UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
6-K/A
(Amendment No. 1)
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16 UNDER THE
SECURITIES EXCHANGE ACT OF 1934
For the month of April 2024
Commission File Number: 001-41639
SMX
(SECURITY MATTERS) PUBLIC LIMITED COMPANY
(Exact Name of Registrant as Specified in Charter)
Mespil Business Centre,
Mespil House
Sussex Road, Dublin 4,
Ireland
Tel: +353-1-920-1000
(Address of Principal Executive Offices) (Zip Code)
Indicate by check mark whether the registrant files
or will file annual reports under cover of Form 20-F or Form 40-F. Form 20-F ☒
Form 40-F ☐
EXPLANATORY NOTE
On April 22, 2024, SMX (Security Matters) Public Limited
Company (the “Company”) filed a Report on Form 6-K (the “Original 6-K”) to publicly disclose, among other things,
that the Company entered into a Stock Purchase Agreement (the “SPA”) with Generating Alpha Ltd. (“Alpha”), pursuant
to which Alpha has committed to purchase from time to time from the Company, up to $30,000,000 of our ordinary shares, subject to the
terms and conditions specified in the SPA.
The SPA was attached as Exhibit 10.1 to the Original
6-K, and inadvertently included a sentence that was not included in the final, agreed-upon and executed SPA. This Amendment No. 1 to Form
6-K is being filed to amend the Original 6-K solely to refile the corrected, as-executed SPA. There are no other modifications or updates
to any of the information made in the Original 6-K.
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 thereunto
duly authorized.
Date: June 18, 2024
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SMX (SECURITY MATTERS) PUBLIC LIMITED COMPANY |
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|
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By: |
/s/ Haggai Alon |
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Name: |
Haggai Alon |
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Title: |
Chief Executive Officer |
Exhibit 10.1
STOCK
PURCHASE AGREEMENT
This
STOCK PURCHASE AGREEMENT is dated as of the 19th day of April 2024 (the “Agreement”) between Generating
Alpha Ltd., a Saint Kitts and Nevis Company (the “Investor”), and SMX (SECURITY MATTERS) PUBLIC LIMITED COMPANY,
an Irish public limited company (the “Company”).
WHEREAS,
the parties desire that, upon the terms and subject to the conditions contained herein, the Company shall issue and sell to the Investor,
from time to time as provided herein, and the Investor shall purchase from the Company up to Thirty Million Dollars ($30,000,000) of
the Company’s fully registered, freely tradable ordinary shares, par value $0.0022 per share (the “Common Stock”);
and
WHEREAS,
such investments will be made in reliance upon the provisions of the Securities Act of 1933, as amended, and the regulations promulgated
thereunder (the “Securities Act”), and/or upon such other exemption from the registration requirements of the
Securities Act as may be available with respect to any or all of the investments to be made hereunder.
NOW,
THEREFORE, the parties hereto agree as follows:
ARTICLE
I.
Certain Definitions
Section
1.1. “Put” shall mean the portion of the Commitment Amount requested by the Company in the Put Notice.
Section
1.2. “Put Date” shall mean the second (2nd) Trading Day after expiration of the applicable Valuation Period
for each Put.
Section
1.3. “Put Notice” shall mean a written notice in the form of Exhibit E attached hereto to the Investor executed
by an officer of the Company and setting forth the Put amount and Minimum Acceptable Price (“MAP”) that the Company requests
from the Investor. No Put Notice can be delivered by the Company on a day which is not a Trading Day.
Section
1.4. “Put Notice Date” shall mean each date the Investor receives (in accordance with Section 2.2(b) of this Agreement)
a Put Notice. Company shall notify Investor of its intent to deliver a Put Notice one (1) day before sending it. This one-day notice
may be waived in writing by both parties.
Section
1.5. “Put Shares” shall mean the shares of Common Stock issued and sold to the Investor pursuant to a Put Notice under
the terms and conditions hereof.
Section
1.6. [Intentionally Omitted]
Section
1.7 [Intentionally Omitted]
Section
1.8. [Intentionally Omitted]
Section
1.9. “Closing” shall mean one of the closings of a purchase and sale of Common Stock pursuant to Section 2.3.
Section
1.10. “Commitment Amount” shall mean the aggregate amount of Thirty Million Dollars ($30,000,000) which the Investor
has agreed to provide to the Company in order to purchase the Company’s Common Stock pursuant to the terms and conditions of this
Agreement.
Section
1.11. “Commitment Period” shall mean the period commencing on the Effective Date and expiring upon the termination
of this Agreement in accordance with Section 10.2.
Section
1.12. “Minimum Acceptable Price” shall mean the minimum price per share notified by the Company to the Investor in each Advance
Notice.
Section
1.13. “Condition Satisfaction Date” shall have the meaning set forth in Section 7.2.
Section
1.14. “Damages” shall mean any loss, claim, damage, liability, costs and expenses (including, without limitation,
reasonable attorney’s fees and disbursements and costs and expenses of expert witnesses and investigation).
Section
1.15. Deleted
Section
1.16. “Effective Date” shall mean the date on which the SEC first declares effective a Registration Statement registering
the resale of the Registrable Securities as set forth in Section 7.2(a).
Section
1.17. Deleted.
Section
1.18. “Environmental Laws” shall have the meaning set forth in Section 4.11.
Section
1.19. “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder.
Section
1.20. “Valuation Date” shall have the meaning set forth in Section 4.30.
Section
1.21. “Event of Default” shall have the meaning set forth in Section 7.2.
Section
1.22. “Indemnified Liabilities” shall have the meaning set forth in Section 5.1(a).
Section
1.23. “Indemnified Party” and “Indemnifying Party” shall have the meaning set forth in Section
5.2.
Section
1.24. “Investor Indemnitees” shall have the meaning set forth in Section 5.1(a).
Section
1.25. “Losses” shall have the meaning set forth in Section 5.1(b).
Section
1.26. “Material Adverse Effect” shall mean any condition, circumstance, or situation that may result in, or reasonably
be expected to result in (i) a material adverse effect on the legality, validity or enforceability of the Agreement, including on the
legal status of the Put Shares as free trading, (ii) a material adverse effect on the results of operations, assets, business or condition
(financial or otherwise) of the Company, taken as a whole, (iii) a material adverse effect on the Company’s ability to perform
its obligations hereunder in any material respect on a timely basis or (iv) the Common Stock ceases to be listed or trading on a Principal
Market or is suspended continuously for more than five (5) trading days.
Section
1.27. “Market Price” shall mean the lowest daily traded price of the Company’s Common Stock during the Valuation
Period, provided that the Market Price shall not be less than the Minimum Acceptable Price.
Section
1.28. “Maximum Put Amount” The dollar amount of Common Stock sold to the Investor in each Put may not
be less than $20,000.00 and a maximum amount up to $500,000 in any consecutive 30-day period subject to the Volume Threshold. The Maximum
Put Amount may be increased upon mutual written consent of the Company and the Investor. Puts are further limited to Investor beneficially
owning no more than 4.99% of the Common Stock at any given time.
Section
1.29. “Maximum Common Stock Issuance” shall have the meaning set forth in Section 2.9.
Section
1.30. “Ownership Limitation” shall have the meaning set forth in Section 2.2.
Section
1.31. “Person” shall mean an individual, a corporation, a partnership, an association, a trust or other entity or
organization, including a government or political subdivision or an agency or instrumentality thereof.
Section
1.32. [Intentionally Omitted]
Section
1.33. “Valuation Period” shall mean the five (5) Trading Days immediately after the date of the applicable Put Notice
during which the Purchase Price of the Common Stock is valued.
Section
1.34. “Principal Market” shall mean the Nasdaq Global Select Market, the Nasdaq Global Market, the Nasdaq Capital
Market, the American Stock Exchange, the OTC Bulletin Board, or the New York Stock Exchange, whichever is at the time the principal trading
exchange or market for the Common Stock.
Section
1.35. “Purchase Price” shall mean: (a) ninety five percent (95%) of the Market Price,, if the market price of the
Common Stock is over $1.00 (b) ninety percent (90%) of the Market Price, if the market price of the Common Stock is between .80 and $1.00
(c) eighty five percent (85%) of the Market Price, if the market price of the Common Stock is between .60 and .80, (d) eighty percent
(80%) of the Market Price, if the market price of the Common Stock is between .40 and .60, (e) seventy five percent (75%) of the Market
Price, if the market price of the Common Stock is between .20 and .40 and fifty percent (50%) of the Market Price, if the market price
of the Common Stock is below .20.
Section
1.36. “Registration Limitation” shall have the meaning set forth in Section 2.2.
Section
1.37. [Intentionally Omitted]
Section
1.38. “Related Party” shall have the meaning set forth in Section 6.13.
Section
1.39. “Rule 144” shall mean Rule 144 (or any similar provision then in force) promulgated under the Securities Act.
Section
1.40. Deleted.
Section
1.41. “SEC” shall mean the United States Securities and Exchange Commission.
Section
1.42. “Securities Act” shall have the meaning set forth in the recitals.
Section
1.43. “Third Party Claim” shall have the meaning set forth in Section 5.2(b).
Section
1.44. “Trading Day” shall mean any day during which the Principal Market shall be open for business.
Section
1.45. [Intentionally Omitted]
Section
1.46. “VWAP” means, as of any Trading Day, the daily dollar volume-weighted average price for the Common Stock as
reported by Bloomberg, LP through its “Historical Price Table Screen (HP)” with Market: Weighted Ave function selected (or
comparable financial news service (U.S market only).
Section
1.47. “Registrable Securities” shall mean the shares from the Commitment Fee and the Put Shares to be issued hereunder
(i) in respect of which a Registration Statement has not been declared effective by the SEC, (ii) which have not been sold under circumstances
meeting all of the applicable conditions of Rule 144 or (iii) which have not been otherwise transferred to a holder who may trade such
Put Shares without restriction under the Securities Act, and the Company has delivered a new certificate or other evidence of ownership
for such securities not bearing a restrictive legend.
Section
1.48. “Registration Rights Agreement” shall mean the Registration Rights Agreement dated the date hereof, regarding
the filing of the Registration Statement for the resale of the Registrable Securities, entered into between the Company and the Investor.
Section
1.49. “Registration Statement” shall mean a registration statement on Form S-1 or Form S-3 (if use of such form is
then available to the Company pursuant to the rules of the SEC and, if not, on such other form promulgated by the SEC for which the Company
then qualifies and which counsel for the Company shall deem appropriate, and which form shall be available for the resale of the Registrable
Securities to be registered thereunder in accordance with the provisions of this Agreement and the Registration Rights Agreement, and
in accordance with the intended method of distribution of such securities), for the registration of the resale by the Investor of the
Registrable Securities under the Securities Act.
Section
1.51 “Volume Threshold” shall mean a number of shares of Common Stock equal
to the quotient of (a) the number of shares of Common Stock requested by the Company in a Put Notice divided by (b) 0.30.
ARTICLE
II.
Puts
Section
2.1. “Puts”
Subject
to the terms and conditions of this Agreement (including, without limitation, the provisions of Article VII hereof), the Company, at
its sole and exclusive option, may issue and sell to the Investor, and the Investor shall purchase from the Company, Put Shares, by the
delivery, in the Company’s sole discretion, of Put Notices. The aggregate maximum amount of all Puts that the Investor shall be
obligated to make under this Agreement shall not exceed the Commitment Amount. Once a Put Notice is received by the Investor, it shall
not be terminated, withdrawn or otherwise revoked by the Company except as set forth in this Agreement. Notwithstanding anything to the
contrary herein, in no event shall the Company submit a Put Notice, and the Investor may not accept, a Put until the three (3) month
anniversary of the registration statement being deemed effective by the SEC.
Section
2.2. Mechanics.
(a)
Put Notice. At any time during the Commitment Period, the Company may require the Investor to purchase Put Shares by delivering
a Put Notice to the Investor, subject to the conditions set forth in Article VII; provided, however, that (i) the amount for each Put
as designated by the Company in the applicable Put Notice shall not be more than the Maximum Put Amount, (ii) the aggregate amount of
the Puts pursuant to this Agreement shall not exceed the Commitment Amount, (iii) in no event shall the number of Put Shares issuable
to the Investor pursuant to a Put cause the aggregate number of shares of Common Stock beneficially owned by the Investor and its affiliates
to meet or exceed (4.99%) percent of the then outstanding Common Stock (the “Ownership Limitation”), (iv) under no
circumstances shall the aggregate offering price or number of Put Shares, as the case may be, exceed the aggregate offering price or
number of shares of Common Stock available for issuance under a Registration Statement (the “Registration Limitation”),
and (v) the Common Stock must be DWAC and DRS eligible and sent to the Investor in electronic form, instead of certificate form, and
not be under DTC “chill” status and (vi) the Commitment Fee shall have been received by the Investor. In the event that the
Investor sends written acceptance of accepting a physical certificate, all fees and expenses for this certificate will be paid by the
Company.
(b)
Date of Delivery of Put Notice. A Put Notice shall be deemed delivered on (i) the Trading Day it is received by email (to the
address set forth in Section 11.1 herein) by the Investor if such notice is received prior to 1:00 pm Eastern Time, or (ii) the immediately
succeeding Trading Day if it is received by email after 1:00 pm Eastern Time on a Trading Day or at any time on a day which is not a
Trading Day. No Put Notice may be deemed delivered on a day that is not a Trading Day. The Company acknowledges and agrees that the Investor
shall be entitled to treat any email it receives from officers whose email addresses are identified by the Company purporting to be a
Put Notice as a duly executed and authorized Put Notice from the Company.
Section
2.3. Closings.
(a)
On the Put Date, the Company shall deliver to the Investor’s brokerage account in electronic form, such number of Put Shares of
the DWAC and DRS eligible Common Stock registered in the name of the Investor in accordance with the Put Notice and pursuant to this
Agreement. Upon the Investor’s brokerage account and their compliance department accepting those shares and the end of the Valuation
Period, the Investor shall immediately deliver to the Company the amount of the Put by wire transfer of immediately available funds as
determined by the Purchase Price. On or prior to the Put Date, each of the Company and the Investor shall deliver to the other all documents,
instruments and writings required to be delivered by either of them pursuant to Section 2.3(b) below in order to implement and
effect the transactions contemplated herein.
