Exhibit 10.1


 


Execution Version


 


  


STANDBY EQUITY PURCHASE AGREEMENT


 


THIS STANDBY EQUITY PURCHASE
AGREEMENT (this “Agreement”) dated as of November 22, 2022 is made by and between YA II PN, LTD., a Cayman
Islands exempt limited partnership (the “Investor”), and Phoenix Motor 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 Company shall have the right to issue and sell to the
Investor, from time to time as provided herein, and the Investor shall purchase from the Company, up to $10 million of the Company’s
shares of common stock, par value $0.0004 per share (the “Common Shares”); and


 


WHEREAS, the Common
Shares are listed for trading on the Nasdaq Stock Market LLC under the symbol “PEV;” 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     
“Additional Shares” shall have the meaning set forth in Section 2.01(d)(ii).


 


Section 1.02     
“Adjusted Advance Amount” shall have the meaning set forth in Section 2.01(d)(i).


 


Section 1.03     
“Advance” shall mean any issuance and sale of Advance Shares from the Company to the Investor pursuant to Article
II hereof.


 


Section 1.04     
“Advance Date” shall mean the 1st Trading Day after expiration of the applicable Pricing Period for
each Advance.


 


Section 1.05     
“Advance Notice” shall mean a written notice in the form of Exhibit A attached hereto to the Investor executed
by an officer of the Company and setting forth the number of Advance Shares that the Company desires to issue and sell to the Investor.


 






     


     


    

 


 


Section 1.06     
“Advance Notice Date” shall
mean each date the Company is deemed to have delivered (in accordance with Section 2.01(b) of this Agreement) an Advance Notice to the
Investor, subject to the terms of this Agreement.


 


Section 1.07     
“Advance Shares” shall mean the Common Shares that the Company shall issue and sell to the Investor.


 


Section 1.08     
“Affiliate” shall have the meaning set forth in Section 3.07.


 


Section 1.09     
“Agreement” shall have the meaning set forth in the preamble of this Agreement.


 


Section 1.10     
“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 1.11     
“Black Out Period” shall have the meaning set forth in Section 6.01(e).


 


Section 1.12     
“Closing” shall have the meaning set forth in Section 2.02.


 


Section 1.13     
“Commitment Amount” shall mean $10,000,000 of Common Shares, provided that, 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
would exceed 19.9% of the outstanding Common Shares as of the date of this Agreement (the “Exchange Cap”) provided
further that, the Exchange Cap will not apply if (a) the Company’s stockholders have approved issuances in excess of the Exchange
Cap in accordance with the rules of the Principal Market or (b) the average price of all applicable sales of Common Shares hereunder (including
any sales covered by an Advance Notice that has been delivered prior to the determination of whether this clause (b) applies) equals or
exceeds $1.599 per share (the “Principal Market Minimum Price”)(which represents the lower of (i)
the Nasdaq Official Closing Price (as reflected on Nasdaq.com) immediately preceding the date of this Agreement; or (ii) the average Nasdaq
Official Closing Price for the five Trading Days immediately preceding the date of this Agreement .


 


Section 1.14     
“Commitment Shares” shall have the meaning set forth in Section 12.04.


 


Section 1.15     
“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 1.16     
“Common Shares” shall have the meaning set forth in the recitals of this Agreement.


 


Section 1.17     
“Company” shall have the meaning set forth in the preamble of this Agreement.


 






     


     


    

 


Section 1.18     
“Company Indemnitees” shall
have the meaning set forth in Section 5.02.


 


Section 1.19     
“Condition Satisfaction Date” shall have the meaning set forth in Section 7.01.


 


Section 1.20     
“Daily Traded Volume” shall mean [the daily trading volume of the Company’s Common Shares on the Principal
Market during regular trading hours as reported by Bloomberg L.P.


 


Section 1.21     
“Environmental Laws” shall have the meaning set forth in Section 4.13.


 


Section 1.22     
“Exchange Act” shall mean the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.


