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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): October 31, 2023
GD
Culture Group Limited
(Exact
name of Company as specified in charter)
Nevada |
|
001-37513 |
|
47-3709051 |
(State
or other jurisdiction
of incorporation) |
|
(Commission
File No.) |
|
(IRS
Employer
Identification No.) |
c/o
GD Culture Group Limited
22F
- 810 Seventh Avenue,
New
York, NY 10019
(Address
of Principal Executive Offices) (Zip code)
+1-347-2590292
(Company’s
Telephone number, including area code)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the Company under any
of the following provisions (see General Instruction A.2. below):
☐ |
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)) |
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. ☐
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 |
|
GDC |
|
Nasdaq
Capital Market |
Item
1.01 Entry into a Material Definitive Agreement.
On or about November 1, 2023, GD Culture Group
Limited (the “Company”, “we”, “us” or “our”) entered into a placement agency agreement
(the “Placement Agency Agreement”), with Univest Securities, LLC (the “Placement Agent” or “Univest”).
Pursuant to the Placement Agency Agreement, the Placement Agent agrees to use its reasonable best efforts to sell the Company’s
common stock (the “Common Stock”) in a registered direct offering (the “Offering”). The Placement Agent has no
obligation to buy any of the securities from us or to arrange for the purchase or sale of any specific number or dollar amount of securities.
In the Offering, (i) an aggregate of 1,436,253
shares of common stock (the “Common Shares”) of the Company, par value $0.0001 per share, (ii) pre-funded warrants to purchase
up to an aggregate of 1,876,103 shares of common stock (the “Pre-Funded Warrants”, and the common stock underlying such warrants,
the “Pre-Funded Warrant Shares”), and (iii) registered warrants to purchase up to an aggregate of 3,312,356 shares of common
stock (the “Registered Warrants”, and the common stock underlying such warrants, the “Registered Warrant Shares”)
are sold to certain purchasers (the “Purchasers”), pursuant to a securities purchase agreement, dated October 31, 2023 (the
“Securities Purchase Agreement”). The purchase price of each Common Share is $3.019. The purchase price of each Pre-funded
Warrant is $3.018, which equals the price per Common Share being sold in this Offering, minus $0.001. The Pre-funded Warrants will be
exercisable immediately after issuance and will expire five (5) years from the date of issuance. The Registered Warrants will be exercisable
immediately and will expire five (5) years from the date of issuance.
The Offering is being made pursuant to a shelf
registration statement (No. 333-254366) on Form S-3, which was declared effective by the U.S. Securities and Exchange
Commission (the “SEC”) on March 26, 2021, and related prospectus supplement.
The net proceeds from the Offering, after deducting
placement agent discounts and commissions and estimated offering expenses payable by the Company, are approximately $9.05 million (assuming
the Registered Warrants are not exercised). The Company intends to use the net proceeds from the Offering for working capital and general
corporate purposes.
Pursuant to the Placement Agency Agreement, the
Company has agreed to pay the Placement Agent a total cash fee equal to 7.0% of the aggregate gross proceeds received in the Offering.
The Company also agreed to reimburse the Placement Agent certain out-of-pocket accountable expenses incurred in this Offering up to $150,000.
In concurrent with the Offering, on November
1, 2023, the Company entered into certain warrant exchange agreements (the “Warrant Exchange Agreements”) with certain
holders of warrants issued by the Company on May 16, 2023 in a private placement (the “Existing Warrants”), to purchase
up to 1,154,519 shares of the Company’s Common Stock (the “Holders”). Pursuant to the Warrant Exchange Agreements,
the Holders shall surrender the Existing Warrants, and the Company shall cancel the Existing Warrants and shall issue to Holders
pre-funded warrants to purchase up to 577,260 shares of the Company’s Common Stock (the “Exchange Warrants”). The
Exchange Warrants were issued to Holders on November 3, 2023 and the warrant exchange closed on the same day.
Pre-funded
Warrants
“Pre-funded”
refers to the fact that the purchase price of the warrants in the offering includes almost the entire exercise price that will be paid
under the Pre-funded Warrants, except for a nominal remaining exercise price of $0.001. The purpose of the Pre-funded Warrants is to
enable Purchasers that may have restrictions on their ability to beneficially own more than 4.99% (or, upon election of the holder, 9.99%)
of the Company’s outstanding Common Stock following the consummation of the offering the opportunity to make an investment in the
Company without triggering their ownership restrictions, by receiving Pre-funded Warrants in lieu of the Company’s common stock
which would result in such ownership of more than 4.99% (or 9.99%), and receive the ability to exercise their option to purchase the
shares underlying the Pre-funded Warrants at such nominal price at a later date. In the Offering, each Pre-funded Warrant is exercisable
for one share of our Common Stock, with an exercise price equal to $0.001 per share, at any time that the Pre-funded Warrant is outstanding.
The Pre-funded Warrants will be exercisable immediately after issuance and will expire five (5) years from the date of issuance. The
holder of a Pre-funded Warrant will not be deemed a holder of our underlying common stock until the Pre-funded Warrant is exercised.
Registered
Warrants
In the Offering, the Company issued to such Purchasers
warrants to purchase up to 3,312,356 shares of Common Stock. The Registered Warrants will be exercisable immediately and will expire five
(5) years from the date of issuance. The Exercise Price of the Registered Warrants is $3.019, subject to adjustment as provided in the
form of Registered Warrants.
Placement Agent Warrants
Pursuant to the Placement Agency Agreement, the
Company agreed to issue the Placement Agent Warrants to the Placement Agent to purchase up to 331,236 shares of Common Stock (equal
to 5.0% of the aggregate number of Common Shares, and shares of Common Stock underlying the Pre-Funded Warrants sold in this offering,
and the number of shares of Common Stock underlying the Registered Warrants) at an exercise price of $3.623 per share, which represents
120% of the offering price. The Placement Agent’s Warrants are not covered by the shelf registration statement (No. 333-254366) on
Form S-3, which was declared effective by the SEC on March 26, 2021, and related prospectus supplement.
Exchange Warrants
Pursuant to the Warrant Exchange Agreements,
the Holders agreed to surrender the Existing Warrants and the Company shall cancel the Existing Warrants and shall issue to Holders pre-funded
warrants to purchase up to 577,260 shares of Common Stock (the “Exchange Warrants”). The Exchange Warrants have the same
terms and conditions as the Pre-funded Warrants. The Exchange Warrants are not covered by the shelf registration statement (No. 333-254366) on
Form S-3, which was declared effective by the SEC on March 26, 2021, and related prospectus supplement. The issuance of the
Exchange Warrants is intended to be exempt from registration by virtue of Section 3(a)(9) of the Securities Act of 1933, as amended.
The
Placement Agency Agreement is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference. The form
of Securities Purchase Agreement is filed as Exhibit 10.2 to this Current Report on Form 8-K and is incorporated herein by reference.
The form of Warrant Exchange Agreement is filed as Exhibit 10.3 to this Current Report on Form 8-K and is incorporated herein by reference.
The form of Pre-funded Warrants is filed as Exhibit 4.1 to this Current Report on Form 8-K and is incorporated herein
by reference. The form of Registered Warrants is filed as Exhibit 4.2 to this Current Report on Form 8-K and is incorporated
herein by reference. The foregoing descriptions of the terms of the Securities Purchase Agreement and form of Pre-funded Warrant
and Registered Warrants do not purport to be complete descriptions of the rights and obligations thereunder and are qualified in their
entirety by reference to such exhibits. A copy of the opinion of the Company’s counsel, relating to the validity of the Common
Shares, Pre-funded Warrants, and the Registered Warrants in connection with the Offering, is filed as Exhibit 5.1 to this Current Report
on Form 8-K.
Item
8.01 Other Events.
On
November 1, 2023, the Company issued a press release announcing the pricing of the Offering, a copy of which is attached hereto as Exhibit
99.1.
On
November 3, 2023, the Company issued a press release announcing the closing of the Offering, a copy of which is attached hereto as Exhibit
99.2.
Item
9.01. Financial Statements and Exhibits
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
|
GD
CULTURE GROUP LIMITED |
|
|
Date:
November 3, 2023 |
By: |
/s/
Xiaojian Wang |
|
Name: |
Xiaojian
Wang |
|
Title: |
Chief
Executive Officer, President and
Chairman of the Board |
4
Exhibit 4.1
PRE-FUNDED WARRANT
TO PURCHASE COMMON STOCK
GD CULTURE GROUP LIMITED
Warrant Shares: [number of shares of common
stock] |
Issue Date: November 3, 2023 |
THIS PRE-FUNDED
WARRANT TO PURCHASE COMMON STOCK (the “Warrant”) certifies that, for value received, [ ] or its assigns (the “Holder”)
is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after
the Issue Date (the “Initial Exercise Date”) until this Warrant is exercised in full (the “Termination Date”),
but not thereafter, to subscribe for and purchase from GD Culture Group Limited, a Nevada corporation (the “Company”), up
to [ ] shares of Common Stock (as defined below) of the Company (the shares of Common Stock issuable hereunder, the “Warrant Shares”).
The purchase price of a Warrant under this Warrant shall be $3.018.
Section 1.
Definitions. In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated in this
Section 1:
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Business
Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day
on which the Federal Reserve Bank of New York are authorized or required by law or other governmental action to close.
“Common
Stock” means the common stock of the Company, par value $0.0001, and any other class of securities into which such securities
may hereafter be reclassified or changed.
“Commission” means the United States Securities
and Exchange Commission.
“Exchange Act” means
the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Liens” means a
lien, charge pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction
“Common Stock
Equivalents” means any securities of the Company or the Subsidiaries which would entitle 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.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company,
joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding,
such as a deposition), whether commenced or threatened
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Trading Day” means a day on which the
principal Trading Market is open for Trading.
“Trading
Market” means any of the following markets or exchanges on which the Common Stock are listed or quoted for trading on the date
in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock
Exchange (or any successors to any of the foregoing).
Section 2. Exercise.
a)
Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any
time or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company (or such other office
or agency of the Company as it may designate by notice in writing to the registered Holder at the address of the Holder appearing on the
books of the Company) of a duly executed facsimile copy or PDF copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise
in the form annexed hereto, delivered in accordance with Section 5(i) (the “Notice of Exercise”). Within the earlier
of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined in Section 2(d)(i)
herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the Warrant Shares specified
in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United States bank, unless the cashless exercise
procedure specified in Section 2(c) below is specified in the applicable Notice of Exercise. No ink-original Notice of Exercise shall
be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise be required. Notwithstanding
anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company until the Holder
has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in full, in which case the Holder shall
surrender this Warrant to the Company for cancellation within three (3) Trading Days of the date on which the final Notice of Exercise
is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the total number of Warrant Shares
available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in an amount equal
to the applicable number of Warrant Shares purchased in connection with such partial exercise. The Holder and the Company shall maintain
records showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any
Notice of Exercise within one (1) Trading Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant,
acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder,
the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof.
For the avoidance of doubt, there is no
circumstance that would require the Company to net cash settle the Warrants.
For the avoidance of doubt, at any
time during which there is no effective registration statement for the resale of the Warrant Shares, the Company may settle the exercise
of the Warrant with unregistered Common Stock.
b) Exercise
Price. The aggregate exercise price of this Warrant, except for a nominal exercise price of $0.001 per Warrant, was pre-funded
to the Company on or prior to the Initial Exercise Date and, consequently, no additional consideration (other than the nominal
exercise price of $0.001 per Warrant) shall be required to be paid by the Holder to any Person to effect any exercise of this
Warrant. The Holder shall not be entitled to the return or refund of all, or any portion, of such pre-paid aggregate exercise price
under any circumstance or for any reason whatsoever, including in the event this Warrant shall not have been exercised prior to the
Termination Date. The remaining unpaid exercise price per Warrant under this Warrant shall be $0.001, subject to adjustment
hereunder (the “Exercise Price”).
c) Cashless
Exercise. This Warrant may also be exercised, in whole or in part, at such time by means of a “cashless exercise” in
which the Holder shall be entitled to receive a number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by
(A), where:
(A) = as applicable: (i) the VWAP
on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of Exercise is (1) both executed
and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section
2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b) of Regulation NMS
promulgated under the federal securities laws) on such Trading Day, (ii) at the option of the Holder, either (y) the VWAP on the Trading
Day immediately preceding the date of the applicable Notice of Exercise or (z) the Bid Price of the Common Stock on the principal Trading
Market as reported by Bloomberg L.P. (“Bloomberg”) as of the time of the Holder’s execution of the applicable
Notice of Exercise if such Notice of Exercise is executed during “regular trading hours” on a Trading Day and is delivered
within two (2) hours thereafter (including until two (2) hours after the close of “regular trading hours” on a Trading Day)
pursuant to Section 2(a) hereof, or (iii) the VWAP on the date of the applicable Notice of Exercise if the date of such Notice of Exercise
is a Trading Day and such Notice of Exercise is both executed and delivered pursuant to Section 2(a) hereof after the close of “regular
trading hours” on such Trading Day;
(B) = the Exercise Price of this Warrant,
as adjusted hereunder; and
(X) = the number of Warrant Shares
that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a
cash exercise rather than a cashless exercise.
If Warrant Shares
are issued in such a cashless exercise, the parties acknowledge and agree that, in accordance with Section 3(a)(9) of the Securities Act,
the Warrant Shares shall take on the registered characteristics of the Warrants being exercised. The Company agrees not to take any position
contrary to this Section 2(c).
“Bid
Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock
is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date)
on the Trading Market on which the Common Stock are then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m.
(New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price
of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then
listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock is then reported on The Pink Open Market (or a similar
organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of Common Stock so reported,
or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good
faith by the Purchasers of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees
and expenses of which shall be paid by the Company.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or
quoted on a Trading Market, the daily volume weighted average price of a share of Common Stock for such date (or the nearest preceding
date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30
a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average
price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the common Stock is not
then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock is then reported on The Pink Open Market (or a
similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of Common Stock so
reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected
in good faith by the Purchasers of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company,
the fees and expenses of which shall be paid by the Company.
Notwithstanding anything herein to
the contrary, on the Termination Date, this Warrant shall be automatically exercised via cashless exercise pursuant to this Section 2(c).
d) Mechanics of Exercise.
i.
Delivery of Warrant Upon Exercise. The Company shall cause the Warrant purchased hereunder to be transmitted by the transfer
agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with DTC through its Deposit
or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such system and either (A) there
is an effective registration statement permitting the issuance of the Warrant to or resale of the Warrant by the Holder or (B) this Warrant
is being exercised via cashless exercise, and otherwise by physical delivery of the Warrant Shares, registered in the Company’s
stock register in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to
such exercise to the address specified by the Holder in the Notice of Exercise by the date that is the earliest of (i) two (2) Trading
Days after the delivery to the Company of the Notice of Exercise, (ii) one (1) Trading Day after delivery of the aggregate Exercise Price
to the Company, and (iii) the number of Trading Days comprising the Standard Settlement Period after the delivery to the Company of the
Notice of Exercise (such date, the “Warrant Delivery Date”). Upon delivery of the Notice of Exercise, the Holder shall
be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has
been exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other
than in the case of a cashless exercise) is received within the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days
comprising the Standard Settlement Period following delivery of the Notice of Exercise. If the Company fails for any reason to deliver
to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery Date, the Company shall pay to the Holder,
in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of
the Common Stock on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the third
Trading Day after the Warrant Share Delivery Date) for each Trading Day after such Warrant Share Delivery Date until such Warrant Shares
are delivered or Holder rescinds such exercise. The Company agrees to maintain a transfer agent that is a participant in the FAST program
so long as this Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period” means the
standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common
Stock as in effect on the date of delivery of the Notice of Exercise. Notwithstanding the foregoing, with respect to any Notice(s) of
Exercise delivered on or prior to 9:00 a.m. (New York City time) on the Initial Exercise Date, the Company agrees to deliver, or cause
to be delivered, the Warrant Shares subject to such notice(s) by 4:00 p.m. (New York City time) on the Initial Exercise Date and the Initial
Exercise Date shall be the Warrant Share Delivery Date for purposes hereunder, provided that payment of the aggregate Exercise Price (other
than in the case of a cashless exercise) is received by such Warrant Shares Delivery Date. The Holder and any assignee, by acceptance
of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the
Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time will be less than the amount
stated on the face hereof.
ii. Delivery
of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder
and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant
evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall
in all other respects be identical with this Warrant.
iii. Rescission
Rights. If the Company fails to cause the transfer agent to transmit to the Holder the Warrant Shares pursuant to Section
2(d)(i) by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv. Compensation
for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to the Holder,
if the Company fails to cause the transfer agent to transmit to the Holder the Warrant Shares in accordance with the provisions of
Section 2(d)(i) above pursuant to an exercise on or before the Warrant Shares Delivery Date, and if after such date the Holder is
required by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise
purchases, Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated
receiving upon such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if
any, by which (x) the Holder’s total purchase price (including brokerage commissions, if any) for the Common Stock so
purchased exceeds (y) the amount obtained by multiplying(1) the number of Warrant Shares that the Company was required to deliver to
the Holder in connection with the exercise at issue times (2) the price at which the sell order giving rise to such purchase
obligation was executed, and (B) at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of
Warrant Shares for which such exercise was not honored (in which case such exercise shall be deemed rescinded) or deliver to the
Holder the number of shares of Common Stock that would have been issued had the Company timely complied with its exercise and
delivery obligations hereunder. For example, if the Holder purchases Common Stock having a total purchase price of $11,000 to cover
a Buy-In with respect to an attempted exercise of Warrants with an aggregate sale price giving rise to such purchase obligation of
$10,000, under clause (A) of the immediately preceding sentence the Company shall be required to pay the Holder $1,000. The Holder
shall provide the Company written notice indicating the amounts payable to the Holder in respect of the Buy-In and, upon request of
the Company, evidence of the amount of such loss. Nothing herein shall limit a Holder’s right to pursue any other remedies
available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive
relief with respect to the Company’s failure to timely deliver Common Stock upon exercise of the Warrant as required pursuant
to the terms hereof.
v. No
Fractional Shares of Common Stock or Scrip. No fractional shares of Common Stock or scrip representing fractional shares of
Common Stock shall be issued upon the exercise of this Warrant. As to any fraction of a share of Common Stock which the Holder would
otherwise be entitled to purchase upon such exercise, the Company shall, at its election, either pay a cash adjustment in respect of
such final fraction in an amount equal to such fraction multiplied by the Exercise Price or round up to the next whole share of
Common Stock.
vi. Charges,
Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other
incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company,
and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided, however,
that in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered
for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may require, as
a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto, and this Warrant shall
be surrendered to the Company and, if any portion of this Warrant remains unexercised, a new Warrant in the form hereof shall be
delivered to the assignee. The Company shall pay all transfer agent fees required for same- day processing of any Notice of Exercise
and all fees to DTC (or another established clearing corporation performing similar functions) required for same-day electronic
delivery of the Warrant Shares.
vii. Closing
of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this
Warrant, pursuant to the terms hereof.
viii. Holder’s
Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise
all or any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance upon exercise
as set forth on the applicable Notice of Exercise, the Holder (together with (i) the Holder’s Affiliates, (ii) any other Persons
acting as a group together with the Holder or any of the Holder’s Affiliates and (iii) any other Persons whose beneficial ownership
of the Common Stock would or could be aggregated with the Holder’s for purposes of Section 13(d) (such Persons, “Attribution
Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the
foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall
include the number of shares of Common Stock underlying such Warrant issuable upon exercise of this Warrant with respect to which such
determination is being made, but shall exclude the shares of Common Stock underlying the Warrant which would be issuable upon (i) exercise
of the remaining, nonexercised portion of this Warrant beneficially owned by the Holder or any of its Affiliates or Attribution Parties
and (ii) exercise or conversion of the unexercised or nonconverted portion of any other securities of the Company (including, without
limitation, any other Common Stock Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained
herein beneficially owned by the Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence,
for purposes of this Section 2(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the
rules and regulations promulgated thereunder, it being acknowledged by the Holder that the Company is not representing to the Holder that
such calculation is in compliance with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required
to be filed in accordance therewith. To the extent that the limitation contained in this Section 2(e) applies, the determination of whether
this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties)
and of which portion of this Warrant is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise
shall be deemed to be the Holder’s determination of whether this Warrant is exercisable (in relation to other securities owned by
the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable, in each case subject
to the Beneficial Ownership Limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination.
In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the
Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 2(e), in determining the number of outstanding
shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s
most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Company
or (C) a more recent written notice by the Company or the transfer agent setting forth the number of shares of Common Stock outstanding.
Upon the written or oral request of a Holder, the Company shall within one Trading Day confirm orally and in writing to the Holder the
number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after
giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates or Attribution
Parties since the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership
Limitation” shall be 4.99% of the number of shares of Common Stock outstanding immediately after giving effect to the issuance
of Common Stock underlying the Warrant issuable upon exercise of this Warrant. The Holder, upon notice to the Company, may increase or
decrease the Beneficial Ownership Limitation provisions of this Section 2(e), provided that the Beneficial Ownership Limitation in no
event exceeds 4.99% of the number of shares of Common Stock outstanding immediately after giving effect to the issuance of Common Stock
upon exercise of this Warrant held by the Holder and the provisions of this Section 2(e) shall continue to apply. Any increase in the
Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The provisions
of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 2(e)
to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation
herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations
contained in this paragraph shall apply to a successor holder of this Warrant. If the Warrant is unexercisable as a result of the Holder’s
Beneficial Ownership Limitation, no alternate consideration is owing to the Holder. So long as this Warrant is outstanding, in no event
shall the Holder or the Attribution Parties hold more than 4.99% of the voting power of the Company.
Section 3. Certain Adjustments.
a) Stock
Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise
makes a distribution or distributions on its Common Stock or any other equity or equity equivalent securities payable in Common
Stock (which, for avoidance of doubt, shall not include any Common Stock upon exercise of this Warrant), as applicable, (ii)
subdivides outstanding shares of Common Stock into a larger number of shares of Common Stock, as applicable, (iii) combines
(including by way of reverse stock split) outstanding shares of Common Stock into a smaller number of shares of Common Stock, as
applicable, or (iv) issues by reclassification of shares of Common Stock or any stock capital of the Company, as applicable, then in
each case the Exercise Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock
(excluding treasury stock, if any) outstanding immediately before such event and of which the denominator shall be the number of
shares of Common Stock outstanding immediately after such event, and the number of shares of Common Stock issuable upon exercise of
this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant shall remain unchanged. Any
adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for the determination of
stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in
the case of a subdivision, combination or re-classification.
b) [Intentionally
Omitted].
c) Pro
Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or other
distribution of its assets (or rights to acquire its assets) to holders of Common Stock, by way of return of capital or otherwise
(including, without limitation, any distribution of cash, common stock or other securities, property or options by way of a
dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a
“Distribution”), at any time after the issuance of this Warrant, then, in each such case, the Holder shall be
entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder had
held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on
exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date of which a record is
taken for such Distribution, or, if no such record is taken, the date as of which the record holders of Common Stock are to be
determined for the participation in such Distribution (provided, however, to the extent that the Holder’s right to participate
in any such Distribution would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be
entitled to participate in such Distribution to such extent (or in the beneficial ownership of any Common Stock as a result of such
Distribution to such extent) and the portion of such Distribution shall be held in abeyance for the benefit of the Holder until such
time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
d)
[Intentionally Omitted].
e) Calculations.
All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share of Common Stock, as the case
may be. For purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall
be the sum of the number of shares of the Common stock (excluding treasury stocks, if any) issued and outstanding.
f) Notice to Holder.
i. Adjustment
to Exercise Price. Whenever the Exercise Price, the number of shares of Common Stock, the subject of each Warrant, or the number
of Warrants is adjusted pursuant to any provision of this Section 3, the Company shall promptly deliver to the Holder by facsimile
or email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number of Warrants or
the number of shares of Common Stock, the subject of each Warrant and setting forth a brief statement of the facts requiring such
adjustment.
ii. Notice
to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the
Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the
Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any capital
stock of any class or of any rights, , or (D) the Company shall authorize the voluntary or involuntary dissolution, liquidation or
winding up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by facsimile or email to the
Holder at its last facsimile number or email address as it shall appear upon the Warrant Register of the Company, at least 20
calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a
record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be
taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption,
rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or
stock exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of
record shall be entitled to exchange their Common Stock for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer or stock exchange; provided that the failure to deliver such notice or any
defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified in such
notice. To the extent that any notice provided in this Warrant constitutes, or contains, material, non-public information regarding
the Company or any of the Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current
Report on Form 8-K. The Holder shall remain entitled to exercise this Warrant during the period commencing on the date of such
notice to the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
g)
Voluntary Adjustment by Company. Subject to the rules and regulations of the Trading Market and requirements of any applicable
law, the Company may at any time during the term of this Warrant, subject to the prior written consent of the Holder, reduce the then
current Exercise Price to any amount and for any period of time deemed appropriate by the board of directors of the Company.
Section 4. Transfer of Warrant.
a) Transferability.
If this Warrant is to be transferred, the Holder shall surrender this Warrant to the Company, whereupon the Company will forthwith
issue and deliver upon the order of the Holder a new Warrant (in accordance with Section 4(d)), registered as the Holder may
request, representing the right to purchase the number of Warrant Shares being transferred by the Holder and, if less than the total
number of Warrant Shares then underlying this Warrant is being transferred, a new Warrant (in accordance with Section 4(d)) to the
Holder representing the right to purchase the number of Warrant Shares not being transferred.
b) Lost,
Stolen or Mutilated Warrant. Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant (as to which a written certification and the indemnification contemplated below shall
suffice as such evidence), and, in the case of loss, theft or destruction, of any indemnification undertaking by the Holder to the
Company in customary and reasonable form and, in the case of mutilation, upon surrender and cancellation of this Warrant, the
Company shall execute and deliver to the Holder a new Warrant (in accordance with Section 4(d)) representing the right to purchase
the Warrant Shares then underlying this Warrant.
c) Exchangeable
for Multiple Warrants. This Warrant is exchangeable, upon the surrender hereof by the Holder at the principal office of the
Company, for a new Warrant or Warrants (in accordance with Section 4(d)) representing in the aggregate the right to purchase the
number of Warrant Shares then underlying this Warrant, and each such new Warrant will represent the right to purchase such portion
of such Warrant Shares as is designated by the Holder at the time of such surrender; provided, however, no warrants for fractional
shares of Common Stock shall be given.
d) Issuance
of New Warrants. Whenever the Company is required to issue a new Warrant pursuant to the terms of this Warrant, such new Warrant
(i) shall be of like tenor with this Warrant, (ii) shall represent, as indicated on the face of such new Warrant, the right to
purchase the Warrant Shares then underlying this Warrant (or in the case of a new Warrant being issued pursuant to Section 4(a) or
Section 4(c), the Warrant Shares designated by the Holder which, when added to the number of shares of Common Stock underlying the
other new Warrants issued in connection with such issuance, does not exceed the number of Warrant Shares then underlying this
Warrant), (iii) shall have an issuance date, as indicated on the face of such new Warrant which is the same as the Issuance Date,
and (iv) shall have the same rights and conditions as this Warrant.
Section 5. Miscellaneous.
a) Currency.
Unless otherwise indicated, all dollar amounts referred to in this Warrant are in United States Dollars (“U.S.
