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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
Date of report (Date of earliest event reported):
June 13, 2024
CANOO INC.
(Exact name of registrant as specified in its
charter)
Delaware
(State
or Other Jurisdiction
of Incorporation) |
001-38824
(Commission
File Number) |
82-1476189
(I.R.S. Employer Identification Number) |
19951 Mariner Avenue
Torrance,
California |
90503 |
(Address of principal executive offices) |
(Zip Code) |
(424) 271-2144
(Registrant’s telephone number,
including area code)
N/A
(Former name or former address, if changed since
last report)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
|
¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
|
¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
|
|
¨ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b)
of the Act:
Title of each
class |
|
Trading symbol(s) |
|
Name of each
exchange on which
registered |
Common Stock, $0.0001 par value per share |
|
GOEV |
|
The Nasdaq Capital Market |
|
|
|
|
|
Warrants to purchase shares of Common Stock |
|
GOEVW |
|
The Nasdaq Capital Market |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
¨
If an emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant
to Section 13(a) of the Exchange Act. ¨
Item 1.01 |
Entry into a Material Definitive Agreement. |
Pre-Paid Advance Agreement
On June 13, 2024 (the “Effective
Date”), Canoo Inc. (the “Company”) entered into a Pre-Paid Advance Agreement (the “PPA”)
with YA II PN, Ltd., a Cayman Islands exempt limited partnership (“Yorkville”). In accordance with the terms of
the PPA, on the Effective Date, Yorkville agreed to advance $15,000,000 to the Company (the “Pre-Paid Advance”).
The Pre-Paid Advance will be offset upon the issuance
of shares of the Company’s common stock (“Common Stock”) to Yorkville at an initial Purchase Price (as such term
is used in the PPA) equal to $2.30 per share.
On the date that is the (i) 60th
day after the Effective Date, the Purchase Price on any remaining amount of the Pre-Paid Advance then outstanding at such time will be
repriced to a price per share equal to 100% of the average of the daily VWAPs (as such term is used in the PPA) for the ten Trading Days
(as such term is used in the PPA) immediately prior to the date that is the 60th day after the Effective Date and (ii) 120th
day after the Effective Date, the Purchase Price on any remaining amount of the Pre-Paid Advance then outstanding at such time will be
repriced to a price per share equal to 100% of the average of the daily VWAPs for the ten Trading Days immediately prior to the date that
is the 120th day after the Effective Date, in each case, subject to certain equity conditions set forth in the PPA.
After giving effect to the commitment fee and
the purchase price discount provided for in the PPA, net proceeds of the Pre-Paid Advance to the Company will be approximately $14,100,000.
The issuance of Common Stock under the PPA is subject to certain limitations, including, among others, that the aggregate number of shares
of Common Stock issued pursuant to the PPA cannot exceed 19.99% of the Company’s outstanding Common Stock as of the Effective Date
(the “Exchange Cap”) unless the Company’s stockholders have approved issuances in excess of the Exchange Cap.
Pursuant to the terms of the PPA, interest accrues on the outstanding balance of the Pre-Paid Advance at an annual rate equal to 5%, subject
to an increase to 15% upon events of default described in the PPA. The Company has also agreed to file one or more registration statements
with the Securities and Exchange Commission to register the resale by Yorkville of the shares to be issued pursuant to the PPA under the
Securities Act of 1933, as amended (the “Securities Act”).
The foregoing description of the PPA is qualified
in its entirety by reference to the PPA, which is filed hereto as Exhibit 10.1 and which is incorporated herein by reference.
Item 3.02 |
Unregistered Sales of Equity Securities. |
The information contained in Item 1.01 is incorporated
herein by reference. The issuance of Common Stock to Yorkville pursuant to the PPA is exempt from registration pursuant to Section 4(a)(2) of
the Securities Act. Yorkville represented to the Company that it is an “accredited investor” as defined in Rule 501
of the Securities Act and that the securities are being acquired for investment purposes and not with a view to, or for sale in
connection with, any distribution thereof.
Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits
The following exhibits are filed herewith:
Forward-Looking Statements
This report contains forward-looking statements,
and any statements other than statements of historical fact could be deemed to be forward-looking statements. These forward-looking statements
include, among other things, statements regarding the amount of shares of common stock the Company may issue to Yorkville pursuant to
the PPA, the amount of proceeds to be received by the Company from the sale of shares of common stock and the uses thereof and related
matters. These statements are subject to risks and uncertainties, and actual results may differ materially from these statements. You
are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date of this report. The Company
undertakes no obligation to revise or update any forward-looking statements to reflect events or circumstances after the date hereof.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: June 13, 2024 |
CANOO INC. |
|
|
|
|
By: |
/s/ Hector Ruiz |
|
Name: |
Hector Ruiz |
|
Title: |
General Counsel and Corporate Secretary |
Exhibit 10.1
PRE-PAID ADVANCE AGREEMENT
THIS
PRE-PAID ADVANCE AGREEMENT (this “Agreement”) dated as of June 13, 2024 is made by and between YA
II PN, LTD., a Cayman Islands exempt limited partnership (the “Investor”), and CANOO INC., a company
incorporated under the laws of the State of Delaware (the “Company”).
WHEREAS,
the parties desire that, upon the terms and subject to the conditions contained herein, the Investor shall have the right to purchase
from the Company, from time to time as provided herein, and the Company shall issue and sell to the Investor, up to $15 million of the
Company’s shares of common stock, par value $0.0001 per share (the “Common Shares”); and
WHEREAS,
the Common Shares are listed for trading on the Nasdaq Stock Market under the symbol “GOEV;” and
WHEREAS,
the offer and sale of the Common Shares issuable hereunder will be made in reliance upon Section 4(a)(2) under the Securities
Act of 1933, as amended, and the rules and regulations promulgated thereunder (the “Securities Act”), or upon
such other exemption from the registration requirements of the Securities Act as may be available with respect to any or all of the transactions
to be made hereunder.
NOW,
THEREFORE, the parties hereto agree as follows:
Article I. Certain Definitions
Section 1.01 “Advance”
shall mean any purchase by the Investor of Advance Shares from the Company pursuant to this Agreement.
Section 1.02 “Advance
Shares” shall mean the Common Shares that the Investor shall purchase from the Company, and the Company shall issue and sell
to the Investor, hereunder.
Section 1.03 “Agreement”
shall have the meaning set forth in the preamble of this Agreement.
Section 1.04 “Amortization
Event” shall mean the Company has issued in substantially all of the Common Shares available under the Exchange Cap (the last
such day of each such occurrence, a “Amortization Event Date”).
Section 1.05 “Applicable
Laws” shall mean all applicable laws, statutes, rules, regulations, orders, executive orders, directives, policies, guidelines
and codes having the force of law, whether local, national, or international, as amended from time to time, including without limitation
(i) all applicable laws that relate to money laundering, terrorist financing, financial record keeping and reporting, (ii) all
applicable laws that relate to anti-bribery, anti-corruption, books and records and internal controls, including the United States Foreign
Corrupt Practices Act of 1977, and (iii) any Sanctions laws.
Section 1.06 “Basket”
shall have the meaning set forth in Section 6.04.
Section 1.07 “Closing”
shall have the meaning set forth in Section 3.02.
Section 1.08 “Commitment
Amount” shall mean $15,000,000 of Common Shares.
Section 1.09 “Commitment
Period” shall mean the period commencing on the date hereof and expiring upon the date of termination of this Agreement in
accordance with Section 10.01.
Section 1.10 “Common
Shares” shall have the meaning set forth in the recitals of this Agreement.
Section 1.11 “Company”
shall have the meaning set forth in the preamble of this Agreement.
Section 1.12 “Company
Indemnitees” shall have the meaning set forth in Section 6.02.
Section 1.13 “Demand
Notice” shall have the meaning set forth in Section 7.01.
Section 1.14 “Effectiveness
Deadline” means, with respect to a Registration Statement filed hereunder, the 60th calendar day following the filing date
thereof, provided, however, in the event the Company is notified by the SEC that a Registration Statement will not be reviewed or is
no longer subject to further review and comments, the Effectiveness Deadline as to such Registration Statement shall be the fifth business
day following the date on which the Company is so notified if such date precedes the date required above.
Section 1.15 “Environmental
Laws” shall have the meaning set forth in Section 5.13.
Section 1.16 “Equity
Conditions” shall mean each of the following conditions:
| (a) | The
Common Shares shall be listed for trading on the Principal Market and not subject to any
trading suspension; |
| (b) | All
Common Shares issuable by the Company pursuant to Purchase Notices (without taking into account
the Ownership Limitation) shall (i) have been registered with the SEC, (ii) be
issuable without restricted legends, (iii) not be subject to any restrictions on sale
by the Investor; (iv) be registered under Section 12(b) of the Exchange Act
and (v) shall have been approved for listing on the Principal Market, subject to official
notice of issuance; |
| (c) | The
Registration Statement registering the Common Shares shall be effective and not subject to
any suspension and such Registration Statement shall not contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein, or necessary
to make the statements therein (in the case of prospectuses, in the light of the circumstances
in which they were made) not misleading; |
| (d) | The
Company has a sufficient number of authorized but unissued Common Shares to issue to the
Investor pursuant Purchase Notices in respect of the full outstanding balance of the Pre-Paid
Advance; |
| (e) | No
Event of Default shall have occurred; |
| (f) | No
Material Outside Event shall exist; |
| (g) | The
Company shall have filed all reports and other documents required of it as a reporting company
under the Exchange Act; |
| (h) | There
shall exist no impediments, delays or prohibitions to the Company issuing the Company shares
required to be issued by the Company to the Investor pursuant to Purchase Notices; |
Section 1.17 “Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
Section 1.18 “Exchange
Cap” shall have the meaning set forth in Section 3.01(b)(ii).
Section 1.19 “Filing
Deadline” means, with respect to the initial Registration Statement required hereunder, the 30th calendar day following the
date hereof.
Section 1.20 “First
Reset Date” shall mean August 12, 2024.
Section 1.21 “First
Reset Effective Date” shall mean August 26, 2024.
Section 1.22 “Hazardous
Materials” shall have the meaning set forth in Section 5.13.
Section 1.23 “Indemnified
Liabilities” shall have the meaning set forth in Section 6.01.
Section 1.24 “Investor”
shall have the meaning set forth in the preamble of this Agreement.
Section 1.25 “Investor
Indemnitees” shall have the meaning set forth in Section 6.01.
Section 1.26 “Material
Adverse Effect” shall mean any event, occurrence or condition that has had or would reasonably be expected to have (i) a
material adverse effect on the legality, validity or enforceability of this Agreement or the transactions contemplated herein, (ii) a
material adverse effect on the results of operations, assets, business or condition (financial or otherwise) of the Company and its Subsidiaries,
taken as a whole, or (iii) a material adverse effect on the Company’s ability to perform in any material respect on a timely
basis its obligations under this Agreement.
Section 1.27 “Material
Outside Event” shall have the meaning set forth in Section 7.07.
Section 1.28 “Maturity
Date” shall have the meaning set forth in Section 2.03(b).
Section 1.29 [Intentionally
Omitted]
Section 1.30 “OFAC”
shall have the meaning set forth in Section 5.29.
Section 1.31 “Ownership
Limitation” shall have the meaning set forth in Section 3.01(b)(i).
Section 1.32 “Person”
shall mean an individual, a corporation, a partnership, a limited liability company, a trust or other entity or organization, including
a government or political subdivision or an agency or instrumentality thereof.
Section 1.33 “Plan
of Distribution” shall mean the section of a Registration Statement disclosing the plan of distribution of the Shares.
Section 1.34 “Pre-Advance
Date” shall have the meaning set forth in Section 2.01.
Section 1.35 “Pre-Paid
Advance” shall have the meaning set forth in Section 2.01.