 


Section 1.23     
“Exchange Cap” shall have the meaning set forth in Section 1.13.


 


Section 1.24     
“Excluded Day” shall have the meaning set forth in Section 2.01(d)(i).


 


Section 1.25     
“Hazardous Materials” shall have the meaning set forth in Section 4.13.


 


Section 1.26     
“Indemnified Liabilities” shall have the meaning set forth in Section 5.01.


 


Section 1.27     
“Investor” shall have the meaning set forth in the preamble of this Agreement.


 


Section 1.28     
“Investor Indemnitees” shall have the meaning set forth in Section 5.01.


 


Section 1.29     
“Market Price” shall mean the lowest of the VWAPs during each Trading Day of the relevant Pricing Period, other
than the daily VWAP on any Excluded Days.


 


Section 1.30     
“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 1.31     
“Material Outside Event” shall have the meaning set forth in Section 6.08.


 


Section 1.32     
“Maximum Advance Amount” in respect of each Advance Notice means an amount equal to one hundred percent (100%)
of the aggregate Daily Traded Volume of Common Shares on the Company’s Principal Market for the five (5) Trading Day immediately
preceding an Advance Notice.


 


Section 1.33     
“Minimum Acceptable Price” or “MAP” shall mean the minimum price notified by the Company
to the Investor in each Advance Notice, if applicable.


 


Section 1.34     
“OFAC” shall have the meaning set forth in Section 4.30.


 


Section 1.35     
“Ownership Limitation” shall have the meaning set forth in Section 2.01(c)(i).


 






     


     


    

 


 


Section 1.36     
“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 1.37     
“Plan of Distribution” shall mean the section of a Registration Statement disclosing the plan of distribution
of the Shares.


 


Section 1.38     
“Pricing Period” shall mean the three (3) consecutive Trading Days commencing on the Advance Notice Date.


 


Section 1.39     
“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 to the extent such other market or exchange is the principal trading market or exchange for the Common Shares.


 


Section 1.40     
“Prospectus” shall mean any prospectus (including, without limitation, all amendments and supplements thereto)
used by the Company in connection with a Registration Statement.


 


Section 1.41     
“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
6.01 hereof.


 


Section 1.42     
“Purchase Price” shall mean the price per Advance Share obtained by multiplying the Market Price by 93%.


 


Section 1.43     
“Registrable Securities” shall mean (i) the Shares, and (ii) any securities issued or issuable with respect
to any of the foregoing by way of exchange, stock dividend or stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization or otherwise.


 


Section 1.44     
“Registration Limitation” shall have the meaning set forth in Section 2.01(c)(ii).


 


Section 1.45     
“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 Registrable Securities under the Securities Act, which registration statement
provides for the resale from time to time of the Shares as provided herein.


 


Section 1.46     
“Regulation D” shall mean the provisions of Regulation D promulgated under the Securities Act.


 


Section 1.47     
“Sanctions” shall have the meaning set forth in Section 4.30.


 


Section 1.48     
 “Sanctioned Countries” shall have the meaning set forth in Section 4.30.


 






     


     


    

 


 


Section 1.49     
“SEC” shall mean the U.S. Securities
and Exchange Commission.


 


Section 1.50     
“SEC Documents” shall have the meaning set forth in Section 4.05.


 


Section 1.51     
“Securities Act” shall have the meaning set forth in the recitals of this Agreement.


 


Section 1.52     
“Settlement Document” shall have the meaning set forth in Section 2.02(a).


 


Section 1.53     
“Shares” shall mean the Commitment Shares and the Common Shares to be issued from time to time hereunder pursuant
to an Advance.


 


Section 1.54     
“Subsidiaries” shall mean any Person in which the Company, directly or indirectly, (x) owns a majority of the
outstanding capital stock or holds a majority of the 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 the foregoing are collectively referred to herein as “Subsidiaries.”


 


Section 1.55     
“Trading Day” shall mean any day during which the Principal Market shall be open for business.


