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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
Date of Report (Date of earliest event reported):
May 6, 2024
ZOOMCAR HOLDINGS, INC.
(Exact name of registrant as specified in its
charter)
Delaware |
|
001-40964 |
|
99-0431609 |
(State or other jurisdiction
of incorporation) |
|
(Commission File Number) |
|
(IRS Employer
Identification No.) |
Anjaneya Techno Park, No.147, 1st Floor
Kodihalli, Bangalore, India |
|
560008 |
(Address of principal executive offices) |
|
(Zip Code) |
+91 99454-8382
(Registrant’s telephone number, including
area code)
(Former name or former address, if changed
since last report)
Check the appropriate box below if the Form 8-K
is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☐ | Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
|
Trading Symbol(s) |
|
Name of each exchange
on which registered |
Common Stock, par value $0.0001 per share |
|
ZCAR |
|
The Nasdaq Stock Market LLC |
Warrants, each exercisable for one share of Common Stock at a price of $5.71, subject to adjustment |
|
ZCARW |
|
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 (§ 230.405 of this chapter) or Rule 12b-2 of the
Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company ☒
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.
Equity Line of Credit
On May 6, 2024, by Zoomcar
Holdings, Inc. (the “Company”) entered into a common stock purchase agreement (the “Common Stock Purchase
Agreement”) and a related registration rights agreement (the “White Lion RRA”) with White Lion Capital LLC
(“White Lion”).
Pursuant to the Common Stock
Purchase Agreement, following its closing and following the effective date of a resale registration statement registering the shares issuable
to White Lion in accordance with the terms of the White Lion RRA, the Company has the right, but not the obligation, to require White
Lion to purchase, from time to time, up to the lesser of (i) $25,000,000 in aggregate gross purchase price of newly issued shares of the
Company’s Common Stock, par value $0.0001 per share, (the “Common Stock”) and (ii) the Exchange Cap (as defined
below), in each case, subject to certain limitations and conditions set forth in the Common Stock Purchase Agreement. The number of shares
of Common Stock that the Company may require White Lion to purchase in any single sales notice will depend on a number of factors, including
the type of purchase notice that the Company delivers. For example: (1) if the Company were to deliver the Initial Purchase Notice (as
such term is defined in the Common Stock Purchase Agreement), the Company can require White Lion to purchase the lesser of 150% of ADTV
and a number of shares of Common Stock equal to $2 million divided by the highest closing price of the Common Stock over the 5 business
days prior to the notice; (2) if the Company were to deliver a Rapid Purchase Notice (as such term is defined in the Common Stock Purchase
Agreement), the Company can require White Lion to purchase the lesser of 10% of the average daily trading volume (as such term is defined
in the Common Stock Purchase Agreement, the “ADTV”) and a number of shares equal to $2 million divided by the highest
closing price of the Common Stock over the 5 business days prior to the notice; and (3) if the Company were to deliver a VWAP Purchase
Notice (as such term is defined in the Common Stock Purchase Agreement), the Company can require White Lion to purchase the lesser of
30% of the ADTV and a number of shares equal to $2 million divided by the highest closing price of the Common Stock over the 5 business
days prior to the notice.
Similarly, the purchase price
to be paid by White Lion for any shares that the Company requires them to purchase will depend on the type of sales notice that the Company
delivers. For example, (1) for the Initial Purchase Investment Notice, the purchase price per share will be equal to 97% of the lowest
VWAP (as defined in the Common Stock Purchase Agreement) that occurs during the 5 consecutive business days after the purchase notice
is delivered; (2) for any Rapid Purchase Notice, the purchase price per share will be equal to the lowest traded price on the date that
the notice is delivered; and (3) for any VWAP Purchase Notice, the purchase price per share will be equal to 97% of the lower of
(1) the lowest daily VWAP during the three consecutive business days after notice is delivered or (2) the closing sale price on the day
prior to the notice.
The Common Stock Purchase
Agreement will terminate automatically on the earliest of (i) the two year anniversary of its execution date; (ii) the date when White
Lion buys all the shares it agreed to buy under the Common Stock Purchase Agreement; or (iii) the date, if any, when the Company files
for bankruptcy, has a bankruptcy case filed against it, has a custodian appointed for it or its property, or assigns its assets to its
creditors.
In consideration for
the commitments of White Lion, the Company agreed in the Common Stock Purchase Agreement to issue to White Lion an aggregate of
$312,500 of shares based on the closing price of the Common Stock on the day that is the earlier of the business day prior to
effectiveness of the resale registration statement registering the shares issuable under the Common Stock Purchase Agreement and the
business day prior to the date that White Lion requests the issuance of the shares.
White Lion RRA
Concurrently with the Common
Stock Purchase Agreement, the Company entered into the White Lion RRA with White Lion, in which the Company agreed to file, within 10
days following the filing of the Company’s Annual Report on Form 10-K for the fiscal year ended March 31, 2024, a resale registration
statement with the SEC covering the resale by White Lion of the maximum number of shares permitted to be included thereon in accordance
with applicable SEC rules, regulations and interpretations.
The
foregoing description of each of the Common Stock Purchase Agreement and White Lion RRA does not purport to be complete and in each case
is subject to, and qualified in its entirety by, the full text of the Common Stock Purchase Agreement, and the White Lion RRA, a copy
of each of which is filed as Exhibit 10.1 and 10.2, respectively, to this Current Report on Form 8-K and in each case which is incorporated
herein by reference.
Item 3.01. Notice of Delisting or Failure
to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
On
May 6, 2024, the Company received a notice from the Listing Qualifications Department of The Nasdaq Stock Market LLC (“Nasdaq”),
notifying the Company that, because the closing bid price for the Common Stock has fallen below $1.00 per share for 33 consecutive business
days, the Company no longer complies with the minimum bid price requirement for continued listing on the Nasdaq Global Market under Rule
5450(a)(1) of Nasdaq Listing Rules.
Nasdaq’s
notice has no immediate effect on the listing of the Company’s Common Stock on the Nasdaq Global Market. Pursuant to
Nasdaq Marketplace Rule 5810(c)(3)(A), the Company has been provided an initial compliance period of 180 calendar days, or until November
4, 2024, to regain compliance with the minimum bid price requirement. To regain compliance, the closing bid price of the Company’s
Common Stock must meet or exceed $1.00 per share for a minimum of 10 consecutive business days prior to November 4, 2024.
If
the Company does not regain compliance by November 4, 2024, the Company may be eligible for an additional grace period. To
qualify, the Company would be required to transfer the listing of its securities from the Nasdaq Global Market to the Nasdaq Capital Market
and to meet the continued listing requirements for market value of publicly held shares and all other initial listing standards for the
Nasdaq Capital Market, with the exception of the minimum bid price requirement, and provide written notice of its intention to cure the
minimum bid price deficiency during the second compliance period. If the Company meets these requirements, the Nasdaq staff
will grant an additional 180 calendar days for the Company to regain compliance with the minimum bid price requirement. If the Nasdaq
staff determines that the Company will not be able to cure the deficiency, or if the Company is otherwise not eligible for such additional
compliance period, Nasdaq will provide notice that the Company’s Common Stock will be subject to delisting. The Company
would have the right to appeal a determination to delist its Common Stock, and the Common Stock would remain listed on the Nasdaq Capital
Market until the completion of the appeal process.
Additionally,
on May 6, 2024, the Company received Notice from Nasdaq indicating that, because the market value of the Company’s Common Stock
has been below $50,000,000 for 31 consecutive business days, the Company no longer complies with the minimum market value of listed securities
(the “MVLS”) requirement for continued listing on the Nasdaq Global Market under Rule 5450(b)(2)(A) of Nasdaq Listing
Rules.
Nasdaq’s
Notice has no immediate effect on the listing of the Company’s Common Stock on the Nasdaq Global Market. Pursuant to
Nasdaq Marketplace Rule 5810(c)(3)(C), the Company has been provided an initial compliance period of 180 calendar days, or until November
4, 2024, to regain compliance with the MVLS requirement. To regain compliance, the Company’s MVLS must close at $50,000,000
or more for a minimum of ten consecutive business days prior to November 4, 2024. In the event the Company does not regain compliance
with the MVLS requirement prior to the expiration of the compliance period, it will receive written notification that its securities are
subject to delisting. The Company may be able to continue its listing by transferring the listing of its securities from the Nasdaq Global
Market to the Nasdaq Capital Market which has a lower MVLS requirement of $35,000,000.
Item 9.01 Financial Statements and Exhibits.
(c) Exhibits
Exhibit
Number |
|
Description |
10.1 |
|
Common Stock Purchase Agreement, between Zoomcar Holdings, Inc. and White Lion Capital, LLC, dated May 6, 2024 |
10.2 |
|
Registration Rights Agreement, between Zoomcar Holdings, Inc. and White Lion Capital, LLC, dated May 6, 2024 |
104 |
|
Cover Page Interactive Data File (formatted as inline XBRL) |
SIGNATURE
Pursuant to the requirements
of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned
hereunto duly authorized.
Dated: May 9, 2024 |
Zoomcar Holdings, Inc. |
|
|
|
|
By: |
/s/ Greg Moran |
|
Name: |
Greg Moran |
|
Title: |
Chief Executive Officer and Director |
3
Exhibit 10.1
COMMON STOCK PURCHASE AGREEMENT
This Common Stock Purchase
Agreement (this “Agreement”) is entered into effective as May 6, 2024 (the “Execution Date”),
by and between Zoomcar Holdings, Inc., a Delaware corporation (the “Company”), and White Lion Capital, LLC,
a Nevada limited liability company (the “Investor”).
WHEREAS, the parties
desire that, upon the terms and subject to the conditions and limitations set forth herein, during the Commitment Period (as defined herein),
the Company may issue and sell to the Investor, from time to time as provided herein, and the Investor shall purchase from the Company,
up to the lesser of (i) $25,000,000 in aggregate gross purchase price of newly issued shares of Common Stock (as defined herein) and (ii)
the Exchange Cap (as defined herein);
WHEREAS, such sales
of Common Stock by the Company to the Investor will be made in reliance upon the exemption provided by Section 4(a)(2) of the Securities
Act (“Section 4(a)(2)”) and/or Rule 506(b) of Regulation D promulgated by the Commission under the
Securities Act (“Regulation D”), and upon such other exemption from the registration requirements of the
Securities Act as may be available with respect to any or all of the issuances and sales of Common Stock by the Company to the Investor
to be made hereunder;
WHEREAS, the parties
hereto are concurrently entering into a Registration Rights Agreement of even date herewith (the “Registration Rights Agreement”),
pursuant to which the Company shall register the resale of the Registrable Securities (as defined in the Registration Rights Agreement),
upon the terms and subject to the conditions set forth therein; and
WHEREAS, in consideration
for the Investor’s execution and delivery of this Agreement, the Company shall issue to the Investor the Commitment Shares (as defined
herein), pursuant to and in accordance with Section 6.4 herein;
NOW, THEREFORE, the
parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1. DEFINED
TERMS. As used in this Agreement, the following terms shall have the following meanings specified or indicated (such meanings
to be equally applicable to both the singular and plural forms of the terms defined):
“Agreement”
shall have the meaning specified in the preamble hereof.
“Average Daily
Trading Volume” shall mean the median daily trading volume of the Company’s Common Stock over the most recent five
(5) Business Days immediately preceding the date of delivery of a Purchase Notice.
“Bankruptcy Law”
means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.
“Beneficial Ownership
Limitation” shall have the meaning specified in Section 7.2(g).
“Business Day”
shall mean a day on which the Principal Market shall be open for business.
“Claim Notice”
shall have the meaning specified in Section 9.3(a).
“Clearing Costs”
shall mean the Investor’s broker and Transfer Agent costs with respect to each deposit of Common Stock.
“Closing”
shall mean the closing of a purchase and sale of shares of Common Stock as described in Section 2.1.
“Commitment Amount”
shall mean Twenty-Five Million Dollars ($25,000,000).
“Commitment Shares”
shall have the meaning specified in Section 6.4.
“Commitment Shares
Determination Date” means the earlier of (i) the Business Day prior to the effectiveness of the Registration Statement or
(ii) the Business Day prior to the date that the Investor delivers a written request to the Company for the Commitment Shares.
“Commitment Period”
shall mean the period commencing on the Execution Date and ending on the earlier of (i) the date on which the Investor shall have purchased
an aggregate number of Purchase Notice Shares pursuant to this Agreement equal to the Commitment Amount or (ii) the second (2nd)
anniversary of the Execution Date.
“Common Stock”
shall mean the Company’s common stock, $0.0001 par value per share, and any shares of any other class of common stock whether now
or hereafter authorized, having the right to participate in the distribution of dividends (as and when declared) and assets (upon liquidation
of the Company).
“Common Stock
Equivalents” means any securities of the Company entitling the holder thereof to acquire at any time Common Stock, including,
without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable
or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Company”
shall have the meaning specified in the preamble to this Agreement.
“Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
“Current Report”
has the meaning set forth in Section 6.2.
“Damages”
shall mean any loss, claim, damage, liability, cost and expense (including, without limitation, reasonable attorneys’ fees and disbursements
and costs and expenses of expert witnesses and investigation).
“Designated Brokerage
Account” shall mean the brokerage account provided by the Investor for the delivery of the applicable Securities.
“Disclosure Schedules”
means the Disclosure Schedules of the Company delivered concurrently herewith.
“Document Preparation
Fee” shall be $50,000, payable by the Company to the Investor on the date of the first Purchase Notice, in which case such
payment shall be deducted from the Investment Amount.
“DTC”
shall mean The Depository Trust Company, or any successor performing substantially the same function for the Company.
“DTC/FAST Program”
shall mean the DTC’s Fast Automated Securities Transfer Program.
“DWAC”
shall mean Deposit Withdrawal at Custodian as defined by the DTC.
“DWAC Eligible”
shall mean that (a) the Common Stock is eligible at DTC for full services pursuant to DTC’s Operational Arrangements, including,
without limitation, transfer through DTC’s DWAC system, (b) the Company has been approved (without revocation) by the DTC’s
underwriting department, (c) the Transfer Agent is approved as an agent in the DTC/FAST Program, (d) the Securities are otherwise eligible
for delivery via DWAC, and (e) the Transfer Agent does not have a policy prohibiting or limiting delivery of the Securities, as applicable,
via DWAC.
“DWAC Shares”
means shares of Common Stock 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 DWAC account with DTC under
the DTC/FAST Program, or any similar program hereafter adopted by DTC performing substantially the same function.
“Exchange Act”
shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exchange Cap”
shall have the meaning set forth in Section 7.1(d).
“Execution Date”
shall have the meaning set forth in the first paragraph of this Agreement.
“Floor Price”
shall mean $0.10.
“Indemnified Party”
shall have the meaning specified in Section 9.1.
“Indemnifying
Party” shall have the meaning specified in Section 9.1.
“Indemnity Notice”
shall have the meaning specified in Section 9.3(b).
“Initial Purchase
Closing Date” shall have the meaning specified in Section 2.2(f).
“Initial Purchase
Notice” shall mean the closing of a purchase and sale of shares of Common Stock as described in Section 2.2.
“Initial Purchase
Notice Date” shall have the meaning specified in Section 2.2(e).
“Initial Purchase
Investment Amount” shall mean the applicable Purchase Notice Shares referenced in the Initial Purchase Notice multiplied
by the Initial Purchase Price.
“Initial Purchase
Price” shall be equal to ninety-seven percent (97%) multiplied by the lowest daily VWAP that occurs during the Initial Purchase
Valuation Period.
“Initial Purchase
Valuation Period” shall mean the five (5) consecutive Business Days commencing on the Initial Purchase Notice Date. For
avoidance of doubt, the Initial Purchase Notice Date shall be the first Business Day in the Valuation Period.
“Investment Amount”
shall mean the gross price of the Purchase Notice Shares, less Clearing Costs.
“Investment Limit”
shall mean $2,000,000, subject to increase at the sole discretion of the Investor.
“Investor”
shall have the meaning specified in the preamble to this Agreement.
“Lien”
means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Material Adverse
Effect” shall mean any effect on the business, operations, properties, condition (financial or otherwise), or prospects
of the Company that is material and adverse to the Company and/or any condition, circumstance, or situation that would prohibit or otherwise
materially interfere with the ability of the Company to enter into and perform its obligations under any Transaction Document.
“Minimum Price”
shall have the meaning specified in Section 7.1(d).