Dollars”). All amounts owing under this Warrant shall be paid in U.S. Dollars.
b) No
Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights,
dividends or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as
expressly set forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless
exercise” pursuant to Section 2(c) or to receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv) herein, in no
event shall the Company be required to net cash settle an exercise of this Warrant.
c) Loss,
Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant
Shares, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the
Warrant, shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if
mutilated, the Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in
lieu of such Warrant or stock certificate.
d) Saturdays,
Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or
granted herein shall not be a Business Day, then, such action may be taken or such right may be exercised on the next succeeding
Business Day.
e) Authorized Shares.
The Company covenants
that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a sufficient number
of shares of Common Stock to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant.
The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with the
duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all such
reasonable action as may be necessary to assure that such Warrant Shares may be issued, and the Warrant Shares delivered, as provided
herein without violation of any applicable law or regulation, or of any requirements of the Trading Market upon which the Common Stock
may be listed. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase rights represented
by this Warrant will, upon exercise of the purchase rights represented by this Warrant and payment for such Warrant Shares in accordance
herewith, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, Liens and charges created by the Company
in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue).
Except and to
the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate
of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or
any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate
to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the
Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior
to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly and
legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable efforts
to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may be, necessary
to enable the Company to perform its obligations under this Warrant.
Before taking
any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise
Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public
regulatory body or bodies having jurisdiction thereof.
f) Jurisdiction.
All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be governed by and
construed and enforced in accordance with the laws of the State of New York, without giving effect to conflict of laws principles
thereof. Each party hereby agrees that any action, proceeding or claim against it arising out of, or relating in any way to this
Warrant shall be brought and enforced in the New York Supreme Court, County of New York, or in the United States District Court for
the Southern District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. Each party
hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum. Any such process or
summons to be served upon each party may be served by transmitting a copy thereof by registered or certified mail, return receipt
requested, postage prepaid, addressed to it at the address set forth in Section 5(i) hereof. Such mailing shall be deemed personal
service and shall be legal and binding upon the receiving party in any action, proceeding or claim. Each of the Company and the
Holder agrees that the prevailing party(ies) in any such action shall be entitled to recover from the other party(ies) all of its
reasonable attorneys’ fees and expenses relating to such action or proceeding and/or incurred in connection with the
preparation therefor. Each party (on its behalf and, to the extent permitted by applicable law, on behalf of its stockholders and
affiliates) hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any
legal proceeding arising out of or relating to this Warrant or the transactions contemplated here by respective affiliates,
directors, officers, Stockholders, partners, members, employees or agents.
g) Restrictions.
The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered and the Holder does
not utilize cashless exercise, will have restrictions upon resale imposed by state and federal or foreign securities laws.
h) Nonwaiver
and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate
as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision
of this Warrant, if the Company willfully and knowingly fails to comply with any provision of this Warrant, which results in any
material damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and
expenses including, but not limited to, reasonable attorneys’ fees, including those of appellate Proceedings, incurred by the
Holder in collecting any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
i) Notices. Whenever notice is required to be given under this Warrant, unless otherwise provided herein, such notice shall be given in accordance with Section 5.4 of the Securities Purchase Agreement, dated as of October 31, 2023, by and between the Company and the Holder (the “Securities Purchase Agreement”). The Company shall provide the Holder with prompt written notice of all actions taken pursuant to this Warrant, including in reasonable detail a description of such action and the reason therefor. Without limiting the generality of the foregoing, the Company will give written notice to the Holder (i) as soon as practicable upon each adjustment of the Exercise Price and the number of Warrant Shares, setting forth in reasonable detail, and certifying, the calculation of such adjustment(s) and (ii) at least fifteen (15) days prior to the date on which the Company closes its books or takes a record (A) with respect to any dividend or distribution upon the Common Stock, (B) with respect to any grants, issuances or sales of any options, convertible securities or rights to purchase stock, warrants, securities, indebtedness, or other property pro rata to holders of Common Stock or (C) for determining rights to vote with respect to any dissolution or liquidation, provided in each case that such information (to the extent it constitutes, or contains, material, non-public information regarding the Company shall be made known to the public prior to or in conjunction with such notice being provided to the Holder. It is expressly understood and agreed that the time of execution specified by the Holder in each Exercise Notice shall be definitive and may not be disputed or challenged by the Company.
j)
Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant
to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the
Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company
or by creditors of the Company.
k)
Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to
assert the defense in any action for specific performance that a remedy at law would be adequate.
l) Successors
and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to
the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of
Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall
be enforceable by the Holder or holder of Warrant Shares.
m)
Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company
and the Holder.
n) Severability.
Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
o) Expense
Reimbursement. The Holder shall be reimbursed by the Company for any fees charged to the Holder by the transfer agent in
connection with the issuance or holding or sale of the Common Stock, and/or Warrant Shares.
p)
Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be
deemed a part of this Warrant.
********************
[Signature Page Follows])
IN WITNESS WHEREOF, the Company has caused
this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
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[Signature Page to Pre-Funded Warrant]
EXHIBIT A
NOTICE OF EXERCISE
TO: [ ]
(1) The
undersigned hereby elects to purchase ________Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if
exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if
any.
(2) Payment shall take the form of (check applicable box):
☐ in lawful money of the United States; or
☐
if permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection
2(c), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure
set forth in subsection 2(c).
(3) Company Wire Instructions:
Account name:
Account Number:
SWIFT Code:
Bank name:
Bank address: BSB:
(4) Please
issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
The Warrant Shares shall be delivered to the following DWAC
Account Number:
[SIGNATURE OF HOLDER]
Name of Investing
Entity: ________Signature of Authorized Signatory of Investing Entity: _____________
Name of Authorized Signatory: _________Title of Authorized Signatory: _________Date: __
Exhibit 4.2
FORM OF COMMON
STOCK PURCHASE WARRANT
Date of Issuance: November 3, 2023 (“Issuance Date”)
GD Culture Group Limited,
a Nevada corporation (the “Company”), hereby certifies that, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, [●], the registered holder hereof or its permitted assigns (the “Holder”),
is entitled, subject to the terms set forth below, to purchase from the Company, at the Exercise Price (as defined below) then in effect,
upon exercise of this Common Stock Purchase Warrant (including any Common Stock Purchase Warrants issued in exchange, transfer or replacement
hereof, the “Warrant”), at any time or times on or after the Issuance Date, but not after 11:59 p.m., New York time,
on the Expiration Date (as defined below), up to [●] (subject to adjustment as provided herein) shares of common stock of the Company,
par value $0.0001 (the “Common Stock”) (as subject to adjustment hereunder, the “Warrant Shares”).
Except as otherwise defined herein, capitalized terms in this Warrant shall have the meanings set forth in Section 17. This Warrant is
issued to Holder pursuant to that certain Securities Purchase Agreement, effective as of October 31, 2023, by and between the Company
and the Holder (the “Securities Purchase Agreement”). This Warrant and the shares of Common Stock exercisable hereunder
have been registered pursuant to the registration statement on Form S-3 (File No. 333-254366) filed with Commission, which became effective
on March 26, 2021.
1. EXERCISE
OF WARRANT.
(a) Mechanics
of Exercise. Subject to the terms and conditions hereof (including, without limitation, the limitations set forth in Section 1(f)),
this Warrant may be exercised by the Holder on any day on or after the Issuance Date in whole or in part, by delivery (whether via facsimile
or otherwise) of a written notice, in the form attached hereto as Exhibit A (the “Exercise Notice”),
of the Holder’s election to exercise this Warrant. Within one (1) Trading Day following an exercise of this Warrant as aforesaid,
the Holder shall deliver payment to the Company of an amount equal to the Exercise Price in effect on the date of such exercise multiplied
by the number of Warrant Shares as to which this Warrant was so exercised (in respect of such specific exercise, the “Aggregate
Exercise Price”) in cash or via wire transfer of immediately available funds if the Holder did not notify the Company in such
Exercise Notice that such exercise was made pursuant to a Cashless Exercise (as defined in Section 1(d)). The Holder shall not be required
to deliver the original of this Warrant in order to effect an exercise hereunder. Execution and delivery of an Exercise Notice with respect
to less than all of the Warrant Shares shall have the same effect as cancellation of the original of this Warrant certificate and issuance
of a new Warrant certificate evidencing the right to purchase the remaining number of Warrant Shares. Execution and delivery of an Exercise
Notice for all of the then-remaining Warrant Shares shall have the same effect as cancellation of the original of this Warrant certificate
after delivery of the Warrant Shares in accordance with the terms hereof. On or before the first (1st) Trading Day following the date
on which the Company has received an Exercise Notice, the Company shall transmit by facsimile or e-mail an acknowledgment of confirmation
of receipt of such Exercise Notice, in the form attached hereto as Exhibit B, to the Holder and the Company’s transfer
agent (the “Transfer Agent”). On or before the second (2nd) Trading Day following the date on which the Company has
received such Exercise Notice (the “Required Delivery Date”), the Company shall (i) provided that the Transfer Agent
is participating in The Depository Trust Company (“DTC”) Fast Automated Securities Transfer Program (which the Company
shall cause the Transfer Agent to do at Holder’s request), upon the request of the Holder, credit such aggregate number of shares
of Common Stock to which the Holder is entitled pursuant to such exercise to the Holder’s or its designee’s balance account
with DTC through its Deposit or Withdrawal at Custodian system, or (ii) if the Transfer Agent is not participating in the DTC Fast Automated
Securities Transfer Program, issue and deliver to the Holder or, at the Holder’s instruction pursuant to the Exercise Notice, the
Holder’s agent or designee, in each case, sent by reputable overnight courier to the address as specified in the applicable Exercise
Notice, a certificate, registered in the Company’s registrar in the name of the Holder or its designee (as indicated in the applicable
Exercise Notice), for the number of shares of the Common Stock to which the Holder is entitled pursuant to such exercise. Upon delivery
of an Exercise Notice, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares
with respect to which this Warrant has been exercised, irrespective of the date such Warrant Shares are credited to the Holder’s
DTC account or the date of delivery of the certificates evidencing such Warrant Shares (as the case may be). If this Warrant is submitted
in connection with any exercise pursuant to this Section 1(a) and the number of Warrant Shares represented by this Warrant is greater
than the number of Warrant Shares being acquired upon an exercise, then, at the request of the Holder and upon surrender hereof by the
Holder at the principal office of the Company, the Company shall as soon as practicable and in no event later than three (3) Business
Days after any exercise and at its own expense, issue and deliver to the Holder (or its designee) a new Warrant (in accordance with Section
7(d)) representing the right to purchase the number of Warrant Shares purchasable immediately prior to such exercise under this Warrant,
less the number of Warrant Shares with respect to which this Warrant is exercised. No fractional shares of Common Stock or scrip representing
fractional shares of Common Stock shall be issued upon the exercise of this Warrant, but rather the number of shares of Common Stock to
be issued shall be rounded up to the nearest whole number. The Company shall pay any and all taxes and fees which may be payable with
respect to the issuance and delivery of Warrant Shares upon exercise of this Warrant.
(b) Exercise
Price. For purposes of this Warrant, “Exercise Price” means $3.019, subject to adjustment as provided herein.
(c) Company’s
Failure to Timely Deliver Securities. If the Company fails to issue and deliver (or cause to be delivered) to the Holder by the Required
Delivery Date a certificate representing the Warrant Shares or credit the balance account of Holder or Holder’s nominee with DTC
for such number of Warrant Shares so delivered to the Company, then, in addition to all other remedies available to Holder, at the sole
discretion of Holder, the Company shall:
(i) pay
in cash to Holder on each Trading Day after the Required Delivery Date that the issuance or credit of such Warrant Shares is not timely
effected an amount equal to 1% of the product of (A) the number of shares of Common Stock not so delivered or credited (as the case may
be) to Holder or Holder’s nominee multiplied by (B) the Closing Sale Price of the Common Stock on the Trading Day immediately preceding
the Required Delivery Date; or
(A)
if on or after the Required Delivery Date, Holder (or any other Person in respect, or on behalf, of Holder) purchases (in an open market
transaction or otherwise) Common Stock (“Replacement Common Stock”) to deliver in satisfaction of a sale by Holder
of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion
of the number of shares of Common Stock, that Holder so anticipated receiving from the Company without any restrictive legend, then, within
five (5) Trading Days after Holder’s request and in Holder’s sole discretion, either (A) pay cash to Holder in an amount equal
to Holder’s total purchase price (including brokerage commissions and other out-of-pocket expenses, if any) for the Replacement
Common Stock (the “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit
Holder’s balance account shall terminate and such Common Stock shall be cancelled, or (B) promptly honor its obligation to so deliver
to Holder a certificate or certificates or credit Holder’s DTC account representing such number of shares of Common Stock that would
have been so delivered if the Company timely complied with its obligations hereunder and pay cash to Holder in an amount equal to the
excess (if any) of the Buy-In Price over the product of (1) such number of shares of Common Stock that the Company was required to deliver
to Holder by the Required Delivery Date multiplied by (2) the lowest Closing Sale Price of the Common Stock on any Trading Day during
the period commencing on the date Holder purchased Replacement Common Stock and ending on the date of such delivery and payment under
this clause (ii).
To the extent permitted by law, the Company’s
obligations to issue and deliver the shares of Common Stock upon exercise of the Warrant in accordance with the terms hereof are absolute
and unconditional, irrespective of any action or inaction by the Holder to enforce the same, any waiver or consent with respect to any
provision hereof, the recovery of any judgment against any person or any action to enforce the same, or any setoff, counterclaim, recoupment,
limitation or termination, or any breach or alleged breach by the Holder or any other person of any obligation to the Company or any violation
or alleged violation of law by the Holder or any other person, and irrespective of any other circumstance that might otherwise limit such
obligation of the Company to the Holder in connection with the issuance of the shares of Common Stock. Nothing herein shall limit the
Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree
of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver the shares of Common Stock
issuable upon exercise of this Warrant as required pursuant to the terms hereof.
(d) Cashless
Exercise. The Holder may in its sole discretion (and without limiting the Holder’s rights and remedies contained herein or in
any of the other Transaction Documents (as defined in the Securities Purchase Agreement)), exercise this Warrant in whole or in part and,
in lieu of making the cash payment otherwise contemplated to be made to the Company upon such exercise in payment of the Aggregate Exercise
Price, elect instead to receive upon such exercise the “Net Number” of shares of Common Stock determined according to the
following formula (a “Cashless Exercise”):
Net Number = (A x B) / C
For purposes of the foregoing formulas:
| A= | The total number of shares of Common Stock with respect to which this Warrant is then being exercised. |
| B= | The Black Scholes Value (as defined in Section 17 herein). |
| C= | The Closing Bid Price of the Common Stock as of two (2) Trading Days prior to the time of such exercise (as such Closing Bid Price
is defined in Section 17 herein), but in any event not less than $0.01 (as may be adjusted for stock dividends, subdivisions, or combinations
in the manner described in Section 2(a) herein). |
If Warrant Shares are issued in such a cashless
exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the Securities Act, the Warrant Shares shall take
on the characteristics of the Warrant being exercised, and the holding period of the Warrant Shares being issued may be tacked on to the
holding period of this Warrant. Assuming (i) the Holder is not an Affiliate of the Company, and (ii) all of the applicable conditions
of Rule 144 promulgated under the Securities Act with respect to Holder and the Warrant Shares are met in the case of such a cashless
exercise, the Company agrees that the Company will use its best efforts to cause the removal of the legend from such Warrant Shares (including
by delivering an opinion of the Company’s counsel to the Company’s transfer agent at its own expense to ensure the foregoing),
and the Company agrees that the Holder is under no obligation to sell the Warrant Shares issuable upon the exercise of the Warrant prior
to removing the legend. The Company agrees not to take any position contrary to this Section 1(d).
(e) Disputes.
In the case of a dispute as to the determination of the Exercise Price or the arithmetic calculation of the number of Warrant Shares to
be issued pursuant to the terms hereof (including, without limitation, the Net Number), the Company shall promptly issue to the Holder
the number of Warrant Shares that are not disputed, provided that following such issuance to Holder such dispute shall be resolved in
accordance with Section 14.
(f) Limitations
on Exercises and Exchanges. Notwithstanding anything to the contrary contained in this Warrant, this Warrant shall not be exercisable
or exchangeable by the Holder hereof to the extent (but only to the extent) that the Holder or any of its affiliates would beneficially
own in excess of 4.99% (or, upon election by a Holder prior to the issuance of any Warrants, 9.99%) of the number of shares of Common
Stock outstanding after giving effect to the issuance of shares of Common Stock underlying the Warrant issuable upon exercise of the Warrants
calculated in accordance with Section 13(d) of the 1934 Act (as defined in the Securities Purchase Agreement) (the “Maximum Percentage”).
To the extent the above limitation applies, the determination of whether this Warrant shall be exercisable or exchangeable (vis-à-vis
other convertible, exercisable or exchangeable securities owned by the Holder or any of its affiliates) and of which such securities shall
be exercisable or exchangeable (as among all such securities owned by the Holder) shall, subject to such Maximum Percentage limitation,
be determined on the basis of the first submission to the Company for conversion, exercise or exchange (as the case may be). No prior
inability to exercise or exchange this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions
of this paragraph with respect to any subsequent determination of exercisability or exchangeability. For the purposes of this paragraph,
beneficial ownership and all determinations and calculations (including, without limitation, with respect to calculations of percentage
ownership) shall be determined in accordance with Section 13(d) of the 1934 Act and the rules and regulations promulgated thereunder.
The provisions of this paragraph shall be implemented in a manner otherwise than in strict conformity with the terms of this paragraph
to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Percentage beneficial
ownership limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such Maximum
Percentage limitation. The limitations contained in this paragraph shall apply to a successor Holder of this Warrant. The holders of Common
Stock shall be third party beneficiaries of this paragraph and the Company may not waive this paragraph without the consent of holders
of a majority of its Common Stock. For any reason at any time, upon the written or oral request of the Holder, the Company shall within
two (2) Business Days confirm orally and in writing to the Holder the number of Common Stock then outstanding, including by virtue of
any prior conversion or exercise or exchange of convertible or exercisable or exchangeable securities into Common Stock, including, without
limitation, pursuant to this Warrant or securities issued pursuant to the Securities Purchase Agreement.
(g) Reservation
of shares of Common Stock; Insufficient Authorized share of Common Stock. The Company shall initially reserve out of its authorized
and unissued shares of Common Stock a number of shares of Common Stock equal to 200% of the maximum number of shares of Common Stock underlying
the Warrant issuable to satisfy the Company’s obligations to issue shares of Common Stock hereunder, and the Company shall at all
times keep reserved for issuance under this Warrant a number of shares of Common Stock equal to 200% of the maximum number of shares of
Common Stock underlying the Warrant issuable to satisfy the Company’s obligation to issue shares of Common Stock hereunder.
(h) [Reserved].
2. ADJUSTMENT
OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES. The Exercise Price and number of Warrant Shares issuable upon exercise of this Warrant
are subject to adjustment from time to time as set forth in this Section 2.
(a) Stock
Dividends and Splits. Without limiting any provision of Section 4, if the Company, at any time on or after the date of the Securities
Purchase Agreement, (i) pays a stock dividend on one or more classes of its then outstanding Common Stock or otherwise makes a distribution
on any class of capital stock that is payable in shares of Common Stock, (ii) subdivides (by any share split, stock dividend, recapitalization
or otherwise) one or more classes of its then outstanding Common Stock into a larger number of shares of Common Stock or (iii) combines
(by combination, reverse stock split or otherwise) one or more classes of its then outstanding Common Stock into a smaller number of shares
of Common Stock, then in each such case the Exercise Price shall be multiplied by a fraction of which the numerator shall be the number
of share of Common Stock outstanding immediately before such event and of which the denominator shall be the number of shares of Common
Stock outstanding immediately after such event. Any adjustment made pursuant to clause (i) of this paragraph shall become effective immediately
after the record date for the determination of stockholders entitled to receive such dividend or distribution, and any adjustment pursuant
to clause (ii) or (iii) of this paragraph shall become effective immediately after the effective date of such subdivision or combination.
If any event requiring an adjustment under this paragraph occurs during the period that an Exercise Price is calculated hereunder, then
the calculation of such Exercise Price shall be adjusted appropriately to reflect such event.
(b) Adjustment
Upon Issuance of Common Stock. If, during the Restricted Period (as defined in the Securities Purchase Agreement), the Company effects
an Subsequent Financing (as defined in the Securities Purchase Agreement), or in accordance with this Section 2 is deemed to have effected
an Subsequent Financing, any shares of Common Stock (including the issuance or sale of Common Stock owned or held by or for the account
of the Company) issued or sold or deemed to have been issued or sold) for a consideration per share of Common Stock (the “New
Issuance Price”) less than a price equal to the Exercise Price in effect immediately prior to such issue or sale or deemed issuance
or sale (such Exercise Price then in effect is referred to as the “Applicable Price”) (the foregoing a “Dilutive
Issuance”), then immediately after such Dilutive Issuance, the Exercise Price then in effect shall be reduced (and in no event
increased) to the price per share of Common Stock as determined in accordance with the following formula:
EP2 = EP1 x (A + B) / (A + C)
For purposes of the foregoing formula:
| A= | The total number of Warrant Shares with respect to which this Warrant may be exercised. |
| B= | The total number of shares of Common Stock that would be issued or issuable under the Dilutive Issuance if issued at a per share of
Common Stock equal to EP1. |
| C= | The total number of shares of Common Stock actually issued or issuable under the Dilutive Issuance. |
| EP1= | The Exercise Price in effect immediately prior to a Dilutive Issuance. |
| EP2= | The Exercise Price immediately after such Dilutive Issuance; provided, however, that such price shall in no event be less than $0.01
per share of Common Stock (as may be adjusted for stock dividends, subdivisions, or combinations in the manner described in Section 2(a)
herein, the “Floor Price”); |
provided, that if such issuance or sale
(or deemed issuance or sale) was without consideration, then the Company shall be deemed to have received the Floor Price for each such
share of Common Stock so issued or deemed to be issued. For all purposes of the foregoing (including, without limitation, determining
the adjusted Exercise Price and consideration per share under this Section 2(c)), the following shall be applicable:
(i) Issuance
of Options. If, during the Restricted Period, the Company in any manner grants or sells any Options and the lowest price per share
of Common Stock for which one share of Common Stock is issuable upon the exercise of any such Option or upon conversion, exercise or exchange
of any Convertible Securities issuable upon exercise of any such Option is less than the Applicable Price, then such shares of Common
Stock shall be deemed to be outstanding and to have been issued and sold by the Company at the time of the granting or sale of such Option
for such price per share of Common Stock. For purposes of this Section 2(c)(i), the “lowest price per share of Common Stock for
which one share of Common Stock is issuable upon the exercise of any such Options or upon conversion, exercise or exchange of any Convertible
Securities issuable upon exercise of any such Option” shall be equal to (A) the sum of the lowest amounts of consideration (if any)
received or receivable by the Company with respect to any one share of Common Stock upon the granting or sale of such Option, upon exercise
of such Option and upon conversion, exercise or exchange of any Convertible Security issuable upon exercise of such Option minus (B) the
sum of all amounts paid or payable to the holder of such Option (or any other Person) upon the granting or sale of such Option, upon exercise
of such Option and upon conversion, exercise or exchange of any Convertible Security issuable upon exercise of such Option plus the value
of any other consideration received or receivable by, or benefit conferred on, the holder of such Option (or any other Person). Except
as contemplated below, no further adjustment of the Exercise Price shall be made upon the actual issuance of such shares of Common Stock
or of such Convertible Securities upon the exercise of such Options or upon the actual issuance of such shares of Common Stock upon conversion,
exercise or exchange of such Convertible Securities.
(ii) Issuance
of Convertible Securities. If, during the Restricted Period, the Company in any manner issues or sells any Convertible Securities
and the lowest price per share of Common Stock for which one share of Common Stock is issuable upon the conversion, exercise or exchange
thereof is less than the Applicable Price, then such shares of Common Stock shall be deemed to be outstanding and to have been issued
and sold by the Company at the time of the issuance or sale of such Convertible Securities for such price per share. For the purposes
of this Section 2(c)(ii), the “lowest price per share of Common Stock for which one share of Common Stock is issuable upon the conversion,
exercise or exchange thereof” shall be equal to (A) the sum of the lowest amounts of consideration (if any) received or receivable
by the Company with respect to one share of Common Stock upon the issuance or sale of the Convertible Security and upon conversion, exercise
or exchange of such Convertible Security minus (B) the sum of all amounts paid or payable to the holder of such Convertible Security (or
any other Person) upon the issuance or sale of such Convertible Security plus the value of any other consideration received or receivable
by, or benefit conferred on, the holder of such Convertible Security (or any other Person). Except as contemplated below, no further adjustment
of the Exercise Price shall be made upon the actual issuance of such shares of Common Stock upon conversion, exercise or exchange of such
Convertible Securities, and if any such issue or sale of such Convertible Securities is made upon exercise of any Options for which adjustment
of this Warrant has been or is to be made pursuant to other provisions of this Section 2(c), except as contemplated below, no further
adjustment of the Exercise Price shall be made by reason of such issue or sale.
(iii) Change
in Option Price or Rate of Conversion. If, during the Restricted Period, the purchase or exercise price provided for in any Options,
the additional consideration, if any, payable upon the issue, conversion, exercise or exchange of any Convertible Securities, or the rate
at which any Convertible Securities are convertible into or exercisable or exchangeable for shares of Common Stock increases or decreases
at any time, the Exercise Price in effect at the time of such increase or decrease shall be adjusted to the Exercise Price which would
have been in effect at such time had such Options or Convertible Securities provided for such increased or decreased purchase price, additional
consideration or increased or decreased conversion rate, as the case may be, at the time initially granted, issued or sold. For purposes
of this Section 2(c)(iii), if the terms of any Option or Convertible Security that was outstanding as of the date of issuance of this
Warrant are increased or decreased in the manner described in the immediately preceding sentence, then such Option or Convertible Security
and shares of Common Stock deemed issuable upon exercise, conversion or exchange thereof shall be deemed to have been issued as of the
date of such increase or decrease. No adjustment pursuant to this Section 2(c) shall be made if such adjustment would result in an increase
of the Exercise Price then in effect.
(iv) Calculation
of Consideration Received. If, during the Restricted Period, any Option or Convertible Security is issued in connection with the issuance
or sale or deemed issuance or sale of any other securities of the Company, together comprising one integrated transaction, (A) such Option
or Convertible Security (as applicable) will be deemed to have been issued for consideration equal to the Black Scholes Value –
Consideration thereof and the other securities issued shares of Common Stock, Options or Convertible Securities are issued or sold or
deemed to have been issued or sold for cash, the consideration received therefor will be deemed to be the net amount of consideration
received by the Company therefor. If any Common Stock, Options or Convertible Securities are issued or sold for a consideration other
than cash, the amount of such consideration received by the Company will be the fair value of such consideration, except where such consideration
consists of publicly traded securities, in which case the amount of consideration received by the Company for such securities will be
the arithmetic average of the VWAPs of such security for each of the five (5) Trading Days immediately preceding the date of receipt.
If any Common Stock, Options or Convertible Securities are issued to the owners of the non-surviving entity in connection with any merger
in which the Company is the surviving entity, the amount of consideration therefor will be deemed to be the fair value of such portion
of the net assets and business of the non-surviving entity as is attributable to such Common Stock, Options or Convertible Securities,
as the case may be. The fair value of any consideration other than cash or publicly traded securities will be determined jointly by the
Company and the Holder. If such parties are unable to reach agreement within ten (10) days after the occurrence of an event requiring
valuation (the “Valuation Event”), the fair value of such consideration will be determined within five (5) Trading
Days after the tenth (10th) day following such Valuation Event by an independent, reputable appraiser jointly selected by the Company
and the Holder. The determination of such appraiser shall be final and binding upon all parties absent manifest error and the fees and
expenses of such appraiser shall be borne by the Company.