 


Section 1.56     
“Transaction Documents” shall have the meaning set forth in Section 4.02.


 


Section 1.57     
“VWAP” shall 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. Advances


 


Section 2.01     
Advances; Mechanics. Upon the terms and subject to the conditions of this Agreement, during the Commitment Period, the Company,
at its sole discretion, shall have the right, but not the obligation, to issue and sell to the Investor, and the Investor shall purchase
from the Company, Advance Shares by the delivery to the Investor of Advance Notices on the following terms:


 


		(a)	Advance Notice. At any time during the Commitment Period the Company may require the Investor to
purchase Shares by delivering an Advance Notice to the Investor, subject to the satisfaction or waiver by the Investor of the conditions
set forth in Section 7.01, and in accordance with the following provisions:



 


		(i)	The Company shall, in its sole discretion, select the number of Advance Shares, not to exceed the Maximum
Advance Amount, it desires to issue and sell to the Investor in each Advance Notice and the time it desires to deliver each Advance Notice.



 


		(ii)	There shall be no mandatory minimum Advances and no non-usages fee for not utilizing the Commitment Amount
or any part thereof.



 






     


     


    

 








		(b)	Date of Delivery of Advance Notice. Advance Notices shall be delivered in accordance with the instructions
set forth on the bottom of Exhibit A. An Advance Notice shall be deemed delivered on (i) the day it is received by the Investor
if such notice is received by email prior on or before 8:30 a.m. Eastern Time (or later if waived by the Investor in its sole discretion),
or (ii) the immediately succeeding day if it is received by email after 8:30 a.m. Eastern Time, in each case in
accordance with the instructions set forth on the bottom of Exhibit A.



 


		(c)	Advance Limitations. Regardless of the number of Advance Shares requested by the Company in the
Advance Notice, the final number of Shares to be issued and sold pursuant to an Advance Notice shall be reduced (if at all) in accordance
with each of the following limitations:



 


		(i)	Ownership Limitation; Commitment Amount. Notwithstanding anything to the contrary contained in
this Agreement, the Investor shall not be obligated to purchase or acquire, and shall not purchase or acquire, any Common Shares under
this Agreement which, when aggregated with all other 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), would result in the beneficial ownership by the
Investor and its affiliates (on an aggregated basis) to exceed 9.99% of the 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. In connection with each Advance Notice delivered by the Company, any portion of the number of Advance Shares
that would (i) cause the Investor to exceed the Ownership Limitation or (ii) cause the aggregate number of Shares issued and sold to the
Investor hereunder to exceed the Commitment Amount shall automatically be withdrawn with no further action required by the Company, and
such Advance Notice shall be deemed automatically modified to reduce the number of Advance Shares requested by an amount equal to such
withdrawn portion; provided that in the event of any such automatic withdrawal and automatic modification, Investor will promptly notify
the Company of such event.



 


		(ii)	Registration Limitation and Exchange Cap. In no event shall an Advance exceed the amount registered
under the Registration Statement then in effect (the “Registration Limitation”) or the Exchange Cap, to the extent
applicable. In connection with each Advance Notice, any portion of an Advance that would exceed the Registration Limitation or the Exchange
Cap shall automatically be withdrawn with no further action required by the Company and such Advance Notice shall be deemed automatically
modified to reduce the aggregate amount of the requested Advance by an amount equal to such withdrawn portion in respect of each Advance
Notice; provided that in the event of any such
automatic withdrawal and automatic modification, Investor will promptly notify the Company of such event.



 






     


     


    







 


		(d)	Minimum Acceptable Price.



 


(i) With respect
to each Advance Notice, the Company may notify the Investor of the MAP with respect to such Advance by indicating a MAP on such Advance
Notice. If no MAP is specified in an Advance Notice, then no MAP shall be in effect in connection with such Advance. Each Trading Day
during a Pricing Period for which (A) with respect to each Advance Notice with a MAP, the VWAP of the Common Shares is below the MAP in
effect with respect to such Advance Notice, or (B) there is no VWAP (each such day, an “Excluded Day”), shall result
in an automatic reduction to the number of Advance Shares set forth in such Advance Notice by 30% (the resulting amount of each Advance
being the “Adjusted Advance Amount”), and each Excluded Day shall be excluded from the Pricing Period for purposes
of determining the Market Price.