Section 1.36 “Principal
Market” shall mean the Nasdaq Capital Market; provided however, that in the event the Company’s Common Shares are ever
listed or traded on the New York Stock Exchange, the NYSE American, the Nasdaq Global Select Market, or the Nasdaq Global Market, then
the “Principal Market” shall mean such other market or exchange on which the Company’s Common Shares are then listed
or traded.
Section 1.37 “Prior
PPA Agreement” means that certain Pre-Paid Advance Agreement, dated July 20, 2022, by and between the Investor and the
Company (as amended and supplemented from time to time).
Section 1.38 “Prospectus”
means any prospectus (including, without limitation, all amendments and supplements thereto) used in connection with a Registration Statement.
Section 1.39 “Prospectus
Supplement” shall mean any prospectus supplement to a Prospectus filed with the SEC pursuant to Rule 424(b) under
the Securities Act, including, without limitation, any Prospectus Supplement to be filed in accordance with Section 7.01 hereof.
Section 1.40 “Purchase
Notice” shall have the meaning set forth in Section 3.01(a).
Section 1.41 “Purchase
Notice Date” shall mean each date the Investor delivers to the Company a Purchase Notice.
Section 1.42 “Purchase
Price” shall mean (a) initially, $2.30 per share, (b) as of the First Reset Effective Date, a price per share equal
to 100% of the average of the daily VWAPs for the ten Trading Days immediately prior to the First Reset Date, and (c) as of the
Second Reset Effective Date, a price per share equal to 100% of the average of the daily VWAPs for the ten Trading Days immediately prior
to the Second Reset Date, provided that, in the case of (b) and (c) no adjustment to the Purchase Price shall
be made that would increase the Purchase Price unless the each of the Equity Conditions are satisfied on each Trading Day during the
ten Trading Days immediately following to the First Reset Date, or the Second Reset Date, as applicable.
Section 1.43 “Redemption
Premium” means 3% of the principal amount being redeemed.
Section 1.44 “Registration
Statement” shall mean a registration statement on Form S-1 or Form S-3 or on such other form promulgated by the SEC
for which the Company then qualifies and which counsel for the Company shall deem appropriate, and which form shall be available for
the registration of the resale by the Investor of the Advance Shares under the Securities Act.
Section 1.45 “Sanctions”
shall have the meaning set forth in Section 5.29.
Section 1.46 “Sanctioned
Countries” shall have the meaning set forth in Section 5.29.
Section 1.47 “SEC”
shall mean the U.S. Securities and Exchange Commission.
Section 1.48 “SEC
Documents” shall have the meaning set forth in Section 5.05.
Section 1.49 “Second
Reset Date” shall mean October 11, 2024.
Section 1.50 “Second
Reset Effective Date” shall mean October 24, 2024.
Section 1.51 “Securities
Act” shall have the meaning set forth in the recitals of this Agreement.
Section 1.52 “Shares”
shall mean the Common Shares to be issued from time to time hereunder pursuant to an Advance.
Section 1.53 “Subsidiaries”
shall have the meaning set forth in Section 5.01.
Section 1.54 “Trading
Day” shall mean any day during which the Principal Market shall be open for business.
Section 1.55 “Transaction
Documents” shall have the meaning set forth in Section 5.02.
Section 1.56 “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” anti-dilution provisions,
but not including any standard anti-dilution protection for any reorganization, recapitalization, non-cash dividend, stock split or other
similar transaction) or (ii) issues or sells any equity or debt securities either (A) at a price that is subject to being reset
at some future date after the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events
directly or indirectly related to the business of the Company or the market for the Common Shares (other than standard anti-dilution
protection for any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction), or (B) that are
subject to or contain any put, call, redemption, buy-back, price-reset or other similar provision or mechanism (including, without limitation,
a “Black-Scholes” put or call right, other than in connection with a “fundamental transaction”) that provides
for the issuance of additional equity securities of the Company or the payment of cash by the Company. For the avoidance of doubt, the
Company shall be permitted to enter into an “at the market offering” or other continuous offering or similar offering of
Common Shares with a registered broker-dealer, whereby the Company may sell Common Shares at a future determined price; however, the
Company shall not be permitted to execute any transactions under such agreement unless (i) tan Amortization Event has occurred and
is continuing, or (ii) there is no balance outstanding under all prior Pre-Paid Advances.
Section 1.57 “VWAP”
means, for any Trading Day, the daily volume weighted average price of the Common Shares for such Trading Day on the Principal Market
during regular trading hours as reported by Bloomberg L.P.
Article II. Pre-Paid Advances
Section 2.01 Pre-Paid
Advance. Subject to the satisfaction of the conditions set forth in Section 2.02, the Investor shall advance to the Company
$15,000,000 (the “Pre-Paid Advance”). The closing of the Pre-Paid Advance shall occur remotely by conference call
and electronic delivery of documentation on the date hereof, (the “Pre-Advance Date”) subject to the satisfaction
of the conditions precedent to a Pre-Paid Advance set forth in Section 2.02.
At the closing, the Investor shall advance to the Company the principal amount of
the Pre-Paid Advance, less a discount in the amount equal to 1% of the principal amount of the Pre-Paid Advance netted from the purchase
price due and structed as an original issue discount (the “Original Issue Discount”), in immediately available funds
to an account designated by the Company in writing. The Company acknowledges
and agrees that the Original Issue Discount (i) shall not be funded but shall be deemed to be fully earned on the Pre-Advance Date,
and (ii) shall not reduce the principal amount of the Pre-Paid Advance
Section 2.02 Conditions
Precedent to the Pre-Paid Advance. The obligation of the Investor to advance to
the Company the Pre-Paid Advance on the Pre-Advance Date shall be subject to the timely performance by the Company of its obligations
hereunder, and the satisfaction, unless waived by the Investor, as of the Pre-Advance Date for the Pre-Paid Advance, of each of the following
conditions
| (a) | Accuracy
of Company’s Representation and Warranties. The representations and warranties
of the Company set forth in Article V shall be true and correct in all material respects. |
| (b) | Performance
by the Company. The Company shall have performed, satisfied and complied in all material
respects with all covenants, agreements and conditions required by this Agreement to be performed,
satisfied or complied with by the Company. No Event of Default shall have occurred. |
| (c) | No
Defaults. The Company shall not be in material default, or alleged to be in material
default, of any contractual obligations by any party. |
| (d) | No
Variable Rate Transaction. Except for Variable Rate Transactions where the Company received
Investor’s prior written consent, the Company shall not be party to any Variable Rate
Transaction, except with respect to the Investor. |
| (e) | No
Material Adverse Effect. No Material Adverse Effect shall have occurred. |
| (f) | No
Material Outside Event. No Material Outside Event shall have occurred and be continuing. |
| (g) | Authority.
The performance by the Company hereunder, including, without limitation, the payment obligations,
is legally permitted by all laws and regulations to which the Company is subject, is authorized
by the Company’s Board of Directors and is not in conflict with, or prohibited by,
the organizational documents of the Company, or any contract, agreement, or arrangement with
any third party. |
| (h) | No
Suspension of Trading in or Delisting of Common Shares. The Common Shares are quoted
for trading on the Primary Market. The Company shall have the capacity to issue such number
of Common Shares with a market value (based on the average of the daily VWAP during the five
Trading Days prior to the date of the Request) of no less than 1.5 times the principal amount
of the Pre-Paid Advance without breaching the Exchange Cap. The Company shall not have received
any written notice that is then still pending threatening the continued quotation of the
Common Shares on the Primary Market. |
| (i) | No
Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction
shall have been enacted, entered, promulgated or endorsed by any court or governmental authority
of competent jurisdiction that prohibits or directly, materially and adversely affects any
of the transactions contemplated by this Agreement. |
| (j) | Bring
Down Certificate. The Investor shall have received on and as of the Pre-Advance Date
a certificate of an executive officer of the Company confirming that all of the representations
and warranties of the Company in this Agreement are true and correct on and as of the Pre-Advance
Date, and that the Company has complied with all agreements and covenants and satisfied all
other conditions on its part to be performed or satisfied hereunder at or prior to the Pre-Advance
Date. |
| (k) | Closing
Statement. The Investor shall have received a letter, duly executed by an officer of
the Company, setting forth wire transfer instructions of the Company for the payment of the
amount of the Pre-Paid Advance and the amount to be paid by the Investor, which shall be
99% of the amount of the Pre-Paid Advance. |
Section 2.03 Company’s
Pre-Paid Advance Obligations.
| (a) | Interest.
Interest shall accrue on the outstanding balance of any Pre-Paid Advance at a rate equal
to an annual rate of 5%, provided that such rate shall increase to an annual rate of 15%
for so long as any Event of Default remains uncured. Interest shall be calculated on the
basis of a 365-day year and the actual number of days elapsed, to the extent permitted by
applicable law. |
| (b) | Maturity.
The Company shall pay to the Investor an amount in cash representing any amount of a Pre-Paid
Advance that remains outstanding, plus accrued and unpaid interest thereon, on the 6-month
anniversary of the Pre-Advance Date of the Pre-Paid Advance (the “Maturity Date”). |
| (c) | Amortization
Event. If, any time after the Pre-Advance Date in respect of any Pre-Paid Advance, and
from time to time thereafter, an Amortization Event occurs, then then the Company shall make
monthly repayments of amounts outstanding under such Pre-Paid Advance beginning on the 10th
calendar day after the Amortization Event Date and continuing on the same day of each
successive calendar month until the entire amount of such Pre-Paid Advance balance shall
have been paid or until the payment obligation ceases in accordance with this Section. Each
monthly payment shall be in an amount to be determined as of an Amortization Event Date and
shall be equal to the sum of (i) the outstanding principal amount of such Pre-Paid Advance
as of the applicable Amortization Event Date divided by the lower of (y) the number
of months remaining until the Maturity Date of such Pre-Paid Advance as of the applicable
Amortization Event Date, or (z) 5, and (ii) the Redemption Premium in respect of
such amount, and (iii) accrued and unpaid interest in respect of such amount as of each
payment date. The obligation of the Company to make monthly payments hereunder shall cease
(with respect to any payment that has not yet come due) if any time after an Amortization
Event Date the Exchange Cap no longer applies, unless a subsequent Amortization Event occurs. |
| (d) | Early
Repayment. The Company at its option shall have the right, but not the obligation, to
repay (“Optional Repayment”) early a portion or all amounts outstanding
under a Pre-Paid Advance as described in this Section; provided that (i) at the
time of notice, the VWAP of the Common Stock is less than the applicable Purchase Price during
a period of three (3) consecutive Trading Days immediately prior to such notice and
(ii) the Company provides the Investor with at least 10 Trading Days’ prior written
(each, a “Repayment Notice”) of its desire to exercise an Optional Repayment.
