thereafter by the Company’s Board of Directors.
(y) “Eligible
Market” means The New York Stock Exchange, the NYSE American, the Nasdaq Global Select Market, the Nasdaq Global Market or the
Nasdaq Capital Market.
(z) “Equity
Conditions” means, with respect to a given date of determination: (i) on each day during the period beginning thirty calendar
days prior to the applicable date of determination and ending on and including the applicable date of determination (the “Equity
Conditions Measuring Period”), the Ordinary Shares (including all Underlying Securities (as defined in the Securities Purchase
Agreement)) is listed or designated for quotation (as applicable) on an Eligible Market and (x) shall not have been suspended from trading
on an Eligible Market (other than suspensions of not more than two (2) days and occurring prior to the applicable date of determination
due to business announcements by the Company) nor (y) shall delisting or suspension by an Eligible Market have been threatened (with a
reasonable prospect of delisting occurring after giving effect to all applicable notice, appeal, compliance and hearing periods or any
communications from the Principal Exchange related to such notice that do not actually effect the delisting or suspension of the Ordinary
Shares) or reasonably likely to occur or pending as evidenced by (A) a writing by such Eligible Market or (B) the Company falling below
the minimum listing maintenance requirements of the Eligible Market on which the Ordinary Shares are then listed or designated for quotation
(as applicable); (ii) during the Equity Conditions Measuring Period, the Company shall have delivered all Ordinary Shares issuable upon
conversion of this Note on a timely basis as set forth in Section 3 hereof and all other shares of capital stock required to be delivered
by the Company on a timely basis as set forth in the other Transaction Documents; (iii) any Ordinary Shares to be issued in connection
with the event requiring determination (or issuable upon conversion of the Conversion Amount being redeemed in the event requiring this
determination) may be issued in full without violating Section 3(d) hereof; (iv) any Ordinary Shares to be issued in connection with the
event requiring determination (or issuable upon conversion of the Conversion Amount being redeemed in the event requiring this determination
(without regards to any limitations on conversion set forth herein)) may be issued in full without violating the rules or regulations
of the Eligible Market on which the Ordinary Shares are then listed or designated for quotation (as applicable); (v) on each day during
the Equity Conditions Measuring Period, no public announcement of a pending, proposed or intended Fundamental Transaction shall have occurred
which has not been abandoned, terminated or consummated; (vi) no Current Public Information Failure then exists or is continuing; (vii)
the Holder shall not be in (and no other holder of Notes shall be in) possession of any material, non-public information provided to any
of them by the Company, any of its Subsidiaries or any of their respective affiliates, employees, officers, representatives, agents or
the like; (viii) on each day during the Equity Conditions Measuring Period, the Company otherwise shall have been in compliance with each,
and shall not have breached any representation or warranty in any material respect (other than representations or warranties subject to
material adverse effect or materiality, which may not be breached in any respect) or any covenant or other term or condition of any Transaction
Document, including, without limitation, the Company shall not have failed to timely make any payment pursuant to any Transaction Document;
(ix) on each day during the Equity Conditions Measuring Period, there shall not have occurred any Volume Failure, Price Failure or Outstanding
Principal Failure as of such applicable date of determination; (x) on the applicable date of determination (A) no Authorized Share Failure
shall exist or be continuing and all Ordinary Shares to be issued in connection with the event requiring this determination (or issuable
upon conversion of the Conversion Amount being redeemed in the event requiring this determination at the Alternate Conversion Price then
in effect (without regard to any limitations on conversion set forth herein)) (each, a “Required Minimum Securities Amount”)
are available under the certificate of incorporation of the Company and reserved by the Company to be issued pursuant to the Notes and
(B) all Ordinary Shares to be issued in connection with the event requiring this determination (or issuable upon conversion of the Conversion
Amount being redeemed in the event requiring this determination (without regards to any limitations on conversion set forth herein)) may
be issued in full without resulting in an Authorized Share Failure; (xi) on each day during the Equity Conditions Measuring Period, there
shall not have occurred and there shall not exist an Event of Default or an event that with the passage of time or giving of notice would
constitute an Event of Default; (xii) no bone fide dispute shall exist, by and between any of holder of Notes, the Company, the Principal
Market (or such applicable Eligible Market in which the Ordinary Shares of the Company is then principally trading) and/or FINRA with
respect to any term or provision of any Note or any other Transaction Document and (xiii) the Ordinary Shares issuable pursuant the event
requiring the satisfaction of the Equity Conditions are duly authorized and listed and eligible for trading without restriction on an
Eligible Market.
(aa) “Equity
Conditions Failure” means on any date of determination, the Equity Conditions have not been satisfied (or waived in writing
by the Holder).
(bb) Reserved.
