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United
States
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
Current Report
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
August 14, 2023
Date of Report (Date of earliest event reported)
Prime Number Acquisition I Corp.
(Exact Name of Registrant as Specified in its Charter)
Delaware |
|
001-41394 |
|
86-2378484 |
(State or other jurisdiction of
incorporation) |
|
(Commission
File Number) |
|
(I.R.S. Employer
Identification No.) |
1129 Northern Blvd, Suite 404
Manhasset, NY |
|
11030 |
(Address of Principal Executive Offices) |
|
(Zip Code) |
Registrant’s telephone number, including
area code: 347-329-1575
N/A
(Former name or former address, if changed since
last report)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
x |
Written communications pursuant to Rule 425 under the Securities Act |
¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act |
¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act |
¨ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act |
Securities registered pursuant to Section 12(b) of the Act: None.
Title of each class |
|
Trading Symbol(s) |
|
Name of each exchange on which registered |
Units, each consisting of one share of Class A Common Stock, on-half of one Warrant and one Right |
|
PNACU |
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The Nasdaq Stock Market LLC |
|
|
|
|
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Class A Common Stock, par value $0.0001 per share |
|
PNAC |
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The Nasdaq Stock Market LLC |
|
|
|
|
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Warrants, each whole warrant exercisable for one share of Class A Common Stock at an exercise price of $11.50 |
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PNACW |
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The Nasdaq Stock Market LLC |
|
|
|
|
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Rights, each right exchangeable for on-eighth (1/8) of one share of Class A Common Stock at the closing of a business combination |
|
PNACR |
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The Nasdaq Stock Market LLC |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities
Exchange Act of 1934 (17 CFR §240.12b-2).
Emerging growth company x
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act.
Item 1.01
Entry into a Material Definitive Agreement
As previously disclosed,
on December 29, 2022, Prime Number Acquisition I Corp., a Delaware corporation (“we”, “us”, “our”,
“PNAC” or the “Company”) entered into a Business Combination Agreement, dated December 29, 2022 (as may
be amended, supplemented, or otherwise modified from time to time, the “Business Combination Agreement”), with Prime Number
Holding Limited, an exempted company limited by shares incorporated under the laws of the Cayman Islands (“PubCo”), Prime
Number Merger Sub Inc., a Delaware corporation and a direct wholly-owned subsidiary of PubCo (“Merger Sub”), Prime Number
New Sub Pte. Ltd., a Singapore private company limited by shares and a direct wholly-owned subsidiary of PubCo (“New SubCo”),
NOCO-NOCO PTE. LTD., a Singapore private company limited by shares (“noco-noco”), and certain shareholders of noco-noco collectively
holding a controlling interest (together with other shareholders of noco-noco subsequently joining the transactions, the “Sellers”),
pursuant to which PNAC is proposing to enter into a business combination with noco-noco involving a merger and a share exchange, among
which: (i) Merger Sub will merger with and into PNAC, with PNAC as the surviving entity and a wholly-owned subsidiary of PubCo (the
“Merger”), (ii) New SubCo will acquire all of the issued and outstanding shares of noco-noco from the Sellers, and in
exchange, PubCo will issue to the Sellers the ordinary shares of PubCo, with noco-noco becoming a subsidiary of New SubCo and an indirect
subsidiary of PubCo (the “Share Exchange”, and together with the Merger and the other transactions contemplated by the Business
Combination Agreement, the “Business Combination”). Upon the consummation of the Business Combination, each of PNAC and noco-noco
would become a subsidiary of PubCo, and PNAC stockholders and the Sellers would receive ordinary shares, par value $0.0001 per share,
of PubCo (“PubCo Ordinary Shares”) as consideration and become the shareholders of PubCo.
ELOC Purchase
Agreement with Arena
On August 14, 2023, PubCo
entered into a purchase agreement (the “ELOC Purchase Agreement”) with ARENA BUSINESS SOLUTIONS GLOBAL SPC II, LTD on behalf
of and for the account of SEGREGATED PORTFOLIO #9 – SPC #9 (“Arena”), which provides that, upon the terms and subject
to the conditions and limitations set forth therein, PubCo has the right to direct Arena to purchase up to an aggregate of $150,000,000
of PubCo Ordinary Shares over the 36-month term of the ELOC Purchase Agreement. Under the ELOC Purchase Agreement, after the satisfaction
of certain commencement conditions, including, without limitation, the effectiveness of the Registration Statement (as defined in the
ELOC Purchase Agreement), PubCo has the right to present Arena with an advance notice (each, an “Advance Notice”) directing
Arena to purchase any amount of PubCo Shares (each, an “Advance”) up to the Maximum Advance Amount (as defined herein).
The “Maximum Advance
Amount” is calculated as follows: (a) if the Advance Notice is received by 8:30 a.m. Eastern Time, the lower of: (i) an amount
equal to forty percent (40%) of the average of the Daily Value Traded of the PubCo Ordinary Shares on the ten (10) trading days immediately
preceding an Advance Notice, or (ii) $10 million, (b) if the Advance Notice is received after 8:30 a.m. Eastern Time but on or prior
to 10:30 a.m. Eastern Time, the lower of (i) an amount equal to thirty percent (30%) of the average of the Daily Value Traded of Ordinary
Shares on the ten (10) trading days immediately preceding an Advance Notice, or (ii) $6 million, and (c) if the Advance Notice is received
after 10:30 a.m. Eastern Time but on or prior to 12:30 p.m. Eastern Time, the lower of: (i) an amount equal to twenty percent (20%) of
the average of the Daily Value Traded of the Ordinary Shares on the ten (10) trading days immediately preceding an Advance Notice, or
(ii) $3 million. For purposes hereof, “Daily Value Traded” is the product obtained by multiplying the daily trading volume
of PubCo’s Ordinary Shares on the Principal Market (as defined in the ELOC Purchase Agreement) during regular trading hours as
reported by Bloomberg L.P., by the VWAP for such trading day. For the avoidance of doubt, the daily trading volume will include all trades
on the Principal Market during regular trading hours.
The number of shares that
PubCo can issue to Arena from time to time under the ELOC Purchase Agreement will be subject to the Ownership Limitation (as defined
in the ELOC Purchase Agreement), the Registration Limitation (as defined in the ELOC Purchase Agreement) and the Exchange Cap (as defined
in the ELOC Purchase Agreement).
So long as the Market Price
(as defined herein) is not below the floor price of $1.00 per Ordinary Share (adjusted for any reorganization, recapitalization, non-cash
dividend, share split or other similar transaction), PubCo, at its sole and exclusive option, may issue and sell to Arena, and Arena
will purchase PubCo Ordinary Shares on the terms set out in the ELOC Purchase Agreement. “Market Price” means the simple
average of the daily VWAP (as defined in the ELOC Purchase Agreement) of the Ordinary Shares during the pricing period of one (1) trading
day, as notified by PubCo to Arena in the applicable Advance Notice, commencing on the Advance Notice Date. An Advance Notice will be
deemed delivered on the day it is received by Arena if such notice is received by email on or prior to 12:30 p.m. Eastern Time (or later
if waived by Arena in its sole discretion).
PubCo will control the timing
and amount of sales of PubCo Ordinary Shares to Arena. Arena has no right to require any sales by PubCo, and is obligated to make purchases
from PubCo as directed solely by PubCo in accordance with the ELOC Purchase Agreement.
The ELOC Purchase Agreement
provides that PubCo will not be required or permitted to issue, and Arena will not be required to purchase, any PubCo Ordinary Shares
under the ELOC Purchase Agreement if after giving effect to such purchase and sale the aggregate number of PubCo Ordinary Shares issued
under the ELOC Purchase Agreement would exceed 19.99% of the then outstanding PubCo Ordinary Shares before such proposed purchase and
sale (the “Exchange Cap”); provided further that, the Exchange Cap will not apply if PubCo’s shareholders have approved
issuances in excess of the Exchange Cap in accordance with the rules of the Principal Market.
Arena has made the representation
and warranty as of the date of the ELOC Purchase Agreement and as of each Advance Notice Date and each Advance Date that neither Arena
nor its affiliates has any open short position in the PubCo Ordinary Shares, nor has Arena entered into any hedging transaction that
establishes a net short position with respect to the PubCo Ordinary Shares, and Arena agrees that it will not, and that it will cause
its affiliates not to, engage in any short sales or hedging transactions with respect to the PubCo Ordinary Shares.
Within twenty (20) business
days after the consummation of the Business Combination (the “Filing Date”) or such later date as mutually agreed to in writing
by Arena and PubCo prior to the Filing Date, PubCo will prepare and file with the SEC a registration statement for the resale by Arena
of PubCo Ordinary Shares (the “Registration Statement”) and will file one or more additional registration statements for
the resale by Arena of PubCo Ordinary Shares, if necessary. PubCo acknowledges and agrees that it will not have the ability to request
any Advances until the effectiveness of a registration statement registering the applicable PubCo Ordinary Shares for resale by Arena.
In consideration for Arena’s
execution and delivery of the ELOC Purchase Agreement, PubCo will, in its sole discretion, either pay in cash, or issue to Arena, as
a commitment fee, that number of PubCo Ordinary Shares having an aggregate dollar value equal to $3,000,000 (the “Commitment Fee
Shares”) within thirty (30) calendar days of the closing of the Business Combination in the case of a cash settlement, or promptly
(but in no event later than one (1) trading day) after the effectiveness of the Registration Statement in the case of settlement in PubCo
Ordinary Shares; provided however, that PubCo must elect in writing, within ten (10) business days of the closing of the Business Combination,
to pay such commitment fee in PubCo Ordinary Shares.
If PubCo elects to issue PubCo
Ordinary Shares, the Commitment Fee Shares will be subject to a true-up after the initial issuance pursuant to paragraph above whereby
PubCo will deliver irrevocable instructions to its transfer agent to electronically transfer to Arena or its designee(s) that number of
PubCo Ordinary Shares having an aggregate dollar value equal to $3,000,000 based on the lower of (A) the per PubCo Ordinary Share price,
which price will be equal to the simple average of the daily VWAP of the PubCo Ordinary Shares during the ten (10) trading days immediately
preceding the effectiveness of the Registration Statement (the “Commitment Fee Share Price”) and (B) the lower of (i) the
simple average of the three (3) lowest intraday trade prices over the twenty (20) trading days after (and not including) the date of effectiveness
of the Registration Statement and (ii) the closing price on the twentieth (20th) trading day after the effectiveness of the
Registration Statement. PubCo will therefore promptly (but in no event later than one (1) trading day) issue to PubCo the Commitment Fee
Shares based on the Commitment Fee Share Price upon effectiveness of the Registration Statement, and will, if applicable, issue additional
Commitment Fee Shares to Arena promptly (but in no event later than one (1) trading day after the end of the pricing period described
in the preceding clause (i)).
The ELOC Purchase Agreement
may also be terminated by PubCo at any time upon five (5) trading days’ prior written notice to Arena; provided that (i) there
are no outstanding Advance Notices, the PubCo Ordinary Shares under which have yet to be issued, and (ii) PubCo has paid all amounts
owed to Arena pursuant to the ELOC Purchase Agreement.
The foregoing description
of the ELOC Purchase Agreement does not purport to be complete and is qualified in its entirety by reference to the full text the ELOC
Purchase Agreement, which is filed as Exhibit 10.3 and is incorporated herein by reference.
Item 3.02. |
Unregistered
Sales of Equity Securities. |
The
disclosures set forth above in Item 1.01 of this Current Report on Form 8-K are incorporated by reference herein. The Shares that may
be issued pursuant to the PubCo Ordinary Shares that may be issued pursuant to the ELOC Purchase Agreement will not be registered
under the Securities Act of 1933, as amended (the “Securities Act”), in reliance on the exemption from registration provided
by Section 4(a)(2) of the Securities Act and Regulation D promulgated thereunder.
The
secretary of the Company, Sarah Gu is the daughter of Ms. Qinyun Wang, an independent director of the Company. As previously disclosed,
Ms. Gu joined the Company in May 2021 as its secretary to solely provide administrative support at the request of the Company’s
management and is not considered an executive officer of the Company. Ms. Gu acquired 150,000 founder shares from the sponsor of the
Company in connection with the Company’s initial public offering, and has not received or will receive any compensation from the
Company.
Forward-Looking Statements
This Current Report on Form
8-K certain contains forward-looking statements within the meaning of section 27A of the Securities Act and section 21E of Exchange Act
that are based on beliefs and assumptions and on information currently available to PNAC, noco-noco or PubCo. In some cases, you can
identify forward-looking statements by the following words: “may,” “will,” “could,” “would,”
“should,” “expect,” “intend,” “plan,” “anticipate,” “believe,”
“estimate,” “predict,” “project,” “potential,” “continue,” “ongoing,”
“target,” “seek” or the negative or plural of these words, or other similar expressions that are predictions
or indicate future events or prospects, although not all forward-looking statements contain these words. Any statements that refer to
expectations, projections or other characterizations of future events or circumstances, including the proposed business combination,
the benefits and synergies of the proposed business combination, the markets in which Noco-Noco operates as well as any information concerning
possible or assumed future results of operations of the combined company after the consummation of the proposed business combination,
are also forward-looking statements. These statements involve risks, uncertainties and other factors that may cause actual results, levels
of activity, performance or achievements to be materially different from those expressed or implied by these forward-looking statements.