Each Repayment Notice shall be irrevocable and shall specify the outstanding balance of the
Pre-Paid Advance to be repaid. The “Repayment Amount” shall be equal to
the outstanding principal balance being repaid by the Company, plus the Redemption Premium,
plus all accrued and unpaid interest in respect of such principal amount. On the 11th
Trading Day after the Repayment Notice, the Company shall deliver to the Investor the
Repayment Amount in cash with respect to the principal amount being repaid after giving effect
to any Advances effected during the applicable notice period. |
| (e) | Events
of Default. An “Event of Default”, wherever used herein, means any
one of the following events (whatever the reason and whether it shall be voluntary or involuntary
or effected by operation of law or pursuant to any judgment, decree or order of any court,
or any order, rule or regulation of any administrative or governmental body) shall have
occurred and be continuing: |
| (i) | the
Company’s failure to pay to the Investor any amount of the Pre-Paid Advance or other
amounts when and as due and payable hereunder and such failure is not cured within 5 days
following the Investor’s written notice to such effect; |
| (ii) | the
Company or any subsidiary of the Company shall commence, or there shall be commenced against
the Company or any subsidiary of the Company under any applicable bankruptcy or insolvency
laws as now or hereafter in effect or any successor thereto, or the Company or any subsidiary
of the Company commences, or there shall be commenced against the Company or any subsidiary
of the Company, any other proceeding under any reorganization, arrangement, adjustment of
debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction
whether now or hereafter in effect relating to the Company or any subsidiary of the Company,
in each case which remains un-dismissed for a period of 61 days; or the Company or any subsidiary
of the Company is adjudicated insolvent or bankrupt pursuant to a final, non-appealable order;
or any order of relief or other order approving any such case or proceeding is entered; or
the Company or any subsidiary of the Company suffers any appointment of any custodian, private
or court appointed receiver or the like for it or any substantial part of its property which
continues un-discharged or un-stayed for a period of 61 days; or the Company or any subsidiary
of the Company makes a general assignment for the benefit of creditors; or the Company or
any subsidiary of the Company shall admit in writing that it is unable to pay its debts generally
as they become due; or the Company or any subsidiary of the Company shall call a meeting
of its creditors with a view to arranging a composition, adjustment or restructuring of its
debts; or any corporate or other action is taken by the Company or any subsidiary of the
Company for the purpose of effecting any of the foregoing; |
| (iii) | the
Company is a party to any agreement memorializing (1) the consummation of any transaction
or event (whether by means of a share exchange or tender offer applicable to the ordinary
shares, a liquidation, consolidation, recapitalization, reclassification, combination or
merger of the Company or a sale, lease or other transfer of all or substantially all of the
consolidated assets of the Company) or a series of related transactions or events pursuant
to which all of the outstanding ordinary shares of the Company are exchanged for, converted
into or constitute solely the right to receive, cash, securities or other property, (2) a
consolidation or merger in which the Company is not the surviving corporation, or (3) a
sale, assignment, transfer, conveyance or other disposal of all or substantially all of the
properties or assets of the Company to another person or entity not affiliated with or under
the control of the Company (each of (1), (2) and (3) a “Change in Control”)
unless in connection with such Change in Control, the outstanding balance of all Pre-Paid
Advances hereunder, and any other amounts owed will be paid in full or the Investor consents
to such Change in Control; |
| (iv) | the Company's (A) failure to deliver
the required number of Common Shares to the Investor (I) before the applicable Share
Delivery Date, or (II) in the instance of a delay due to extenuating circumstances not
attributable to the Company, no later than the end of the Business Day immediately following
the Share Delivery Date, or (B) notice, written or oral, to the Investor, including
by way of public announcement, at any time, of its intention not to comply with a Purchase
Notice; |
| (v) | The Company shall fail for any reason
to deliver the payment in cash pursuant to a Buy-In (as defined herein) within five (5) Business
Days after such payment is due; |
| (vi) | the Company or any subsidiary of the
Company shall default in any of its obligations under any debenture or any mortgage, credit
agreement or other facility, indenture agreement, factoring agreement or other instrument
under which there may be issued, or whether or not secured or evidenced any indebtedness
for borrowed money or money due under any long term leasing or factoring arrangement of the
Company or any subsidiary of the Company in an amount exceeding $5,000,000, whether such
indebtedness now exists or shall hereafter be created and such default is not cured within
five (5) Business Days; |
| (vii) | the Common Shares shall cease to be
quoted or listed for trading, fail to have a bid price or VWAP, or fail to maintain a trading
market on any Primary Market or otherwise have been suspended or delisted by the SEC, the
Nasdaq, or FINRA; |
| (viii) | an
Event of Default or material breach by the Company under the Prior PPA Agreement;
or |
| (ix) | the
Company shall fail to observe or perform any material covenant, agreement or warranty contained
herein. |
During
the time that any portion of one or more Pre-Paid Advances are outstanding, if any Event of Default has occurred, the full amount outstanding
under the Pre-Paid Advances and the Redemption Premium, together with interest and other amounts owing in respect thereof, to the date
of acceleration shall become at the Investor's election given by notice pursuant to Article XI, immediately due and payable in cash.
Furthermore, in addition to any other remedies, the Investor shall have the right (but not the obligation) to submit Purchase Notices
(and Advances hereunder) (subject to the limitations set out in Section 3.01(b) at any time after (x) an Event of Default
or (y) the Maturity Date at the Purchase Price. The Investor need not provide, and the Company hereby waives, any presentment, demand,
protest or other notice of any kind (other than required notice of purchase) and the Investor may immediately enforce any and all of
its rights and remedies hereunder and all other remedies available to it under applicable law. Such declaration may be rescinded and
annulled by Investor at any time prior to payment hereunder. No such rescission or annulment shall affect any subsequent Event of Default
or impair any right consequent thereon.
Article III. Investor’s Advances
Section 3.01 Advances;
Mechanics. Upon the terms and subject to the conditions of this Agreement, during the Commitment Period, the Investor, at its sole
discretion, shall have the right, but not the obligation, to purchase from the Company, and the Company shall issue and sell to the Investor,
Common Shares by the delivery to the Company of Purchase Notices as provided herein.
| (a) | Purchase
Notice. At any time there is an outstanding balance under the Pre-Paid Advance, the Investor
may, by providing written notice to the Company in the form set forth herein as Exhibit A
attached hereto (a “Purchase Notice”) require the Company to issue and
sell Shares to the Investor, in accordance with the following provisions: |
| (i) | The Investor shall, in each Purchase
Notice, select the amount of the Advance, in its sole discretion, and the timing of delivery;
provided that the amount of the Advance shall not exceed the outstanding balance owed
under the Pre-Paid Advance on the date of delivery of the Purchase Notice or result in the
Investor exceeding the Advance Limitations set forth in Section 3.01(b) hereof. |
| (ii) | Each Purchase Notice shall be delivered
in accordance with the instructions set forth at the bottom of Exhibit A. |
| (iii) | Each Purchase Notice shall set forth
the amount of the Advance requested, the number of Shares to be purchased by the Investor,
the Purchase Price (along with a report by Bloomberg, L.P. indicating the relevant VWAP used
in calculating the Purchase Price), the aggregate amount of accrued and unpaid interest of
the Pre-Paid Advance as of the Purchase Notice Date that shall be offset by the issuance
of Shares, the aggregate amount of the Pre-Paid Advance as of the Purchase Notice Date that
shall be offset by the issuance of Shares, and the total amount of the Pre-Paid Advance that
shall be outstanding following the Closing of the Advance. |
| (i) | Ownership Limitation. At the
request of the Company, the Investor will inform the Company of the amount of shares the
Investor currently beneficially owns. In no event shall the number of Common Shares issuable
to the Investor pursuant to an Advance cause the aggregate number of Common Shares beneficially
owned by the Investor and its affiliates (as calculated pursuant to Section 13(d) of
the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its affiliates
(on an aggregated basis) to exceed 9.99% of the then outstanding voting power or number of
Common Shares (the “Ownership Limitation”). Upon the written request of
the Investor, the Company shall promptly (but no later than the next business day on which
the transfer agent for the Common Shares is open for business) confirm orally or in writing
to the Investor the number of Common Shares then outstanding. |
| (ii) | Exchange Limitation. Notwithstanding
anything to the contrary herein, the Company shall not affect any sales under this Agreement
and the Investor shall not have the obligation to purchase Common Shares under this Agreement
to the extent (but only to the extent) that after giving effect to such purchase and sale
the aggregate number of Common Shares issued under this Agreement (or any other transaction
that is integrated with this Agreement) would exceed 19.99% of the outstanding Common Shares
as of the date of this Agreement (the “Exchange Cap”) provided that,
the Exchange Cap will not apply if the Company’s stockholders have approved issuances
in excess of the Exchange Cap in accordance with the rules of the Principal Market. |
| (c) | Company’s
Obligations to Deliver Common Shares to Investor. On or before the third (3rd)
Business Day following the date of receipt of a Purchase Notice (the “Share Delivery
Date”), the Company shall (X) if legends are not required to be placed on
certificates of Common Stock and provided that the Transfer Agent is participating in The
Depository Trust Company's (“DTC”) Fast Automated Securities Transfer
Program, credit such aggregate number of shares of Common Stock to which the Investor shall
be entitled to the Investor's or its designee's balance account with DTC through its Deposit/Withdrawal
at Custodian (DWAC) system or (Y) if the Transfer Agent is not participating in the
DTC Fast Automated Securities Transfer Program, issue and deliver to the address as specified
in the Purchase Notice, a certificate, registered in the name of the Investor or its designee,
for the number of shares of Common Stock to which the Investor shall be entitled which certificates
shall not bear any restrictive legends unless required pursuant to rules and regulations
of the Commission. The Person or Persons entitled to receive the shares of Common Stock issuable
hereunder shall be treated for all purposes as the record Investor or holders of such shares
of Common Stock upon the transmission of a Purchase Notice. |
| (d) | Company's
Failure to Timely Delivery Shares. If within three (3) Trading Days after the Company's
receipt of a copy of a Purchase Notice the Company shall fail to issue and deliver a certificate
to the Investor or credit the Investor's balance account with DTC for the number of shares
of Common Stock to which the Investor is entitled pursuant to such Purchase Notice (a “Delivery
Failure”), and if on or after such date the Investor purchases (in an open market
transaction or otherwise) Common Stock to deliver in satisfaction of any sale made by the
Investor in reliance on the Purchase Notice and the timely delivery of Shares thereunder
(such purchase, a “Buy-In”, provided that the number of shares purchased
shall not exceed the number of shares specified in the applicable Purchase Notice), then
the Company shall, within three (3) Business Days after the Investor's request and in
the Investor's discretion, either (i) pay cash to the Investor in an amount equal to
the Investor's total purchase price (including brokerage commissions and other reasonable
and documented out of pocket expenses, if any) for the shares of Common Stock so purchased
(the “Buy-In Price”), at which point the Company's obligation to deliver
such certificate (and to issue such Common Stock) shall terminate, or (ii) promptly
honor its obligation to deliver to the Investor a certificate or certificates representing
such Common Stock and pay cash to the Investor in an amount equal to the excess (if any)
of the Buy-In Price over the product of (A) such number of shares of Common Stock, times
(B) the Nasdaq Official Closing Price on the Purchase Notice Date. |
| (e) | Book-Entry.
The Investor and the Company shall maintain records showing the outstanding balance of the
Pre-Paid Advances (as well as the number of shares issued pursuant to Purchase Notices). |
| (f) | Notwithstanding
any other provision in this Agreement, the Company and the Investor acknowledge and agree
that upon the Investor’s delivery of a valid Purchase Notice the parties shall be deemed
to have entered into an unconditional contract binding on both parties for the purchase and
sale of Shares pursuant to such Purchase Notice in accordance with the terms of this Agreement
and (i) subject to Applicable Laws and (ii) subject to Section 4.09 (Trading
Activities), the Investor may sell such Shares. |
Section 3.02 Closings.