(cc) “Excluded
Securities” means (i) Ordinary Shares, including restricted stock awards, or Options, including restricted stock units and performance
stock awards, to purchase Ordinary Shares or equity-like grants including phantom stock, stock appreciation rights issued to directors,
officers or employees of the Company for services rendered to the Company in their capacity as such pursuant to an Approved Stock Plan
(as defined above), provided that (A) all such issuances (taking into account the Ordinary Shares issuable upon exercise of such options)
after the Subscription Date pursuant to this clause (i) do not, in the aggregate, exceed more than 15% of the Ordinary Shares issued and
outstanding on an annual basis immediately prior to the Subscription Date and (B) the exercise price of any such options is not lowered,
none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such
options are otherwise materially changed in any manner that materially and adversely affects any of the Buyers, other than in connection
with adjustments for share splits, share dividends, share combinations, recapitalizations or other similar transactions; (ii) Ordinary
Shares issued upon the conversion or exercise of Convertible Securities or Options (other than Options to purchase Ordinary Shares issued
pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the Subscription Date, provided that the conversion
price of any such Convertible Securities or Options (other than Options to purchase Ordinary Shares issued pursuant to an Approved Stock
Plan that are covered by clause (i) above) is not lowered, other than in connection with adjustments for share splits, share dividends,
share combinations, recapitalizations or other similar transactions, none of such Convertible Securities or Options (other than Options
to purchase Ordinary Shares issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the
number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities or Options (other than Options
to purchase Ordinary Shares issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially and
adversely changed in any manner that adversely affects any of the Buyers, other than in connection with adjustments for share splits,
share dividends, share combinations, recapitalizations or other similar transactions; and (iii) the Ordinary Shares issuable upon conversion
of the Notes or otherwise pursuant to the terms of the Notes; provided, that the terms of the Notes are not amended, modified or changed
on or after the Subscription Date (other than antidilution adjustments pursuant to the terms thereof in effect as of the Subscription
Date).
(dd) “Floor
Price” means $[ ]2 (as adjusted for stock splits, stock dividends, stock combinations, recapitalizations and similar
events) provided that if on the six month anniversary of the Issuance Date (the “Adjustment Date”), the Floor Price
then in effect is higher than the Adjusted Floor Price with respect to the Adjustment Date, on the Adjustment Date the Floor Price shall
be automatically lowered to such applicable Adjusted Floor Price.
(ee) “Fiscal
Quarter” means each of the fiscal quarters adopted by the Company for financial reporting purposes that correspond to the Company’s
fiscal year as of the date hereof that ends on December 31.
(ff) “Fiscal
Year” means the fiscal year adopted by the Company for financial reporting purposes as of the date hereof that ends on December
31.
(gg) “Fundamental
Transaction” means (A) that the Company shall, directly or indirectly, including through subsidiaries, Affiliates or otherwise,
in one or more related transactions, (i) consolidate or merge with or into (whether or not the Company is the surviving corporation)
another Subject Entity, or (ii) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or
assets of the Company or any of its “significant subsidiaries” (as defined in Rule 1-02 of Regulation S-X) to one or more
Subject Entities, or (iii) make, or allow one or more Subject Entities to make, or allow the Company to be subject to or have its Ordinary
Shares be subject to or party to one or more Subject Entities making, a purchase, tender or exchange offer that is accepted by the holders
of at least either (x) 50% of the outstanding aggregate voting power of the Company (the “Aggregate Voting Power”)
represented by the issued and outstanding Ordinary Shares and the Class B ordinary shares of the Company, $0.0001 par value per share
(“Class B Ordinary Shares”), (y) 50% of the Aggregate Voting Power calculated as if any Ordinary Shares held by all
Subject Entities making or party to, or Affiliated with any Subject Entities making or party to, such purchase, tender or exchange offer
were not outstanding; or (z) such number of Ordinary Shares such that all Subject Entities making or party to, or Affiliated with any
Subject Entity making or party to, such purchase, tender or exchange offer, become collectively the beneficial owners (as defined in
Rule 13d-3 under the 1934 Act) of at least 50% of the Aggregate Voting Power, or (iv) consummate a stock or share purchase agreement
or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement)
with one or more Subject Entities whereby all such Subject Entities, individually or in the aggregate, acquire, either (x) at least 50%
of the Aggregate Voting Power, (y) at least 50% of the Aggregate Voting Power calculated as if any Ordinary Shares held by all the Subject
Entities making or party to, or Affiliated with any Subject Entity making or party to, such share purchase agreement or other business
combination were not outstanding; or (z) such number of Ordinary Shares such that the Subject Entities become collectively the beneficial
owners (as defined in Rule 13d-3 under the 1934 Act) of at least 50% of the Aggregate Voting Power, or (v) reorganize, recapitalize or
reclassify its Ordinary Shares, (B) that the Company shall, directly or indirectly, including through subsidiaries, Affiliates or otherwise,
in one or more related transactions, allow any Subject Entity individually or the Subject Entities in the aggregate to be or become the
“beneficial owner” (as defined in Rule 13d-3 under the 1934 Act), directly or indirectly, whether through acquisition, purchase,
assignment, conveyance, tender, tender offer, exchange, reduction in outstanding Ordinary Shares, merger, consolidation, business combination,
reorganization, recapitalization, spin-off, scheme of arrangement, reorganization, recapitalization or reclassification or otherwise
in any manner whatsoever, of either (x) at least 50% of the Aggregate Voting Power, (y) at least 50% of the aggregate ordinary voting
power represented by issued and outstanding Ordinary Shares and Class B Ordinary Shares not held by all such Subject Entities as of the
date of this Note calculated as if any Ordinary Shares held by all such Subject Entities were not outstanding, or (z) a percentage of
the aggregate ordinary voting power represented by issued and outstanding Ordinary Shares and Class B Ordinary Shares or other equity
securities of the Company sufficient to allow such Subject Entities to effect a statutory short form merger or other transaction requiring
other shareholders of the Company to surrender their Ordinary Shares without approval of the shareholders of the Company or (C) directly
or indirectly, including through subsidiaries, Affiliates or otherwise, in one or more related transactions, the issuance of or the entering
into any other instrument or transaction structured in a manner to circumvent, or that circumvents, the intent of this definition in
which case this definition shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this
definition to the extent necessary to correct this definition or any portion of this definition which may be defective or inconsistent
with the intended treatment of such instrument or transaction.