Although each of PNAC, noco-noco and PubCo believes that it has a reasonable basis for each forward-looking statement contained in this
communication, each of PNAC, noco-noco and PubCo caution you that these statements are based on a combination of facts and factors currently
known and projections of the future, which are inherently uncertain. None of PNAC, noco-noco and PubCo can assure you that the forward-looking
statements in this communication will prove to be accurate. These forward-looking statements are subject to a number of risks and uncertainties,
including, among others, the ability to complete the business combination due to the failure to obtain approval from PNAC’s stockholders
or satisfy other closing conditions in the business combination agreement, the occurrence of any event that could give rise to the termination
of the business combination agreement, the ability to recognize the anticipated benefits of the business combination, the amount of redemption
requests made by PNAC’s public stockholders, costs related to the Business Combination, the impact of the global COVID-19 pandemic,
the risk that the Business Combination disrupts current plans and operations as a result of the announcement and consummation of the
Business Combination, the outcome of any potential litigation, government or regulatory proceedings and other risks and uncertainties.
There may be additional risks that none of PNAC, noco-noco and PubCo presently know or that PNAC, noco-noco or PubCo currently believe
are immaterial that could also cause actual results to differ from those contained in the forward-looking statements. In light of the
significant uncertainties in these forward-looking statements, you should not regard these statements as a representation or warranty
by PNAC, noco-noco or PubCo, and their respective directors, officers or employees or any other person that PNAC, noco-noco or PubCo
will achieve their objectives and plans in any specified time frame, or at all. The forward-looking statements in this Current Report
on Form 8-K represent the views of PNAC, noco-noco or PubCo as of the date of this communication. Subsequent events and developments
may cause those views to change. However, while PNAC, noco-noco and PubCo may update these forward-looking statements in the future,
there is no current intention to do so, except to the extent required by applicable law. You should, therefore, not rely on these forward-looking
statements as representing the views of PNAC, noco-noco or PubCo as of any date subsequent to the date of this communication.
Additional Information and Where to Find It
This
communication relates to the proposed Business Combination involving PNAC and noco-noco. This communication may be deemed to be solicitation
material in respect of the proposed Business Combination. On May 17, 2023, a proxy statement/prospectus on Form F-4 (together
with such subsequent amendments thereto, if any, the “F-4”) was filed publicly by the PubCo with the SEC in connection with
the Business Combination which was declared effective by the SEC on July 15, 2023. The information
in the Form F-4 may be changed. PNAC also intends to file other relevant documents with the SEC regarding the proposed Business
Combination. This Current Report on Form 8-K does not contain all the information that should be considered concerning the
Business Combination and is not intended to form the basis of any investment decision or any other decision in respect of the business
combination. PNAC’s stockholders and other interested persons are advised to read the F-4 and the amendments thereto and other
documents filed in connection with the Business Combination, as these materials will contain important information about Noco-Noco, PNAC,
PubCo and the Business Combination. BEFORE MAKING ANY VOTING OR INVESTMENT DECISION WITH RESPECT
TO THE PROPOSED BUSINESS COMBINATION, INVESTORS AND STOCKHOLDERS OF TLG AND INVESTORS AND STOCKHOLDERS OF ELECTRIQ AND OTHER INTERESTED
PERSONS ARE URGED TO READ THE DEFINITIVE PROXY STATEMENT/CONSENT SOLICITATION STATEMENT/PROSPECTUS REGARDING THE PROPOSED BUSINESS COMBINATION
(INCLUDING ANY AMENDMENTS OR SUPPLEMENTS THERETO) AND OTHER RELEVANT MATERIALS CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE
BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED BUSINESS COMBINATION.
The proxy statement/prospectus
and other relevant materials for the Business Combination is first being mailed to stockholders of PNAC on or about July 25, 2023. Such
stockholders will also be able to obtain copies of the proxy statement/prospectus and other documents filed with the SEC, without charge,
once available, at the SEC’s website at www.sec.gov, or by directing a request to PNAC at its principal executive offices at c/o
1129 Northern Blvd, Suite 404, Manhasset, NY 11030, United States.
Participants in Solicitation
noco-noco, PNAC, and their
respective directors, executive officers, other members of management, and employees, under SEC rules, may be deemed to be participants
in the solicitation of proxies of PNAC’s stockholders in connection with the proposed transaction. Information regarding the persons
who may, under SEC rules, be deemed participants in the solicitation of PNAC’s stockholders in connection with the proposed business
combination will be set forth in the proxy statement/prospectus on Form F-4 to be filed with the SEC.
Safe Harbor Statement
This Current Report on Form
8-K is not a proxy statement or solicitation of a proxy, consent or authorization with respect to any securities or in respect of the
Business Combination and will not constitute an offer to sell or a solicitation of an offer to buy the securities of PNAC, the PubCo
or Noco-Noco, nor will there be any sale of any such 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 such state or jurisdiction. No offer of securities
will be made except by means of a prospectus meeting the requirements of the Securities Act.
No Offer or Solicitation
This
Current Report will not constitute an offer to sell or a solicitation of an offer to buy any securities, nor will there be any sale of
securities in any states or jurisdiction in which such offer, solicitation, or sale would be unlawful prior to registration or qualification
under the securities laws of any such jurisdiction. No offer of securities will be made except by means of a prospectus meeting the requirements
of Section 10 of the Securities Act.
Item 9.01 Financial Statements and Exhibits.
SIGNATURES
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
|
Prime Number Acquisition I Corp. |
|
|
Date: August 14, 2023 |
By: |
/s/
Dongfeng Wang |
|
Name:
Dongfeng Wang |
|
Title:
Chief Executive Officer |
Exhibit 10.1
EXECUTION VERSION
PURCHASE AGREEMENT
THIS
PURCHASE AGREEMENT (this “Agreement”) dated as of August 14, 2023 is made by and between ARENA
BUSINESS SOLUTIONS GLOBAL SPC II, LTD on behalf of and for the account of SEGREGATED PORTFOLIO #9 – SPC
#9 (the “Investor”), and PRIME NUMBER HOLDING LIMITED, an exempted company limited by shares incorporated
under the laws of the Cayman Islands (the “Company”).
WHEREAS,
the parties desire that, upon the terms and subject to the conditions contained herein, the Company shall have the right to issue and
sell to the Investor, from time to time as provided herein, and the Investor shall purchase from the Company, up to $150.00 million of
the Company’s ordinary shares, par value $0.0001 per share (the “Common Shares”); and
WHEREAS,
the Common Shares are listed for trading on the Nasdaq Stock Market under the symbol “NCNC”; and
WHEREAS,
the offer and sale of the Common Shares issuable hereunder will be made in reliance upon Section 4(a)(2) and Regulation D under
the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the “Securities Act”),
or upon such other exemption from the registration requirements of the Securities Act as may be available with respect to any or all
of the transactions to be made hereunder.
NOW,
THEREFORE, the parties hereto agree as follows:
Article I
CERTAIN DEFINITIONS
“Advance” shall mean the portion of the Commitment
Amount requested by the Company in an Advance Notice.
“Advance Date” shall mean the 1st Trading Day after
expiration of the applicable Pricing Period for each Advance.
“Advance Halt” shall have the meaning set forth
in Section 2.05(d).
“Advance Notice” shall mean a written notice in
the form of Exhibit A attached hereto to the Investor executed by an officer of the Company or other authorized representative
of the Company identified on Schedule 1 hereto and setting forth the amount of an Advance that the Company desires to issue and sell
to the Investor.
“Advance Notice Date” shall mean each date the
Company delivers (in accordance with Section 2.02 of this Agreement) to the Investor an Advance Notice, subject to the terms of
this Agreement.
“Affiliate” shall have the meaning set forth in
Section 3.08.
“Agreement” shall have the meaning set forth in
the preamble of this Agreement.
“Applicable Laws” shall mean all applicable laws,
statutes, rules, regulations, orders, executive orders, directives, policies, guidelines and codes having the force of law, whether local,
national, or international, as amended from time to time, including without limitation (i) all applicable laws that relate to money
laundering, terrorist financing, financial record keeping and reporting, (ii) all applicable laws that relate to anti-bribery, anti-corruption,
books and records and internal controls, including the United States Foreign Corrupt Practices Act of 1977, and (iii) any Sanctions
laws.
EXECUTION VERSION
“Bankruptcy Law” means Title 11, U.S. Code, or
any similar federal, state or similar laws for the relief of debtors.
“Black Out Period” shall have the meaning set forth
in Section 6.02.
“Business Combination” shall mean that certain
the Business Combination Agreement, dated December 29, 2022 (as may be amended, supplemented, or otherwise modified from time to
time, the “Business Combination Agreement”), by and among the Company, Prime Number Acquisition I Corp., a Delaware corporation
(“PNAC”), Prime Number Merger Sub Inc., a Delaware corporation and a direct wholly-owned subsidiary of the Company (“Merger
Sub”), Prime Number New Sub Pte. Ltd., a Singapore private company limited by shares and a direct wholly owned subsidiary of the
Company (“New SubCo”), NOCO-NOCO PTE. LTD., a Singapore private company limited by shares (“noco-noco”), and
certain shareholders of noco-noco collectively holding a controlling interest (together with other shareholders of noco-noco subsequently
joining the transactions, the “Sellers”), pursuant to which PNAC is proposing to enter into a business combination with noco-noco
involving a merger and a share exchange, among which: (i) Merger Sub shall merge with and into PNAC, with PNAC as the surviving
entity and a wholly owned subsidiary of the Conpany (the “Merger”), (ii) New SubCo shall acquire all of the issued and
outstanding shares of noco-noco from the Sellers, and in exchange, the Company shall issue to the Sellers the ordinary shares of the
Company, with noco-noco becoming a subsidiary of New SubCo and an indirect subsidiary of the Company.
“Business Day” means any day on which the Principal
Market is open for trading, including any day on which the Principal Market is open for trading for a period of time less than the customary
time.
“Buy-In” shall have the meaning set forth in Section 2.06.
“Buy-In Price” shall have the meaning set forth
in Section 2.06.
“Closing” shall have the meaning set forth in Section 2.05.
“Commitment Amount” shall mean $150.00 million
of Common Shares, provided that, the Company shall not effect any sales under this Agreement and the Investor shall not have the
obligation to purchase Common Shares under this Agreement to the extent (but only to the extent) that after giving effect to such purchase
and sale the aggregate number of Common Shares issued under this Agreement would exceed 19.99% of the then outstanding Common Shares
before such proposed purchase and sale (the “Exchange Cap”); provided further that, the Exchange Cap will not
apply if the Company’s stockholders have approved issuances in excess of the Exchange Cap in accordance with the rules of
the Principal Market.
“Commitment Fee Shares” shall have the meaning
set forth in Section 13.04.
“Commitment Period” shall mean the period commencing
on the date hereof and expiring upon the date of termination of this Agreement in accordance with Section 11.02.
“Common Shares” shall have the meaning set forth
in the recitals of this Agreement.
“Common Share Equivalents” shall have the meaning
set forth in Section 6.20.
EXECUTION VERSION
“Company” shall have the meaning set forth in the
preamble of this Agreement.
“Company Indemnitees” shall have the meaning set
forth in Section 5.02.
“Condition Satisfaction Date” shall have the meaning
set forth in Section 7.01
“Custodian” means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
“Environmental Laws” shall have the meaning set
forth in Section 4.08.
“Exchange Act” shall mean the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Floor Price” shall mean $1.00, which shall be
appropriately adjusted for any reorganization, recapitalization, non-cash dividend, share split or other similar transaction and, effective
upon the consummation of any such reorganization, recapitalization, non-cash dividend, share split or other similar transaction, the
Floor Price shall mean the greater of (i) the adjusted price and (ii) $1.00.
“Hazardous Materials” shall have the meaning set
forth in Section 4.08.
“Indemnified Liabilities” shall have the meaning
set forth in Section 5.01.
“Investor” shall have the meaning set forth in
the preamble of this Agreement.
“Investor Indemnitees” shall have the meaning set
forth in Section 5.01.
“Market Price” shall mean the simple average of
the daily VWAP of the Common Shares during the Pricing Period.
“Material Adverse Effect” shall mean any event,
occurrence or condition that has had or would reasonably be expected to have (i) a material adverse effect on the legality, validity
or enforceability of this Agreement or the transactions contemplated herein, (ii) a material adverse effect on the results of operations,
assets, business or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a whole, or (iii) a material
adverse effect on the Company’s ability to perform in any material respect on a timely basis its obligations under this Agreement.
“Material Outside Event” shall have the meaning
set forth in Section 6.08.
“Maximum Advance Amount” shall be calculated as
follows: (a) if the Advance Notice is received by 8:30 a.m. Eastern Time, the lower of: (i) an amount equal to forty percent
(40%) of the average of the Daily Value Traded of the Common Shares on the ten (10) Trading Days immediately preceding an Advance
Notice, or (ii) $10 million, (b) if the Advance Notice is received after 8:30 a.m. Eastern Time but on or prior to 10:30
a.m. Eastern Time, the lower of (i) an amount equal to thirty percent (30%) of the average of the Daily Value Traded of Common
Shares on the ten (10) Trading Days immediately preceding an Advance Notice, or (ii) $6 million, and (c) if the Advance
Notice is received after 10:30 a.m. Eastern Time but on or prior to 12:30 p.m. Eastern Time, the lower of: (i) an amount
equal to twenty percent (20%) of the average of the Daily Value Traded of the Common Shares on the ten (10) Trading Days immediately
preceding an Advance Notice, or (ii) $3 million. For purposes hereof, “Daily Value Traded” is the product obtained
by multiplying the daily trading volume of the Company’s Common Shares on the Principal Market during regular trading hours as
reported by Bloomberg L.P., by the VWAP for such Trading Day. For the avoidance of doubt, the daily trading volume shall include all
trades on the Principal Market during regular trading hours.