The closing of each Advance and each sale and purchase of Advance Shares (each, a “Closing”) shall take place as soon
as practicable on or after each Purchase Notice Date in accordance with the procedures set forth below:
| (a) | Promptly
after receipt of a Purchase Notice with respect to each Advance (and, in any event, not later
than one Trading Day after such receipt), the Company will, or will cause its transfer agent
to, electronically transfer such number of Shares to be purchased by the Investor (as set
forth in the Purchase Notice) by crediting the Investor’s account or its designee’s
account at The Depository Trust Company through its Deposit/Withdrawal at Custodian System
or by such other means of delivery as may be mutually agreed upon by the parties hereto,
and transmit notification to the Investor that such share transfer has been requested. Promptly
upon receipt of such notification, the Investor shall pay to the Company the aggregate purchase
price of the Shares (as set forth in the Purchase Notice by offsetting the amount of the
aggregate purchase price of the Shares to be paid by Investor against an equal amount outstanding
under a Pre-Paid Advance (first towards accrued and unpaid interest, and then towards outstanding
principal as shown in such Purchase Notice). No fractional shares shall be issued, and any
fractional amounts shall be rounded to the next higher whole number of shares. To facilitate
the transfer of the Common Shares by the Investor, the Common Shares will not bear any restrictive
legends so long as there is an effective Registration Statement covering the resale by the
Investor of such Common Shares (it being understood and agreed by the Investor that notwithstanding
the lack of restrictive legends, the Investor may only sell such Common Shares in compliance
with the requirements of the Securities Act (including any applicable prospectus delivery
requirements) or pursuant to an available exemption). |
| (b) | In
connection with each Closing, each of the Company and the Investor shall deliver to the other
all documents, instruments and writings expressly required to be delivered by either of them
pursuant to this Agreement or the Prior PPA Agreement in order to implement and effect the
transactions contemplated herein. |
Section 3.03 Hardship.
| (a) | In
the event the Investor sells Common Shares of the Company after delivery of a Purchase Notice
and the Company fails to perform its obligations as mandated in Section 3.01(c), (d) and
(e), the Company agrees that in addition to and in no way limiting the rights and obligations
set forth in Article VI 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 may occur in the event of any such
default. It is accordingly agreed that the Investor shall be entitled to an injunction or
injunctions to prevent such breaches of this Agreement and to specifically enforce (subject
to the Securities Act and other rules of the Principal Market), without the posting
of a bond or other security, the terms and provisions of this Agreement. |
Section 3.04 Completion
of Resale Pursuant to the Registration Statement. After the Pre-Paid Advance has been fully repaid and the Investor has completed
the subsequent resale of all Advance Shares, Investor will notify the Company that all subsequent resales are completed, and the
Company will be under no further obligation to maintain the effectiveness of the Registration Statement.
Article IV. Representations and Warranties
of Investor
The Investor hereby makes
the following representations, warranties and covenants to the Company:
Section 4.01 Organization
and Authorization. The Investor is duly organized, validly existing and in good standing under the laws of the Cayman Islands and
has the requisite corporate power and authority to enter into and perform its obligations under this Agreement, including all transactions
contemplated, and to purchase or acquire Shares in accordance with the terms hereof. The decision to invest and the execution and delivery
of this Agreement by the Investor, the performance by the Investor of its obligations hereunder and the consummation by the Investor
of the transactions contemplated hereby have been duly authorized and require no other proceedings on the part of the Investor. The undersigned
has the right, power and authority to execute and deliver this Agreement and all other instruments on behalf of the Investor or its shareholders.
This Agreement has been duly executed and delivered by the Investor and, assuming the execution and delivery hereof and acceptance thereof
by the Company, will constitute the legal, valid and binding obligations of the Investor, enforceable against the Investor in accordance
with its terms.
Section 4.02 Evaluation
of Risks. The Investor has such knowledge and experience in financial, tax and business matters as to be capable of evaluating the
merits and risks of, and bearing the economic risks entailed by, an investment in the Common Shares of the Company and of protecting
its interests in connection with the transactions contemplated hereby. The Investor acknowledges and agrees that its investment in the
Company involves a high degree of risk, and that the Investor may lose all or a part of its investment.
Section 4.03 No
Legal, Investment or Tax Advice from the Company. The Investor acknowledges that it had the opportunity to review this Agreement
and the transactions contemplated by this Agreement with its own legal counsel and investment and tax advisors. The Investor is relying
solely on such counsel and advisors and not on any statements or representations of the Company or any of the Company’s representatives
or agents for legal, tax, investment or other advice with respect to the Investor’s acquisition of Common Shares hereunder, the
transactions contemplated by this Agreement or the laws of any jurisdiction, and the Investor acknowledges that the Investor may lose
all or a part of its investment.
Section 4.04 Investment
Purpose. The Investor is acquiring the Common Shares for its own account, for investment purposes and not with a view towards, or
for resale in connection with, the public sale or distribution thereof, in violation of the Securities Act or any applicable state securities
laws; provided, however, that by making the representations herein, the Investor does not agree, or make any representation or warranty,
to hold any of the Shares for any minimum or other specific term and reserves the right to dispose of the Shares at any time in accordance
with, or pursuant to, a registration statement filed pursuant to this Agreement or an applicable exemption under the Securities Act.
The Investor does not presently have any agreement or understanding, directly or indirectly, with any Person to sell or distribute any
of the Shares. The Investor is acquiring the Shares hereunder in the ordinary course of its business.
Section 4.05 Accredited
Investor. The Investor is an “accredited investor” as that term is defined in Rule 501(a)(3) of Regulation
D.
Section 4.06 Information.
The Investor and its advisors (and its counsel), if any, have been furnished with all materials relating to the business, finances and
operations of the Company and information the Investor deemed material to making an informed investment decision. The Investor and its
advisors (and its counsel), if any, have been afforded the opportunity to ask questions of the Company and its management and have received
answers to such questions. Neither such inquiries nor any other due diligence investigations conducted by such Investor or its advisors
(and its counsel), if any, or its representatives shall modify, amend or affect the Investor’s right to rely on the Company’s
representations and warranties contained in this Agreement. The Investor acknowledges and agrees that the Company has not made to the
Investor, and the Investor acknowledges and agrees it has not relied upon, any representations and warranties of the Company, its employees
or any third party other than the representations and warranties of the Company contained in this Agreement. The Investor understands
that its investment involves a high degree of risk. The Investor has sought such accounting, legal and tax advice, as it has considered
necessary to make an informed investment decision with respect to the transactions contemplated hereby.
Section 4.07 Not
an Affiliate. The Investor is not an officer, director or a person that directly, or indirectly through one or more intermediaries,
controls or is controlled by, or is under common control with the Company or any “affiliate” of the Company (as that
term is defined in Rule 405 promulgated under the Securities Act).
Section 4.08 No
Prior Short Sales. At no time prior to the date of this Agreement has the Investor, its sole member, any of their respective officers,
or any entity managed or controlled by the Investor or its sole member, engaged in or effected, in any manner whatsoever, directly or
indirectly, for its own principal account, any (i) “short sale” (as such term is defined in Rule 200 of Regulation
SHO of the Exchange Act) of the Common Shares or (ii) hedging transaction, which establishes a net short position with respect to
the Common Shares that remains in effect as of the date of this Agreement.
Section 4.09 Trading
Activities. The Investor’s trading activities with respect to the Common Shares shall be in compliance with all applicable
federal and state securities laws, rules and regulations and the rules and regulations of the Principal Market. Neither the
Investor nor its affiliates has any open short position in the Common Shares, nor has the Investor entered into any hedging transaction
that establishes a net short position with respect to the Common Shares, and the Investor agrees that it shall not, and that it will
cause its affiliates not to, engage in any short sales or hedging transactions with respect to the Common Shares; provided that
the Company acknowledges and agrees that upon delivery of a Purchase Notice the Investor has the right to sell (a) the Shares to
be issued to the Investor pursuant to the Purchase Notice prior to receiving such Shares, or (b) other Common Shares sold by the
Company to Investor pursuant to this Agreement and which the Company has continuously held as a long position.
Section 4.10 General
Solicitation. Neither the Investor, nor any of its affiliates, nor any person acting on its or their behalf, has engaged or will
engage in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with any offer or
sale of the Common Shares by the Investor.
Article V. Representations and Warranties
of the Company
Except
as set forth in the SEC Documents, or in the Disclosure Schedules, which Disclosure Schedules shall be deemed a part hereof and shall
qualify any representation or warranty otherwise made herein to the extent of the disclosure contained in the corresponding section of
the Disclosure Schedules or in another Section of the Disclosure Schedules, to the extent that it is reasonably apparent on the
face of such disclosure that such disclosure is applicable to such Section, the Company represents and warrants to the Investor that,
as of the date hereof, each Purchase Notice Date (other than representations and warranties which address matters only as of a
certain date, which shall be true and correct as written as of such certain date), that:
Section 5.01 Organization
and Qualification. Each of the Company and its Subsidiaries (as defined below) is an entity duly organized and validly existing under
the laws of their respective jurisdiction of organization, and has the requisite power and authority to own its properties and to carry
on its business as now being conducted. Each of the Company and its Subsidiaries is duly qualified to do business and is in good standing
(to the extent applicable) in every jurisdiction in which the nature of the business conducted by it makes such qualification necessary,
except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. “Subsidiaries”
means any Person (as defined below) in which the Company, directly or indirectly, (x) owns a majority of the outstanding capital
stock or holds a majority equity or similar interest of such Person or (y) controls or operates all or substantially all of the
business, operations or administration of such Person, and each of the foregoing, is individually referred to herein as a “Subsidiary.”
Section 5.02 Authorization,
Enforcement, Compliance with Other Instruments. The Company has the requisite corporate power and authority to enter into and perform
its obligations under this Agreement, and the other Transaction Documents and to issue the Shares in accordance with the terms hereof
and thereof. The execution and delivery by the Company of this Agreement and the other Transaction Documents, and the consummation by
the Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Common Shares) have
been or (with respect to consummation) will be duly authorized by the Company’s board of directors and no further consent or authorization
will be required by the Company, its board of directors or its shareholders. This Agreement, and the other Transaction Documents to which
it is a party have been (or, when executed and delivered, will be) duly executed and delivered by the Company and, assuming the execution
and delivery thereof and acceptance by the Investor, constitute (or, when duly executed and delivered, will be) the legal, valid and
binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except as such enforceability
may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or other
laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies and except as rights to
indemnification and to contribution may be limited by federal or state securities law. “Transaction Documents” means,
collectively, this Agreement, and each of the other agreements and instruments entered into or delivered by any of the parties hereto
in connection with the transactions contemplated hereby and thereby, as may be amended from time to time.
Section 5.03 Authorization
of the Shares. The Shares to be issued under this Agreement have been, or with respect to Shares to be purchased by the Investor
pursuant to an Purchase Notice, will be, when issued and delivered pursuant to the terms approved by the board of directors of the Company
or a duly authorized committee thereof, or a duly authorized executive committee, against payment therefor as provided herein, duly and
validly authorized and issued and fully paid and nonassessable, free and clear of any pledge, lien, encumbrance, security interest or
other claim, including any statutory or contractual preemptive rights, resale rights, rights of first refusal or other similar rights.
The Shares, when issued, will conform to the description thereof set forth in or incorporated into the applicable Prospectus. As of the
Pre-Advance Date, and at all times thereafter, the Company shall have reserved from its duly authorized capital not less than the maximum
number of Shares issuable to the Investor hereunder (assuming for purposes hereof that (x) such Purchase Price is equal to the Purchase
Price as of the date of determination, and (y) any such limitations on the issuance of Shares is not applicable).
Section 5.04 No
Conflict. The execution, delivery and performance of the Transaction Documents by the Company and the consummation by the Company
of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Common Shares) will not (i) result
in a violation of the articles of incorporation or other organizational documents of the Company or its Subsidiaries (with respect to
consummation, as the same may be amended prior to the date on which any of the transactions contemplated hereby are consummated), (ii) conflict
with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others
any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Company or
its Subsidiaries is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including federal
and state securities laws and regulations) applicable to the Company or its Subsidiaries or by which any property or asset of the Company
or its Subsidiaries is bound or affected except, in the case of clause (ii) or (iii) above, to the extent such violations that
would not reasonably be expected to have a Material Adverse Effect.