(hh) “GAAP”
means United States generally accepted accounting principles, consistently applied.
(ii) “Going-Private
Change of Control” means any transaction or series of transactions that, directly or indirectly, results in the Company and/or
the Successor Entity not having Ordinary Shares or ordinary shares, as applicable, registered under the 1934 Act and listed on an Eligible
Market.
| 2 | Insert 25% of the Nasdaq “Minimum Price” as of
the Trading Day ended immediately prior to the applicable Closing Date (as defined in the Securities Purchase Agreement). |
(jj) “Group”
means a “group” as that term is used in Section 13(d) of the 1934 Act and as defined in Rule 13d-5 thereunder.
(kk) “Holder
Pro Rata Amount” means a fraction (i) the numerator of which is the original Principal amount of this Note on the Initial Closing
Date and (ii) the denominator of which is the aggregate original principal amount of all Notes issued to the initial purchasers pursuant
to the Securities Purchase Agreement on the Initial Closing Date.
(ll) “Indebtedness”
shall have the meaning ascribed to such term in the Securities Purchase Agreement.
(mm) “Initial
Closing Date” shall have the meaning set forth in the Securities Purchase Agreement, which date is the date the Company initially
issued Notes pursuant to the terms of the Securities Purchase Agreement.
(nn) “Interest
Conversion Price” means the lower of (x) the Conversion Price in effect on the applicable Interest Date or (y) 80% of the lowest
daily VWAP in the ten (10) Trading Days prior to the applicable Interest Date, provided that the Interest Conversion Price shall not be
less than the Floor Price.
(oo) “Interest
Rate” means, as of any date of determination, eleven and three-quarters of one percent (11.75%) per annum, subject to adjustment
from time to time in accordance with Section 2.
(pp) “Investment”
means any beneficial ownership (including stock, partnership or limited liability company interests) of or in any Person, or any loan,
advance or capital contribution to any Person or the acquisition of all, or substantially all, of the assets of another Person or the
purchase of any assets of another Person for greater than the fair market value of such assets.
(qq) “Maturity
Date” shall mean [ ]3; provided, however, the Maturity Date may be extended at the option of the Holder (i) in the
event that, and for so long as, an Event of Default shall have occurred and be continuing or any event shall have occurred and be continuing
that with the passage of time and the failure to cure would result in an Event of Default or (ii) through the date that is twenty (20)
Business Days after the consummation of a Fundamental Transaction in the event that a Fundamental Transaction is publicly announced or
a Change of Control Notice is delivered prior to the Maturity Date, provided further that if a Holder elects to convert some or all of
this Note pursuant to Section 3 hereof, and the Conversion Amount would be limited pursuant to Section 3(d) hereunder, the Maturity Date
shall automatically be extended until such time as such provision shall not limit the conversion of this Note; provided further, that
the Maturity Date shall be extended until [ ]4 upon the mutual agreement of the Company and the Holder in the event the Holder
provides written notice of its desire to extend the Maturity Date no less than twenty (20) Business Days prior to the then-current Maturity
Date.
(rr) “New
Subsidiary” means, as of any date of determination, any Person in which the Company after the Subscription Date, directly or
indirectly, (i) owns or acquires any of the outstanding capital stock or holds any equity or similar interest of such Person or (ii) controls
or operates all or any part of the business, operations or administration of such Person, and all of the foregoing, collectively, “New
Subsidiaries”.
(ss) “Options”
means any rights, warrants or options to subscribe for or purchase Ordinary Shares or Convertible Securities.
(tt) “Ordinary
Shares” means (i) the Company’s Class A Ordinary Shares, $0.0001 par value per share, and (ii) any capital stock into
which such ordinary shares shall have been changed or any share capital resulting from a reclassification of such ordinary shares.
(uu) “Outstanding
Principal Failure” means, with respect to a particular date of determination, the aggregate outstanding Principal balance of
Notes issued at prior Closings (as defined in the Securities Purchase Agreement) exceeds two million dollars ($2,000,000).
(vv) “Parent
Entity” of a Person means an entity that, directly or indirectly, controls the applicable Person and whose common stock or equivalent
equity security is quoted or listed on an Eligible Market, or, if there is more than one such Person or Parent Entity, the Person or Parent
Entity with the largest public market capitalization as of the date of consummation of the Fundamental Transaction.