(v) Record
Date. If, during the Restricted Period, the Company takes a record of the holders of Common Stock for the purpose of entitling them
(A) to receive a dividend or other distribution payable in shares of Common Stock, Options or in Convertible Securities or (B) to subscribe
for or purchase shares of Common Stock, Options or Convertible Securities, then such record date will be deemed to be the date of the
issue or sale of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution
or the date of the granting of such right of subscription or purchase (as the case may be).
(c) Number
of Warrant Shares. Simultaneously with any adjustment to the Exercise Price pursuant to paragraph (a) or (b) of this Section 2, the
number of Warrant Shares that may be purchased upon exercise of this Warrant shall be increased or decreased proportionately, so that
after such adjustment the aggregate Exercise Price payable hereunder for the adjusted number of Warrant Shares shall be the same as the
aggregate Exercise Price in effect immediately prior to such adjustment (without regard to any limitations on exercise contained herein).
In addition, and notwithstanding anything to the contrary contained herein, upon a Cashless Exercise as set forth in Section 1(d) hereof,
the number of Warrant Shares for which this Warrant is exercisable immediately following such Cashless Exercise shall be equal to (i)
the number of Warrant Shares for which this Warrant was exercisable immediately prior to such Cashless Exercise less (ii) the number
of Warrant Shares as to which such Cashless Exercise was exercised (such number of Warrant Shares in this clause (ii) in respect of such
Cashless Exercise being equal to “A” in such Cashless Exercise formula in respect of such Cashless Exercise) and the number
of such Warrant Shares issuable hereunder shall automatically be adjusted, as necessary, to enable to the Company to comply with its obligations
to issue the Net Number of shares of Common Stock under Section 1(d)(i) hereof upon any Cashless Exercise thereunder.
(d) Calculations.
All calculations under this Section 2 shall be made by rounding to the nearest 1/10000th of cent and the nearest 1/100th
of a share of Common Stock, as applicable. The number of shares of Common Stock outstanding at any given time shall not include Common
Stock owned or held by or for the account of the Company, and the disposition of any such Common Stock shall be considered an issue or
sale of shares of Common Stock.
(e) Other
Events. In the event that the Company shall take any action to which the provisions hereof are not strictly applicable, or, if applicable,
would not operate to protect the Holder from dilution or if any event occurs of the type contemplated by the provisions of this Section
2 but not expressly provided for by such provisions (including, without limitation, the granting of stock appreciation rights, phantom
stock rights or other rights with equity features), then the Company’s board of directors shall in good faith determine and implement
an appropriate adjustment in the Exercise Price and the number of Warrant Shares (if applicable) so as to protect the rights of the Holder,
provided that no such adjustment pursuant to this Section 2(e) will increase the Exercise Price or decrease the number of Warrant Shares
as otherwise determined pursuant to this Section 2, provided further that if the Holder does not accept such adjustments as appropriately
protecting its interests hereunder against such dilution, then the Company’s board of directors and the Holder shall agree, in good
faith, upon an independent investment bank of nationally recognized standing to make such appropriate adjustments, whose determination
shall be final and binding and whose fees and expenses shall be borne by the Company.
3. RIGHTS
UPON DISTRIBUTION OF ASSETS. In addition to any adjustments pursuant to Section 2 above, if the Company shall declare or make any
dividend or other distribution of its assets (or rights to acquire its assets) to holders of Common Stock, by way of return of capital
or otherwise (including, without limitation, any distribution of cash, stock or other securities, indebtedness, property or options by
way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction, other than
a distribution of Common Stock covered by Section 2(b)) (a “Distribution”), at any time after the issuance of this
Warrant, then, in each such case, provision shall be made so that upon exercise of this Warrant, the Holder shall be entitled to participate
in such Distribution to the same extent that the Holder would have participated therein if the Holder had held the number of shares of
Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without
limitation, the Maximum Percentage) immediately before the date on which a record is taken for such Distribution, or, if no such record
is taken, the date as of which the record holders of Common Stock are to be determined for the participation in such Distribution (provided,
however, to the extent that the Holder’s right to participate in any such Distributions would result in the Holder exceeding the
Maximum Percentage, then the Holder shall not be entitled to participate in such Distribution to such extent (or the beneficial ownership
of any such Common Stock as a result of such Distribution to such extent) and such Distribution to such extent shall be held in abeyance
for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Maximum Percentage).
4. [INTENTIONALLY
OMITTED].
5. NONCIRCUMVENTION.
The Company hereby covenants and agrees that the Company will not, by amendment of its Bylaws or through any reorganization, transfer
of assets, consolidation, merger, scheme of arrangement, dissolution, issue or sale of securities, or any other voluntary action, avoid
or seek to avoid the observance or performance of any of the terms of this Warrant, and will at all times in good faith carry out all
the provisions of this Warrant and take all action as may be required to protect the rights of the Holder. Without limiting the generality
of the foregoing, the Company (i) shall not increase the par value of the Common Stock underlying the Warrant Shares receivable upon the
exercise of this Warrant above the Exercise Price then in effect, (ii) shall take all such actions as may be necessary or appropriate
in order that the Company may validly and legally issue fully paid and non-assessable Common Stock upon the exercise of this Warrant,
and (iii) shall, so long as the Warrant is outstanding, take all action necessary to reserve and keep available out of its authorized
and unissued Common Stock, solely for the purpose of effecting the exercise of the Warrant Shares, the maximum number of shares of Common
Stock as shall from time to time be necessary to effect the exercise of the Warrant then outstanding; provided, however, that such amount
of reserved shares of Common Stock shall be limited by the Maximum Percentage of Common Stock as set forth in Section 1(f).
6. WARRANT
HOLDER NOT DEEMED A STOCKHOLDER. Except as otherwise specifically provided herein, the Holder, solely in its capacity as a holder
of this Warrant, shall not be entitled to vote or receive dividends or be deemed the holder of Common Stock of the Company for any purpose,
nor shall anything contained in this Warrant be construed to confer upon the Holder, solely in its capacity as the Holder of this Warrant,
any of the rights of a stockholder of the Company or any right to vote, give or withhold consent to any corporate action (whether any
reorganization, issue of stock, reclassification of stock, consolidation, merger, conveyance or otherwise), receive notice of meetings,
receive dividends or subscription rights, or otherwise, prior to the issuance to the Holder of the Warrant Shares which it is then entitled
to receive upon the due exercise of this Warrant. In addition, nothing contained in this Warrant shall be construed as imposing any liabilities
on the Holder to purchase any securities (upon exercise of this Warrant or otherwise) or as a stockholder of the Company, whether such
liabilities are asserted by the Company or by creditors of the Company. Notwithstanding this Section 6, the Company shall provide the
Holder with copies of the same notices and other information given to the stockholders of the Company generally, contemporaneously with
the giving thereof to the stockholders.
7. REISSUANCE
OF WARRANTS.
(a) Transfer
of Warrant. If this Warrant is to be transferred, the Holder shall surrender this Warrant to the Company, whereupon the Company will
forthwith issue and deliver upon the order of the Holder a new Warrant (in accordance with Section 7(d)), registered as the Holder may
request, representing the right to purchase the number of Warrant Shares being transferred by the Holder and, if less than the total number
of Warrant Shares then underlying this Warrant is being transferred, a new Warrant (in accordance with Section 7(d)) to the Holder representing
the right to purchase the number of Warrant Shares not being transferred. If, at the time of the surrender of this Warrant in connection
with any transfer of this Warrant, the transfer of this Warrant shall not be either (i) registered pursuant to an effective registration
statement under the Securities Act and under applicable state securities or blue sky laws or (ii) eligible for resale without volume or
manner-of-sale restrictions or current public information requirements pursuant to Rule 144 promulgated under the Securities Act, the
Company may require, as a condition of allowing such transfer, that the Holder or transferee of this Warrant, as the case may be, provide
to the Company an opinion of counsel selected by the Holder and reasonably acceptable to the Company, the form and substance of which
opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred
securities under the Securities Act.
(b) Lost,
Stolen or Mutilated Warrant. Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft, destruction
or mutilation of this Warrant (as to which a written certification and the indemnification contemplated below shall suffice as such evidence),
and, in the case of loss, theft or destruction, of any indemnification undertaking by the Holder to the Company in customary and reasonable
form and, in the case of mutilation, upon surrender and cancellation of this Warrant, the Company shall execute and deliver to the Holder
a new Warrant (in accordance with Section 7(d)) representing the right to purchase the Warrant Shares then underlying this Warrant.
(c) Exchangeable
for Multiple Warrants. This Warrant is exchangeable, upon the surrender hereof by the Holder at the principal office of the Company,
for a new Warrant or Warrants (in accordance with Section 7(d)) representing in the aggregate the right to purchase the number of Warrant
Shares then underlying this Warrant, and each such new Warrant will represent the right to purchase such portion of such Warrant Shares
as is designated by the Holder at the time of such surrender; provided, however, no warrants for fractional shares of Common Stock shall
be given.
(d) Issuance
of New Warrants. Whenever the Company is required to issue a new Warrant pursuant to the terms of this Warrant, such new Warrant (i)
shall be of like tenor with this Warrant, (ii) shall represent, as indicated on the face of such new Warrant, the right to purchase the
Warrant Shares then underlying this Warrant (or in the case of a new Warrant being issued pursuant to Section 7(a) or Section 7(c), the
Warrant Shares designated by the Holder which, when added to the number of shares of Common Stock underlying the other new Warrants issued
in connection with such issuance, does not exceed the number of Warrant Shares then underlying this Warrant), (iii) shall have an issuance
date, as indicated on the face of such new Warrant which is the same as the Issuance Date, and (iv) shall have the same rights and conditions
as this Warrant.
8. [INTENTIONALLY
OMITTED].
9. NOTICES.
Whenever notice is required to be given under this Warrant, unless otherwise provided herein, such notice shall be given in accordance
with Section 5.4 of the Securities Purchase Agreement. The Company shall provide the Holder with prompt written notice of all actions
taken pursuant to this Warrant, including in reasonable detail a description of such action and the reason therefor. Without limiting
the generality of the foregoing, the Company will give written notice to the Holder (i) as soon as practicable upon each adjustment of
the Exercise Price and the number of Warrant Shares, setting forth in reasonable detail, and certifying, the calculation of such adjustment(s)
and (ii) at least fifteen (15) days prior to the date on which the Company closes its books or takes a record (A) with respect to any
dividend or distribution upon the Common Stock, (B) with respect to any grants, issuances or sales of any Options, Convertible Securities
or rights to purchase stock, warrants, securities, indebtedness, or other property pro rata to holders of Common Stock or (C) for determining
rights to vote with respect to any Fundamental Transaction, dissolution or liquidation, provided in each case that such information (to
the extent it constitutes, or contains, material, non-public information regarding the Company shall be made known to the public prior
to or in conjunction with such notice being provided to the Holder and (iii) at least ten (10) Trading Days prior to the consummation
of any Fundamental Transaction. It is expressly understood and agreed that the time of execution specified by the Holder in each Exercise
Notice shall be definitive and may not be disputed or challenged by the Company.
10. AMENDMENT
AND WAIVER. Except as otherwise provided herein, the provisions of this Warrant (other than Section 1(f)) may be amended and the Company
may take any action herein prohibited, or omit to perform any act herein required to be performed by it, only if the Company has obtained
the written consent of the Holder. The Holder shall be entitled, at its option, to the benefit of any amendment of any other similar warrant
issued under the Securities Purchase Agreement. No waiver shall be effective unless it is in writing and signed by an authorized representative
of the waiving party.
11. SEVERABILITY.
If any provision of this Warrant is prohibited by law or otherwise determined to be invalid or unenforceable by a court of competent jurisdiction,
the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended to apply to the broadest extent that
it would be valid and enforceable, and the invalidity or unenforceability of such provision shall not affect the validity of the remaining
provisions of this Warrant so long as this Warrant as so modified continues to express, without material change, the original intentions
of the parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability of the provision(s) in question
does not substantially impair the respective expectations or reciprocal obligations of the parties or the practical realization of the
benefits that would otherwise be conferred upon the parties. The parties will endeavor in good faith negotiations to replace the prohibited,
invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as close as possible to that of the prohibited,
invalid or unenforceable provision(s).
12. GOVERNING
LAW. This Warrant shall be governed by and construed and enforced in accordance with, and all questions concerning the construction,
validity, interpretation and performance of this Warrant shall be governed by, the internal laws of the State of New York, without giving
effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions) that would
cause the application of the laws of any jurisdictions other than the State of New York. The Company hereby irrevocably submits to the
exclusive jurisdiction of the state and federal courts sitting in The City of New York, Borough of Manhattan, for the adjudication of
any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding
is improper. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. Nothing
contained herein shall be deemed or operate to preclude the Holder from bringing suit or taking other legal action against the Company
in any other jurisdiction to collect on the Company’s obligations to the Holder or to enforce a judgment or other court ruling in
favor of the Holder. THE COMPANY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE
ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS WARRANT OR ANY TRANSACTION CONTEMPLATED HEREBY.
13. CONSTRUCTION;
HEADINGS. This Warrant shall be deemed to be jointly drafted by the Company and the Holder and shall not be construed against any
Person as the drafter hereof. The headings of this Warrant are for convenience of reference and shall not form part of, or affect the
interpretation of, this Warrant. Terms used in this Warrant but defined in the other Transaction Documents shall have the meanings ascribed
to such terms on the Closing Date (as defined in the Securities Purchase Agreement) in such other Transaction Documents unless otherwise
consented to in writing by the Holder.
14. DISPUTE
RESOLUTION. In the case of a dispute as to the determination of the Exercise Price, the Closing Sale Price, the Closing Bid Price,
the Bid Price or fair market value or the arithmetic calculation of the Warrant Shares (as the case may be), the Company or the Holder
(as the case may be) shall submit the disputed determinations or arithmetic calculations (as the case may be) via facsimile (i) within
two (2) Business Days after receipt of the applicable notice giving rise to such dispute to the Company or the Holder (as the case may
be) or (ii) if no notice gave rise to such dispute, at any time after the Holder or the Company (as the case may be) learned of the circumstances
giving rise to such dispute. If the Holder and the Company are unable to agree upon such determination or calculation (as the case may
be) of the Exercise Price, the Closing Sale Price, the Closing Bid Price, the Bid Price or fair market value or the number of Warrant
Shares (as the case may be) within three (3) Business Days of such disputed determination or arithmetic calculation being submitted to
the Company or the Holder (as the case may be), then the Company shall, within two (2) Business Days submit via facsimile (a) the disputed
arithmetic calculation of the Warrant Shares, the disputed determination of the Exercise Price, the Closing Sale Price, the Closing Bid
Price, the Bid Price or fair market value (as the case may be) to an independent, reputable investment bank selected by the Holder, with
the consent of the Company (which may not be unreasonably withheld, conditioned or delayed), or (b) if acceptable to the Holder, the disputed
arithmetic calculation of the Warrant Shares to the Company’s independent, outside accountant. The Company shall cause at its expense
the investment bank or the accountant (as the case may be) to perform the determinations or calculations (as the case may be) and notify
the Company and the Holder of the results no later than ten (10) Business Days from the time it receives such disputed determinations
or calculations (as the case may be). Such investment bank’s or accountant’s determination or calculation (as the case may
be) shall be binding upon all parties absent demonstrable error. The fees and expenses of such investment bank or accountant shall be
borne by the parties in the same proportion as the respective amounts by which the investment bank’s or accountant’s determination
differs from such party’s calculation.
15. REMEDIES,
CHARACTERIZATION, OTHER OBLIGATIONS, BREACHES AND INJUNCTIVE RELIEF. The remedies provided in this Warrant shall be cumulative and
in addition to all other remedies available under this Warrant and the other Transaction Documents, at law or in equity (including a decree
of specific performance and/or other injunctive relief), and nothing herein shall limit the right of the Holder to pursue actual damages
for any failure by the Company to comply with the terms of this Warrant. The Company covenants to the Holder that there shall be no characterization
concerning this instrument other than as expressly provided herein. Amounts set forth or provided for herein with respect to payments,
exercises and the like (and the computation thereof) shall be the amounts to be received by the Holder and shall not, except as expressly
provided herein, be subject to any other obligation of the Company (or the performance thereof). The Company acknowledges that a breach
by it of its obligations hereunder will cause irreparable harm to the Holder and that the remedy at law for any such breach may be inadequate.
The Company therefore agrees that, in the event
of any such breach or threatened breach, the holder of this Warrant shall be entitled, in addition to all other available remedies, to
an injunction restraining any breach, without the necessity of showing economic loss and without any bond or other security being required.
The Company shall provide all information and documentation to the Holder that is requested by the Holder to enable the Holder to confirm
the Company’s compliance with the terms and conditions of this Warrant (including, without limitation, compliance with Section 2
hereof). The issuance of Common Stock and certificates for Common Stock as contemplated hereby upon the exercise of this Warrant shall
be made without charge to the Holder or such shares of Common Stock for any issuance tax or other costs in respect thereof, provided that
the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery
of any certificate in a name other than the Holder or its agent on its behalf.
16. TRANSFER.
This Warrant may be offered for sale, sold, transferred or assigned without the consent of the Company.
17. CERTAIN
DEFINITIONS. For purposes of this Warrant, the following terms shall have the following meanings:
(a) “Bid
Price” means, for any security as of the particular time of determination, the bid price of such security on the principal securities
exchange or trading market where such security is listed or traded as reported by Bloomberg as of such time of determination, or if the
foregoing does not apply, the bid price of such security in the over-the-counter market on the electronic bulletin board for such security
as reported by Bloomberg as of such time of determination, or, if no bid price is reported for such security by Bloomberg as of such time
of determination, the average of the bid prices of all of the market makers for such security as reported in the “pink sheets”
by OTC Markets Group Inc. (formerly Pink Sheets LLC) as of such time of determination. If the Bid Price cannot be calculated for a security
as of the particular time of determination on any of the foregoing bases, the Bid Price of such security as of such time of determination
shall be the fair market value as mutually determined by the Company and the Holder. If the Company and the Holder are unable to agree
upon the fair market value of such security, then such dispute shall be resolved in accordance with the procedures in Section 14. All
such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination or other similar transaction
during such period.
(b) “Black
Scholes Value” means the Black Scholes value of an option for one share of Common Stock at the date of the applicable Cashless
Exercise, as such Black Scholes value is determined, calculated using the Black Scholes Option Pricing Model obtained from the “OV”
function on Bloomberg utilizing (i) an underlying price per share of Common Stock equal to the Exercise Price, as adjusted, (ii) a risk-free
interest rate corresponding to the U.S. Treasury rate, (iii) a strike price equal to the Exercise Price in effect at the time of the applicable
Cashless Exercise, (iv) an expected volatility equal to 135%, and (v) a deemed remaining term of the Warrant of five (5) years (regardless
of the actual remaining term of the Warrant).
(c) “Black
Scholes Value – Consideration” means the value of the applicable Option or Convertible Security (as the case may be) as
of the date of issuance thereof calculated using the Black Scholes Option Pricing Model obtained from the “OV” function on
Bloomberg utilizing (i) an underlying price per share equal to the Closing Sale Price of the Common Stock on the Trading Day immediately
preceding the public announcement of the execution of definitive documents with respect to the issuance of such Option or Convertible
Security (as the case may be), (ii) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining
term of such Option or Convertible Security (as the case may be) as of the date of issuance of such Option or Convertible Security (as
the case may be) and (iii) an expected volatility equal to the greater of 100% and the 100 day volatility obtained from the HVT function
on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading Day immediately following the date of issuance of
such Option or Convertible Security (as the case may be).
(d) “Black
Scholes Value – FT” means the value of the unexercised portion of this Warrant remaining on the date of the Holder’s
request pursuant to Section 4(c), which value is calculated using the Black Scholes Option Pricing Model obtained from the “OV”
function on Bloomberg utilizing (i) an underlying price per share of Common Stock equal to the greater of (A) the highest Closing Sale
Price of the Common Stock during the period beginning on the Trading Day immediately preceding the earliest to occur of (1) the public
disclosure of the applicable Fundamental Transaction, (2) the consummation of the applicable Fundamental Transaction and (3) the date
on which the Holder first became aware of the applicable Fundamental Transaction and ending on the Trading Day of the Holder’s request
pursuant to Section 4(c) and (B) the sum of the price per share of Common Stock being offered in cash in the applicable Fundamental Transaction
(if any) plus the value of the non-cash consideration being offered in the applicable Fundamental Transaction (if any), (ii) a strike
price equal to the Exercise Price in effect on the date of the Holder’s request pursuant to Section 4(c), (iii) a risk-free interest
rate corresponding to the U.S. Treasury rate for a period equal to the greater of (A) the remaining term of this Warrant as of the date
of the Holder’s request pursuant to Section 4(c) and (B) the remaining term of this Warrant as of the date of consummation of the
applicable Fundamental Transaction or as of the date of the Holder’s request pursuant to Section 4(c) if such request is prior to
the date of the consummation of the applicable Fundamental Transaction and (iv) an expected volatility equal to the greater of 135% and
the 100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading
Day immediately following the earliest to occur of (A) the public disclosure of the applicable Fundamental Transaction, (B) the consummation
of the applicable Fundamental Transaction and (C) the date on which the Holder first became aware of the applicable Fundamental Transaction.
(e) “Bloomberg”
means Bloomberg, L.P.
(f) “Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or
required by law to remain closed.
(g) “Closing
Bid Price” and “Closing Sale Price” means, for any security as of any date, the last closing bid price and
the last closing trade price, respectively, for such security on the principal securities exchange or trading market where such security
is listed or traded as reported by Bloomberg, or if the foregoing do not apply, the average of the bid prices, or the ask prices, respectively,
of all of the market makers for such security as reported in the “pink sheets” by OTC Markets Group Inc. (formerly Pink Sheets
LLC). If the Closing Bid Price or the Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing
bases, the Closing Bid Price or the Closing Sale Price (as the case may be) of such security on such date shall be the fair market value
as mutually determined by the Company and the Holder. If the Company and the Holder are unable to agree upon the fair market value of
such security, then such dispute shall be resolved in accordance with the procedures in Section 14. All such determinations shall be appropriately
adjusted for any stock dividend, stock split, stock combination or other similar transaction during such period.
(h) “Convertible
Securities” means any capital stock or other security of the Company that is at any time and under any circumstances directly
or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital
stock or other security of the Company (including, without limitation, the Common Stock).
(i) “Transfer
Agent” means Continental Stock Transfer & Trust Company, with a mailing address of 1 State Street, 30th Floor, New York,
NY 10004, and any successor transfer agent of the Company.
(j)
“Trading Market” means the New York Stock Exchange, the NYSE Amex, the Nasdaq Global Select Market, the Nasdaq Global
Market or the Nasdaq Capital Market.
(k) “Expiration
Date” means November 2, 2028 or, if such date falls on a day other than a Business Day or on which trading does not take place
on the principal securities exchange or trading market where the Common Stock is listed (a “Holiday”), the next date
that is not a Holiday.
(l) “Fundamental
Transaction” means that (i) the Company shall, directly or indirectly, in one or more related transactions, (1) consolidate
or merge with or into (whether or not the Company is the surviving entity) any other Person unless the stockholders of the Company immediately
prior to such consolidation or merger continue to hold more than 50% of the outstanding shares of Voting Stock after such consolidation
or merger, or (2) sell, lease, license, assign, transfer, convey or otherwise dispose of all or substantially all of its properties or
assets to any other Person, in connection with which the Company is dissolved, or (3) allow any other Person to make a purchase, tender
or exchange offer that is accepted by the holders of more than 50% of the outstanding shares of Voting Stock of the Company (not including
any shares of Voting Stock of the Company held by the Person or Persons making or party to, or associated or affiliated with the Persons
making or party to, such purchase, tender or exchange offer), or (4) consummate a stock or share purchase agreement or other business
combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with any other Person
whereby such other Person acquires more than 50% of the outstanding shares of Voting Stock of the Company (not including any shares of
Voting Stock of the Company held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons
making or party to, such stock or share purchase agreement or other business combination), or (ii) any “person” or “group”
(as these terms are used for purposes of Sections 13(d) and 14(d) of the 1934 Act and the rules and regulations promulgated thereunder)
is or shall become the “beneficial owner” (as defined in Rule 13d-3 under the 1934 Act), directly or indirectly, of 50% of
the aggregate ordinary voting power represented by issued and outstanding Voting Stock of the Company; provide however that a Fundamental
Transaction shall not include the Merger.
(m) “Options”
means any rights, warrants or options to subscribe for or purchase Common Stock or Convertible Securities.
(n) “Parent
Entity” of a Person means an entity that, directly or indirectly, controls the applicable Person and whose common stock or equivalent
equity security is quoted or listed on a Trading Market, or, if there is more than one such Person or Parent Entity, the Person or Parent
Entity with the largest public market capitalization as of the date of consummation of the Fundamental Transaction.
(o) “Person”
means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization,
any other entity or a government or any department or agency thereof.
(p) “Successor
Entity” means the Person (or, if so elected by the Holder, the Parent Entity) formed by, resulting from or surviving any Fundamental
Transaction or the Person (or, if so elected by the Holder, the Parent Entity) with which such Fundamental Transaction shall have been
entered into.
(q) “Trading
Day” means, as applicable, (x) with respect to all price determinations relating to the Common Stock, any day on which the Common
Stock is traded on the principal securities exchange or securities market on which the Common Stock is then traded, provided that “Trading
Day” shall not include any day on which the Common Stock is scheduled to trade on such exchange or market for less than 4.5 hours
or any day that the Common Stock is suspended from trading during the final hour of trading on such exchange or market (or if such exchange
or market does not designate in advance the closing time of trading on such exchange or market, then during the hour ending at 4:00:00
p.m., New York time) unless such day is otherwise designated as a Trading Day in writing by the Holder or (y) with respect to all determinations
other than price determinations relating to the Common Stock, any day on which The New York Stock Exchange (or any successor thereto)
is open for trading of securities.
(r) “Voting
Stock” of a Person means capital stock of such Person of the class or classes pursuant to which the holders thereof have the
general voting power to elect, or the general power to appoint, at least a majority of the board of directors, managers or trustees of
such Person (irrespective of whether or not at the time capital stock of any other class or classes shall have or might have voting power
by reason of the happening of any contingency).
(s) “VWAP”
means, for any security as of any date, the dollar volume-weighted average price for such security on the principal securities exchange
or securities market on which such security is then traded during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00
p.m., New York time, as reported by Bloomberg through its “Volume at Price” function 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 9:30:01 a.m., New York time, and ending at 4:00:00 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 three highest closing
bid prices and the three lowest closing ask prices of all of the market makers for such security as reported in the “pink sheets”
by OTC Markets Group Inc. (formerly Pink Sheets LLC). If VWAP cannot be calculated for such security on such date on any of the foregoing
bases, the VWAP of such security on such date shall be the fair market value as mutually determined by the Company and the Holder. If
the Company and the Holder are unable to agree upon the fair market value of such security, then such dispute shall be resolved in accordance
with the procedures in Section 14. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock
combination or other similar transaction during such period.
[Signature Page Follows]
IN WITNESS WHEREOF, the
Company has caused this Common Stock Purchase Warrant to be duly executed as of the Issuance Date set out above.