Section 5.05 SEC
Documents; Financial Statements. The Company has timely filed (giving effect to permissible extensions in accordance with Rule 12b-25
under the Exchange Act) all reports, schedules, forms, statements and other documents required to be filed by it with the SEC pursuant
to the Exchange Act for the two years preceding the date hereof (or such shorter period as the Company was required by law or regulation
to file such material) (all of the foregoing filed within two years preceding the date hereof or amended after the date hereof, or filed
after the date hereof, and all exhibits included therein and financial statements and schedules thereto and documents incorporated by
reference therein, and all registration statements filed by the Company under the Securities Act (including any Registration Statements
filed hereunder), being hereinafter referred to as the “SEC Documents”). The Company has made available to the Investor
through the SEC’s website at http://www.sec.gov, true and complete copies of the SEC Documents. As of their respective dates (or,
with respect to any filing that has been amended or superseded, the date of such amendment or superseding filing), the SEC Documents
complied in all material respects with the requirements of the Exchange Act or the Securities Act, as applicable, and the rules and
regulations of the SEC promulgated thereunder applicable to the SEC Documents, and did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
Section 5.06 Financial
Statements. The consolidated financial statements of the Company included or incorporated by reference in SEC Documents, together
with the related notes and schedules, present fairly, in all material respects, the consolidated financial position of the Company and
the Subsidiaries as of the dates indicated and the consolidated results of operations, cash flows and changes in stockholders’
equity of the Company for the periods specified and have been prepared in compliance with the requirements of the Securities Act and
Exchange Act and in conformity with generally accepted accounting principles in the United States (“GAAP”) applied on a consistent
basis (except for (i) such adjustments to accounting standards and practices as are noted therein, (ii) in the case of unaudited
interim financial statements, to the extent such financial statements may not include footnotes required by GAAP or may be condensed
or summary statements and (iii) such adjustments which will not be material, either individually or in the aggregate) during the
periods involved; the other financial and statistical data with respect to the Company and the Subsidiaries (as defined below) contained
or incorporated by reference in the SEC Documents are accurately and fairly presented and prepared on a basis consistent with the financial
statements and books and records of the Company; there are no financial statements (historical or pro forma) that are required to be
included or incorporated by reference in the SEC Documents that are not included or incorporated by reference as required; the Company
and the Subsidiaries (as defined below) do not have any material liabilities or obligations, direct or contingent (including any off-balance
sheet obligations), not described in the SEC Documents (excluding the exhibits thereto); and all disclosures contained or incorporated
by reference in the SEC Documents regarding “non-GAAP financial measures” (as such term is defined by the rules and
regulations of the Commission) comply in all material respects with Regulation G of the Exchange Act and Item 10 of Regulation S-K under
the Securities Act, to the extent applicable. The interactive data in extensible Business Reporting Language included or incorporated
by reference in the SEC Documents fairly presents the information called for in all material respects and has been prepared in accordance
with the SEC’s rules and guidelines applicable thereto.
Section 5.07 Registration
Statement and Prospectus. The Company and the transactions contemplated by this Agreement relating to the public resale of Common
Stock by the Investor meet the requirements for and comply with the conditions for the use of Form S-3 under the Securities Act.
Each Registration Statement and the offer and sale of Shares as contemplated hereby, if and when filed, will meet the requirements of
Rule 415 under the Securities Act and shall comply in all material respects with said Rule. Any statutes, regulations, contracts
or other documents that are required to be described in a Registration Statement or a Prospectus, or to be filed as exhibits to a Registration
Statement have been (or will be upon filing of the applicable Registration Statement) so described or filed. Copies of each Registration
Statement, any Prospectus, and any such amendments or supplements thereto and all documents incorporated by reference therein that were
filed with the Commission on or prior to the date of this Agreement have been delivered, or are available through EDGAR, to the Investor
and its counsel. The Company has not distributed and, prior to the later to occur of each Settlement Date and completion of the distribution
of the Shares, will not distribute any offering material in connection with the offering or sale of the Shares other than a Registration
Statement and any Prospectus forming a part of such Registration Statement.
Section 5.08 No
Material Misstatement or Omission. Each Registration Statement, when it became or becomes effective, and any Prospectus, on the date
of such Prospectus or amendment or supplement, conformed and will conform in all material respects with the requirements of the Securities
Act. At each Purchase Notice Date, the Registration Statement, and any Prospectus, as of such date, will conform in all material respects
with the requirements of the Securities Act. Each Registration Statement, when it became or becomes effective, did not, and will not,
contain 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 not misleading. Each Prospectus did not, or will not, include an untrue statement of a material fact or omit to state
a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The
documents incorporated by reference in a Prospectus or any Prospectus Supplement did not, and any further documents filed and incorporated
by reference therein will not, when filed with the Commission, contain an untrue statement of a material fact or omit to state a material
fact required to be stated in such document or necessary to make the statements in such document, in light of the circumstances under
which they were made, not misleading. The foregoing shall not apply to statements in, or omissions from, any such document made in reliance
upon, and in conformity with, information furnished to the Company by the Investor specifically for use in the preparation thereof.
Section 5.09 Conformity
with Securities Act and Exchange Act. Each Registration Statement, each Prospectus or any amendment or supplement thereto, and the
documents incorporated by reference in each Registration Statement, Prospectus or any amendment or supplement thereto, when such documents
were or are filed with the SEC under the Securities Act or the Exchange Act or became or become effective under the Securities Act, as
the case may be, conformed or will conform in all material respects with the requirements of the Securities Act and the Exchange Act,
as applicable.
Section 5.10 Equity
Capitalization. As of the date hereof, the authorized capital of the Company consists of 2,010,000,000 shares of capital stock, of
which 2,000,000,000 shares are designated Common Shares, and 10,000,000 shares are preferred stock. As of the date hereof, the Company
had 68,633,631 shares of Common Shares outstanding and 61,500 shares of preferred stock outstanding.
The
Common Shares are registered pursuant to Section 12(b) of the Exchange Act and is currently listed on the Principal Market
under the trading symbol “GOEV.” The Company has taken no action designed to, or reasonably likely to have the effect of,
terminating the registration of the Common Shares under the Exchange Act, delisting the Common Shares from the Principal Market, nor
has the Company received any notification that the Commission or the Principal Market is contemplating terminating such registration
or listing. To the Company’s knowledge, it is in compliance with all applicable listing requirements of the Principal Market.
Section 5.11 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, if any, necessary to conduct their respective businesses as now conducted, except
as would not cause a Material Adverse Effect. The Company and its Subsidiaries have not received written notice of any infringement by
the Company or its Subsidiaries of trademark, trade name rights, patents, patent rights, copyrights, inventions, licenses, service names,
service marks, service mark registrations, or trade secrets, except as would not cause a Material Adverse Effect. To the knowledge of
the Company, there is no material 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, except as would not cause a Material
Adverse Effect, the Company is not aware of any facts or circumstances which might give rise to any of the foregoing.
Section 5.12 Employee
Relations. Neither the Company nor any of its Subsidiaries is involved in any labor dispute nor, to the knowledge of the Company
or any of its Subsidiaries, is any such dispute threatened, in each case which is reasonably likely to cause a Material Adverse Effect.
Section 5.13 Environmental
Laws. The Company and its Subsidiaries (i) have not received written notice alleging any failure to comply in all material respects
with all Environmental Laws (as defined below), (ii) have received all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses and (iii) have not received written notice alleging any failure
to comply with all terms and conditions of any such permit, license or approval where, in each of the foregoing clauses (i), (ii) and
(iii), the failure to so comply would be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect. The
term “Environmental Laws” means all applicable federal, state and local laws relating to pollution or protection of
human health or the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata),
including, without limitation, laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants,
or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials,
as well as all authorizations, codes, decrees, demands or demand letters, injunctions, judgments, licenses, notices or notice letters,
orders, permits, plans or regulations issued, entered, promulgated or approved thereunder.
Section 5.14 Title.
Except as would not cause a Material Adverse Effect, the Company (or its Subsidiaries) have indefeasible fee simple or leasehold title
to its properties and 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 5.15 Insurance.
The Company and each of its Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks
and in such amounts as management of the Company believes to be prudent and customary in the businesses in which the Company and its Subsidiaries
are engaged. The Company has no reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have
a Material Adverse Effect.
Section 5.16 Regulatory
Permits. Except as would not cause a Material Adverse Effect, the Company and its Subsidiaries possess all material certificates,
authorizations and permits issued by the appropriate federal, state or foreign regulatory authorities necessary to own their respective
businesses, and neither the Company nor any such Subsidiary has received any written notice of proceedings relating to the revocation
or modification of any such certificate, authorization or permits.
Section 5.17 Internal
Accounting Controls. The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are
recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to
maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific
authorization and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences, and management is not aware of any material weaknesses that are not disclosed in the
SEC Documents as and when required.
Section 5.18 Absence
of Litigation. Except as disclosed in the SEC Documents, there is no action, suit, proceeding, inquiry or investigation before or
by any court, public board, government agency, self-regulatory organization or body pending against or affecting the Company, the Common
Shares or any of the Company’s Subsidiaries, wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
Section 5.19 Absence
of Certain Changes. Since the date of the Company’s most recent audited financial statements contained in a Form 10-K,
there has been no Material Adverse Effect, nor any event or occurrence specifically affecting the Company or its Subsidiaries that would
be reasonably expected to result in a Material Adverse Effect. Since the date of the Company’s most recent audited financial statements
contained in a Form 10-K, neither the Company nor any of its Subsidiaries has (i) declared or paid any dividends, (ii) sold
any material assets, individually or in the aggregate, outside of the ordinary course of business, or (iii) made any material capital
expenditures, individually or in the aggregate, outside of the ordinary course of business. Neither the Company nor any of its Subsidiaries
has taken any steps to seek protection pursuant to any law or statute relating to bankruptcy, insolvency, reorganization, receivership,
liquidation or winding up, nor does the Company or any Subsidiary have any knowledge or reason to believe that any of their respective
creditors intend to initiate involuntary bankruptcy proceedings.
Section 5.20 Tax
Status. Except as would not have a Material Adverse Effect, each of the Company and its Subsidiaries (i) has timely made or filed
all foreign, federal and state income and all other tax returns, reports and declarations required by any jurisdiction to which it is
subject, (ii) has timely paid all taxes and other governmental assessments and charges that are material in amount, shown or determined
to be due on such returns, reports and declarations, except those being contested in good faith and (iii) has set aside on its books
provision reasonably adequate for the payment of all taxes for periods subsequent to the periods to which such returns, reports or declarations
apply. Except as would not have a Material Adverse Effect, the Company has not received written notification any unpaid taxes in any material
amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company and its Subsidiaries know of no
basis for any such claim where failure to pay would cause a Material Adverse Effect.
Section 5.21 Certain
Transactions. Except as disclosed in the SEC Documents or as not required to be disclosed pursuant to Applicable Laws, none of the
officers or directors of the Company is presently a party to any transaction with the Company (other than for services as employees, officers
and directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for
rental of real or personal property to or from, or otherwise requiring payments to or from any officer or director, or to the knowledge
of the Company, any corporation, partnership, trust or other entity in which any officer or director has a substantial interest or is
an officer, director, trustee or partner.
Section 5.22 Rights
of First Refusal. The Company is not obligated to offer the Common Shares offered hereunder on a right of first refusal basis to any
third parties including, but not limited to, current or former shareholders of the Company, underwriters, brokers, agents or other third
parties.
Section 5.23 Dilution.
The Company is aware and acknowledges that issuance of Common Shares hereunder could cause dilution to existing shareholders and could
significantly increase the outstanding number of Common Shares.
Section 5.24 Acknowledgment
Regarding Investor’s Purchase of Shares. The Company acknowledges and agrees that the Investor is acting solely in the capacity
of an arm’s length investor with respect to this Agreement and the transactions contemplated hereunder. The Company further acknowledges
that the Investor is not acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to this Agreement
and the transactions contemplated hereunder and any advice given by the Investor or any of its representatives or agents in connection
with this Agreement and the transactions contemplated hereunder is merely incidental to the Investor’s purchase of the Shares hereunder.