(b)
Obligations Upon Closing. The Investor agrees to Put the amount corresponding to the Put Notice to the Company upon completion
of each of the following conditions:
(i)
The Company shall have delivered via electronic delivery to the Investor the Put Shares applicable to the Put in accordance with Section
2.3(a) and the Put Shares have been deemed by the Investor’s brokerage firm to be in good form acceptable for sale and the
Common Stock of the Company shall be listed on the OTC QB or higher.
(ii)
A Registration Statement filed pursuant to the Registration Rights Agreement shall be effective and available for the resale of all applicable
Put Shares to be issued in connection with the Put and any certificates evidencing such shares shall be free of restrictive legends.
(iii)
the Company shall have obtained all material permits and qualifications required by any applicable state for the offer and sale of the
Registrable Securities, or shall have the availability of exemptions therefrom. The sale and issuance of the Registrable Securities shall
be legally permitted by all laws and regulations to which the Company is subject;
(iv)
the Company shall have filed with the SEC in a timely manner all reports, notices and other documents required of a “reporting
company” under the Exchange Act and applicable SEC regulations;
(v)
[Intentionally Omitted]
(vi)
the Company’s transfer agent shall be DWAC and DRS eligible.
(vii)
The conditions in Section 7.2 below are satisfied and provided the Company is in compliance with its obligations in this Section
2.3, the Investor shall wire to the Company the amount of funds pursuant to the Put Notice and this Agreement.
Section
2.4. Offset. If the Company owes any note or debt to the Investor, then the Investor may retain 50% of any Purchase Price otherwise
payable to the Company upon a Put Date, to apply to and offset the amounts owed under any such note or debt to the Investor.
Section
2.5. Hardship. In the event the Investor sells shares of the Put Shares after receipt of a Put Notice and the Company fails to
perform its obligations as mandated in Section 2.3, the Company agrees that in addition to and in no way limiting the rights and obligations
set forth in Article V hereto and in addition to any other remedy to which the Investor is entitled at law or in equity, including, without
limitation, specific performance, it will hold the Investor harmless against any loss, claim, damage, or expense (including reasonable
legal fees and expenses), as incurred, arising out of or in connection with such default by the Company and acknowledges that irreparable
damage would occur in the event of any such default. It is accordingly agreed that the Investor shall be entitled to an injunction or
injunctions to prevent such breaches of this Agreement and to specifically enforce, without the posting of a bond or other security,
the terms and provisions of this Agreement.
Section
2.6. Deleted.
Section
2.7 Deleted.
Section
2.8 Reimbursement. If (I) the Investor becomes involved in any capacity in any action, proceeding or investigation brought by
any shareholder of the Company, in connection with or as a result of the consummation of the transactions contemplated by the Stock Purchase
Agreement, or if the Investor is impleaded in any such action, proceeding or investigation by any person or (II) the Investor becomes
involved in any capacity in any action, proceeding or investigation brought by the SEC against or involving the Company or in connection
with or as a result of the consummation of the transactions contemplated by the Stock Purchase Agreement or if this Investor is impleaded
in any such action, proceeding or investigation by any person, then in any such case, the Company will reimburse the Investor for its
reasonable legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewith, as such
expenses are incurred. In addition, other than with respect to any matter in which the Investor is a named party, the Company will pay
to the Investor the charges, as reasonably determined by the Investor, for the time of any officers or employees of the Investor devoted
to appearing and preparing to appear as witnesses, assisting in preparation for hearings, trials or pretrial matters, or otherwise with
respect to inquiries, hearing, trials, and other proceedings relating to the subject matter of this Agreement. The reimbursement obligations
of the Company under this section shall be in addition to any liability which the Company may otherwise have, shall extend upon the same
terms and conditions to any affiliates of the Investor that are actually named in such action, proceeding or investigation, and partners,
directors, agents, employees, attorneys, accountants, auditors and controlling persons (if any), as the case may be, of Investor and
any such affiliate, and shall be binding upon and inure to the benefit of any successors of the Company, the Investor and any such affiliate
and any such person. Any and all costs that Investor pays for relating to clearing and processing stock certificates shall be deducted
from any payment the Company receives from Investor.
Section
2.9 Overall Limit on Issuable Common Stock. Notwithstanding anything contained herein to the contrary, if during the Commitment
Period the Company becomes listed on an exchange that limits the number of shares of Common Stock that may be issued without shareholder
approval, then the total number of Put Shares issuable by the Company and purchasable by the Investor pursuant to this Agreement shall
not exceed that number of shares of Common Stock that may be issuable without shareholder approval (the “Maximum Common Stock
Issuance”). If such issuance of Put Shares could cause a delisting on the Principal Market, then the Maximum Common Stock Issuance
shall first be approved by the Company’s shareholders in accordance with applicable law and the By-laws and Amended and Restated
Articles of Incorporation of the Company. The parties understand and agree that the Company’s failure to seek or obtain such shareholder
approval shall in no way adversely affect the validity and due authorization of the issuance and sale of Put Shares in accordance with
the terms and conditions hereof to the Investor or the Investor’s obligation in accordance with the terms and conditions hereof
to purchase a number of Put Shares in the aggregate up to the Maximum Common Stock Issuance limitation, and that such approval pertains
only to the applicability of the Maximum Common Stock Issuance limitation provided in this Section 2.9.
ARTICLE
III.
Representations of Investor
Investor
hereby represents and warrants to, and agrees with, the Company that the following are true and correct as of the date hereof and as
of each Put Date:
Section
3.1. Organization and Authorization. The Investor is duly incorporated or organized and validly existing in the jurisdiction of
its incorporation or organization and has all requisite power and authority to purchase and hold the securities issuable hereunder. The
decision to invest and the execution and delivery of this Agreement by such Investor, the performance by such Investor of its obligations
hereunder and the consummation by such Investor of the transactions contemplated hereby have been duly authorized and requires no other
proceedings on the part of the Investor. The undersigned has the right, power and authority to execute and deliver this Agreement and
all other instruments (including, without limitations, the Registration Rights Agreement), on behalf of the Investor. This Agreement
has been duly executed and delivered by the Investor and, assuming the execution and delivery hereof and acceptance thereof by the Company,
will constitute the legal, valid and binding obligations of the Investor, enforceable against the Investor in accordance with its terms.
Section
3.2. Evaluation of Risks. The Investor has such knowledge and experience in financial, tax and business matters as to be capable
of evaluating the merits and risks of, and bearing the economic risks entailed by, an investment in the Company and of protecting its
interests in connection with this transaction. It recognizes that its investment in the Company involves a high degree of risk.
Section
3.3. No Legal Advice From the Company. The Investor acknowledges that it had the opportunity to review this Agreement and the
transactions contemplated by this Agreement with his or its own legal counsel and investment and tax advisors. The Investor is relying
solely on such counsel and advisors and not on any statements or representations of the Company or any of its representatives or agents
for legal, tax or investment advice with respect to this investment, the transactions contemplated by this Agreement or the securities
laws of any jurisdiction.
Section
3.4. Information. The Investor and its advisors (and its counsel), if any, have been furnished with all materials relating to
the business, finances and operations of the Company and information it deemed material to making an informed investment decision. The
Investor and its advisors, if any, have been afforded the opportunity to ask questions of the Company and its management. Neither such
inquiries nor any other due diligence investigations conducted by such Investor or its advisors, if any, or its representatives shall
modify, amend or affect the Investor’s right to rely on the Company’s representations and warranties contained in this Agreement.
The Investor understands that its investment involves a high degree of risk. The Investor is in a position regarding the Company, which,
based upon employment, family relationship or economic bargaining power, enabled and enables such Investor to obtain information from
the Company in order to evaluate the merits and risks of this investment.
Section
3.5. Receipt of Documents. The Investor and its counsel have received and read in their entirety: (i) this Agreement and the Exhibits
annexed hereto; (ii) all due diligence and other information necessary to verify the accuracy and completeness of such representations,
warranties and covenants; and (iii) answers to all questions the Investor submitted to the Company regarding an investment in the Company;
and the Investor has relied on the information contained therein and has not been furnished any other documents, literature, memorandum
or prospectus.
Section
3.6. Not an Affiliate. The Investor is not an officer, director or a person that directly, or indirectly through one or more intermediaries,
controls or is controlled by, or is under common control with the Company or any “Affiliate” of the Company (as that
term is defined in Rule 405 of the Securities Act).
Section
3.7. Trading Activities. The Investor’s trading activities with respect to the Common Stock shall be in compliance with
all applicable securities laws, rules and regulations and the rules and regulations of the Principal Market on which the Common Stock
is listed or traded. Investor makes no representations or covenants that it will not engage in trading in the securities of the Company,
other than the Investor will not engage in any short sales of the Common Stock at any time during the Agreement. The Company acknowledges,
without exception, that the Investor has the right to sell Common Stock at any and all times during the Commitment Period. Nothing contained
in this Agreement shall be deemed a representation or warrant by the Investor to hold any Stock for any period of time. The Company acknowledges
and agrees that transactions in its securities by the Investor may impact the market price of the Stock, including during periods when
the prices at which the Company may be required to issue Investor’s Stock are determined.
Section
3.8 Accredited Investor. The Investor is an “Accredited Investor” as that term is defined in Rule 501(a)(3) of Regulation
D promulgated under the Securities Act.
ARTICLE
IV.
Representations
and Warranties of the Company
Except
as stated below, on the disclosure schedules attached hereto the Company hereby represents and warrants to, and covenants with, the Investor
that the following are true and correct as of the date hereof and as of each Put Date, exempt in any case as provided in any SEC Filing:
Section
4.1. Organization and Qualification. The Company is duly incorporated or organized and validly existing in the jurisdiction of
its incorporation or organization and has all requisite power to own its properties and to carry on its business as now being conducted.
Each of the Company and its subsidiaries is duly qualified as a foreign corporation to do business and is in good standing in every jurisdiction
in which the nature of the business conducted by it makes such qualification necessary, except to the extent that the failure to be so
qualified or be in good standing would not have a Material Adverse Effect on the Company and its subsidiaries taken as a whole.
Section
4.2. Authorization, Enforcement, Compliance with Other Instruments. (i) The Company has the requisite power and authority to enter
into and perform this Agreement, the Registration Rights Agreement and any related agreements, in accordance with the terms hereof and
thereof, (ii) the execution and delivery of this Agreement, the Registration Rights Agreement and any related agreements by the Company
and the consummation by it of the transactions contemplated hereby and thereby, have been duly authorized by the Company’s Board
of Directors and no further consent or authorization is required by the Company, its Board of Directors or its stockholders, (iii) this
Agreement, the Registration Rights Agreement and any related agreements have been duly executed and delivered by the Company, (iv) this
Agreement, the Registration Rights Agreement and assuming the execution and delivery thereof and acceptance by the Investor and any related
agreements constitute the valid and binding obligations of the Company enforceable against the Company in accordance with their terms,
except as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation or similar laws relating to, or affecting generally, the enforcement of creditors’ rights and remedies.
Section
4.3. Capitalization. All outstanding shares have been validly issued and are fully paid and nonassessable. No shares of Common
Stock are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company.
Except as disclosed in the SEC Documents, as of the date hereof, (i) there are no outstanding options, warrants, scrip, rights to subscribe
to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock
of the Company or any of its subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its
subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its subsidiaries or options,
warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible
into, any shares of capital stock of the Company or any of its subsidiaries, (ii) there are no outstanding debt securities (iii)
there are no outstanding registration statements; and (iv) there are no agreements or arrangements under which the Company or any of
its subsidiaries is obligated to register the sale of any of their securities under the Securities Act (except pursuant to the Registration
Rights Agreement), except pursuant to the terms of an agreement between the Company and the Investor. There are no securities or instruments
containing anti-dilution or similar provisions that will be triggered by this Agreement or any related agreement or the consummation
of the transactions described herein or therein. The Company has furnished to the Investor true and correct copies of the Company’s
Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”),
and the Company’s By-laws, as in effect on the date hereof (the “By-laws”), and the terms of all securities
convertible into or exercisable for Common Stock and the material rights of the holders thereof in respect thereto.
Section
4.4. The execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions
contemplated hereby will not (i) result in a violation of the Certificate of Incorporation, any certificate of designations of any outstanding
series of preferred stock of the Company or By-laws (or equivalent) or (ii) conflict with or constitute a default (or an event which
with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration
or cancellation of, any agreement, indenture or instrument to which the Company or any of its subsidiaries is a party, or result in a
violation of any law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations and the
rules and regulations of the Principal Market on which the Common Stock is quoted) applicable to the Company or any of its subsidiaries
or by which any material property or asset of the Company or any of its subsidiaries is bound or affected and which would cause a Material
Adverse Effect. Neither the Company nor its subsidiaries is in violation of any term of or in default under its Articles of Incorporation
or By-laws (or equivalent) or their organizational charter or by-laws, respectively, or any material contract, agreement, mortgage, indebtedness,
indenture, instrument, judgment, decree or order or any statute, rule or regulation applicable to the Company or its subsidiaries. The
business of the Company and its subsidiaries is not being conducted in violation of any law, ordinance, and regulation of any governmental
entity. Except as specifically contemplated by this Agreement and as required under the Securities Act and any applicable state securities
laws, the Company is not required to obtain any consent, authorization or order of, or make any filing or registration with, any court
or governmental agency in order for it to execute, deliver or perform any of its obligations under or contemplated by this Agreement
or the Registration Rights Agreement in accordance with the terms hereof or thereof. All consents, authorizations, orders, filings and
registrations which the Company is required to obtain pursuant to the preceding sentence have been obtained or effected on or prior to
the date hereof. The Company and its subsidiaries are unaware of any fact or circumstance which might give rise to any of the foregoing.
Section
4.5. SEC Documents; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents
required to be filed by it with the SEC under the Securities Exchange Act for the two years preceding the date hereof (or such shorter
period as the Company was required by law or regulation to file such material) (all of the foregoing filed prior to the date hereof or
amended after the date hereof and all exhibits include therein and financial statements and schedules thereto and documents incorporated
by reference therein, and all Securities Act filings, being hereinafter referred to as the “SEC Documents”) on timely
basis or has received a valid extension of such time of filing and has filed any such SEC Document prior to the expiration of any such
extension. The Company has delivered to the Investor or its representatives, or made available through the SEC’s website at http://www.sec.gov.,
true and complete copies of the SEC Documents. As of their respective dates, the SEC Documents complied in all material respects with
the requirements of the Exchange Act or Securities Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder
applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with the SEC, contained any untrue statement
of a fact or omitted to state a fact required to be stated therein or necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading. As of their respective dates, the financial statements of the Company
included in the SEC Documents complied as to form in all respects with applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto. Such financial statements have been prepared in accordance with IFRS, consistently applied,
during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the
case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements) and fairly
present in all material respects the financial position of the Company as of the dates thereof and the results of its operations and
cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other
information provided by or on behalf of the Company to the Buyers which is not included in the SEC Documents contains any untrue statement
of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstance
under which they are or were made and not misleading.