EXECUTION VERSION
“OFAC” shall mean the U.S. Department of Treasury’s
Office of Foreign Asset Control.
“Ownership Limitation” shall have the meaning set
forth in Section 2.04(a).
“Person” shall mean an individual, a corporation,
a partnership, a limited liability company, a trust or other entity or organization, including a government or political subdivision
or an agency or instrumentality thereof.
“Plan of Distribution” shall mean the section of
a Registration Statement disclosing the plan of distribution of the Shares.
“Pricing Period” shall mean one (1) Trading
Day, as notified by the Company to the Investor in the applicable Advance Notice, commencing on the Advance Notice Date.
“Principal Market” shall mean the New York Stock
Exchange, the NYSE American, the Nasdaq Global Select Market, the Nasdaq Global Market, the Nasdaq Capital Market, the OTCQB, the OTCBB
or the NYSE Euronext, whichever is at the time the principal trading exchange or market for the Common Shares.
“Purchase Price” shall mean the price per Common
Share obtained by multiplying the Market Price by 90%. If the total day’s VWAP at the end of any given 1-hour interval has changed
by +/- 10% versus the previous 1-hour interval, the Purchase Price will be 90% of the Investor’s sale execution for that day. The
last 30 minutes of trading on a Trading Day will count as the final “1-hour” interval of such Trading Day.
“Registrable Securities” shall mean (i) the
Shares, and (ii) any securities issued or issuable with respect to any of the foregoing by way of exchange, stock dividend or stock
split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization or otherwise.
“Registration Limitation” shall have the meaning
set forth in Section 2.04(b).
“Registration Statement” shall mean a registration
statement on Form F-1 or Form F-3 or on such other form promulgated by the SEC for which the Company then qualifies and which
counsel for the Company shall deem appropriate, and which form shall be available for the registration of the resale by the Investor
of the Registrable Securities under the Securities Act.
“Regulation D” shall mean the provisions of Regulation
D promulgated under the Securities Act.
“Required Delivery Date” means any date on which
the Company or its transfer agent is required to deliver Common Shares to Investor hereunder.
“Sanctions” means any sanctions administered or
enforced by OFAC, the U.S. State Department, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or
other relevant sanctions authority.
“Sanctions Programs” means any OFAC economic sanction
program (including, without limitation, programs related to Crimea, Cuba, Iran, North Korea, Sudan and Syria).
EXECUTION VERSION
“SEC” shall mean the U.S. Securities and Exchange
Commission.
“SEC Documents” shall have the meaning set forth
in Section 4.04.
“Securities Act” shall have the meaning set forth
in the recitals of this Agreement.
“Settlement Document” shall have the meaning set
forth in Section 2.05(a).
“Shares” shall mean the Commitment Fee Shares and
the Common Shares to be issued from time to time hereunder pursuant to an Advance.
“Subsidiaries” shall have the meaning set forth
in Section 4.01.
“Trading Day” shall mean any day during which the
Principal Market shall be open for business.
“Transaction Documents” shall have the meaning
set forth in Section 4.02.
“Variable Rate Transaction” shall have the meaning
set forth in Section 6.20.
“VWAP” means, for any Trading Day, the daily volume
weighted average price of the Common Shares for such Trading Day on the Principal Market (a) from 9:30 a.m. Eastern Time through
4:00 p.m. Eastern Time, excluding the opening price and the closing price, if the Advance Notice is received before 8:30 a.m. Eastern
Time, (b) from 11:00 a.m. Eastern Time through 4:00 p.m. Eastern Time, excluding the opening price and the closing price,
if the Advance Notice is received after 8:30 a.m. Eastern Time and before 10:30 a.m. Eastern Time and (c) from 1:00 p.m. Eastern
Time through 4:00 p.m. Eastern Time, excluding the opening price and the closing price, if the Advance Notice is received after
10:30 a.m. Eastern Time and before 12:30 p.m. Eastern Time (each, the “Measurement Period”); provided, however
for both (a) and (b) above, upon an Advance Halt the VWAP calculation shall terminate as of the effective time of the Material
Outside Event; provided further, that the VWAP calculation shall exclude all trades over that number of Common Shares equal to 5% of
the total volume traded over the applicable Measurement Period. For illustration purposes only, if 1,000,000 Common Shares trade over
the applicable Measurement Period, then any trade over 50,000 Common Shares will be excluded from the VWAP calculation.
Article II
ADVANCES
Section 2.01
Advances; Mechanics. Subject to the terms and conditions of this Agreement (including, without limitation, the provisions
of Article VII hereof), the Company, so long as the Market Price is not below the Floor Price, at its sole and exclusive option,
may issue and sell to the Investor, and the Investor shall purchase from the Company, Common Shares on the following terms.
Section 2.02
Advance Notice. At any time during the Commitment Period, so long as the Market Price
is not below the Floor Price, the Company may require the Investor to purchase the Common Shares by delivering an Advance Notice
to the Investor, subject to the conditions set forth in Section 7.01, and in accordance with the following provisions:
| (a) | The Company shall, in its sole discretion, select the amount of the Advance,
not to exceed the Maximum Advance Amount, it desires to issue and sell to the Investor in
each Advance Notice and the time it desires to deliver each Advance Notice. |
EXECUTION VERSION
| (b) | There shall be no mandatory minimum Advances and no non-usages fee for
not utilizing the Commitment Amount or any part thereof. |
| (c) | The Company shall be limited to delivering one (1) Advance Notice
to Investor per Trading Day. |
| (d) | The Advance Notice shall be valid upon delivery to Investor in accordance
with Exhibit C. |
Section 2.03
Date of Delivery of Advance Notice. An Advance Notice shall be deemed delivered on the day it is received by the Investor
if such notice is received by email on or prior to 12:30 p.m. Eastern Time (or later if waived by the Investor in its sole discretion)
in accordance with the instructions set forth on Exhibit C.
Section 2.04
Advance Limitations. Regardless of the amount of an Advance requested by the Company in the Advance Notice, the final
amount of an Advance pursuant to an Advance Notice shall, unless otherwise agreed by the Investor and the Company in writing, be reduced
in accordance with each of the following limitations:
| (a) | Ownership Limitation; Commitment Amount. In no event shall the
number of Common Shares issuable to the Investor pursuant to an Advance cause the aggregate
number of Common Shares beneficially owned (as calculated pursuant to Section 13(d) of
the Exchange Act) by the Investor and its Affiliates as a result of previous issuances and
sales of Common Shares to Investor under this Agreement to exceed 4.99% of the then outstanding
Common Shares (the “Ownership Limitation”). In connection with each Advance
Notice delivered by the Company, any portion of an Advance that would (i) cause the
Investor to exceed the Ownership Limitation or (ii) cause the aggregate number of Common
Shares issued and sold to the Investor hereunder to exceed the Commitment Amount shall automatically
be withdrawn with no further action required by the Company, and such Advance Notice shall
be deemed automatically modified to reduce the amount of the Advance requested by an amount
equal to such withdrawn portion; provided that in the event of any such automatic withdrawal
and automatic modification, Investor will promptly notify the Company of such event
and such withdrawn portion will not reduce the Commitment Amount. |
| (b) | Registration Limitation. In no event shall an Advance exceed the
amount registered under the Registration Statement then in effect (the “Registration
Limitation”) or the Exchange Cap to the extent applicable. In connection with each
Advance Notice, any portion of an Advance that would exceed the Registration Limitation or
Exchange Cap shall automatically be withdrawn with no further action required by the Company
and such Advance Notice shall be deemed automatically modified to reduce the aggregate amount
of the requested Advance by an amount equal to such withdrawn portion in respect of each
Advance Notice; provided that in the event of any such automatic withdrawal and automatic
modification, Investor will promptly notify the Company of such event and such withdrawn
portion will not reduce the Commitment Amount. |
| (c) | Notwithstanding
any other provision in this Agreement, the Company and the Investor acknowledge and agree
that each Advance Notice shall be an irrevocable, unconditional contract binding on both
parties (but subject to the limitations described in this Section 2.04) and the purchase
and sale of Common Shares pursuant to such Advance Notice shall be in accordance with the
terms of this Agreement, and, subject to Applicable Law and Section 3.09 (Trading Activities),
the Investor may sell Common Shares during the Pricing Period. |
EXECUTION VERSION
Section 2.05
Closings. The closing of each Advance and each sale and purchase of Common Shares related to each Advance (each, a
“Closing”) shall take place as soon as practicable on or after each Advance Date in accordance with the procedures
set forth below. The parties acknowledge that the Purchase Price is not known at the time the Advance Notice is delivered (at which time
the Investor is irrevocably bound) but shall be determined on each Closing based on the daily prices of the Common Shares that are the
inputs to the determination of the Purchase Price as set forth further below. In connection with each Closing, the Company and the Investor
shall fulfill each of its obligations as set forth below:
| (a) | On each Advance Date, the Investor shall deliver to the Company a written
document, in the form attached hereto as Exhibit B (each a “Settlement
Document”), setting forth the final number of Common Shares to be purchased by
the Investor (taking into account any adjustments pursuant to Section 2.04),
the Market Price, the Purchase Price, the aggregate proceeds to be paid by the Investor to
the Company, and a report by Bloomberg, L.P. indicating the VWAP for each of the Trading
Days during the Pricing Period (or, if not reported on Bloomberg, L.P., another reporting
service reasonably agreed to by the parties), in each case in accordance with the terms and
conditions of this Agreement. |
| (b) | Promptly after receipt of the Settlement Document with respect to each
Advance (and, in any event, not later than two (2) Trading Days after such receipt),
the Company will, or will cause its transfer agent to, electronically transfer such number
of Shares to be purchased by the Investor (as set forth in the Settlement Document) by crediting
the Investor’s account or its designee’s account at the Depository Trust Company
through its Deposit Withdrawal at Custodian System or by such other means of delivery as
may be mutually agreed upon by the parties hereto, and transmit notification to the Investor
that such share transfer has been requested. The Company shall promptly notify Investor if
it has reasonable grounds to dispute the calculations set forth in the Settlement Document,
and the Company agrees that such calculations shall be deemed agree-upon and final upon transfer
of the Common Shares. All Common Shares to be purchased by the Investor pursuant to an Advance
Notice shall be issued electronically through DTC’s Deposit/Withdrawal At Custodian
system. Promptly upon receipt of such notification (in any event, not later than three (3) Trading
Days after such receipt), the Investor shall pay to the Company the aggregate purchase price
of the Shares (as set forth in the Settlement Document) in cash in immediately available
funds to an account designated by the Company in writing and transmit notification to the
Company that such funds transfer has been requested. No fractional shares shall be issued,
and any fractional amounts shall be rounded to the next higher whole number of shares. To
facilitate the transfer of the Common Shares by the Investor, the Common Shares will not
bear any restrictive legends so long as there is an effective Registration Statement covering
such Common Shares (it being understood and agreed by the Investor that notwithstanding the
lack of restrictive legends, the Investor may only sell such Common Shares pursuant to the
plan of distribution set forth in the prospectus included in the Registration Statement and
otherwise in compliance with the requirements of the Securities Act (including any applicable
prospectus delivery requirements) or pursuant to an available exemption from its registration
requirements). |
| (c) | On or prior to the Advance Date, each of the Company and the Investor
shall deliver to the other all documents, instruments and writings expressly required to
be delivered by either of them pursuant to this Agreement in order to implement and effect
the transactions contemplated herein. |
| (d) | Notwithstanding anything to the contrary in this Agreement, if on any
day during the Pricing Period (i) the Company notifies Investor that a Material Outside
Event set forth in Section 6.08(i) through (v) has occurred or if the Material
Outside Event set forth in Sections 6.08(vi) or (vii) shall have occurred, or (ii) the
Company notifies the Investor of a Black Out Period, the parties agree that the pending Advance
shall end (the “Advance Halt”) and the final number of Common Shares to
be purchased by the Investor at the Closing for such Advance shall be equal to the number
of Common Shares sold by the Investor during the applicable Pricing Period prior to the notification
from the Company of a Material Outside Event or Black Out Period. |
EXECUTION VERSION
Section 2.06
Failure to Timely Deliver.