The Company acknowledged and agrees that it is capable of evaluating and understanding, and understands and accepts, the terms, risks
and conditions of the transactions contemplated by this Agreement.
Section 5.25 Finder’s
Fees. Neither the Company nor any of the Subsidiaries has incurred any liability for any finder’s fees, brokerage commissions
or similar payments in connection with the transactions herein contemplated.
Section 5.26 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 5.27 Forward-Looking
Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the
Exchange Act) contained in the Registration Statement or a Prospectus will be made or reaffirmed without a reasonable basis or will be
disclosed other than in good faith.
Section 5.28 Compliance
with Laws. The Company and each of its Subsidiaries are in compliance with Applicable Laws; the Company has not received a notice
of non-compliance, nor knows of, nor has reasonable grounds to know of, any facts that any director, officer, or employee of the Company
or any Subsidiary nor, to the Company’s knowledge, any agent, affiliate or other person acting on behalf of the Company or any Subsidiary,
has not complied with Applicable Laws, or could give rise to a notice of non-compliance with Applicable Laws, and is not aware of any
pending change or contemplated change to any applicable law or regulation or governmental position; in each case that would have a Material
Adverse Effect on the business of the Company or the business or legal environment under which the Company operates.
Section 5.29 Sanctions
Matters. Neither the Company nor any of its Subsidiaries or, to the knowledge of the Company, any director, officer or controlled
affiliate of the Company or any director or officer of any Subsidiary, is a Person that is, or is owned or controlled by a Person that
is (i) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Asset Control
(“OFAC”), the United Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant
sanctions authorities, including, without limitation, designation on OFAC’s Specially Designated Nationals and Blocked Persons List
or OFAC’s Foreign Sanctions Evaders List or other relevant sanctions authority (collectively, “Sanctions”), or
(ii) located, organized or resident in a country or territory that is the subject of Sanctions that broadly prohibit dealings with
that country or territory (including, without limitation, the Crimea, Zaporizhzhia and Kherson regions of Ukrain, the Donetsk People’s
Republic and Luhansk People’s Republic in Ukraine, Cuba, Iran, North Korea, Russia, Sudan and Syria (the “Sanctioned
Countries”)). Neither the Company nor any of its Subsidiaries will, directly or indirectly, use the proceeds from the sale of
Advance Shares, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person
(a) for the purpose of funding or facilitating any activities or business of or with any Person or in any country or territory that,
at the time of such funding or facilitation, is the subject of Sanctions or is a Sanctioned Country, or (b) in any other manner that
will result in a violation of Sanctions or Applicable Laws by any Person (including any Person participating in the transactions contemplated
by this Agreement, whether as underwriter, advisor, investor or otherwise). For the past five years, neither the Company nor any of its
Subsidiaries has engaged in, and is now not engaged in, any dealings or transactions with any Person, or in any country or territory,
that at the time of the dealing or transaction is or was the subject of Sanctions or was a Sanctioned Country. Neither the Company nor
any of its Subsidiaries nor any director, officer or controlled affiliate of the Company or any of its Subsidiaries, has ever had funds
blocked by a United States bank or financial institution, temporarily or otherwise, as a result of OFAC concerns.
Article VI. Indemnification
The Investor and the Company
represent to the other the following with respect to itself:
Section 6.01 Indemnification
by the Company. In consideration of the Investor’s execution and delivery of this Agreement, and in addition to all of the Company’s
other obligations under this Agreement, the Company shall defend, protect, indemnify and hold harmless the Investor and its investment
manager, Yorkville Advisors Global, LP, and each of their respective officers, directors, managers, members, partners, employees and agents
(including, without limitation, those retained in connection with the transactions contemplated by this Agreement) and each person who
controls the Investor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively,
the “Investor Indemnitees”) from and against any and all actions, causes of action, suits, claims, losses, costs, penalties,
fees, liabilities and damages, and reasonable and documented expenses in connection therewith (irrespective of whether any such Investor
Indemnitee is a party to the action for which indemnification hereunder is sought), and including reasonable attorneys’ fees and
disbursements (the “Indemnified Liabilities”), incurred by the Investor Indemnitees or any of them as a result of,
or arising out of, or relating to (a) any untrue statement or alleged untrue statement of a material fact contained in the Registration
Statement for the registration of the Shares as originally filed or in any amendment thereof, or in any related prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the
Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on behalf of the Investor specifically for inclusion therein; (b) any material
misrepresentation or breach of any material representation or material warranty made by the Company in this Agreement or any other certificate,
instrument or document contemplated hereby or thereby; or (c) any material breach of any material covenant, material agreement or
material obligation of the Company contained in this Agreement or any other certificate, instrument or document contemplated hereby or
thereby. To the extent that the foregoing undertaking by the Company may be unenforceable under Applicable Law, the Company shall make
the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities, which is permissible under Applicable
Law.
Section 6.02 Indemnification
by the Investor. In consideration of the Company’s execution and delivery of this Agreement, and in addition to all of the Investor’s
other obligations under this Agreement, the Investor shall defend, protect, indemnify and hold harmless the Company and all of its officers,
directors, shareholders, employees and agents (including, without limitation, those retained in connection with the transactions contemplated
by this Agreement) and each person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act (collectively, the “Company Indemnitees”) from and against any and all Indemnified Liabilities
incurred by the Company Indemnitees or any of them as a result of, or arising out of, or relating to (a) any untrue statement or
alleged untrue statement of a material fact contained in the Registration Statement for the registration of the Shares as originally filed
or in any amendment thereof, or in any related prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that the Investor will only be liable for written information relating to the
Investor furnished to the Company by or on behalf of the Investor specifically for inclusion in the documents referred to in the foregoing
indemnity, and will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Investor by or on behalf of the Company specifically for inclusion therein; (b) any material
misrepresentation or breach of any material representation or material warranty made by the Investor in this Agreement or any instrument
or document contemplated hereby or thereby executed by the Investor; or (c) any material breach of any material covenant, agreement
or obligation of the Investor contained in this Agreement or any other certificate, instrument or document contemplated hereby or thereby
executed by the Investor. To the extent that the foregoing undertaking by the Investor may be unenforceable under Applicable Laws, the
Investor shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities, which is permissible
under Applicable Laws.
Section 6.03 Notice
of Claim. Promptly after receipt by an Investor Indemnitee or Company Indemnitee of notice of the commencement of any action or proceeding
(including any governmental action or proceeding) involving an Indemnified Liability, such Investor Indemnitee or Company Indemnitee,
as applicable, shall, if a claim for an Indemnified Liability in respect thereof is to be made against any indemnifying party under this
Article VI, deliver to the indemnifying party a written notice of the commencement thereof; but the failure to so notify the indemnifying
party will not relieve it of liability under this Article VI except to the extent the indemnifying party is prejudiced by such failure.
The indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any
other indemnifying party similarly noticed, to assume control of the defense thereof with counsel mutually reasonably satisfactory to
the indemnifying party and the Investor Indemnitee or Company Indemnitee, as the case may be; provided, however, that an Investor Indemnitee
or Company Indemnitee shall have the right to retain its own counsel with the actual and reasonable third party fees and expenses of not
more than one counsel for such Investor Indemnitee or Company Indemnitee to be paid by the indemnifying party, if, in the reasonable opinion
of counsel retained by the indemnifying party, the representation by such counsel of the Investor Indemnitee or Company Indemnitee and
the indemnifying party would be inappropriate due to actual or potential differing interests between such Investor Indemnitee or Company
Indemnitee and any other party represented by such counsel in such proceeding. The Investor Indemnitee or Company Indemnitee shall cooperate
fully with the indemnifying party in connection with any negotiation or defense of any such action or claim by the indemnifying party
and shall furnish to the indemnifying party all information reasonably available to the Investor Indemnitee or Company Indemnitee which
relates to such action or claim. The indemnifying party shall keep the Investor Indemnitee or Company Indemnitee reasonably apprised as
to the status of the defense or any settlement negotiations with respect thereto. No indemnifying party shall be liable for any settlement
of any action, claim or proceeding effected without its prior written consent, provided, however, that the indemnifying party shall not
unreasonably withhold, delay or condition its consent. No indemnifying party shall, without the prior written consent of the Investor
Indemnitee or Company Indemnitee, consent to entry of any judgment or enter into any settlement or other compromise which does not include
as an unconditional term thereof the giving by the claimant or plaintiff to such Investor Indemnitee or Company Indemnitee of a release
from all liability in respect to such claim or litigation. Following indemnification as provided for hereunder, the indemnifying party
shall be subrogated to all rights of the Investor Indemnitee or Company Indemnitee with respect to all third parties, firms or corporations
relating to the matter for which indemnification has been made. The indemnification required by this Article VI shall be made by
periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received and payment
therefor is due.
Section 6.04 Remedies.
The remedies provided for in this Article VI are not exclusive and shall not limit any
right or remedy which may be available to any indemnified person at law or equity. The obligations
of the parties to indemnify or make contribution under
this Article VI shall survive expiration or termination of this Agreement for a period of three years. Notwithstanding anything
to the contrary under this Agreement or Applicable Laws, no party shall be entitled to any indemnification pursuant to this Article VI
(other than claims for any damages resulting from fraud) until the aggregate amount of all such damages that would otherwise be indemnifiable
to such party equals or exceeds $25,000 (the “Basket”), at which time such party shall be entitled to indemnification
for the full amount of all damages (including all damages incurred prior to exceeding the Basket).
Section 6.05 Limitation
of liability. Notwithstanding the foregoing, no party shall be entitled to recover from the other party for punitive, indirect, incidental
or consequential damages.
Article VII.
Additional Covenants
The Company covenants with the Investor, and the
Investor covenants with the Company, as follows, which covenants of one party are for the benefit of the other party, during the Commitment
Period (and with respect to the Company, for the period following the termination of this Agreement specified in Article X pursuant
to and in accordance with Article X:
Section 7.01 Registration
Statement.