Section
4.6. No Misstatement or Omission. Each part of the Registration Statement, when such part became or becomes effective, and the
Prospectus, on the date of filing thereof with the SEC and at each Put Notice Date and Closing Date, conformed or will conform in all
material respects with the requirements of the Securities Act and the rules and regulations promulgated thereunder; each part of the
Registration Statement, when such part became or becomes effective, did not or will not contain an untrue statement of fact or omit to
state a fact required to be stated therein or necessary to make the statements therein not misleading; and the Prospectus, on the date
of filing thereof with the SEC and at each Put Notice Date and Share Issuance Date, did not or will not include an untrue statement of
fact or omit to state a fact necessary to make the statements therein, in light of the circumstances under which they were made, not
misleading; except that the foregoing shall not apply to statements or omissions in any such document made in reliance on information
furnished in writing to the Company by the Investor expressly stating that such information is intended for use in the Registration Statement,
the Prospectus, or any amendment or supplement thereto.
Section
4.7. No Default. The Company is not in default in the performance or observance of any obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust or other instrument or agreement to which it is a party or by which it is or its
property is bound and neither the execution, nor the delivery by the Company, nor the performance by the Company of its obligations under
this Agreement or any of the exhibits or attachments hereto will conflict with or result in the breach or violation of any of the terms
or provisions of, or constitute a default or result in the creation or imposition of any lien or charge on any assets or properties of
the Company under its Certificate of Incorporation, By-Laws, any material indenture, mortgage, deed of trust or other agreement applicable
to the Company or instrument to which the Company is a party or by which it is bound, or any statute, or any decree, judgment, order,
rules or regulation of any court or governmental agency or body having jurisdiction over the Company or its properties, in each case
which default, lien or charge is likely to cause a Material Adverse Effect on the Company’s business or financial condition.
Section
4.8. Absence of Events of Default. No Event of Default, as defined in the respective agreement to which the Company is a party,
and no event which, with the giving of notice or the passage of time or both, would become an Event of Default (as so defined), has occurred
and is continuing, which would have an adverse effect on the Company’s business, properties, prospects, financial condition or
results of operations. The Company shall notify the Investor immediately upon any Event of Default, or anything that is likely to detrimentally
affect the ability of the Company to perform its obligations under this Agreement, occurring, or becoming, to the Company’s knowledge,
likely to occur, and include the specifics of such Event of Default or other event in its notice. At the Investor’s request, the
Company shall provide the Investor with a certificate signed by two (2) of its directors or its Chief Executive Officer, which shall
state whether an Event of Default has occurred or is continuing.
Section
4.9. Intellectual Property Rights. The Company and its subsidiaries own or possess adequate rights or licenses to use all material
trademarks, trade names, service marks, service mark registrations, service names, patents, patent rights, copyrights, inventions, licenses,
approvals, governmental authorizations, trade secrets and rights necessary to conduct their respective businesses as now conducted. The
Company and its subsidiaries do not have any knowledge of any infringement by the Company or its subsidiaries of trademark, trade name
rights, patents, patent rights, copyrights, inventions, licenses, service names, service marks, service mark registrations, trade secret
or other similar rights of others, and, to the knowledge of the Company, there is no claim, action or proceeding being made or brought
against, or to the Company’s knowledge, being threatened against, the Company or its subsidiaries regarding trademark, trade name,
patents, patent rights, invention, copyright, license, service names, service marks, service mark registrations, trade secret or other
infringement; and the Company and its subsidiaries are unaware of any facts or circumstances which might give rise to any of the foregoing.
Section
4.10. Employee Relations. Neither the Company nor any of its subsidiaries is involved in any labor dispute nor, to the knowledge
of the Company or any of its subsidiaries, is any such dispute threatened. None of the Company’s or its subsidiaries’ employees
is a member of a union and the Company and its subsidiaries believe that their relations with their employees are good.
Section
4.11. Environmental Laws. The Company and its subsidiaries are (i) in compliance with any and all applicable material foreign,
federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants (“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.
Section
4.12. Title. The Company has good and marketable title to its properties and material assets owned by it, free and clear of any
pledge, lien, security interest, encumbrance, claim or equitable interest other than such as are not material to the business of the
Company. Any real property and facilities held under lease by the Company and its subsidiaries are held by them under valid, subsisting
and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such
property and buildings by the Company and its subsidiaries.
Section
4.13. Insurance. The Company and each of its subsidiaries are insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as management of the Company believes to be prudent and customary in the businesses in which
the Company and its subsidiaries are engaged. Neither the Company nor any such subsidiary has been refused any insurance coverage sought
or applied for and neither the Company nor any such subsidiary has any reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue
its business at a cost that would not materially and adversely affect the condition, financial or otherwise, or the earnings, business
or operations of the Company and its subsidiaries, taken as a whole.
Section
4.14. Regulatory Permits. The Company and its subsidiaries possess all material certificates, authorizations and permits issued
by the appropriate federal, state or foreign regulatory authorities necessary to conduct their respective businesses and neither the
Company nor any such subsidiary has received any notice of proceedings relating to the revocation or modification of any such certificate,
authorization or permit.
Section
4.15. Internal Accounting Controls. The Company and each of its subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific
authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally
accepted accounting principles and the rules and regulations as promulgated by the SEC 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.
Section
4.16. No Material Adverse Breaches, etc. Neither the Company nor any of its subsidiaries is subject to any charter, corporate
or other legal restriction, or any judgment, decree, order, rule or regulation which in the judgment of the Company’s officers
has or is expected in the future to have a Material Adverse Effect on the business, properties, operations, financial condition, results
of operations or prospects of the Company or its subsidiaries. Except as set forth in the SEC Documents, neither the Company nor any
of its subsidiaries is in breach of any contract or agreement which breach, in the judgment of the Company’s officers, has or is
expected to have a Material Adverse Effect on the business, properties, operations, financial condition, results of operations or prospects
of the Company or its subsidiaries.
Section
4.17. Absence of Litigation. There is no action, suit, proceeding, inquiry or investigation before or by any court, public board,
government agency, self-regulatory organization or body pending against or affecting the Company, the Common Stock or any of the Company’s
subsidiaries, wherein an unfavorable decision, ruling or finding would (i) have a Material Adverse Effect on the transactions contemplated
hereby (ii) adversely affect the validity or enforceability of, or the authority or ability of the Company to perform its obligations
under, this Agreement or any of the documents contemplated herein, or (iii) have a Material Adverse Effect on the business, operations,
properties, financial condition or results of operation of the Company and its subsidiaries taken as a whole.
Section
4.18. [Intentionally Omitted]
Section
4.19. Tax Status. The Company and each of its subsidiaries has made or filed all federal and state income and all other tax returns,
reports and declarations required by any jurisdiction to which it is subject and (unless and only to the extent that the Company and
each of its subsidiaries has set aside on its books provisions reasonably adequate for the payment of all unpaid and unreported taxes)
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, except those being contested in good faith and has set aside on its books provision reasonably adequate
for the payment of all taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There are no
unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company know
of no basis for any such claim.
Section
4.20. Certain Transactions. None of the officers, directors, or employees of the Company is presently a party to any transaction
with the Company (other than for services as employees, officers and directors), including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring
payments to or from any officer, director or such employee or, to the knowledge of the Company, any corporation, partnership, trust or
other entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee or partner.
Section
4.21. Rights of First Refusal. The Company is not obligated to offer the securities offered hereunder on a right of first refusal
basis or otherwise to any third parties including, but not limited to, current or former shareholders of the Company, underwriters, brokers,
agents or other third parties.
Section
4.22. Use of Proceeds. The Company shall use the net proceeds from this offering for working capital and other general corporate
purposes including paying relevant fees and commissions incurred from this transaction. The Company will not provide any funding to or
purchase an interest in any person listed by the United States Department of the Treasury’s Office of Foreign Assets Control as
a Specially Designated National and Blocked Person.
Section
4.23. Maintenance of Listing or Quotation on Principal Market. For so long as any securities issuable hereunder held by the Investor
remain outstanding, the Company acknowledges, represents, warrants and agrees that it will /maintain the listing or quotation, as applicable,
of its Common Stock on the OTC QB or higher.
Section
4.24. Deleted.
Section
4.25. Opinion of Counsel. The Company will obtain for the Investor, at the Company’s expense, any and all opinions of counsel
which may be reasonably required in order to sell the securities issuable hereunder without restriction.
Section
4.26. Dilutive Effect. The Company understands and acknowledges that the number of Put Shares issuable upon purchases pursuant
to this Agreement will increase in certain circumstances including, but not necessarily limited to, the circumstance wherein the trading
price of the Common Stock declines during the Valuation Period. The Company’s executive officers and directors have studied and
fully understand the nature of the transactions contemplated by this Agreement and recognize that they have a potential dilutive effect
on the shareholders of the Company. The Board of Directors of the Company has concluded, in its good faith business judgment, and with
full understanding of the implications, that such issuance is in the best interests of the Company. The Company specifically acknowledges
that, subject to such limitations as are expressly set forth in the Agreement, its obligation to issue Put Shares upon purchases pursuant
to this Agreement is absolute and unconditional regardless of the dilutive effect that such issuance may have on the ownership interests
of other shareholders of the Company.
Section
4.27. Acknowledgment Regarding Investor’s Purchase of Shares. The Company acknowledges and agrees that the Investor is acting
solely in the capacity of an arm’s length investor with respect to this Agreement and the transactions contemplated hereunder.
The Company further acknowledges that the Investor is not acting as a financial advisor, partner or fiduciary of the Company or any of
its affiliates or subsidiaries (or in any similar capacity) with respect to this Agreement and the transactions contemplated hereunder
and any advice given by the Investor or any of its representatives or agents in connection with this Agreement and the transactions contemplated
hereunder is merely incidental to the Investor’s purchase of the Common Stock hereunder. The Company is aware and acknowledges
that it may not be able to request Puts under this Agreement if it cannot obtain an effective Registration Statement or if any issuances
of Common Stock pursuant to any Puts would violate any rules of the Principal Market. The Company further is aware and acknowledges that
any fees paid pursuant to Section 12.4 hereunder or issued pursuant to Section 12.4 hereunder shall be earned on the date hereof and
not refundable or returnable under any circumstances.
Section
4.28. No Advice From the Investor. The Company acknowledges that it has reviewed this Agreement and the transactions contemplated
by this Agreement with his or its own legal counsel and investment and tax advisors. The Company is relying solely on such counsel and
advisors and not on any statements or representations of the Investor or any of its representatives or agents for legal, tax or investment
advice with respect to this investment, the transactions contemplated by this Agreement or the securities laws of any jurisdiction. The
Company is not relying on any representation except for the representations of the Investor contained in this Agreement.
Section
4.29. No Similar Transactions. The Company is not a party to any transaction similar in nature to the one described in this Agreement.
Section
4.30. Sarbanes-Oxley; Internal Accounting Controls. The Company is in material compliance with all provisions of the Sarbanes-Oxley
Act of 2002 which are applicable to it as of the date hereof. The Company and its subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general
or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with
GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or
specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences. The Company has established disclosure controls and procedures (as defined
in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company 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 SEC’s rules and forms. The Company’s certifying officers have evaluated
the effectiveness of the Company’s disclosure controls and procedures as of the end of the period covered by the Company’s
most recently filed periodic report under the Exchange Act (such date, the “Valuation 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 Valuation Date. Since the Valuation Date, there have been
no changes in the Company’s internal control over financial reporting (as such term is defined in the Exchange Act) that has materially
affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
Section
4.31 Other Transactions. Notwithstanding anything contained herein, this Agreement and the rights awarded to the Investor hereunder
are non-exclusive, and the Company may, at any time throughout the term of this Agreement and thereafter, issue and allot, or undertake
to issue and allot, any shares and/or securities and/or convertible notes, bonds, debentures, options to acquire shares or other securities
and/or other facilities which may be converted into or replaced by Common Stock or other securities of the Company, and to extend, renew
and/or recycle any bonds and/or debentures, and/or grant any rights with respect to its existing and/or future share capital.
Section
4.32 The Shares. The Shares have been duly authorized and, when issued, delivered and paid for pursuant to this Agreement, will
be validly issued and fully paid and non-assessable, free and clear of all encumbrances and will be issued in compliance with all applicable
United States federal and state securities laws; the capital stock of the Company, including the Common Stock, conforms in all material
respects to the description thereof contained in the Registration Statement and the Common Stock, including the Shares, will conform
to the description thereof contained in the Prospectus as amended or supplemented. Neither the stockholders of the Company, nor any other
Person have any preemptive rights or rights of first refusal with respect to the Shares or other rights to purchase or receive any of
the Shares or any other securities or assets of the Company, and no Person has the right, contractual or otherwise, to cause the Company
to issue to it, or register pursuant to the Securities Act, any shares of capital stock or other securities or assets of the Company
upon the issuance or sale of the Shares. The Company is not obligated to offer the Shares on a right of first refusal basis or otherwise
to any third parties including, but not limited to, current or former shareholders of the Company, underwriters, brokers, agents or other
third parties. The Company shall maintain the listing or quotation, as applicable, of its Common Stock on the OTC QB or higher prior
issuing a Put.
Section
4.33 Broker Fees. No brokers, finders or financial advisory fees or commissions will be payable by the Company, its agents or
Subsidiaries, with respect to the transactions contemplated by this Agreement.
Section
4.34 Blue Sky. The Company shall, at its sole cost and expense, on or before each of the Closing Dates, take such action as the
Company shall reasonably determine is necessary to qualify the Securities for, or obtain exemption for the Securities for, sale to the
Investor at each of the Closings pursuant to this Agreement under applicable securities or “Blue Sky” laws of such states
of the United States, as reasonably specified by the Investor, and shall provide evidence of any such action so taken to the Investor
on or prior to the Closing Date.