 


(ii) The total Shares
in respect of each Advance (after reductions have been made to arrive at the Adjusted Advance Amount) shall be automatically increased
by such number of Common Shares (the “Additional Shares”) equal to the number of Common Shares sold by the Investor
on such Excluded Day, if any, and the price paid per share for each Additional Share shall be equal to the MAP in effect with respect
to such Advance Notice (without any further discount), provided that this increase shall not cause the total Advance to exceed the amount
set forth in the original Advance Notice or any limitations set forth in Section 2.01(c).


 


		(e)	Unconditional Contract. Notwithstanding any other provision in this Agreement, the Company and
the Investor acknowledge and agree that upon the Investor’s receipt of a valid Advance Notice the parties shall be deemed to have
entered into an unconditional contract binding on both parties for the purchase and sale of Advance Shares pursuant to such Advance Notice
in accordance with the terms of this Agreement and (i) subject to Applicable Laws and (ii) subject to Section 3.08 (Trading Activities),
the Investor may sell Common Shares during the Pricing Period.



 


Section 2.02     
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 Advance Date in accordance with the procedures set forth below. The parties acknowledge
that the Purchase Price is not known at the time the Advance Notice is delivered (at which time the Investor is irrevocably bound) but
shall be determined on each Closing based on the daily prices of the Common Shares that are the inputs to the determination of the Purchase
Price as set forth further below. In connection with each Closing, the Company and the Investor shall fulfill each of its obligations
as set forth below:


 


		(a)	On each Advance Date, the Investor shall deliver to the Company a written document, in the form attached
hereto as Exhibit B (each a “Settlement Document”), setting forth the final number of Shares to be purchased by the
Investor (taking into account any adjustments pursuant to Section 2.01), the Market Price, the Purchase Price, the aggregate proceeds
to be paid by the Investor to the Company, and a report by Bloomberg, L.P. indicating the VWAP for each of the
Trading Days during the Pricing Period (or, if not reported on Bloomberg, L.P., another reporting service reasonably agreed to by the
parties), in each case in accordance with the terms and conditions of this Agreement.



 






     


     


    

 


		(b)	Promptly after receipt of the Settlement Document with respect to each Advance (and, in any event, not
later than one Trading Day after such receipt), the Company will, or will cause its transfer agent to, electronically transfer such number
of Advance Shares to be purchased by the Investor (as set forth in the Settlement Document) by crediting the Investor’s account
or its designee’s account at the Depository Trust Company through its Deposit Withdrawal at Custodian System or by such other means
of delivery as may be mutually agreed upon by the parties hereto, and transmit notification to the Investor that such share transfer has
been requested. 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 Settlement Document) in cash in immediately available funds to an account designated by the Company in writing
and transmit notification to the Company that such funds transfer has been requested. No fractional shares shall be issued, and any fractional
amounts shall be rounded to the next higher whole number of shares. To facilitate the transfer of the Common Shares by the Investor, the
Common Shares will not bear any restrictive legends so long as there is an effective Registration Statement covering the resale 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 pursuant to the Plan of Distribution set forth in the Prospectus included in the Registration Statement and otherwise
in compliance with the requirements of the Securities Act (including any applicable prospectus delivery requirements) or pursuant to an
available exemption).



 


		(c)	On or prior to the Advance Date, each of the Company and the Investor shall deliver to the other all documents,
instruments and writings expressly required to be delivered by either of them pursuant to this Agreement in order to implement and effect
the transactions contemplated herein.