| (a) | Filing of a Registration Statement. the Company shall (i) on or prior to the Filing Deadline
in respect of the initial Registration Statement, prepare and file with the SEC an initial Registration Statement on Form S-3 (or,
if the Company is not then eligible, on Form S-1) or any successor form thereto covering the resale by the Investor of Advance Shares,
and (ii) on or prior to the 30th calendar day following receipt of each written notice by the Investor (a “Demand Notice”)
delivered pursuant to the terms hereof, prepare and file an additional Registration Statement covering the resale by the Investor of Advance
Shares not covered by the initial Registration Statement or any subsequent Registration Statement. The initial Registration Statement
prepared pursuant hereto shall register for resale at least the number of shares of Common Stock equal to the Exchange Cap. Each Registration
Statement shall contain “Selling Stockholders” and “Plan of Distribution” sections. The Company
shall use its best efforts to have each Registration Statement declared effective by the SEC as soon as practicable, but in no event later
than the Effectiveness Deadline. By 9:30 am, New York time on the business day following the date of effectiveness, the Company shall
file with the SEC in accordance with Rule 424 under the Securities Act the final Prospectus to be used in connection with sales pursuant
to such Registration Statement. Prior to the filing of the Registration Statement with the SEC, the Company shall furnish a draft of the
Registration Statement to the Investor for their review and comment. The Investor shall furnish comments on the Registration Statement
to the Company within 24 hours of the receipt thereof from the Company. For the purposes hereof, the Investor shall be entitled to deliver
a Demand Notice to the Company at any time during the Commitment Period if at such time (i) no Registration Statement is then in
effect which the Investor may use to resell Advance Shares, or (ii) a Registration Statement is effective, but the Investor has resold
substantially all of the shares of Common Shares registered on such Registration Statement. |
| (b) | Maintaining a Registration Statement. The Company shall use commercially reasonable efforts to
maintain the effectiveness of any Registration Statement that has been declared effective at all times during the Commitment Period, provided,
however, that the Company shall be under no further obligation to maintain the effectiveness of the Registration Statement to the extent
permitted pursuant to Section 3.04. Notwithstanding anything to the contrary contained in this Agreement, the Company shall
ensure that, when filed, each Registration Statement (including, without limitation, all amendments and supplements thereto) and any prospectus
(including, without limitation, all amendments and supplements thereto) used in connection with such Registration Statement shall not
contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the
statements therein (in the case of prospectuses, in the light of the circumstances in which they were made) not misleading. |
| (c) | Filing Procedures. The Company shall (A) permit counsel to the Investor an opportunity to
review and comment upon (i) each Registration Statement at least three (3) Trading Days prior to its filing with the SEC and
(ii) all amendments and supplements to each Registration Statement (including, without limitation, the Prospectus contained therein)
(except for Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, and
any similar or successor reports or Prospectus Supplements the contents of which is limited to that set forth in such reports) within
a reasonable number of days prior to their filing with the SEC, and (B) shall reasonably consider any comments of the Investor and
its counsel on any such Registration Statement or amendment or supplement thereto or to any Prospectus contained therein. The Company
shall promptly furnish to the Investor, without charge, to the extent permitted by Applicable Laws, (i) electronic copies of any
correspondence from the SEC or the Staff to the Company or its representatives relating to each Registration Statement (which correspondence
shall be redacted to exclude any material, non-public information regarding the Company, unless otherwise requested by the Investor),
(ii) after the same is prepared and filed with the SEC, one (1) electronic copy of each Registration Statement and any amendment(s) and
supplement(s) thereto, including, without limitation, financial statements and schedules, all documents incorporated therein by reference,
if requested by the Investor, and all exhibits and (iii) upon the effectiveness of each Registration Statement, one (1) electronic
copy of the Prospectus included in such Registration Statement and all amendments and supplements thereto; provided, however, the Company
shall not be required to furnish any document to the extent such document is available on EDGAR). |
| (d) | Amendments and Other Filings. The Company shall (i) prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to a Registration Statement and the related prospectus used in connection with such Registration
Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep
such Registration Statement effective at all times during the Commitment Period, and prepare and file with the SEC such additional Registration
Statements in order to register for resale under the Securities Act all of the Advance Shares; (ii) cause the related prospectus
to be amended or supplemented by any required prospectus supplement (subject to the terms of this Agreement), and as so supplemented or
amended to be filed pursuant to Rule 424 promulgated under the Securities Act; (iii) provide the Investor copies of all correspondence
from and to the SEC relating to a Registration Statement (provided that the Company may excise any information contained therein which
would constitute material non-public information unless otherwise requested by the Investor), and (iv) comply with the provisions
of the Securities Act with respect to the disposition of all Common Shares of the Company covered by such Registration Statement until
such time as all of such Common Shares shall have been disposed of in accordance with the intended methods of disposition by the seller
or sellers thereof as set forth in such Registration Statement. In the case of amendments and supplements to a Registration Statement
which are required to be filed pursuant to this Agreement (including pursuant to this Section 7.01(d) by reason of the Company’s
filing a report on Form 10-K, Form 10-Q, or Form 8-K or any analogous report under the Exchange Act, provided that such
report is not automatically incorporated by reference into the applicable Registration Statement), the Company shall file such report
in a prospectus supplement filed pursuant to Rule 424 promulgated under the Securities Act to incorporate such filing into the Registration
Statement, if applicable, or shall file such amendments or supplements with the SEC either on the day on which the Exchange Act report
is filed which created the requirement for the Company to amend or supplement the Registration Statement, if feasible, or otherwise promptly
thereafter. |
| (e) | Blue-Sky. The Company shall use its commercially reasonable efforts to, if required by Applicable
Laws, (i) register and qualify the Common Shares covered by a Registration Statement under such other securities or “blue sky”
laws of such jurisdictions in the United States as the Investor reasonably requests, (ii) prepare and file in those jurisdictions,
such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to
maintain the effectiveness thereof during the Commitment Period, (iii) take such other actions as may be necessary to maintain such
registrations and qualifications in effect at all times during the Commitment Period, and (iv) take all other actions reasonably
necessary or advisable to qualify the Common Shares for sale in such jurisdictions; provided, however, that the Company shall not be required
in connection therewith or as a condition thereto to (w) make any change to its Articles of Incorporation or Bylaws or any other
organizational documents of the Company or any of its Subsidiaries, (x) qualify to do business in any jurisdiction where it would
not otherwise be required to qualify but for this Section 7.01, (y) subject itself to general taxation in any such jurisdiction,
or (z) file a general consent to service of process in any such jurisdiction. The Company shall promptly notify the Investor of the
receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Common Shares
for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice
of the initiation or threat of any proceeding for such purpose. |
Section 7.02 Listing
of Common Shares. As of each Purchase Notice Date, the Shares to be sold by the Company from time to time hereunder will have been
registered under Section 12(b) of the Exchange Act and approved for listing on the Principal Market, subject to official notice
of issuance.
Section 7.03 Opinion
of Counsel. Prior to the date of the delivery by the Company of the first Request, the Investor shall have received an opinion letter
from counsel to the Company in form and substance reasonably satisfactory to the Investor.
Section 7.04 Exchange
Act Registration. The Company will use commercially reasonable efforts to file in a timely manner all reports and other documents
required of it as a reporting company under the Exchange Act and will not take any action or file any document (whether or not permitted
by Exchange Act or the rules thereunder) to terminate or suspend its reporting and filing obligations under the Exchange Act.
Section 7.05 Transfer
Agent Instructions. For any time while there is a Registration Statement in effect for this transaction, the Company shall (if required
by the transfer agent for the Common Shares) cause legal counsel for the Company to deliver to the transfer agent for the Common Shares
(with a copy to the Investor) instructions to issue Common Shares to the Investor free of restrictive legends upon each Advance if the
delivery of such instructions are consistent with Applicable Law.
Section 7.06 Corporate
Existence. The Company will use commercially reasonable efforts to preserve and continue the corporate existence of the Company during
the Commitment Period.
Section 7.07 Notice
of Certain Events Affecting Registration; Suspension of Right to Make an Advance. The Company will promptly notify the Investor, and
confirm in writing, upon its becoming aware of the occurrence of any of the following events in respect of a Registration Statement or
related Prospectus (in each of which cases the information provided to Investor will be kept strictly confidential): (i) except for
requests made in connection with SEC investigations disclosed in the SEC Documents, receipt of any request for additional information
by the SEC or any other Federal or state governmental authority during the period of effectiveness of the Registration Statement or any
request for amendments or supplements to the Registration Statement or related Prospectus; (ii) the issuance by the SEC or any other
Federal governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose; (iii) receipt of any notification with respect to the suspension of the qualification or exemption from qualification
of any of the Common Shares for sale in any jurisdiction or the initiation or written threat of any proceeding for such purpose; (iv) the
happening of any event that makes any statement made in the Registration Statement or related Prospectus or any document incorporated
or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in the Registration
Statement, related Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement
of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading,
and that in the case of the related Prospectus, it will not contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading, or of the necessity to amend the Registration Statement or supplement a related Prospectus to comply with the Securities
Act or any other law; (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;
(vi) the Common Shares shall cease to be authorized for listing on the Principal Market; or (vii) 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. The Investor shall not
deliver to the Company any Purchase Notice, and the Company shall not sell any Shares pursuant to any pending Purchase Notice, during
the continuation of any of the foregoing events (each of the events described in the immediately preceding clauses (i) through (vii),
inclusive, a “Material Outside Event”).
Section 7.08 Market
Activities. The Company will not, directly or indirectly, take any action designed to cause or result in, or that constitutes or might
reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company under Regulation M
of the Exchange Act.
Section 7.09 Expenses.
The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated, will pay all expenses
incident to the performance of its obligations hereunder, including but not limited to (i) the preparation, printing and filing of
the Registration Statement and each amendment and supplement thereto, of each prospectus and of each amendment and supplement thereto;
(ii) the preparation, issuance and delivery of any Shares issued pursuant to this Agreement, (iii) all fees and disbursements
of the Company’s counsel, accountants and other advisors (but not, for the avoidance doubt, the fees and disbursements of Investor’s
counsel, accountants and other advisors), (iv) the qualification of the Shares under securities laws in accordance with the provisions
of this Agreement, including filing fees in connection therewith, (v) the printing and delivery of copies of any prospectus and any
amendments or supplements thereto, (vi) the fees and expenses incurred in connection with the listing or qualification of the Shares
for trading on the Principal Market, or (vii) filing fees of the SEC and the Principal Market.
Section 7.10 Current
Report. The Company shall, not later than 9:00 a.m., New York City time, on the first business day after the date of this Agreement,
file with the SEC a Current Report on Form 8-K disclosing the execution of this Agreement by the Company and the Investor (including
any exhibits thereto, the “Current Report”). The Company shall provide the Investor and its legal counsel a reasonable
opportunity to comment on a draft of the Current Report prior to filing the Current Report with the SEC and shall give due consideration
to all such comments. From and after the filing of the Current Report with the SEC, the Company shall have publicly disclosed all material,
nonpublic information delivered to the Investor (or the Investor’s representatives or agents) by the Company or any of its Subsidiaries,
or any of their respective officers, directors, employees, agents or representatives (if any) in connection with the transactions contemplated
by the Transaction Documents. The Company understands and confirms that the Investor will rely on the foregoing representations in effecting
resales of Common Shares under the Registration Statement or otherwise.
Section 7.11 Use
of Proceeds. Neither the Company nor any Subsidiary will, directly or indirectly, use the proceeds of the transactions contemplated
herein to repay any advances or loans to any executives, directors, or employees of the Company or any Subsidiary, or to make any payments
in respect of any related party obligations. Neither the Company nor any of its Subsidiaries will, directly or indirectly, use the proceeds
from the transactions contemplated herein, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture
partner or other Person (a) for the purpose of funding or facilitating any activities or business of or with any Person or in any
country or territory that, at the time of such funding or facilitation, is the subject of Sanctions or is a Sanctioned Country, or (b) in
any other manner that will result in a violation of Sanctions or Applicable Laws by any Person (including any Person participating in
the transactions contemplated by this Agreement, whether as underwriter, advisor, investor or otherwise).
Section 7.12 Compliance
with Laws. The Company shall comply in all material respects with all Applicable Laws.
Section 7.13 Selling
Restrictions. (i) Except as expressly set forth below, the Investor covenants that from and after the date hereof through and
including the Trading Day next following the expiration or termination of this Agreement as provided in Section 10.01 (the “Restricted
Period”), none of the Investor any of its officers, or any entity managed or controlled by the Investor (collectively, the “Restricted
Persons” and each of the foregoing is referred to herein as a “Restricted Person”) shall, directly or indirectly,
(i) engage in any “short sale” (as such term is defined in Rule 200 of Regulation SHO of the Exchange Act) of the
Common Shares or (ii) engage in any hedging transaction, which establishes a net short position with respect to the Common Shares,
with respect to each of clauses (i) and (ii) hereof, either for its own principal account or for the principal account of any
other Restricted Person. Notwithstanding the foregoing, it is expressly understood and agreed that nothing contained herein shall (without
implication that the contrary would otherwise be true) prohibit any Restricted Person during the Restricted Period from: (1) selling
“long” (as defined under Rule 200 promulgated under Regulation SHO) the Shares; or (2) selling a number of Common
Shares equal to the number of Shares that such Restricted Person is unconditionally obligated to purchase under a pending Purchase Notice
but has not yet received from the Company or the Transfer Agent pursuant to this Agreement (which such sales may be coded as “short
exempt” by broker-dealers executing sell orders on behalf of the Investor).
Section 7.14 Assignment.
Neither this Agreement nor any rights or obligations of the parties hereto may be assigned to any other Person.