Section
4.35 Reservation of Shares. The Company shall take all action necessary to at all times have authorized, and reserved the amount
of Shares included in the Company’s registration statement for issuance pursuant to this Agreement and the Registration Rights
Agreement.
Section
4.36 Payment Set Aside. To the extent that the Company makes a payment or payments to the Investor hereunder or under the Registration
Rights Agreement or the Investor enforces or exercises its rights hereunder or thereunder, and such payment or payments or the proceeds
of such enforcement or exercise or any part thereof are subsequently invalidated, declared to be invalid 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.
Section
4.37 Share Capital. There are no securities or instruments containing anti-dilution of similar provision that will be triggered
by the issuance of shares of Common Stock pursuant to this Agreement. The Company does not have any stock appreciation rights or “phantom
stock” plans or agreements or any similar plan or agreement and there is no dispute as to the class of any shares of the Company.
Section
4.38 Acknowledgement of Terms. The Company acknowledges that: (i) it is voluntarily entering into this Agreement of its own freewill,
(ii) it is not entering this Agreement under economic duress, (iii) the terms of this Agreement are reasonable and fair to the Company,
and (iv) the Company has had independent legal counsel of its own choosing review this Agreement, advise the Company with respect to
this Agreement, and represent the Company in connection with this Agreement.
ARTICLE
V.
Indemnification
The
Investor and the Company represent to the other the following with respect to itself:
Section
5.1. Indemnification.
(a)
In consideration of the Investor’s execution and delivery of this Agreement, and in addition to all of the Company’s other
obligations under this Agreement, the Company shall defend, protect, indemnify and hold harmless the Investor, and all of its officers,
directors, partners, employees and agents (including, without limitation, those retained in connection with the transactions contemplated
by this Agreement) (collectively, the “Investor Indemnitees”) from and against any and all actions, causes of action,
suits, claims, losses, costs, penalties, fees, liabilities and damages, and expenses in connection therewith (irrespective of whether
any such Investor Indemnitee is a party to the action for which indemnification hereunder is sought), and including reasonable attorneys’
fees and disbursements (the “Indemnified Liabilities”), incurred by the Investor Indemnitees or any of them as a result
of, or arising out of, or relating to (a) any misrepresentation or breach of any representation or warranty made by the Company in this
Agreement or the Registration Rights Agreement or any other certificate, instrument or document contemplated hereby or thereby, (b) any
breach of any covenant, agreement or obligation of the Company contained in this Agreement or the Registration Rights Agreement or any
other certificate, instrument or document contemplated hereby or thereby, or (c) any cause of action, suit or claim brought or made against
such Investor Indemnitee not arising out of any action or inaction of an Investor Indemnitee, and arising out of or resulting from the
execution, delivery, performance or enforcement of this Agreement or any other instrument, document or agreement executed pursuant hereto
by any of the Investor Indemnitees. To the extent that the foregoing undertaking by the Company may be unenforceable for any reason,
the Company shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities, which is permissible
under applicable law.
(b)
In consideration of the Company’s execution and delivery of this Agreement, and in addition to all of the Investor’s other
obligations under this Agreement, the Investor shall defend, protect, indemnify and hold harmless the Company, and all of its officers,
directors, partners, employees and agents (including, without limitation, those retained in connection with the transactions contemplated
by this Agreement) (collectively, the “Company Indemnitees”) from and against any and all Indemnified Liabilities
(irrespective of whether any such Company Indemnitee is a party to the action for which indemnification hereunder is sought), incurred
by the Company Indemnitees or any of them as a result of, or arising out of, or relating to (a) any misrepresentation or breach of any
representation or warranty made by the Investor in this Agreement or the Registration Rights Agreement or any other certificate, instrument
or document contemplated hereby or thereby, (b) any breach of any covenant, agreement or obligation of the Investor contained in this
Agreement or the Registration Rights Agreement or any other certificate, instrument or document contemplated hereby or thereby, or (c)
any cause of action, suit or claim brought or made against such Company Indemnitee not arising out of any action or inaction of a Company
Indemnitee, and arising out of or resulting from the execution, delivery, performance or enforcement of this Agreement or any other instrument,
document or agreement executed pursuant hereto by any of the Company Indemnitees. To the extent that the foregoing undertaking by the
Investor may be unenforceable for any reason, the Investor shall make the maximum contribution to the payment and satisfaction of each
of the Indemnified Liabilities, which is permissible under applicable law.
(c)
Contribution. In the event that the indemnity provided in Section 5.1(a) or (b) is unavailable to or insufficient to hold harmless
an indemnified party for any reason, the Company severally agrees to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with investigating or defending the same) (collectively “Losses”)
to which the Company may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company on
the one hand from transactions contemplated by this Agreement. If the allocation provided by the immediately preceding sentence is unavailable
for any reason, the Company and the Investor severally shall contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and of the Investor on the other in connection with the
statements or omissions which resulted in such Losses as well as any other relevant equitable considerations. Benefits received by the
Company shall be deemed to be equal to the total proceeds from the offering (net of underwriting discounts and commissions but before
deducting expenses) received by it, and benefits received by the Investor shall be deemed to be equal to the total discounts received
by the Investor. Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact relates to information provided by the Company on the
one hand or the Investor on the other, the intent of the parties and their relative knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. The Company and the Investor agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of allocation which does not take account of the equitable considerations
referred to above. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred
to above in this section shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions
of this section the Investor shall not be required to contribute any amount in excess of the amount by which the Purchase Price for Shares
actually purchased pursuant to this Agreement exceeds the amount of any damages which the Investor has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged omission. For purposes of this Article V, each person who
controls the Investor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and each director, officer,
employee and agent of the Investor shall have the same rights to contribution as the Investor, and each person who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject
in each case to the applicable terms and conditions of this section.
(d)
The remedies provided for in this Article V are not exclusive and shall not limit any rights or remedies which may otherwise be available
to any indemnified person at law or in equity. The obligations of the parties to indemnify or make contribution under this Article V
shall survive termination.
Section
5.2 Notification of Claims for Indemnification. Each party entitled to indemnification under this Article V (an “Indemnified
Party”) shall, promptly after the receipt of notice of the commencement of any claim against such Indemnified Party in respect
of which indemnity may be sought from the party obligated to indemnify such Indemnified Party under this Article V (the “Indemnifying
Party”), notify the Indemnifying Party in writing of the commencement thereof. Any such notice shall describe the claim in
reasonable detail. The failure of any Indemnified Party to so notify the Indemnifying Party of any such action shall not relieve the
Indemnifying Party from any liability which it may have to such Indemnified Party (a) other than pursuant to this Article V or (b) under
this Article V unless, and only to the extent that, such failure results in the Indemnifying Party’s forfeiture of substantive
rights or defenses or the Indemnifying Party is prejudiced by such delay. The procedures listed below shall govern the procedures for
the handling of indemnification claims.
(a)
Any claim for indemnification for Indemnified Liabilities that do not result from a Third Party Claim as defined in the following paragraph,
shall be asserted by written notice given by the Indemnified Party to the Indemnifying Party. Such Indemnifying Party shall have a period
of thirty (30) days after the receipt of such notice within which to respond thereto. If such Indemnifying Party does not respond within
such thirty (30) day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment as set
forth in Section 5.1. If such Indemnifying Party does not respond within such thirty (30) day period or rejects such claim in whole or
in part, the Indemnified Party shall be free to pursue such remedies as specified in this Agreement.
(b)
If an Indemnified Party shall receive notice or otherwise learn of the assertion by a person or entity not a party to this Agreement
of any threatened legal action or claim (collectively a “Third Party Claim”), with respect to which an Indemnifying
Party may be obligated to provide indemnification, the Indemnified Party shall give such Indemnifying Party written notice thereof within
twenty (20) days after becoming aware of such Third Party Claim.
(c)
An Indemnifying Party may elect to defend (and, unless the Indemnifying Party has specified any reservations or exceptions, to seek to
settle or compromise) at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel, any Third Party
Claim. Within thirty (30) days after the receipt of notice from an Indemnified Party (or sooner if the nature of such Third Party Claim
so requires), the Indemnifying Party shall notify the Indemnified Party whether the Indemnifying Party will assume responsibility for
defending such Third Party Claim, which election shall specify any reservations or exceptions. If such Indemnifying Party does not respond
within such thirty (30) day period or rejects such claim in whole or in part, the Indemnified Party shall be free to pursue such remedies
as specified in this Agreement. In case any such Third Party Claim shall be brought against any Indemnified Party, and it shall notify
the Indemnifying Party of the commencement thereof, the Indemnifying Party shall be entitled to assume the defense thereof at its own
expense, with counsel satisfactory to such Indemnified Party in its reasonable judgment; provided, however, that any Indemnified Party
may, at its own expense, retain separate counsel to participate in such defense at its own expense. Notwithstanding the foregoing, in
any Third Party Claim in which both the Indemnifying Party, on the one hand, and an Indemnified Party, on the other hand, are, or are
reasonably likely to become, a party, such Indemnified Party shall have the right to employ separate counsel and to control its own defense
of such claim if, in the reasonable opinion of counsel to such Indemnified Party, either (x) one or more significant defenses are available
to the Indemnified Party that are not available to the Indemnifying Party or (y) a conflict or potential conflict exists between the
Indemnifying Party, on the one hand, and such Indemnified Party, on the other hand, that would make such separate representation advisable;
provided, however, that in such circumstances the Indemnifying Party (i) shall not be liable for the fees and expenses of more than one
counsel to all Indemnified Parties and (ii) shall reimburse the Indemnified Parties for such reasonable fees and expenses of such counsel
incurred in any such Third Party Claim, as such expenses are incurred, provided that the Indemnified Parties agree to repay such amounts
if it is ultimately determined that the Indemnifying Party was not obligated to provide indemnification under this Article V. The Indemnifying
Party agrees that it shall not, without the prior written consent of the Indemnified Party, settle, compromise or consent to the entry
of any judgment in any pending or threatened claim relating to the matters contemplated hereby (if any Indemnified Party is a party thereto
or has been actually threatened to be made a party thereto) unless such settlement, compromise or consent includes an unconditional release
of such Indemnified Party from all liability arising or that may arise out of such claim. The Indemnifying Party shall not be liable
for any settlement of any claim effected against an Indemnified Party without the Indemnifying Party’s written consent, which consent
shall not be unreasonably withheld, conditioned or delayed. The rights accorded to an Indemnified Party hereunder shall be in addition
to any rights that any Indemnified Party may have at common law, by separate agreement or otherwise; provided, however, that notwithstanding
the foregoing or anything to the contrary contained in this Agreement, nothing in this Article V shall restrict or limit any rights that
any Indemnified Party may have to seek equitable relief.
ARTICLE
VI.
Covenants of the Company
Section
6.1. Registration Rights. The Company shall cause the Registration Rights Agreement to remain in full force and effect and the
Company shall comply in all material respects, with the terms thereof. During the Commitment Period, the Company shall notify the Investor
promptly if (i) the Registration Statement shall cease to be effective under the Securities Act, (ii) the Common Stock shall cease to
be authorized for listing on the Principal Market, (iii) the Common Stock ceases to be registered under Section 12(b) or 12(g) of the
Exchange Act or (iv) the Company fails to file in a timely manner all reports and other documents required of it as a reporting company
under the Exchange Act.
Section
6.2. Quotation of Common Stock. The Company shall maintain the Common Stock’s authorization for quotation on the Principal
Market and use its best efforts to file within any mandatory timeframe all reports required to be filed by the Company.
Section
6.3. Exchange Act Registration. The Company will cause its Common Stock to continue to be registered under Section 12(b) or 12(g)
of the Exchange Act, will file in a timely manner all reports and other documents required of it as a reporting company under the Exchange
Act and will not take any action or file any document (whether or not permitted by Exchange Act or the rules thereunder) to terminate
or suspend such registration or to terminate or suspend its reporting and filing obligations under said Exchange Act.
Section
6.4. Transfer Agent Instructions. On the Put Notice Date, upon payment therefore, the Company shall deliver instructions to its
transfer agent to issue shares of Common Stock to the Investor free of restrictive legends on the Put Notice Date.
Section
6.5. Corporate Existence. The Company will take all steps necessary to preserve and continue the corporate existence of the Company.
Section
6.6. Notice of Certain Events Affecting Registration; Suspension of Right to Make a Put. The Company will immediately notify the
Investor upon its becoming aware of the occurrence of any of the following events in respect of a Registration Statement or related prospectus
relating to an offering of Registrable Securities: (i) receipt of any request for additional information by the SEC or any other Federal
or state governmental authority during the period of effectiveness of the Registration Statement for amendments or supplements to the
registration statement or related prospectus; (ii) the issuance by the SEC or any other Federal or state governmental authority of any
stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; (iii) receipt
of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities
for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (iv) the happening of any event that
makes any statement made in the Registration Statement or related prospectus of any document incorporated or deemed to be incorporated
therein by reference untrue in any material respect or that requires the making of any changes in the Registration Statement, related
prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that
in the case of the related prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made,
not misleading; and (v) the Company’s reasonable determination that a post-effective amendment to the Registration Statement would
be appropriate; and the Company will promptly make available to the Investor any such supplement or amendment to the related prospectus.
The Company shall not deliver to the Investor any Put Notice during the continuation of any of the foregoing events.
Section
6.7. Suspension of Registration Statement.
(a) During
the Commitment Period and notwithstanding anything to the contrary herein or in the Registration Rights Agreement, the Company from time
to time may suspend the use of a Registration Statement by written notice to the Investor in the event that the Company determines in
its sole discretion in good faith that such suspension is necessary to (A) delay the disclosure of material nonpublic information concerning
the Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company
or (B) amend or supplement the Registration Statement or Prospectus so that such Registration Statement or Prospectus shall not include
an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading (a “Black Out Period”).
(b) During
such Black Out Period, the Investor agrees not to sell any shares of Common Stock of the Company pursuant to such Registration Statement.
(c) The
Company shall not impose any Black Out Period that is longer than 30 days or in a manner that is more restrictive (including, without
limitation, as to duration) than the comparable restrictions that the Company may impose on transfers of the Company’s equity securities
by its directors and senior executive officers. In addition, the Company shall not deliver any Put Notice during any Black Out Period.