“Person”
shall mean an individual, a corporation, a partnership, an association, a trust or other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
“PEA Period”
shall mean the period commencing at 9:30 a.m., New York City time, on the fifth (5th) Business Day immediately prior to the filing of
any post-effective amendment to the Registration Statement or any new registration statement, or any annual and quarterly report, and
ending at 9:30 a.m., New York City time, on the Business Day immediately following (i) the effective date of such post-effective amendment
of the Registration Statement or such new registration statement, or (ii) the date of filing of such annual and quarterly report, as applicable.
“Principal Market”
shall mean any of the national exchanges (i.e. NYSE, AMEX, Nasdaq) or other principal exchange or recognized quotation system which is
at the time the principal trading platform or market for the Common Stock.
“Purchase Notice”
shall mean a written notice from Company, substantially in the form of Exhibit A attached hereto (a “Rapid Purchase
Notice Form”), Exhibit B attached hereto (a “VWAP Purchase Notice Form”), or Exhibit
C attached hereto (an “Initial Purchase Notice Form”) to the Investor setting forth the Purchase Notice
Shares which the Company requires the Investor to purchase pursuant to the terms of this Agreement.
“Purchase Notice
Limit” shall mean, for any Purchase Notice, (A) the Investor’s committed obligation under such Purchase Notice, shall
not exceed the Investment Limit, and (B) the maximum amount of Purchase Notice Shares the Company may require the Investor to purchase
in any Rapid Purchase Notice shall be the lesser of: (i) 10% of the Average Daily Trading Volume or (ii) the Investment Limit divided
by the highest closing price of the Common Stock over the most recent five (5) Business Days immediately preceding receipt of the subject
Purchase Notice; and the maximum amount of Purchase Notice Shares the Company may require the Investor to purchase in any VWAP Purchase
Notice shall be the lesser of: (i) 30% of the Average Daily Trading Volume or (ii) the Investment Limit divided by the highest closing
price of the Common Stock over the most recent five (5) Business Days immediately preceding receipt of the subject Purchase Notice; and
the maximum amount of Purchase Notice Shares the Company may require the Investor to purchase in the Initial Purchase Notice shall be
the lesser of: (i) 150% of the Average Daily Trading Volume or (ii) the Investment Limit divided by the highest closing price of the Common
Stock over the most recent five (5) Business Days immediately preceding receipt of the subject Purchase Notice. Notwithstanding the forgoing,
the Investor may waive the Purchase Notice Limit with respect to any submitted Purchase Notice, at any time at its sole discretion, following
receipt of a written request regarding the same from the Company.
“Purchase Notice
Shares” shall mean all shares of Common Stock that the Company shall be entitled to issue as set forth in all applicable
Purchase Notices in accordance with the terms and conditions of this Agreement.
“Rapid Closing
Date” shall have the meaning specified in Section 2.2(b).
“Rapid Purchase
Investment Amount” shall mean the applicable Purchase Notice Shares referenced in the Rapid Purchase Notice multiplied by
the applicable Rapid Purchase Price.
“Rapid Purchase
Notice” shall mean the closing of a purchase and sale of shares of Common Stock as described in Section 2.2.
“Rapid Purchase
Notice Date” shall have the meaning specified in Section 2.2(a).
“Rapid Purchase
Price” shall mean the lowest traded price of the Common Stock on the Rapid Purchase Notice Date.
“Registration
Rights Agreement” means the Registration Rights Agreement entered into by and among the Company and the Investor, in the
form attached hereto as Exhibit D.
“Registration
Statement” shall have the meaning specified in Section 6.3.
“Regulation D”
shall mean Regulation D promulgated under the Securities Act.
“Rule 144”
shall mean Rule 144 under the Securities Act or any similar provision then in force under the Securities Act.
“SEC”
shall mean the United States Securities and Exchange Commission.
“SEC Documents”
shall have the meaning specified in Section 4.5.
“Securities”
mean the Purchase Notice Shares issued to the Investor by the Company pursuant to this Agreement and the Commitment Shares.
“Securities Act”
shall mean the Securities Act of 1933, as amended.
“Subsidiary”
means any Person the Company wholly-owns or controls, or in which the Company, directly or indirectly, owns a majority of the voting stock
or similar voting interest, in each case that would be disclosable pursuant to Item 601(b)(21) of Regulation S-K promulgated under the
Securities Act.
“Termination”
shall mean any termination outlined in Section 10.5.
“Transaction Documents”
shall mean this Agreement, the Registration Rights Agreement and all schedules and exhibits hereto and thereto.
“Transfer Agent”
shall mean the current transfer agent of the Company, and any successor transfer agent of the Company.
“Valuation Period”
shall mean the Initial Purchase Valuation Period, VWAP Purchase Valuation Period, and the Rapid Purchase Notice Date, as applicable.
“VWAP”
means, for any security as of any date, the dollar volume-weighted average price for such security on the Principal Market (or, if the
Principal Market is not the principal trading market for such security, then on the principal securities exchange or securities market
on which such security is then traded), during the period beginning at 9:30 a.m., New York time, and ending at 4:00 p.m., New York time,
as reported by E*TRADE Securities LLC graph study function or Bloomberg through its “VAP” function (set to 09:30:01 start
time and 15:59:59 end time) or, if the foregoing does not apply, the dollar volume-weighted average price of such security in the over-the-counter
market on the electronic bulletin board for such security during the period beginning at 9:30 a.m., New York time, and ending at 4:00
p.m., New York time, as reported by Bloomberg, or, if no dollar volume-weighted average price is reported for such security by Bloomberg
for such hours, the average of the highest closing bid price and the lowest closing asking price of any of the market makers for such
security as reported in the “pink sheets” by OTC Markets Group Inc. (formerly Pink Sheets LLC). If the VWAP cannot be calculated
for such security on such date on any of the foregoing bases, the VWAP of such security on such date shall be the fair market value as
mutually determined by the Company and the Investor. If the Company and the Investor are unable to agree upon the fair market value of
such security, then such dispute shall be resolved in accordance with the procedures in Section 10.16. All such determinations
shall be appropriately adjusted for any share dividend, share split, share combination, recapitalization or other similar transaction
during such period.
“VWAP Closing
Date” shall have the meaning specified in Section 2.2(d).
“VWAP Purchase
Notice” shall mean the closing of a purchase and sale of shares of Common Stock as described in Section 2.2.
“VWAP Purchase
Notice Date” shall have the meaning specified in Section 2.2(c).
“VWAP Purchase
Investment Amount” shall mean the applicable Purchase Notice Shares referenced in the VWAP Purchase Notice multiplied by
the VWAP Purchase Price.
“VWAP Purchase
Price” shall be equal to ninety-seven percent (97%) multiplied by the lower of (a) the lowest daily VWAP that occurs during
the VWAP Purchase Valuation Period and (b) closing sale price of the Common Stock on the day prior to the VWAP Purchase Notice Date.
“VWAP Purchase
Valuation Period” shall mean the three (3) consecutive Business Days commencing on the VWAP Purchase Notice Date. For avoidance
of doubt, the VWAP Purchase Notice Date shall be the first Business Day in the Valuation Period.
ARTICLE II
PURCHASE AND SALE OF COMMON STOCK
Section 2.1 PURCHASE
NOTICES. Upon the terms and conditions set forth herein (including, without limitation, the provisions of Article VII),
the Company shall have the right, but not the obligation, to require the Investor, by its delivery to the Investor of a Purchase Notice,
from time to time, to purchase Purchase Notice Shares provided that the amount of Purchase Notice Shares shall not exceed the Purchase
Notice Limit or the Beneficial Ownership Limitation set forth in Section 7.2(g), and the most recent closing price of the Common
Stock is greater than or equal to the Floor Price (each such purchase, a “Closing”). The Company may not deliver
a subsequent Purchase Notice until five (5) Business Days following the Closing of an active Purchase Notice, except if waived in writing
by the Investor in its sole discretion. Furthermore, the Company shall not deliver any Purchase Notices to the Investor during the PEA
Period.
Section 2.2 MECHANICS.
(a) RAPID
PURCHASE NOTICE. At any time and from time to time during the Commitment Period, except as otherwise provided in this Agreement,
the Company may deliver a Rapid Purchase Notice to Investor, subject to satisfaction of the conditions set forth in Article VII
and otherwise provided herein. The Company shall deliver the Purchase Notice Shares as DWAC Shares to the Designated Brokerage Account
simultaneously with the delivery of the Rapid Purchase Notice. A Rapid Purchase Notice shall be deemed delivered on the Business Day (i)
a Rapid Purchase Notice Form is received by 2:00 p.m. New York time by email by the Investor and (ii) the DWAC of the applicable Purchase
Notice Shares has been initiated and completed as confirmed by the Investor’s Designated Brokerage Account by 2:00 p.m. New York
time (the “Rapid Purchase Notice Date”). If the applicable Rapid Purchase Notice Form is received after 2:00
p.m. New York time or the DWAC of the applicable Purchase Notice Shares has not been completed as confirmed by the Investor’s Designated
Brokerage Account by 2:00 p.m. New York time, then the next Business Day shall be the Rapid Purchase Notice Date, unless waived by Investor
in writing. Each party shall use its commercially reasonable efforts to perform or fulfill all conditions and obligations to be performed
or fulfilled by it under this Agreement so that the transactions contemplated hereby shall be consummated as soon as practicable. Each
party also agrees that it shall use its best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to consummate and make effective Section 2.2(a) of this Agreement
and the transactions contemplated herein.
(b) RAPID
PURCHASE CLOSING. The Closing of a Rapid Purchase Notice shall occur one (1) Business Day following the Rapid Purchase Notice
Date (the “Rapid Closing Date”), whereby the Investor shall deliver to the Company, by 5:00 p.m. New York time
on the Rapid Closing Date, the Rapid Purchase Investment Amount by wire transfer of immediately available funds to an account designated
by the Company.
(c) VWAP
PURCHASE NOTICE. At any time and from time to time during the Commitment Period, except as provided in this Agreement, the Company
may deliver a VWAP Purchase Notice to Investor, subject to satisfaction of the conditions set forth in Article VII and otherwise
provided herein. The Company shall deliver the Purchase Notice Shares as DWAC Shares to the Designated Brokerage Account alongside the
delivery of the VWAP Purchase Notice. A VWAP Purchase Notice shall be deemed delivered on the Business Day (i) that an applicable VWAP
Purchase Notice Form is received by 9:00 a.m. New York time by email by the Investor and (ii) the DWAC of the applicable Purchase Notice
Shares has been initiated and completed as confirmed by the Investor’s Designated Brokerage Account by 9:00 a.m. New York time (the
“VWAP Purchase Notice Date”). If the applicable VWAP Purchase Notice Form is received after 9:00 a.m. New York
time or the DWAC of the applicable Purchase Notice Shares has not been completed as confirmed by the Investor’s Designated Brokerage
Account by 9:00 a.m. New York time, then the next Business Day shall be the VWAP Purchase Notice Date, unless waived by Investor in writing.
Each party shall use its commercially reasonable efforts to perform or fulfill all conditions and obligations to be performed or fulfilled
by it under this Agreement so that the transactions contemplated hereby shall be consummated as soon as practicable. Each party also agrees
that it shall use its best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper
or advisable under applicable laws and regulations to consummate and make effective Section 2.2(c) of this Agreement and the transactions
contemplated herein.
(d) VWAP
PURCHASE CLOSING. The Closing of a VWAP Purchase Notice shall occur one (1) Business Day following the VWAP Purchase Valuation
Period (the “VWAP Closing Date”), whereby the Investor shall deliver to the Company, by 5:00 p.m. New York time
on the VWAP Closing Date, the VWAP Purchase Investment Amount by wire transfer of immediately available funds to an account designated
by the Company.
(e) INITIAL
PURCHASE NOTICE. At any time during the Commitment Period, except as provided in this Agreement, provided that the Company has
not delivered a Rapid Purchase Notice, VWAP Purchase Notice, or an Initial Purchase Notice to the Investor, the Company may deliver an
Initial Purchase Notice to Investor, subject to satisfaction of the conditions set forth in Article VII and otherwise provided
herein. The Company shall deliver the Purchase Notice Shares as DWAC Shares to the Designated Brokerage Account alongside the delivery
of the Initial Purchase Notice. An Initial Purchase Notice shall be deemed delivered on the Business Day (i) the Initial Purchase Notice
Form is received prior to 9:00 a.m. New York time by email by the Investor and (ii) the DWAC of the applicable Purchase Notice Shares
has been initiated and completed as confirmed by the Investor’s Designated Brokerage Account prior to 9:00 a.m. New York time (the
“Initial Purchase Notice Date”). If the Initial Purchase Notice Form is received after 9:00 a.m. New York time
or the DWAC of the applicable Purchase Notice Shares has not been completed as confirmed by the Investor’s Designated Brokerage
Account by 9:00 a.m. New York time, then the next Business Day shall be the Initial Purchase Notice Date, unless waived by Investor in
writing. Each party shall use its commercially reasonable efforts to perform or fulfill all conditions and obligations to be performed
or fulfilled by it under this Agreement so that the transactions contemplated hereby shall be consummated as soon as practicable. Each
party also agrees that it shall use its best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to consummate and make effective Section 2.2(c) of this Agreement
and the transactions contemplated herein.
(f) INITIAL
PURCHASE CLOSING. The Closing of the Initial Purchase Notice shall occur one (1) Business Day following the Initial Purchase Valuation
Period (the “Initial Purchase Closing Date”), whereby the Investor shall deliver to the Company, by 5:00 p.m.
New York time on the Initial Purchase Closing Date, the Initial Purchase Investment Amount by wire transfer of immediately available funds
to an account designated by the Company.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF INVESTOR
The Investor represents and
warrants to the Company that:
Section 3.1 INTENT.
The Investor is entering into this Agreement for its own account. The Investor reserves the right to dispose of the Securities at any
time in accordance with federal and state securities laws applicable to such disposition.
Section 3.2 ACCREDITED
INVESTOR. The Investor is an accredited investor as defined in Rule 501(a)(3) of Regulation D, and the Investor has such experience
in business and financial matters that it is capable of evaluating the merits and risks of an investment in the Securities. The Investor
acknowledges that an investment in the Securities is speculative and involves a high degree of risk.
Section 3.3 AUTHORITY.
The Investor has the requisite power and authority to enter into and perform its obligations under the Transaction Documents and to consummate
the transactions contemplated hereby and thereby. The execution and delivery of the Transaction Documents and the consummation by it of
the transactions contemplated hereby and thereby have been duly authorized by all necessary action and no further consent or authorization
of the Investor is required. The Transaction Documents to which it is a party has been duly executed by the Investor, and when delivered
by the Investor in accordance with the terms hereof, will constitute the valid and binding obligations of the Investor enforceable against
it in accordance with their terms, subject to applicable bankruptcy, insolvency, or similar laws relating to, or affecting generally the
enforcement of, creditors’ rights and remedies or by other equitable principles of general application.
Section 3.4 NOT AN
AFFILIATE. The Investor is not an officer, director, or “affiliate” (as that term is defined in Rule 405 of the Securities
Act) of the Company.
Section 3.5 ORGANIZATION
AND STANDING. The Investor is an entity duly incorporated or formed, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or formation with full right, corporate, partnership, limited liability company or similar power and
authority to enter into and to consummate the transactions contemplated by the Transaction Documents.
Section 3.6 ABSENCE
OF CONFLICTS. The execution and delivery of the Transaction Documents and the consummation of the transactions contemplated hereby
and thereby and compliance with the requirements hereof and thereof, will not (a) violate any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on the Investor, (b) violate any provision of any indenture, instrument or agreement to which the
Investor is a party or is subject, or by which the Investor or any of its assets is bound, or conflict with or constitute a material default
thereunder, (c) result in the creation or imposition of any lien pursuant to the terms of any such indenture, instrument or agreement,
or constitute a breach of any fiduciary duty owed by the Investor to any third party, or (d) require the approval of any third-party (that
has not been obtained) pursuant to any material contract, instrument, agreement, relationship or legal obligation to which the Investor
is subject or to which any of its assets, operations or management may be subject.
Section 3.7 DISCLOSURE;
ACCESS TO INFORMATION. The Investor had an opportunity to review copies of the SEC Documents filed on behalf of the Company and
has had access to all publicly available information with respect to the Company.