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GD
CULTURE GROUP LIMITED |
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By: |
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Name: |
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Title: |
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EXHIBIT A
EXERCISE NOTICE
TO BE EXECUTED
BY THE REGISTERED HOLDER TO EXERCISE THIS COMMON STOCK PURCHASE WARRANT
GD CULTURE GROUP
LIMITED
The undersigned holder hereby
exercises the right to purchase shares of Common Stock (“Warrant Shares”), par value $0.0001 per share,
of GD Culture Group Limited, a Nevada company (the “Company”), evidenced by Common Stock Purchase Warrant No. ___ (the
“Warrant”). Capitalized terms used herein and not otherwise defined shall have the respective meanings set forth in
the Warrant.
1. Form
of Exercise Price. The Holder intends that payment of the Exercise Price shall be made as:
| ____________ | a “Cash Exercise” with respect to Warrant Shares; and/or |
| ____________ | a “Cashless Exercise” with respect to Warrant Shares. |
In the event that the Holder
has elected a Cashless Exercise with respect to some or all of the Warrant Shares, the Holder represents and warrants that the shares
of Common Stock are to be delivered pursuant to such Cashless Exercise, as further specified in Annex A to this Exercise Notice.
2. Payment of
Exercise Price. In the event that the Holder has elected a Cash Exercise with respect to some or all of the Warrant Shares, the
Holder shall pay the Aggregate Exercise Price in the sum of $ to the Company in accordance with the terms of the
Warrant.
3. Delivery of
Warrant Shares and Net Number of Shares of Common Stock. The Company shall deliver to Holder, or its designee or agent as
specified below, shares of Common Stock in respect of the exercise contemplated hereby. Delivery shall be made to
Holder, or for its benefit, to the following address:
Date: |
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Name of Registered Holder |
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Account Number: (if electronic book
entry transfer)
Transaction Code Number:
(if electronic book entry transfer)
ANNEX A TO EXERCISE
NOTICE CASHLESS EXERCISE EXCHANGE CALCULATION
TO BE FILLED IN
BY THE REGISTERED HOLDER TO EXCHANGE THE COMMON STOCK PURCHASE WARRANT TO IN A CASHLESS EXERCISE PURSUANT TO SECTION 1(d) OF THE WARRANT
Capitalized terms used herein
and not otherwise defined shall have the respective meanings set forth in the Warrant.
[ ] Net Number = (A x B)/C = shares of Common Stock
OR
[ ]
Net Number = (C - D) x A / C
For purposes of the foregoing formula:
| A= | the total number of shares of Common Stock with respect to which the
Warrant is then being exercised = __________. |
| B= | Black Scholes Value(as defined in Section 17 of the Warrant) =
____________. |
| C= | the Closing Bid Price of the Common Stock as of two (2) Trading Days
prior to the time of such exercise (as such Closing Bid Price is defined in Section 17 of the Warrant) = __________. |
Date: |
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Name of Registered Holder |
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EXHIBIT B
ACKNOWLEDGMENT
The Company hereby acknowledges
this Exercise Notice and hereby directs to issue the above indicated
number of share of Common Stock in accordance with the Transfer Agent Instructions dated _____________, 20 ,
from the Company and acknowledged and agreed to by _________.
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GD CULTURE GROUP LIMITED |
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By: |
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Name: |
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Title: |
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Exhibit
5.1
November 3, 2023
GD Culture Group Limited
810 Seventh Avenue, 22nd Floor
New York, NY 10019
Ladies and Gentlemen:
We have acted as special counsel to GD Culture
Group Limited, a Nevada corporation (the “Company”), in connection with a prospectus supplement, dated October 31,
2023 (the “Prospectus Supplement”) to the prospectus which forms a part of a Registration Statement (as amended from
time-to-time, referred to as the “Registration Statement”) on Form S-3 filed by the Company on March 16, 2021 (Registration
No. 333-254366, under the Securities Act of 1933, as amended (the “Act”), with the U.S. Securities and Exchange Commission
(the “Commission”) and declared effective on March 26, 2021, relating to the public offering of (i) 1,436,253 shares
(the “Shares”) of the Company’s common stock, par value $0.0001 per share (the “Common Stock”),
(ii) pre-funded warrants (the “Pre-Funded Warrants”) to purchase an aggregate of 1,876,103 shares of the Company’s
Common Stock (the “Pre-Funded Warrant Shares”), and (iii) warrants, (the “Registered Warrants”)
to purchase up to an aggregate of 3,312,356 shares of common stock of the Company (the “Registered Warrant Shares”).
The Shares, the Pre-funded Warrants, the Pre-Funded Warrant Shares, the Registered Warrants, and the Registered Warrant Shares
are collectively referred to as the “Securities”. The Shares, the Pre-Funded Warrants, and the Registered Warrants
are to be sold pursuant to that certain securities purchase agreement, dated as of October 31, 2023 by and between the Company and the
purchasers identified on the signature pages thereto (the “Purchase Agreement”).
In connection with this matter, we have examined
the originals or copies certified or otherwise identified to our satisfaction of the following: (a) Articles of Incorporation of the Company,
as amended to date, (b) By-laws of the Company, as amended to date, (c) the Registration Statement, all documents incorporated therein
by reference and all exhibits thereto, (d) the Prospectus Supplement, (e) the Purchase Agreement and all the schedules and exhibits thereto
and (f) the placement agency agreement, dated November 1, 2023, by and between the Company and Univest Securities LLC (the “Placement
Agency Agreement”). In addition to the foregoing, we have relied as to matters of fact upon the representations made by the
Company and their representatives, and we have assumed the genuineness of all signatures, the authenticity of all documents submitted
to us as originals, and the conformity to original documents of all documents submitted to us certified or photostatic copies.
We are members of the Bar of the State of New
York. We do not hold ourselves out as being conversant with, or expressing any opinion with respect to, the laws of any jurisdiction other
than the federal laws of the United States of America, the laws of the State of New York, and Chapter 78 of the Nevada Revised Statutes.
Accordingly, the opinions expressed herein are expressly limited to the federal laws of the United States of America, the laws of the
State of New York, and Chapter 78 of the Nevada Revised Statutes.
Based upon the foregoing and in reliance thereon,
and subject to the qualifications, limitations, exceptions and assumptions set forth herein, we are of the opinion that:
| (i) | the Securities have been duly authorized for issuance by
all necessary corporate action by the Company; |
| (ii) | the Shares, when issued and sold as described in the Registration
Statement, the Prospectus Supplement, the Purchase Agreement and the Placement Agency Agreement, were validly issued, fully paid and
non-assessable; |
| (iii) | provided that the Pre-Funded Warrants have been duly executed
and delivered by the Company and duly delivered to the purchasers thereof against payment therefor, such Pre-Funded Warrants, when sold
and issued as contemplated in the Registration Statement, the Prospectus Supplement, the Purchase Agreement and the Placement Agency
Agreement, are valid and binding obligations of the Company; |
| (iv) | the Pre-Funded Warrant Shares upon payment to the Company
of the required consideration, and when issued and sold by the Company and paid for in accordance with the terms of the Pre-Funded Warrants,
as applicable, and as described in the Registration Statement, the Prospectus Supplement, the Purchase Agreement and the Placement Agency
Agreement, will be validly issued, fully paid and non-assessable; |
| (v) | provided that the Registered Warrants have been duly executed
and delivered by the Company and duly delivered to the purchasers thereof against payment therefor, such Registered Warrants, when sold
and issued as contemplated in the Registration Statement, the Prospectus Supplement, the Purchase Agreement and the Placement Agency
Agreement, are valid and binding obligations of the Company; and |
| (vi) | the Registered Warrant Shares upon payment to the Company
of the required consideration, and when issued and sold by the Company and paid for in accordance with the terms of the Registered Warrants,
as applicable, and as described in the Registration Statement, the Prospectus Supplement, the Purchase Agreement and the Placement Agency
Agreement, will be validly issued, fully paid and non-assessable. |
This opinion letter speaks only as of the date
hereof, and we assume no obligation to update or supplement this opinion letter if any applicable laws change after the date of this opinion
letter or if we become aware after the date of this opinion letter of any facts, whether existing before or arising after the date hereof,
that might change the opinions expressed above.
This opinion letter is furnished in connection
with the Prospectus Supplement and may not be relied upon for any other purpose without our prior written consent in each instance. Further,
no portion of this letter may be quoted, circulated or referred to in any other document for any other purpose without our prior written
consent.
We hereby consent to the filing of this opinion
with the Commission as Exhibit 5.1 to the Company’s Current Report on Form 8-K filed on November 3, 2023, incorporated by reference
into the Registration Statement, and to the use of our name as it appears under the caption “Legal Matters” in the Prospectus
Supplement. In giving such consent, we do not thereby admit that we come within the category of persons whose consent is required under
Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder. This opinion is expressed as of the date hereof
unless otherwise expressly stated, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed
herein or of any subsequent changes in applicable laws.
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Very truly yours, |
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/s/ Ortoli Rosenstadt LLP |
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Ortoli Rosenstadt LLP |
Exhibit 10.1
PLACEMENT AGENCY
AGREEMENT
November 1, 2023
GD Culture Group Limited
Flat 1512, 15F, Lucky Centre,
No.165-171 Wan Chai Road
Wan Chai, Hong Kong
Dear Mr. Xiao Jian Wang:
This letter (the “Agreement”)
constitutes the agreement by and between Univest Securities, LLC (“Univest” or the “Placement Agent”)
and GD Culture Group Limited, a Nevada corporation (the “Company”), pursuant to which the Placement Agent shall serve
as the placement agent for the Company, on a “reasonable best efforts” basis, in connection with the proposed placements (the
“Placements”) of (i) via a registered direct offering of shares of common stock, par value $0.0001 (“Common
Stock”), of the Company (the “Offered Shares”) and pre-funded warrants to purchase shares of Common Stock
(the “Pre-Funded Warrants”, collectively with the Shares, the “Public Securities”) and (ii) warrants
to purchase shares of Common Stock (the “Warrants”) (collectively with the Public Securities, the “Securities”)
in a concurrent private placement. The terms of the Placements and the Securities shall be mutually agreed upon by the Company and the
purchasers (each, a “Purchaser” and collectively, the “Purchasers”) and nothing herein shall be
deemed to mean that the Placement Agent would have the power or authority to bind the Company or any Purchaser or an obligation for the
Company to issue any Securities or complete the Placements. This Agreement and the documents executed and delivered by the Company and
the Purchasers in connection with the Placements, including but not limited to the Purchase Agreement (as defined below) and the forms
of the Warrants and Pre-Funded Warrants, shall be collectively referred to herein as the “Transaction Documents.” The
date of the closing of the Placements shall be referred to herein as the “Closing Date.” The Company expressly acknowledges
and agrees that the obligations of the Placement Agent hereunder are on a reasonable best efforts basis only and that the execution of
this Agreement does not constitute a commitment by the Placement Agent to purchase the Securities and does not ensure the successful placement
of the Securities or any portion thereof or the success of the Placement Agent with respect to securing any other financing on behalf
of the Company. Following the prior written consent of the Company, the Placement Agent may retain other brokers or dealers to act as
sub-agents or selected-dealers on its behalf in connection with the Placements. The sale of the Securities to any Purchaser will be evidenced
by a securities purchase agreement (the “Purchase Agreement”) between the Company and such Purchaser in a form mutually
agreed upon by the Company and the Placement Agent. Capitalized terms that are not otherwise defined herein have the meanings given to
such terms in the Purchase Agreement. Prior to the signing of any Purchase Agreement, executive officers of the Company will be available
upon reasonable notice and during normal business hours to answer inquiries from prospective Purchasers.
SECTION 1. REPRESENTATIONS
AND WARRANTIES OF THE COMPANY; COVENANTS OF THE COMPANY.
A. Representations of the
Company. Each of the representations and warranties (together with any related disclosure schedules thereto) and covenants made by
the Company to the Purchasers in the Purchase Agreement in connection with the Placements is hereby incorporated herein by reference
into this Agreement (as though fully restated herein) and is, as of the date of this Agreement and as of the Closing Date, hereby made
to, and in favor of, the Placement Agent. In addition to the foregoing, the Company represents and warrants that:
1.
The Company has prepared and filed with the U.S. Securities and Exchange Commission (the “Commission”) a registration
statement on Form S-3 (File No. 333-254366) for the registration under the Securities Act of 1933, as amended (the “Securities
Act”), of the Public Securities, which registration statement became effective on March 26, 2021. At the time of such filing,
the Company met the requirements of Form S-3 under the Securities Act. Such registration statement meets the requirements set forth in
Rule 415(a)(1)(x) under the Securities Act and complies with said Rule. The Company will file with the Commission pursuant to Rule 424(b)
under the Securities Act, and the rules and regulations (the “Rules and Regulations”) of the Commission promulgated
thereunder, a supplement to the form of prospectus included in such registration statement relating to the placement of the Public Securities
and the plan of distribution thereof and has advised the Placement Agent of all further information (financial and other) with respect
to the Company required to be set forth therein. Such registration statement, including the exhibits thereto, as amended at the date of
this Agreement, is hereinafter called the “Registration Statement”; such prospectus in the form in which it appears
in the Registration Statement is hereinafter called the “Base Prospectus”; and the supplemented form of prospectus,
in the form in which it will be filed with the Commission pursuant to Rule 424(b) (including the Base Prospectus as so supplemented) is
hereinafter called the “Prospectus Supplement.” Any reference in this Agreement to the Registration Statement, the
Base Prospectus or the Prospectus Supplement shall be deemed to refer to and include the documents incorporated by reference therein (the
“Incorporated Documents”) pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), on or before the date of this Agreement, or the issue date of the Base Prospectus
or the Prospectus Supplement, as the case may be; and any reference in this Agreement to the terms “amend,” “amendment”
or “supplement” with respect to the Registration Statement, the Base Prospectus or the Prospectus Supplement shall be deemed
to refer to and include the filing of any document under the Exchange Act after the date of this Agreement, or the issue date of the Base
Prospectus or the Prospectus Supplement, as the case may be, deemed to be incorporated therein by reference. All references in this Agreement
to financial statements and schedules and other information which is “contained,” “included,” “described,”
“referenced,” “set forth” or “stated” in the Registration Statement, the Base Prospectus or the Prospectus
Supplement (and all other references of like import) shall be deemed to mean and include all such financial statements and schedules and
other information which is or is deemed to be incorporated by reference in the Registration Statement, the Base Prospectus or the Prospectus
Supplement, as the case may be. No stop order suspending the effectiveness of the Registration Statement or the use of the Base Prospectus
or the Prospectus Supplement has been issued, and no proceeding for any such purpose is pending or has been initiated or, to the Company’s
knowledge, is threatened by the Commission. For purposes of this Agreement, “Free Writing Prospectus” has the meaning
set forth in Rule 405 under the Securities Act.
2.
The Registration Statement (and any further documents to be filed with the Commission) contains all exhibits and schedules as required
by the Securities Act. Each of the Registration Statement and any post-effective amendment thereto, at the time it became effective, complied
in all material respects with the Securities Act and the Exchange Act and the applicable Rules and Regulations and did not and, as amended
or supplemented, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading. The Base Prospectus and the Prospectus Supplement, each
as of its respective date, complied or will comply in all material respects with the Securities Act and the Exchange Act and the applicable
Rules and Regulations. Each of the Base Prospectus, and the Prospectus Supplement, as amended or supplemented, did not and will not contain
as of the date thereof any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading. The Incorporated Documents, when they were filed
with the Commission, conformed in all material respects to the requirements of the Exchange Act and the applicable Rules and Regulations,
and none of such documents, when they were filed with the Commission, contained any untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein (with respect to Incorporated Documents incorporated by reference in the
Base Prospectus or Prospectus Supplement), in the light of the circumstances under which they were made not misleading; and any further
documents so filed and incorporated by reference in the Base Prospectus, or Prospectus Supplement, when such documents are filed with
the Commission, will conform in all material respects to the requirements of the Exchange Act and the applicable Rules and Regulations,
as applicable, and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading. No post-effective amendment to the Registration
Statement reflecting any facts or events arising after the date thereof which represent, individually or in the aggregate, a fundamental
change in the information set forth therein is required to be filed with the Commission. Except for this Agreement and the Transaction
Documents, there are no documents required to be filed with the Commission in connection with the transaction contemplated hereby that
(x) have not been filed as required pursuant to the Securities Act or (y) will not be filed within the requisite time period. There are
no contracts or other documents required to be described in the Base Prospectus, or Prospectus Supplement, or to be filed as exhibits
or schedules to the Registration Statement, which (x) have not been described or filed as required or (y) will not be filed within the
requisite time period.
3.
The Company is eligible to use Free Writing Prospectuses in connection with the Placement pursuant to Rules 164 and 433 under the
Securities Act. Any Free Writing Prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities Act has
been, or will be, filed with the Commission in accordance with the requirements of the Securities Act and the applicable rules and regulations
of the Commission thereunder. Each Free Writing Prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d)
under the Securities Act or that was prepared by or behalf of or used by the Company complies or will comply in all material respects
with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. The Company will not,
without the prior consent of the Placement Agent, prepare, use or refer to, any Free Writing Prospectus.
4.
The Company has filed all reports, schedules, forms, statements or other documents required to be filed by the Company under the
Securities Act or Exchange Act, during the three years preceding the date hereof (the foregoing materials filed during such three-year
period, including the exhibits thereto and documents incorporated by reference therein, the “SEC Reports”). For the
twelve months preceding the date hereof, the Company has filed the SEC Reports on a timely basis (including any valid extension of such
time of filing provided under Rule 12b-5 or under coronavirus-related relief by the SEC) and has filed any such SEC Reports prior to the
expiration of any such extension. As of their respective filing or amendment dates, the SEC Reports complied in all material respects
with the requirements of the Exchange Act and the rules and regulations of the Commission promulgated thereunder; and as of their respective
filing or amendment dates, the SEC Reports did not contain any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
5.
There are no affiliations with any Financial Industry Regulatory Authority, Inc. (“FINRA”) member firm among
the Company’s officers, directors or, to the knowledge of the Company, any ten percent (10%) or greater shareholder of the Company,
except as set forth in the Registration Statement and the SEC Reports.
B. Covenants of the Company.
1.
The Company has delivered or made available, or will as promptly as practicable deliver or make available, to the Placement Agent
complete conformed copies of the Registration Statement and of each consent and certificate of experts, as applicable, filed as a part
thereof, and conformed copies of the Registration Statement (without exhibits), the Base Prospectus, and the Prospectus Supplement, as
amended or supplemented, in such quantities and at such places as the Placement Agent reasonably requests. Neither the Company nor any
of its directors and officers has distributed and none of them will distribute, prior to the Closing Date, any offering material in connection
with the offering and sale of the Securities pursuant to the Placements other than the Transaction Documents, the Base Prospectus, the
Prospectus Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted
by the Securities Act.
2.
The Company will advise the Placement Agent promptly after it receives notice thereof of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the Base Prospectus or the Prospectus Supplement has been filed and
will furnish the Placement Agent with copies thereof, the parties acknowledging that such obligation is satisfied by filing such materials
on the EDGAR system of the SEC. The Company will file promptly all reports and any definitive proxy or information statements required
to be filed by the Company with the Commission pursuant to Section 13(a), 14 or 15(d) of the Exchange Act subsequent to the date of the
Prospectus Supplement and for so long as the delivery of a prospectus is required in connection with the Placement. The Company will advise
the Placement Agent, promptly after it receives notice thereof (i) of any request by the Commission to amend the Registration Statement
or to amend or supplement any Prospectus or for additional information, and (ii) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or any post-effective amendment thereto or any order directed at any Incorporated Document,
if any, or any amendment or supplement thereto or any order preventing or suspending the use of the Base Prospectus or the final Prospectus
or any prospectus supplement or any amendment or supplement thereto or any post-effective amendment to the Registration Statement, of
the suspension of the qualification of any of the Public Securities for offering or sale in any jurisdiction, of the institution or threatened
institution of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration
Statement or a Prospectus or for additional information. The Company shall use its best efforts to prevent the issuance of any such stop
order or prevention or suspension of such use. If the Commission shall enter any such stop order or order or notice of prevention or suspension
at any time, the Company will use its best efforts to obtain the lifting of such order at the earliest possible moment, or will file a
new registration statement and use its best efforts to have such new registration statement declared effective as soon as practicable.
Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A, 430B and 430C, as applicable, under the
Securities Act, including with respect to the timely filing of documents thereunder, and will use its best efforts to confirm that any
filings made by the Company under such Rule 424(b) are received in a timely manner by the Commission.
3.
The Company will cooperate with the Placement Agent and the Purchasers in endeavoring to qualify the Securities for sale under
the securities laws of such jurisdictions (United States and foreign) as the Placement Agent and the Purchasers may reasonably request
and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose, provided
the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction
where it is not now so qualified or required to file such a consent, and provided further that the Company shall not be required to produce
any new disclosure document. The Company will, from time to time, prepare and file such statements, reports and other documents as are
or may be required to continue such qualifications in effect for so long a period as the Placement Agent may reasonably request for distribution
of the Securities. The Company will advise the Placement Agent promptly of the suspension of the qualification or registration of (or
any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding
for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company
shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
4.
The Company will comply with the Securities Act and the Exchange Act, and the rules and regulations of the Commission thereunder,
so as to permit the completion of the distribution of the Securities as contemplated in this Agreement, the Incorporated Documents and
any Prospectus. If during the period in which a prospectus is required by law to be delivered in connection with the distribution of any
Securities contemplated by the Incorporated Documents or any Prospectus (the “Prospectus Delivery Period”), any event
shall occur as a result of which, in the judgment of the Company or in the opinion of the Placement Agent or counsel for the Placement
Agent, it becomes necessary to amend or supplement the Incorporated Documents or any Prospectus in order to make the statements therein,
in the light of the circumstances under which they were made, as the case may be, not misleading, or if it is necessary at any time to
amend or supplement the Incorporated Documents or any Prospectus or to file under the Exchange Act any Incorporated Document to comply
with any law, the Company will promptly prepare and file with the Commission, and furnish at its own expense to the Placement Agent and
to dealers, an appropriate amendment to the Registration Statement or supplement to the Registration Statement, the Incorporated Documents
or any Prospectus that is necessary in order to make the statements in the Incorporated Documents and any Prospectus as so amended or
supplemented, in the light of the circumstances under which they were made, as the case may be, not misleading, or so that the Registration
Statement, the Incorporated Documents or any Prospectus, as so amended or supplemented, will comply with law. Before amending the Registration
Statement or supplementing the Incorporated Documents or any Prospectus in connection with the Placement, the Company will furnish the
Placement Agent with a copy of such proposed amendment or supplement and will not file any such amendment or supplement to which the Placement
Agent reasonably objects.
5.
During the Prospectus Delivery Period, the Company will duly file, on a timely basis, with the Commission and the Trading Market
all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange
Act.
6.
The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might
reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
7.
[Intentionally Omitted]
8.
If any of the conditions specified in this Section 1(B) shall not have been fulfilled when and as provided in this Agreement, or
if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and
substance to the Placement Agent and its counsel, this Agreement and all obligations of the Placement Agent hereunder may be canceled
at, or at any time prior to, the Closing Date by the Placement Agent. Notice of such cancellation shall be given to the Company in writing
or by telephone or facsimile confirmed in writing.
C. Subsequent Equity
Sales. From the date hereof until forty-five (45) trading days (on which days the Nasdaq Global Market is open for trading)
after the Closing Date, neither the Company nor any Subsidiary shall issue, enter into any agreement to issue or announce the
issuance or proposed issuance of any shares of Common Stock or Common Stock Equivalents other than through Exempt Issuance. From the
date hereof until one (1) year after the Closing Date, the Company shall be prohibited from effecting or entering into an agreement
to effect any issuance by the Company or any of its Subsidiaries of any shares of Common Stock or Common Stock Equivalents (or a
combination of units thereof) involving a Variable Rate Transaction. For purposes of this Agreement, “Variable Rate
Transaction” shall mean a transaction in which the Company (i) issues or sells any debt or equity securities that are
convertible into, exchangeable or exercisable for, or include the right to receive additional shares of Common Stok (A) at a
conversion price, exercise price or exchange rate or other price that is based upon and/or varies with the trading prices of or
quotations for the Common Stock at any time after the initial issuance of such debt or equity securities, or (B) with a conversion,
exercise or exchange price that is subject to being reset at some future date after the initial issuance of such debt or equity
security or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or
the market for the Common Stock or (ii) enters into, or effects a transaction under, any agreement, including, but not limited to,
an equity line of credit, whereby the Company may issue securities at a future determined price. The Placement Agent shall be
entitled to obtain injunctive relief against the Company to preclude any such issuance, which remedy shall be in addition to any
right to collect damages.
SECTION 2. REPRESENTATIONS
OF THE PLACEMENT AGENT. The Placement Agent represents and warrants that it (i) is a member in good standing of FINRA, (ii) is
registered as a broker/dealer under the Exchange Act, (iii) is licensed as a broker/dealer under the laws of the States applicable
to the offers and sales of the Securities by the Placement Agent, (iv) is and will be a corporate entity validly existing under the
laws of its place of formation, and (v) has full power and authority to enter into and perform its obligations under this Agreement.
The Placement Agent will immediately notify the Company in writing of any change in its status as such. The Placement Agent
covenants that it will use its reasonable best efforts to conduct the Placement hereunder in compliance with the provisions of this
Agreement and the requirements of applicable law.
SECTION 3. COMPENSATION;
OTHER ARRANGEMENTS. In consideration of the services to be provided for hereunder by the Placement Agent, the Company shall pay
to the Placement Agent the following compensation with respect to the Securities which the Placement Agent is placing:
A.
A cash fee (the “Cash Fee”) equal to seven percent (7.0%) of the aggregate gross proceeds raised in the Placement.
The Cash Fee shall be paid at the closing of the Placements (the “Closing”).
B. In addition to the Cash Fee, the Company shall issue the Placement Agent a warrant for the purchase of a number of shares of Common
Stock equal to five percent (5.0%) of the aggregate number of Offered Shares, Warrants and Pre-Funded Warrants issued in the Placements,
at an exercise price equal to one hundred twenty percent (120%) of the offering price in the Placement, for an aggregate purchase price
of one hundred U.S. dollars (US$100), which warrant shall be exercisable at any time during the period commencing six (6) months after
commencement of sales in the Offering through the fifth (5th) anniversary of issuance
(the “Placement Agent Warrant” and together with the shares of Common Stock underlying the Placement Agent Warrant,
the “Placement Agent Securities”) and in all respects in compliance with FINRA Rule 5110.
C. Subject
to compliance with FINRA Rule 5110(g), the Company also agrees to reimburse the Placement Agent for all travel and other out-of-pocket
expenses, including the reasonable fees, costs and disbursements of its legal counsel, in an amount not to exceed an aggregate of one
hundred fifty thousand U.S. dollars (US$150,000). The Company will reimburse the Placement Agent at the Closing directly out of the gross
proceeds raised in the Placement. In the event this Agreement shall terminate prior to the consummation of the Placement, the Placement
Agent, shall be entitled to reimbursement for actual expenses upon providing reasonable documentation relating to the incurrence of such
expenses.
D.
If within twelve (12) months after the end of the Term (as defined below), the Company completes any financing of equity, equity-linked
or debt or other capital-raising activity of the Company for which any investors in the Placement were contacted by the Placement Agent
in connection therewith (other than the exercise by any person or entity of any options, warrants or other convertible securities), then
the Company shall pay to the Placement Agent a commission as described in Section 3(A)-(C) herein.
E. The Placement Agent
reserves the right to reduce any item of its compensation or adjust (in the Company’s favor) the terms thereof as specified
herein in the event that a determination shall be made by FINRA to the effect that the Placement Agent’s aggregate
compensation is in excess of FINRA’s rules and regulations or that the terms thereof require adjustment.