(ww) “Permitted
Indebtedness” means (i) Indebtedness evidenced by this Note and the Other Notes, (ii) Indebtedness set forth on Schedule 3(s)
to the Securities Purchase Agreement, as in effect as of the Subscription Date and (iii) Indebtedness secured by Permitted Liens or unsecured
but as described in clauses (iv) and (v) of the definition of Permitted Liens.
(xx) “Permitted
Investments” means (i) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed
by, the U.S. (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the U.S.), in each case
maturing within one year from the date of acquisition thereof; (ii) investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having, at such date of acquisition, the highest credit rating obtainable from S&P or from Moody’s;
(iii) investments in certificates of deposit, bankers’ acceptances and time deposits maturing within 180 days from the date of acquisition
thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any commercial
bank organized under the laws of the U.S. or any State thereof which has a combined capital and surplus and undivided profits of not less
than $500,000,000; (iv) fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause
(i) above and entered into with a financial institution satisfying the criteria described in clause (iii) above; and (v) money market
funds that (x) comply with the criteria set forth in Securities and Exchange Commission Rule 2a-7 under the Investment Company Act of
1940, (y) are rated AAA by S&P and Aaa by Moody’s and (z) have portfolio assets of at least $5,000,000,000.
| 3 | Insert first anniversary of the Issuance Date. |
| 4 | Insert third anniversary of the Issuance Date. |
(yy) “Permitted
Liens” means (i) any Lien for taxes not yet due or delinquent or being contested in good faith by appropriate proceedings for
which adequate reserves have been established in accordance with GAAP, (ii) any statutory Lien arising in the ordinary course of business
by operation of law with respect to a liability that is not yet due or delinquent, (iii) any Lien created by operation of law, such as
materialmen’s liens, mechanics’ liens and other similar liens, arising in the ordinary course of business with respect to
a liability that is not yet due or delinquent or that are being contested in good faith by appropriate proceedings, (iv) Liens (A) upon
or in any equipment acquired or held by the Company or any of its Subsidiaries to secure the purchase price of such equipment or Indebtedness
incurred solely for the purpose of financing the acquisition or lease of such equipment, or (B) existing on such equipment at the time
of its acquisition, provided that the Lien is confined solely to the property so acquired and improvements thereon, and the proceeds of
such equipment, in either case, with respect to Indebtedness in an aggregate principal amount not to exceed $500,000, (v) Liens incurred
in connection with the extension, renewal or refinancing of the Indebtedness secured by Liens of the type described in clause (iv) above,
provided that any extension, renewal or replacement Lien shall be limited to the property encumbered by the existing Lien and the principal
amount of the Indebtedness being extended, renewed or refinanced does not increase, (vi) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payments of custom duties in connection with the importation of goods and (vii) Liens arising from
judgments, decrees or attachments in circumstances not constituting an Event of Default under Section 4(a)(ix).
(zz) “Person”
means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization,
any other entity or a government or any department or agency thereof.
(aaa) “Price
Failure” means, with respect to a particular date of determination for determining if the Company is eligible for an Additional
Closing (as defined in the Securities Purchase Agreement), the VWAP of the Ordinary Shares on any Trading Day during the twenty (20)
Trading Day period ending on the Trading Day immediately preceding such date of determination fails to exceed $[ ]5, and with
respect to a particular date of determination for otherwise meeting the Equity Conditions and Redemption Conditions, the VWAP of the
Ordinary Shares on any Trading Day during the twenty (20) Trading Day period ending on the Trading Day immediately preceding such date
of determination fails to exceed $[ ]6. All such determinations to be appropriately adjusted for any share splits, share dividends,
share combinations, recapitalizations or other similar transactions during any such measuring period.
(bbb) “Principal
Market” means the Nasdaq Capital Market.