Section 7.15 No
Variable Rate Transactions. Except with respect to the Investor (including the Prior PPA Agreement) or without the Investor’s
prior written consent, the Company shall not effect or enter into an agreement to effect any Variable Rate Transaction for so long as
any Pre-Paid Advance is outstanding, unless any outstanding Pre-Paid Advance will be fully repaid in connection with such transaction.
Section 7.16 Material
Non-Public Information. The Company covenants and agrees that, other than as expressly required by Section 7.01(d) hereof
it shall refrain from disclosing, and shall cause its officers, directors, employees and agents to refrain from disclosing, any material
non-public information (as determined under the Securities Act, the Exchange Act, or the rules and regulations of the SEC) to the
Investor without also disseminating such information to the public within a reasonable time period thereafter, unless prior to disclosure
of such information the Company identifies such information as being material non-public information and provides the Investor with the
opportunity to accept or refuse to accept such material non-public information for review.
Section 7.17 Reservation
of Common Shares; Shareholder Vote.
The Company covenants that it will at all times reserve and keep available out of its authorized and unissued shares of Common
Stock solely for the purpose of issuance under this Agreement, as herein provided, free from preemptive rights or any other actual contingent
purchase rights of persons other than the Investor, not less than such number of shares of the Common Stock as shall be issuable under
the Pre-Paid Advances. The Company covenants that all shares of Common Stock that shall be so issuable shall, upon issue, be duly and
validly authorized, issued and fully paid, nonassessable. If at any time that
there are outstanding Pre-Paid Advances and the Company has insufficient (i) authorized but unissued Common Shares or (ii) Common
Shares to issue pursuant to the Exchange Cap, in each case, in order to satisfy the outstanding Pre-Paid Advances in full, then the Company
shall, within 45 days of written notice from the Investor, call and hold a meeting of its shareholders (or take action by written consent)
for the purpose of, as applicable, (y) amending the Company’s charter to increase the number of authorized but unissued Common
Shares and/or (z) approving the issuance of Common Shares pursuant to Advances in excess of the maximum number of shares that are
permitted to be issued in accordance with the rules and regulations of the Principal Market. Any shareholder proposals submitted
in accordance with the forgoing shall seek authorization of any amount not less than two times the then-existing outstanding Pre-Paid
Advances calculated using the VWAP of the Common Shares at the time such proposals are submitted to the shareholders for a vote.
Article VIII.
Non-Exclusive Agreement
Notwithstanding anything contained
herein, this Agreement and the rights awarded to the Investor hereunder are non-exclusive, and the Company may, at any time throughout
the term of this Agreement and thereafter, issue and allot, or undertake to issue and allot, any shares and/or securities and/or convertible
notes, bonds, debentures, options to acquire shares or other securities and/or other facilities which may be converted into or replaced
by Common Shares or other securities of the Company, and to extend, renew and/or recycle any bonds and/or debentures, and/or grant any
rights with respect to its existing and/or future share capital.
Article IX.
Choice of Law/Jurisdiction
This Agreement, and any and all claims, proceedings
or causes of action relating to this Agreement or arising from this Agreement or the transactions contemplated herein, including, without
limitation, tort claims, statutory claims and contract claims, shall be interpreted, construed, governed and enforced under and solely
in accordance with the substantive and procedural laws of the State of New York, in each case as in effect from time to time and as the
same may be amended from time to time, and as applied to agreements performed wholly within the State of New York. The Parties further
agree that any action between them shall be heard in New York County, New York, and expressly consent to the jurisdiction and venue of
the Supreme Court of New York, sitting in New York County, New York and the United States District Court of the Southern District of New
York, sitting in New York, New York, for the adjudication of any civil action asserted pursuant to this Agreement.
EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN, THE PERFORMANCE THEREOF OR THE FINANCINGS CONTEMPLATED
HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY
OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS PARAGRAPH.
Article X. Termination
Section 10.01 Termination.
| (a) | Unless earlier terminated as provided hereunder, this Agreement shall terminate automatically upon the
date upon which (i) all amounts outstanding under the Pre-Paid Advance have been fully repaid, and (ii) all the Advance Shares
issued to the Investor hereunder have been sold. |
| (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 Purchase Notices, (ii) there are no outstanding Pre-Paid
Advances which have not be fully repaid, (iii) all the Advance Shares issued to the Investor hereunder have been sold, and (iv) 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 10.01 shall be deemed to release the Company or the Investor from any liability
for any breach under this Agreement, or to impair the rights of the Company and the Investor to compel specific performance by the other
party of its obligations under this Agreement. The indemnification provisions contained in Article VI shall survive termination hereunder. |
Article XI. Notices
Other than with respect to
Purchase Notices, which must be in writing and will be deemed delivered on the day set forth in Section 2.01, any notices, consents,
waivers, or other communications required or permitted to be given under the terms of this Agreement must be in writing and will be deemed
to have been delivered (i) upon receipt, when delivered personally; (ii) upon receipt, when sent by facsimile or e-mail if sent
on a Trading Day, or, if not sent on a Trading Day, on the immediately following Trading Day; (iii) 5 days after being sent by U.S.
certified mail, return receipt requested, (iv) 1 day after deposit with a nationally recognized overnight delivery service, in each
case properly addressed to the party to receive the same. The addresses and facsimile numbers for such communications (except for Purchase
Notices which shall be delivered in accordance with Exhibit A hereof) shall be:
If to the Company, to: |
|
Canoo Inc. |
|
|
|
15520 HWY 114, Suite 2C |
|
|
|
Justin, Texas 76247 |
|
|
|
Attention: [****]; [****] |
|
|
|
Email: [****]; [****] |
|
|
|
|
|
|
If to the Investor(s): |
|
YA II PN, Ltd. |
|
|
|
1012 Springfield Avenue |
|
|
|
Mountainside, NJ 07092 |
|
|
|
Attention: |
[****] |
|
|
|
|
[****] |
|
|
|
Telephone: |
[****] |
|
|
|
Email: |
[****] |
|
|
|
|
|
|
With a Copy (which shall not
constitute notice or delivery of
process) to: |
|
[****] 1012 Springfield Avenue Mountainside, NJ 07092 |
|
|
|
Telephone: |
[****] |
|
|
|
Email: |
[****] |
|
|
|
|
|
|
|
|
|
|
|
Either may change its information contained in
this Article XI by delivering notice to the other party as set forth herein.
Article XII. Miscellaneous
Section 12.01 Reimbursement
of Fees, Costs and Expenses. If an Event of Default has occurred, then the Company shall reimburse the Investor promptly for all reasonable
and documented out-of-pocket fees, costs and expenses, including, without limitation, reasonable and documented attorneys’ fees
and expenses incurred by the Investor in any action in connection with this Agreement, including, without limitation, those incurred:
(i) during any workout, attempted workout, and/or in connection with the rendering of legal advice as to the Investor’s rights,
remedies and obligations, (ii) collecting any sums which become due to the Investor in accordance with the terms of this Agreement,
(iii) defending or prosecuting any proceeding or any counterclaim to any proceeding or appeal; or (iv) the protection, preservation
or enforcement of any rights or remedies of the Investor.
Section 12.02 Counterparts.
This Agreement may be executed in identical counterparts, both which shall be considered one and the same agreement and shall become effective
when counterparts have been signed by each party and delivered to the other party. Facsimile or other electronically scanned and delivered
signatures, including by e-mail attachment, shall be deemed originals for all purposes of this Agreement.
Section 12.03 Entire
Agreement; Amendments. This Agreement supersedes all other prior oral or written agreements between the Investor, the Company, their
respective affiliates and persons acting on their behalf with respect to the matters discussed herein, and this Agreement contains the
entire understanding of the parties with respect to the matters covered herein and, except as specifically set forth herein, neither the
Company nor the Investor makes any representation, warranty, covenant or undertaking with respect to such matters. No provision of this
Agreement may be waived or amended other than by an instrument in writing signed by the parties to this Agreement.
Section 12.04 Reporting
Entity for the Common Shares. The reporting entity relied upon for the determination of the trading price or trading volume of the
Common Shares on any given Trading Day for the purposes of this Agreement shall be Bloomberg, L.P. or any successor thereto. The written
mutual consent of the Investor and the Company shall be required to employ any other reporting entity.
Section 12.05 Structuring
and Due Diligence Fee; Commitment Fee. Each of the parties shall pay its own fees and expenses (including the fees of any attorneys,
accountants, appraisers or others engaged by such party) in connection with this Agreement and the transactions contemplated hereby, except
that the Company shall pay to the Investor (i) a structuring fee in the amount of $10,000 and (ii) a commitment fee in the amount
of $750,000, which amounts shall be deducted by the Investor from the proceeds of the Pre-Paid Advance.
Section 12.06 Brokerage.
Each of the parties hereto represents that it has had no dealings in connection with this transaction with any finder or broker who will
demand payment of any fee or commission from the other party. The Company on the one hand, and the Investor, on the other hand, agree
to indemnify the other against and hold the other harmless from any and all liabilities to any person claiming brokerage commissions or
finder’s fees on account of services purported to have been rendered on behalf of the indemnifying party in connection with this
Agreement or the transactions contemplated hereby.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the parties hereto have caused this Pre-Paid Advance Agreement to be executed by the undersigned, thereunto
duly authorized, as of the date first set forth above.
|
COMPANY: |
|
CANOO INC. |
|
|
|
By: |
/s/ Greg Ethridge |
|
Name: |
Greg Ethridge |
|
Title: |
Chief Financial Officer |
|
|
|
|
INVESTOR: |
|
YA II PN, LTD. |
|
|
|
|
By: |
Yorkville Advisors Global, LP |
|
Its: |
Investment Manager |
|
|
|
|
|
By: |
Yorkville Advisors Global II, LLC |
|
|
Its: |
General Partner |
|
|
|
|
|
By: |
/s/ Matt Beckman |
|
|
Name: |
Matt Beckman |
|
|
Title: |
Member |
EXHIBIT A
FORM OF PURCHASE NOTICE
CANOO INC.
| Dated: | ______________ |
Investor Notice Number: ____ |
On behalf of YA II PN, LTD.
(the “Investor”), the undersigned hereby certifies, with respect to the purchase of Common Shares of CANOO INC. (the
“Company”) issuable in connection with this Purchase Notice, delivered pursuant to that certain Pre-Paid Advance Agreement,
dated as of [__________] as amended and supplemented from time to time (the “Agreement”), as follows:
1. |
Advance requested in the Purchase Notice |
|
2. |
Purchase Price per share |
|
3. |
Number of Shares due to Investor |
|
The
aggregate purchase price of the Shares to be paid by Investor pursuant to this Purchase Notice shall be offset against amounts outstanding
under the Pre-Paid Advance made pursuant to the Request dated [__________] (first towards accrued and unpaid interest, and then towards
outstanding principal) as follows:
1. |
Amount offset against accrued and unpaid Interest |
$[____________] |
2. |
Amount offset against principal |
$[____________] |
3. |
Total amount of Pre-Paid Advance outstanding following the Advance |
$[____________] |
Please issue the number of Shares due to the Investor to the account
of the Investor as follows:
Investor’s
DTC participant #:
ACCOUNT
NAME:
ACCOUNT
NUMBER:
ADDRESS:
CITY:
COUNTRY:
Contact
person:
Number
and/or email:
Please
deliver this Purchase Notice by email to:
|
Email: [_______________] |
|
Attention: [_____________] |
|
Confirmation
Telephone Number: [__________]. |
The undersigned has executed this Purchase Notice
as of the date first set forth above.
YA II PN, Ltd. |
|
|
|
By: |
Yorkville Advisors Global, LP |
|
Its: |
Investment Manager |
|
|
|
|
By: |
Yorkville Advisors Global II, LLC |
|
|
Its: |
General Partner |
|
|
|
|
By: |
|
|
|
Name: |
|
|
|
Title: |
|
|
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