Section 3.8 MANNER
OF SALE. At no time was the Investor presented with or solicited by or through any leaflet, public promotional meeting, television
advertisement or any other form of general solicitation or advertising.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the SEC
Documents and the Disclosure Schedules, which SEC Documents and Disclosure Schedules shall be deemed a part hereof and shall qualify any
representation or otherwise made herein to the extent of the disclosure contained in the corresponding section of the Disclosure Schedules,
the Company represents and warrants to the Investor, as of the Execution Date, that:
Section 4.1 ORGANIZATION
OF THE COMPANY. The Company is an entity duly incorporated or otherwise organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation or organization, with the requisite power and authority to own and use its properties
and assets and to carry on its business as currently conducted. The Company is not in violation or default of any of the provisions of
its certificate of incorporation, bylaws or other organizational or charter documents. The Company is duly qualified to conduct business
and is in good standing as a foreign corporation in each jurisdiction in which the nature of the business conducted or property owned
by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, could not
have or reasonably be expected to result in a Material Adverse Effect and no proceeding has been instituted in any such jurisdiction revoking,
limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification. The Company has no Subsidiaries.
Section 4.2 AUTHORITY.
The Company has the requisite corporate power and authority to enter into and perform its obligations under the Transaction Documents.
The execution and delivery of the Transaction Documents by the Company and the consummation by it of the transactions contemplated hereby
and thereby have been duly authorized by all necessary corporate action and no further consent or authorization of the Company or its
Board of Directors or stockholders is required. The Transaction Documents have been duly executed and delivered by the Company and constitutes
a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, or similar laws relating to, or affecting generally the enforcement of, creditors’
rights and remedies or by other equitable principles of general application.
Section 4.3 CAPITALIZATION.
As of the Execution Date, the authorized Common Stock of the Company consists of 250,000,000 shares of Common Stock, of which 65,088,271
shares of Common Stock are issued and outstanding as of the Execution Date. Except as set forth in the SEC Documents, the Company has
not issued any capital stock since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise
of employee stock options under the Company’s stock option plans, the issuance of shares of Common Stock to employees pursuant to
the Company’s employee stock purchase plans and pursuant to the conversion and/or exercise of Common Stock Equivalents outstanding
as of the date of the periodic report filed under the Exchange Act. Except as set forth in the SEC Documents, no Person has any right
of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by the
Transaction Documents. Except as set forth in the SEC Documents, there are no outstanding options, warrants, scrip rights to subscribe
to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable
or exchangeable for, or giving any Person any right to subscribe for or acquire any shares of Common Stock, or contracts, commitments,
understandings or arrangements by which the Company is or may become bound to issue additional shares of Common Stock or Common Stock
Equivalents. Except as set forth in the SEC Documents, the issuance and sale of the Securities will not obligate the Company to issue
shares of Common Stock or other securities to any Person (other than the Investor) and will not result in a right of any holder of Company
securities to adjust the exercise, conversion, exchange or reset price under any of such securities. There are no stockholders agreements,
voting agreements or other similar agreements with respect to the Company’s capital stock to which the Company is a party or, to
the knowledge of the Company, between or among any of the Company’s stockholders.
Section 4.4 LISTING
AND MAINTENANCE REQUIREMENTS. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act. The Company has not,
in the twelve (12) months preceding the Execution Date, received notice from the Principal Market on which the Common Stock is or has
been listed or quoted to the effect that the Company is not in compliance with the listing or maintenance requirements of such Principal
Market. The Company is and has no reason to believe that it will not in the foreseeable future continue to be, in compliance with all
such listing and maintenance requirements.
Section 4.5 SEC DOCUMENTS;
DISCLOSURE. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company
under the Securities Act and the Exchange Act, including pursuant to Section 13(a) thereof, for the one (1) year preceding the Execution
Date (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including
the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the “SEC Documents”).
As of their respective dates, the SEC Documents complied in all material respects with the requirements of the Securities Act and the
Exchange Act, as applicable, and other federal laws, rules and regulations applicable to such SEC Documents, and none of the SEC Documents
when filed contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The financial statements
of the Company included in the SEC Documents comply as to form and substance in all material respects with applicable accounting requirements
and the published rules and regulations of the SEC or other applicable rules and regulations with respect thereto. Such financial statements
have been prepared in accordance with generally accepted accounting principles applied on a consistent basis during the periods involved
(except (a) as may be otherwise indicated in such financial statements or the notes thereto or (b) in the case of unaudited interim statements,
to the extent they may not include footnotes or may be condensed or summary statements) and fairly present in all material respects the
financial position of the Company as of the dates thereof and the results of operations and cash flows for the periods then ended (subject,
in the case of unaudited statements, to normal, immaterial, year-end audit adjustments). Except with respect to the material terms and
conditions of the transactions contemplated by the Transaction Documents, the Company confirms that neither it nor any other Person acting
on its behalf has provided the Investor or its agents or counsel with any information that it believes constitutes or might constitute
material, non-public information. The Company understands and confirms that the Investor will rely on the foregoing representation in
effecting transactions in securities of the Company.
Section 4.6 VALID
ISSUANCES. The Securities are duly authorized and, when issued and paid for in accordance with the applicable Transaction Documents,
will be duly and validly issued, fully paid, and non-assessable, free and clear of all Liens imposed by the Company other than restrictions
on transfer provided for in the Transaction Documents.
Section 4.7 NO CONFLICTS.
The execution, delivery and performance of the Transaction Documents by the Company and the consummation by the Company of the transactions
contemplated hereby and thereby, including, without limitation, the issuance of the Purchase Notice Shares, do not and will not: (a) result
in a violation of the Company’s certificate or articles of incorporation, by-laws or other organizational or charter documents,
(b) conflict with, or constitute a material default (or an event that with notice or lapse of time or both would become a material default)
under, result in the creation of any Lien upon any of the properties or assets of the Company, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture, instrument or any “lock-up” or similar provision
of any underwriting or similar agreement to which the Company is a party, or (c) result in a violation of any federal, state or local
law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations) applicable to the Company
or by which any property or asset of the Company is bound or affected (except for such conflicts, defaults, terminations, amendments,
accelerations, cancellations and violations as would not, individually or in the aggregate, have a Material Adverse Effect) nor is the
Company otherwise in violation of, conflict with or in default under any of the foregoing. The business of the Company is not being conducted
in violation of any law, ordinance or regulation of any governmental entity, except for possible violations that either singly or in the
aggregate do not and will not have a Material Adverse Effect. The Company is not required under federal, state or local law, rule or regulation
to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency in order for
it to execute, deliver or perform any of its obligations under the Transaction Documents (other than any SEC or state securities filings
that may be required to be made by the Company in connection with the issuance of Purchase Notice Shares or subsequent to any Closing
or any registration statement that may be filed pursuant hereto); provided that, for purposes of the representation made in this sentence,
the Company is assuming and relying upon the accuracy of the relevant representations and agreements of Investor herein.
Section 4.8 NO MATERIAL
ADVERSE EFFECT. No event has occurred that would have a Material Adverse Effect on the Company that has not been disclosed in
SEC Documents.
Section 4.9 LITIGATION
AND OTHER PROCEEDINGS. Other than as disclosed in the SEC Documents, there are no material actions, suits, investigations, inquiries
or similar proceedings (however any governmental agency may name them) pending or, to the knowledge of the Company, threatened against
or affecting the Company or its properties, nor has the Company received any written or oral notice of any such action, suit, proceeding,
inquiry or investigation, which would have a Material Adverse Effect. No judgment, order, writ, injunction or decree or award has been
issued by or, to the knowledge of the Company, requested of any court, arbitrator or governmental agency which would have a Material Adverse
Effect. There has not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation by the SEC involving
the Company or any current or former director or officer of the Company.
Section 4.10 REGISTRATION
RIGHTS. Other than as disclosed in the SEC Documents and other than those security holders included in the Registration Statement,
no Person (other than the Investor) has any right to cause the Company to effect the registration under the Securities Act of any securities
of the Company.
Section 4.11 ACKNOWLEDGMENT
REGARDING INVESTOR’S PURCHASE OF SECURITIES. The Company acknowledges and agrees that the Investor is acting solely in the
capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated hereby and thereby
and that the Investor is not (i) an officer or director of the Company, or (ii) an “affiliate” (as defined in Rule 144) of
the Company. 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 the Transaction Documents and the transactions contemplated hereby and thereby, and any advice given
by the Investor or any of its representatives or agents in connection with the Transaction Documents and the transactions contemplated
hereby and thereby is merely incidental to the Investor’s purchase of the Purchase Notice Shares. The Company further represents
to the Investor that the Company’s decision to enter into the Transaction Documents has been based solely on the independent evaluation
by the Company and its representatives.
Section 4.12 NO GENERAL
SOLICITATION; PLACEMENT AGENT. Neither the Company, nor any Person acting on its behalf, has engaged in any form of general solicitation
or general advertising (within the meaning of Regulation D under the Securities act) in connection with the offer or sale of the Securities.
Section 4.13 NO INTEGRATED
OFFERING. None of the Company, its affiliates, and any Person acting on their behalf has, directly or indirectly, made any offers
or sales of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the Securities
to be integrated with prior offerings for purposes of any applicable stockholder approval provisions, including, without limitation, under
the rules and regulations of any exchange or automated quotation system on which any of the securities of the Company are listed or designated,
but excluding stockholder consents required to authorize and issue the Securities or waive any anti-dilution provisions in connection
therewith.
Section 4.14 OTHER
COVERED PERSONS. The Company is not aware of any Person that has been or will be paid (directly or indirectly) remuneration for
solicitation of the Investor in connection with the sale of any Regulation D Securities.
ARTICLE V
COVENANTS OF INVESTOR
Section 5.1 SHORT
SALES AND CONFIDENTIALITY. Neither the Investor, nor any affiliate of the Investor acting on its behalf or pursuant to any understanding
with it, will execute any Short Sales during the period from the Execution Date to the end of the Commitment Period. For the purposes
hereof, and in accordance with Regulation SHO, the sale after delivery of the Purchase Notices of such number of shares of Common Stock
purchased under the applicable Purchase Notice shall not be deemed a Short Sale. The parties acknowledge and agree that during the applicable
Valuation Period, the Investor may contract for, or otherwise effect, the resale of the subject purchased Purchase Notice Shares to third-parties.
The Investor shall, until such time as the transactions contemplated by the Transaction Documents are publicly disclosed by the Company
in accordance with the terms of the Transaction Documents, maintain the confidentiality of the existence and terms of this transaction
and the information included in the Transaction Documents. “Short Sales” shall mean “short sales” as defined
in Rule 200 promulgated under Regulation SHO under the Exchange Act.
Section 5.2 COMPLIANCE
WITH LAW; TRADING IN SECURITIES. The Investor’s trading activities with respect to shares of Common Stock will be in compliance
with all applicable state and federal securities laws and regulations and the rules and regulations of FINRA and the Principal Market.
ARTICLE VI
COVENANTS OF THE COMPANY
Section 6.1 LISTING
OF COMMON STOCK. The Company shall use commercially reasonable efforts to maintain, so long as any shares of Common Stock shall
be so listed, the listing, if required, of all such Common Stock on the Principal Market from time to-time issuable hereunder. The Company
shall use its commercially reasonable best efforts to continue the listing or quotation and trading of the Common Stock on the Principal
Market (including, without limitation, maintaining sufficient net tangible assets, if required) and will comply in all respects with the
Company’s reporting, filing and other obligations under the bylaws or rules of the Principal Market.
Section 6.2 FILING
OF CURRENT REPORT. The Company agrees that it shall file a Current Report on Form 8-K, including the Transaction Documents as
exhibits thereto, with the SEC within the time required by the Exchange Act, relating to the execution of the transactions contemplated
by, and describing the material terms and conditions of, the Transaction Documents (the “Current Report”). The
Company shall permit the Investor to review and comment upon the final pre-filing draft version of the Current Report at least two (2)
Business Days prior to its filing with the SEC, and the Company shall give reasonable consideration to all such comments. The Investor
shall use its reasonable best efforts to comment upon the final pre-filing draft version of the Current Report within one (1) Business
Day from the date the Investor receives it from the Company.
Section 6.3 FILING
OF REGISTRATION STATEMENT. The Company shall file with the SEC, within five (5) calendar days after the Execution Date, a Registration
Statement on Form S-1 (the “Registration Statement”) in compliance with the terms of the Registration Rights
Agreement. The Registration Statement shall relate to the transactions contemplated by, and describing the material terms and conditions
of, this Agreement and disclosing all information relating to the transactions contemplated hereby required to be disclosed in the Registration
Statement and the prospectus supplement as of the date of the Registration Statement, including, without limitation, information required
to be disclosed in the section captioned “Plan of Distribution” in the Registration Statement. The Company shall permit the
Investor to review and comment upon the Registration Statement within a reasonable time prior to its filing with the SEC, the Company
shall give reasonable consideration to all such comments, and the Company shall not file the Current Report or the Registration Statement
with the SEC in a form to which the Investor reasonably objects. The Investor shall furnish to the Company such information regarding
itself, the Company’s securities beneficially owned by the Investor and the intended method of distribution thereof, including any
arrangement between the Investor and any other person or relating to the sale or distribution of the Company’s securities, as shall
be reasonably requested by the Company in connection with the preparation and filing of the Current Report and the Registration Statement,
and shall otherwise cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of
the Current Report and the Registration Statement with the SEC. The Company shall have no knowledge of any untrue statement (or alleged
untrue statement) of a material fact or omission (or alleged omission) of 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, in any pre-existing registration
statement filed or any new registration statement or prospectus which is a part of the foregoing. The Company shall promptly give the
Investor notice of any event (including the passage of time) which makes the final prospectus not to be in compliance with Section 5(b)
or 10 of the Securities Act and shall use its best efforts thereafter to file with the SEC any Post-Effective Amendment to the Registration
Statement, amended prospectus or prospectus supplement in order to comply with Section 5(b) or 10 of the Securities Act.
Section 6.4 COMMITMENT
SHARES. In consideration for the Investor’s execution and delivery of, and agreement to perform under this Agreement, the
Company shall cause the Transfer Agent to issue an amount shares of Common Stock equal to $312,500 divided by the closing price of the
common stock on the Commitment Shares Determination Date (the “Commitment Shares”) to the Investor as a commitment
fee. For the avoidance of doubt, all of the Commitment Shares shall be fully earned as of the Execution Date, and the issuance of the
Commitment Shares is not contingent upon any other event or condition, including, without limitation, the Company’s submission of
a Purchase Notice to the Investor, the filing of a Registration Statement, and irrespective of any termination of this Agreement. The
Company shall include on the Registration Statement filed with the SEC, all Commitment Shares, provided that, in addition to all other
remedies at law or in equity or otherwise under this Agreement, failure to do so will result in liquidated damages of $312,500.00, being
immediately due and payable to the Investor at its election in the form of cash payment.
Section 6.5 NON-PUBLIC
INFORMATION. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents,
which shall be disclosed pursuant to Section 6.2 and otherwise provided herein, the Company covenants and agrees that neither it, nor
any other Person acting on its behalf will provide the Investor or its agents or counsel with any information that constitutes, or the
Company reasonably believes constitutes, material non-public information, unless prior thereto the Investor shall have consented in writing
to the receipt of such information and agreed with the Company to keep such information confidential. The Company understands and confirms
that the Investor shall be relying on the foregoing covenant in effecting transactions in securities of the Company. To the extent that
the Company delivers any material, non-public information to the Investor without such prior written consent, the Company hereby covenants
and agrees that the Investor shall not have any duty of confidentiality to the Company, any of its Subsidiaries, or any of their respective
officers, directors, agents, employees or affiliates, not to trade on the basis of, such material, non-public information, provided that
the Investor shall remain subject to applicable law. The Company represents that as of the Execution Date, except with respect to the
material terms and conditions of the transaction contemplated by the Transaction Documents, neither it nor any other Person acting on
its behalf has previously provided the Investor or its agents or counsel with any information that constitutes, or the Company reasonably
believes constitutes, material non-public information. After the Execution Date, to the extent that any notice or communication made by
the Company, or information provided by the Company, to the Investor constitutes, or contains, material, non-public information regarding
the Company or any Subsidiaries, the Company shall simultaneously file such notice or other material information with the SEC pursuant
to a Current Report on Form 8-K. The Company understands and confirms that the Investor shall be relying on the foregoing covenant in
effecting transactions in securities of the Company. In addition to any other remedies provided by this Agreement or other Transaction
Documents, if the Company provides any material, non-public information to the Investor without its prior written consent, and it fails
to immediately (no later than that Business Day or by 9:00 am New York City time the next Business Day) file a Form 8-K disclosing this
material, non-public information, it shall pay the Investor as partial liquidated damages and not as a penalty a sum equal to $1,000 per
day beginning with the day the information is disclosed to the Investor and ending and including the day the Form 8-K disclosing this
information is filed.