| (a) | If on or prior to the Required Delivery Date either (I) if the transfer
agent is not participating in the DTC Fast Automated Securities Transfer Program, the Company
shall fail to issue and deliver a certificate to Investor and register such Common Shares
on the Company’s share register or, if the transfer agent is participating in the DTC
Fast Automated Securities Transfer Program, credit the balance account of Investor or Investor’s
designee with DTC for the number of Common Shares to which Investor submitted for legend
removal by Investor pursuant to clause (ii) below or otherwise or (II) if the Company’s
transfer agent is participating in the DTC Fast Automated Securities Transfer Program, the
transfer agent fails to credit the balance account of Investor or Investor’s designee
with DTC for such number of Common Shares submitted for legend removal by Investor and the
Company fails to promptly, but in no event later than two (2) Business Days (x) so
notify Investor and (y) deliver the Common Shares electronically without any restrictive
legend (so long as there is an effective Registration Statement covering such Common Shares)
by crediting such aggregate number of Common Shares submitted for legend removal by Investor
to Investor’s or its designee’s balance account with DTC through its Deposit/Withdrawal
At Custodian system, and if on or after such Trading Day Investor purchases (in an open market
transaction or otherwise) Common Shares to deliver in satisfaction of a sale by Investor
of Common Shares submitted for legend removal by Investor that Investor is entitled to receive
from the Company (a “Buy-In”), then the Company shall, within two (2) Business
Days after Investor’s request and in Investor’s discretion, either (i) pay
cash to Investor in an amount equal to Investor’s total purchase price (including brokerage
commissions, borrow fees and other out-of-pocket expenses, if any, for the Common Shares
so purchased) (the “Buy-In Price”), at which point the Company’s
obligation to so deliver such certificate or credit Investor’s balance account shall
terminate and such shares shall be cancelled, or (ii) promptly honor its obligation
to so deliver to Investor a certificate or certificates or credit the balance account of
Investor or Investor’s designee with DTC representing such number of Common Shares
that would have been so delivered if the Company timely complied with its obligations hereunder
and pay cash to Investor in an amount equal to the excess (if any) of the Buy-In Price over
the product of (A) such number of Common Shares that the Company was required to deliver
to Investor by the Required Delivery Date multiplied by (B) the price at which Investor
sold such Common Shares in arms-length transaction(s) in anticipation of the Company’s
timely compliance with its delivery obligations hereunder. Nothing shall limit Investor’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 Common Shares
(or to electronically deliver such Common Shares) as required pursuant to the terms hereof. |
| (b) | In the event the Investor sells Common Shares after receipt of an Advance
Notice and the Company fails to perform its obligations as mandated in Section 2.05,
the Company agrees that in addition to and in no way limiting the rights and obligations
set forth in Article V hereto and in addition to any other remedy to which the Investor
is entitled at law or in equity, including, without limitation, specific performance, it
will hold the Investor harmless against any loss, claim, damage, or expense (including, without
limitation, all brokerage commissions, borrow fees, legal fees and expenses and all other
related out-of-pocket expenses), as incurred, arising out of or in connection with such default
by the Company and acknowledges that irreparable damage may occur in the event of any such
default. It is accordingly agreed that the Investor shall be entitled to an injunction or
injunctions to prevent such breaches of this Agreement and to specifically enforce (subject
to the Securities Act and other rules of the Principal Market), without the posting
of a bond or other security, the terms and provisions of this Agreement. |
EXECUTION VERSION
| (c) | In the event the Company provides an Advance Notice and the Investor fails
to perform its obligations as mandated in Section 2.05, the Investor agrees that in
addition to and in no way limiting the rights and obligations set forth in Article V
hereto and in addition to any other remedy to which the Company is entitled at law or in
equity, including, without limitation, specific performance, it will hold the Company harmless
against any loss, claim, damage, or expense (including, without limitation, legal fees and
expenses and all other related out-of-pocket expenses), as incurred, arising out of or in
connection with such default by the Investor and acknowledges that irreparable damage may
occur in the event of any such default. It is accordingly agreed that the Company shall be
entitled to an injunction or injunctions to prevent such breaches of this Agreement and to
specifically enforce (subject to the Securities Act and other rules of the Principal
Market), without the posting of a bond or other security, the terms and provisions of this
Agreement. |
Section 2.07
Completion of Resale Pursuant to the Registration Statement. After the Investor has purchased the full Commitment Amount
and has completed the subsequent resale of the full Commitment Amount pursuant to the Registration Statement, Investor will notify
the Company that all subsequent resales are completed and the Company will be under no further obligation to maintain the effectiveness
of the Registration Statement.
Article III
REPRESENTATIONS AND WARRANTIES OF INVESTOR
Investor hereby represents and warrants to, and agrees with, the Company
that the following are true and correct as of the date hereof and as of each Advance Notice Date and each Advance Date:
Section 3.01
Organization and Authorization. The Investor is duly organized, validly existing and in good standing under the laws
of the Cayman Islands and has all requisite power and authority to execute, deliver and perform this Agreement, including all transactions
contemplated hereby. The decision to invest and the execution and delivery of this Agreement by the Investor, the performance by the
Investor of its obligations hereunder and the consummation by the Investor of the transactions contemplated hereby have been duly authorized
and require no other proceedings on the part of the Investor. The undersigned has the right, power and authority to execute and deliver
this Agreement and all other instruments on behalf of the Investor or its shareholders. This Agreement has been duly executed and delivered
by the Investor and, assuming the execution and delivery hereof and acceptance thereof by the Company, will constitute the legal, valid
and binding obligations of the Investor, enforceable against the Investor in accordance with its terms.
Section 3.02
No Conflict. The execution, delivery and performance of the Transaction Documents
by the Investor and the consummation by the Investor of the transactions contemplated hereby and thereby will not (i) result in
a violation of the organizational documents of the Investor, (ii) conflict with, or constitute a default (or an event which with
notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which the Investor is a party, or (iii) result in a violation of any
law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations) applicable to the Investor
except, in the case of clause (ii) or (iii) above, to the extent such violations or conflicts would not reasonably be expected
to prohibit or otherwise interfere with the ability of the Investor to enter into and perform its obligations under this Agreement or
any other Transaction Document to which the Investor is a party in any material respect.
EXECUTION VERSION
Section 3.03
Evaluation of Risks. The Investor has such knowledge and experience in financial, tax and business matters as to be
capable of evaluating the merits and risks of, and bearing the economic risks entailed by, an investment in the Common Shares of the
Company and of protecting its interests in connection with the transactions contemplated hereby. The Investor acknowledges and agrees
that its investment in the Company involves a high degree of risk, and that the Investor may lose all or a part of its investment.
Section 3.04
No Legal, Investment or Tax Advice from the Company. The Investor acknowledges that it had the opportunity to
review this Agreement and the transactions contemplated by this Agreement with its own legal counsel and investment and tax advisors.
The Investor is relying solely on such counsel and advisors and not on any statements or representations of the Company or any of the
Company’s representatives or agents for legal, tax, investment or other advice with respect to the Investor’s acquisition
of Common Shares hereunder, the transactions contemplated by this Agreement or the laws of any jurisdiction, and the Investor acknowledges
that the Investor may lose all or a part of its investment.
Section 3.05
Investment Purpose. The Investor is acquiring the Common Shares for its own account, for investment purposes and not
with a view towards, or for resale in connection with, the public sale or distribution thereof, except pursuant to sales registered under
or exempt from the registration requirements of the Securities Act; provided, however, that by making the representations herein, the
Investor does not agree, or make any representation or warranty, to hold any of the Securities for any minimum or other specific term
and reserves the right to dispose of the Securities at any time in accordance with, or pursuant to, a registration statement filed pursuant
to this Agreement or an applicable exemption under the Securities Act. The Investor does not presently have any agreement or understanding,
directly or indirectly, with any Person to sell or distribute any of the Common Shares. The Investor acknowledges that it will be disclosed
as an “underwriter” and a “selling stockholder” in each Registration Statement and in any prospectus contained
therein.
Section 3.06
Accredited Investor. The Investor is an “Accredited Investor” as that term is defined in Rule 501(a)(3) of
Regulation D.
Section 3.07
Information. The Investor and its advisors (and its counsel), if any, have been furnished with all materials relating
to the business, finances and operations of the Company and information the Investor deemed material to making an informed investment
decision. The Investor and its advisors (and its counsel), if any, have been afforded the opportunity to ask questions of the Company
and its management and have received answers to such questions. Neither such inquiries nor any other due diligence investigations conducted
by such Investor or its advisors (and its counsel), if any, or its representatives shall modify, amend or affect the Investor’s
right to rely on the Company’s representations and warranties contained in this Agreement. The Investor acknowledges and agrees
that the Company has not made to the Investor, and the Investor acknowledges and agrees it has not relied upon, any representations and
warranties of the Company, its employees or any third party other than the representations and warranties of the Company contained in
this Agreement. The Investor understands that its investment involves a high degree of risk. The Investor has sought such accounting,
legal and tax advice, as it has considered necessary to make an informed investment decision with respect to the transactions contemplated
hereby.
EXECUTION VERSION
Section 3.08
Not an Affiliate. The Investor is not an officer, director or a person that directly, or indirectly through one or
more intermediaries, controls or is controlled by, or is under common control with the Company or any “affiliate” of the
Company (as that term is defined in Rule 405 promulgated under the Securities Act).
Section 3.09
Trading Activities. The Investor’s trading activities with respect to the Common Shares shall be in compliance
with all applicable federal and state securities laws, rules and regulations and the rules and regulations of the Principal
Market. Neither the Investor nor its affiliates has any open short position in the Common Shares, nor has the Investor entered into any
hedging transaction that establishes a net short position with respect to the Common Shares, and the Investor agrees that it shall not,
and that it will cause its affiliates not to, engage in any short sales or hedging transactions with respect to the Common Shares; provided
that the Company acknowledges and agrees that upon receipt of an Advance Notice the Investor has the right to sell (a) the Common
Shares to be issued to the Investor pursuant to the Advance Notice prior to receiving such Common Shares, or (b) other Common Shares
issued or sold by the Company to Investor pursuant to this Agreement and which the Company has continuously held as a long position.
Section 3.10
General Solicitation. Neither the Investor, nor any of its affiliates, nor any person acting on its or their behalf,
has engaged or will engage in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection
with any offer or sale of the Common Shares by the Investor.
Article IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the SEC Documents, or in the Disclosure Schedules,
which Disclosure Schedules shall be deemed a part hereof and shall qualify any representation or warranty otherwise made herein to the
extent of the disclosure contained in the corresponding section of the Disclosure Schedules or in another Section of the Disclosure
Schedules, to the extent that it is reasonably apparent on the face of such disclosure that such disclosure is applicable to such Section,
the Company represents and warrants to the Investor that, as of the date hereof and each Advance Notice Date (other than representations
and warranties which address matters only as of a certain date, which shall be true and correct as written as of such certain date),
that:
Section 4.01
Organization and Qualification. Each of the Company and its Subsidiaries (as defined below) is an entity duly organized
and validly existing under the laws of its jurisdiction of organization or incorporation (as the case may be) and has the requisite power
and authority to own its properties and to carry on its business as now being conducted. Each of the Company and its Subsidiaries is
duly qualified to do business and is in good standing (to the extent applicable) in every jurisdiction in which 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 have a Material Adverse Effect. “Subsidiaries” means any Person (as defined below) in which the Company, directly
or indirectly, (x) owns any of the outstanding capital stock or holds any equity or similar interest of such Person or (y) 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.”
EXECUTION VERSION
Section 4.02
Authorization, Enforcement, Compliance with Other Instruments. The Company has the requisite corporate power and authority
to enter into and perform its obligations under this Agreement and the other Transaction Documents and to issue the Shares in accordance
with the terms hereof and thereof. The execution and delivery by the Company of this Agreement and the other Transaction Documents, and
the consummation by the Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the
Common Shares) have been or (with respect to consummation) will be duly authorized by the Company’s board of directors and no further
consent or authorization will be required by the Company, its board of directors or its shareholders (except as otherwise contemplated
by this Agreement). This Agreement and the other Transaction Documents to which it is a party have been (or, when executed and delivered,
will be) duly executed and delivered by the Company and, assuming the execution and delivery thereof and acceptance by the Investor,
constitute (or, when duly executed and delivered, will be) the legal, valid and binding obligations of the Company, enforceable against
the Company in accordance with their respective terms, except as such enforceability may be limited by general principles of equity or
applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or other 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 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.
Section 4.03
No Conflict. 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 Common Shares)
will not (i) result in a violation of the certificate of incorporation or other organizational documents of the Company or its Subsidiaries
(with respect to consummation, as the same may be amended prior to the date on which any of the transactions contemplated hereby are
consummated), (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a
default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or
instrument to which the Company or its Subsidiaries is a party, or (iii) result in a violation of any law, rule, regulation, order,
judgment or decree (including federal and state securities laws and regulations) applicable to the Company or its Subsidiaries or by
which any property or asset of the Company or its Subsidiaries is bound or affected except, in the case of clause (ii) or (iii) above,
to the extent such violations or conflicts would not reasonably be expected to have a Material Adverse Effect.
Section 4.04
SEC Documents; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents
required to be filed by it with the SEC pursuant to the Exchange Act for the two years preceding the date hereof (or such shorter period
as the Company was required by law or regulation to file such material) (all of the foregoing filed within two years preceding the date
hereof or amended after the date hereof, or filed after the date hereof, and all exhibits included therein and financial statements and
schedules thereto and documents incorporated by reference therein, and all registration statements filed by the Company under the Securities
Act, being hereinafter referred to as the “SEC Documents”). The Company has made available to the Investor through
the SEC’s website at http://www.sec.gov, true and complete copies of the SEC Documents, and none of the SEC Documents, when viewed
as a whole as of the date hereof, 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.
As of their respective dates (or, with respect to any filing that has been amended or superseded, the date of such amendment or superseding
filing), the SEC Documents complied in all material respects with the requirements of the Exchange Act or the Securities Act, as applicable,
and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents. As of their respective dates (or,
with respect to any financial statements that have been amended or superseded, the date of such amended or superseding financial statements),
the financial statements of the Company included in the SEC Documents complied as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC with respect thereto. Such financial statements have been prepared
in accordance with generally accepted accounting principles, 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 respective 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).
EXECUTION VERSION
Section 4.05
Equity Capitalization. As of the date hereof, the share capital of the Company is USD50,000 divided into 500,000,000
ordinary shares of par value USD0.0001 each.
Section 4.06
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, patents, patent rights, copyrights, inventions, licenses,
approvals, governmental authorizations, trade secrets and rights, if any, necessary to conduct their respective businesses as now conducted,
except as would not cause a Material Adverse Effect. The Company and its Subsidiaries have not received written notice of any infringement
by the Company or its Subsidiaries of trademark, trade name rights, patents, patent rights, copyrights, inventions, licenses, service
names, service marks, service mark registrations, or trade secrets. To the knowledge of the Company, there is no claim, action or proceeding
being made or brought against, or to the Company’s knowledge, being threatened against the Company or its Subsidiaries regarding
any material trademark, trade name, patents, patent rights, invention, copyright, license, service names, service marks, service mark
registrations, trade secret or other infringement; and the Company is not aware of any facts or circumstances which might give rise to
any of the foregoing.