 


		(d)	Notwithstanding anything to the contrary in this Agreement, if on any day during the Pricing Period (i)
the Company notifies Investor that a Material Outside Event has occurred, or (ii) the Company notifies the Investor of a Black Out Period,
the parties agree that the pending Advance shall end and the final number of Advance Shares to be purchased by the Investor at the Closing
for such Advance shall be equal to the number of Common Shares sold by the Investor during the applicable Pricing Period prior to the
notification from the Company of a Material Outside Event or Black Out Period.



 


Section 2.03     
Hardship.


 


		(a)	In the event the Investor sells Common Shares of the Company after receipt of an Advance Notice and the
Company fails to perform its obligations as mandated in Section 2.02, the Company agrees that in addition to and in no way limiting the
rights and obligations set forth in Article V hereto and in addition to any other remedy to which the Investor is entitled at law or in
equity, including, without limitation, specific performance, it will hold the Investor harmless against any loss, claim, damage, or expense
(including reasonable legal fees and expenses), as incurred,
arising out of or in connection with such default by the Company and acknowledges that irreparable damage 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.



 



     


     


    

 





		(b)	In the event the Company provides an Advance Notice and the Investor fails to perform its obligations
as mandated in Section 2.02, the Investor agrees that in addition to and in no way limiting the rights and obligations set forth in Article
V hereto and in addition to any other remedy to which the Company is entitled at law or in equity, including, without limitation, specific
performance, it will hold the Company harmless against any loss, claim, damage, or expense (including reasonable legal fees and expenses),
as incurred, arising out of or in connection with such default by the Investor and acknowledges that irreparable damage may occur in the
event of any such default. It is accordingly agreed that the Company shall be entitled to an injunction or injunctions to prevent such
breaches of this Agreement and to specifically enforce (subject to the Securities Act and other rules of the Principal Market), without
the posting of a bond or other security, the terms and provisions of this Agreement.



 


Section 2.04     
Completion of Resale Pursuant to the Registration Statement. After the Investor has purchased the full Commitment Amount
and has completed the subsequent resale of the full Commitment Amount pursuant to the Registration Statement, Investor will notify the
Company that all subsequent resales are completed and the Company will be under no further obligation to maintain the effectiveness of
the Registration Statement.


 


Article III. Representations
and Warranties of Investor


 


The Investor represents and
warrants to the Company, as of the date hereof, as of each Advance Notice Date and each Advance Date that:


 


Section 3.01     
Organization and Authorization. The Investor is duly organized, validly existing and in good standing under the laws of
the Cayman Islands and has the requisite corporate power and authority to enter into and perform its obligations under this Agreement
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 3.02     
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 3.03     
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 3.04     
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, except pursuant to sales registered under or
exempt from the registration requirements of the Securities Act; provided, however, that by making the representations herein,
the Investor does not agree, or make any representation or warranty, to hold any of the 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 acknowledges
that it will be disclosed as an “underwriter” and a “selling stockholder” in each Registration Statement and in
any prospectus contained therein.


 


Section 3.05     
Accredited Investor. The Investor is an “Accredited Investor” as that term is defined in Rule 501(a)(3)
of Regulation D.


 


Section 3.06     
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 3.07     
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 3.08     
No 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 3.09     
General Solicitation. Neither the Investor, nor any of its
affiliates, nor any person acting on its or their behalf, has engaged or will engage in any form of general solicitation or general advertising
(within the meaning of Regulation D) in connection with any offer or sale of the Common Shares by the Investor.


 


Article IV. Representations
and Warranties of the Company


 


Except as set forth in the
SEC Documents, the Company represents and warrants to the Investor, as of the date hereof, each Advance Notice Date and each Advance Date
(other than representations and warranties which address matters only as of
a certain date, which shall be true and correct as written as of such certain date), that:


 


Section 4.01     
Organization and Qualification. Each of the Company and its Subsidiaries (as defined below) is an entity duly organized
and validly existing under the laws of 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.