Section 6.6 OTHER
EQUITY LINE TRANSACTIONS. From the Execution Date until the end of the Commitment Period, the Company shall be prohibited from
entering into any “equity line” or substantially similar transaction whereby an investor is irrevocably bound to purchase
securities over a period of time from the Company at a price based on the market price of the Common Stock at the time of such purchase; provided, however,
that this Section 6.6 shall not be deemed to prohibit the issuance of shares of Common Stock pursuant to (i) an “at-the-market
offering” by the Company through a registered broker-dealer acting as agent of the Company pursuant to a written agreement between
the Company and such registered broker-dealer or (ii) the conversion or exercise of derivative securities where the conversion or exercise
price varies based on the market price of the Common Stock. 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.
ARTICLE VII
CONDITIONS TO DELIVERY OF
PURCHASE NOTICE AND CONDITIONS TO CLOSING
Section 7.1 CONDITIONS
PRECEDENT TO THE RIGHT OF THE COMPANY TO ISSUE AND SELL PURCHASE NOTICE SHARES. The right of the Company to issue and sell the
Purchase Notice Shares to the Investor is subject to the satisfaction of each of the conditions set forth below:
(a) ACCURACY
OF INVESTOR’S REPRESENTATIONS AND WARRANTIES. The representations and warranties of the Investor shall be true and correct
as of the date of this Agreement and as of the date of each Closing as though made at each such time.
(b) PERFORMANCE
BY INVESTOR. Investor shall have performed, satisfied and complied in all respects with all covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied with by the Investor at or prior to such Closing.
(c) PERFORMANCE
BY INVESTOR. Investor shall have performed, satisfied and complied in all respects with all covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied with by the Investor at or prior to such Closing.
(d) PRINCIPAL
MARKET REGULATION. Notwithstanding anything in this Agreement to the contrary, and in addition to the limitations
set forth herein, the Company shall not issue more than 13,011,145 shares of Common Stock (the “Exchange Cap”) under
this Agreement, which equals 19.99% of the Company’s outstanding shares of Common Stock as of the Execution Date, unless stockholder
approval is obtained to issue in excess of the Exchange Cap; provided, however, that the foregoing limitation shall not apply
if at any time the Exchange Cap is reached and at all times thereafter the average price paid for all shares of Common Stock issued under
this Agreement is equal to or greater than $0.329 (the “Minimum Price”), a price equal to the lower of (i) the Nasdaq
Official Closing Price immediately preceding the execution of this Agreement or (ii) the arithmetic average of the five (5) Nasdaq Official
Closing Prices for the Common Stock immediately preceding the execution of this Agreement, as calculated in accordance with the rules
of the Principal Market (in such circumstance, for purposes of the Principal Market, the transaction contemplated hereby would not be
“below market” and the Exchange Cap would not apply). Notwithstanding the foregoing, the Company shall not be required or permitted
to issue, and the Investor shall not be required to purchase, any shares of Common Stock under this Agreement if such issuance would violate
the rules or regulations of the Principal Market. The Company may, in its sole discretion, determine whether to obtain stockholder approval
to issue more than 19.99% of its outstanding shares of Common Stock hereunder if such issuance would require stockholder approval under
the rules or regulations of the Principal Market. The Exchange Cap shall be reduced, on a share-for-share basis, by the number of shares
of Common Stock issued or issuable that may be aggregated with the transactions contemplated by this Agreement under applicable rules
of the Principal Market.
Section 7.2 CONDITIONS
PRECEDENT TO THE OBLIGATION OF INVESTOR TO PURCHASE THE PURCHASE NOTICE SHARES. The obligation of the Investor hereunder to purchase
the Purchase Notice Shares is subject to the satisfaction of each of the following conditions:
(a) EFFECTIVE
REGISTRATION STATEMENT. The Registration Statement, and any amendment or supplement thereto, shall have been timely filed in compliance
with the Registration Rights Agreement, shall have become effective, and shall remain effective for the offering of the Securities and
(i) the Company shall not have received notice that the SEC has issued or intends to issue a stop order with respect to such Registration
Statement or that the SEC otherwise has suspended or withdrawn the effectiveness of such Registration Statement, either temporarily or
permanently, or intends or has threatened to do so and (ii) no other suspension of the use of, or withdrawal of the effectiveness of,
such Registration Statement or related prospectus shall exist. The Investor shall not have received any notice from the Company that the
prospectus and/or any prospectus supplement fails to meet the requirements of Section 5(b) or Section 10 of the Securities Act.
(b) ACCURACY
OF THE COMPANY’S REPRESENTATIONS AND WARRANTIES. The representations and warranties of the Company shall be true and correct
as of the date of this Agreement and as of the date of each Closing (except for representations and warranties specifically made as of
a particular date).
(c) 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.
(d) NO
INJUNCTION. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated
or adopted by any court or governmental authority of competent jurisdiction that prohibits or directly and materially adversely affects
any of the transactions contemplated by the Transaction Documents, and no proceeding shall have been commenced that may have the effect
of prohibiting or materially adversely affecting any of the transactions contemplated by the Transaction Documents.
(e) ADVERSE
CHANGES. Since the date of filing of the Company’s most recent annual or quarterly report, no event that had or is reasonably
likely to have a Material Adverse Effect has occurred.
(f) NO
SUSPENSION OF TRADING IN OR DELISTING OF COMMON STOCK. The trading of the Common Stock shall not have been suspended by the SEC
or the Principal Market, or otherwise halted for any reason, and the Common Stock shall have been approved for listing or quotation on
and shall not have been delisted from or no longer quoted on the Principal Market. In the event of a suspension, delisting, or halting
for any reason, of the trading of the Common Stock during an active Purchase Notice, as contemplated by this Section 7.2(f), the Investor
shall purchase the applicable Purchase Notice Shares in the respective Purchase Notice at a value equal to the par value of the Company’s
Common Stock.
(g) BENEFICIAL
OWNERSHIP LIMITATION. The number of Purchase Notice Shares then to be purchased by the Investor shall not exceed the number of
such shares that, when aggregated with all other shares of Common Stock then owned by the Investor beneficially or deemed beneficially
owned by the Investor, would result in the Investor owning more than the Beneficial Ownership Limitation (as defined below), as determined
in accordance with Section 13 of the Exchange Act. For purposes of this Section 7.2(g), in the event that the number of shares of Common
Stock outstanding is greater or lesser on a date of a Closing (a “Closing Date”) than on the date upon which
the Purchase Notice associated with such Closing Date is given, the amount of Common Stock outstanding on such issuance of a Purchase
Notice shall govern for purposes of determining whether the Investor, when aggregating all purchases of Common Stock made pursuant to
this Agreement, would own more than the Beneficial Ownership Limitation following a purchase on any such Closing Date. In the event the
Investor claims that compliance with a Purchase Notice would result in the Investor owning more than the Beneficial Ownership Limitation,
upon request of the Company the Investor will provide the Company with evidence of the Investor’s then existing shares beneficially
or deemed beneficially owned. The “Beneficial Ownership Limitation” shall be 4.99% of the number of shares of
the Common Stock outstanding immediately prior to the issuance of shares of Common Stock issuable pursuant to a Purchase Notice, provided
that, the Investor may increase the Beneficial Ownership Limitation up to 9.99% at its sole discretion upon sixty-one (61) days prior
written notice to the Company. To the extent that the Beneficial Ownership Limitation is exceeded, the number of shares of Common Stock
issuable to the Investor shall be reduced void ab initio so it does not exceed the Beneficial Ownership Limitation.
(h) STOCK
PROMOTION. The Company shall be free from any “stock promotion” flag.
(i) NO
KNOWLEDGE. The Company shall have no knowledge of any event more likely than not to have the effect of causing the effectiveness
of the Registration Statement to be suspended or any prospectus or prospectus supplement failing to meet the requirement of Sections 5(b)
or 10 of the Securities Act (which event is more likely than not to occur within the fifteen (15) Business Days following the Business
Day on which such Purchase Notice is deemed delivered).
(j) NO
VIOLATION OF SHAREHOLDER APPROVAL REQUIREMENT. The issuance of the Purchase Notice Shares shall not violate the shareholder approval
requirements of the Principal Market.
(k) DWAC
ELIGIBLE. The Common Stock must be DWAC Eligible and not subject to a “DTC chill”.
(l) SEC
DOCUMENTS. All reports, schedules, registrations, forms, statements, information and other documents required to have been filed
by the Company with the SEC pursuant to the reporting requirements of the Exchange Act shall have been filed with the SEC.
(m) EXCHANGE
CAP. The Exchange Cap has not been reached (to the extent the Exchange Cap is applicable pursuant to Section 7.1(d) hereof).
ARTICLE VIII
LEGENDS
Section 8.1 NO RESTRICTIVE
STOCK LEGEND. No restrictive stock legend shall be placed on the share certificates representing the Purchase Notice Shares.
Section 8.2 INVESTOR’S
COMPLIANCE. Nothing in this Article VIII shall affect in any way the Investor’s obligations hereunder to comply with
all applicable securities laws upon the sale of the Common Stock.
ARTICLE IX
INDEMNIFICATION
Section 9.1 INDEMNIFICATION.
Each party (an “Indemnifying Party”) agrees to indemnify and hold harmless the other party along with its officers,
directors, employees, and authorized agents, and each Person or entity, if any, who controls such party within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act (an “Indemnified Party”) from and against any Damages,
and any action in respect thereof to which the Indemnified Party becomes subject to, resulting from, arising out of this Agreement or
relating to (i) any misrepresentation, breach of warranty or nonfulfillment of or failure to perform any covenant or agreement on the
part of the Indemnifying Party contained in this Agreement (or an allegation of the foregoing), (ii) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any post-effective amendment thereof or prospectus or prospectus
supplement, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements
therein not misleading, (iii) any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus
or contained in the final prospectus (as amended or supplemented, if the Company files any amendment thereof or supplement thereto with
the SEC) or the omission or alleged omission to state therein any material fact necessary to make the statements made therein, in the
light of the circumstances under which the statements therein were made, not misleading, or (iv) any violation or alleged violation by
the Company of the Securities Act, the Exchange Act, any state securities law or any rule or regulation under the Securities Act, the
Exchange Act or any state securities law, as such Damages are incurred, except to the extent such Damages result primarily from the Indemnified
Party’s failure to perform any covenant or agreement contained in this Agreement or the Indemnified Party’s, recklessness
or willful misconduct in performing its obligations under this Agreement; provided, however, that the foregoing indemnity agreement
shall not apply to any Damages of an Indemnified Party to the extent, but only to the extent, arising out of or based upon any untrue
statement or alleged untrue statement or omission or alleged omission made by an Indemnifying Party in reliance upon and in conformity
with written information furnished to the Indemnifying Party by the Indemnified Party expressly for use in the Registration Statement,
any post-effective amendment thereof, prospectus, prospectus supplement thereto, or any preliminary prospectus or final prospectus (as
amended or supplemented).
Section 9.2 INDEMNIFICATION
PROCEDURE.
(a) A
party that seeks indemnification under must promptly give the other party notice of any legal action. But a delay in notice does not relieve
an Indemnifying Party of any liability to any Indemnified Party, except to the extent the Indemnifying Party shows that the delay prejudiced
the defense of the action.
(b) The
Indemnifying Party may participate in the defense at any time or it may assume the defense by giving notice to the Indemnified Parties.
After assuming the defense, the Indemnifying Party:
(i) must
select counsel (including local counsel if appropriate) that is reasonably satisfactory to the Indemnified Parties;
(ii) is
not liable to the other party for any later attorney’s fees or for any other later expenses that the Indemnified Parties incur,
except for reasonable investigation costs;
(iii) must
not compromise or settle the action without the Indemnified Parties consent (which may not be unreasonably withheld); and
(iv) is
not liable for any compromise or settlement made without its consent.
(c) If
the Indemnifying Party fails to assume the defense within 10 days after receiving notice of the action, the Indemnifying Party shall be
bound by any determination made in the action or by any compromise or settlement made by the Indemnified Parties, and also remains liable
to pay the Indemnified Parties’ legal fees and expenses.
Section 9.3 METHOD
OF ASSERTING INDEMNIFICATION CLAIMS. All claims for indemnification by any Indemnified Party under Section 9.2 shall be asserted
and resolved as follows:
(a) In
the event any claim or demand in respect of which an Indemnified Party might seek indemnity under Section 9.2 is asserted against
or sought to be collected from such Indemnified Party by a Person other than a party hereto or an affiliate thereof (a “Third
Party Claim”), the Indemnified Party shall deliver a written notification, enclosing a copy of all papers served, if any,
and specifying the nature of and basis for such Third Party Claim and for the Indemnified Party’s claim for indemnification that
is being asserted under any provision of Section 9.2 against an Indemnifying Party, together with the amount or, if not then reasonably
ascertainable, the estimated amount, determined in good faith, of such Third Party Claim (a “Claim Notice”)
with reasonable promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness
after the Indemnified Party receives notice of such Third Party Claim, the Indemnifying Party shall not be obligated to indemnify the
Indemnified Party with respect to such Third Party Claim to the extent that the Indemnifying Party’s ability to defend has been
prejudiced by such failure of the Indemnified Party. The Indemnifying Party shall notify the Indemnified Party as soon as practicable
within the period ending thirty (30) calendar days following receipt by the Indemnifying Party of either a Claim Notice or an Indemnity
Notice (as defined below) (the “Dispute Period”) whether the Indemnifying Party disputes its liability or the
amount of its liability to the Indemnified Party under Section 9.2 and whether the Indemnifying Party desires, at its sole cost and expense,
to defend the Indemnified Party against such Third Party Claim.
(i) If
the Indemnifying Party notifies the Indemnified Party within the Dispute Period that the Indemnifying Party desires to defend the Indemnified
Party with respect to the Third Party Claim pursuant to this Section 9.3(a), then the Indemnifying Party shall have the right to
defend, with counsel reasonably satisfactory to the Indemnified Party, at the sole cost and expense of the Indemnifying Party, such Third
Party Claim by all appropriate proceedings, which proceedings shall be vigorously and diligently prosecuted by the Indemnifying Party
to a final conclusion or will be settled at the discretion of the Indemnifying Party (but only with the consent of the Indemnified Party
in the case of any settlement that provides for any relief other than the payment of monetary damages or that provides for the payment
of monetary damages as to which the Indemnified Party shall not be indemnified in full pursuant to Section 9.2). The Indemnifying Party
shall have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however,
that the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Party’s
delivery of the notice referred to in the first sentence of this clause (i), file any motion, answer or other pleadings or take any other
action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and provided, further,
that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide
reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying Party elects to contest. The
Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim controlled by the Indemnifying
Party pursuant to this clause (i), and except as provided in the preceding sentence, the Indemnified Party shall bear its own costs and
expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may take over the control of the defense
or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under Section 9.2 with respect to such
Third Party Claim.
(ii) If
the Indemnifying Party fails to notify the Indemnified Party within the Dispute Period that the Indemnifying Party desires to defend the
Third Party Claim pursuant to Section 9.3(a), or if the Indemnifying Party gives such notice but fails to prosecute vigorously and diligently
or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Dispute Period, then the
Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim by all
appropriate proceedings, which proceedings shall be prosecuted by the Indemnified Party in a reasonable manner and in good faith or will
be settled at the discretion of the Indemnified Party (with the consent of the Indemnifying Party, which consent will not be unreasonably
withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof;
provided, however, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying
Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which the Indemnified
Party is contesting. Notwithstanding the foregoing provisions of this clause (ii), if the Indemnifying Party has notified the Indemnified
Party within the Dispute Period that the Indemnifying Party disputes its liability or the amount of its liability hereunder to the Indemnified
Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided
in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party’s defense
pursuant to this clause (ii) or of the Indemnifying Party’s participation therein at the Indemnified Party’s request, and
the Indemnified Party shall reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying
Party in connection with such litigation. The Indemnifying Party may participate in, but not control, any defense or settlement controlled
by the Indemnified Party pursuant to this clause (ii), and the Indemnifying Party shall bear its own costs and expenses with respect to
such participation.