SECTION 4. INDEMNIFICATION.
The Company agrees to the indemnification and other agreements set forth in the Indemnification Provisions (the “Indemnification”)
attached hereto as Addendum A, the provisions of which are incorporated herein by reference and shall survive the termination
or expiration of this Agreement.
SECTION 5. ENGAGEMENT
TERM. The Placement Agent’s engagement hereunder shall be until the final Closing Date of the Placement; provided that, on
or after May 1, 2024, the engagement may be terminated by the Company or the Placement Agent upon 60 days’ written notice to the
other party, effective upon receipt of such written notice (such date, the “Termination Date” and the period of time
during which this Agreement remains in effect is referred to herein as the “Term”). Notwithstanding anything to the
contrary contained herein, the provisions concerning the Company’s obligation to pay any fees actually earned pursuant to Section
3 hereof and the provisions concerning confidentiality, indemnification and contribution contained herein and the Company’s obligations
contained in the Indemnification Provisions attached hereto as Addendum A will survive any expiration or termination of this Agreement.
If this Agreement is terminated prior to the completion of the Placement, all fees and expense reimbursements due to the Placement Agent
shall be paid by the Company to the Placement Agent on or before the Termination Date (in the event such fees are earned or owed as of
the Termination Date). The Placement Agent agrees not to use any confidential information concerning the Company provided to the Placement
Agent by the Company for any purposes other than those contemplated under this Agreement.
SECTION 6. PLACEMENT
AGENT’S INFORMATION. The Company agrees that any information or advice rendered by the Placement Agent in connection with
this engagement is for the confidential use of the Company only in its evaluation of the Placement and, except as otherwise required
by law, the Company will not disclose or otherwise refer to the advice or information in any manner without the Placement
Agent’s prior written consent.
SECTION 7. NO
FIDUCIARY RELATIONSHIP. This Agreement does not create, and shall not be construed as creating rights enforceable by any person
or entity not a party hereto, except those entitled hereto by virtue of the Indemnification Provisions attached hereto as Addendum
A hereof. The Company acknowledges and agrees that the Placement Agent is not nor shall it be construed as a fiduciary of the
Company and the Placement Agent shall not have any duties or liabilities to the equity holders or the creditors of the Company or
any other person by virtue of this Agreement or the retention of the Placement Agent hereunder, all of which are hereby expressly
waived.
SECTION 8. CLOSING.
The obligations of the Placement Agent, and the Closing of the sale of the Securities hereunder are subject to the accuracy, when made
and on the Closing Date, of the representations and warranties on the part of the Company contained herein and in the Purchase Agreement,
to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the
Company of their obligations hereunder, and to each of the following additional terms and conditions, except as otherwise disclosed to
and acknowledged and waived by the Placement Agent.
A.
No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose
shall have been initiated or threatened by the Commission, and any request for additional information on the part of the Commission (to
be included in the Registration Statement, the Base Prospectus, the Prospectus Supplement or otherwise) shall have been complied with
to the reasonable satisfaction of the Placement Agent. Any filings required to be made by the Company in connection with the Placement
shall have been timely filed with the Commission.
B. The
Placement Agent shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Registration
Statement, the Base Prospectus, the Prospectus Supplement or any amendment or supplement thereto contains an untrue statement of a
fact which, in the opinion of counsel for the Placement Agent, is material or omits to state any fact which, in the opinion of such
counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
C.
All corporate proceedings and other legal matters incident to the authorization, form, execution, delivery and validity of each
of this Agreement, the other Transaction Documents, the Securities, the Registration Statement, the Base Prospectus and the Prospectus
Supplement and all other legal matters relating to this Agreement and the transactions contemplated hereby and thereby shall be reasonably
satisfactory in all material respects to counsel for the Placement Agent and the Company shall have furnished to such counsel all documents
and information that they may reasonably request to enable them to pass upon such matters.
D.
The Placement Agent shall have completed its due diligence investigation of the Company to the satisfaction of the Placement Agent
and its counsel.
E. The Placement Agent shall have received from outside counsels to the Company such counsels’ written opinions, including,
without limitation, a negative assurance letter from applicable counsel, addressed to the Placement Agent and the Purchasers and dated
as of the Closing Date, in form and substance reasonably satisfactory to the Placement Agent.
F.
On the date of this Agreement and on the Closing Date, the Placement Agent shall have received a “comfort” letter from
each of the Company’s independent registered public accounting firm, Enrome, LLP and WWC, P.C, and a certificate of the chief financial
officer of the Company, as of each such date, addressed to the Placement Agent and in form and substance satisfactory in all respects
to the Placement Agent and Placement Agent’s counsel. Such officer shall also provide a customary certification as to such accounting
or financial matters that are included or incorporated by reference in the Registration Statement or the Prospectus that either Enrome,
LLP or WWC, P.C are unable to provide assurances on in the “comfort” letter contemplated by the immediately preceding sentence.
G.
On the Closing Date, Placement Agent shall have received a certificate of signed by each of the co-chief executive officers of
the Company, dated, as applicable, as of the date of such Closing, to the effect that, as of the date of this Agreement and as of the
Closing Date, the representations and warranties of the Company contained herein and in the Purchase Agreement were and are accurate in
all material respects, except for such changes as are contemplated by this Agreement and except as to representations and warranties that
were expressly limited to a state of facts existing at a time prior to the applicable Closing Date, and that, as of the applicable date,
the obligations to be performed by the Company hereunder on or prior thereto have been fully performed in all material respects.
H.
On the Closing Date, Placement Agent shall have received from the Company a certificate of the corporate secretary of the Company,
dated, as applicable, as of the date of such Closing, certifying to the organizational documents of the Company, good standing in the
jurisdiction of formation of the Company and board resolutions authorizing the Placement of the Securities.
I.
The Company (i) shall not have sustained since the date of the latest audited financial statements included or incorporated by
reference in the Registration Statement, the Base Prospectus and the Prospectus Supplement, any loss or interference with its business
as a result of any fire, explosion, flood, terrorist act, epidemic or pandemic (including as a result of the coronavirus known as COVID-19),
any change in general economic, political or financial conditions in the United States or elsewhere, act of war or other calamity, whether
or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in
or contemplated by the Registration Statement, the Base Prospectus and the Prospectus Supplement, and (ii) since such date there shall
not have been any change in the capital stock or long-term debt of the Company or any change, or any development involving a prospective
change, in or affecting the business, general affairs, management, financial position, shareholders’ equity, results of operations
or prospects of the Company, otherwise than as set forth in or contemplated by the Registration Statement, the Base Prospectus and the
Prospectus Supplement, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Placement Agent,
so material and adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Securities on the terms
and in the manner contemplated by the Base Prospectus, the Prospectus Supplement and the Purchase Agreement.
J.
The Common Stock is registered under the Exchange Act and, as of the Closing Date, the Company has submitted the notification of
listing of additional Common Stock, including the Offered Shares, the Warrants and the Pre-Funded Warrants to the Trading Market or other
U.S. applicable national exchange, and the Offered Shares, the Warrants and the Pre-Funded Warrants shall be listed for trading on the
Trading Market or other applicable U.S. national exchange and reasonable evidence of such action, if available, shall have been provided
to the Placement Agent. The Company shall have taken no action designed to terminate, or likely to have the effect of, terminating the
registration of the Common Stock under the Exchange Act or delisting or suspending from trading the Common Stock from the Trading Market
or other applicable U.S. national exchange, nor has the Company received any information suggesting that the Commission or the Trading
Market or other U.S. applicable national exchange is contemplating terminating such registration or listing.
K.
No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental
agency or body which would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect
or potentially and adversely affect the business or operations of the Company; and no injunction, restraining order or order of any other
nature by any federal or state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance
or sale of the Securities or materially and adversely affect or potentially and adversely affect the business or operations of the Company.
L.
The Company shall have prepared and filed with the Commission a Current Report on Form 8-K with respect to the Placement, including
as an exhibit thereto this Agreement.
M.
The Company shall have entered into a Purchase Agreement with each of the Purchasers and such agreements shall be in full force
and effect and shall contain representations, warranties and covenants of the Company as agreed between the Company and the Purchasers.
N.
FINRA shall have raised no objection to the fairness and reasonableness of the terms and arrangements of this Agreement. In addition,
the Company shall, if requested by the Placement Agent, make or authorize Placement Agent’s counsel to make on the Company’s
behalf, any filing with the FINRA Corporate Financing Department pursuant to FINRA Rule 5110 with respect to the Placement and pay all
filing fees required in connection therewith.
O.
The Company shall apply the net proceeds from the Placement received by it in a manner consistent with the application thereof
described under the caption or heading “Use of Proceeds” in the Registration Statement, the Base Prospectus, the Prospectus
Supplement and the Purchase Agreement.
P.
Prior to the Closing Date, the Company shall have furnished to the Placement Agent such further information, certificates and documents
as the Placement Agent may reasonably request.
If any of the conditions specified in this Section
8 shall not have been fulfilled when and as required by this Agreement, or if any of the certificates, opinions, written statements or
letters furnished to the Placement Agent or to Placement Agent’s counsel pursuant to this Section 8 shall not be reasonably satisfactory
in form and substance to the Placement Agent and to Placement Agent’s counsel, all obligations of the Placement Agent hereunder
may be cancelled by the Placement Agent at, or at any time prior to, the consummation of the Closing. Notice of such cancellation shall
be given to the Company in writing or orally. Any such oral notice shall be confirmed promptly thereafter in writing.
SECTION 9. RIGHT OF
FIRST REFUSAL. Subject to the Placement Agent’s consummation of this Placement, beginning on the Closing Date of such
Placement until the eighteen (18)-month anniversary following the Closing Date (the “ROFR Period”), whether or
not this Agreement is terminated pursuant to Section 5, other than termination for Cause (as defined below), the Company grants the
Placement Agent the right to provide investment banking services to the Company on an exclusive basis in all matters for which the
following investment banking services are sought by the Company (such right, the “ROFR”), which right is
exercisable in the Placement Agent’s sole discretion and which right shall not have a duration of more than three (3) years
from the commencement of the sales of the Securities in the Placement or the termination of the Placement Agent’s engagement
hereby in accordance with FINRA Rule 5110(g)(6)(A). For these purposes, investment banking services shall mean (a) acting as lead
manager for any underwritten public offering; (b) acting as exclusive placement agent, initial purchaser or financial advisor in
connection with any private offering of securities of the Company; and (c) acting as financial advisor in connection with any sale
or other transfer by the Company, directly or indirectly, of a majority or controlling portion of its capital stock or assets to
another entity, any purchase or other transfer by another entity, directly or indirectly, of a majority or controlling portion of
the capital stock or assets of the Company, and any merger or consolidation of the Company with another entity. Within five (5) days
after the Company’s decision to enter into any such transaction, the Company shall provide written notice to the Placement
Agent, and the Placement Agent shall notify the Company of its intention to exercise the ROFR within fifteen (15) business days
following receipt of such written notice from the Company. Any decision by the Placement Agent to act in any such capacity shall be
contained in separate agreements, which agreements would contain, among other matters, provisions for customary fees for
transactions of similar size and nature, as may be mutually agreed upon by the parties thereto, and indemnification of the Placement
Agent which are appropriate to such transaction and shall be subject to general market conditions. If the Placement Agent declines
to exercise the ROFR or in the event the terms proposed by the Placement Agent are unsatisfactory to the Company, the Company shall
have the right to retain any other person or persons to provide such services on terms and conditions which are not more favorable
to such other person or persons than the terms declined by the Placement Agent in the first instance, or than the terms proposed by
the Placement Agent in the second instance. The ROFR granted hereunder may be terminated by the Company for “Cause”,
which shall mean a material breach by the Placement Agent of this Agreement or a material failure by the Placement Agent to provide
the services as contemplated by this Agreement. The services provided by the Placement Agent hereunder are solely for the benefit of
the Company and are not intended to confer any rights upon any persons or entities not a party hereto (including, without
limitation, securityholders, employees or creditors of the Company) as against the Placement Agent or its directors, officers,
agents and employees.
SECTION 10.
GOVERNING LAW. This Agreement will be governed by, and construed in accordance with, the laws of the State of New York applicable
to agreements made and to be performed entirely in such State. This Agreement may not be assigned by either party without the prior written
consent of the other party. This Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective
successors and permitted assigns. Any right to trial by jury with respect to any dispute arising under this Agreement or any transaction
or conduct in connection herewith is waived. Any dispute arising under this Agreement may be brought into the courts of the State of New
York or into the Federal Court located in New York, New York and, by execution and delivery of this Agreement, the Company hereby accepts
for itself and in respect of its property, generally and unconditionally, the jurisdiction of aforesaid courts. Each party hereto hereby
irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by delivering
a copy thereof via overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this
Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any manner permitted by law. If either party shall commence an action
or proceeding to enforce any provisions of a Transaction Document, then the prevailing party in such action or proceeding shall be reimbursed
by the other party for its attorney’s fees and other costs and expenses incurred with the investigation, preparation and prosecution
of such action or proceeding.
SECTION 11.
ENTIRE AGREEMENT/MISC. This Agreement (including the Indemnification Provisions attached hereto as Addendum A) embodies
the entire agreement and understanding between the parties hereto with respect to this Placement, and supersedes all prior agreements
and understandings, relating to the subject matter hereof. If any provision of this Agreement is determined to be invalid or unenforceable
in any respect, such determination will not affect such provision in any other respect or any other provision of this Agreement, which
will remain in full force and effect. This Agreement may not be amended or otherwise modified or waived except by an instrument in writing
signed by both the Placement Agent and the Company. The representations, warranties, agreements and covenants contained herein shall survive
the Closing of the Placement and delivery of the Securities. This Agreement may be executed in two or more counterparts, all of which
when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each
party hereto and delivered to the other party hereto, it being understood that both parties hereto need not sign the same counterpart.
In the event that any signature is delivered by facsimile transmission or a .pdf format file, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile
or .pdf signature page were an original thereof.
SECTION 12.
CONFIDENTIALITY. The Placement Agent (i) will keep the Confidential Information (as such term is defined below) confidential
and will not (except as required by applicable law or Trading Market or other stock exchange requirement, regulation or legal process
(“Legal Requirement”)), without the Company’s prior written consent, disclose to any person any Confidential
Information, and (ii) will not use any Confidential Information other than in connection with the Placement. The Placement Agent further
agrees to disclose the Confidential Information only to its Representatives (as such term is defined below) who need to know the Confidential
Information for the purpose of the Placement, and who are informed by the Placement Agent of the confidential nature of the Confidential
Information. The term “Confidential Information” shall mean, all confidential, proprietary and non-public information
(whether written, oral or electronic communications) furnished by the Company to the Placement Agent or its Representatives in connection
with such Placement Agent’s evaluation of the Placement. The term “Confidential Information” will not, however,
include information which (i) is or becomes publicly available other than as a result of a disclosure by the Placement Agent or its Representatives
in violation of this Agreement, (ii) is or becomes available to the Placement Agent or any of its Representatives on a non-confidential
basis from a third-party, (iii) is known to the Placement Agent or any of its Representatives prior to disclosure by the Company or any
of its Representatives, or (iv) is or has been independently developed by the Placement Agent and/or the Representatives without use of
any Confidential Information furnished to it by the Company. The term “Representatives” shall mean with respect to
the Placement Agent, its directors, board committees, officers, employees, financial advisors, attorneys and accountants. This provision
shall be in full force until the earlier of (a) the date on which the Confidential Information ceases to be confidential and (b) two years
from the date hereof. Notwithstanding any of the foregoing, in the event that the Placement Agent or any of its Representatives are required
by Legal Requirement to disclose any of the Confidential Information, the Placement Agent and its Representatives will furnish only that
portion of the Confidential Information which the Placement Agent or its Representative, as applicable, is required to disclose by Legal
Requirement as advised by counsel, and will use reasonable efforts to obtain reliable assurance that confidential treatment will be accorded
the Confidential Information so disclosed.
SECTION 13.
NOTICES. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall
be in writing and shall be deemed given and effective on the earliest of (a) the date of transmission, if such notice or communication
is sent to the email address specified on the signature pages attached hereto prior to 6:30 p.m. (New York City time) on a business day,
(b) the next business day after the date of transmission, if such notice or communication is sent to the email address on the signature
pages attached hereto on a day that is not a business day or later than 6:30 p.m. (New York City time) on any business day, (c) the third
business day following the date of mailing, if sent by U.S. internationally recognized air courier service, or (d) upon actual receipt
by the party to whom such notice is required to be given. The address for such notices and communications shall be as set forth on the
signature pages hereto.
SECTION 14.
PRESS ANNOUNCEMENTS. The Company agrees that the Placement Agent shall, from
and after any Closing, have the right to reference the Placement and the Placement Agent’s role in connection therewith in the Placement
Agent’s marketing materials and on its website and to place advertisements in financial and other newspapers and journals, in each
case at its own expense.
[The remainder of this page has been intentionally
left blank.]
Please confirm that the foregoing
correctly sets forth our agreement by signing and returning to Univest the enclosed copy of this Agreement.
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Very truly yours, |
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|
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UNIVEST SECURITIES, LLC |
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|
|
By: |
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|
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Name: Edric Yi Guo |
|
|
Title: CEO and Head of Investment Banking |
|
|
|
|
Address for notice: |
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|
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75 Rockefeller Plaza #1838 |
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New York, New York 10019 |
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Attention: Edric Guo |
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Email: yguo@univest.us |
Accepted and Agreed to as of
the date first written above:
GD CULTURE GROUP LIMITED |
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|
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By: |
|
|
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Name: Xiaojian Wang |
|
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Title: Chief Executive Officer |
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|
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Address for notice: |
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GD Culture Group Limited |
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Flat 1512, 15F, Lucky Centre, |
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No.165-171 Wan Chai Road |
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Wan Chai, Hong Kong |
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Attention: Xiaojian Wang |
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Email: xiaojian.gdc@gmail.com |
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[Signature Page to Placement Agency Agreement
Between GD Culture Group Limited and Univest Securities, LLC]
ADDENDUM A
INDEMNIFICATION
PROVISIONS
In connection with the engagement
of Univest Securities, LLC (“Univest” or the “Lead Manager”) or together with other broker dealers registered
with FINRA and caused by Univest to also act as a manager in connection with the Placements of the Securities (the “Lead Managers”)
to be issued by GD Culture Group Limited (the “Company”) pursuant to the Placement Agency Agreement, dated November 1, 2023,
by and between the Company and the Lead Manager(s), as it may be amended from time to time in writing (the “Agreement”), the
Company hereby agrees as follows (capitalized terms used herein without definition shall have the meanings ascribed to such terms in the
Agreement):
1.
To the extent permitted by law, the Company shall indemnify the Lead Manager(s) and each of their respective affiliates, directors,
officers, employees, agents and controlling persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act) against all joint or several losses, claims, damages, expenses and liabilities (or actions, including shareholder actions, in respect
thereof), as the same are incurred (including the reasonable fees and expenses of counsel), relating to or arising out of its activities
hereunder or pursuant to the Agreement, including, without limitation, those which arise out of or are based on (i) any untrue statement
or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including the information
deemed to be a part of the Registration Statement at the time of effectiveness and at any subsequent time pursuant to Rules 430A and 430B
of the Securities Act and the rules and regulations thereunder, as applicable, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements therein not misleading, (ii) any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus or Prospectus Supplement (or any amendment or supplement to any of the foregoing)
or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, (iii) any untrue statement or alleged untrue statement of a material fact contained
in any materials or information provided to investors by, or with the approval of, the Company in connection with the marketing of the
offering of the Securities, including any roadshow or investor presentations made to investors by the Company (whether in person or electronically)
or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or (iv) in whole or in part any inaccuracy in any material respect in the representations
and warranties of the Company contained herein or in the Purchase Agreement; provided however, with regard to the Lead Managers, the Company
shall not be obligated to indemnify the Lead Manager(s) or such other person or entities under this Section 1 to the extent that any losses,
claims, damages, expenses or liabilities (or actions in respect thereof) are found in a final judgment (not subject to appeal) by a court
of competent jurisdiction to have resulted primarily and directly from the willful misconduct or gross negligence of the Lead Manager(s)
in performing the services described herein, as the case may be. The Company also agrees that no Lead Manager shall have any liability
(whether direct or indirect, in contract or tort or otherwise) to the Company or its security holders or creditors related to or arising
out of the engagement of the Lead Manager(s) pursuant to, or the performance by the Lead Manager(s) of the services contemplated by, this
Agreement except to the extent that any loss, claim, damage or liability is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted primarily from the willful misconduct or gross negligence of the Lead Manager(s).
2.
Promptly after receipt by the Lead Manager(s) of notice of any claim or the commencement of any action or proceeding with respect
to which the Lead Manager(s) are entitled to indemnity hereunder, the Lead Manager(s) will notify the Company in writing of such claim
or of the commencement of such action or proceeding, and the Company will assume the defense of such action or proceeding and will employ
counsel reasonably satisfactory to the Lead Manager(s) and will pay the fees and expenses of such counsel. Notwithstanding the preceding
sentence, the Lead Manager(s) will be entitled to employ counsel separate from counsel for the Company and from any other party in such
action if counsel for the Lead Manager(s) reasonably determines that it would be inappropriate under the applicable rules of professional
responsibility for the same counsel to represent both the Company and the Lead Manager(s). In such event, the reasonable fees and disbursements
of no more than one such separate counsel will be paid by the Company. The Company will have the exclusive right to settle the claim or
proceeding provided that the Company will not settle any such claim, action or proceeding without the prior written consent of the Lead
Manager(s), which will not be unreasonably withheld.
3.
The Company agrees to notify the Lead Manager(s) promptly of the assertion against it or any other person of any claim or the commencement
of any action or proceeding relating to a transaction contemplated by the Agreement.
4.
If for any reason the foregoing indemnity is unavailable to the Lead Manager(s) or insufficient to hold such Lead Manager(s) harmless,
then the Company shall contribute to the amount paid or payable by the Lead Manager(s), as the case may be, as a result of such losses,
claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by the Company
on the one hand, and the Lead Manager(s) on the other, but also the relative fault of the Company on the one hand and the Lead Manager(s)
on the other that resulted in such losses, claims, damages or liabilities, as well as any relevant equitable considerations. The amounts
paid or payable by a party in respect of losses, claims, damages and liabilities referred to above shall be deemed to include any legal
or other fees and expenses incurred in defending any litigation, proceeding or other action or claim. Notwithstanding the provisions hereof,
the share of the liability of the Lead Manager(s) hereunder shall not be in excess of the amount of fees actually received, or to be received,
by the Lead Manager(s) under the Agreement (excluding any amounts received as reimbursement of expenses incurred by the Lead Manager(s)
t).
5.
These Indemnification Provisions shall remain in full force and effect whether or not the transactions contemplated by the Agreement
are completed and shall survive the termination of the Agreement, and shall be in addition to any liability that the Company might otherwise
have to any indemnified party under the Agreement or otherwise.
[The remainder of this page has been intentionally
left blank.]
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Very truly yours, |
|
|
|
UNIVEST SECURITIES, LLC |
|
|
|
By: |
|
|
|
Name: Edric Yi Guo |
|
|
Title: CEO and Head of Investment Banking |
|
|
|
|
Address for notice: |
|
|
|
75 Rockefeller Plaza #1838 |
|
New York, New York 10019 |
|
Attention: Edric Guo |
|
Email: yguo@univest.us |
Accepted and Agreed to as of
the date first written above:
GD CULTURE GROUP LIMITED |
|
|
|
By: |
|
|
|
Name: Xiaojian Wang |
|
|
Title: Chief Executive Officer |
|
|
|
Address for notice: |
|
|
|
GD Culture Group Limited |
|
Flat 1512, 15F, Lucky Centre, |
|
No.165-171 Wan Chai Road |
|
Wan Chai, Hong Kong |
|
Attention: Xiaojian Wang |
|
Email: xiaojian.gdc@gmail.com |
|
Exhibit 10.2
SECURITIES PURCHASE
AGREEMENT
This Securities Purchase Agreement
(this “Agreement”) is dated as of October 31, 2023, between GD Culture Group Limited, a Nevada corporation (the “Company”),
and each purchaser identified on the signature pages hereto (each, including its successors and assigns, a “Purchaser”
and collectively the “Purchasers”).
WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant to an effective registration statement under the Securities
Act of 1933, as amended (the “Securities Act”), the Company desires to
issue and sell to each Purchaser, and each Purchaser, severally and not jointly, desires to purchase from the Company, securities of the
Company as more fully described in this Agreement.
NOW, THEREFORE, IN CONSIDERATION
of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt and adequacy of which are
hereby acknowledged, the Company and each Purchaser agree as follows:
ARTICLE
I
DEFINITIONS
1.1
Definitions. In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following
terms have the meanings set forth in this Section 1.1:
“Acquiring
Person” shall have the meaning ascribed to such term in Section 4.4.
“Action”
shall have the meaning ascribed to such term in Section 3.1(j).
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person as such terms are used in and construed under Rule 405 under the Securities Act.
“Applicable
Laws” shall have the meaning ascribed to such term in Section 3.1 (n).
“Authorizations”
shall have the meaning ascribed to such term in Section 3.1 (n).
“Board
of Directors” means the board of directors of the Company.
“Business
Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day
on which the Federal Reserve Bank of New York are authorized or required by law or other governmental action to close; provided, however,
for clarification, commercial banks shall not be deemed to be authorized or required by law to remain closed due to “stay at home”,
“shelter-in-place”, “non-essential employee” or any other similar orders or restrictions or the closure of any
physical branch locations at the direction of any governmental authority so long as the electronic funds transfer systems (including for
wire transfers) of commercial banks in The City of New York are generally are open for use by customers on such day.
“Closing”
means the closing of the purchase and sale of the Securities pursuant to Section 2.1.
“Closing
Date” means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable parties
thereto, and all conditions precedent to (i) the Purchasers’ obligations to pay the Subscription Amount and (ii) the Company’s
obligations to deliver the Securities, in each case, have been satisfied or waived, but in no event later than the second (2nd)
Trading Day following the date hereof.
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the shares of common stock, par value $0.0001, of the Company.
“Common
Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire
at any time shares of 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, shares of
Common Stock.
“Company
U.S. Counsel” means Ortoli Rosenstadt LLP, with offices at 366 Madison Avenue, 3rd Floor, New York, NY 10017.
“Company
PRC Counsel” means Shanghai K-INSIGHT Law Firm, with offices located at Room 2504 Tower B Oriental Financial Plaza 168 Century
Avenue, Shanghai, P.R.C., 200122.
“Disclosure
Schedules” means the Disclosure Schedules of the Company delivered concurrently herewith.
“Evaluation
Date” shall have the meaning ascribed to such term in Section 3.1(s).
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended.
“GAAP”
shall have the meaning ascribed to such term in Section 3.1(h).
“Indebtedness”
shall have the meaning ascribed to such term in Section 3.1(aa).
“Intellectual
Property Rights” shall have the meaning ascribed to such term in Section 3.1(p).
“Liens”
means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Material
Adverse Effect” shall have the meaning assigned to such term in Section 3.1(b).
“Offered
Shares” means the shares of Common Stock issued or issuable to each Purchaser pursuant to this Agreement.
“Per Share
Purchase Price” equals $3.019, subject to adjustment for reverse and forward share splits, share dividends, share combinations
and other similar transactions with respect to the Common Stock that occur between the date hereof and the Closing Date.
“Per Pre-Funded
Warrant Purchase Price” equals $3.018, subject to adjustment for reverse and forward share splits, share dividends, share combinations
and other similar transactions with respect to the Common Stock that occur after the date of this Agreement.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company,
joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Placement
Agent” means Univest Securities LLC.