Section 4.07
Employee Relations. Neither the Company nor any of its Subsidiaries is involved in any labor dispute nor, to the knowledge
of the Company or any of its Subsidiaries, is any such dispute threatened, in each case which is reasonably likely to cause a Material
Adverse Effect.
Section 4.08
Environmental Laws. The Company and its Subsidiaries (i) have not received written notice alleging any failure
to comply in all material respects with all Environmental Laws (as defined below), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) have not received
written notice alleging any failure to comply with all terms and conditions of any such permit, license or approval where, in each of
the foregoing clauses (i), (ii) and (iii), the failure to so comply would be reasonably expected to have, individually or in the
aggregate, a Material Adverse Effect. The term “Environmental Laws” means all applicable federal, state and local
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.
EXECUTION VERSION
Section 4.09
Title. Except as would not cause a Material Adverse Effect, the Company (or its Subsidiaries) have indefeasible fee
simple or leasehold title to its properties and assets owned by it, free and clear of any pledge, lien, security interest, encumbrance,
claim or equitable interest. Any real property and facilities held under lease by the Company and 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 and its Subsidiaries.
Section 4.10
Insurance. The Company and 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. The Company has no reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue
its business at a cost that would not have a Material Adverse Effect.
Section 4.11
Regulatory Permits. Except as would not cause a Material Adverse Effect, the Company and its Subsidiaries possess all
certificates, authorizations and permits issued by the appropriate federal, state or foreign regulatory authorities necessary to own
their respective businesses, and neither the Company nor any such Subsidiary has received any written notice of proceedings relating
to the revocation or modification of any such certificate, authorization or permits.
Section 4.12
Internal Accounting Controls. The Company maintains 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 generally accepted
accounting principles 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, and management is not aware of any material weaknesses that
are not disclosed in the SEC Documents as and when required.
Section 4.13
Absence of Litigation. There is no action, suit, proceeding, inquiry or investigation before or by any court, public
board, government agency, self-regulatory organization or body pending against or affecting the Company, the Common Shares or any of
the Company’s Subsidiaries, wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
Section 4.14
Subsidiaries. As of the date hereof, the Company does not own or control, directly or indirectly, any interest in any
other corporation, partnership, association or other business entity except as disclosed in the SEC Documents.
Section 4.15
Tax Status. Except as would not have a Material Adverse Effect, each of the Company and 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. The Company has not received written notification any 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 where failure to pay would cause a Material Adverse Effect.
EXECUTION VERSION
Section 4.16
Certain Transactions. Except as not required to be disclosed pursuant to Applicable Law (including, for the avoidance
of doubt, not yet required to be disclosed at the relevant time), none of the officers or directors of the Company is presently a party
to any transaction with the Company (other than for services as employees, officers and directors), including any contract, agreement
or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from,
or otherwise requiring payments to or from any officer or director, or to the knowledge of the Company, any corporation, partnership,
trust or other entity in which any officer or director has a substantial interest or is an officer, director, trustee or partner.
Section 4.17
Rights of First Refusal. The Company is not obligated to offer the Common Shares offered hereunder on a right of first
refusal basis or otherwise to any third parties including, but not limited to, current or former shareholders of the Company, underwriters,
brokers, agents or other third parties.
Section 4.18
Dilution. The Company is aware and acknowledges that issuance of Common Shares hereunder could cause dilution to existing
shareholders and could significantly increase the outstanding number of Common Shares.
Section 4.19
Acknowledgment Regarding Investor’s Purchase of Shares. The Company acknowledges and agrees that the Investor
is acting solely in the capacity of an arm’s length investor with respect to this Agreement and the transactions contemplated hereunder.
The Company further acknowledges that the Investor is not acting as a financial advisor or fiduciary of the Company (or in any similar
capacity) with respect to this Agreement and the transactions contemplated hereunder and any advice given by the Investor or any of its
representatives or agents in connection with this Agreement and the transactions contemplated hereunder is merely incidental to the Investor’s
purchase of the Shares hereunder. The Company is aware and acknowledges that it shall not be able to request Advances under this Agreement
if the Registration Statement is not effective or if any issuances of Common Shares pursuant to any Advances would violate any rules of
the Principal Market.
Section 4.20
Sanctions Matters. Neither the Company, nor any Subsidiary of the Company, nor, to the Company’s knowledge, any
director, officer, agent, employee or affiliate of the Company or any Subsidiary of the Company, is a Person that is, or is owned or
controlled by a Person that is on the list of Specially Designated Nationals and Blocked Persons maintained by OFAC from time to time;
| (a) | the subject of any Sanctions; or |
| (b) | has a place of business in, or is operating, organized, resident or doing
business in a country or territory that is, or whose government is, the subject of Sanctions
Programs (including without limitation Crimea, Cuba, Iran, North Korea, Sudan and Syria). |
Section 4.21
DTC Eligibility. The Company, through the transfer agent, currently participates in the DTC Fast Automated Securities
Transfer (FAST) Program and the Common Shares can be transferred electronically to third parties via the DTC Fast Automated Securities
Transfer (FAST) Program.
EXECUTION VERSION
Article V
INDEMNIFICATION
The Investor and the Company represent to the other the following
with respect to itself:
Section 5.01
Indemnification by the Company. In consideration of the Investor’s execution and delivery of this Agreement,
and in addition to all of the Company’s other obligations under this Agreement, the Company shall defend, protect, indemnify and
hold harmless the Investor, its investment manager, and each of their respective officers, directors, managers, members, partners, employees
and agents (including, without limitation, those retained in connection with the transactions contemplated by this Agreement) and each
person who controls the Investor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively,
the “Investor Indemnitees”) from and against any and all actions, causes of action, suits, claims, losses, costs,
penalties, fees, liabilities and damages, and reasonable and documented expenses in connection therewith (irrespective of whether any
such Investor 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 the Investor Indemnitees or any of them as a result
of, or arising out of, or relating to (a) any untrue statement or alleged untrue statement of a material fact contained in the Registration
Statement for the registration of the Shares as originally filed or in any amendment thereof, or in any related prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that
the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on behalf of the Investor specifically for inclusion therein; (b) any material
misrepresentation or breach of any material representation or material warranty made by the Company in this Agreement or any other certificate,
instrument or document contemplated hereby or thereby; or (c) any material breach of any material covenant, material agreement or
material obligation of the Company contained in this Agreement or any other certificate, instrument or document contemplated hereby or
thereby. To the extent that the foregoing undertaking by the Company may be unenforceable under Applicable Law, the Company shall make
the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities, which is permissible under Applicable
Law.
Section 5.02
Indemnification by the Investor. In consideration of the Company’s execution and delivery of this Agreement,
and in addition to all of the Investor’s other obligations under this Agreement, the Investor shall defend, protect, indemnify
and hold harmless the Company and all of its officers, directors, shareholders, employees and agents (including, without limitation,
those retained in connection with the transactions contemplated by this Agreement) and each person who controls the Investor within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Company Indemnitees”)
from and against any and all Indemnified Liabilities incurred by the Company Indemnitees or any of them as a result of, or arising out
of, or relating to (a) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement
for the registration of the Shares as originally filed or in any amendment thereof, or in any related prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading; provided, however, that the Investor will only be liable
for written information relating to the Investor furnished to the Company by or on behalf of the Investor specifically for inclusion
in the documents referred to in the foregoing indemnity, and will not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information furnished to the Investor by or on behalf of the Company specifically
for inclusion therein; (b) any misrepresentation or breach of any representation or warranty made by the Investor in this Agreement
or any instrument or document contemplated hereby or thereby executed by the Investor; or (c) any breach of any covenant, agreement
or obligation of the Investor(s) contained in this Agreement or any other certificate, instrument or document contemplated hereby
or thereby executed by the Investor. To the extent that the foregoing undertaking by the Investor may be unenforceable under Applicable
Law, the Investor shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities, which is
permissible under Applicable Law.
EXECUTION VERSION
Section 5.03
Notice of Claim. Promptly after receipt by an Investor Indemnitee or Company Indemnitee of notice of the commencement
of any action or proceeding (including any governmental action or proceeding) involving an Indemnified Liability, such Investor Indemnitee
or Company Indemnitee, as applicable, shall, if a claim for an Indemnified Liability in respect thereof is to be made against any indemnifying
party under this Article V, deliver to the indemnifying party a written notice of the commencement thereof; but the failure to so
notify the indemnifying party will not relieve it of liability under this Article V except to the extent the indemnifying party
is prejudiced by such failure. The indemnifying party shall have the right to participate in, and, to the extent the indemnifying party
so desires, jointly with any other indemnifying party similarly noticed, to assume control of the defense thereof with counsel mutually
reasonably satisfactory to the indemnifying party and the Investor Indemnitee or Company Indemnitee, as the case may be; provided, however,
that an Investor Indemnitee or Company Indemnitee shall have the right to retain its own counsel with the actual and reasonable third
party fees and expenses of not more than one counsel for such Investor Indemnitee or Company Indemnitee to be paid by the indemnifying
party, if, in the reasonable opinion of counsel retained by the indemnifying party, the representation by such counsel of the Investor
Indemnitee or Company Indemnitee and the indemnifying party would be inappropriate due to actual or potential differing interests between
such Investor Indemnitee or Company Indemnitee and any other party represented by such counsel in such proceeding. The Investor Indemnitee
or Company Indemnitee shall cooperate fully with the indemnifying party in connection with any negotiation or defense of any such action
or claim by the indemnifying party and shall furnish to the indemnifying party all information reasonably available to the Investor Indemnitee
or Company Indemnitee which relates to such action or claim. The indemnifying party shall keep the Investor Indemnitee or Company Indemnitee
reasonably apprised as to the status of the defense or any settlement negotiations with respect thereto. No indemnifying party shall
be liable for any settlement of any action, claim or proceeding effected without its prior written consent, provided, however, that the
indemnifying party shall not unreasonably withhold, delay or condition its consent. No indemnifying party shall, without the prior written
consent of the Investor Indemnitee or Company 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 Investor Indemnitee or Company
Indemnitee of a release from all liability in respect to such claim or litigation. Following indemnification as provided for hereunder,
the indemnifying party shall be subrogated to all rights of the Investor Indemnitee or Company Indemnitee with respect to all third parties,
firms or corporations relating to the matter for which indemnification has been made. The indemnification required by this Article V
shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received
and payment therefor is due, subject to receipt by the indemnifying party of an undertaking to repay any amounts that such party is ultimately
not entitled to receive as indemnification pursuant to this Agreement.
Section 5.04
Remedies. The remedies provided for in this Article V are not exclusive and shall not limit any right or remedy
which may be available to any indemnified person at law or equity. The obligations of the parties to indemnify or make contribution under
this Article V shall survive expiration or termination of this Agreement.
Section 5.05
Limitation of Liability. Notwithstanding the foregoing, no party shall be entitled to recover from the other party
for punitive, indirect, incidental or consequential damages.
EXECUTION VERSION
Article VI
COVENANTS OF THE COMPANY
Section 6.01
Registration Statement.