(iii) If
the Indemnifying Party notifies the Indemnified Party that it does not dispute its liability or the amount of its liability to the Indemnified
Party with respect to the Third Party Claim under Section 9.2 or fails to notify the Indemnified Party within the Dispute Period whether
the Indemnifying Party disputes its liability or the amount of its liability to the Indemnified Party with respect to such Third Party
Claim, the amount of Damages specified in the Claim Notice shall be conclusively deemed a liability of the Indemnifying Party under Section
9.2 and the Indemnifying Party shall pay the amount of such Damages to the Indemnified Party on demand. If the Indemnifying Party has
timely disputed its liability or the amount of its liability with respect to such claim, the Indemnifying Party and the Indemnified Party
shall proceed in good faith to negotiate a resolution of such dispute; provided, however, that if the dispute is not resolved
within thirty (30) days after the Claim Notice, the Indemnifying Party shall be entitled to institute such legal action as it deems appropriate.
(b) In
the event any Indemnified Party should have a claim under Section 9.2 against the Indemnifying Party that does not involve a Third
Party Claim, the Indemnified Party shall deliver a written notification of a claim for indemnity under Section 9.2 specifying the
nature of and basis for such claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined
in good faith, of such claim (an “Indemnity Notice”) with reasonable promptness to the Indemnifying Party. The
failure by any Indemnified Party to give the Indemnity Notice shall not impair such party’s rights hereunder except to the extent
that the Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the Indemnifying Party notifies the Indemnified
Party that it does not dispute the claim or the amount of the claim described in such Indemnity Notice or fails to notify the Indemnified
Party within the Dispute Period whether the Indemnifying Party disputes the claim or the amount of the claim described in such Indemnity
Notice, the amount of Damages specified in the Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under
Section 9.2 and the Indemnifying Party shall pay the amount of such Damages to the Indemnified Party on demand. If the Indemnifying Party
has timely disputed its liability or the amount of its liability with respect to such claim, the Indemnifying Party and the Indemnified
Party shall proceed in good faith to negotiate a resolution of such dispute; provided, however, that if the dispute is not resolved within
thirty (30) days after the Claim Notice, the Indemnifying Party shall be entitled to institute such legal action as it deems appropriate.
(c) The
Indemnifying Party agrees to pay the Indemnified Party, promptly as such expenses are incurred and are due and payable, for any reasonable
legal fees or other reasonable expenses incurred by them in connection with investigating or defending any such Third Party Claim.
(d) The
indemnity provisions contained herein shall be in addition to (i) any cause of action or similar rights of the Indemnified Party against
the Indemnifying Party or others, and (ii) any liabilities the Indemnifying Party may be subject to.
ARTICLE X
MISCELLANEOUS
Section 10.1 GOVERNING
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 conflicts of law. Each of the Company and the Investor hereby submits to the exclusive jurisdiction of the
United States federal and state courts located in New York, New York, with respect to any dispute arising under the Transaction Documents
or the transactions contemplated thereby.
Section 10.2 JURY
TRIAL WAIVER. The Company and the Investor hereby waive a trial by jury in any action, proceeding or counterclaim brought by either
of the parties hereto against the other in respect of any matter arising out of or in connection with the Transaction Documents.
Section 10.3 ASSIGNMENT.
The Transaction Documents shall be binding upon and inure to the benefit of the Company and the Investor and their respective successors.
Neither this Agreement nor any rights of the Investor or the Company hereunder may be assigned by either party to any other Person.
Section 10.4 NO THIRD-PARTY
BENEFICIARIES. This Agreement is intended for the benefit of the Company and the Investor and their respective successors, and
is not for the benefit of, nor may any provision hereof be enforced by, any other Person, except as contemplated by Article IX.
Section 10.5 TERMINATION.
Either party may terminate this Agreement at any time in the event of a material breach of the Agreement by the other party, which shall
be effected by written notice being sent by non-breaching party to the breaching party, provided however, that the Company shall have
effectively delivered the Commitment Shares to the Investor prior to any such termination. In addition, this Agreement shall automatically
terminate on the earlier of (i) the end of the Commitment Period or (ii) the date that, pursuant to or within the meaning of any Bankruptcy
Law, the Company commences a voluntary case or any Person commences a proceeding against the Company, a Custodian is appointed for the
Company or for all or substantially all of its property or the Company makes a general assignment for the benefit of its creditors; provided,
however, that the provisions of Articles III, IV, V, VI, IX and the agreements and covenants of the Company and the Investor set forth
in this Article X shall survive the termination of this Agreement. Notwithstanding the forgoing, it is hereby acknowledged and agreed
that the entire amount of the Commitment Shares shall be fully earned by the Investor and shall be non-refundable as of the Execution
Date, regardless of whether any Purchase Notices are issued or settled hereunder or any subsequent termination of this Agreement.
Section 10.6 ENTIRE
AGREEMENT. The Transaction Documents, together with the exhibits thereto, contain the entire understanding of the Company and
the Investor with respect to the matters covered herein and therein and supersede all prior agreements and understandings, oral or written,
with respect to such matters, which the parties acknowledge have been merged into such documents and exhibits.
Section 10.7 FEES
AND EXPENSES. Except as expressly set forth in the Transaction Documents or any other writing to the contrary, each party shall
pay the fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party
incident to the negotiation, preparation, execution, delivery and performance of this Agreement. The Company shall pay the Document Preparation
Fee, shall issue the Commitment Shares, shall pay the Clearing Costs associated with each Closing, and shall pay any Transfer Agent fees.
It being hereby acknowledged and agreed that the entire amount of the Commitment Shares shall be fully earned by the Investor and shall
be non-refundable as of the Execution Date, regardless of whether any Purchase Notices are issued or settled hereunder or any subsequent
termination of this Agreement.
Section 10.8 COUNTERPARTS.
The Transaction Documents may be executed in multiple counterparts, each of which may be executed by less than all of the parties and
shall be deemed to be an original instrument which shall be enforceable against the parties actually executing such counterparts and all
of which together shall constitute one and the same instrument. The Transaction Documents may be delivered to the other parties hereto
by email of a copy of the Transaction Documents bearing the signature of the parties so delivering this Agreement.
Section 10.9 SEVERABILITY.
In the event that any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable
or void, this Agreement shall continue in full force and effect without said provision; provided that such severability shall be ineffective
if it materially changes the economic benefit of this Agreement to any party.
Section 10.10 FURTHER
ASSURANCES. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute
and deliver all such other agreements, certificates, instruments and documents, as the other party may reasonably request in order to
carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
Section 10.11 NO
STRICT CONSTRUCTION. The language used in this Agreement will be deemed to be the language chosen by the parties to express their
mutual intent, and no rules of strict construction will be applied against any party.
Section 10.12 EQUITABLE
RELIEF. The Company recognizes that in the event that it fails to perform, observe, or discharge any or all of its obligations
under this Agreement, any remedy at law may prove to be inadequate relief to the Investor. The Company therefore agrees that the Investor
shall be entitled to temporary and permanent injunctive relief in any such case without the necessity of proving actual damages. In addition
to being entitled to exercise all rights provided herein or granted by law, both parties will be entitled to specific performance under
the Transaction Documents. The parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of
any breach of obligations contained in the Transaction Documents and hereby agree to waive and not to assert in any action for specific
performance of any such obligation the defense that a remedy at law would be adequate.
Section 10.13 TITLE
AND SUBTITLES. The titles and subtitles used in this Agreement are used for the convenience of reference and are not to be considered
in construing or interpreting this Agreement.
Section 10.14 AMENDMENTS;
WAIVERS. No provision of this Agreement may be amended or waived by the parties from and after the date that is one (1) Business
Day immediately preceding the initial filing of the prospectus to the Registration Statement with the SEC. Subject to the immediately
preceding sentence, (i) no provision of this Agreement may be amended other than by a written instrument signed by both parties hereto
and (ii) no provision of this Agreement may be waived other than in a written instrument signed by the party against whom enforcement
of such waiver is sought. No failure or delay in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other
right, power or privilege.
Section 10.15 PUBLICITY.
The Company and the Investor shall consult with each other in issuing any press releases or otherwise making public statements with respect
to the transactions contemplated hereby and no party shall issue any such press release or otherwise make any such public statement, other
than as required by law, without the prior written consent of the other parties, which consent shall not be unreasonably withheld or delayed,
except that no prior consent shall be required if such disclosure is required by law, in which such case the disclosing party shall provide
the other party with prior notice of such public statement. Notwithstanding the foregoing, the Company shall not publicly disclose the
name of the Investor without the prior written consent of the Investor, except to the extent required by law. The Investor acknowledges
that the Transaction Documents may be deemed to be “material contracts,” as that term is defined by Item 601(b)(10)
of Regulation S-K, and that the Company may therefore be required to file such documents as exhibits to reports or registration statements
filed under the Securities Act or the Exchange Act. The Investor further agrees that the status of such documents and materials as material
contracts shall be determined solely by the Company, in consultation with its counsel.
Section 10.16 DISPUTE
RESOLUTION.
(a) Governance
of All Disputes. The parties recognize that disagreements as to certain matters may from time to time arise out of these
Transaction Documents. The parties agree that any disagreements that arise from these Transaction Documents are to be governed in accordance
with this Section 10.16.
(b) SUBMISSION
TO DISPUTE RESOLUTION.
(i) In
the case of a dispute relating to the Average Daily Trading Volume, Purchase Notice Limit or VWAP (as the case may be) (including, without
limitation, a dispute relating to the determination of any of the foregoing), the Company or the Investor (as the case may be) shall submit
the dispute to the other party via facsimile or electronic mail (A) if by the Company, within two (2) Business Days after the occurrence
of the circumstances giving rise to such dispute or (B) if by the Investor at any time after the Investor learned of the circumstances
giving rise to such dispute. If the Investor and the Company are unable to promptly resolve such dispute relating to such Average Daily
Trading Volume, Purchase Notice Limit or VWAP (as the case may be), at any time after the second (2nd) Business Day following such initial
notice by the Company or the Investor (as the case may be) of such dispute to the Company or the Investor (as the case may be), then the
Company and the Investor may select an independent, reputable investment bank as mutually agreed upon to resolve such dispute.
(ii) The
Investor and the Company shall each deliver to such investment bank (A) a copy of the initial dispute submission so delivered in accordance
with the first sentence of this Section 10.16(b) and (B) written documentation supporting its position with respect to such dispute,
in each case, no later than 5:00 p.m. (New York time) by the fifth (5th) Business Day immediately following the date on which such investment
bank was selected (the “Dispute Submission Deadline”) (the documents referred to in the immediately preceding
clauses (A) and (B) are collectively referred to herein as the “Required Dispute Documentation”) (it being understood
and agreed that if either the Investor or the Company fails to so deliver all of the Required Dispute Documentation by the Dispute Submission
Deadline, then the party who fails to so submit all of the Required Dispute Documentation shall no longer be entitled to (and hereby waives
its right to) deliver or submit any written documentation or other support to such investment bank with respect to such dispute and such
investment bank shall resolve such dispute based solely on the Required Dispute Documentation that was delivered to such investment bank
prior to the Dispute Submission Deadline). Unless otherwise agreed to in writing by both the Company and the Investor or otherwise requested
by such investment bank, neither the Company nor the Investor shall be entitled to deliver or submit any written documentation or other
support to such investment bank in connection with such dispute (other than the Required Dispute Documentation).
(iii) The
Company and the Investor shall cause such investment bank to determine the resolution of such dispute and notify the Company and the Investor
of such resolution no later than ten (10) Business Days immediately following the Dispute Submission Deadline. The fees and expenses of
such investment bank shall be borne solely by the party submitting such dispute, and such investment bank’s resolution of such dispute
shall be final and binding upon all parties absent manifest error.
(c) Good
Faith Attempt To Resolve Other Disputes. If either the Company or the Investor believes that a dispute not covered
by Section 10.16(b) has arisen under these Transaction Documents, that party, prior to commening arbitration, must provided the
other side with written notice detailing the nature of the alleged dispute. Upon receipt of such written notice, the parties are required
to engage in good faith negotiations in an attempt to resolve the dispute for a period of not less than fourteen (14) days, such time
as may be extended by mutual agreement of the parties. If the Company and the Investor are unable to resolve such dispute within that
fourteen (14) day period (or any period of extension as agreed by the parties), then either party may pursue resolution of the dispute
pursuant to Section 10.16(d).
(d) ARBITRATION.
Any dispute, controversy, difference or claim that may arise between the Company and the Investor in connection with these Transaction
Documents (including, without limitation, any claim that, for whatever reason, was not resolved by the procedures of Section 10.16(b);
and all claims arising out of or relating to the validity, construction, interpretation, enforceability, breach, performance, application
or termination of these Transaction Documents), shall be submitted to binding arbitration governed by the rules of the American Arbitration
Association. The seat of the arbitration shall be in the State and County of New York. There shall be only one arbitrator selected in
accordance with the rules of the American Arbtiration Association. The arbitration shall be conducted in English and may be conducted
in a virtual setting. The arbitrator’s decision shall be final and binding and judgment
may be entered thereon.
(e) COSTS
AND AWARD. Each side must bear its own costs and legal fees during the pendency of the
arbitration. A party’s failure to pay any costs or fees required to proceed in the arbitration, as they timely come due, shall result
in an immediate default against that party. The prevailing party in the arbitration shall be entitled to recoup all its reasonable attorneys’
fees and costs from the nonprevailing, including, without limitation, all of its costs relating to the arbitration, excluding only the
costs incurred in connection with the procedures of Section 10.16(b). The arbitrator’s final award shall include this assessment
of costs and fees. That award also shall include interest from the date of any damages incurred for breach of these Transaction Documents,
and from the date of the award until paid in full assessed at the prevailing statutory rate. The nonprevailing party must promptly pay
that award in Dollars, free of any tax, deduction or offset. Further, in the event a party fails to proceed with arbitration, unsuccessfully
challenges the arbitrator’s award, or fails to comply with the arbitrator’s award, the other party is entitled to all costs
of suit including all reasonable attorneys’ fees and costs incurred in respect to any of these further actions. With respect
to damages, the only damages recoverable under these Transaction Documents are compensory; both the Company and the Investor expressly
disclaim the right to seek punitive or other exemplary damages.
(f) INJUNCTIVE
RELIEF. Provided a party has made a sufficient showing under applicable law, the arbitrator shall have the freedom to invoke,
and the parties agree to abide by, injunctive measures that either party submits in writing for arbitration claims requiring immediate
relief. Additionally, nothing in this Section 10.16 shall preclude either party from seeking equitable relief or interim or provisional
relief from a court of competent jurisdiction, including a temporary restraining order, preliminary injunction or other inteum equitable
relief, concerning a dispute either prior to or during arbitration if necessary to protect the interests of such party or to preserve
the status quo pending the arbtiraiton proceeding.
(g) Confidentiality.
The arbitration proceeding and subsequent award shall be confidential. The arbitrator shall issue appropriate protective orders to safeguard
each party’s confidential information. Execpt as required by law (or if necessary to enforce the award), including without limitation
securities regulations, neither party is to make any public announcement with respect to the proceedings or decision of the arbitrator
without the prior written consent of the other party. The existence of any dispute submitted to arbitration, and the award, shall be kept
in confidence by the parties and the arbitrator, except as required in connection with the enforcement of such an award or as otherwise
required by law.
Section 10.17 NOTICES.
All notices, demands, requests, consents, approvals, and other communications required or permitted hereunder shall be in writing and,
unless otherwise specified herein, shall be (a) personally served, (b) delivered by reputable air courier service with charges prepaid
next Business Day delivery, or (c) transmitted by hand delivery, or email as a PDF, addressed as set forth below or to such other address
as such party shall have specified most recently by written notice given in accordance herewith. Any notice or other communication required
or permitted to be given hereunder shall be deemed effective upon hand delivery or delivery by email at the address designated below (if
delivered on a business day during normal business hours where such notice is to be received), or the first business day following such
delivery (if delivered other than on a business day during normal business hours where such notice is to be received).
The addresses for such communications
shall be:
If to the Company:
Zoomcar Holdings, Inc.
Anjaneya Techno Park, No.147, 1st Floor
Kodihalli, Bangalore, India 560008
with a copy (not constituting notice)
to:
Ellenoff Grossman & Schole LLP
1345 Avenue of the Americas, 11th Floor
New York, New York 10105
Attn: Matthew Bernstein, Esq.