 


Section 4.02     
Authorization, Enforcement, Compliance with Other Instruments. The Company has the requisite corporate power and authority
to enter into and perform its obligations under this Agreement and the other Transaction Documents and to issue the Shares in accordance
with the terms hereof and thereof. The execution and delivery by the Company of this Agreement and the other Transaction Documents, and
the consummation by the Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the
Common Shares) have been or (with respect to consummation) will be duly authorized by the Company’s board of directors and no further
consent or authorization will be required by the Company, its board of directors or its shareholders. This Agreement and the other Transaction
Documents to which it is a party have been (or, when executed and delivered, will be) duly executed and delivered by the Company and,
assuming the execution and delivery thereof and acceptance by the Investor, constitute (or, when duly executed and delivered, will be)
the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except
as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation or other laws relating to, or affecting generally, the enforcement of applicable
creditors’ rights and remedies and except as rights to indemnification and to contribution may be limited by federal or state securities
law. “Transaction Documents” means, collectively, this Agreement and each of the other agreements and instruments entered
into or delivered by any of the parties hereto in connection with the transactions contemplated hereby and thereby, as may be amended
from time to time.


 



     


     


    
 


Section 4.03     
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 Advance 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, and will be registered pursuant to Section 12 of the Exchange Act. The Shares, when issued, will conform to the description thereof
set forth in or incorporated into the Prospectus.


 


Section 4.04     
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 4.05     
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 delivered or 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 contained any untrue statement
of a material fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.


 


     


     


    

 


Section 4.06     
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 4.07     
Registration Statement and Prospectus. The Company and the transactions contemplated by this Agreement meet the requirements
for and comply with the conditions for the use of Form S-1 under the Securities Act. Each Registration Statement and the offer and sale
of Shares as contemplated hereby will meet the requirements of Rule 415 under the Securities Act and 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 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 the Prospectus and any Issuer Free Writing Prospectus (as defined below) to which the Investor has consented.


 






     


     


    

 



Section 4.08     
No 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 Advance Date, the Registration Statement,
and the 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 4.09     
Conformity with Securities Act and Exchange Act. Each Registration Statement, each Prospectus, [any Issuer Free Writing
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 4.10     
Equity Capitalization. As of the date hereof, the authorized capital of the Company consists of 500,000,000 shares of capital
stock, of which 450,000,000 shares are designated common stock, par value $0.0004 per share, and 50,000,000 shares are undesignated preferred
stock. As of the date hereof, the Company had 20,185,625 shares of common stock outstanding and no shares of preferred stock outstanding.


 


The Common Shares are registered
pursuant to Section 12(b) of the Exchange Act and is currently listed on a Principal Market under the trading symbol “PEV.”
The Company has taken no action designed to, or 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 4.11     
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 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 4.12     
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 4.13     
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 4.14     
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 4.15     
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 4.16     
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 4.17     
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 4.18     
Absence of Litigation. There is no action, suit, proceeding, inquiry or investigation before or by any court, public board,
government agency, self-regulatory organization or body pending against or affecting the Company, the Common Shares or any of the Company’s
Subsidiaries, wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.


 


Section 4.19     
Subsidiaries. The Company does not presently own or control, directly or indirectly, any interest in any other corporation,
partnership, association or other business entity.


 


Section 4.20     
Tax Status. Each of the Company and its Subsidiaries (i) has timely made or filed all foreign, federal and state income
and all other tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has timely paid all taxes
and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports and
declarations, except those being contested in good faith and (iii) has set aside on its books provision reasonably adequate for the payment
of all taxes for periods subsequent to the periods to which such returns, reports or declarations apply. The Company has not received
written notification any unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers
of the Company and its Subsidiaries know of no basis for any such claim where failure to pay would cause a Material Adverse Effect.


 


Section 4.21     
Certain Transactions. Except 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 4.22     
Rights of First Refusal. The Company is not obligated
to offer the Common Shares offered hereunder on a right of first refusal basis or otherwise to any third parties including, but not limited
to, current or former shareholders of the Company, underwriters, brokers, agents or other third parties.