(ccc) “Redemption
Conditions” means, with respect to a given date of determination: (i) on each day during the period beginning thirty calendar
days prior to the applicable date of determination and ending on and including the applicable date of determination (the “Redemption
Conditions Measuring Period”), the Ordinary Shares (including all Underlying Securities (as defined in the Securities Purchase
Agreement)) is listed or designated for quotation (as applicable) on an Eligible Market and (x) shall not have been suspended from trading
on an Eligible Market (other than suspensions of not more than two (2) days and occurring prior to the applicable date of determination
due to business announcements by the Company) nor (y) shall the Company received a notice of a delisting or suspension by an Eligible
Market (which are not subject to stay in connection with any reasonably available appeal, compliance and hearing periods); (ii) during
the Redemption Conditions Measuring Period, the Company shall have delivered all Ordinary Shares issuable upon conversion of this Note
on a timely basis (other than on one (1) occasion that is cured prior to such date of determination) as set forth in Section 3 hereof
and all other shares of capital stock required to be delivered by the Company on a timely basis as set forth in the other Transaction
Documents; (iii) any Ordinary Shares to be issued in connection with the event requiring determination (or issuable upon conversion of
the Conversion Amount being redeemed in the event requiring this determination) may be issued in full without violating Section 3(d)(ii)
hereof; (iv) any Ordinary Shares to be issued in connection with the event requiring determination (or issuable upon conversion of the
Conversion Amount being redeemed in the event requiring this determination (without regards to any limitations on conversion set forth
herein)) may be issued in full without violating the rules or regulations of the Eligible Market on which the Ordinary Shares are then
listed or designated for quotation (as applicable); (v) on each day during the Redemption Conditions Measuring Period, no public announcement
of a pending, proposed or intended Change of Control shall have occurred which has not been abandoned, terminated or consummated; (vi)
no Current Public Information Failure then exists or is continuing; (vii) the Holder shall not be in (and no other holder of Notes shall
be in) possession of any material, non-public information provided to any of them by the Company, any of its Subsidiaries or any of their
respective affiliates, employees, officers, representatives, agents or the like (other than material non-pubic information that the Holder
has consented to receive in connection with a Permitted Asset Sale at any time prior to the date mutually agreed upon by the Holder and
the Company to cleanse the Holder of such material non-public information); (viii) on each day during the Redemption Conditions Measuring
Period, the Company otherwise shall have been in compliance with each, and shall not have breached any representation or warranty in any
material respect (other than representations or warranties subject to material adverse effect or materiality, which may not be breached
in any respect) or any covenant or other term or condition of any Transaction Document, including, without limitation, the Company shall
not have failed to timely make any payment pursuant to any Transaction Document; (ix) on each day during the Redemption Conditions Measuring
Period, there shall not have occurred any Volume Failure, Price Failure or Outstanding Principal Failure as of such applicable date of
determination; (x) on the applicable date of determination (A) no Authorized Share Failure shall exist or be continuing and the Required
Minimum Securities Amount is available under the memorandum and articles of association of the Company and reserved by the Company to
be issued pursuant to the Notes and (B) all Ordinary Shares to be issued in connection with the event requiring this determination (or
issuable upon conversion of the Conversion Amount being redeemed in the event requiring this determination (without regards to any limitations
on conversion set forth herein)) may be issued in full without resulting in an Authorized Share Failure; (xi) on each day during the Redemption
Conditions Measuring Period, there shall not have occurred and there shall not exist an Event of Default or an event that with the passage
of time or giving of notice would constitute an Event of Default; (xii) no bone fide material dispute shall exist, by and between any
of holder of Notes, the Company, the Principal Market (or such applicable Eligible Market in which the Ordinary Shares of the Company
is then principally trading) and/or FINRA with respect to any term or provision of any Note or any other Transaction Document and (xiii)
the Ordinary Shares issuable pursuant the event requiring the satisfaction of the Redemption Conditions are duly authorized and listed
and eligible for trading without restriction on an Eligible Market.
| 5 | Insert 95% of the Conversion Price as of the Initial Closing |
| 6 | Insert 30% of the Conversion Price as of the Initial Closing |
(ddd) “Redemption
Conditions Failure” means on any date of determination, the Redemption Conditions have not been satisfied (or waived in writing
by the Holder).
(eee) “Redemption
Date” means any Event of Default Redemption Date, Company Optional Redemption Date and/or Change of Control Redemption Date,
as applicable.
(fff) “Redemption
Notices” means, collectively, the Event of Default Redemption Notices, the Asset Sale Optional Redemption Notices, the Company
Optional Redemption Notices and the Change of Control Redemption Notices, and each of the foregoing, individually, a “Redemption
Notice.”
(ggg) “Redemption
Premium” means with respect to any required redemption of this Note, as applicable, (i) on any Event of Default Redemption Date,
175% or (ii) on any other applicable Redemption Date, (x) if no Redemption Conditions Failure exists as of the Trading Day ended immediately
prior to such applicable Redemption Date, 130% or (y) otherwise, 175%.
(hhh) “Redemption
Prices” means, collectively, Event of Default Redemption Prices, the Change of Control Redemption Prices, the Asset Sale Optional
Redemption Prices, and the Company Optional Redemption Prices, and each of the foregoing, individually, a “Redemption Price.”
(iii) “SEC”
means the United States Securities and Exchange Commission or the successor thereto.
(jjj) “Securities
Purchase Agreement” means that certain securities purchase agreement, dated as of the Subscription Date, by and among the Company
and the initial holders of the Notes pursuant to which the Company issued the Notes, as may be amended from time to time.
(kkk) “Subscription
Date” means February 18, 2025.
(lll) “Subsidiaries”
means, as of any date of determination, collectively, all Current Subsidiaries and all New Subsidiaries, and each of the foregoing, individually,
a “Subsidiary.”
(mmm) “Subject
Entity” means any Person, Persons or Group or any Affiliate or associate of any such Person, Persons or Group.
(nnn) “Successor
Entity” means the Person (or, if so elected by the Holder, the Parent Entity) formed by, resulting from or surviving any Fundamental
Transaction or the Person (or, if so elected by the Holder, the Parent Entity) with which such Fundamental Transaction shall have been
entered into.