If the public announcement of such material, nonpublic information is made during a Black Out Period, the Black Out Period shall terminate
immediately after such announcement, and the Company shall immediately notify the Investor of the termination of the Black Out Period.
Section
6.8. Consolidation; Merger; Subdivision of Stock. The Company shall not, at any time after the delivery of a Put Notice and before
the Put Date applicable to such Put Notice, effect any merger or consolidation of the Company with or into, or a transfer of all or substantially
all the assets of the Company to another entity (a “Consolidation Event”) unless the resulting successor or acquiring
entity (if not the Company) assumes by written instrument the obligation to deliver to the Investor such shares of stock and/or securities
as the Investor is entitled to receive pursuant to this Agreement.
Section
6.9. Issuance of the Company’s Common Stock. The sale of Put Shares shall be made in accordance with the provisions and
requirements of Regulation D or other applicable exemption from registration, and any applicable state securities law.
Section
6.10. Review of Public Disclosures. All press releases and SEC filings referencing the Investor shall first be approved by Investor
prior to release or being filed with the SEC.
Section
6.11. Listing of Shares. The Company will use commercially reasonable efforts to cause the Shares to be listed on the Principal
Market.
Section
6.12. No General Solicitation. Neither the Company, nor any of its affiliates, nor any person acting on its behalf, has engaged
in any form of general solicitation or general advertising (within the meaning of Regulation D promulgated under the Securities Act)
in connection with the offer or sale of the Common Stock to be offered as set forth in this Agreement.
Section
6.13. Relationship of the Parties. Neither the Company, nor any of its subsidiaries, affiliates, nor any person acting on its
or their behalf is a client or customer of the Investor or any of its affiliates and neither the Investor nor any of its affiliates has
provided, or will provide, any services to the Company or any of its affiliates, its subsidiaries, or any person acting on its or their
behalf. The Investor’s relationship to Company is solely as investor as provided for in the Transaction Documents.
Section
6.14. Filing of Form 6-K. On or before the date which is four (4) Trading Days after the Execution Date, the Company shall file
a Report on Form 6-K with the SEC describing the terms of the transaction contemplated by this Agreement in the form required by the
1934 Act.
Section
6.15. Acknowledgement of Terms. The Company hereby represents and warrants to the Investor that: (i) it is voluntarily entering
into this Agreement of its own freewill, (ii) it is not entering this Agreement under economic duress, (iii) the terms of this Agreement
are reasonable and fair to the Company, and (iv) the Company has had independent legal counsel of its own choosing review this Agreement,
advise the Company with respect to this Agreement, and represent the Company in connection with this Agreement.
ARTICLE
VII.
Conditions for Put and Conditions to Closing
Section
7.1. Conditions Precedent to the Obligations of the Company. The obligation hereunder of the Company to issue and sell Put Shares
to the Investor incident to each Closing is subject to the satisfaction, or waiver by the Investor in writing, at or before each such
Closing, of each of the conditions set forth below.
(a)
Accuracy of the Company’s Representations and Warranties. The representations and warranties of the Company shall be true
and correct in all material respects as of the date of this Agreement and as of the date of each such Closing as though made at each
such time.
(b)
Performance by the Company. The Company shall have performed, satisfied and complied in all respects with all covenants, agreements
and conditions required by this Agreement and the Registration Rights Agreement to be performed, satisfied or complied with by the Investor
at or prior to such Closing.
Section
7.2. Conditions Precedent to the Right of the Company to Deliver a Put Notice. The right of the Company to deliver a Put Notice
is subject to the fulfillment by the Company, on such Put Notice Date (a “Condition Satisfaction Date”), of each of
the following conditions:
(a)
Effective Registration Statement. The Registration Statement, and any amendment or supplement thereto, shall remain effective
for the sale by Investor of the Registered Securities subject to such Put Notice, and (i) neither the Company nor Investor shall have
received notice that the SEC has issued or intends to issue a stop order with respect to such Registration Statement or that the SEC
otherwise has suspended or withdrawn the effectiveness of such Registration Statement, either temporarily or permanently, or intends
or has threatened to do so and (ii) no other suspension of the use or withdrawal of the effectiveness of such Registration Statement
or related prospectus shall exist. Put Shares to be issued with respect to the applicable Put Notice will be freely trading.
(b)
Authority. The Company shall have obtained all permits and qualifications required by any applicable state in accordance with
the Registration Rights Agreement for the offer and sale of Put Shares, or shall have the availability of exemptions therefrom. The sale
and issuance of Put Shares shall be legally permitted by all laws and regulations to which the Company is subject.
(c)
Fundamental Changes. There shall not exist any fundamental changes to the information set forth in a Registration Statement which
would require the Company to file a post-effective amendment to a Registration Statement.
(d)
Performance by the Company. The Company shall have performed, satisfied and complied in all material respects with all covenants,
agreements and conditions required by this Agreement and the Registration Rights Agreement to be performed, satisfied or complied with
by the Company at or prior to each Condition Satisfaction Date.
(e)
No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated
or endorsed by any court or governmental authority of competent jurisdiction that prohibits or directly and adversely affects any of
the transactions contemplated by this Agreement, and no proceeding shall have been commenced that may have the effect of prohibiting
or adversely affecting any of the transactions contemplated by this Agreement.
(f)
Adverse Changes. Since the date of filing of the Company’s most recent SEC Document, no event that had or is reasonably
likely to have a Material Adverse Effect has occurred.
(g)
No Knowledge. The Company has no knowledge of any event which would be more likely than not to have the effect of causing the
Put Shares with respect to the applicable Put Notice not to be freely tradable.
(h)
Executed Put Notice. The Investor shall have received the Put Notice executed by an officer of the Company and the representations
contained in such Put Notice shall be true and correct as of each Condition Satisfaction Date.
(i)
Failure to Deliver Shares. Company understands that a delay in the issuance of Common Stock could result in economic damage to
the Investor. If the Company fails to cause the delivery of the Shares when due, the Company shall pay to the Investor on demand in cash
by wire transfer of immediately available funds to an account designated by the Investor as a fee for such failure and not as a penalty,
an amount equal to eighteen percent of the payment required to be paid by the Investor on such Settlement Date (i.e., the Put
amount) for the initial thirty days following such date until the Shares have been delivered, and an additional five percent for each
additional thirty day period thereafter until the Shares have been delivered. If, by the third (3rd) business day after the Closing Date,
the Company fails to deliver any portion of the shares of the Put to the Investor (the “Put Shares Due”) and the Investor
purchases, in an open market transaction or otherwise, shares of Common Stock necessary to make delivery of shares which would have been
delivered if the full amount of the shares to be delivered to the Investor by the Company (the “Open Market Share Purchase”),
then the Company shall pay to the Investor, in addition to any other amounts due to Investor pursuant to the Put, and not in lieu thereof,
the Open Market Adjustment Amount (as defined below). The “Open Market Adjustment Amount” is the amount equal to the excess,
if any, of (x) the Investor’s total purchase price (including brokerage commissions, if any) for the Open Market Share Purchase
minus (y) the net proceeds (after brokerage commissions, if any) received by the Investor from the sale of the Put Shares Due. The Company
shall pay the Open Market Adjustment Amount to the Investor in immediately available funds within two (2) business days of written demand
by the Investor. By way of illustration and not in limitation of the foregoing, if the Investor purchases shares of Common Stock having
a total purchase price (including brokerage commissions) of eleven thousand dollars to cover an Open Market Purchase with respect to
shares of Common Stock it sold for net proceeds of ten thousand dollars, the Open Market Purchase Adjustment Amount which the Company
will be required to pay to the Investor will be one thousand dollars.
(j)
Fees Paid. The Company has paid to investor all fees and expenses and the Commitment Fee that may be due under this Agreement.
(k)
No Material Notices. None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request
for additional information from any federal or state governmental, administrative or self-regulatory authority during the Commitment
Period, the response to which would require any amendments or supplements to any filings; or (ii) receipt by the Company of any notification
with respect to the suspension of the qualification or exemption from qualification of any of the shares of Common Stock for sale in
any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(l)
No person is entitled or purports to be entitled, to any right of first refusal, pre-emptive right, right of participation, or any similar
right, to participate in the transaction or otherwise with respect to any securities of the Company.
(m)
[Intentionally Omitted]
(n)
The issuance and sale of any of the Common Stock hereunder will not obligate the Company to issue Common Stock or other securities to
any other person (other than Investor or an affiliate of the Investor) and will not result in the adjustment of the exercise, conversion,
exchange, or reset price of any outstanding security (other than a security held by Investor or an affiliate of the Investor).
(o)
[Intentionally Omitted]
(p)
) [Intentionally Omitted]
(q)
No stop order, trading halt, suspension of trading, cessation of quotation, or removal of the company of the Stock from any exchange
has been requested by the Company or imposed by any governmental authority or regulatory body. There is no fact or circumstance known
by the Company that may cause the Company to request, or any governmental authority or regulatory body to impose any stop order, trading
halt, suspension of trading, cessation of quotation or removal of the Company or the Stock from any Principal Market.
(r)
[Intentionally Omitted]
(s)
[Intentionally Omitted]
(t)
Disclosures. The materials delivered, and statements made, by the Company and its representatives to the Investor in connection
with the contemplated Puts do not: (a) contain any untrue statement of a material fact or misleading statement; or (b) omit to state
a material fact necessary in order to make the statements contained in those materials, in light of the circumstances under which they
were made, not misleading.
(u)
No administrator, liquidator, provisional liquidator, controller or receiver of, or in connection with, the Company or any of its subsidiaries
has been appointed, and the Company is not aware of such appointment pending, threatened, or being likely.
(v)
No person has entered into, proposed, sanctioned, approved, or commenced, legal action relating to a scheme of arrangement of the affairs
of the Company or any of its subsidiaries, or between any of those people and any of its shareholders or creditors.
(w)
Non-public information. Neither the Company nor any person acting on its behalf has provided the Investor or its agents, representative
or counsel with any information that constitutes inside information or material non-public information, and to the Company’s knowledge,
the Investor does not possess any inside information or material non-public information.
(x)
Commitment Fee. Certificates evidencing the Commitment Shares shall not contain a legend (i) while a registration statement covering
the resale of such security is effective under the Securities Act, (ii) following any sale of such Commitment Shares pursuant to Rule
144, or (iii) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations
and pronouncements issued by the staff of the SEC).
7.3
[Intentionally Omitted]
7. 4 [Intentionally Omitted]
7.5
[Intentionally Omitted]
7.6
No Frustration; No Variable Rate Transactions.
(a) No
Frustration. The Company shall not enter into, announce or recommend to its stockholders any agreement, plan, arrangement or transaction
in or of which the terms thereof would restrict, materially delay, conflict with or impair the ability or right of the Company to perform
its obligations under the Transaction Documents to which it is a party, including, without limitation, the obligation of the Company
to deliver the Shares to the Investor in respect of a an Advance Notice. Notwithstanding anything to the contrary herein, in no event
is the Company obligated to ever submit a put or a put notice.
(b) No
Variable Rate Transactions. The Company shall not effect or enter into an agreement to effect any issuance by the Company or any
of its Subsidiaries of Common Shares or any security which entitle the holder to acquire Common Stock (or a combination of units thereof)
involving a Variable Rate Transaction, other than involving a Variable Rate Transaction with the Investor or with the prior written consent
of the Investor. The Investor shall be entitled to seek injunctive relief against the Company and its Subsidiaries to preclude any such
issuance, which remedy shall be in addition to any right to collect damages, without the necessity of showing economic loss and without
any bond or other security being required. “Variable Rate Transaction” shall mean a transaction in which the Company
(i) issues or sells any equity or debt securities that are convertible into, exchangeable or exercisable for, or include the right to
receive additional Common Shares either (A) at a conversion price, exercise price, exchange rate or other price that is based upon and/or
varies with the trading prices of or quotations for the Common Shares at any time after the initial issuance of such equity or debt securities,
or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of
such equity or debt security or upon the occurrence of specified or contingent events directly or indirectly related to the business
of the Company or the market for the Common Shares (including, without limitation, any “full ratchet” or “weighted
average” antidilution provisions, but not including any standard anti-dilution protection for any reorganization, recapitalization,
non-cash dividend, stock split or other similar transaction), (ii) enters into any agreement, including but not limited to an “equity
line of credit” or other continuous offering or similar offering of Common Shares, or (iii) enters into or effects any forward
purchase agreement, equity pre-paid forward transaction or other similar offering of securities where the purchaser of securities of
the Company receives an upfront or periodic payment of all, or a portion of, the value of the securities so purchased, and the Company
receives proceeds from such purchaser based on a price or value that varies with the trading prices of the Common Shares. Notwithstanding
the foregoing, no security issued or held by the Investor or an affiliate of the Investor that otherwise would be a Variable Rate Transaction,
shall be deemed a Variable Rate Transaction.
ARTICLE
VIII.
Due Diligence Review; Non-Disclosure of Non-Public Information
Section
8.1. Non-Disclosure of Non-Public Information. Subject to Section 6.6 and except as otherwise provided in this Agreement or the
Registration Rights Agreement, the Company covenants and agrees that it has not in the past and will refrain in the future from disclosing,
and shall cause its officers, directors, employees and agents to refrain from disclosing, any material non-public information to the
Investor without also disseminating such information to the public at the same time.
ARTICLE
IX.
Deleted.
ARTICLE
X.
Assignment; Termination
Section
10.1. Assignment. Neither this Agreement nor any rights or obligations of the Company or the Investor hereunder may be assigned
to any other Person.
Section
10.2. Termination.
(a) Unless
earlier terminated as provided hereunder, this Agreement shall terminate automatically on the earliest of (i) the first day of the month
next following the 36-month anniversary of the Effective Date, or (ii) the date on which the Investor shall have made payment of Puts
pursuant to this Agreement for Common Stock equal to the Commitment Amount.
(b) The
Company may terminate this Agreement effective upon five Trading Days’ prior written notice to the Investor; provided that (i)
there are no outstanding Advance Notices, the Common Stock under which have yet to be issued, (ii) there are no outstanding indebtedness
of the Company otherwise owed to the Investor or its affiliates, and (iii) the Company has paid all amounts owed to the Investor pursuant
to this Agreement. This Agreement may be terminated at any time by the mutual written consent of the parties, effective as of the date
of such mutual written consent unless otherwise provided in such written consent.