E-mail: mbernstein@egsllp.com
If to the Investor:
WHITE LION CAPITAL LLC
Attention: Sam Yaffa, Managing Director
E-mail: team@whitelioncapital.com
With a copy (not constituting notice)
to:
Greenberg Traurig, P.A.
333 S.E. 2nd Avenue
Miami, FL 33131
Attn: John D. Owens, III, Esq.
E-mail: owensjohn@gtlaw.com
Either party hereto may from time to time change
its address or email for notices under this Section 10.17 by giving prior written notice of such changed address to the other party
hereto.
** Signature
Page Follows **
IN WITNESS WHEREOF,
the parties have caused this Agreement to be duly executed by their respective officers thereunto duly authorized as of the Execution
Date.
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Zoomcar Holdings, Inc. |
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By: |
/s/ Greg Moran |
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Name: |
Greg Moran |
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Title: |
Chief Executive Officer |
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White Lion Capital LLC |
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By: |
/s/ Sam Yaffa |
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Name: |
Sam Yaffa |
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Title: |
Managing Director |
DISCLOSURE SCHEDULES TO
COMMON STOCK PURCHASE AGREEMENT
EXHIBIT A
FORM OF RAPID PURCHASE NOTICE
TO: WHITE LION CAPITAL LLC
We refer to the Common Stock Purchase
Agreement, dated as of May 6, 2024, (the “Agreement”), entered into by and between Zoomcar Holdings,
Inc., and White Lion Capital LLC. Capitalized terms defined in the Agreement shall, unless
otherwise defined herein, have the same meaning when used herein.
We hereby:
1) Give you notice that we require you to purchase
__________ Purchase Notice Shares at the Rapid Purchase Price; and
2) Certify that, as of the date hereof, the conditions
set forth in Section 7 of the Agreement are satisfied.
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Zoomcar Holdings, Inc. |
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By: |
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Name: |
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Title: |
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EXHIBIT B
FORM OF VWAP PURCHASE NOTICE
TO: WHITE LION CAPITAL LLC
We refer to the Common Stock Purchase
Agreement, dated as of May 6, 2024, (the “Agreement”), entered into by and between Zoomcar Holdings,
Inc., and White Lion Capital LLC. Capitalized terms defined in the Agreement shall, unless
otherwise defined herein, have the same meaning when used herein.
We hereby:
1) Give you notice that we require you to purchase
__________ Purchase Notice Shares at the VWAP Purchase Price; and
2) Certify that, as of the date hereof, the conditions
set forth in Section 7 of the Agreement are satisfied.
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Zoomcar Holdings, Inc. |
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By: |
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Name: |
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Title: |
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EXHIBIT C
FORM OF INITIAL PURCHASE NOTICE
TO: WHITE LION CAPITAL LLC
We refer to the Common Stock Purchase
Agreement, dated as of May 6, 2024, (the “Agreement”), entered into by and between Zoomcar Holdings,
Inc., and White Lion Capital LLC. Capitalized terms defined in the Agreement shall, unless
otherwise defined herein, have the same meaning when used herein.
We hereby:
1) Give you notice that we require you to purchase
__________ Purchase Notice Shares at the Initial Purchase Price; and
2) Certify that, as of the date hereof, the conditions
set forth in Section 7 of the Agreement are satisfied.
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Zoomcar Holdings, Inc. |
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By: |
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Name: |
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Title: |
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EXHIBIT D
REGISTRATION RIGHTS AGREEMENT
35
Exhibit
10.2
REGISTRATION
RIGHTS AGREEMENT
This
Registration Rights Agreement (this “Agreement”) is entered into effective as May 6, 2024 (the “Execution
Date”), by and between Zoomcar Holdings, Inc., a Delaware corporation (the “Company”), and White
Lion Capital, LLC, a Nevada limited liability company (the “Investor”).
RECITALS
A.
WHEREAS, the Company may issue and sell to the Investor, from time to time, and the Investor shall purchase from the Company, up to the
lesser of (i) $25,000,000 in aggregate gross purchase price of newly issued shares of Common Stock and (ii) the Exchange Cap (as defined
in that certain Common Stock Purchase Agreement, dated as of May 6, 2024, by and between the Company and the Investor (the “Purchase
Agreement”), to the extent applicable under Section 7.1(d) of the Purchase Agreement; and
B.
WHEREAS, pursuant to the terms of, and in consideration for the Investor entering into, the Purchase Agreement, and to induce the Investor
to execute and deliver the Purchase Agreement, the Company has agreed to provide the Investor with certain registration rights with respect
to the Registrable Securities (as defined herein) as set forth herein.
AGREEMENT
NOW,
THEREFORE, in consideration of the representations, warranties, covenants and agreements contained herein and in the Purchase
Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, intending to be
legally bound hereby, the Company and the Investor hereby agree as follows:
Capitalized
terms used herein and not otherwise defined herein shall have the respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following terms shall have the following meanings:
(a)
“Agreement” shall have the meaning assigned to such term in the preamble of this Agreement
(b)
“Allowable Grace Period” shall have the meaning assigned to such term in Section 3(o).
(c)
“Blue Sky Filing” shall have the meaning assigned to such term in Section 6(a).
(d)
“Business Day” means any day other than Saturday, Sunday or any other day on which commercial banks in New
York, New York are authorized or required by law to remain closed.
(e)
“Claims” shall have the meaning assigned to such term in Section 6(a).
(f)
“Commission” means the U.S. Securities and Exchange Commission or any successor entity.
(g)
“Common Stock” shall have the meaning assigned to such term in the Purchase Agreement.
(h)
“Company” shall have the meaning assigned to such term in the preamble of this Agreement.
(i)
“Effective Date” means the date that the applicable Registration Statement has been declared effective by the
Commission.
(j)
“Indemnified Damages” shall have the meaning assigned to such term in Section 6(a).
(k)
“Initial Registration Statement” shall have the meaning assigned to such term in Section 2(a).
(l)
“Investor” shall have the meaning assigned to such term in the preamble of this Agreement.
(m)
“Investor Party” and “Investor Parties” shall have the meaning assigned to such terms
in Section 6(a).
(n)
“Legal Counsel” shall have the meaning assigned to such term in Section 2(b).
(o)
“New Registration Statement” shall have the meaning assigned to such term in Section 2(c).
(p)
“Person” means any person or entity, whether a natural person, trustee, corporation, partnership, limited partnership,
limited liability company, trust, unincorporated organization, business association, firm, joint venture, governmental agency or authority.
(q)
“Prospectus” means the prospectus in the form included in the Registration Statement at the applicable Effective
Date of the Registration Statement, as supplemented from time to time by any Prospectus Supplement, including the documents incorporated
by reference therein.
(r)
“Prospectus Supplement” means any prospectus supplement to the Prospectus filed with the Commission from time
to time pursuant to Rule 424(b) under the Securities Act, including the documents incorporated by reference therein.
(s)
“Purchase Agreement” shall have the meaning assigned to such term in the recitals to this Agreement.
(t)
“register,” “registered,” and “registration” refer to a
registration effected by preparing and filing one or more Registration Statements in compliance with the Securities Act and pursuant
to Rule 415 and the declaration of effectiveness of such Registration Statement(s) by the Commission.
(u)
“Registrable Securities” means all of (i) the Purchase Notice Shares, (ii) the Commitment Shares, and
(iii) any capital stock of the Company issued or issuable with respect to such Purchase Notice Shares or Commitment Shares, including,
without limitation, (1) as a result of any stock split, stock dividend, recapitalization, exchange or similar event or otherwise
and (2) shares of capital stock of the Company into which the shares of Common Stock are converted or exchanged and shares of capital
stock of a successor entity into which the shares of Common Stock are converted or exchanged, in each case until such time as such securities
cease to be Registrable Securities pursuant to Section 2(f).
(v)”Registration
Period” shall have the meaning assigned to such term in Section 3(a).
(w)
“Registration Statement” means a registration statement or registration statements of the Company filed under
the Securities Act registering the resale by the Investor of Registrable Securities, including without limitation a New Registration
Statement, as such registration statement or registration statements may be amended and supplemented from time to time, including all
documents filed as part thereof or incorporated by reference therein.
(x)
“Rule 144” means Rule 144 promulgated by the Commission under the Securities Act, as such rule may be amended
from time to time, or any other similar or successor rule or regulation of the Commission that may at any time permit the Investor to
sell securities of the Company to the public without registration.
(y)
“Rule 415” means Rule 415 promulgated by the Commission under the Securities Act, as such rule may be amended
from time to time, or any other similar or successor rule or regulation of the Commission providing for offering securities on a delayed
or continuous basis.
(z)
“Staff” shall have the meaning assigned to such term in Section 2(c).
(aa)
“Violations” shall have the meaning assigned to such term in Section 6(a).
(a)
Mandatory Registration. The Company shall, no later than ten (10) days following the filing of the Company’s Annual
Report on Form 10-K for the fiscal year ended March 31, 2024, file with the Commission a Registration Statement on Form S-1 (or
any successor form) registering the resale by the Investor of the maximum number of Registrable Securities as shall be permitted to be
included thereon in accordance with applicable Commission rules, regulations and interpretations (determined as of two Business Days
prior to such submission or filing) so as to permit the resale of such Registrable Securities by the Investor under Rule 415 under the
Securities Act at then prevailing market prices (and not fixed prices) (the “Initial Registration Statement”).
The Initial Registration Statement shall conform to the requirements of the Securities Act and the rules and regulations thereunder.
The Company shall use its commercially reasonable best efforts to have the Initial Registration Statement declared effective by the Commission
as soon as reasonably practicable following the filing thereof with the Commission; provided, however, that the Company’s
obligations to include the Registrable Securities in the Initial Registration Statement are contingent upon the Investor furnishing in
writing to the Company such information, and executing such documents, in connection with such registration as the Company may reasonably
request in accordance with Section 4(a).
(b)
Legal Counsel. Subject to Section 5 hereof, the Investor shall have the right to select one legal counsel to
review and oversee, solely on its behalf, any registration pursuant to this Section 2 (“Legal Counsel”),
which shall be Greenberg Traurig, P.A., or such other counsel as thereafter designated by the Investor. The Company shall have no obligation
to reimburse the Investor for any legal fees and expenses of the Legal Counsel incurred in connection with the transactions contemplated
hereby.
(c)
Sufficient Number of Shares Registered. If at any time all Registrable Securities are not covered by the Initial Registration
Statement filed pursuant to Section 2(a) as a result of Section 2(e) or otherwise, or the Initial Registration
Statement is no longer effective, the Company shall use its commercially reasonable best efforts, to the extent necessary and permissible,
amend the Initial Registration Statement, cause an existing registration statement that has been filed but not declared effective by
the Commission to become effective, or to file with the Commission one or more additional Registration Statements so as to cover all
of the Registrable Securities not covered by the Initial Registration Statement, in each case, as soon as practicable (taking into account
any position of the staff of the Commission (“Staff”) with respect to the date on which the Staff will permit
such additional Registration Statement(s) to be filed with the Commission and the rules and regulations of the Commission) (each such
additional Registration Statement, a “New Registration Statement”). The Company shall use its commercially
reasonable best efforts to cause each such New Registration Statement to become effective as soon as reasonably practicable following
the filing thereof with the Commission.
(d)
Statutory Underwriter Status. 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 to the extent required by applicable
law and to the extent the Prospectus is related to the resale of Registrable Securities.
(e)
Offering. If the Staff or the Commission seeks to prevent the Company from including any or all of the Registrable Securities
proposed to be registered under a Registration Statement due to limitations on the use of Rule 415, or if after the filing of any Registration
Statement, or any Prospectus or Prospectus Supplement, pursuant to Section 2(a) or Section 2(c), the Company
is otherwise required by the Staff or the Commission to reduce the number of Registrable Securities included in such Registration Statement,
then the Company shall reduce the number of Registrable Securities to be included in such Registration Statement (after consultation
with the Investor and Legal Counsel as to the specific Registrable Securities to be removed therefrom), to no more than the maximum number
of securities as is permitted to be registered by the Commission until such time as the Staff and the Commission shall so permit such
Registration Statement to become effective and be used as aforesaid. Notwithstanding anything in this Agreement to the contrary, if after
giving effect to the actions referred to in the immediately preceding sentence, the Staff or the Commission does not permit such Registration
Statement to become effective and be used for resales by the Investor of Registrable Securities on a delayed or continuous basis under
Rule 415 at then-prevailing market prices (and not fixed prices), the Company shall not request acceleration of the Effective Date of
such Registration Statement, the Company shall promptly (but in no event later than 48 hours) request the withdrawal of such Registration
Statement pursuant to Rule 477 under the Securities Act. In the event of any reduction in Registrable Securities pursuant to this paragraph,
the Company shall use its commercially reasonable best efforts to file one or more New Registration Statements with the Commission in
accordance with Section 2(c) until such time as all Registrable Securities have been included in Registration Statements
that have been declared effective and the Prospectuses contained therein are available for use by the Investor.
(f)
Any Registrable Security shall cease to be a “Registrable Security” at the earliest of the following: (i) when a Registration
Statement covering such Registrable Security becomes or has been declared effective by the Commission and such Registrable Security has
been sold or disposed of pursuant to such effective Registration Statement by the Investor; and (ii) when such Registrable Security
is held by the Company or one of its Subsidiaries.
For
the duration of the Registration Period, the Company shall use its commercially reasonable efforts to effect the registration of the
Registrable Securities in accordance with the intended method of disposition thereof, and, pursuant thereto, during the term of this
Agreement, the Company shall have the following obligations:
(a)
Following the Execution Date, the Company shall promptly prepare and file with the Commission the Initial Registration Statement pursuant
to Section 2(a) hereof and one or more New Registration Statements pursuant to Section 2(c) hereof with respect
to the Registrable Securities, and the Company shall use its commercially reasonable best efforts to cause each such Registration Statement
to become effective within 45 calendar days of such filing. Subject to Allowable Grace Periods, the Company shall use its commercially
reasonable efforts to keep each Registration Statement effective (and the Prospectus contained therein available for use) pursuant to
Rule 415 for resales by the Investor of Registrable Securities on a continuous basis at then-prevailing market prices (and not fixed
prices) at all times until the earlier of (i) the date on which the Investor shall have sold all of the Registrable Securities covered
by such Registration Statement and (ii) the date of termination of the Purchase Agreement if as of such termination date the Investor
holds no Registrable Securities (or, if applicable, the date on which such securities cease to be Registrable Securities after the date
of termination of the Purchase Agreement) (the “Registration Period”). Notwithstanding anything to the
contrary contained in this Agreement (but subject to the provisions of Section 3(o) hereof), the Company shall ensure that,
when filed and at all times while effective, 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. The Company shall submit to the Commission, as soon as reasonably practicable after the date that the Company learns that
no review of a particular Registration Statement will be made by the Staff or that the Staff has no further comments on a particular
Registration Statement (as the case may be), a request for acceleration of effectiveness of such Registration Statement to a time and
date as soon as reasonably practicable in accordance with Rule 461 under the Securities Act.