(ooo) “Trading
Day” means, as applicable, (x) with respect to all price or trading volume determinations relating to the Ordinary Shares, any
day on which the Ordinary Shares are traded on the Principal Market, or, if the Principal Market is not the principal trading market for
the Ordinary Shares, then on the principal securities exchange or securities market on which the Ordinary Shares are then traded, provided
that “Trading Day” shall not include any day on which the Ordinary Shares are scheduled to trade on such exchange or market
for less than 4.5 hours or any day that the Ordinary Shares are suspended from trading during the final hour of trading on such exchange
or market (or if such exchange or market does not designate in advance the closing time of trading on such exchange or market, then during
the hour ending at 4:00:00 p.m., New York time) unless such day is otherwise designated as a Trading Day in writing by the Holder or (y)
with respect to all determinations other than price determinations relating to the Ordinary Shares, any day on which The New York Stock
Exchange (or any successor thereto) is open for trading of securities.
(ppp) “Volume
Failure” means, with respect to a particular date of determination, the aggregate daily dollar trading volume (as reported on
Bloomberg) of the Ordinary Shares on the Principal Market on any Trading Day during the twenty (20) Trading Day period ending on the Trading
Day immediately preceding such date of determination, is less than $200,000.
(qqq) “VWAP”
means, for any security as of any date, the dollar volume-weighted average price for such security on the Principal Market (or, if the
Principal Market is not the principal trading market for such security, then on the principal securities exchange or securities market
on which such security is then traded), during the period beginning at 9:30 a.m., New York time, and ending at 4:00 p.m., New York time,
as reported by Bloomberg through its “VAP” function (set to 09:30 start time and 16:00 end time) or, if the foregoing does
not apply, the dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin board for
such security during the period beginning at 9:30 a.m., New York time, and ending at 4:00 p.m., New York time, as reported by Bloomberg,
or, if no dollar volume-weighted average price is reported for such security by Bloomberg for such hours, the average of the highest closing
bid price and the lowest closing ask price of any of the market makers for such security as reported in The Pink Open Market (or a similar
organization or agency succeeding to its functions of reporting prices). If the VWAP cannot be calculated for such security on such date
on any of the foregoing bases, the VWAP of such security on such date shall be the fair market value as mutually determined by the Company
and the Holder. If the Company and the Holder are unable to agree upon the fair market value of such security, then such dispute shall
be resolved in accordance with the procedures in Section 25. All such determinations shall be appropriately adjusted for any stock dividend,
stock split, stock combination, recapitalization or other similar transaction during such period.
34. DISCLOSURE. Upon
delivery by the Company to the Holder (or receipt by the Company from the Holder) of any notice in accordance with the terms of this Note,
unless the Company has in good faith determined that the matters relating to such notice do not constitute material, non-public information
relating to the Company or any of its Subsidiaries, the Company shall on or prior to 9:00 am, New York city time on the Business Day immediately
following such notice delivery date, publicly disclose such material, non-public information on a Report of Foreign Private Issuer on
Form 6-K or otherwise. In the event that the Company believes that a notice contains material, non-public information relating to the
Company or any of its Subsidiaries, the Company so shall indicate to the Holder explicitly in writing in such notice (or immediately upon
receipt of notice from the Holder, as applicable), and in the absence of any such written indication in such notice (or notification from
the Company immediately upon receipt of notice from the Holder), the Holder shall be entitled to presume that information contained in
the notice does not constitute material, non-public information relating to the Company or any of its Subsidiaries. Nothing contained
in this Section 34 shall limit any obligations of the Company, or any rights of the Holder, under Section 4(i) of the Securities Purchase
Agreement.
35. ABSENCE OF TRADING
AND DISCLOSURE RESTRICTIONS. The Company acknowledges and agrees that the Holder is not a fiduciary or agent of the Company and that
the Holder shall have no obligation to (a) maintain the confidentiality of any information provided by the Company or (b) refrain from
trading any securities while in possession of such information in the absence of a written non-disclosure agreement signed by an officer
of the Holder that explicitly provides for such confidentiality and trading restrictions. In the absence of such an executed, written
non-disclosure agreement, the Company acknowledges that the Holder may freely trade in any securities issued by the Company, may possess
and use any information provided by the Company in connection with such trading activity, and may disclose any such information to any
third party.
[signature page follows]
IN WITNESS WHEREOF, the Company
has caused this Note to be duly executed as of the Issuance Date set out above.
| |
TOP KINGWIN LTD. |
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By: |
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Name: |
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Title: |
30
Exhibit 99.3
LEAK-OUT AGREEMENT
February [ ], 2025
This agreement (the “Leak-Out
Agreement”) is being delivered to you in connection with an understanding by and between Top KingWin Ltd., an exempted company
incorporated under the laws of the Cayman Islands (the “Company”), and the person or persons named on the signature
pages hereto (collectively, the “Holders”).
Reference is hereby made to
(a) the Securities Purchase Agreement, dated February 18, 2025 (the “Purchase Agreement”), by and among the Company
and each purchaser identified on the signature pages thereto (each, a “Purchaser” and collectively, the “Purchasers”)
in connection with the issuance by the Company of convertible notes (the “Notes”), which Notes shall be convertible
into Ordinary Shares. Capitalized terms not defined herein shall have the meaning as set forth in the Purchase Agreement, unless otherwise
set forth herein.