| (a) | Filing of a Registration Statement. Within twenty (20) business
days after the consummation of the Business Combination (the “Filing Date”)
or such later date as mutually agreed to in writing prior to such Filing Date, the Company
shall prepare and file with the SEC a Registration Statement for the resale by the Investor
of Registrable Securities and shall file one or more additional Registration Statements for
the resale by Investor of Registrable Securities if necessary. The Company acknowledges and
agrees that it shall not have the ability to request any Advances until the effectiveness
of a Registration Statement registering the applicable Registrable Securities for resale
by the Investor. |
| (b) | Maintaining a Registration Statement. The Company shall use commercially
reasonable efforts to maintain the effectiveness of any Registration Statement that has been
declared effective at all times during the Commitment Period, provided, however, that if
the Company has received notification pursuant to Section 2.04 that the Investor has
completed resales pursuant to the Registration Statement for the full Commitment Amount,
then the Company shall be under no further obligation to maintain the effectiveness of the
Registration Statement. Notwithstanding anything to the contrary contained in this Agreement,
the Company shall use commercially reasonable efforts to ensure that, when filed, each Registration
Statement (including, without limitation, all amendments and supplements thereto) and the
prospectus (including, without limitation, all amendments and supplements thereto) used in
connection with such Registration Statement shall not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein, or necessary to make
the statements therein (in the case of prospectuses, in the light of the circumstances in
which they were made) not misleading. During the Commitment Period, the Company shall notify
the Investor promptly if (i) the Registration Statement shall cease to be effective
under the Securities Act, (ii) the Common Shares shall cease to be authorized for listing
on the Principal Market, (iii) the Common Shares cease to be registered under Section 12(b) or
Section 12(g) of the Exchange Act or (iv) the Company fails to file in a timely
manner all reports and other documents required of it as a reporting company under the Exchange
Act. |
| (c) | Filing Procedures. Not less than one business day prior to the
filing of a Registration Statement and not less than one business day prior to the filing
of any related amendments and supplements to any Registration Statements (except for any
amendments or supplements caused by the filing of any annual reports on Form 20-F, current
reports on Form 6-K, and any similar or successor reports), the Company shall furnish
to the Investor copies of all such documents proposed to be filed, which documents (other
than those filed pursuant to Rule 424 promulgated under the Securities Act) will be
subject to the reasonable and prompt review of the Investor (in each of which cases, if such
document contains material non-public information as consented to by the Investor pursuant
to Section 6.13, the information provided to Investor will be kept strictly confidential
until filed and treated as subject to Section 6.08). The Investor shall furnish comments
on a Registration Statement and any related amendment and supplement to a Registration Statement
to the Company within 24 hours of the receipt thereof. If the Investor fails to provide comments
to the Company within such 24-hour period, then the Registration Statement, related amendment
or related supplement, as applicable, shall be deemed accepted by the Investor in the form
originally delivered by the Company to the Investor. |
EXECUTION VERSION
| (d) | Delivery of Final Documents. The Company shall furnish to the Investor
without charge, (i) at least one copy of each Registration Statement as declared effective
by the SEC and any amendment(s) thereto, including financial statements and schedules,
all documents incorporated therein by reference, all exhibits and each preliminary prospectus,
(ii) at the request of the Investor, at least one copy of the final prospectus included
in such Registration Statement and all amendments and supplements thereto (or such other
number of copies as the Investor may reasonably request) and (iii) such other documents
as the Investor may reasonably request from time to time in order to facilitate the disposition
of the Common Shares owned by the Investor pursuant to a Registration Statement. Filing of
the forgoing with the SEC via its EDGAR system shall satisfy the requirements of this section. |
| (e) | Amendments and Other Filings. The Company shall use commercially
reasonable efforts to (i) prepare and file with the SEC such amendments (including post-effective
amendments) and supplements to a Registration Statement and the related prospectus used in
connection with such Registration Statement, which prospectus is to be filed pursuant to
Rule 424 promulgated under the Securities Act, as may be necessary to keep such Registration
Statement effective at all times during the Commitment Period, and prepare and file with
the SEC such additional Registration Statements in order to register for resale under the
Securities Act all of the Registrable Securities; (ii) cause the related prospectus
to be amended or supplemented by any required prospectus supplement (subject to the terms
of this Agreement), and as so supplemented or amended to be filed pursuant to Rule 424
promulgated under the Securities Act; (iii) provide the Investor copies of all correspondence
from and to the SEC relating to a Registration Statement (provided that the Company may excise
any information contained therein which would constitute material non-public information),
and (iv) comply with the provisions of the Securities Act with respect to the disposition
of all Common Shares of the Company covered by such Registration Statement until such time
as all of such Common Shares shall have been disposed of in accordance with the intended
methods of disposition by the seller or sellers thereof as set forth in such Registration
Statement. In the case of amendments and supplements to a Registration Statement which are
required to be filed pursuant to this Agreement (including pursuant to this Section 6.01(e))
by reason of the Company’s filing a report on Form 20-F or Form 6-K or any
analogous report under the Exchange Act, the Company shall use commercially reasonable efforts
to file such report in a prospectus supplement filed pursuant to Rule 424 promulgated
under the Securities Act to incorporate such filing into the Registration Statement, if applicable,
or shall file such amendments or supplements with the SEC either on the day on which the
Exchange Act report is filed which created the requirement for the Company to amend or supplement
the Registration Statement, if feasible, or otherwise promptly thereafter. |
| (f) | Blue-Sky. The Company shall use its commercially reasonable efforts
to, if required by Applicable Law, (i) register and qualify the Common Shares covered
by a Registration Statement under such other securities or “blue sky” laws of
such jurisdictions in the United States as the Investor reasonably requests, (ii) prepare
and file in those jurisdictions, such amendments (including post-effective amendments) and
supplements to such registrations and qualifications as may be necessary to maintain the
effectiveness thereof during the Commitment Period, (iii) take such other actions as
may be necessary to maintain such registrations and qualifications in effect at all times
during the Commitment Period, and (iv) take all other actions reasonably necessary or
advisable to qualify the Common Shares for sale in such jurisdictions; provided, however,
that the Company shall not be required in connection therewith or as a condition thereto
to (w) make any change to its memorandum and articles of association, (x) qualify
to do business in any jurisdiction where it would not otherwise be required to qualify but
for this Section 6.01(f), (y) subject itself to general taxation in any such jurisdiction,
or (z) file a general consent to service of process in any such jurisdiction. The Company
shall promptly notify the Investor of the receipt by the Company of any notification with
respect to the suspension of the registration or qualification of any of the Common Shares
for sale under the securities or “blue sky” laws of any jurisdiction in the United
States or its receipt of actual notice of the initiation or threat of any proceeding for
such purpose. |
EXECUTION VERSION
Section 6.02
Suspension of Registration Statement.
| (a) | Establishment of a Black Out Period. During the Commitment Period,
the Company from time to time may suspend the use of the Registration Statement by written
notice to the Investor in the event that the Company determines in its sole discretion in
good faith that such suspension is necessary to (A) delay the disclosure of material
nonpublic information concerning the Company, the disclosure of which at the time is not,
in the good faith opinion of the Company, in the best interests of the Company or (B) amend
or supplement the Registration Statement or prospectus so that such Registration Statement
or prospectus shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading (a “Black
Out Period”). |
| (b) | No Sales by Investor During the Black Out Period. During such Black
Out Period, the Investor agrees not to sell any Common Shares of the Company. |
| (c) | Limitations on the Black Out Period. The Company shall not impose
any Black Out Period that is longer than 60 days or in a manner that is more restrictive
(including, without limitation, as to duration) than the comparable restrictions that the
Company may impose on transfers of the Company’s equity securities by its directors
and senior executive officers. In addition, the Company shall not deliver any Advance Notice
during any Black Out Period. If the public announcement of such material, nonpublic information
is made during a Black Out Period, the Black Out Period shall terminate immediately after
such announcement, and the Company shall immediately notify the Investor of the termination
of the Black Out Period. |
Section 6.03
Listing of Common Shares. As of each Advance Date, the Common Shares to be sold by the Company from time to time hereunder
will have been registered under Section 12(b) of the Exchange Act and approved for listing on the Principal Market, subject
to official notice of issuance.
Section 6.04
Opinion of Counsel. Prior to the date of the delivery by the Company of the first Advance Notice, the Investor shall
have received an opinion letter and negative assurances letter from counsel to the Company in form and substance reasonably satisfactory
to the Investor.
Section 6.05
Exchange Act Registration. The Company will use commercially reasonable efforts to file in a timely manner all reports
and other documents required of it as a reporting company under the Exchange Act and will not take any action or file any document (whether
or not permitted by Exchange Act or the rules thereunder) to terminate or suspend its reporting and filing obligations under the
Exchange Act.
EXECUTION VERSION
Section 6.06
Transfer Agent Instructions. For any time while there is a Registration Statement in effect for this transaction, the
Company shall (if required by the transfer agent for the Common Shares) cause legal counsel for the Company to deliver to the transfer
agent for the Common Shares (with a copy to the Investor) instructions to issue Common Shares to the Investor free of restrictive legends
upon each Advance if the delivery of such instructions are consistent with Applicable Law, provided that the Investor’s resale
of such Common Shares may be freely made by the Investor either pursuant to an effective Registration Statement, in accordance with Rule 144,
or otherwise.
Section 6.07
Corporate Existence. The Company will use commercially reasonable efforts to preserve and continue the corporate existence
of the Company during the Commitment Period.
Section 6.08
Notice of Certain Events Affecting Registration; Suspension of Right to Make an Advance. The Company will promptly
notify the Investor, and confirm in writing, upon its becoming aware of the occurrence of any of the following events in respect of a
Registration Statement or related prospectus relating to an offering of Common Shares (in each of which cases the information provided
to Investor will be kept strictly confidential): (i) except for requests made in connection with SEC or other Federal or state governmental
authority investigations disclosed in the SEC Documents, receipt of any request for additional information by the SEC or any other Federal
or state governmental authority during the period of effectiveness of the Registration Statement or any request for amendments or supplements
to the Registration Statement or related prospectus; (ii) the issuance by the SEC or any other Federal governmental authority of
any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; (iii) receipt
of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Common Shares for
sale in any jurisdiction or the initiation or written threat of any proceeding for such purpose; (iv) the happening of any event
that makes any statement made in the Registration Statement or related prospectus or any document incorporated or deemed to be incorporated
therein by reference untrue in any material respect or that requires the making of any changes in the Registration Statement, related
prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that
in the case of the related prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made,
not misleading, or of the necessity to amend the Registration Statement or supplement a related prospectus to comply with the Securities
Act or any other law; and (v) the Company’s reasonable determination that a post-effective amendment to the Registration Statement
would be appropriate; and the Company will promptly make available to the Investor any such supplement or amendment to the related prospectus.
The Company shall not deliver to the Investor any Advance Notice, and the Company shall not sell any Common Shares pursuant any pending
Advance Notice (other than as required pursuant to Section 2.05(d)), during the continuation of any of the foregoing events in clauses
(i) through (v) above, or in the event that (vi) there shall be no bid for the Common Shares on the Principal Market for
a period of 15 consecutive minutes at any time during the applicable Pricing Period or (vii) there shall be a “trading halt”
or circuit breaker” event with respect to the Common Shares on the Principal Market during the applicable Pricing Period (each
of the events described in the immediately preceding clauses (i) through (vii), inclusive, a “Material Outside Event”).
EXECUTION VERSION
Section 6.09
Consolidation. If an Advance Notice has been delivered to the Investor, then the Company shall not effect any consolidation
of the Company with or into, or a transfer of all or substantially all the assets of the Company to another entity before the transaction
contemplated in such Advance Notice has been closed in accordance with Section 2.05 hereof, and all Common Shares in connection
with such Advance have been received by the Investor.
Section 6.10
Issuance of the Company’s Common Shares. The issuance and sale of the Common Shares hereunder shall be made in
accordance with the provisions and requirements of Section 4(a)(2) of the Securities Act or Regulation D under the Securities
Act and any applicable state securities law.
Section 6.11
Market Activities. The Company will not, directly or indirectly, take any action designed to cause or result in, or
that constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the
Company under Regulation M of the Exchange Act.
Section 6.12
Expenses. The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is
terminated, will pay all expenses incident to the performance of its obligations hereunder, including but not limited to (i) the
preparation, printing and filing of the Registration Statement and each amendment and supplement thereto, of each prospectus and of each
amendment and supplement thereto; (ii) the preparation, issuance and delivery of any Shares issued pursuant to this Agreement, (iii) all
reasonable fees and disbursements of the Company’s counsel, accountants and other advisors (and certain fees and disbursements
of Investor’s counsel in accordance with Section 13.04), (iv) the qualification of the Shares under securities laws in
accordance with the provisions of this Agreement, including filing fees in connection therewith, (v) the printing and delivery of
copies of any prospectus and any amendments or supplements thereto, (vi) the fees and expenses incurred in connection with the listing
or qualification of the Shares for trading on the Principal Market, or (vii) filing fees of the SEC and the Principal Market.
Section 6.13
Current Report. 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 the Investor with any material, non-public information regarding
the Company or any of its Subsidiaries without the express prior written consent of the Investor (which may be granted or withheld in
the Investor’s sole discretion and must include an agreement to keep such information confidential until publicly disclosed or
45 days have passed); it being understood that the mere notification of Investor required pursuant to Section 6.08(iv) hereof
shall not in and of itself be deemed to be material non-public information. Notwithstanding anything contained in this Agreement to the
contrary, the Company expressly agrees that it shall publicly disclose, no later than 45 days following the date hereof, but in any event
prior to delivering the first Advance Notice hereunder, any information communicated to the Investor by or, to the knowledge of the Company,
on behalf of the Company in connection with the transactions contemplated herein, which, following the date hereof would, if not so disclosed,
constitute material, non-public information regarding the Company or its Subsidiaries.
Section 6.14
Advance Notice Limitation. The Company shall not deliver an Advance Notice if a shareholder meeting or corporate action
date, or the record date for any shareholder meeting or any corporate action, would fall during the period beginning two Trading Days
prior to the date of delivery of such Advance Notice and ending two Trading Days following the Closing of such Advance.
Section 6.15
Use of Proceeds. The Company will use the proceeds from the sale of the Common Shares hereunder for working capital
and other general corporate purposes or, if different, in a manner consistent with the application thereof described in the Registration
Statement. Neither the Company nor any Subsidiary will, directly or indirectly, use the proceeds of the transactions contemplated herein,
or lend, contribute, facilitate or otherwise make available such proceeds to any Person (i) to fund, either directly or indirectly,
any activities or business of or with any Person that is identified on the list of Specially Designated Nationals and Blocker Persons
maintained by OFAC, or in any country or territory, that, at the time of such funding, is, or whose government is, the subject of Sanctions
or Sanctions Programs, or (ii) in any other manner that will result in a violation of Sanctions.
EXECUTION VERSION
Section 6.16
Compliance with Laws. The Company shall comply in all material respects with all Applicable Laws.
Section 6.17
Aggregation. From and after the date of this Agreement, neither the Company, nor or any of its affiliates will, and
the Company shall use its commercially reasonable efforts to ensure that no Person acting on their behalf will, directly or indirectly,
make any offers or sales of any security or solicit any offers to buy any security, under circumstances that would cause this offering
of the Securities by the Company to the Investor to be aggregated with other offerings by the Company in a manner that would require
shareholder approval pursuant to the rules of the Principal Market on which any of the securities of the Company are listed or designated,
unless shareholder approval is obtained before the closing of such subsequent transaction in accordance with the rules of such Principal
Market.
Section 6.18
Other Transactions. The Company shall not enter into, announce or recommend to its shareholders any agreement, plan, arrangement
or transaction in or of which the terms thereof would restrict, materially delay, conflict with or impair the ability of the Company
to perform its obligations under Section 13.04 of this Agreement.