“Placement
Agency Agreement” means the Placement Agency Agreement by and between the Company and the Placement Agent dated the date hereof.
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding,
such as a deposition), whether commenced or threatened.
“Prospectus”
means the final prospectus filed for the Registration Statement.
“Prospectus
Supplement” means the supplement to the Prospectus complying with Rule 424(b) of the Securities Act that is filed with the Commission
and delivered by the Company to each Purchaser at the Closing.
“Purchaser
Party” shall have the meaning ascribed to such term in Section 4.8.
“Pre-Funded
Warrants” means, the Pre-Funded Purchase Warrants delivered to the Purchasers at the Closing in accordance with Section 2.2(a)
hereof, which Pre-Funded Warrants shall be exercisable immediately and until the Pre-Funded Warrants are exercised in full, in the form
of Exhibit A attached hereto, and which are being registered pursuant to the Registration Statement.
“Registration
Statement” means the effective registration statement on Form S-3 (File No. 333-254366) filed with Commission and which registers
the Offered Shares, the Registered Warrants, the Registered Warrant Shares, the Warrant Shares and the Pre-Funded Warrants.
“Registered
Warrants” means, the Common Stock Purchase Warrants delivered to the Purchasers at the Closing in accordance with Section 2.2(a)
hereof, which warrants shall be exercisable immediately and have a term of exercise equal to five (5) years from the Closing Date, in
the form of Exhibit B attached hereto, and which are being registered pursuant to the Registration Statement.
“Registered
Warrant Shares” means the shares of Common Stock issuable upon exercise of the Registered Warrants and which are being registered
pursuant to the Registration Statement.
“Required
Approvals” shall have the meaning ascribed to such term in Section 3.1(e).
“Rule 144”
means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time,
or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“Rule 424”
means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time,
or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“SEC Reports”
shall have the meaning ascribed to such term in Section 3.1(h).
“Securities”
means the Offered Shares, the Registered Warrants and the Pre-Funded Warrants.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Short
Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be
deemed to include locating and/or borrowing shares of Common Stock).
“Subscription
Amount” means, as to each Purchaser, the aggregate amount to be paid for the Offered Shares, the Pre-Funded Warrants and Registered
Warrants purchased hereunder as specified below such Purchaser’s name on the signature page of this Agreement and next to the heading
“Subscription Amount,” in United States dollars and in immediately available funds.
“Subsidiary”
means any subsidiary of the Company as set forth on Schedule 3.1(a), and shall, where applicable, also include any direct or indirect
subsidiary of the Company formed or acquired after the date hereof.
“Trading
Day” means a day on which the principal Trading Market is open for trading.
“Trading
Market” means any of the following markets or exchanges on which the shares of Common Stock are listed or quoted for trading
on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the
New York Stock Exchange (or any successors to any of the foregoing).
“Transaction
Documents” means this Agreement and the Placement Agency Agreement, all exhibits and schedules hereto and thereto, the Registered
Warrants, the Pre-Funded Warrants, and any other documents or agreements executed in connection with the transactions contemplated hereunder.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or
quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30
a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average
price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not
then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on the Pink Open Market (or a
similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of Common Stock so
reported, or (d) in all other cases, the fair market value of each share of Common Stock as determined by an independent appraiser selected
in good faith by the holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company, the
fees and expenses of which shall be paid by the Company.
“Warrant
Shares” means the shares of Common Stock issuable upon exercise of the Pre-Funded Warrants and which are being registered pursuant
to the Registration Statement.
ARTICLE
II
PURCHASE AND SALE
2.1
Closing. On the Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent with
the execution and delivery of this Agreement by the parties hereto, the Company agrees to sell, and the Purchasers, severally and not
jointly, agree to purchase, (i) the number of shares of Common Stock set forth under the heading “Subscription Amount” on
the Purchaser’s signature page hereto, at the Per Share Purchase Price; provided, however, that, to the extent that a Purchaser
determines, in its sole discretion, that such Purchaser (together with such Purchaser’s Affiliates, and any Person acting as a group
together with such purchaser or any of such Holder’s Affiliates) would beneficially own in excess of the Beneficial Ownership Maximum
(as defined below), or as such Purchaser may otherwise choose, in lieu of purchasing shares of Common Stock such Purchaser may elect to
purchase Pre-Funded Warrants in lieu of shares of Common Stock in such manner to result in the full Subscription Amount being paid by
such Purchaser to the Company and ii) Registered Warrants to purchase Registered Warrant Shares equal to the total number of shares of
Common Stock and Pre-Funded Warrant Shares. Each Purchaser’s Subscription Amount as set forth on the signature page hereto executed
by such Purchaser shall be made available for “Delivery Versus Payment” (“DVP”) settlement with the Company
or its designee. The Company shall deliver to each Purchaser its respective Offered Shares, the Registered Warrants and Pre-Funded Warrants,
as applicable, as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in
Section 2.2 deliverable at the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Closing
shall occur at the offices of Placement Agent’s counsel or at such other location as the parties shall mutually agree or virtually
in accordance with the provisions of this Agreement. Unless otherwise directed by the Placement Agent, settlement of the Offered Shares
shall occur via DVP (i.e., on the Closing Date, the Company shall issue the Offered Shares registered in the Purchasers’ names and
addresses and released by the Depositary directly to the account(s) at the Placement Agent identified by each Purchaser; upon receipt
of such Offered Shares, the Placement Agent shall promptly electronically deliver such Offered Shares to the applicable Purchaser, and
payment therefor shall be made by the Placement Agent (or its clearing firm) by wire transfer to the Company). Notwithstanding anything
to the contrary hereunder, to the extent that a Purchaser determines, in its sole discretion, that such Purchaser (together with such
Purchaser’s Affiliates, and any Person acting as a group together with such purchaser or any of such Purchaser’s Affiliates)
would beneficially own in excess of 4.99% or 9.99%, as applicable, of the number of shares of Common Stock outstanding immediately prior
to giving effect to the issuance of the Offered Shares on the Closing Date (“Beneficial Ownership Maximum”), such Purchaser
may elect to receive only the Beneficial Ownership Maximum at the Closing with the balance of any shares of Common Stock purchased hereunder,
if any, held in abeyance for such Purchaser and issued immediately following the Closing provided in no event shall such Purchaser’s
beneficial ownership ever exceed the Beneficial Ownership Maximum. The determination pursuant to the provisions of the previous sentence
of whether any Purchaser’s beneficial ownership exceeds the Beneficial Ownership Maximum shall be in the sole discretion of such
Purchaser and the Company shall have no obligation to verify or confirm the accuracy of such determination.
2.2
Deliveries.
(a)
On or prior to the Closing Date, the Company shall deliver or cause to be delivered to each Purchaser and the Placement Agent the
following:
(i)
this Agreement duly executed by the Company;
(ii)
legal opinions of Company U.S. Counsel and Company PRC Counsel, each in a form reasonably satisfactory to the Placement Agent and
the Purchasers;
(iii)
a cold comfort letter, addressed to the Placement Agent from each of Enrome, LLP and WWC, P.C, the registered independent accountants
of the Company, in a form and substance reasonably satisfactory in all material respects to the Placement Agent;
(iv)
the Company shall have provided each Purchaser with the Company’s wire instructions, on Company letterhead and executed by
the Chief Executive Officer or Chief Financial Officer;
(v)
a copy of the irrevocable instructions to the Depositary instructing the Depositary to deliver on an expedited basis via The Depository
Trust Company Deposit or Withdrawal at Custodian System (“DWAC”) shares of Common Stock equal to such Purchaser’s
Subscription Amount divided by the Per Share Purchase Price, registered in the name of such Purchaser;
(vi)
a Registered Warrant registered in the name of such Purchaser to purchase up to such Purchaser’s pro-rata portion of Registered
Warrants, exercisable for up to the pro-rata portion of Registered Warrant Shares, as set forth on such Purchaser’s signature page,
with an exercise price equal to $3.019 per share, subject to adjustment therein;
(vii)
for each Purchaser of Pre-Funded Warrants pursuant to Section 2.1, a Pre-Funded Warrant registered in the name of such Purchaser
to purchase up to a number of shares of Common Stock equal to the portion of such Purchaser’s Subscription Amount applicable to
Pre-Funded Warrants divided by the Per Pre-Funded Warrant Purchase Price with an exercise price equal to $0.001, subject to adjustment
therein; and
(viii)
the Prospectus and Prospectus Supplement (which may be delivered in accordance with Rule 172 under the Securities Act).
(b)
On or prior to the Closing Date, each Purchaser shall deliver or cause to be delivered to the Company, the following:
(i)
this Agreement duly executed by such Purchaser; and
(ii)
such Purchaser’s Subscription Amount, which shall be made available for “Delivery Versus Payment” settlement
with the Company or its designee.
2.3
Closing Conditions.
(a)
The obligations of the Company hereunder in connection with the Closing are subject to the following conditions being met:
(i)
the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material
Adverse Effect, in all respects) on the Closing Date of the representations and warranties of the Purchasers contained herein (unless
as of a specific date therein in which case they shall be accurate as of such date);
(ii)
all obligations, covenants and agreements of each Purchaser required to be performed at or prior to the Closing Date shall have
been performed; and
(iii)
the delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement.
(b)
The respective obligations of the Purchasers hereunder in connection with the Closing are subject to the following conditions being
met:
(i)
the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material
Adverse Effect, in all respects) when made and on the Closing Date of the representations and warranties of the Company contained herein
(unless as of a specific date therein in which case they shall be accurate as of such date);
(ii)
all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been
performed;
(iii)
the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv)
there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(v)
from the date hereof to the Closing Date, trading in the Common Stock and the Company’s securities shall not have been suspended
by the Commission or any principal Trading Market, and, at any time prior to the Closing Date, trading in securities generally as reported
by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades
are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States
or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international
calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable
judgment of such Purchaser, makes it impracticable or inadvisable to purchase the Securities at the Closing.
ARTICLE
III
REPRESENTATIONS AND WARRANTIES
3.1
Representations and Warranties of the Company. Except as set forth in the Disclosure Schedules, which 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 hereby makes the following representations and warranties to each
Purchaser:
(a)
Subsidiaries. All of the direct and indirect Subsidiaries of the Company are set forth on Schedule 3.1(a). The Company
owns or controls, directly or indirectly, the percentage of the capital stock or other equity interests disclosed in Schedule 3.1(a)
of each Subsidiary of the Company free and clear of any Liens, and all of the issued and outstanding shares of capital stock of each Subsidiary
are validly issued and are fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securities.
(b)
Organization and Qualification. The Company and each of the Subsidiaries 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. Neither the Company nor any
Subsidiary is in violation or default of any of the provisions of its respective certificate or articles of incorporation, bylaws or other
organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business and is in good standing
as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes
such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, could not have or reasonably
be expected to result in: (i) a material adverse effect on the legality, validity or enforceability of any Transaction Document, (ii)
a material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the Company
and the Subsidiaries, taken as a whole, or (iii) a material adverse effect on the Company’s ability to perform in any material respect
on a timely basis its obligations under any Transaction Document (any of (i), (ii) or (iii), 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.
(c)
Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate
the transactions contemplated by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations
hereunder and thereunder. The execution and delivery of this Agreement and each of the other Transaction Documents by the Company and
the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part
of the Company and no further action is required by the Company, the Board of Directors, a committee of the Board of Directors or the
Company’s shareholders in connection herewith or therewith other than in connection with the Required Approvals. This Agreement
and each other Transaction Document to which it is a party has been (or upon delivery will have been) duly executed by the Company and,
when delivered in accordance with the terms hereof and thereof, will constitute the valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited
by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification
and contribution provisions may be limited by applicable law.
(d)
No Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents
to which it is a party, the issuance and sale of the Securities and the consummation by it of the transactions contemplated hereby and
thereby do not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or
articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with, or constitute a default (or an
event that with notice or lapse of time or both would become a default) under, result in the creation of any Lien upon any of the properties
or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment, anti-dilution or similar adjustments,
acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, Indebtedness or other
instrument (evidencing a Company or Subsidiary Indebtedness or otherwise) or other understanding to which the Company or any Subsidiary
is a party or by which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals,
conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court
or governmental authority to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations),
or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and
(iii), such as could not have or reasonably be expected to result in a Material Adverse Effect.
(e)
Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give
any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or other
Person in connection with the execution, delivery and performance by the Company of the Transaction Documents, other than: (i) the filings
required pursuant to Section 4.4 of this Agreement, (ii) the filing with the Commission of the Prospectus Supplement, (iii) the filing
and approval of the application(s) to each applicable Trading Market for the listing of the Offered Shares and Pre-Funded Warrants for
trading thereon in the time and manner required thereby and (iv) such filings as are required to be made under applicable state securities
laws (collectively, the “Required Approvals”).
(f)
Issuance of the Securities; Registration. 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 nonassessable, free and clear of all Liens
imposed by the Company. The Company has reserved from its duly authorized capital stock the maximum number of shares of Common Stock,
including shares of Common Stock issuable upon exercise of the Pre-Funded Warrants issuable pursuant to this Agreement. The shares of
Common Stock issuable upon exercise of the Pre-Funded Warrants, when issued in accordance with the
terms of the Pre-Funded Warrants, respectively, will be validly issued, fully paid and nonassessable,
free and clear of all Liens imposed by the Company. The Company has prepared and filed the Registration Statement in conformity
with the requirements of the Securities Act, which became effective on March 26, 2021 (the “Effective Date”), including
the Prospectus, and such amendments and supplements thereto as may have been required to the date of this Agreement. The Registration
Statement is effective under the Securities Act and no stop order preventing or suspending the effectiveness of the Registration Statement
or suspending or preventing the use of the Prospectus has been issued by the Commission and no proceedings for that purpose have been
instituted or, to the knowledge of the Company, are threatened by the Commission. The Company, if required by the rules and regulations
of the Commission, shall file the Prospectus with the Commission pursuant to Rule 424(b). At the time the Registration Statement and any
amendments thereto became effective as determined under the Securities Act, at the date of this Agreement and at the Closing Date, the
Registration Statement and any amendments thereto conformed and will conform in all material respects to the requirements of the Securities
Act and did not and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading; and the Prospectus and any amendments or supplements thereto, at the
time the Prospectus or any amendment or supplement thereto was issued and at the Closing Date, conformed and will conform in all material
respects to the requirements of the Securities Act and did not and will not contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made,
not misleading. The Company was at the time of the filing of the Registration Statement eligible to use Form S-3. The Company is eligible
to use Form S-3 under the Securities Act and it meets the transaction requirements with respect to the aggregate market value of securities
being sold pursuant to this offering and during the twelve (12) months prior to this offering, as set forth in General Instruction I.B.1
of Form S-3. All corporate action required to be taken for the authorization, issuance and sale of the Securities has been duly and validly
taken. The Offered Securities conform in all material respects to all statements with respect thereto contained in the Registration Statement,
the Prospectus and the Prospectus Supplement.
(g)
Capitalization. The capitalization of the Company as of the date hereof is as set forth on Schedule 3.1(g), which
Schedule 3.1(g) shall also include the number of shares of Common Stock owned beneficially, and of record, by Affiliates of the
Company as of the date hereof. 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. None of the Securities will be subject to the preemptive
rights of any holders of any security of the Company or similar contractual rights granted by the Company. Except as disclosed in the
Registration Statement, the Prospectus and the Prospectus Supplement, 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 the capital stock of any
Subsidiary, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to
issue additional shares of Common Stock or Common Stock Equivalents or capital stock of any Subsidiary. The issuance and sale of the Securities
will not obligate the Company or any Subsidiary to issue shares of Common Stock or other securities to any Person (other than the Purchasers).
Except as disclosed on Schedule 3.1(g), there are no outstanding securities or instruments of the Company or any Subsidiary with
any provision that adjusts the exercise, conversion, exchange or reset price of such security or instrument upon an issuance of securities
by the Company or any Subsidiary. There are no outstanding securities or instruments of the Company or any Subsidiary that contain any
redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any
Subsidiary is or may become bound to redeem a security of the Company or such Subsidiary. The Company does not have any stock appreciation
rights or “phantom stock” plans or agreements or any similar plan or agreement. All of the outstanding shares of capital stock
of the Company are duly authorized, validly issued, fully paid and nonassessable, have been issued in compliance with all federal and
state securities laws, and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe
for or purchase securities. No further approval or authorization of any stockholder, the Board of Directors or others is required for
the issuance and sale of the Securities. There are no shareholders 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 shareholders.
(h)
SEC Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required
to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the
three years preceding the date hereof (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, together with the Registration
Statement, Prospectus and the Prospectus Supplement, being collectively referred to herein as the “SEC Reports”). For
the twelve months preceding the date hereof, the Company has filed the SEC Reports on a timely basis (including any valid extension of
such time of filing provided under Rule 12b-25 or under coronavirus-related relief by the SEC) and has filed any such SEC Reports prior
to the expiration of any such extension. As of their respective dates, the SEC Reports complied in all material respects with the requirements
of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of
a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading. The Company is not and has never been an issuer subject
to Rule 144(i) under the Securities Act. The financial statements of the Company included in the SEC Reports comply in all material respects
with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time
of filing. Such financial statements have been prepared in accordance with United States generally accepted accounting principles applied
on a consistent basis during the periods involved (“GAAP”), except as may be otherwise specified in such financial
statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly
present in all material respects the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof
and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial,
year-end audit adjustments. The selected financial data set forth under the caption “Selected Financial Data” in the SEC Reports
fairly present, on the basis stated in such SEC Reports, the information included therein. The agreements and documents described in the
Registration Statement and the SEC Reports conform in all material aspects to the descriptions thereof contained therein and there are
no agreements or other documents required by the Securities Act and the rules and regulations thereunder to be described in the Registration
Statement, the Prospectus or the SEC Reports or to be filed with the Commission as exhibits to the Registration Statement, that have not
been so described or filed. Each agreement or other instrument (however characterized or described) to which the Company is a party or
by which it is or may be bound or affected and (i) that is referred to in the Registration Statement or the SEC Reports, or (ii) is material
to the Company’s business, has been duly authorized and validly executed by the Company, is in full force and effect in all material
respects and is enforceable against the Company and, to the Company’s knowledge, the other parties thereto, in accordance with its
terms, except (x) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’
rights generally, (y) as enforceability of any indemnification or contribution provision may be limited under the federal and state securities
laws, and (z) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable
defenses and to the discretion of the court before which any proceeding therefore may be brought. None of such agreements or instruments
has been assigned by the Company, and neither the Company nor, to the best of the Company’s knowledge, any other party is in default
thereunder and, to the best of the Company’s knowledge, no event has occurred that, with the lapse of time or the giving of notice,
or both, would constitute a default thereunder. To the best of the Company’s knowledge, performance by the Company of the material
provisions of such agreements or instruments will not result in a violation of any existing applicable law, rule, regulation, judgment,
order or decree of any governmental agency or court, domestic or foreign, having jurisdiction over the Company or any of its assets or
businesses, including, without limitation, those relating to environmental laws and regulations.
(i)
Material Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements
included within the SEC Reports, except as set forth on Schedule 3.1(i), (i) there has been no event, occurrence or development
that has had or that could reasonably be expected to result in a Material Adverse Effect, (ii) the Company has not incurred any liabilities
(contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with
past practice and (B) liabilities not required to be reflected in the Company’s financial statements pursuant to GAAP or disclosed
in filings made with the Commission, (iii) the Company has not altered its method of accounting, (iv) the Company has not declared or
made any dividend or distribution of cash or other property to its shareholders or purchased, redeemed or made any agreements to purchase
or redeem any shares of its capital stock and (v) the Company has not issued any equity securities to any officer, director or Affiliate,
except pursuant to existing stock incentive plans, the issuance of Common Stock Equivalents as disclosed in the SEC Reports. The Company
does not have pending before the Commission any request for confidential treatment of information. Except for the issuance of the Securities
contemplated by this Agreement or as set forth on Schedule 3.1(i), no event, liability, fact, circumstance, occurrence or development
has occurred or exists or is reasonably expected to occur or exist with respect to the Company or its Subsidiaries or their respective
businesses, prospects, properties, operations, assets or financial condition that would be required to be disclosed by the Company under
applicable securities laws at the time this representation is made or deemed made that has not been publicly disclosed at least one (1)
Trading Day prior to the date that this representation is made. Unless otherwise disclosed in an SEC Report filed prior to the date hereof,
the Company has not: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money; or (ii)
declared or paid any dividend or made any other distribution on or in respect to its capital stock.
(j)
Litigation. Except as set forth on Schedule 3.1(j), there is no action, suit, inquiry, notice of violation, proceeding
or investigation pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their
respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state,
county, local or foreign) (collectively, an “Action”). None of the Actions set forth on Schedule 3.1(j), (i)
adversely affects or challenges the legality, validity or enforceability of any of the Transaction Documents or the Securities or (ii)
could, if there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect. Neither the Company
nor any Subsidiary, nor any director or officer thereof, is or has been the subject of any Action involving a claim of violation of or
liability under federal or state securities laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the
Company, there is not pending or threatened, any investigation by the Commission involving the Company or any current or former director
or officer of the Company. There are no Actions required to be disclosed in the SEC Reports that have not been disclosed. The Commission
has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary
under the Exchange Act or the Securities Act.
(k)
Labor Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees
of the Company, which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’
employees is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither the
Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe that
their relationships with their employees are good. To the knowledge of the Company, no executive officer of the Company or any Subsidiary,
is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary
information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third
party, and the continued employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability
with respect to any of the foregoing matters. The Company and its Subsidiaries are in compliance with all U.S. federal, state, local and
foreign laws and regulations relating to employment and employment practices, terms and conditions of employment and wages and hours,
except where the failure to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
(l)
Compliance. Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred
that has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under),
nor has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture,
loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound
(whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator
or other governmental authority or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental
authority, including without limitation all foreign, federal, state and local laws relating to taxes, environmental protection, occupational
health and safety, product quality and safety and employment and labor matters, except in each case as could not have or reasonably be
expected to result in a Material Adverse Effect.
(m)
Environmental Laws. The Company and its Subsidiaries (i) are in compliance with all federal, state, local and foreign laws
relating to pollution or protection of human health or the environment (including ambient air, surface water, groundwater, land surface
or subsurface strata), including laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants,
or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials,
as well as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments, licenses, notices or notice letters,
orders, permits, plans or regulations, issued, entered, promulgated or approved thereunder (“Environmental Laws”);
(ii) have received all permits licenses or other approvals required of them under applicable Environmental Laws to conduct their respective
businesses; and (iii) are in compliance with all terms and conditions of any such permit, license or approval where in each clause (i),
(ii) and (iii), the failure to so comply could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
(n)
Regulatory Permits. The Company and the Subsidiaries possess all certificates, licenses, authorizations approvals, clearances,
consents, registration and permits issued by the appropriate federal, state, local or foreign regulatory authorities applicable to the
Company (“Applicable Laws”) necessary to conduct their respective businesses as described in the SEC Reports, except
where the failure to possess such permits could not reasonably be expected to result in a Material Adverse Effect (each, an “Authorization”),
and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or modification of any Authorization
or the noncompliance with any ordinance, law, rule or regulation applicable to the Company. The disclosures in the Registration Statement
concerning the effects of federal, state, local and all foreign regulation on the Company’s business as currently contemplated are
correct in all material respects. The Company is and has been in material compliance with any term of any such Authorizations, except
for any violations which would not reasonably be expected to have a Material Adverse Effect. The Company has not received notice of any
claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action from any governmental authority or body
or third party alleging that any product, operation or activity is in violation of any Applicable Laws or Authorizations or has any knowledge
that any such entity or third party is considering any such claim, litigation, arbitration, action, suit, investigation or proceeding,
nor, to the Company’s knowledge, has there been any material noncompliance with or violation of any Applicable Laws by the Company
that could reasonably be expected to require the issuance of any such communication or result in an investigation, corrective action,
or enforcement action by any governmental body or entity.
(o)
Title to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned
by them and good and marketable title in all personal property owned by them that is material to the business of the Company and the Subsidiaries,
in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries and (ii) Liens for the payment
of federal, state or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP and, the payment of which
is neither delinquent nor subject to penalties. Any real property and facilities held under lease by the Company and the Subsidiaries
are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance.
(p)
Intellectual Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks,
trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights
and similar rights necessary or required for use in connection with their respective businesses as described in the SEC Reports and which
the failure to so have could have a Material Adverse Effect (collectively, the “Intellectual Property Rights”). Neither
the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property Rights has expired,
terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years from the date of this Agreement
except where such action would not reasonably be expected to have a Material Adverse Effect. Neither the Company nor any Subsidiary has
received, since the date of the latest audited financial statements included within the SEC Reports, a written notice of a claim or otherwise
has any knowledge that the Intellectual Property Rights or any of the Company’s products or planned products as described in the
SEC Reports violate or infringe upon the rights of any Person, except as could not have or reasonably be expected to not have a Material
Adverse Effect. To the knowledge of the Company, all such Intellectual Property Rights are enforceable and there is no existing infringement
by another Person of any of the Intellectual Property Rights. The Company and its Subsidiaries have taken reasonable security measures
to protect the secrecy, confidentiality and value of all of their intellectual properties, except where failure to do so could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(q)
Insurance. The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged,
including, but not limited to, directors and officers insurance coverage at least equal to the aggregate Subscription Amount. Neither
the Company nor any Subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business without a significant
increase in cost.
(r)
Transactions With Affiliates and Employees. Except as set forth on Schedule 3.1(r), none of the officers or directors
of the Company or any Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently
a party to any transaction with the Company or any Subsidiary (other than for services as employees, officers and directors), including
any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal
property to or from, providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial
interest or is an officer, director, trustee, stockholder, member or partner, in each case in excess of $120,000 other than for (i) payment
of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) other
employee benefits, including stock option agreements under any stock option plan of the Company.
(s)
Sarbanes-Oxley; Internal Accounting Controls. The Company and the Subsidiaries are in compliance with any and all applicable
requirements of the Sarbanes-Oxley Act of 2002 that are effective as of the date hereof, and any and all applicable rules and regulations
promulgated by the Commission thereunder that are effective as of the date hereof and as of the Closing Date. Except as set forth in the
SEC Reports, the Company and the Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance
that: (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access
to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability
for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
The Company and the Subsidiaries have established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)
for the Company and the Subsidiaries and designed such disclosure controls and procedures to ensure that information required to be disclosed
by the Company in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time
periods specified in the Commission’s rules and forms. The Company’s certifying officers have evaluated the effectiveness
of the disclosure controls and procedures of the Company and the Subsidiaries as of the end of the period covered by the most recently
filed periodic report under the Exchange Act (such date, the “Evaluation Date”). The Company presented in its most
recently filed periodic report under the Exchange Act the conclusions of the certifying officers about the effectiveness of the disclosure
controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation Date, there have been no changes in
the internal control over financial reporting (as such term is defined in the Exchange Act) of the Company and its Subsidiaries that have
materially affected, or is reasonably likely to materially affect, the internal control over financial reporting of the Company and its
Subsidiaries.
(t)
Certain Fees. Other than the compensation payable to the Placement Agent pursuant to the terms of the Placement Agency Agreement
and as set forth in the Prospectus relating to the placement of the Securities, no brokerage or finder’s fees or commissions are
or will be payable by the Company or any Subsidiary to any broker, financial advisor or consultant, finder, placement agent, investment
banker, bank or other Person with respect to the transactions contemplated by the Transaction Documents (for the avoidance of doubt, the
foregoing shall not include any fees and/or commissions owed to the Depositary). Other than for Persons engaged by any Purchaser, if any,
the Purchasers shall have no obligation with respect to any fees or with respect to any claims made by or on behalf of other Persons for
fees of a type contemplated in this Section that may be due in connection with the transactions contemplated by the Transaction Documents.