The Holder agrees solely with
the Company that, for so long as any Notes remain outstanding (such period, the “Restricted Period”), neither the Holder,
nor any affiliate of such Holder which (x) had or has knowledge of the transactions contemplated by the Purchase Agreement, (y) has or
shares discretion relating to such Holder’s investments or trading or information concerning such Holder’s investments, including
in respect of the Securities, or (z) is subject to such Holder’s review or input concerning such affiliate’s investments or
trading (together, the “Holder’s Trading Affiliates”), collectively, shall sell, dispose or otherwise transfer,
directly or indirectly, (including, without limitation, any sales, short sales, swaps or any derivative transactions that would be equivalent
to any sales or short positions) on any Trading Day during the Restricted Period (any such date, a “Date of Determination”),
Ordinary Shares in an amount representing more than, when measured at any given point during the applicable Date of Determination, 15%
of the cumulative trading volume of the Ordinary Shares for such date (which cumulative trading volume shall not include pre-market and
post-market trading volume for such date) as reported by Bloomberg, LP (“Leak-Out Percentage”), provided that, for
purposes of clarity, the Leak-Out Percentage of the cumulative trading volume of the Ordinary Shares on the applicable Date of Determination
applies at each moment during such Date of Determination.
Notwithstanding anything herein
to the contrary, during the Restricted Period, the Holder may, directly or indirectly, sell or transfer all, or any part, of any “restricted
securities” (as defined in Rule 144) to any Person (an “Assignee”) in a transaction which does not need to be
reported on the consolidated tape on the Principal Market, without complying with (or otherwise limited by) the restrictions set forth
in this Leak-Out Agreement; provided, that as a condition to any such sale or transfer an authorized signatory of the Company and such
Assignee duly execute and deliver a leak-out agreement in the form of this Leak-Out Agreement (an “Assignee Agreement”,
and each such transfer a “Permitted Transfer”) and, subsequent to a Permitted Transfer, sales of the Holder and the
Holder’s Trading Affiliates and all Assignees (other than any such sales that constitute Permitted Transfers) shall be aggregated
for all purposes of this Leak-Out Agreement and Assignee Agreements.
Any notices, consents, waivers
or other communications required or permitted to be given under the terms of this Leak-Out Agreement must be in writing and shall be given
in accordance with the terms of the Purchase Agreement.
This Leak-Out Agreement constitutes
the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior negotiations, letters
and understandings relating to the subject matter hereof and are fully binding on the parties hereto.
This Leak-Out Agreement may
be executed simultaneously in any number of counterparts. Each counterpart shall be deemed to be an original, and all such counterparts
shall constitute one and the same instrument. This Leak-Out Agreement may be executed and accepted by facsimile or PDF signature and any
such signature shall be of the same force and effect as an original signature.
The terms of this Leak-Out
Agreement shall be binding upon and shall inure to the benefit of each of the parties hereto and their respective successors and assigns.
This Leak-Out Agreement may
not be amended or modified except with the prior written consent of the Required Holders in a writing signed by each of the parties hereto.
All questions concerning the
construction, validity, enforcement and interpretation of this Leak-Out Agreement shall be governed by the applicable provisions of the
Purchase Agreement.
Each party hereto acknowledges
that, in view of the uniqueness of the transactions contemplated by this Leak-Out Agreement, the other party or parties hereto may not
have an adequate remedy at law for money damages in the event that this Leak-Out Agreement has not been performed in accordance with its
terms, and therefore agrees that such other party or parties shall be entitled to seek specific enforcement of the terms hereof in addition
to any other remedy it may seek, at law or in equity.
The obligations of the Holder
under this Leak-Out Agreement are several and not joint with the obligations of any other holder of any of the Securities issued under
the Purchase Agreement (each, an “Other Holder”) or any other holder of any of the Securities issued under the Registration
Statement (each, a “Prospectus Purchaser Other Holder”) pursuant to any other agreement, and the Holder shall not be
responsible in any way for the performance of the obligations of any Other Holder or any Prospectus Purchaser Other Holder under any such
other agreement. Nothing contained herein or in this Leak-Out Agreement, and no action taken by the Holder pursuant hereto, shall be deemed
to constitute the Holder and Other Holders or any Prospectus Purchaser Other Holder as a partnership, an association, a joint venture
or any other kind of entity, or create a presumption that the Holder and the Other Holders or any Prospectus Purchaser Other Holder are
in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by this Leak-Out Agreement
and the Company acknowledges that the Holder and the Other Holders or any Prospectus Purchaser Other Holder are not acting in concert
or as a group with respect to such obligations or the transactions contemplated by this Leak-Out Agreement or any other agreement. The
Company and the Holder confirm that the Holder has independently participated in the negotiation of the transactions contemplated hereby
with the advice of its own counsel and advisors. The Holder shall be entitled to independently protect and enforce its rights, including,
without limitation, the rights arising out of this Leak-Out Agreement, and it shall not be necessary for any Other Holder or any Prospectus
Purchaser Other Holder to be joined as an additional party in any proceeding for such purpose.