(b)
Subject to Section 3(o) of this Agreement, the Company shall use its commercially reasonable best efforts to prepare and
file with the Commission such amendments (including, without limitation, post-effective amendments) and supplements to each Registration
Statement and the Prospectus used in connection with each such Registration Statement, which Prospectus is to be filed pursuant to Rule
424 promulgated under the Securities Act, as may be necessary to keep each such Registration Statement effective (and the Prospectus
contained therein current and available for use) at all times during the Registration Period for such Registration Statement, and, during
such period, comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company
required to be covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed
of in accordance with the intended methods of disposition by the Investor as set forth in such Registration Statement. Without limiting
the generality of the foregoing, the Company covenants and agrees that (i) on the second (2nd) Business Day immediately
following the Effective Date of the Initial Registration Statement and any New Registration Statement (or any post-effective amendment
thereto), the Company shall file with the Commission in accordance with Rule 424(b) under the Securities Act the final Prospectus to
be used in connection with sales pursuant to such Registration Statement (or post-effective amendment thereto), and (ii) if the
transactions contemplated by any Purchase Notice are material to the Company (individually or collectively with all other prior Purchase
Notices, the consummation of which have not previously been reported in any Prospectus Supplement filed with the Commission under Rule
424(b) under the Securities Act or in any report, statement or other document filed by the Company with the Commission under the Exchange
Act), or if otherwise required under the Securities Act (or the interpretations of the Commission thereof), in each case as reasonably
determined by the Company and the Investor, then, on the first (1st) Business Day immediately following the Closing Date,
if a Purchase Notice was properly delivered to the Investor hereunder in connection with such purchase, the Company shall file with the
Commission a Prospectus Supplement pursuant to Rule 424(b) under the Securities Act with respect to the purchase(s), the
total purchase amount for the Purchase Notice Shares subject to such purchase(s) (as applicable), the applicable Purchase Amount(s) for
such Purchase Notice Shares and the net proceeds that are to be (and, if applicable, have been) received by the Company from the sale
of such Purchase Notice Shares. To the extent not previously disclosed in the Prospectus or a Prospectus Supplement, the Company shall
disclose in its Quarterly Reports on Form 10-Q and in its Annual Reports on Form 10-K the information described in
the immediately preceding sentence relating to all purchase(s) consummated during the relevant fiscal quarter and shall file such Quarterly
Reports and Annual Reports with the Commission within the applicable time period prescribed for such report under the Exchange Act. In
the case of amendments and supplements to any Registration Statement on Form S-1 or Prospectus related thereto that are required
to be filed pursuant to this Agreement (including, without limitation, pursuant to this Section 3(b)) by reason of the Company
filing a report on Form 8-K, Form 10-Q or Form 10-K or any analogous report under the Exchange Act, the
Company shall have incorporated such report by reference into such Registration Statement and Prospectus, if applicable, or shall file
such amendments or supplements to the Registration Statement or Prospectus with the Commission on the same day on which the Exchange
Act report is filed that created the requirement for the Company to amend or supplement such Registration Statement or Prospectus, for
the purpose of including or incorporating such report into such Registration Statement and Prospectus. The Company consents to the use
of the Prospectus (including, without limitation, any supplement thereto) included in each Registration Statement in accordance with
the provisions of the Securities Act and with the securities or “Blue Sky” laws of the jurisdictions in which the Registrable
Securities may be sold by the Investor, in connection with the resale of the Registrable Securities and for such period of time thereafter
as such Prospectus (including, without limitation, any supplement thereto) (or in lieu thereof, the notice referred to in Rule 173(a)
under the Securities Act) is required by the Securities Act to be delivered in connection with resales of Registrable Securities.
(c)
The Company shall (A) permit Legal Counsel an opportunity to review and comment upon (i) each Registration Statement at least
two (2) Business Days prior to its filing with the Commission and (ii) all amendments and supplements to each Registration
Statement (including, without limitation, the Prospectus contained therein) (except for Annual Reports on Form 10-K, Quarterly
Reports on Form 10-Q, Current Reports on Form 8-K, and any similar or successor reports to the extent incorporated
by reference into such Registration Statement or Prospectus Supplements the contents of which are limited to that set forth in such reports)
within a reasonable number of days prior to their filing with the Commission, and (B) shall reasonably consider any comments of
the Investor and Legal Counsel on any such Registration Statement or amendment or supplement thereto or to any Prospectus contained therein.
The Company shall promptly furnish to Legal Counsel, without charge, (i) electronic copies of any correspondence from the Commission
or the Staff to the Company or its representatives relating to each Registration Statement (which correspondence shall be redacted to
exclude any material nonpublic information regarding the Company or any of its Subsidiaries), (ii) after the same is prepared
and filed with the Commission, one (1) electronic copy of each Registration Statement and any amendment(s) and supplement(s) thereto,
including, without limitation, all documents incorporated therein by reference, if requested by the Investor, and (iii) upon the
effectiveness of each Registration Statement, one (1) electronic copy of the Prospectus included in such Registration Statement
and all amendments and supplements thereto; provided, however, the Company shall not be required to furnish any document (other than
the Prospectus, which may be provided in .PDF format) to Legal Counsel to the extent such document is available on Commission’s
Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”).
(d)
Without limiting any obligation of the Company under the Purchase Agreement, the Company shall promptly furnish to the Investor, without
charge, (i) after the same is prepared and filed with the Commission, at least one (1) electronic copy of each Registration
Statement and any amendment(s) and supplement(s) thereto, including, without limitation, all documents incorporated therein by reference,
if requested by the Investor, (ii) upon the effectiveness of each Registration Statement, one (1) electronic copy of the Prospectus
included in such Registration Statement and all amendments and supplements thereto and (iii) such other documents, including, without
limitation, copies of any final Prospectus and any Prospectus Supplement thereto, as the Investor may reasonably request from time to
time in order to facilitate the disposition of the Registrable Securities owned by the Investor; provided, however, the Company shall
not be required to furnish any document (other than the Prospectus, which may be provided in .PDF format) to the Investor to the extent
such document is available on EDGAR).
(e)
The Company shall take such action as is reasonably necessary to (i) register and qualify, unless an exemption from registration
and qualification applies, the resale by the Investor of the Registrable Securities, under such other securities or “Blue Sky”
laws of all applicable jurisdictions in the United States, (ii) prepare and file in those jurisdictions, such amendments (including,
without limitation, post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain
the effectiveness thereof during the Registration Period, (iii) take such other actions as may be reasonably necessary to maintain
such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably
necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however,
the Company shall not be required in connection therewith or as a condition thereto to (x) qualify to do business in any jurisdiction
where it would not otherwise be required to qualify but for this Section 3(e), (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 Legal Counsel and 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 Registrable Securities 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 threatening of any proceeding for such purpose.
(f)
The Company shall notify Legal Counsel and the Investor in writing of the happening of any event, as promptly as reasonably practicable
after becoming aware of such event, as a result of which the Prospectus included in a Registration Statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading (provided, that in no event shall such notice contain
any material nonpublic information regarding the Company or any of its Subsidiaries), and, subject to Section 3(o), promptly prepare
a supplement or amendment to such Registration Statement and such Prospectus contained therein to correct such untrue statement or omission.
The Company shall also promptly notify Legal Counsel and the Investor in writing (i) when a Prospectus or any Prospectus Supplement
or post-effective amendment has been filed, when a Registration Statement or any post-effective amendment has become effective (notification
of such effectiveness shall be delivered to Legal Counsel and the Investor by facsimile or e-mail (with read receipt) on the
same day of such effectiveness), and when the Company receives written notice from the Commission that a Registration Statement or any
post-effective amendment will be reviewed by the Commission, (ii) of any request by the Commission for amendments or supplements
to a Registration Statement or related Prospectus or related information, (iii) of the Company’s reasonable determination
that a post-effective amendment to a Registration Statement would be appropriate and (iv) of the receipt of any request by the Commission
or any other federal or state governmental authority for any additional information relating to the Registration Statement or any amendment
or supplement thereto or any related Prospectus. The Company shall respond as promptly as reasonably practicable to any comments received
from the Commission with respect to a Registration Statement or any amendment thereto. Nothing in this Section 3(f) shall
limit any obligation of the Company under the Purchase Agreement.
(g)
The Company shall (i) use its commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness
of a Registration Statement or the use of any Prospectus contained therein, or the suspension of the qualification, or the loss of an
exemption from qualification, of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is
issued, to obtain the withdrawal of such order or suspension at the earliest possible time and (ii) notify Legal Counsel and the
Investor of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any
proceeding.
(h)
The Company shall hold in confidence and not make any disclosure of information concerning the Investor provided to the Company unless
(i) disclosure of such information is necessary to comply with federal or state securities laws, (ii) the disclosure of such
information is necessary to avoid or correct a misstatement or omission in any Registration Statement or is otherwise required to be
disclosed in such Registration Statement pursuant to the Securities Act, (iii) the release of such information is ordered pursuant
to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction, or (iv) such
information has been made generally available to the public other than by disclosure in violation of this Agreement or any other Transaction
Document. The Company agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or
by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow
the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order
for, such information.
(i)
Without limiting any obligation of the Company under the Purchase Agreement, the Company shall use its commercially reasonable best efforts
either to (i) cause all of the Registrable Securities covered by each Registration Statement to be listed on the Principal Market,
or (ii) secure designation and quotation of all of the Registrable Securities covered by each Registration Statement on another
Principal Market. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(i).
(j)
The Company shall cooperate with the Investor and, to the extent applicable, use its commercially reasonable best efforts to facilitate
the timely preparation and delivery of Registrable Securities, as DWAC Shares, to be offered pursuant to a Registration Statement and
enable such DWAC Shares to be in such denominations or amounts (as the case may be) as the Investor may reasonably request from time
to time. Investor hereby agrees that it shall cooperate with the Company, its counsel and Transfer Agent in connection with any issuances
of DWAC Shares, and hereby represents, warrants and covenants to the Company that that it will resell such DWAC Shares only pursuant
to the Registration Statement in which such DWAC Shares are included, in a manner described under the caption “Plan of Distribution”
in such Registration Statement, and in a manner in compliance with all applicable U.S. federal and state securities laws, rules and regulations,
including, without limitation, any applicable prospectus delivery requirements of the Securities Act. At the time such DWAC Shares are
offered and sold pursuant to the Registration Statement, such DWAC Shares shall be free from all restrictive legends (except as otherwise
required by applicable federal laws) and may be transmitted by the transfer agent to the Investor by crediting an account at DTC as directed
in writing by the Investor.
(k)
Upon the written request of the Investor, the Company shall, as soon as reasonably practicable after receipt of notice from the Investor,
and subject to Section 3(o) hereof, (i) incorporate in a Prospectus Supplement or post-effective amendment such information
as the Investor reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including,
without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being
paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) make all required
filings of such Prospectus Supplement or post-effective amendment after being notified of the matters to be incorporated in such Prospectus
Supplement or post-effective amendment; and (iii) supplement or make amendments to any Registration Statement or Prospectus contained
therein if reasonably requested by the Investor.
(l)
[Reserved].
(m)
The Company shall make generally available to its security holders (which may be satisfied by making such information available on EDGAR)
as soon as practical, but not later than ninety (90) days after the close of the period covered thereby, an earnings statement (in
form complying with, and in the manner provided by, the provisions of Rule 158 under the Securities Act) covering a twelve-month period
beginning not later than the first day of the Company’s fiscal quarter next following the applicable Effective Date of each Registration
Statement.
(n)
The Company shall otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission
in connection with any registration hereunder.
(o)
Notwithstanding anything to the contrary contained herein (but subject to the last sentence of this Section 3(o)), at any time,
the Company may, upon written notice to Investor, delay the filing or effectiveness of any Registration Statement, or suspend Investor’s
use of any Prospectus that is a part of any Registration Statement (in which event the Investor shall discontinue sales of the Registrable
Securities pursuant to such Registration Statement contemplated by this Agreement, but shall settle any previously made sales of Registrable
Securities) if the Company determines that in order for such Registration Statement or Prospectus not to contain a material misstatement
or omission, (i) an amendment or supplement thereto would be needed to include information at that time, (ii) the negotiation or consummation
of a transaction by the Company or its subsidiaries is pending or an event has occurred, which negotiation, consummation or event the
Company’s board of directors reasonably believes would require additional disclosure by the Company in such Registration Statement
or Prospectus of material information that the Company has a bona fide business purpose for keeping confidential and the non-disclosure
of which in such Registration Statement or Prospectus would be expected, in the reasonable determination of the Company’s board
of directors, to cause such Registration Statement or Prospectus to fail to comply with applicable disclosure requirements of the Commission,
or (iii) in the good faith judgment of the majority of the members of the Company’s board of directors, such filing or effectiveness
or use of such Registration Statement or Prospectus, as applicable, would be seriously detrimental to the Company and, as a result, that
it is essential to defer such filing, effectiveness or use (each, an “Allowable Grace Period”);
provided, however, that in no event shall the Company delay or suspend the filing, effectiveness or use of any Registration Statement
or Prospectus for a period that exceeds 45 consecutive Business Days or an aggregate of 90 total Busines Days in any 365-day period;
and provided, further, the Company shall not effect any such suspension during the applicable valuation period following the applicable
purchase notice date for each purchase Purchase Notice Shares. Upon disclosure of such information or the termination of the condition
described above, the Company shall provide prompt notice, but in any event within one Business Day of such disclosure or termination,
to the Investor and shall promptly terminate any suspension or delay it has put into effect and shall take such other reasonable actions
to permit registered sales of Registrable Securities as contemplated in this Agreement (including as set forth in the first sentence
of Section 3(f) with respect to the information giving rise thereto unless such material nonpublic information is no longer applicable).
Notwithstanding anything to the contrary contained in this Section 3(o), the Company shall cause its transfer agent to deliver
DWAC Shares to a transferee of the Investor in accordance with the terms of the Purchase Agreement in connection with any sale of Registrable
Securities with respect to which (i) the Company has made a sale to Investor and (ii) the Investor has entered into a contract for sale,
and delivered a copy of the Prospectus included as part of the particular Registration Statement to the extent applicable, in each case
prior to the Investor’s receipt of the notice of an Allowable Grace Period and for which the Investor has not yet settled.
(p)
The Company shall at all times maintain the services of the Transfer Agent with respect to the administration of its Common Stock.
4.
Obligations of the Investor.
(a)
At least five (5) Business Days prior to the first anticipated filing date of each Registration Statement (or such shorter period
to which the parties agree), the Company shall notify the Investor in writing of the information the Company requires from the Investor
with respect to such Registration Statement. It shall be a condition precedent to the obligations of the Company to complete the registration
pursuant to this Agreement with respect to the Registrable Securities of the Investor that the Investor shall furnish to the Company
such information regarding itself, the Registrable Securities held by it and the intended method of disposition of the Registrable Securities
held by it, as shall be reasonably required to effect and maintain the effectiveness of the registration of such Registrable Securities
and shall execute such documents in connection with such registration as the Company may reasonably request.
(b)
The Investor, by its acceptance of the Registrable Securities, agrees to cooperate with the Company as reasonably requested by the Company
in connection with the preparation and filing of each Registration Statement hereunder, unless the Investor has notified the Company
in writing of the Investor’s election to exclude all of the Investor’s Registrable Securities from such Registration Statement.
(c)
The Investor agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3(p)
or the first sentence of 3(f), the Investor shall (i) immediately discontinue disposition of Registrable Securities pursuant
to any Registration Statement(s) covering such Registrable Securities until the Investor’s receipt of the copies of the supplemented
or amended Prospectus contemplated by Section 3(o) or the first sentence of Section 3(f) or receipt of notice
that no supplement or amendment is required and (ii) maintain the confidentiality of any information included in such notice delivered
by the Company unless otherwise required by law or subpoena. Notwithstanding anything to the contrary in this Section 4(c),
the Company shall cause its transfer agent to deliver DWAC Shares to a transferee of the Investor in accordance with the terms of the
Purchase Agreement in connection with any sale of Registrable Securities with respect to which the Investor has entered into a contract
for sale prior to the Investor’s receipt of a notice from the Company of the happening of any event of the kind described in Section 3(o)
or the first sentence of Section 3(f) and for which the Investor has not yet settled.
(d)
The Investor covenants and agrees that it shall comply with the prospectus delivery and other requirements of the Securities Act as applicable
to it in connection with sales of Registrable Securities pursuant to a Registration Statement.
5.
Expenses of Registration.
All
reasonable expenses of the Company, other than sales or brokerage commissions and fees and disbursements of counsel for, and other expenses
of, the Investor, incurred in connection with registrations, filings or qualifications pursuant to Sections 2 and 3, including,
without limitation, all registration, listing and qualifications fees, printers and accounting fees incurred by the Company, and fees
and disbursements of counsel for the Company, shall be paid by the Company.
6.
Indemnification.
(a)
To the fullest extent permitted by law, the Company will, and hereby does, indemnify, hold harmless and defend the Investor, each of
its directors, officers, shareholders, members, partners, employees, agents, representatives (and any other Persons with a functionally
equivalent role of a Person holding such titles notwithstanding the lack of such title or any other title) and each Person, if any, who
controls the Investor within the meaning of the Securities Act or the Exchange Act and each of the directors, officers, shareholders,
members, partners, employees, agents, representatives (and any other Persons with a functionally equivalent role of a Person holding
such titles notwithstanding the lack of such title or any other title) of such controlling Persons (each, an “Investor
Party” and collectively, the “Investor Parties”), against any losses, obligations,
claims, damages, liabilities, contingencies, judgments, fines, penalties, charges, costs (including, without limitation, court costs,
reasonable attorneys’ fees, costs of defense and investigation), amounts paid in settlement or expenses, joint or several, (collectively,
“Claims”) reasonably incurred in investigating, preparing or defending any action, claim, suit, inquiry,
proceeding, investigation or appeal taken from the foregoing by or before any court or governmental, administrative or other regulatory
agency, body or the Commission, whether pending or threatened, whether or not an Investor Party is or may be a party thereto (“Indemnified
Damages”), to which any of them may become subject insofar as such Claims (or actions or proceedings, whether commenced
or threatened, in respect thereof) arise out of or are based upon: (i) any untrue statement or alleged untrue statement of a material
fact in a Registration Statement or any post-effective amendment thereto or in any filing made in connection with the qualification of
the offering under the securities or other “Blue Sky” laws of any jurisdiction in which Registrable Securities are offered
(“Blue Sky Filing”), or the omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or (ii) any untrue statement or alleged untrue statement of a
material fact contained in any Prospectus (as amended or supplemented) or in any Prospectus Supplement or the omission or alleged omission
to state therein any material fact necessary to make the statements made therein, in light of the circumstances under which the statements
therein were made, not misleading (the matters in the foregoing clauses (i) and (ii) being, collectively, “Violations”).