(u)
Investment Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Securities,
will not be or be an Affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
The Company shall conduct its business in a manner so that it will not become an “investment company” subject to registration
under the Investment Company Act of 1940, as amended.
(v)
Registration Rights. Except as described in the Registration Statement and the Prospectus, no Person has any right to cause
the Company or any Subsidiary to effect the registration under the Securities Act of any securities of the Company or any Subsidiary.
(w)
Listing and Maintenance Requirements. The shares of Common Stock are registered pursuant to Section 12(b) or 12(g) of the
Exchange Act, and the Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating
the registration of the Common Stocks under the Exchange Act nor has the Company received any notification that the Commission is contemplating
terminating such registration. Except as set forth in the Registration Statement, the Company has not, in the 12 months preceding the
date hereof, received notice from any Trading 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 Trading Market. Except as set forth in the Registration
Statement, 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. The Common Stock is currently eligible for electronic transfer through The Depository Trust
Company or another established clearing corporation and the Company is current in payment of the fees to The Depository Trust Company
(or such other established clearing corporation) in connection with such electronic transfer.
(x)
Application of Takeover Protections. The Company and the Board of Directors have taken all necessary action, if any, in
order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights
agreement) or other similar anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents)
or the laws of its state of incorporation that is or could become applicable to the Purchasers as a result of the Purchasers and the Company
fulfilling their obligations or exercising their rights under the Transaction Documents, including without limitation as a result of the
Company’s issuance of the Securities and the Purchasers’ ownership of the Securities.
(y)
Disclosure. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction
Documents, the Company confirms that neither it nor any other Person acting on its behalf has provided any of the Purchasers or their
agents or counsel with any information that it believes constitutes or might constitute material, non-public information which is not
otherwise disclosed in the Prospectus Supplement. The Company understands and confirms that the Purchasers will rely on the foregoing
representation in effecting transactions in securities of the Company. All of the disclosure furnished by or on behalf of the Company
to the Purchasers regarding the Company and its Subsidiaries, their respective businesses and the transactions contemplated hereby, including
the Disclosure Schedules to this Agreement, is true and correct and does not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were
made, not misleading. The press releases disseminated by the Company during the twelve months preceding the date of this Agreement taken
as a whole do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under which they were made and when made, not misleading. The Company
acknowledges and agrees that no Purchaser makes or has made any representations or warranties with respect to the transactions contemplated
hereby other than those specifically set forth in Section 3.2 hereof.
(z)
No Integrated Offering. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section
3.2, neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any
offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the
Securities to be integrated with prior offerings by the Company for purposes of any applicable shareholder approval provisions of any
Trading Market on which any of the securities of the Company are listed or designated.
(aa)
Solvency. Based on the consolidated financial condition of the Company as of the Closing Date, after giving effect to the
receipt by the Company of the proceeds from the sale of the Securities hereunder, (i) the fair saleable value of the Company’s assets
exceeds the amount that will be required to be paid on or in respect of the Company’s existing debts and other liabilities (including
known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital to carry on
its business as now conducted and as proposed to be conducted including its capital needs taking into account the particular capital requirements
of the business conducted by the Company, consolidated and projected capital requirements and capital availability thereof, and (iii)
the current cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate all of its assets, after
taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of its liabilities when
such amounts are required to be paid. The Company does not intend to incur debts beyond its ability to pay such debts as they mature (taking
into account the timing and amounts of cash to be payable on or in respect of its debt). The Company has no knowledge of any facts or
circumstances which lead it to believe that it will file for reorganization or liquidation under the bankruptcy or reorganization laws
of any jurisdiction within one year from the Closing Date. Schedule 3.1(aa) sets forth as of the date hereof all outstanding secured
and unsecured Indebtedness of the Company or any Subsidiary, or for which the Company or any Subsidiary has commitments. For the purposes
of this Agreement, “Indebtedness” means (x) any liabilities for borrowed money or amounts owed in excess of $50,000
(other than trade accounts payable incurred in the ordinary course of business), (y) all guaranties, endorsements and other contingent
obligations in respect of indebtedness of others, whether or not the same are or should be reflected in the Company’s consolidated
balance sheet (or the notes thereto), except guaranties by endorsement of negotiable instruments for deposit or collection or similar
transactions in the ordinary course of business; and (z) the present value of any lease payments in excess of $50,000 due under leases
required to be capitalized in accordance with GAAP. Neither the Company nor any Subsidiary is in default with respect to any Indebtedness.
(bb)
Tax Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result
in a Material Adverse Effect, the Company and its Subsidiaries each (i) has made or filed all United States federal, state and local income
and all foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has
paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns,
reports and declarations and (iii) has set aside on its books provision reasonably adequate for the payment of all material taxes for
periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material amount
claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company or of any Subsidiary know of no basis for
any such claim. The term “taxes” mean all federal, state, local, foreign, and other net income, gross income, gross receipts,
sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise,
severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any
kind whatsoever, together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term
“returns” means all returns, declarations, reports, statements, and other documents required to be filed in respect to taxes.
(cc)
Foreign Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary,
any agent or other person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful
payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate
funds, (iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person acting on its behalf
of which the Company is aware) which is in violation of law, or (iv) violated in any material respect any provision of FCPA. The Company
has taken reasonable steps to ensure that its accounting controls and procedures are sufficient to cause the Company to comply in all
material respects with the FCPA.
(dd)
Accountants. The Company’s registered independent accounting firm is HTL International, LLC . To the knowledge
and belief of the Company, such accounting firm (i) is a registered public accounting firm as required by the Exchange Act and (ii) shall
express its opinion with respect to the financial statements to be included in the Company’s Annual Report for the fiscal year ended
December 31, 2023. Enrome, LLP was the previous registered independent accounting firm of the Company. To the knowledge and belief of
the Company, such accounting firm (i) is a registered public accounting firm as required by the Exchange Act and (ii) shall express its
opinion with respect to the financial statements to be included in the Company’s Annual Report for the fiscal year ended December
31, 2022. WWC, P.C. was the previous registered independent accounting firm of the Company. To the knowledge and belief of the Company,
such accounting firm (i) is a registered public accounting firm as required by the Exchange Act and (ii) shall express its opinion with
respect to the financial statements to be included in the Company’s Annual Report for the fiscal year ended December 31, 2021.
(ee)
Acknowledgment Regarding Purchasers’ Purchase of Securities. The Company acknowledges and agrees that each of the
Purchasers is acting solely in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions
contemplated thereby. The Company further acknowledges that no Purchaser is acting as a financial advisor or fiduciary of the Company
(or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated thereby and any advice given
by any Purchaser or any of their respective representatives or agents in connection with the Transaction Documents and the transactions
contemplated thereby is merely incidental to the Purchasers’ purchase of the Securities. The Company further represents to each
Purchaser that the Company’s decision to enter into this Agreement and the other Transaction Documents has been based solely on
the independent evaluation of the transactions contemplated hereby by the Company and its representatives.
(ff)
Acknowledgment Regarding Purchaser’s Trading Activity. Anything in this Agreement or elsewhere herein to the contrary
notwithstanding (except for Sections 3.2(f) and 4.13 hereof), it is understood and acknowledged by the Company that: (i) none of the Purchasers
has been asked by the Company to agree, nor has any Purchaser agreed, to desist from purchasing or selling, long and/or short, securities
of the Company, or “derivative” securities based on securities issued by the Company or to hold the shares of Common Stock
for any specified term; (ii) past or future open market or other transactions by any Purchaser, specifically including, without limitation,
Short Sales or “derivative” transactions, before or after the closing of this or future, private, placement transactions,
may negatively impact the market price of the Company’s publicly-traded securities; (iii) any Purchaser, and counter-parties in
“derivative” transactions to which any such Purchaser is a party, directly or indirectly, presently may have a “short”
position in the Common Stock, and (iv) each Purchaser shall not be deemed to have any affiliation with or control over any arm’s
length counter-party in any “derivative” transaction. The Company further understands and acknowledges that (y) one or more
Purchasers may engage in hedging activities at various times during the period that the Securities are outstanding, including, without
limitation, during the periods that the value of the Pre-Funded Warrants are being determined, and (z) such hedging activities (if any)
could reduce the value of the existing shareholders’ equity interests in the Company at and after the time that the hedging activities
are being conducted. The Company acknowledges that such aforementioned hedging activities do not constitute a breach of any of the Transaction
Documents.
(gg)
Regulation M Compliance. The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly
or indirectly, any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of any of the Securities, (ii) sold, bid for, purchased, or, paid any compensation for soliciting purchases
of, any of the Securities, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other
securities of the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the Placement Agent in connection with
the placement of the Securities.
(hh)
[Reserved]
(ii)
Share Incentive Plans. Each stock option granted by the Company under the Company’s share incentive plans was granted
(i) in accordance with the terms of the Company’s share incentive plans and (ii) with an exercise price at least equal to the fair
market value of the Common Stock on the date such stock option would be considered granted under GAAP and applicable law. No stock option
granted under the Company’s share incentive plans has been backdated. The Company has not knowingly granted, and there is no and
has been no Company policy or practice to knowingly grant, stock options prior to, or otherwise knowingly coordinate the grant of stock
options with, the release or other public announcement of material information regarding the Company or its Subsidiaries or their financial
results or prospects.
(jj)
Office of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s knowledge, any director,
officer, agent, employee or affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”).
(kk)
U.S. Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within
the meaning of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon Purchaser’s request.
(ll) Bank Holding
Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company Act of 1956,
as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the
“Federal Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates owns or controls, directly or
indirectly, five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent or more of
the total equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company
nor any of its Subsidiaries or Affiliates exercises a controlling influence over the management or policies of a bank or any entity
that is subject to the BHCA and to regulation by the Federal Reserve.
(mm) Money Laundering.
The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable financial record-keeping
and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, applicable money laundering statutes
and applicable rules and regulations thereunder (collectively, the “Money Laundering Laws”), and no Action or Proceeding
by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any Subsidiary with respect
to the Money Laundering Laws is pending or, to the knowledge of the Company or any Subsidiary, threatened.
3.2 Representations
and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents and warrants as of
the date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein, in which case they shall
be accurate as of such date):
(a) Organization;
Authority. Such Purchaser is either an individual or an entity duly incorporated or formed, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership limited
liability company or similar power and authority to enter into and to consummate the transactions contemplated by the Transaction
Documents and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of the Transaction
Documents and performance by such Purchaser of the transactions contemplated by the Transaction Documents have been duly authorized
by all necessary corporate, partnership, limited liability company or similar action, as applicable, on the part of such Purchaser.
Each Transaction Document to which it is a party has been duly executed by such Purchaser, and when delivered by such Purchaser in
accordance with the terms hereof, will constitute the valid and legally binding obligation of such Purchaser, enforceable against it
in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as
limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii)
insofar as indemnification and contribution provisions may be limited by applicable law.
(b) Understandings or
Arrangements. Such Purchaser is acquiring the Securities as principal for its own account and has no direct or indirect arrangement
or understandings with any other persons to distribute or regarding the distribution of such Securities (this representation and warranty
not limiting such Purchaser’s right to sell the Securities pursuant to the Registration Statement or otherwise in compliance with
applicable federal and state securities laws). Such Purchaser is acquiring the Securities hereunder in the ordinary course of its business.
(c) Purchaser
Status. At the time such Purchaser was offered the Securities, it was, and as of the date hereof it is, and on each date on
which it exercises any Pre-Funded Warrants, it will be either: (i) an “accredited investor” as defined in Rule
501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act or (ii) a “qualified institutional buyer” as
defined in Rule 144A(a) under the Securities Act.
(d)
Experience of Such Purchaser. Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication
and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment
in the Securities, and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic risk of an
investment in the Securities and, at the present time, is able to afford a complete loss of such investment.
(e)
Access to Information. Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including
all exhibits and schedules thereto) and the SEC Reports and has been afforded, (i) the opportunity to ask such questions as it has deemed
necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the Securities
and the merits and risks of investing in the Securities; (ii) access to information about the Company and its financial condition, results
of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity
to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary
to make an informed investment decision with respect to the investment. Such Purchaser acknowledges and agrees that neither the Placement
Agent nor any Affiliate of the Placement Agent has provided such Purchaser with any information or advice with respect to the Securities
nor is such information or advice necessary or desired. Neither the Placement Agent nor any Affiliate has made or makes any representation
as to the Company or the quality of the Securities and the Placement Agent and any Affiliate may have acquired non-public information
with respect to the Company which such Purchaser agrees need not be provided to it. In connection with the issuance of the Securities
to such Purchaser, neither the Placement Agent nor any of its Affiliates has acted as a financial advisor or fiduciary to such Purchaser.
(f) Certain
Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, such Purchaser has not, nor
has any Person acting on behalf of or pursuant to any understanding with such Purchaser, directly or indirectly executed any
purchases or sales, including Short Sales, of the securities of the Company during the period commencing as of the time that such
Purchaser first received a term sheet (written or oral) from the Company or any other Person representing the Company setting forth
the material pricing terms of the transactions contemplated hereunder and ending immediately prior to the execution hereof.
Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio
managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the
investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the representation set
forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment
decision to purchase the Securities covered by this Agreement. Other than to other Persons party to this Agreement or to such
Purchaser’s representatives, including, without limitation, its officers, directors, partners, legal and other advisors,
employees, agents and Affiliates, such Purchaser has maintained the confidentiality of all disclosures made to it in connection with
this transaction (including the existence and terms of this transaction). Notwithstanding the foregoing, for the avoidance of doubt,
nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to locating or
borrowing shares in order to effect Short Sales or similar transactions in the future.
(g)
Ownership of Company Securities. Except as disclosed in writing to the Company as of the date of this Agreement, no Purchaser,
any of its Affiliates, or any other Persons whose beneficial ownership of shares of Common Stock would be aggregated with the Purchaser’s
for purposes of Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, including any “group”
of which the Purchaser is a member, directly or indirectly owns, beneficially or otherwise (including solely with respect to an economic
interest), any of the outstanding shares of Common Stock, or any other shares of capital stock, options, warrants, derivative securities,
rights or any other securities (including any securities convertible into, exchangeable for or that represent the right to receive securities)
of the Company.
The Company acknowledges and agrees that the representations
contained in this Section 3.2 shall not modify, amend or affect such Purchaser’s right to rely on the Company’s representations
and warranties contained in this Agreement or any representations and warranties contained in any other Transaction Document or any other
document or instrument executed and/or delivered in connection with this Agreement or the consummation of the transactions contemplated
hereby. Notwithstanding the foregoing, for the avoidance of doubt, nothing contained herein shall constitute a representation or warranty,
or preclude any actions, with respect to locating or borrowing shares in order to effect Short Sales or similar transactions in the future.
ARTICLE
IV
OTHER AGREEMENTS OF THE PARTIES
4.1
Free of Legends. The Offered Shares, the Registered Warrants and Pre-Funded Warrants shall be issued free of legends.
4.2
Furnishing of Information. Until the earliest of the time that no Purchaser owns Securities, the Company covenants to timely
file (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company
after the date hereof pursuant to the Exchange Act even if the Company is not then subject to the reporting requirements of the Exchange
Act.
4.3
Integration. The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any
security (as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Securities for purposes
of the rules and regulations of any Trading Market such that it would require shareholder approval prior to the closing of such other
transaction unless shareholder approval is obtained before the closing of such subsequent transaction..
4.4
Securities Laws Disclosure; Publicity. The Company shall (a) by 9:00 a.m. (New York City time) on the date following the
date hereof issue a press release disclosing the material terms of the transactions contemplated hereby, and (b) file a Report on Form
8-K, including the Transaction Documents as exhibits thereto, with the Commission within the time required by the Exchange Act. From and
after the issuance of such press release, the Company represents to the Purchasers that it shall have publicly disclosed all material,
non-public information delivered to any of the Purchasers by the Company or any of its Subsidiaries, or any of their respective officers,
directors, employees or agents in connection with the transactions contemplated by the Transaction Documents. In addition, effective upon
the issuance of such press release, the Company acknowledges and agrees that any and all confidentiality or similar obligations under
any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, agents,
employees or Affiliates on the one hand, and any of the Purchasers or any of their Affiliates on the other hand, shall terminate. The
Company and each Purchaser shall consult with each other in issuing any other press releases with respect to the transactions contemplated
hereby, and neither the Company nor any Purchaser shall issue any such press release nor otherwise make any such public statement without
the prior consent of the Company, with respect to any press release of any Purchaser, or without the prior consent of each Purchaser,
with respect to any press release of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure
is required by law, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement
or communication. Notwithstanding the foregoing, the Company shall not publicly disclose the name of any Purchaser, or include the name
of any Purchaser in any filing with the Commission or any regulatory agency or Trading Market, without the prior written consent of such
Purchaser, except (a) as required by federal securities law in connection with the filing of final Transaction Documents with the Commission
and (b) to the extent such disclosure is required by law or Trading Market or FINRA regulations, in which case the Company shall provide
the Purchasers with prior notice of such disclosure permitted under this clause (b).
4.5
Shareholder Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other
Person, that any Purchaser is an “Acquiring Person” under any control share acquisition, business combination, poison
pill (including any distribution under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted
by the Company, or that any Purchaser could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving
Securities under the Transaction Documents or under any other agreement between the Company and the Purchasers.
4.6
Non-Public Information. Except with respect to the material terms and conditions of the transactions contemplated by the
Transaction Documents, which shall be disclosed pursuant to Section 4.4, the Company covenants and agrees that neither it, nor any other
Person acting on its behalf will provide any Purchaser or its agents or counsel with any information that constitutes, or the Company
reasonably believes constitutes, material non-public information, unless prior thereto such Purchaser shall have consented to the receipt
of such information and agreed with the Company to keep such information confidential. The Company understands and confirms that each
Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company. To the extent that the Company
delivers any material, non-public information to a Purchaser without such Purchaser’s consent, the Company hereby covenants and
agrees that such Purchaser shall not have any duty of confidentiality to the Company, any of its Subsidiaries, or any of their respective
officers, directors, agents, employees or Affiliates, or a duty to the Company, 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 Purchaser
shall remain subject to applicable law. To the extent that any notice provided pursuant to any Transaction Document constitutes, or contains,
material, non-public information regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice with the
Commission pursuant to a Report on Form 6-K. The Company understands and confirms that each Purchaser shall be relying on the foregoing
covenant in effecting transactions in securities of the Company.
4.7
Use of Proceeds. Except as set forth in the Prospectus Supplement and on Schedule 4.7 attached hereto, the Company
shall use the net proceeds from the sale of the Securities hereunder for working capital purposes and general business purposes and shall
not use such proceeds: (a) for the satisfaction of any portion of the Company’s Indebtedness (other than payment of trade payables
in the ordinary course of the Company’s business and prior practices), (b) for the redemption of any shares of Common Stock or Common
Stock Equivalents, (c) for the settlement of any outstanding litigation or (d) in violation of FCPA or OFAC regulations.
4.8
Indemnification of Purchasers. Subject to the provisions of this Section 4.8, the Company will indemnify and hold each Purchaser
and its directors, officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent
role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls such Purchaser
(within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders,
agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding
a lack of such title or any other title) of such controlling persons (each, a “Purchaser Party”) harmless from any
and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in
settlements, court costs and reasonable attorneys’ fees and costs of investigation that any such Purchaser Party may suffer or incur
as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in
this Agreement or in the other Transaction Documents or (b) any action instituted against the Purchaser Parties in any capacity, or any
of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser Party, with respect
to any of the transactions contemplated by the Transaction Documents (unless such action is solely based upon a material breach of such
Purchaser Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such
Purchaser Party may have with any such stockholder or any violations by such Purchaser Party of state or federal securities laws or any
conduct by such Purchaser Party which is finally judicially determined to constitute fraud, gross negligence or willful misconduct) or
(c) in connection with any registration statement of the Company providing for the resale by the Purchasers of the shares of Common Stock
issuable upon exercise of the Pre-Funded Warrants, respectively, the Company will indemnify each Purchaser Party, to the fullest extent
permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including, without limitation,
reasonable attorneys’ fees) and expenses, as incurred, arising out of or relating to (i) any untrue or alleged untrue statement
of a material fact contained in such registration statement, any prospectus or any form of prospectus or in any amendment or supplement
thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required
to be stated therein or necessary to make the statements therein (in the case of any prospectus or supplement thereto, in the light of
the circumstances under which they were made) not misleading, except to the extent, but only to the extent, that such untrue statements
or omissions are based solely upon information regarding such Purchaser Party furnished in writing to the Company by such Purchaser Party
expressly for use therein, or (ii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act or any state
securities law, or any rule or regulation thereunder in connection therewith. If any action shall be brought against any Purchaser Party
in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing,
and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Purchaser
Party. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment
thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume
such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of counsel, a material conflict on any
material issue between the position of the Company and the position of such Purchaser Party, in which case the Company shall be responsible
for the reasonable fees and expenses of no more than one such separate counsel. The Company will not be liable to any Purchaser Party
under this Agreement (y) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall
not be unreasonably withheld or delayed; or (z) to the extent, but only to the extent that a loss, claim, damage or liability is attributable
to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by such Purchaser Party
in this Agreement or in the other Transaction Documents. The indemnification required by this Section 4.8 shall be made by periodic payments
of the amount thereof during the course of the investigation or defense, as and when bills are received or are incurred. The indemnity
agreements contained herein shall be in addition to any cause of action or similar right of any Purchaser Party against the Company or
others and any liabilities the Company may be subject to pursuant to law.
4.9
Reservation of Common Stock. As of the date hereof, the Company has reserved and the Company shall continue to reserve and
keep available at all times, free of preemptive rights, a sufficient number of shares of Common Stock for the purpose of enabling the
Company to issue shares of Common Stock pursuant to this Agreement and any exercise of the Registered Warrants and Pre-Funded Warrants.
4.10
Listing of Common Stock. The Company hereby agrees to use best efforts to maintain the listing or quotation of the Common
Stock on the Trading Market on which it is currently listed and concurrently with the Closing, the Company shall apply to list or quote
all of the Offered Shares on such Trading Markets and promptly secure the listing of all of the Offered Shares on such Trading Markets.
The Company further agrees, if the Company applies to have the Common Stock traded on any other Trading Market, it will then include in
such application all of the Offered Shares and will take such other action as is necessary to cause all of the Offered Shares to be listed
or quoted on such other Trading Market as promptly as possible. The Company will then take all action reasonably necessary to continue
the listing and trading of its Common Stock on a Trading Market and will comply in all respects with the Company’s reporting, filing
and other obligations under the bylaws or rules of the Trading Market. The Company agrees to maintain the eligibility of the Common Stock
for electronic transfer through the Depository Trust Company or another established clearing corporation, including, without limitation,
by timely payment of fees to the Depository Trust Company or such other established clearing corporation in connection with such electronic
transfer.
4.11
[Intentionally Omitted]
4.12
Equal Treatment of Purchasers. No consideration (including any modification of any Transaction Document) shall be offered
or paid to any Person to amend or consent to a waiver or modification of any provision of the Transaction Documents unless the same consideration
is also offered to all of the parties to such Transaction Document. For clarification purposes, this provision constitutes a separate
right granted to each Purchaser by the Company and negotiated separately by each Purchaser, and is intended for the Company to treat the
Purchasers as a class and shall not in any way be construed as the Purchasers acting in concert or as a group with respect to the purchase,
disposition or voting of the Common Stock or otherwise.
4.13
Certain Transactions and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants
that neither it nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales, including
Short Sales of any of the Company’s securities during the period commencing with the execution of this Agreement and ending at such
time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described
in Section 4.4. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions
contemplated by this Agreement are publicly disclosed by the Company pursuant to the initial press release as described in Section 4.4,
such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Disclosure
Schedules. Notwithstanding the foregoing, and notwithstanding anything contained in this Agreement to the contrary, the Company expressly
acknowledges and agrees that (i) no Purchaser makes any representation, warranty or covenant hereby that it will not engage in effecting
transactions in any securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced
pursuant to the initial press release as described in Section 4.4, (ii) no Purchaser shall be restricted or prohibited from effecting
any transactions in any securities of the Company in accordance with applicable securities laws from and after the time that the transactions
contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.4 and (iii)
no Purchaser shall have any duty of confidentiality or duty not to trade in the securities of the Company to the Company or its Subsidiaries
after the issuance of the initial press release as described in Section 4.4. Notwithstanding the foregoing, in the case of a Purchaser
that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets
and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions
of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio
manager that made the investment decision to purchase the Securities covered by this Agreement.
4.14
Exercise Procedures. The applicable form of Notice of Exercise included in the Pre-Funded Warrants set forth the totality
of the procedures required of the Purchasers in order to exercise the Pre-Funded Warrants. No additional legal opinion, other information
or instructions shall be required of the Purchasers to exercise their Pre-Funded Warrants. Without limiting the preceding sentences, no
ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any
Notice of Exercise form be required in order to exercise the Pre-Funded Warrants. The Company shall honor exercises of the Pre-Funded
Warrants and shall deliver shares of Common Stock in accordance with the terms, conditions and time periods set forth in the Transaction
Documents.
ARTICLE
V
MISCELLANEOUS
5.1
Termination. This Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations hereunder only
and without any effect whatsoever on the obligations between the Company and the other Purchasers, by written notice to the other parties,
if the Closing has not been consummated on or before the fifth (5th) Trading Day following the date hereof; provided,
however, that no such termination will affect the right of any party to sue for any breach by any other party (or parties).
5.2
Fees and Expenses. At the Closing, the Company has agreed to reimburse the Placement Agent for all expenses (including,
without limitation, fees and disbursements of the Placement Agent’s counsel and all travel and other out-of-pocket expenses) incurred
by the Placement Agent in connection with the transaction contemplated by the Transaction Documents, up to a maximum of $150,000, taken
together and not individually. Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the fees
and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to
the negotiation, preparation, execution, delivery and performance of this Agreement. The Company shall pay all Depositary fees (including,
without limitation, any fees required for same-day processing of any instruction letter delivered by the Company), stamp taxes and other
taxes and duties levied in connection with the delivery of any Securities to the Purchasers.
5.3
Entire Agreement. The Transaction Documents, together with the exhibits and schedules thereto, the Prospectus and the Prospectus
Supplement, contain the entire understanding of the parties with respect to the subject matter hereof and thereof and supersede all prior
agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such
documents, exhibits and schedules.
5.4
Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall
be in writing and shall be deemed given and effective on the earliest of: (a) the time of transmission, if such notice or communication
is delivered via facsimile at the facsimile number or email attachment at the email address as set forth on the signature pages attached
hereto at or prior to 5:30 p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the time of transmission, if such
notice or communication is delivered via facsimile at the facsimile number or email attachment at the email address as set forth on the
signature pages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (c)
the second (2nd) Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service
or (d) upon actual receipt by the party to whom such notice is required to be given. The address for such notices and communications shall
be as set forth on the signature pages attached hereto. To the extent that any notice provided pursuant to any Transaction Document constitutes,
or contains, material, non-public information regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice
with the Commission pursuant to a Report on Form 6-K.