[The remainder of the page is intentionally left
blank]
The parties hereto have executed this Leak-Out Agreement as of the
date first set forth above.
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Sincerely, |
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TOP KINGWIN LTD. |
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By: |
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Name: |
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Title: |
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| Agreed to and Accepted: |
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| “HOLDER” |
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| JAK OPPORTUNITIES VIII LLC |
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| By: |
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| Name: |
Antonio Ruiz-Gimenez |
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| Title: |
Authorized Signatory |
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[Signature Page to Leak-Out Agreement]
Exhibit 99.4
Top KingWin Ltd Announces $1,000,000 Convertible
Promissory Note Offering and Up to $28,500,000 Additional Note Offering
Shenzhen, China, Feb. 19, 2025 (GLOBE
NEWSWIRE) -- Top KingWin Ltd (“Top KingWin” or the “Company”) (Nasdaq: WAI) today announced that on
February 18, 2025, it entered into a securities purchase agreement (the “SPA”) to issue a convertible note in the
original principal amount of $1,000,000 (the “Note”) to an institutional investor (the “Purchaser”),
convertible into its class A ordinary shares, par value of $0.0001 per share (the “Ordinary Shares”), for gross proceeds
of $900,000 (the “Offering”).
R.F. Lafferty & Co., Inc. acted as the Company’s
exclusive placement agent for this Offering.
The Note bears interest at a rate of 11.75% per
annum, subject to adjustment from time to time in accordance with the terms of the Note. All outstanding principal and accrued interest
on the Note will become due and payable twelve months after the issuance of the Note (“Issuance Date”), and the Purchaser
has the option to extend the maturity term for another twenty-four months upon mutual agreement of the Company and the Purchaser. The
Note includes an original issue discount of 10%. The Company may not prepay any portion of the outstanding principal, accrued and unpaid
interest or accrued and unpaid late charges on principal and interest, if any. At any time after the Issuance Date, the Note is convertible
into validly issued, fully paid and non-assessable Ordinary Shares, on the terms and conditions set forth in the Note. Upon the occurrence
of an Event of Default, as defined in the Note, the Purchaser may require the Company to redeem all or any portion of the Note by delivering
written notice thereof.
The Note will be issued to the Purchaser upon
satisfaction of all closing conditions. The issuance of the Ordinary Shares issuable upon conversion of
the Notes is pursuant to a shelf registration statement on Form F-3, as amended (File No. 333-283030), which was declared effective
by the U.S. Securities and Exchange Commission (the “SEC”) on February 13, 2024.
Subject to the terms and conditions set forth
in the SPA, the Purchaser and the Company plan to participate in seven additional tranches of closings for the purchase by such Purchaser,
and the sale by the Company, including (i) six tranches of a Note (or Notes) in an aggregate original principal amount of up to $4,000,000
each, and (ii) one tranche of a Note (or Notes) in an aggregate original principal amount of up to $4,500,000, as set forth in the Schedule
of Buyers to the SPA, with the aggregate original principal amount of these additional closings up to $28,500,000.
This press release shall not constitute an offer
to sell or the solicitation of an offer to buy nor shall there be any sale of these securities in any state or jurisdiction in which such
offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.
About Top KingWin Ltd
Top KingWin’s main clients are entrepreneurs
and executives in small and medium-sized enterprises in China. Services provided by Top KingWin to its clients including (i) corporate
business training services, which mainly focus on providing training services of advanced knowledge and new perspectives on the capital
markets, (ii) corporate consulting services, which mainly focus on providing a combination of customized corporate consulting services
to fulfill client’s unique financial needs, and (iii) advisory and transaction services, which mainly focus on connecting entrepreneurs
and businesses with diversified sources of capital. Its mission is to provide comprehensive services to address clients’ needs throughout
all phases of their development and growth.
Forward-Looking Statements
This press release contains forward-looking statements.
All statements other than statements of historical fact in this press release are forward-looking statements, including but not limited
to, the use of proceeds from the Company’s offering, the intent, belief or current expectations of Top KingWin and members of its management,
as well as the assumptions on which such statements are based. These forward-looking statements involve known and unknown risks and uncertainties
and are based on current expectations and projections about future events and financial trends that the Company believes may affect its
financial condition, results of operations, business strategy and financial needs. Investors can identify these forward-looking statements
by words or phrases such as “may,” “will,” “expect,” “anticipate,” “aim,”
“estimate,” “intend,” “plan,” “believe,” “potential,” “continue,”
“is/are likely to” or other similar expressions. The Company undertakes no obligation to update forward-looking statements
to reflect subsequent occurring events or circumstances, or changes in its expectations, except as may be required by law. Although the
Company believes that the expectations expressed in these forward-looking statements are reasonable, it cannot assure you that such expectations
will turn out to be correct, and the Company cautions investors that actual results may differ materially from the anticipated results
and encourages investors to review other factors that may affect its future results in the Company’s registration statement and in its
other filings with the SEC.
For more information, please contact:
Bonnie
Email: IR@tcjhgw.cn
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