Section 6.19
Integration. From and after the date of this Agreement, neither the Company, nor or any of its affiliates will, and
the Company shall use its commercially reasonable efforts to ensure that no Person acting on their behalf will, directly or indirectly,
make any offers or sales of any security or solicit any offers to buy any security, under circumstances that would require such registration
of the offer and sale of any of the securities under the Securities Act that frustrates the conditions set forth in Article VII.
EXECUTION VERSION
Section 6.20
Limitation on Variable Rate Transactions. From the date hereof until the date that the Investor has purchased $50 million
in Common Shares hereunder, the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the
Company of Common Shares or Common Share Equivalents (or a combination of units thereof) involving a Variable Rate Transaction, other
than in connection with an Exempt Issuance. The Investor shall be entitled to seek injunctive relief against the Company to preclude
any such issuance, which remedy shall be in addition to any right to collect damages, without the necessity of showing economic loss
and without any bond or other security being required. “Common Share Equivalents” means any securities of the Company
which entitle the holder thereof to acquire at any time Common Shares, including, without limitation, Common Shares, any debt, preferred
shares, rights, options, warrants or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise
entitles the holder thereof to receive, Common Shares. “Variable Rate Transaction” means a transaction in which the
Company (i) issues or sells any equity or debt securities that are convertible into, exchangeable or exercisable for, or include
the right to receive additional Common Shares or Common Share Equivalents either (A) at a conversion price, exercise price, exchange
rate or other price that is based upon and/or varies with the trading prices of or quotations for the Common Shares at any time after
the initial issuance of such equity or debt securities (including, without limitation, pursuant to any “cashless exercise”
provision), 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 equity or debt security or upon the occurrence of specified or contingent events directly or indirectly related to the
business of the Company or the market for the Common Share (including, without limitation, any “full ratchet” or “weighted
average” anti-dilution provisions, but not including any standard anti-dilution protection for any reorganization, recapitalization,
non-cash dividend, share split, reverse share split or other similar transaction), (ii) issues or sells any equity or debt securities,
including without limitation, Common Shares or Common Share Equivalents, either (A) at a price that is subject to being reset at
some future date after the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events
directly or indirectly related to the business of the Company or the market for the Common Shares (other than standard anti-dilution
protection for any reorganization, recapitalization, non-cash dividend, share split, reverse share split or other similar transaction),
or (B) that is subject to or contains any put, call, redemption, buy-back, price-reset or other similar provision or mechanism (including,
without limitation, a “Black-Scholes” put or call right) that provides for the issuance of additional equity securities of
the Company or the payment of cash by the Company, or (iii) enters into any agreement, including, but not limited to, an “equity
line” that is not an Exempt Issuance or other continuous offering or similar offering of Common Shares or Common Share Equivalents,
whereby the Company may sell Common Shares or Common Share Equivalents at a future determined price. “Exempt Issuance” means
the issuance of (a) Common Shares, options, restricted stock units or other equity incentive awards to employees, officers, consultants,
directors or vendors of the Company pursuant to any equity incentive plan duly adopted for such purpose, by the Board of Directors of
the Company or a majority of the members of a committee of directors established for such purpose, (b) any Shares issued to the
Investor pursuant to this Agreement, (c) Common Shares, Common Share Equivalents or other securities issued to the Investor pursuant
to any other existing or future contract, agreement or arrangement between the Company and the Investor, (d) Common Shares, Common
Share Equivalents or other securities upon the exercise, exchange or conversion of any Common Shares, Common Share Equivalents or other
securities held by the Investor at any time, (e) any securities issued upon the exercise or exchange of or conversion of any Common
Share Equivalents issued and outstanding on the date hereof, provided that such securities or Common Share Equivalents referred to in
this clause (e) have not been amended since the date hereof to increase the number of such securities or Common Shares underlying
such securities or to decrease the exercise price, exchange price or conversion price of such securities, (f) Common Share Equivalents
that are convertible into, exchangeable or exercisable for, or include the right to receive Common Share at a conversion price, exercise
price, exchange rate or other price (which may be below the then current market price of the Common Shares) that is fixed at the time
of initial issuance of such Common Share Equivalents (subject only to standard anti-dilution protection for any reorganization, recapitalization,
non-cash dividend, share split, reverse share split or other similar transaction), which fixed conversion price, exercise price, exchange
rate or other price shall not at any time after the initial issuance of such Common Share Equivalent be based upon or varying with the
trading prices of or quotations for the Common Shares or subject to being reset at some future date, (g) securities issued pursuant
to acquisitions, divestitures, licenses, partnerships, collaborations or strategic transactions approved by the Board of Directors of
the Company or a majority of the members of a committee of directors established for such purpose, which acquisitions, divestitures,
licenses, partnerships, collaborations or strategic transactions can have a Variable Rate Transaction component, provided that any such
issuance shall only be to a Person (or to the equity holders of a Person) which is, itself or through its subsidiaries, an operating
company or an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in
addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the
purpose of raising capital or to an entity whose primary business is investing in securities, and (h) Common Shares issued pursuant
to an “at-the-market offering” by the Company exclusively through a registered broker-dealer acting as agent of the Company
pursuant to a written agreement between the Company and such registered broker-dealer (an “ATM Agreement”), provided
that the Company issues to the Investor that number of Common Shares having an aggregate dollar value equal to $500,000 based on a per
Common Share price equal to the simple average of the daily VWAP of the Common Shares during the ten (10) Trading Days immediately
following the date upon which the Company executes any such ATM Agreement and (i) additional equity lines of credit with other investors.
EXECUTION VERSION
Section 6.21
DTC. The Company shall take all action necessary to ensure that its Common Shares can be transferred electronically
as DWAC Shares. “DWAC Shares” means Common Shares that are (i) issued in electronic form, (ii) freely tradable
and transferable and without restriction on resale and (iii) timely credited by the Company to the Investor’s or its designee’s
specified Deposit/Withdrawal at Custodian (“DWAC”) account with DTC under its Fast Automated Securities Transfer (FAST) Program,
or any similar program hereafter adopted by DTC performing substantially the same function, in accordance with the terms of this Agreement.
Section 6.22
Non-Public Information. Each party hereto agrees not to disclose any Confidential Information of the other party to
any third party and shall not use the Confidential Information for any purpose other than in connection with, or in furtherance of, the
transactions contemplated hereby in full compliance with applicable securities laws; provided, however that a party may disclose Confidential
Information that is required by law to be disclosed by the receiving party, provided that the receiving party gives the disclosing party
prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from
public disclosure. Each party hereto acknowledges that the Confidential Information shall remain the property of the disclosing party
and agrees that it shall take all reasonable measures to protect the secrecy of any Confidential Information disclosed by the other party.
The Company confirms that neither it nor any other Person acting on its behalf shall provide the Investor or its agents or counsel with
any information that constitutes material, non-public information, unless a simultaneous public announcement thereof is made by the Company
in the manner contemplated by Regulation FD under the Exchange Act. In the event of a breach of the foregoing covenant by the Company
or any Person acting on its behalf (as determined in the reasonable good faith judgment of the Investor), in addition to any other remedy
provided herein or in the other Transaction Documents, the Investor shall have the right to make a public disclosure, in the form of
a press release, public advertisement or otherwise, of such material, non-public information without the prior approval by the Company;
provided the Investor shall have first provided notice to the Company that it believes it has received information that constitutes material,
non-public information, the Company shall have at least twenty-four (24) hours to publicly disclose such material, non-public information
prior to any such disclosure by the Investor, and the Company shall have failed to publicly disclose such material, non-public information
within such time period. The Investor shall not have any liability to the Company, any of its Subsidiaries, or any of their respective
directors, officers, employees, shareholders or agents, for any such disclosure. The Company understands and confirms that the Investor
shall be relying on the foregoing covenants in effecting transactions in securities of the Company.
Section 6.23
Use of Name. The Company shall not, directly or indirectly, use the names “Arena Business Results”, “Arena
Management Company, LLC”, “Arena Finance Company, LLC”, or “Arena”, or any derivations thereof, or logos
associated with these names, as the case may be, in any manner or take any action that may imply any relationship with the Investor or
any of its Affiliates without the prior written consent of the Investor, provided, however, the Investor hereby consents to all lawful
uses of these names in the prospectus, statement and other materials that are required by applicable laws or pursuant to the disclosure
requirements of the SEC or any state securities authority.
EXECUTION VERSION
Article VII
CONDITIONS FOR DELIVERY OF ADVANCE NOTICE
Section 7.01
Conditions Precedent to the Right of the Company to Deliver an Advance Notice. The right of the Company to deliver
an Advance Notice and the obligations of the Investor hereunder with respect to an Advance is subject to:
| (a) | the satisfaction by the Company, on each Advance Notice Date (a “Condition
Satisfaction Date”), of each of the following conditions: |
| (b) | Accuracy of the Company’s Representations and Warranties.
The representations and warranties of the Company in this Agreement shall be true and correct
in all material respects. |
| (c) | Registration of the Common Shares with the SEC. There is an effective
Registration Statement pursuant to which the Investor is permitted to utilize the prospectus
thereunder to resell all of the Commitment Fee Shares and Common Shares issuable pursuant
to such Advance Notice. The Company shall have filed with the SEC all reports, notices and
other documents required under the Exchange Act and applicable SEC regulations during the
twelve-month period immediately preceding the applicable Condition Satisfaction Date. |
| (d) | Authority. The Company shall have obtained all permits and qualifications
required by any applicable state for the offer and sale of all the Common Shares issuable
pursuant to such Advance Notice, or shall have the availability of exemptions therefrom.
The sale and issuance of such Common Shares shall be legally permitted by all laws and regulations
to which the Company is subject. |
| (e) | No Material Outside Event. No Material Outside Event shall have
occurred and be continuing. |
| (f) | Performance by the Company. The Company shall have performed, satisfied
and complied in all material respects with all covenants, agreements and conditions required
by this Agreement to be performed, satisfied or complied with by the Company at or prior
the applicable Condition Satisfaction Date (for the avoidance of doubt, if the Company shall
have performed, satisfied and complied in all material respects with all covenants, agreements
and conditions required by this Agreement at the time of the applicable Condition Satisfaction
Date, but did not comply with any timing requirement set forth herein, then this condition
shall be deemed satisfied unless the Investor is materially prejudiced by the failure of
the Company to comply with any such timing requirement). |
| (g) | No Injunction. No statute, rule, regulation, executive order, decree,
ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court
or governmental authority of competent jurisdiction that prohibits or directly, materially
and adversely affects any of the transactions contemplated by this Agreement. |
| (h) | No Suspension of Trading in or Delisting of Common Shares. The
Common Shares are quoted for trading on the Principal Market and all of the Common Shares
issuable pursuant to such Advance Notice will be listed or quoted for trading on the Principal
Market. The issuance of Common Shares with respect to the applicable Advance Notice will
not violate the shareholder approval requirements of the Principal Market. The Company shall
not have received any written notice that is then still pending threatening the continued
quotation of the Common Shares on the Principal Market. |
| (i) | Authorized. There shall be a sufficient number of authorized but
unissued and otherwise unreserved Common Shares for the issuance of all of the Common Shares
issuable pursuant to such Advance Notice. |
| (j) | Executed Advance Notice. The representations contained in the applicable
Advance Notice shall be true and correct in all material respects as of the applicable Condition
Satisfaction Date. |
EXECUTION VERSION
| (k) | Consecutive Advance Notices. Except with respect to the first Advance
Notice, the Pricing Period for all prior Advances has been completed. |
Furthermore, the Company shall not have the right to deliver an Advance
Notice to the Investor if any of the following shall occur:
| (l) | the Company breaches any representation or warranty in any material respect,
or breaches any covenant or other term or condition under any Transaction Document in any
material respect, and except in the case of a breach of a covenant which is reasonably curable,
only if such breach continues for a period of at least three (3) consecutive Business
Days; |
| (m) | if any Person commences a proceeding against the Company pursuant to or
within the meaning of any Bankruptcy Law for so long as such proceeding is not dismissed; |
| (n) | if the Company is at any time insolvent, or, pursuant to or within the
meaning of any Bankruptcy Law, (i) commences a voluntary case, (ii) consents to
the entry of an order for relief against it in an involuntary case, (iii) consents to
the appointment of a Custodian of it or for all or substantially all of its property, or
(iv) makes a general assignment for the benefit of its creditors or (v) the Company
is generally unable to pay its debts as the same become due; |
| (o) | a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that (i) is for relief against the Company in an involuntary case, (ii) appoints
a Custodian of the Company or for all or substantially all of its property, or (iii) orders
the liquidation of the Company or any Subsidiary for so long as such order, decree or similar
action remains in effect; or |
| (p) | if at any time the Company is not eligible to transfer its Common Shares
electronically through DTC’s Deposit/Withdrawal At Custodian system. |
Article VIII
NON-DISCLOSURE OF NON-PUBLIC INFORMATION
The Company covenants and agrees that, other than as expressly required
by Section 6.08 and Section 6.22 hereof or, with the Investor’s consent pursuant to Section 6.01(c) and 6.13,
it shall refrain from disclosing, and shall cause its officers, directors, employees and agents to refrain from disclosing, any material
non-public information (as determined under the Securities Act, the Exchange Act, or the rules and regulations of the SEC) to the
Investor without also disseminating such information to the public, unless prior to disclosure of such information the Company identifies
such information as being material non-public information and provides the Investor with the opportunity to accept or refuse to accept
such material non-public information for review. Unless specifically agreed to in writing, in no event shall the Investor have a duty
of confidentiality, or be deemed to have agreed to maintain information in confidence, with respect to the delivery of any Advance Notices.