Subject to Section 6(c), the Company shall reimburse the Investor Parties, promptly as such expenses are incurred and are
due and payable, for any reasonable legal fees or other reasonable expenses incurred by them in connection with investigating or defending
any such Claim. Notwithstanding anything to the contrary contained herein, the indemnification agreement contained in this Section 6(a):
(i) shall not apply to a Claim by an Investor Party arising out of or based upon a Violation which occurs in reliance upon and in conformity
with information furnished in writing to the Company by such Investor Party for such Investor Party expressly for use in connection with
the preparation of such Registration Statement, Prospectus or Prospectus Supplement or any such amendment thereof or supplement thereto
(it being hereby acknowledged and agreed that the written information set forth on Exhibit A attached hereto is the
only written information furnished to the Company by or on behalf of the Investor expressly for use in any Registration Statement, Prospectus
or Prospectus Supplement); (ii) shall not be available to the Investor to the extent such Claim is based on a failure of the Investor
to deliver or to cause to be delivered the Prospectus (as amended or supplemented) made available by the Company (to the extent applicable),
including, without limitation, a corrected Prospectus, if such Prospectus (as amended or supplemented) or corrected Prospectus was timely
made available by the Company pursuant to Section 3(d) and then only if, and to the extent that, following the receipt of
the corrected Prospectus no grounds for such Claim would have existed; and (iii) shall not apply to amounts paid in settlement of
any Claim if such settlement is effected without the prior written consent of the Company, which consent shall not be unreasonably withheld
or delayed. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Investor
Party and shall survive the transfer of any of the Registrable Securities by the Investor pursuant to Section 9.
(b)
In connection with any Registration Statement in which the Investor is participating, the Investor agrees to severally and not jointly
indemnify, hold harmless and defend, to the same extent and in the same manner as is set forth in Section 6(a), the Company,
each of its directors, each of its officers who signs the Registration Statement and each Person, if any, who controls the Company within
the meaning of the Securities Act or the Exchange Act (each, an “Company Party”), against any Claim
or Indemnified Damages to which any of them may become subject, under the Securities Act, the Exchange Act or otherwise, insofar as such
Claim or Indemnified Damages arise out of or are based upon any Violation, in each case, to the extent, and only to the extent, that
such Violation occurs in reliance upon and in conformity with written information relating to the Investor furnished to the Company by
the Investor expressly for use in connection with such Registration Statement, the Prospectus included therein or any Prospectus Supplement
thereto (it being hereby acknowledged and agreed that the written information set forth on Exhibit A attached hereto
is the only written information furnished to the Company by or on behalf of the Investor expressly for use in any Registration Statement,
Prospectus or Prospectus Supplement); and, subject to Section 6(c) and the below provisos in this Section 6(b),
the Investor shall reimburse a Company Party any legal or other expenses reasonably incurred by such Company Party in connection with
investigating or defending any such Claim; provided, however, the indemnity agreement contained in this Section 6(b)
and the agreement with respect to contribution contained in Section 7 shall not apply to amounts paid in settlement of
any Claim if such settlement is effected without the prior written consent of the Investor, which consent shall not be unreasonably withheld
or delayed; and provided, further that the Investor shall be liable under this Section 6(b)
for only that amount of a Claim or Indemnified Damages as does not exceed the net proceeds to the Investor as a result of the applicable
sale of Registrable Securities by the Investor pursuant to such Registration Statement, Prospectus or Prospectus Supplement. Such indemnity
shall remain in full force and effect regardless of any investigation made by or on behalf of such Company Party and shall survive the
transfer of any of the Registrable Securities by the Investor pursuant to Section 9.
(c)
Promptly after receipt by an Investor Party or Company Party (as the case may be) under this Section 6 of notice of the commencement
of any action or proceeding (including, without limitation, any governmental action or proceeding) involving a Claim, such Investor Party
or Company Party (as the case may be) shall, if a Claim in respect thereof is to be made against any indemnifying party under this Section 6,
deliver to the indemnifying party a written notice of the commencement thereof, and 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 satisfactory to the indemnifying party and the Investor Party or the Company Party (as the
case may be); provided, however, an Investor Party or Company Party (as the case may be) shall have the right to retain
its own counsel with the fees and expenses of such counsel to be paid by the indemnifying party if: (i) the indemnifying party has
agreed in writing to pay such fees and expenses; (ii) the indemnifying party shall have failed promptly to assume the defense of
such Claim and to employ counsel reasonably satisfactory to such Investor Party or Company Party (as the case may be) in any such Claim;
or (iii) the named parties to any such Claim (including, without limitation, any impleaded parties) include both such Investor Party
or Company Party (as the case may be) and the indemnifying party, and such Investor Party or such Company Party (as the case may be)
shall have been advised by counsel that a conflict of interest is likely to exist if the same counsel were to represent such Investor
Party or such Company Party and the indemnifying party (in which case, if such Investor Party or such Company Party (as the case may
be) notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, then
the indemnifying party shall not have the right to assume the defense thereof on behalf of the indemnified party and such counsel shall
be at the expense of the indemnifying party), provided further that in the case of clause (iii) above
the indemnifying party shall not be responsible for the reasonable fees and expenses of more than one (1) separate legal counsel
for all Investor Parties or Company Parties (as the case may be). The Company Party or Investor Party (as the case may be) shall reasonably
cooperate 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 Company Party or Investor Party (as the case
may be) which relates to such action or Claim. The indemnifying party shall keep the Company Party or Investor Party (as the case may
be) reasonably apprised at all times 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,
the indemnifying party shall not unreasonably withhold, delay or condition its consent. No indemnifying party shall, without the prior
written consent of the Company Party or Investor Party (as the case may be), 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 Company Party
or Investor Party (as the case may be) of a release from all liability in respect to such Claim or litigation, and such settlement shall
not include any admission as to fault on the part of the Company Party. For the avoidance of doubt, the immediately preceding sentence
shall apply to Sections 6(a) and 6(b) hereof. Following indemnification as provided for hereunder, the indemnifying party
shall be subrogated to all rights of the Company Party or Investor Party (as the case may be) with respect to all third parties, firms
or corporations relating to the matter for which indemnification has been made. The failure to deliver written notice to the indemnifying
party within a reasonable time of the commencement of any such action shall not relieve such indemnifying party of any liability to the
Investor Party or Company Party (as the case may be) under this Section 6, except to the extent that the indemnifying party
is materially and adversely prejudiced in its ability to defend such action.
(d)
No Person involved in the sale of Registrable Securities who is guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) in connection with such sale shall be entitled to indemnification from any Person involved in such sale of Registrable
Securities who is not guilty of fraudulent misrepresentation.
(e)
The indemnification required by this Section 6 shall be made by periodic payments of the amount thereof during the course of the
investigation or defense, as and when bills are received or Indemnified Damages are incurred; provided that any Person
receiving any payment pursuant to this Section 6 shall promptly reimburse the Person making such payment for the amount of such
payment to the extent a court of competent jurisdiction determines that such Person receiving such payment was not entitled to such payment.
(f)
The indemnity and contribution agreements contained herein shall be in addition to (i) any cause of action or similar right of the
Company Party or Investor Party against the indemnifying party or others, and (ii) any liabilities the indemnifying party may be
subject to pursuant to the law.
7.
Contribution.
To
the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum
contribution with respect to any amounts for which it would otherwise be liable under Section 6 to the fullest extent permitted
by law; provided, however: (i) no contribution shall be made under circumstances where the maker would not
have been liable for indemnification under the fault standards set forth in Section 6 of this Agreement, (ii) no Person involved
in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable
Securities who was not guilty of fraudulent misrepresentation; and (iii) contribution by any seller of Registrable Securities shall
be limited in amount to the amount of net proceeds received by such seller from the applicable sale of such Registrable Securities pursuant
to such Registration Statement. Notwithstanding the provisions of this Section 7, the Investor shall not be required to contribute,
in the aggregate, any amount in excess of the amount by which the net proceeds actually received by the Investor from the applicable
sale of the Registrable Securities subject to the Claim exceeds the amount of any damages that the Investor has otherwise been required
to pay, or would otherwise be required to pay under Section 6(b), by reason of such untrue or alleged untrue statement or
omission or alleged omission.
8.
Reports Under the Exchange Act.
With
a view to making available to the Investor the benefits of Rule 144, the Company agrees to:
(a)
use its commercially reasonable efforts to make and keep public information available, as those terms are understood and defined in Rule
144;
(b)
use its commercially reasonable efforts to file with the Commission in a timely manner all reports and other documents required of the
Company under the Securities Act and the Exchange Act so long as the Company remains subject to such requirements (it being understood
that nothing herein shall limit any of the Company’s obligations under the Purchase Agreement) and the filing of such reports and
other documents is required for the applicable provisions of Rule 144;
(c)
furnish to the Investor, so long as the Investor owns Registrable Securities, promptly upon request, (i) a written statement by
the Company, if true, that it has complied with the reporting, submission and posting requirements of Rule 144 and the Exchange Act,
(ii) a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company
with the Commission if such reports are not publicly available via EDGAR, and (iii) such other information as may be reasonably
requested to permit the Investor to sell such securities pursuant to Rule 144 without registration; and
(d)
take such additional action as is reasonably requested by the Investor to enable the Investor to sell the Registrable Securities pursuant
to Rule 144, including, without limitation, delivering all such legal opinions, consents, certificates, resolutions and instructions
to the Company’s Transfer Agent as may be reasonably requested from time to time by the Investor and otherwise fully cooperate
with Investor and Investor’s broker to effect such sale of securities pursuant to Rule 144.
9.
Assignment of Registration Rights.
Neither
the Company nor the Investor shall assign this Agreement or any of their respective rights or obligations hereunder.
10.
Amendment or Waiver.
No
provision of this Agreement may be (i) amended other than by a written instrument signed by both parties hereto or (ii) waived
other than in a written instrument signed by the party against whom enforcement of such waiver is sought. Failure of any party to exercise
any right or remedy under this Agreement or otherwise, or delay by a party in exercising such right or remedy, shall not operate as a
waiver thereof.
11.
Miscellaneous.
(a)
Solely for purposes of this Agreement, a Person is deemed to be a holder of Registrable Securities whenever such Person owns or is deemed
to own of record such Registrable Securities. If the Company receives conflicting instructions, notices or elections from two or more
Persons with respect to the same Registrable Securities, the Company shall act upon the basis of instructions, notice or election received
from such record owner of such Registrable Securities.
(b)
Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement shall be given
in accordance with Section 10.17 of the Purchase Agreement.
(c)
Failure of any party to exercise any right or remedy under this Agreement or otherwise, or delay by a party in exercising such right
or remedy, shall not operate as a waiver thereof. The Company and the Investor acknowledge and agree that irreparable damage would occur
in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that either party shall be entitled to an injunction or injunctions to prevent or cure breaches of
the provisions of this Agreement by the other party and to enforce specifically the terms and provisions hereof (without the necessity
of showing economic loss and without any bond or other security being required), this being in addition to any other remedy to which
either party may be entitled by law or equity.
(d)
All questions concerning the governing law, construction, validity, enforcement, arbitration, dispute resolution and interpretation of
this Agreement shall be under the same terms as set forth under Article X of the Purchase Agreement, including without limitation,
Sections 10.1, 10.2, 10.11, 10.12, and 10.16 thereunder. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY
RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH
OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
(e)
The Transaction Documents set forth the entire agreement and understanding of the parties solely with respect to the subject matter thereof
and supersedes all prior and contemporaneous agreements, negotiations and understandings between the parties, both oral and written,
solely with respect to such matters. There are no promises, undertakings, representations or warranties by either party relative to the
subject matter hereof not expressly set forth in the Transaction Documents. Notwithstanding anything in this Agreement to the contrary
and without implication that the contrary would otherwise be true, nothing contained in this Agreement shall limit, modify or affect
in any manner whatsoever (i) the conditions precedent to a purchase contained in Article VII of the Purchase Agreement or
(ii) any of the Company’s obligations under the Purchase Agreement.
(f)
This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors. This Agreement is
not for the benefit of, nor may any provision hereof be enforced by, any Person, other than the parties hereto, their respective successors
and the Persons referred to in Sections 6 and 7 hereof (and in such case, solely for the purposes set forth therein).
(g)
The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. Unless
the context clearly indicates otherwise, each pronoun herein shall be deemed to include the masculine, feminine, neuter, singular and
plural forms thereof. The terms “including,” “includes,” “include” and words of like import shall
be construed broadly as if followed by the words “without limitation.” The terms “herein,” “hereunder,”
“hereof” and words of like import refer to this entire Agreement instead of just the provision in which they are found.
(h)
This Agreement may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and delivered to the other party; provided that a facsimile signature
or signature delivered by e-mail in a “.pdf” format data file, including any electronic signature complying with
the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com, www.echosign.adobe.com, etc., shall be considered due execution and shall
be binding upon the signatory thereto with the same force and effect as if the signature were an original signature.
(i)
Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all
such other agreements, certificates, instruments and documents as any other party may reasonably request in order to carry out the intent
and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
(j)
The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent and no rules
of strict construction will be applied against any party.
12.
Termination.
This
Agreement shall terminate in its entirety upon the date on which the Investor shall no longer hold any Registrable Securities; provided,
that the provisions of Sections 6, 7, 9, 10 and 11 shall remain in full force and effect for the longest
period under applicable laws.
[Signature
Pages Follow]
IN
WITNESS WHEREOF, the Investor and the Company have caused their respective signature page to this Registration Rights Agreement to
be duly executed as of the Execution Date.
|
COMPANY: |
|
|
|
ZOOMCAR HOLDINGS,
INC. |
|
|
|
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By: |
/s/
Greg Moran |
|
|
Name: |
Greg Moran |
|
|
Title: |
Chief Executive Officer |
|
INVESTOR: |
|
|
|
WHITE LION CAPITAL
LLC |
|
|
|
|
By: |
/s/
Sam Yaffa |
|
|
Name: |
Sam Yaffa |
|
|
Title: |
Managing Director |
v3.24.1.u1
Cover
|
May 06, 2024 |
Document Type |
8-K
|
Amendment Flag |
false
|
Document Period End Date |
May 06, 2024
|
Entity File Number |
001-40964
|
Entity Registrant Name |
ZOOMCAR HOLDINGS, INC.
|
Entity Central Index Key |
0001854275
|
Entity Tax Identification Number |
99-0431609
|
Entity Incorporation, State or Country Code |
DE
|
Entity Address, Address Line One |
Anjaneya Techno Park
|
Entity Address, Address Line Two |
No.147
|
Entity Address, Address Line Three |
1st Floor
|
Entity Address, City or Town |
Bangalore
|
Entity Address, Country |
IN
|
Entity Address, Postal Zip Code |
560008
|
City Area Code |
+91
|
Local Phone Number |
99454-8382
|
Written Communications |
false
|
Soliciting Material |
false
|
Pre-commencement Tender Offer |
false
|
Pre-commencement Issuer Tender Offer |
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true
|
Elected Not To Use the Extended Transition Period |
false
|
Common Stock, par value $0.0001 per share |
|
Title of 12(b) Security |
Common Stock, par value $0.0001 per share
|
Trading Symbol |
ZCAR
|
Security Exchange Name |
NASDAQ
|
Warrants, each exercisable for one share of Common Stock at a price of $5.71, subject to adjustment |
|
Title of 12(b) Security |
Warrants, each exercisable for one share of Common Stock at a price of $5.71, subject to adjustment
|
Trading Symbol |
ZCARW
|
Security Exchange Name |
NASDAQ
|
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