5.5
Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written
instrument signed, in the case of an amendment, by the Company and Purchasers which purchased at least 50.1% in interest of the Offered
Shares and Pre-Funded Warrants (on an as exercised basis) based on the initial Subscription Amounts hereunder or, in the case of a waiver,
by the party against whom enforcement of any such waived provision is sought, provided that if any amendment, modification or waiver disproportionately
and adversely impacts a Purchaser (or group of Purchasers), the consent of such disproportionately impacted Purchaser (or group of Purchasers)
shall also be required. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed
to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement
hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right.
Any proposed amendment or waiver that disproportionately, materially and adversely affects the rights and obligations of any Purchaser
relative to the comparable rights and obligations of the other Purchasers shall require the prior written consent of such adversely affected
Purchaser. Any amendment effected in accordance with this Section 5.5 shall be binding upon each Purchaser and holder of Securities and
the Company.
5.6
Headings. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed
to limit or affect any of the provisions hereof.
5.7
Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors
and permitted assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent
of each Purchaser (other than by merger). Any Purchaser may assign any or all of its rights under this Agreement to any Person to whom
such Purchaser assigns or transfers any Securities, provided that such transferee agrees in writing to be bound, with respect to the transferred
Securities, by the provisions of the Transaction Documents that apply to the “Purchasers.”
5.8
No Third-Party Beneficiaries. The Placement Agent shall be a third-party beneficiary of the representations and warranties
of the Company in Section 3.1 and the representations and warranties of the Purchasers in Section 3.2. This Agreement is intended for
the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision
hereof be enforced by, any other Person, except as otherwise set forth in Section 4.8 and this Section 5.8.
5.9
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents
shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles
of conflicts of law thereof. Each party agrees that all legal Proceedings concerning the interpretations, enforcement and defense of the
transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective
affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and
federal courts sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal
courts sitting in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or
with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents),
and hereby irrevocably waives, and agrees not to assert in any Action or Proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such Action or Proceeding is improper or is an inconvenient venue for such Proceeding. Each party
hereby irrevocably waives personal service of process and consents to process being served in any such Action or Proceeding by mailing
a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect
for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law.
If any party shall commence an Action or Proceeding to enforce any provisions of the Transaction Documents, then, in addition to the obligations
of the Company under Section 4.7, the prevailing party in such Action or Proceeding shall be reimbursed by the non-prevailing party for
its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such
Action or Proceeding.
5.10
Survival. The representations and warranties contained herein shall survive the Closing and the delivery of the Securities.
5.11
Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered
one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other party,
it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission
or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party
executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature
page were an original thereof.
5.12
Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction
to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall
remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by
such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would
have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
5.13
Rescission and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar
provisions of) any of the other Transaction Documents, whenever any Purchaser exercises a right, election, demand or option under a Transaction
Document and the Company does not timely perform its related obligations within the periods therein provided, then such Purchaser may
rescind or withdraw, in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election
in whole or in part without prejudice to its future actions and rights; provided, however, that in the case of a rescission
of an exercise of a Pre-Funded Warrant, the applicable Purchaser shall be required to return any shares of Common Stock subject to any
such rescinded exercise notice concurrently with the return to such Purchaser of the aggregate exercise price paid to the Company for
such shares and the restoration of such Purchaser’s right to acquire such shares pursuant to such Purchaser’s Pre-Funded Warrant
(including, issuance of a replacement warrant certificate evidencing such restored right).
5.14
Replacement of Securities. If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed,
the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation),
or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to
the Company of such loss, theft or destruction. The applicant for a new certificate or instrument under such circumstances shall also
pay any reasonable third-party costs (including customary indemnity) associated with the issuance of such replacement Securities.
5.15
Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of
damages, each of the Purchasers and the Company will be entitled to specific performance under the Transaction Documents. The parties
agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations contained in
the Transaction Documents and hereby agree to waive and not to assert in any Action for specific performance of any such obligation the
defense that a remedy at law would be adequate.
5.16
Payment Set Aside. To the extent that the Company makes a payment or payments to any Purchaser pursuant to any Transaction
Document or a Purchaser enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement
or exercise or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged
by or are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other Person under any law
(including, without limitation, any bankruptcy law, state or federal law, common law or equitable cause of action), then to the extent
of any such restoration the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force
and effect as if such payment had not been made or such enforcement or setoff had not occurred.
5.17
Independent Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction
Document are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the
performance or non-performance of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in
any other Transaction Document, and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute the Purchasers
as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any
way acting in concert or as a group with respect to such obligations or the transactions contemplated by the Transaction Documents. Each
Purchaser shall be entitled to independently protect and enforce its rights including, without limitation, the rights arising out of this
Agreement or out of the other Transaction Documents, and it shall not be necessary for any other Purchaser to be joined as an additional
party in any Proceeding for such purpose. Each Purchaser has been represented by its own separate legal counsel in its review and negotiation
of the Transaction Documents. For reasons of administrative convenience only, each Purchaser and its respective counsel have chosen to
communicate with the Company through Sullivan. Sullivan does not represent any of the Purchasers and only represents the Placement Agent.
The Company has elected to provide all Purchasers with the same terms and Transaction Documents for the convenience of the Company and
not because it was required or requested to do so by any of the Purchasers. It is expressly understood and agreed that each provision
contained in this Agreement and in each other Transaction Document is between the Company and a Purchaser, solely, and not between the
Company and the Purchasers collectively and not between and among the Purchasers.
5.18
Liquidated Damages. The Company’s obligations to pay any partial liquidated damages or other amounts owing under the
Transaction Documents is a continuing obligation of the Company and shall not terminate until all unpaid partial liquidated damages and
other amounts have been paid notwithstanding the fact that the instrument or security pursuant to which such partial liquidated damages
or other amounts are due and payable shall have been canceled.
5.19
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right
required or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding
Business Day.
5.20
Construction. The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to
revise the Transaction Documents and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition,
each and every reference to share prices and shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse
and forward stock splits, stock dividends, stock combinations and other similar transactions with respect to the Common Stock that occur
after the date of this Agreement.
5.21
Sales During Pre-Settlement Period. Notwithstanding anything herein to the contrary, if at any time on or after the time
of execution of this Agreement by the Company and an applicable Purchaser, through, and including the time immediately prior to the Closing
(the “Pre-Settlement Period”), such Purchaser sells (excluding “short sales” as defined in Rule 200 of
Regulation SHO) to any Person all, or any portion, of any Shares to be issued hereunder to such Purchaser at the Closing (collectively,
the “Pre-Settlement Shares”), such Purchaser shall, automatically hereunder (without any additional required actions
by such Purchaser or the Company), be deemed to be unconditionally bound to purchase, and the Company shall be deemed unconditionally
bound to sell, such Pre-Settlement Shares to such Purchaser at the Closing; provided, that the Company shall not be required to deliver
any Pre-Settlement Shares to such Purchaser prior to the Company’s receipt of the purchase price of such Pre-Settlement Shares hereunder;
and provided further that the Company hereby acknowledges and agrees that the forgoing shall not constitute a representation or covenant
by such Purchaser as to whether or not during the Pre-Settlement Period such Purchaser shall sell any Shares to any Person and that any
such decision to sell any Shares by such Purchaser shall be made, in the sole discretion of such Purchaser, at the time such Purchaser
elects to effect any such sale, if any.
5.22
WAIVER OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE
PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY
AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties
hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
GD CULTURE GROUP LIMITED |
|
Address for Notice: |
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Flat 1512, 15F, Lucky Centre,
No.165-171 Wan Chai Road
Wan Chai, Hong Kong |
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By: |
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Name: Xiaojian Wang |
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Title: Chief Executive Officer |
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Attention: Xiaojian Wang
Email: Xiaojian.gdc@gmail.com |
With a copy to (which shall not constitute notice):
Ortoli Rosenstadt LLP
366 Madison Avenue, 3rd Floor, New York, NY 10017
Attn: Jason Ye, Esq.
Email: jye@orllp.legal
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR PURCHASER FOLLOWS]
[PURCHASER SIGNATURE PAGES TO GD CULTURE GROUP
LIMITED
RD SECURITIES PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned
have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated
above.
Name of Purchaser: _________________________________________________________
Signature of Authorized Signatory of Purchaser:
__________________________________
Name of Authorized Signatory: _______________________________________________
Title of Authorized Signatory: ________________________________________________
Email Address of Authorized Signatory:________________________________________
Facsimile Number of Authorized Signatory: _____________________________________
Address for Notice to Purchaser:
Address for Delivery of Pre-Funded Warrants to Purchaser (if not same
as address for notice):
Subscription Amount: |
_______________________ |
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Shares: |
________________________ |
Beneficial Ownership Blocker: |
________________________ |
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Pre-Funded Warrants: |
________________________ |
Beneficial Ownership Blocker: |
________________________ |
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Employer Identification Number: |
________________________ |
☐ Notwithstanding
anything contained in this Agreement to the contrary, by checking this box (i) the obligations of the above-signed to purchase the
securities set forth in this Agreement to be purchased from the Company by the above-signed, and the obligations of the Company to
sell such securities to the above-signed, shall be unconditional and all conditions to Closing shall be disregarded, (ii) the
Closing shall occur no later than the second (2nd) Trading Day following the date of this Agreement and (iii) any
condition to Closing contemplated by this Agreement (but prior to being disregarded by clause (i) above) that required delivery by
the Company or the above-signed of any agreement, instrument, certificate or the like or purchase price (as applicable) shall no
longer be a condition and shall instead be an unconditional obligation of the Company or the above-signed (as applicable) to deliver
such agreement, instrument, certificate or the like or purchase price (as applicable) to such other party on the Closing Date.
EXHIBIT A
TO SECURITIES PURCHASE
AGREEMENT
Form of Pre-Funded Warrant
Attached
EXHIBIT B
TO SECURITIES PURCHASE
AGREEMENT
Form of Registered Warrant
Attached
35
Exhibit 10.3
WARRANT EXCHANGE AGREEMENT
THIS WARRANT EXCHANGE AGREEMENT
(this “Agreement”) is made as of the November 1, 2023, by and between GD Culture Group Limited, a Nevada corporation
(the “Company”), and [ ]
(“Holder”).
RECITALS
WHEREAS, Holder currently
holds a warrant to purchase [ ] shares
of the Company’s common stock, par value $0.0001 (the “Common Stock”) at an exercise price of $[ ] per share
(the “Existing Warrant”);
WHEREAS, the Company and
Holder wish to exchange the Existing Warrant for pre-funded warrant to purchase certain number of shares of the Company’s Common
Stock, par value $0.0001 (the “Common Stock”);
THE PARTIES HEREBY AGREE
AS FOLLOWS:
1. Exchange of Existing
Warrant. At the Closing (as defined below), Holder shall surrender the Existing Warrant for, and the Company shall cancel the Existing
Warrant and shall issue to Holder, pre-funded warrant to purchase up to [ ] shares of Common Stock (adjusted for any stock dividends,
combinations or splits after the date hereof) (the “Exchange Warrants”).
2. Cancellation and
Surrender of Existing Warrant. Holder agrees that, at the Closing, the Existing Warrant will be canceled and of no further force or
effect. Holder further agrees to surrender to the Company the Existing Warrant or, if the Existing Warrant has been lost, mutilated or
destroyed, an affidavit to such effect and indemnity reasonably acceptable to the Company, and the Existing Warrant shall be deemed cancelled
and of no further force or effect as of the Closing and shall thereafter represent only the right to receive the Exchange Warrants even
if the Holder fails to surrender the Existing Warrant.
3. Closing. Upon
satisfaction of the conditions set forth herein, the closing of the exchange provided for in Section 1 of this Agreement
(the “Closing”) shall occur at 9:00 a.m., Eastern Time, on the second trading day after the date hereof at the principal
offices of the Company, or such other time and location as the parties shall mutually agree.
4. Representations
and Warranties of Holder. Holder hereby represents and warrants that:
(a) The Holder is duly organized,
validly existing and in good standing under the laws of the jurisdiction in which it is organized.
(b) The Holder has the requisite
power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby and such execution, delivery
and consummation have been duly authorized by all necessary action. This Agreement has been duly executed and delivered by the Holder
and constitutes the valid and binding obligation of such party, enforceable against it in accordance with its terms. The Holder is the
owner, beneficially and of record, of the Existing Warrant, free and clear of any encumbrances.
(c) Neither the execution
and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) conflict with, or result in
a breach or violation of, any provision of the Holder’s organizational documents, (ii) constitute, with or without notice or
the passage of time or both, a breach violation or default under any law, rule, regulation, permit, license, agreement or other instrument
of the Holder or to which the Holder or the Holder’s property is subject, or (iii) require any consent, approval or authorization
of, or notification to, or filing with, any federal, state, local or foreign court, governmental agency or regulatory or administrative
authority on the part of the Holder.
(d) This Agreement is made
with the Holder in reliance upon the Holder’s representation, which by the Holder’s execution of this Agreement the Holder
hereby confirms, that the Exchange Warrants to be received by the Holder are and will be acquired for investment for its own account and
not with a view to the distribution of any part thereof, and that the Holder has no present intention of selling, granting any participation
in, or otherwise distributing the same.
(e) The Holder has had the
opportunity to ask questions of and receive answers from the Company regarding the Company and its Subsidiaries and to obtain additional
information necessary to verify the accuracy of the information supplied or to which it had access.
(f) The Holder acknowledges
that an investment in the Exchange Warrants is a speculative risk. The Holder is able to fend for itself in the transactions contemplated
by this Agreement, can bear the economic risk of its investment (including possible complete loss of such investment) for an indefinite
period of time and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and
risks of the investment in the Exchange Warrants. The Holder represents that it has not been organized for the purpose of acquiring the
Exchange Warrants to be acquired hereunder. The Holder understands that the Exchange Warrants to be acquired hereunder have not been registered
under the Securities Act, or under the securities laws of any jurisdiction, by reason of reliance upon certain exemptions, and that the
reliance on such exemptions is predicated, in part, upon the accuracy of the Holder’s representations and warranties in this Section 4.
The Holder is familiar with Regulation D promulgated under the Securities Act and represents that it is an “accredited investor”
as defined in Rule 501(a) of such Regulation D.
(g) The Holder understands
that the Exchange Warrants to be acquired hereunder are characterized as “restricted securities” under the federal securities
laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under the Securities Act only in certain limited circumstances
and in accordance with the terms and conditions set forth in the legend described in Section 4(h) below. The Holder
represents that it is familiar with SEC Rule 144, as presently in effect, and understands the resale limitations imposed thereby and by
the Securities Act.
(h) The Holder understands
that each of the certificates evidencing the Exchange Warrants to be acquired hereunder may bear the following legend:
“THE SECURITIES EVIDENCED BY
THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY APPLICABLE STATE
SECURITIES LAW, AND NO INTEREST THEREIN MAY BE SOLD, DISTRIBUTED, ASSIGNED, OFFERED, PLEDGED OR OTHERWISE TRANSFERRED UNLESS (i) THERE
IS AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS COVERING ANY SUCH TRANSACTION INVOLVING SAID
SECURITIES, (ii) THIS COMPANY RECEIVES AN OPINION OF LEGAL COUNSEL FOR THE HOLDER OF THESE SECURITIES SATISFACTORY TO THIS COMPANY
STATING THAT SUCH TRANSACTION IS EXEMPT FROM REGISTRATION, OR (iii) THIS COMPANY OTHERWISE SATISFIES ITSELF THAT SUCH TRANSACTION
IS EXEMPT FROM REGISTRATION.
(i) The Holder acknowledges
that the issuance of the Exchange Warrants is intended to be exempt from registration by virtue of Section 3(a)(9) of the Securities
Act of 1933, as amended (the “Securities Act”). The Holder has not taken any action that would cause such exemption
not to be available.
5. Representations
and Warranties of the Company
(a) The Company is duly
organized, validly existing and in good standing under the laws of Nevada.
(b) The Company has the
requisite power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby and such execution,
delivery and consummation have been duly authorized by all necessary action. This Agreement has been duly executed and delivered by the
Holder and constitutes the valid and binding obligation of such party, enforceable against it in accordance with its terms.
(c) Neither the execution
and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) conflict with, or result in
a breach or violation of, any provision of the Company’s organizational documents, (ii) constitute, with or without notice
or the passage of time or both, a breach violation or default under any law, rule, regulation, permit, license, agreement or other instrument
of the Company or to which the Company or the Company’s property is subject, or (iii) require any consent, approval or authorization
of, or notification to, or filing with, any federal, state, local or foreign court, governmental agency or regulatory or administrative
authority on the part of the Company.
(d) The Exchange Warrants
to be issued to the Holder hereunder, when issued, sold and delivered in accordance with the terms of this Agreement, will be duly and
validly issued, fully paid, and nonassessable.
(e) The Company acknowledges
that the issuance of the Exchange Warrants is intended to be exempt from registration by virtue of Section 3(a)(9) of the Securities
Act of 1933, as amended. The Company has not taken any action that would cause such exemption not to be available.
(f) The Company will issue
no more than [ ] shares of Common Stock (adjusted for any stock dividends, combinations or splits after the date hereof) pursuant to this
Agreement and all other Warrant Exchange Agreements to be executed by the Company prior to the Closing (the “Other Warrant Exchange
Agreements”). The Other Warrant Exchange Agreements are identical in form to this Agreement, except for such differences as
are necessary to reflect the identities of the holders of the warrants to be exchanged, the number and exercise price of the warrants
to be exchanged and the number of shares to be issued thereunder.
7. Miscellaneous.
7.1 Entire Agreement.
This Agreement constitutes the entire agreement between the Company and Holder with respect to the subject matter hereof and no party
shall be liable or bound to any other party in any manner by any warranties, representations or covenants except as specifically set forth
herein or therein.
7.2 Survival of Warranties.
The warranties and representations of the parties contained in or made pursuant to this Agreement shall survive the execution and delivery
of this Agreement.
7.3 Governing Law.
This Agreement shall be governed by and construed under the laws of the State of Nevada without regard to principles regarding conflicts
of law.
7.4 Amendments and
Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively), only with the written consent of the Company and Holder; provided,
however, that if the Company agrees to amend in any material respect any of the Other Warrant Exchange Agreements, then the Company shall
promptly make an offer to the Holder to make all (but not less than all) of the same amendments to this Agreement and the Holder shall
have 10 business days to accept such offer, which it must do in writing delivered to the Company at its principal executive offices.
7.5 Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
7.6 Severability.
If one or more provisions of this Agreement are held to be unenforceable under applicable law, such provision shall be excluded from this
Agreement and the balance of the Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in accordance
with its terms.
7.7 Transfer of Existing
Warrant. If the Holder transfers the Existing Warrant, in whole or in part, in accordance with the terms thereof, then the Holder
shall also assign to the transferee the Holder’s rights and obligations under this Agreement with respect to the portion of the
Existing Warrant so transferred. As conditions to any transfer of the Existing Warrant, such transferee and the Company and, if the Existing
Warrant is transferred in part, the Holder and the Company, shall execute and deliver new Warrant Exchange Agreements substantially in
the form of this Agreement, with the Holder’s new Warrant Exchange Agreement covering the portion of the Existing Warrant retained
by the Holder. In no event shall the Company be obligated to issue to the Holder and any transferee(s) of the Existing Warrant a number
of Exchange Warrants greater than the number of Exchange Warrants set forth in Section 1 above. Any assignment of this Agreement
shall be subject to the same requirements for compliance with applicable federal and state securities laws and agreements among stockholders
as are applicable to a transfer of the Existing Warrant under the terms thereof.
[remainder of this page intentionally left blank]
IN WITNESS WHEREOF, the parties have executed
this Agreement as of the date first above written.
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GD CULTURE GROUP LIMITED |
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Exhibit 99.1
GD Culture Group Limited Announces $10 Million
Registered Direct Priced At-the-Market Under Nasdaq Rules
NEW YORK, Nov. 1, 2023 (GLOBE NEWSWIRE) -- GD
Culture Group Limited (“GDC” or the “Company”) (Nasdaq: GDC), a holding company currently conducting business
through Shanghai Xianzhui Technology Co., Ltd. (“Shanghai Xianzhui”) and AI Catalysis Corp. (“AI Catalysis”),
today announced that it had entered into a definitive agreement with several investors for the purchase and sale of an aggregate of 1,436,253
shares of the Company’s common stock, par value $0.0001 per share (the “Shares”), and pre-funded warrants to purchase
up to 1,876,103 shares of the Company’s common stock (the “Pre-funded Warrants”) at a purchase price of $3.019 per
share in a registered direct offering priced at-the-market under Nasdaq rules. The purchase price for the Pre-funded Warrants is identical
to the purchase price for Shares, less the exercise price of $0.001 per share.
The Company also agreed to issue to the same
investors warrants (the “Warrants”) to purchase up to 3,312,356 shares of common stock at an exercise price of $3.019 per
share. The Warrants will have a 5-year term from the date of issuance.
The aggregate gross proceeds to the Company are
expected to be approximately $10 million. The transactions are expected to close on or about November 3, 2023, subject to the satisfaction
of customary closing conditions.
Univest Securities, LLC is acting as the sole
placement agent.
The Shares, the Pre-funded Warrants, and the
Warrants have been registered and the offering is being made pursuant to a shelf registration statement on Form S-3 (File No. 333-254366)
previously filed and declared effective by the U.S. Securities and Exchange Commission (“SEC”) on March 26, 2021. A final
prospectus supplement and accompanying prospectus describing the terms of the proposed offering will be filed with the SEC and will be
available on the SEC’s website located at http://www.sec.gov. Electronic copies of the final prospectus supplement and the accompanying
prospectus may be obtained, when available, by contacting Univest Securities, LLC at info@univest.us, or by calling +1 (212) 343-8888.
This press release does not constitute an offer
to sell or the solicitation of an offer to buy, nor will there be any sales of such securities in any jurisdiction in which such offer,
solicitation or sale would be unlawful prior to registration or qualification under the securities laws of such jurisdiction. Copies
of the prospectus supplement relating to the registered direct offering, together with the accompanying base prospectus, can be obtained
at the SEC’s website at www.sec.gov.
About GD Culture Group Limited.
GD Culture Group Limited (the “Company”)
(Nasdaq: GDC), is a Nevada holding company currently conducting business through its subsidiaries, Shanghai Xianzhui Technology Co.,
Ltd. (“Shanghai Xianzhui”) and AI Catalysis Corp. (“AI Catalysis”). The company plans to enter into the livestreaming
market with focus on e-commerce and livestreaming interactive games through its wholly owned U.S. subsidiary, AI Catalysis, a Nevada
corporation incorporated in May 2023. The Company’s main businesses include AI-driven digital human technology, live-streaming
e-commerce business and live streaming interactive game. For more information, please visit the Company’s website at https://www.gdculturegroup.com/.
Forward-Looking Statements
This announcement contains forward-looking statements
within the meaning of the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. All statements other than statements
of historical fact in this announcement are forward-looking statements. These forward-looking statements involve known and unknown risks
and uncertainties and are based on current expectations and projections about future events and financial trends that the Company believes
may affect its financial condition, results of operations, business strategy and financial needs. Investors can identify these forward-looking
statements by words or phrases such as “may,” “will,” “expect,” “anticipate,” “aim,”
“estimate,” “intend,” “plan,” “believe,” “potential,” “continue,” “is/are
likely to” or other similar expressions. The Company undertakes no obligation to update forward-looking statements to reflect subsequent
occurring events or circumstances, or changes in its expectations, except as may be required by law. Although the Company believes that
the expectations expressed in these forward-looking statements are reasonable, it cannot assure you that such expectations will turn
out to be correct, and the Company cautions investors that actual results may differ materially from the anticipated results.
For investor and media inquiries, please contact:
Ascent Investor Relations LLC
Tina Xiao
Phone: +1-646-932-7242
Email: investors@ascent-ir.com
Exhibit 99.2
GD Culture Group Limited Announces Closing
of $10 Million Registered Direct Offering Priced At-the-Market Under Nasdaq Rules
NEW YORK, Nov. 03, 2023 (GLOBE NEWSWIRE) -- GD
Culture Group Limited (“GDC” or the “Company”) (Nasdaq: GDC), a holding company currently conducting business
through Shanghai Xianzhui Technology Co., Ltd. (“Shanghai Xianzhui”) and AI Catalysis Corp. (“AI Catalysis”),
today announced the closing of its previously announced registered direct offering of 1,436,253 shares of the Company’s common
stock, par value $0.0001 per share (the “Shares”), and pre-funded warrants to purchase up to 1,876,103 shares of the Company’s
common stock (the “Pre-funded Warrants”) at a purchase price of $3.019 per share. The purchase price for the Pre-funded Warrants
was identical to the purchase price for Shares, less the exercise price of $0.001 per share.
The Company issued to the same investors warrants
(the “Warrants”) to purchase up to 3,312,356 shares of common stock at an exercise price of $3.019 per share. The Warrants
will have a 5-year term from the date of issuance.
The aggregate gross proceeds to the Company were
approximately $10 million.
Univest Securities, LLC acted as the sole placement
agent.
The Shares, the Pre-funded Warrants, and the
Warrants have been registered and the offering was made pursuant to a shelf registration statement on Form S-3 (File No. 333-254366)
previously filed and declared effective by the U.S. Securities and Exchange Commission (“SEC”) on March 26, 2021. A final
prospectus supplement and accompanying prospectus describing the terms of the proposed offering were filed with the SEC and are available
on the SEC’s website located at http://www.sec.gov. Electronic copies of the final prospectus supplement and the accompanying prospectus
may be obtained, by contacting Univest Securities, LLC at info@univest.us, or by calling +1 (212) 343-8888.
This press release does not constitute an offer
to sell or the solicitation of an offer to buy, nor will there be any sales of such securities in any jurisdiction in which such offer,
solicitation or sale would be unlawful prior to registration or qualification under the securities laws of such jurisdiction. Copies
of the prospectus supplement relating to the registered direct offering, together with the accompanying base prospectus, can be obtained
at the SEC’s website at www.sec.gov.
About GD Culture Group Limited.
GD Culture Group Limited (the “Company”)
(Nasdaq: GDC), is a Nevada holding company currently conducting business through its subsidiaries, Shanghai Xianzhui Technology Co.,
Ltd. (“Shanghai Xianzhui”) and AI Catalysis Corp. (“AI Catalysis”). The company plans to enter into the livestreaming
market with focus on e-commerce and livestreaming interactive games through its wholly owned U.S. subsidiary, AI Catalysis, a Nevada
corporation incorporated in May 2023. The Company’s main businesses include AI-driven digital human technology, live-streaming
e-commerce business and live streaming interactive game. For more information, please visit the Company’s website at https://www.gdculturegroup.com/.
Forward-Looking Statements
This announcement contains forward-looking statements
within the meaning of the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. All statements other than statements
of historical fact in this announcement are forward-looking statements. These forward-looking statements involve known and unknown risks
and uncertainties and are based on current expectations and projections about future events and financial trends that the Company believes
may affect its financial condition, results of operations, business strategy and financial needs. Investors can identify these forward-looking
statements by words or phrases such as “may,” “will,” “expect,” “anticipate,” “aim,”
“estimate,” “intend,” “plan,” “believe,” “potential,” “continue,” “is/are
likely to” or other similar expressions. The Company undertakes no obligation to update forward-looking statements to reflect subsequent
occurring events or circumstances, or changes in its expectations, except as may be required by law. Although the Company believes that
the expectations expressed in these forward-looking statements are reasonable, it cannot assure you that such expectations will turn
out to be correct, and the Company cautions investors that actual results may differ materially from the anticipated results.
For investor and media inquiries, please contact:
Ascent Investor Relations LLC
Tina Xiao
Phone: +1-646-932-7242
Email: investors@ascent-ir.com
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GD Culture (NASDAQ:GDC)
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