Article IX
NON EXCLUSIVE AGREEMENT
Notwithstanding anything contained herein, this Agreement and the
rights awarded to the Investor hereunder are non-exclusive, and the Company may, at any time throughout the term of this Agreement and
thereafter, issue and allot, or undertake to issue and allot, any shares and/or securities and/or convertible notes, bonds, debentures,
options to acquire shares or other securities and/or other facilities which may be converted into or replaced by Common Shares or other
securities of the Company, and to extend, renew and/or recycle any bonds and/or debentures, and/or grant any rights (including registration
rights) with respect to its existing and/or future share capital.
EXECUTION VERSION
Article X
CHOICE OF LAW/JURISDICTION
This Agreement shall be governed by and interpreted in accordance
with the laws of the State of New York without regard to the principles of conflict of laws. The parties further agree that any action
between them shall be heard in New York County, New York, and expressly consent to the jurisdiction and venue of the Supreme Court of
New York, sitting in New York County, New York and the United States District Court of the Southern District of New York, sitting in
New York, New York, for the adjudication of any civil action asserted pursuant to this Agreement.
Article XI
ASSIGNMENT; TERMINATION
Section 11.01
Assignment. Neither this Agreement nor any rights or obligations of the parties hereto may be assigned to any other
Person.
Section 11.02
Termination.
| (a) | Unless earlier terminated as provided hereunder, this Agreement shall
terminate automatically on the earliest of (i) the first day of the month next following
the 36-month anniversary of the date hereof or (ii) the date on which the Investor shall
have made payment of Advances pursuant to this Agreement for Common Shares equal to the Commitment
Amount. |
| (b) | The Company may terminate this Agreement effective upon five Trading Days’
prior written notice to the Investor; provided that (i) there are no outstanding Advance
Notices, the Common Shares under which have yet to be issued, and (ii) the Company has
paid all amounts owed to the Investor pursuant to this Agreement. This Agreement may be terminated
at any time by the mutual written consent of the parties, effective as of the date of such
mutual written consent unless otherwise provided in such written consent. (c) Nothing
in this Section 11.02 shall be deemed to release the Company or the Investor from any
liability for any breach under this Agreement, or to impair the rights of the Company and
the Investor to compel specific performance by the other party of its obligations under this
Agreement. The indemnification provisions contained in Article V shall survive termination
hereunder. |
EXECUTION VERSION
Article XII
NOTICES
Other than with respect to Advance Notices, which must be in writing
and will be deemed delivered on the day set forth in Section 2.02 in accordance with Exhibit C, 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 facsimile or e-mail if
sent on a Trading Day, or, if not sent on a Trading Day, on the immediately following Trading Day; (iii) 5 days after being sent
by U.S. certified mail, return receipt requested, (iv) 1 day after deposit with a nationally recognized overnight delivery service,
in each case properly addressed to the party to receive the same. The addresses and facsimile numbers for such communications (except
for Advance Notices which shall be delivered in accordance with Exhibit A hereof) shall be:
If to the Company, to: |
I/C/O NOCO-NOCO PTE. LTD.
4 Shenton Way
#04-06 SGX Centre 2
Singapore 068807
Attention: Kenneth Lim, Vice President, Group Finance
Telephone: + 65 6970 9643
Email: Kenneth.Lim@noco-noco.com |
|
|
If to the Investor(s): |
ARENA BUSINESS SOLUTIONS GLOBAL SPC II, LTD on behalf of and for
the account of SEGREGATED PORTFOLIO #9 – SPC #9
405 Lexington Ave, 59th Floor
New York, NY 10174
Attention: Yoav Stramer
Telephone: (212) 752-2568
Email: ystramer@arenaco.com |
|
|
With a Copy (which shall not
constitute notice or delivery of process) to: |
Pryor Cashman LLP
7 Times Square
New York, New York 10036
Attention: Matthew Ogurick, Esq.
Telephone: (212) 326-0243
Email: mogurick@pryorcashman.com |
Either may change its information contained in this Article XII
by delivering notice to the other party as set forth herein.
Article XIII
MISCELLANEOUS
Section 13.01
Counterparts. This Agreement may be executed in identical counterparts, both 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. Facsimile
or other electronically scanned and delivered signatures, including by e-mail attachment, shall be deemed originals for all purposes
of this Agreement.
Section 13.02
Entire Agreement; Amendments. This Agreement supersedes all other prior oral or written agreements between the Investor,
the Company, their respective affiliates and persons acting on their behalf with respect to the matters discussed herein, and this Agreement
contains the entire understanding of the parties with respect to the matters covered herein and, except as specifically set forth herein,
neither the Company nor the Investor makes any representation, warranty, covenant or undertaking with respect to such matters. No provision
of this Agreement may be waived or amended other than by an instrument in writing signed by the parties to this Agreement. The provisions
of the existing confidentiality agreement between the Investor and the Company shall remain in force, except that all provisions therein
dealing with the treatment of material non-public information are superseded by this Agreement.
EXECUTION VERSION
Section 13.03
Reporting Entity for the Common Shares. The reporting entity relied upon for the determination of the trading price
or trading volume of the Common Shares on any given Trading Day for the purposes of this Agreement shall be Bloomberg, L.P. or any successor
thereto. The written mutual consent of the Investor and the Company shall be required to employ any other reporting entity.
Section 13.04
Due Diligence Fee; Commitment Fee Shares.
| (a) | Each of the parties shall pay its own fees and expenses (including the
fees of any attorneys, accountants, appraisers or others engaged by such party) in connection
with this Agreement and the transactions contemplated hereby. |
| (b) | In consideration for the Investor’s execution and delivery of this
Agreement, the Company shall, in its sole discretion, either pay in cash, or issue to the
Investor, as a commitment fee, that number of Common Shares having an aggregate dollar value
equal to $3,000,000 (“Commitment Fee Shares”) within thirty (30) days
of the closing the Business Combination if the Company elects to settle the Commitment Fee
Shares in cash, or promptly (but in no event later than one (1) Trading Day) of the
effectiveness of the Registration Statement if the Company elects to issue Common Shares
to settle such commitment fee; provided however, that the Company must elect in writing,
within ten (10) Business Days of the closing of the Business Combination, whether it
is to pay such commitment fee in Common Shares. |
| (c) | If the Company elects to issue Common Shares, the Commitment Fee Shares
shall be subject to a true-up after the initial issuance pursuant to subsection (b) above
whereby the Company shall deliver irrevocable instructions to its transfer agent to electronically
transfer to the Investor or its designee(s) that number of Common Shares having an aggregate
dollar value equal to $3,000,000 based on the lower of (A) the per Common Share price,
which price shall be equal to the simple average of the daily VWAP of the Common Shares during
the ten (10) Trading Days immediately preceding the effectiveness of the Registration
Statement (the “Commitment Fee Share Price”) and (B) the lower of
(i) the simple average of the three (3) lowest daily intraday trade prices over
the twenty (20) Trading Days after (and not including) the date of effectiveness of the Registration
Statement and (ii) the closing price on the twentieth (20th) Trading Day
after the effectiveness of Registration Statement. The Company shall therefore promptly (but
in no event later than one (1) Trading Day) issue to the Company the Commitment Fee
Shares based on the Commitment Fee Share Price upon effectiveness of the Registration Statement,
and shall, if applicable, issue additional Commitment Fee Shares to the Investor promptly
(but in no event later than one (1) Trading Day after the end of the pricing period
described in the preceding clause (i)) to the extent such additional Commitment Fee Shares
are issuable pursuant to the terms of this Section 13.04. |
| (d) | The Company agrees that it shall not register for resale, or file any
registration statement containing, any Common Shares issued, issuable to, or held by Meteora
Capital Partners, LP, Meteora Select Trading Opportunities Master, LP, Meteora Strategic
Capital, LLC, pursuant to the forward purchase agreement entered into by and between PNAC,
noco-noco and Meteora Capital Partners, LP, Meteora Select Trading Opportunities Master,
LP and Meteora Strategic Capital, LLC on August 13, 2023 (the “Meteora FPA
Shares”), prior to the effectiveness of the registration of the Commitment Fee
Shares without the prior written consent of the Investor, unless such Meteora FPA Shares
are registered concurrently in the Registration Statement covering the Commitment Fee Shares.
For the avoidance of doubt, any registration of Meteora FPA Shares after the effectiveness
of the registration of the Commitment Fee Shares shall not require the Investor’s consent. |
EXECUTION VERSION
Section 13.05
Brokerage. Each of the parties hereto represents that, except for GSS Capital Group (the Investment Banking/Corporate
Finance Dept. of Garden State Securities, Inc.), it has had no dealings in connection with this transaction with any finder or broker
who will demand payment of any fee or commission from the other party. The Company on the one hand, and the Investor, on the other hand,
agree to indemnify the other against and hold the other harmless from any and all liabilities to any person claiming brokerage commissions
or finder’s fees on account of services purported to have been rendered on behalf of the indemnifying party in connection with
this Agreement or the transactions contemplated hereby.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Purchase
Agreement to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above.
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COMPANY: |
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PRIME NUMBER HOLDING LIMITED |
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By: |
/s/ Dongfeng Wang |
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Name: |
Dongfeng Wang |
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Title: |
CEO |
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INVESTOR:
ARENA BUSINESS SOLUTIONS GLOBAL SPC II, LTD on behalf of and for the
account of SEGREGATED PORTFOLIO #9 – SPC #9 |
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By: |
/s/ Lawrence Cutler |
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Name: |
Lawrence Cutler |
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Title: |
Authorized Signatory |
EXHIBIT A
ADVANCE NOTICE
noco-noco
Inc.
(formerly known as “PRIME NUMBER HOLDING LIMITED”)
Dated: ______________ Advance Notice Number: ____
The
undersigned, _______________________, hereby certifies, with respect to the sale of Common Shares of noco-noco
Inc. (the “Company”) issuable in connection with this Advance Notice, delivered pursuant to that certain Purchase
Agreement, dated as of August __, 2023 (the “Agreement”), as follows:
1 |
The undersigned is the duly elected ______________ of the Company. |
2 |
There are no fundamental changes to the information set forth in the Registration Statement which would require the Company to file a post-effective amendment to the Registration Statement. |
3 |
All conditions to the delivery of this Advance Notice are satisfied as of the date hereof. |
4 |
The number of Common Shares that the Company is requesting in this Advance is _____________________. |
5 |
The number of Common Shares of the Company issued and outstanding as of the date hereof is ___________. |
6 |
The Pricing Period shall be one (1) Trading Day. |
The undersigned has executed this Advance Notice as of the date first
set forth above.
noco-noco Inc. |
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By: |
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Name: |
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Title: |
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EXHIBIT B
FORM OF SETTLEMENT DOCUMENT
VIA EMAIL
noco-noco Inc.
Attn:
Email:
Subject:
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Below please find the settlement information with respect to the Advance Notice Date of: |
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1. |
Amount of Advance requested in the Advance Notice |
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2. |
Adjusted Advance (after taking into account any adjustments pursuant to Section 2.01): |
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3. |
Market Price |
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4. |
Purchase Price (Market Price x 90%) per share |
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5. |
Number of Common Shares due to Investor |
Please issue the number of Common Shares due to the Investor to
the account of the Investor as follows:
INVESTOR’S DTC PARTICIPANT #:
ACCOUNT NAME:
ACCOUNT NUMBER:
ADDRESS:
CITY:
COUNTRY:
CONTACT PERSON:
NUMBER AND/OR EMAIL:
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Sincerely, |
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ARENA BUSINESS SOLUTIONS GLOBAL SPC II, LTD on behalf of and for the account of SEGREGATED PORTFOLIO #9 – SPC #9 |
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By: |
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Name: |
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Title: |
Agreed and Approved: |
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noco-noco Inc. |
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By: |
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Name: |
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Title: |
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SCHEDULE 1
Authorized Representatives
The following individuals may execute Advance Notices:
1. | Masataka Matsumura, Chief Executive Officer |
2. | Yoshinori Kurahashi, Chief Financial Officer |
3. | Kenneth Lim, Vice President, Group Finance |
4. | Chee Leng Hor, Chief Operating Officer |
EXHIBIT C
VIA EMAIL
Email: ELOC@arenaco.com
Subject: ELOC: noco-noco Inc. Advance Notice |
1 |
Advance Notice Date |
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2. |
Amount of Advance Shares: |
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3. |
Time of Advance: |
v3.23.2
Cover
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Aug. 14, 2023 |
Document Information [Line Items] |
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Document Type |
8-K
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Aug. 14, 2023
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Entity File Number |
001-41394
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Entity Registrant Name |
Prime Number Acquisition I Corp.
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Entity Central Index Key |
0001858180
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Entity Tax Identification Number |
86-2378484
|
Entity Incorporation, State or Country Code |
DE
|
Entity Address, Address Line One |
1129 Northern Blvd
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Entity Address, Address Line Two |
Suite 404
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Entity Address, City or Town |
Manhasset
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Entity Address, State or Province |
NY
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Entity Address, Postal Zip Code |
11030
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City Area Code |
347
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Local Phone Number |
329-1575
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Units, each consisting of one share of Class A Common Stock, on-half of one Warrant and one Right [Member] |
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Title of 12(b) Security |
Units, each consisting of one share of Class A Common Stock, on-half of one Warrant and one Right
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Trading Symbol |
PNACU
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Security Exchange Name |
NASDAQ
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Common Stock [Member] |
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Class A Common Stock, par value $0.0001 per share
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PNAC
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NASDAQ
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Warrants, each whole warrant exercisable for one share of Class A Common Stock at an exercise price of $11.50
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PNACW
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NASDAQ
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PNACR
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NASDAQ
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