(c) Nothing
in this Section 10.2 shall be deemed to release the Company or the Investor from any liability for any breach under this Agreement, or
to impair the rights of the Company and the Investor to compel specific performance by the other party of its specific obligations under
this Agreement. The indemnification provisions contained herein shall survive termination hereunder.
(d)
The obligation of the Investor to make a Put to the Company pursuant to this Agreement shall terminate permanently (including with respect
to a Put Date that has not yet occurred) in the event that (i) there shall occur any stop order or suspension of the effectiveness of
the Registration Statement during the Commitment Period, (ii) the Company shall at any time fail materially to comply with the requirements
of Article VI, (iii) any condition, occurrence, state of facts or event constituting a Material Adverse Effect has occurred, (iv) the
Company has entered into a financing with a variable pricing formula, (v) the registration statement is not filed by the filing deadline
or it lapses for any reason, (vi) the trading in the Common Stock shall have been suspended, (vii) The Company has filed for or is subject
to any bankruptcy, insolvency, reorganization or liquidation proceedings or other proceedings for relief under any bankruptcy law or
any law for the relief of debtors instituted by or against the Company, (viii) the Company is in material beach or default of this Agreement
which is not cured within 10 days after notice of such breach or default is delivered to the Company. The Investor may terminate this
Agreement or send notice of breach or default by sending email notice to the Company.
(e)
Nothing in this Section 10.2 shall be deemed to release the Company or the Investor from any liability for any breach under this Agreement,
or to impair the rights of the Company and the Investor to compel specific performance by the other party of its obligations under this
Agreement. The indemnification provisions contained in Sections 5.1 and 5.2 shall survive termination hereunder.
ARTICLE
XI.
Notices
Section
11.1. Notices. Any notices, consents, waivers, or other communications required or permitted to be given under the terms of this
Agreement must be in writing and will be deemed to have been delivered upon being sent to the following email addresses:
If
to the Company: haggai@securitymattersltd.com
If
to the Investor: Generatingalphaltd@pm.me
Each
party shall provide five (5) days’ prior written notice to the other party of any change in email address.
ARTICLE
XII.
Miscellaneous
Section
12.1. Counterparts. This Agreement may be executed in two or more identical counterparts, all of which shall be considered one
and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party.
Section
12.2 Entire Agreement; Amendments. This Agreement supersedes all other prior agreements, negotiations or discussions both oral
or written between the Investor, the Company, their affiliates and persons acting on their behalf with respect to the matters discussed
herein, and this Agreement and the instruments referenced herein and therein contain the entire understanding of the parties with respect
to the matters covered herein and therein and, except as specifically set forth herein or therein, neither the Company nor the Investor
makes any representation, warranty, covenant or undertaking with respect to such matters. The provisions of this Agreement shall be construed
in favor of the Investor. Except as specifically set out in this Agreement, neither the Company nor the Investor makes any representation,
warranty, covenant or undertaking with respect to any subject matter regarding this Agreement or otherwise.
Section
12.3. Reporting Entity for the Common Stock. The reporting entity relied upon for the determination of the trading price or trading
volume of the Common Stock on any given Trading Day for the purposes of this Agreement shall be Bloomberg, L.P. or any successor thereto.
The written mutual consent of the Investor and the Company shall be required to employ any other reporting entity.
Section
12.4. Commitment Fee. Upon execution of this Agreement, the Company shall issue to the Investor 2,725,621 shares of the
Company’s common stock (the “Commitment Fee”). Notwithstanding anything to the contrary in this Agreement or the Registration
Rights Agreement, the shares representing the Commitment Fee shall be locked up and the Investor shall not sell or transfer any of the
Commitment Fee until the three (3) month anniversary of the date hereof.
Section
12.5. [Intentionally Omitted]
Section
12.6 Publicity. Prior to issuing any public statements, the Company shall send to the Investor for approval any press releases
or public statement with respect to the transactions contemplated hereby and no party shall issue any such press release or otherwise
make any such public statement without the prior written consent of the other party. Notwithstanding the foregoing, the Company shall
not publicly disclose the name of the Investor unless the Investor provides written approval to do so.
Section
12.7 Placement Agent. If so required by the SEC, the Company agrees to pay a registered broker dealer, to act as placement agent,
a percentage of the Put amount on each draw toward the fee. The Investor shall have no obligation with respect to any fees or with respect
to any claims made by or on behalf of other persons or entities for fees of a type contemplated in this Section that may be due in connection
with the transactions contemplated by the Stock Purchase Documents. The Company shall indemnify and hold harmless the Investor, their
employees, officers, directors, agents, and partners, and their respective affiliates, from and against all claims, losses, damages,
costs (including the costs of preparation and attorney’s fees) and expenses incurred in respect of any such claimed or existing
fees, as such fees and expenses are incurred.
Section
12.8 No Third Party Beneficiaries. Notwithstanding anything contained in this Agreement to the contrary, nothing in this Agreement,
expressed or implied, is intended to confer on any Person other than the parties hereto any rights, remedies, obligations or liabilities
under or by reason of this Agreement, and no Person that is not a party to this Agreement (including without limitation any partner,
member, shareholder, director, officer, employee or other beneficial owner of any party hereto, in its own capacity as such or in bringing
a derivative action on behalf of a party hereto) shall have any standing as third party beneficiary with respect to this Agreement or
the transactions contemplated hereby.
Section
12.9 No Personal Liability of Directors, Officers, Owners, Etc. No director, officer, employee, incorporator, shareholder, managing
member, member, general partner, limited partner, principal or other agent of any of the Investor or the Company shall have any liability
for any obligations of the Investor or the Company under this Agreement or for any claim based on, in respect of, or by reason of, the
respective obligations of the Investor or the Company hereunder. Each party hereto hereby waives and releases all such liability. This
waiver and release is a material inducement to each party’s entry into this Agreement.
Section
12.10. [Intentionally Omitted]
Section
12.11. Deleted.
Section
12.12. Governing Law. This Agreement shall be deemed executed, delivered and performed in Nevis. This Agreement shall be solely
and exclusively construed and enforced in accordance with, and all questions concerning the construction, validity, interpretation and
performance of this Agreement shall be governed solely and exclusively by the internal laws of Nevis, without giving effect to any choice
of law or conflict of law provision or rule (whether of Nevis or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than Nevis. The Company irrevocably and exclusively consents to and expressly agrees that binding arbitration
in Nevis conducted by the Arbitrator Conflict Resolution Centre shall be their sole and exclusive remedy for any dispute arising out
of or relating to the Agreement, Irrevocable Instructions or any other agreement between the parties, the Company’s transfer agent
or the relationship of the parties or their affiliates, and that the arbitration shall be conducted via telephone or teleconference.
If the Arbitrator is not available, a different arbitrator or law firm in Nevis shall be chosen by the Investor and agreed upon by the
Company. Company covenants and agrees to provide written notice to Investor via email prior to bringing any action or arbitration action
against the Company’s transfer agent or any action against any person or entity that is not a party to this Agreement that is related
in any way to this Agreement or any of the Exhibits under this Agreement or any transaction contemplated herein or therein, and further
agrees to timely notify Investor to any such action. Company acknowledges that the governing law and venue provisions set forth in this
Agreement are material terms to induce Investor to enter into the Transaction Documents and that but for Company’s agreements set
forth in this section, Investor would not have entered into the Transaction Documents. In the event that the Investor needs to take action
to protect their rights under the Agreement, the Investor may commence action in any jurisdiction needed with the understanding that
the Agreement shall still be solely and exclusively construed and enforced in accordance with, and all questions concerning the construction,
validity, interpretation and performance of this Agreement shall be governed solely and exclusively by the internal laws of Nevis, without
giving effect to any choice of law or conflict of law provision or rule (whether of Nevis or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the Nevis. Each party hereby irrevocably waives personal service of process
and consents to process being served in any suit, action or proceeding in connection with this Agreement or any other related transaction
document by email. The award and decision of the arbitrator shall be conclusive and binding on all Parties, and judgment upon the award
may be entered in any court of competent jurisdiction.
Section
12.13. Remedies. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the
Investor, by vitiating the intent and purpose of the transaction contemplated hereby. Accordingly, the Company acknowledges that the
remedy at law for a breach of its obligations under this Agreement will be inadequate and agrees, in the event of a breach by the Company
of the provisions of this Agreement, that the Investor shall be entitled, in addition to all other available remedies at law or in equity,
and in addition to the charges assessable herein, to an injunction or injunctions restraining, preventing or curing any breach of this
Agreement and to enforce specifically the terms and provisions thereof, without the necessity of showing economic loss and without any
bond or other security being required.
Section
12.14. Delay. Neither party hereto shall be obligated to perform and shall not be deemed to be in default hereunder, if the performance
of an obligation required hereunder is prevented by the occurrence of any of the following, acts of God, strikes, lock-outs, other industrial
disturbances, acts of a public enemy, war or war-like action (whether actual, impending or expected and whether de jure or de facto),
acts of terrorists, arrest or other restraint of government (civil or military), blockades, insurrections, riots, epidemics, landslides,
lightning, earthquakes, fires, hurricanes, storms, floods, washouts, sink holes, civil disturbances, explosions, breakage or accident
to equipment or machinery, confiscation or seizure by any government or public authority, nuclear reaction or radiation, radioactive
contamination or other causes, whether of the kind herein enumerated or otherwise, that are not reasonably within the control of the
party claiming the right to delay performance on account of such occurrence.
[Remainder
of Page Intentionally Left Blank; Signature Page Follows]
IN
WITNESS WHEREOF, the parties hereto have caused this Stock Purchase Agreement to be executed by the undersigned, thereunto duly authorized,
as of the date first set forth above.
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COMPANY: |
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SMX
(Security Matters) Public Limited Company |
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By:
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/s/ Haggai Alon |
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Printed Name: Haggai Alon |
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Title: Chief Executive |
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INVESTOR: |
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GENERATING
ALPHA LTD. |
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By: |
/s/
Maria Cano |
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Maria Cano, Director |
[SIGNATURE
PAGE TO STOCK PURCHASE AGREEMENT]
LIST
OF EXHIBITS
| EXHIBIT
A |
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Registration
Rights Agreement |
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| EXHIBIT
B |
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Put
Notice |
EXHIBIT
A
REGISTRATION
RIGHTS AGREEMENT
This
Registration Rights Agreement (the “Agreement”), dated as of April 19,
2024 (the “Execution Date”), is entered into by and between SMX
(Security Matters) Public Limited Company, an Irish corporation (the “Company”), and Generating Alpha Ltd.,
a Saint Kitts and Nevis Company (the “Investor”).
RECITALS:
WHEREAS,
pursuant to the Stock Purchase Agreement entered into by and between the Company and the Investor of this even date (the “SPA”),
the Company has agreed to issue and sell to the Investor a number of ordinary shares of the Company, par value $0.0022 per share
(the “Common Stock”) up to an aggregate purchase price of Thirty Million Dollars ($30,000,000) and issue to the Investor
the Commitment Fee of 2,725,621 shares of Common Stock;
WHEREAS,
as an inducement to the Investors to execute and deliver the SPA, the Company has agreed to provide certain registration rights under
the Securities Act of 1933, as amended, and the rules and regulations thereunder, or any similar successor statute (collectively, the
“1933 Act”), and applicable state securities laws, with respect to the shares of Common Stock issuable pursuant to the SPA
and the Commitment Fee.
NOW
THEREFORE, in consideration of the foregoing promises
and the mutual covenants contained hereinafter and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Investor hereby agree as follows:
SECTION
I
DEFINITIONS
As
used in this Agreement, the following terms shall have the following meanings:
“Person”
means a corporation, a limited liability company, an association, a partnership, an organization, a business, an individual, a governmental
or political subdivision thereof or a governmental agency.
“Register,”
“Registered,” and “Registration” refer to the Registration effected by preparing and filing one (1) or more Registration
Statements in compliance with the 1933 Act and pursuant to Rule 415 under the 1933 Act or any successor rule providing for offering securities
on a continuous basis (“Rule 415”), and the declaration or ordering of effectiveness of such Registration Statement(s) by
the United States Securities and Exchange Commission (the “SEC”).
“Registrable
Securities” means (i) the shares of Common Stock issued or issuable pursuant to the SPA, including the Commitment Fee and (ii)
any shares of capital stock issued or issuable with respect to such shares of Common Stock, if any, as a result of any stock split, stock
dividend, recapitalization, exchange or similar event or otherwise, which have not been (x) included in the Registration Statement that
has been declared effective by the SEC, or (y) sold under circumstances meeting all of the applicable conditions of Rule 144 (or any
similar provision then in force) under the 1933 Act.
“Registration
Statement” means the registration statement of the Company filed under the 1933 Act covering the Registrable Securities.
“Investment
Documents” shall mean this Agreement and the SPA between the Company and the Investor as of the date hereof.
All
capitalized terms used in this Agreement and not otherwise defined herein shall have the same meaning ascribed to them as in the SPA.
SECTION
II
REGISTRATION
2.1
The Company shall, within thirty (30) calendar days upon the date of execution of this Agreement, use its commercially reasonable efforts
to file with the SEC a Registration Statement or Registration Statements (as is necessary) on Form F-1 (or, if such form is unavailable
for such a registration, on such other form as is available for such registration), covering the resale of all of the Registrable Securities,
which Registration Statement(s) shall state that, in accordance with Rule 416 promulgated under the 1933 Act, such Registration Statement
also covers such indeterminate number of additional shares of Common Stock as may become issuable upon stock splits, stock dividends
or similar transactions. The Company shall initially register for resale 8,054,990 of the Registrable Securities in accordance with applicable
SEC rules, regulations and interpretations so as to permit the resale of such Registrable Securities by the Investor, including but not
limited to under Rule 415 under the 1933 Act at then prevailing market prices (and not fixed prices).
2.2
The Company shall use all commercially reasonable efforts to have the Registration Statement(s) declared effective by the SEC within
thirty (30) calendar days of the initial filing of the applicable Registration Statement or longer period until the SEC has confirmed
to the Company that such Registration Statement is no longer subject to review or comment (“Registration Dates”).
2.3
The Company agrees not to include any other securities in the Registration Statement covering the Registrable Securities without Investor’s
prior written consent which Investor may withhold in its sole discretion. Furthermore, the Company agrees that it will not file any other
registration statement for other securities, until thirty calendar days after the Registration Statement for the Registrable Securities
is declared effective by the SEC.
2.4
Notwithstanding the registration obligations set forth in this Section 2.1, if the staff of the SEC (the “Staff”) or the
SEC informs the Company that all of the unregistered Registrable Securities cannot, as a result of the application of Rule 415, be registered
for resale as a secondary offering on a single Registration Statement, the Company agrees to promptly (i) inform each of the holders
thereof and use its commercially reasonable efforts to file amendments to the Registration Statement as required by the SEC and/or (ii)
withdraw the Registration Statement and file a new registration statement (the “New Registration Statement”), in either case
covering the maximum number of Registrable Securities permitted to be registered by the SEC, on Form F-1 to register for resale the Registrable
Securities as a secondary offering. If the Company amends the Registration Statement or files a New Registration Statement, as the case
may be, under clauses (i) or (ii) above, the Company will use its commercially reasonable efforts to file with the SEC, as promptly as
allowed by the Staff or SEC, one or more registration statements on Form F-1 to register for resale those Registrable Securities that
were not registered for resale on the Registration Statement, as amended, or the New Registration Statement (each, an “Additional
Registration Statement”).
SECTION
III
RELATED
OBLIGATIONS
At
such time as the Company is obligated to prepare and file the Registration Statement with the SEC pursuant to Section 2, the Company
will affect the registration of the Registrable Securities in accordance with the intended method of disposition thereof and, with respect
thereto, the Company shall have the following obligations:
3.1
The Company shall use all commercially reasonable efforts to cause such Registration Statement relating to the Registrable Securities
to become effective and shall use commercially reasonable efforts keep such Registration Statement effective until the earlier to occur
of the date on which (A) the Investor shall have sold all the Registrable Securities; or (B) the Investor has no right to acquire any
additional shares of Common Stock under the SPA (the “Registration Period”). The Registration Statement (including any amendments
or supplements thereto and prospectuses contained therein) shall not contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein, or necessary to make the statements therein, in light of the circumstances in which they
were made, not misleading. The Company shall use all commercially reasonable efforts to respond to all SEC comments within ten (10) Trading
Days from receipt of such comments by the Company. The Company shall use all commercially reasonable efforts to cause the Registration
Statement relating to the Registrable Securities to become effective no later than three (3) Trading Days after notice from the SEC that
the Registration Statement may be declared effective. The Investor agrees to provide all information which is required by law to provide
to the Company, including the intended method of disposition of the Registrable Securities, and the Company’s obligations set forth
above shall be conditioned on the receipt of such information.
3.2
The Company shall prepare and file with the SEC such amendments (including post-effective amendments) and supplements to the Registration
Statement and the prospectus used in connection with such Registration Statement, which prospectus is to be filed pursuant to Rule 424
promulgated under the 1933 Act, as may be necessary to keep such Registration Statement effective during the Registration Period, and,
during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company
covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance
with the intended methods of disposition by the Investor thereof as set forth in such Registration Statement. In the event the number
of shares of Common Stock covered by the Registration Statement filed pursuant to this Agreement is at any time insufficient to cover
all of the Registrable Securities, the Company shall amend such Registration Statement, or file a new Registration Statement (on the
short form available therefor, if applicable), or both, so as to cover all of the Registrable Securities, in each case, as soon as practicable,
but in any event, within thirty (30) calendar days after the necessity therefor arises (based on the then Purchase Price of the Common
Stock and other relevant factors on which the Company reasonably elects to rely) and subject to SEC rules, regulations and interpretations,
assuming the Company has sufficient authorized shares at that time, and if it does not, within thirty (30) calendar days after such shares
are authorized. The Company shall use commercially reasonable efforts to cause such amendment and/or new Registration Statement to become
effective as soon as practicable following the filing thereof.
3.3
The Company shall make available to the Investor whose Registrable Securities are included in any Registration Statement and its legal
counsel without charge (i) promptly after the same is prepared and filed with the SEC at least one (1) copy of such Registration Statement
and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits,
the prospectus included in such Registration Statement (including each preliminary prospectus) and, with regards to such Registration
Statement(s), any correspondence by or on behalf of the Company to the SEC or the staff of the SEC and any correspondence from the SEC
or the staff of the SEC to the Company or its representatives relating to such Registration Statement; (ii) upon the effectiveness of
any Registration Statement, the Company shall make available copies of the prospectus, via EDGAR, included in such Registration Statement
and all amendments and supplements thereto; and (iii) such other documents, including copies of any preliminary or final prospectus,
as the Investor may reasonably request from time to time to facilitate the disposition of the Registrable Securities. For the avoidance
of doubt, any filing available to the Investor via the SEC’s live EDGAR system shall be deemed “available to the Investor”
hereunder.
3.4
The Company shall use commercially reasonable efforts to (i) [Intentionally Omitted]; (ii) prepare and file in those jurisdictions, such
amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain
the effectiveness thereof during the Registration Period; (iii) take such other actions as may be necessary to maintain such registrations
and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable
to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be required in connection
therewith or as a condition thereto to (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify
but for this Section 3.4, (y) subject itself to general taxation in any such jurisdiction or (z) file a general consent to service of
process in any such jurisdiction. The Company shall promptly notify the Investor who holds Registrable Securities of the receipt by the
Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities
for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice
of the initiation or threatening of any proceeding for such purpose.
3.5
As promptly as practicable after becoming aware of such event, the Company shall notify Investor in writing of the happening of any event
as a result of which the prospectus included in the Registration Statement, as then in effect, includes an untrue statement of a material
fact or to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading (“Registration Default”) and use all diligent efforts to promptly prepare a supplement
or amendment to such Registration Statement and take any other necessary steps to cure the Registration Default (which, if such Registration
Statement is on Form F-3, may consist of a document to be filed by the Company with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d)
of the 1934 Act (as defined below) and to be incorporated by reference in the prospectus) to correct such untrue statement or omission,
and make available copies of such supplement or amendment to the Investor. The Company shall also promptly notify the Investor (i) when
a prospectus or any prospectus supplement or post-effective amendment has been filed, and when the Registration Statement or any post-effective
amendment has become effective (the Company will prepare notification of such effectiveness which shall be delivered to the Investor
on the same day of such effectiveness and by overnight mail), additionally, the Company will promptly provide to the Investor, a copy
of the effectiveness order prepared by the SEC once it is received by the Company; (ii) of any request by the SEC for amendments or supplements
to the Registration Statement or related prospectus or related information, (iii) of the Company’s reasonable determination that
a post-effective amendment to the Registration Statement would be appropriate, (iv) in the event the Registration Statement is no longer
effective, or (v) if the Registration Statement is stale as a result of the Company’s failure to timely file its financials or
otherwise.
3.6
The Company shall use all commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness
of the Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction
and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and
to notify the Investor holding Registrable Securities being sold of the issuance of such order and the resolution thereof or its receipt
of actual notice of the initiation or threat of any proceeding concerning the effectiveness of the registration statement.
3.7
The Company shall permit the Investor and one (1) legal counsel, designated by the Investor, to review and comment upon the Registration
Statement and all amendments and supplements thereto at least one (1) calendar day prior to their filing with the SEC. However, any postponement
of a filing of a Registration Statement or any postponement of a request for acceleration or any postponement of the effective date or
effectiveness of a Registration Statement by written request of the Investor (collectively, the “Investor’s Delay”)
shall not act to trigger any penalty of any kind, or any cash amount due or any in-kind amount due the Investor from the Company under
any and all agreements of any nature or kind between the Company and the Investor. The event(s) of an Investor’s Delay shall act
to suspend all obligations of any kind or nature of the Company under any and all agreements of any nature or kind between the Company
and the Investor.
3.8
Reserved
3.9
The Company shall hold in confidence and not make any disclosure of information concerning the Investor unless (i) disclosure of such
information is necessary to comply with federal or state securities laws, (ii) the disclosure of such information is necessary to avoid
or correct a misstatement or omission in any Registration Statement, or (iii) the release of such information is ordered pursuant to
a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction. The Company agrees that
it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court or governmental body of
competent jurisdiction or through other means, to the extent legally permissible, give prompt written notice to the Investor and allow
the Investor, at the Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order
covering such information.
3.10
The Company shall use all commercially reasonable efforts to maintain designation and quotation of all the Registrable Securities covered
by any Registration Statement on the Principal Market. If, despite the Company’s commercially reasonable efforts, the Company is
unsuccessful in satisfying the preceding sentence, it shall use commercially reasonable efforts to cause all the Registrable Securities
covered by any Registration Statement to be listed on each other national securities exchange and automated quotation system, if any,
on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities
is then permitted under the rules of such exchange or system. The Company shall pay all fees and expenses in connection with satisfying
its obligation under this Section 3.10.
3.11
The Company shall cooperate with the Investor to facilitate the prompt preparation and delivery the Registrable Securities to be offered
pursuant to the Registration Statement and enable such Registrable Securities to be in such denominations or amounts, as the case may
be, as the Investor may reasonably request.
3.12
The Company shall provide a transfer agent for all the Registrable Securities not later than the effective date of the first Registration
Statement filed pursuant hereto.
3.13
If reasonably requested by the Investor, the Company shall (i) as soon as reasonably practical incorporate in a prospectus supplement
or post-effective amendment such information as the Investor reasonably determines should be included therein relating to the sale and
distribution of Registrable Securities, including, without limitation, information with respect to the offering of the Registrable Securities
to be sold in such offering; (ii) make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably
possible after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii)
supplement or make amendments to any Registration Statement.
3.14
The Company shall use all commercially reasonable efforts to cause the Registrable Securities covered by the applicable Registration
Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to facilitate the
disposition of such Registrable Securities.
3.15
The Company shall otherwise use all commercially reasonable efforts to comply with all applicable rules and regulations of the SEC in
connection with any registration hereunder.
3.16
Within three (3) Trading Days after the Registration Statement which includes Registrable Securities is declared effective by the SEC,
the Company shall deliver to the transfer agent for such Registrable Securities, with copies to the Investor, confirmation that such
Registration Statement has been declared effective by the SEC.
3.17
The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities
pursuant to the Registration Statement.
SECTION
IV
OBLIGATIONS
OF THE INVESTOR
4.1
At least five (5) calendar days prior to the first anticipated filing date of the Registration Statement, the Company shall notify the
Investor in writing of the information the Company requires from the Investor for the Registration Statement. It shall be a condition
precedent to the obligations of the Company to complete the registration pursuant to this Agreement with respect to the Registrable Securities
and the Investor agrees to furnish to the Company that information regarding itself, the Registrable Securities and the intended method
of disposition of the Registrable Securities as shall reasonably be required to effect the registration of such Registrable Securities
and the Investor shall execute such documents in connection with such registration as the Company may reasonably request. The Investor
covenants and agrees that, in connection with any sale of Registrable Securities by it pursuant to the Registration Statement, it shall
comply with the “Plan of Distribution” section of the then current prospectus relating to such Registration Statement.
4.2
The Investor agrees to cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing
of any Registration Statement hereunder.
4.3
The Investor agrees that, upon receipt of written notice from the Company of the happening of any event of the kind described in Section
3.6 or the first sentence of 3.5, the Investor will immediately discontinue disposition of Registrable Securities pursuant to any Registration
Statement(s) covering such Registrable Securities until the Investor’s receipt of the copies of the supplemented or amended prospectus
contemplated by Section 3.6 or the first sentence of 3.5.
SECTION
V
EXPENSES
OF REGISTRATION
All
legal expenses, other than underwriting discounts and sales or brokerage commissions and other than as set forth in the SPA, incurred
in connection with registrations including comments, filings or qualifications pursuant to Sections 2 and 3, including, without limitation,
all registration, listing and qualifications fees, and printing fees shall be paid by the Company.
SECTION
VI
INDEMNIFICATION
In
the event any Registrable Securities are included in the Registration Statement under this Agreement:
6.1
To the fullest extent permitted by law, the Company, under this Agreement, will, and hereby does, indemnify, hold harmless and defend
the Investor who holds Registrable Securities, the directors, officers, partners, employees, counsel, agents, representatives of, and
each Person, if any, who controls, any Investor within the meaning of the 1933 Act or the Securities Exchange Act of 1934, as amended
(the “1934 Act”) (each, an “Indemnified Person”), against any losses, claims, damages, liabilities, judgments,
fines, penalties, charges, costs, attorneys’ fees, amounts paid in settlement or expenses, joint or several (collectively, “Claims”),
incurred in investigating, preparing or defending any action, claim, suit, inquiry, proceeding, investigation or appeal taken from the
foregoing by or before any court or governmental, administrative or other regulatory agency, body or the SEC, whether pending or threatened,
whether or not an indemnified party is or may be a party thereto (“Indemnified Damages”), to which any of them may become
subject insofar as such Claims (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based
upon: (i) any untrue statement or alleged untrue statement of a material fact in the Registration Statement or any post-effective amendment
thereto or in any filing made in connection with the qualification of the offering under the securities or other “blue sky”
laws of any jurisdiction in which the Investor has requested in writing that the Company register or qualify the Shares (“Blue
Sky Filing”), or the omission or alleged omission to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which the statements therein were made, not misleading, (ii) any untrue statement
or alleged untrue statement of a material fact contained in the final prospectus (as amended or supplemented, if the Company files any
amendment thereof or supplement thereto with the SEC) or the omission or alleged omission to state therein any material fact necessary
to make the statements made therein, in light of the circumstances under which the statements therein were made, not misleading, or (iii)
any violation or alleged violation by the Company of the 1933 Act, the 1934 Act, any other law, including, without limitation, any state
securities law, or any rule or regulation thereunder relating to the offer or sale of the Registrable Securities pursuant to the Registration
Statement (the matters in the foregoing clauses (I) through (iii) being, collectively, “Violations”). Subject to the restrictions
set forth in Section 6.3 the Company shall reimburse the Investor and each such controlling person, promptly as such expenses are incurred
and are due and payable, for any reasonable legal fees or other reasonable expenses incurred by them in connection with investigating
or defending any such Claim. Notwithstanding anything to the contrary contained herein, the indemnification agreement contained in this
Section 6.1: (I) shall not apply to a Claim arising out of or based upon a Violation which is due to the inclusion in the Registration
Statement of the information furnished to the Company by any Indemnified Person expressly for use in connection with the preparation
of the Registration Statement or any such amendment thereof or supplement thereto; (ii) shall not be available to the extent such Claim
is based on (a) a failure of the Investor to deliver or to cause to be delivered the prospectus made available by the Company or (b)
the Indemnified Person’s use of an incorrect prospectus despite being promptly advised in advance by the Company in writing not
to use such incorrect prospectus; (iii) any claims based on the manner of sale of the Registrable Securities by the Investor or of the
Investor’s failure to register as a dealer under applicable securities laws; (iv) any omission of the Investor to notify the Company
of any material fact that should be stated in the Registration Statement or prospectus relating to the Investor or the manner of sale;
and (v) any amounts paid in settlement of any Claim if such settlement is effected without the prior written consent of the Company,
which consent shall not be unreasonably withheld. Such indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of the Indemnified Person and shall survive the resale of the Registrable Securities by the Investor pursuant to
the Registration Statement.
6.2
In connection with any Registration Statement in which Investor is participating, the Investor agrees to severally and jointly indemnify,
hold harmless and defend, to the same extent and in the same manner as is set forth in Section 6.1, the Company, each of its directors,
each of its officers who signs the Registration Statement, each Person, if any, who controls the Company within the meaning of the 1933
Act or the 1934 Act and the Company’s agents (collectively and together with an Indemnified Person, an “Indemnified Party”),
against any Claim or Indemnified Damages to which any of them may become subject, under the 1933 Act, the 1934 Act or otherwise, insofar
as such Claim or Indemnified Damages arise out of or are based upon any Violation, in each case to the extent, and only to the extent,
that such Violation is due to the inclusion in the Registration Statement of the written information furnished to the Company by the
Investor expressly for use in connection with such Registration Statement; and, subject to Section 6.3, the Investor will reimburse any
legal or other expenses reasonably incurred by them in connection with investigating or defending any such Claim; provided, however,
that the indemnity agreement contained in this Section 6.2 and the agreement with respect to contribution contained in Section 7 shall
not apply to amounts paid in settlement of any Claim if such settlement is effected without the prior written consent of the Investor,
which consent shall not be unreasonably withheld; provided, further, however, that the Investor shall only be liable under this Section
6.2 for that amount of a Claim or Indemnified Damages as does not exceed the net proceeds to such Investor as a result of the sale of
Registrable Securities pursuant to such Registration Statement. Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such Indemnified Party and shall survive the resale of the Registrable Securities by the Investor
pursuant to the Registration Statement. Notwithstanding anything to the contrary contained herein, the indemnification agreement contained
in this Section 6.2 with respect to any preliminary prospectus shall not inure to the benefit of any Indemnified Party if the untrue
statement or omission of material fact contained in the preliminary prospectus were corrected on a timely basis in the prospectus, as
then amended or supplemented. This indemnification provision shall apply separately to each Investor and liability hereunder shall not
be joint and several.
6.3
Promptly after receipt by an Indemnified Person or Indemnified Party under this Section 6 of notice of the commencement of any action
or proceeding (including any governmental action or proceeding) involving a Claim, such Indemnified Person or Indemnified Party shall,
if a Claim in respect thereof is to be made against any indemnifying party under this Section 6, deliver to the indemnifying party a
written notice of the commencement thereof, and the indemnifying party shall have the right to participate in, and, to the extent the
indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume control of the defense thereof
with counsel mutually satisfactory to the indemnifying party and the Indemnified Person or the Indemnified Party, as the case may be;
provided, however, that an Indemnified Person or Indemnified Party shall have the right to retain its own counsel with the fees and expenses
to be paid by the indemnifying party, if, in the reasonable opinion of counsel retained by the Indemnified Person or Indemnified Party,
the representation by counsel of the Indemnified Person or Indemnified Party and the indemnifying party would be inappropriate due to
actual or potential differing interests between such Indemnified Person or Indemnified Party and any other party represented by such
counsel in such proceeding. The indemnifying party shall pay for only one (1) separate legal counsel for the Indemnified Persons or the
Indemnified Parties, as applicable, and such counsel shall be selected by the Investor, if the Investor is entitled to indemnification
hereunder, or the Company, if the Company is entitled to indemnification hereunder, as applicable. The Indemnified Party or Indemnified
Person shall cooperate fully with the indemnifying party in connection with any negotiation or defense of any such action or Claim by
the indemnifying party and shall furnish to the indemnifying party all information reasonably available to the Indemnified Party or Indemnified
Person which relates to such action or Claim. The indemnifying party shall keep the Indemnified Party or Indemnified Person fully apprised
at all times as to the status of the defense or any settlement negotiations with respect thereto. No indemnifying party shall be liable
for any settlement of any action, claim or proceeding effectuated without its written consent, provided, however, that the indemnifying
party shall not unreasonably withhold, delay or condition its consent. No indemnifying party shall, without the consent of the Indemnified
Party or Indemnified Person, consent to entry of any judgment or enter into any settlement or other compromise which does not include
as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party or Indemnified Person of a release
from all liability in respect to such Claim. Following indemnification as provided for hereunder, the indemnifying party shall be subrogated
to all rights of the Indemnified Party or Indemnified Person with respect to all third parties, firms or corporations relating to the
matter for which indemnification has been made. The failure to deliver written notice to the indemnifying party within a reasonable time
of the commencement of any such action shall not relieve such indemnifying party of any liability to the Indemnified Person or Indemnified
Party under this Section 6, except to the extent that the indemnifying party is prejudiced in its ability to defend such action.
6.4
The indemnity agreements contained herein shall be in addition to (I) any cause of action or similar right of the Indemnified Party or
Indemnified Person against the indemnifying party or others, and (ii) any liabilities the indemnifying party may be subject to pursuant
to the law.
SECTION
VII
CONTRIBUTION
7.1
To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the
maximum contribution with respect to any amounts for which it would otherwise be liable under Section 6 to the fullest extent permitted
by law; provided, however, that: (I) no contribution shall be made under circumstances where the maker would not have been liable for
indemnification under the fault standards set forth in Section 6; (ii) contribution by any seller of Registrable Securities shall be
limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities.
SECTION
VIII
REPORTS
UNDER THE 1934 ACT
8.1
With a view to making available to the Investor the benefits of Rule 144 promulgated under the 1933 Act or any other similar rule or
regulation of the SEC that may at any time permit the Investor to sell Registrable Securities to the public without registration (“Rule
144”), provided that the Investor holds any Registrable Securities are eligible for resale under Rule 144, the Company agrees to:
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a. |
make
and keep adequate current public information available, as those terms are understood and defined in Rule 144; |
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b. |
file
with the SEC in a timely manner all reports and other documents required of the Company under the 1933 Act and the 1934 Act so long
as the Company remains subject to such requirements (it being understood that nothing herein shall limit the Company’s obligations
under Section 5(c) of the SPA) and the filing of such reports and other documents is required for the applicable provisions of Rule
144; and |
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c. |
furnish
to the Investor, promptly upon request, (I) a written statement by the Company that it has complied with the reporting requirements
of Rule 144, the 1933 Act and the 1934 Act, (ii) a copy of the most recent annual report of the Company and such other reports and
documents so filed by the Company, and (iii) such other information as may be reasonably requested to permit the Investor to sell
such securities pursuant to Rule 144 without registration. |
SECTION
IX
MISCELLANEOUS
9.1
[Intentionally Omitted]
9.2
NO WAIVERS. Failure of any party to exercise any right or remedy under this Agreement or otherwise, or delay by a party in exercising
such right or remedy, shall not operate as a waiver thereof.
9.3
NO ASSIGNMENTS. The rights and obligations under this Agreement shall not be assignable.
9.4
ENTIRE AGREEMENT/AMENDMENT. This Agreement and the SPA constitute the entire agreement among the parties hereto with respect to
the subject matter hereof and thereof. There are no restrictions, promises, warranties or undertakings, other than those set forth or
referred to herein and therein. This Agreement and the SPA supersede all prior agreements and understandings among the parties hereto
with respect to the subject matter hereof and thereof. The provisions of this Agreement may be amended only with the written consent
of the Company and Investor.
9.5
HEADINGS. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning
hereof. Whenever required by the context of this Agreement, the singular shall include the plural and masculine shall include the feminine.
This Agreement shall not be construed as if it had been prepared by one of the parties, but rather as if all the parties had prepared
the same.
9.6
COUNTERPARTS. This Agreement may be executed in any number of counterparts and by the different signatories hereto on separate
counterparts, each of which, when so executed, shall be deemed an original, but all such counterparts shall constitute but one and the
same instrument. This Agreement may be executed by facsimile transmission, PDF, electronic signature or other similar electronic means
with the same force and effect as if such signature page were an original thereof.
9.7
FURTHER ASSURANCES. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and
shall execute and deliver all such other agreements, certificates, instruments and documents, as the other party may reasonably request
in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated
hereby.
9.8
SEVERABILITY. In case any provision of this Agreement is held by a court of competent jurisdiction to be excessive in scope or
otherwise invalid or unenforceable, such provision shall be adjusted rather than voided, if possible, so that it is enforceable to the
maximum extent possible, and the validity and enforceability of the remaining provisions of this Agreement will not in any way be affected
or impaired thereby.
9.9
LAW GOVERNING THIS AGREEMENT. This Agreement shall be deemed executed, delivered
and performed in Nevis. This Agreement shall be solely and exclusively construed and enforced in accordance with, and all questions concerning
the construction, validity, interpretation and performance of this Agreement shall be governed solely and exclusively by the internal
laws of Nevis, without giving effect to any choice of law or conflict of law provision or rule (whether of Nevis or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than Nevis. The Company irrevocably and exclusively consents to
and expressly agrees that binding arbitration in Nevis conducted by the Arbitrator Conflict Resolution Centre shall be their sole and
exclusive remedy for any dispute arising out of or relating to the Agreement or any other agreement between the parties, the Borrower’s
transfer agent or the relationship of the parties or their affiliates, and that the arbitration shall be conducted via telephone or teleconference.
If the Arbitrator is not available, a different arbitrator or law firm in Nevis shall be chosen by the Investor and agreed upon by the
Company. Company covenants and agrees to provide written notice to Investor via email prior to bringing any action or arbitration action
against the Company’s transfer agent or any action against any person or entity that is not a party to this Agreement that is related
in any way to this Agreement or any of the Exhibits under this Agreement or any transaction contemplated herein or therein, and further
agrees to timely notify Investor to any such action. Company acknowledges that the governing law and venue provisions set forth in this
Agreement are material terms to induce Investor to enter into the Agreement and that but for Company’s agreements set forth in
this section, Investor would not have entered into the Agreement. In the event that the Investor needs to take action to protect their
rights under the Agreement, the Investor may commence action in any jurisdiction needed with the understanding that the Agreement shall
still be solely and exclusively construed and enforced in accordance with, and all questions concerning the construction, validity, interpretation
and performance of this Agreement shall be governed solely and exclusively by the internal laws of Nevis, without giving effect to any
choice of law or conflict of law provision or rule (whether of Nevis or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the Nevis. The Company hereby irrevocably waives personal service of process and consents to process
being served in any suit, action or proceeding in connection with this Agreement or any other related transaction document by email.
The award and decision of the arbitrator shall be conclusive and binding on all Parties, and judgment upon the award may be entered in
any court of competent jurisdiction.
9.10
NO THIRD PARTY BENEFICIARIES. This Agreement is intended for the benefit of the parties hereto and is not for the benefit of,
nor may any provision hereof be enforced by, any other person, except that the Company acknowledges that the rights of the Investor may
be enforced by its general partner.
[Remainder
of Page Intentionally Left Blank; Signature Page Follows]
Your
signature on this Signature Page evidences your agreement to be bound by the terms and conditions of the Registration Rights Agreement
as of the date first written above.
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COMPANY: |
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SMX
(Security Matters) Public Limited Company |
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By:
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/s/ Haggai Alon |
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Printed Name: Haggai Alon |
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Title: Chief Executive |
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INVESTOR |
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GENERATING
ALPHA LTD. |
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By:
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/s/
Maria Cano |
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Maria Cano, Director |
EXHIBIT
B
PUT
NOTICE
SMX
(Security Matters) Public Limited Company (the “Company”)
The
undersigned, __________________________hereby certifies, with respect to the sale of shares of Common Stock of the Company issuable in
connection with this Put Notice, delivered pursuant to the Stock Purchase Agreement (the “Agreement”), as follows:
1.
The undersigned is the duly elected Officer of the Company, its Chief Executive Officer, President or Chief Financial Officer.
2.
There are no fundamental changes to (a) the covenants in Article IV of the Stock Purchase Agreement and (b) the information set forth
in the Registration Statement which would require the Company to file a post effective amendment to the Registration Statement.
3.
The Company has performed in all material respects all covenants and agreements to be performed by the Company and has complied in all
material respects with all obligations and conditions contained in the Agreement on or prior to the Put Notice Date, and shall continue
to perform in all material respects all covenants and agreements to be performed by the Company through the applicable Put Date. All
conditions to the delivery of this Put Notice are satisfied as of the date hereof.
4.
The undersigned hereby represents, warrants and covenants that it has made all filings (“SEC Filings”) required to
be made by it pursuant to applicable securities laws (including, without limitation, all filings required under the Securities Exchange
Act of 1934, which include Forms 20-F and 6-K, etc.). All SEC Filings and other public disclosures made by the Company, including, without
limitation, all press releases, analysts meetings and calls, etc. (collectively, the “Public Disclosures”), have been
reviewed and approved for release by the Company’s attorneys and, if containing financial information, the Company’s independent
certified public accountants. None of the Company’s Public Disclosures contain, as of their respective dates, any untrue statement
of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
5.
The Put requested is ________________shares.
6.
There are currently _______________________ amount of shares outstanding on a fully diluted basis.
7.
Minimum Applicable Price:__________________________
The
undersigned has executed this Certificate this _____ day of _____.
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____________________________ |
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By:
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Name: |
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Title: |
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Please
email this Put Notice to: generatingalphaltd@pm.me
Grafico Azioni SMX Security Matters Pub... (NASDAQ:SMXWW)
Storico
Da Dic 2024 a Gen 2025
Grafico Azioni SMX Security Matters Pub... (NASDAQ:SMXWW)
Storico
Da Gen 2024 a Gen 2025