 


Section 4.23     
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 4.24     
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 is aware and acknowledges that it shall not be able to request Advances under this Agreement if the
Registration Statement is not effective or if any issuances of Common Shares pursuant to any Advances would violate any rules of the Principal
Market. 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. Furthermore notwithstanding Section 3.08 the Company acknowledges
and agrees that (a) the Investor may engage in the trading of options with respect to the Common Shares, (b) upon receipt of an Advance
Notice the Investor has the right to sell (i) the Shares to be issued to the Investor pursuant to the Advance Notice prior
to receiving such Shares, or (ii) other Common Shares sold by the Company to Investor pursuant to this Agreement and which the Investor
has continuously held as a long position. 


 


Section 4.25     
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 4.26     
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 4.27     
Operations. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with
and  neither the Company nor the Subsidiaries, nor 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 Law; and no action, suit or proceeding by or before any governmental authority involving
the Company or any of its Subsidiaries with respect to Applicable Laws is pending or, to the knowledge of the Company, threatened.


 






     


     


    

 


Section 4.28     
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 has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.


 


Section 4.29     
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, 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 materially adversely affect the business of the Company or the business or legal environment under which the Company operates.


 


Section 4.30     
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, Her 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 region, the Donetsk People’s Republic and Luhansk People’s
Republic in Ukraine, Cuba, Iran, North Korea, 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.


 


Article V. Indemnification


 


The Investor and the Company
represent to the other the following with respect to itself:


 


Section 5.01     
Indemnification by the Company. In consideration of the Investor’s execution and delivery of this Agreement and acquiring
the Shares hereunder, 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 5.02     
Indemnification by the Investor. In consideration of the Company’s execution and delivery of this Agreement, and in
addition to all of the Investor’s other obligations under this Agreement, the Investor shall defend, protect, indemnify and hold
harmless the Company and all of its officers, directors, shareholders, employees and agents (including, without limitation, those retained
in connection with the transactions contemplated by this Agreement) and each person who controls the Investor within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Company Indemnitees”) from and against
any and all Indemnified Liabilities incurred by the Company Indemnitees or any of them as a result of, or arising out of, or relating
to (a) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement for the registration
of the Shares as originally filed or in any amendment thereof, or in any related prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading; provided, however, that the Investor will only be liable for
written information relating to the Investor furnished to the Company by or on behalf of the Investor specifically for inclusion in the
documents referred to in the foregoing indemnity, and will not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to the Investor by or on behalf of the Company specifically
for inclusion therein; (b) any misrepresentation or breach of any
representation or warranty made by the Investor
in this Agreement or any instrument or document contemplated hereby or thereby executed by the Investor; or (c) any breach of any covenant,
agreement or obligation of the Investor 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 5.03     
Notice of Claim. Promptly after receipt by an Investor Indemnitee or Company Indemnitee of notice of the commencement of
any action or proceeding (including any governmental action or proceeding) involving an Indemnified Liability, such Investor Indemnitee
or Company Indemnitee, as applicable, shall, if a claim for an Indemnified Liability in respect thereof is to be made against any indemnifying
party under this Article V, deliver to the indemnifying party a written notice of the commencement thereof; but the failure to so notify
the indemnifying party will not relieve it of liability under this Article V except to the extent the indemnifying party is prejudiced
by such failure. The indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires,
jointly with any other indemnifying party similarly noticed, to assume control of the defense thereof with counsel mutually reasonably
satisfactory to the indemnifying party and the Investor Indemnitee or Company Indemnitee, as the case may be; provided, however, that
an Investor Indemnitee or Company Indemnitee shall have the right to retain its own counsel with the actual and reasonable third party
fees and expenses of not more than one counsel for such Investor Indemnitee or Company Indemnitee to be paid by the indemnifying party,
if, in the reasonable opinion of counsel retained by the indemnifying party, the representation by such counsel of the Investor Indemnitee
or Company Indemnitee and the indemnifying party would be inappropriate due to actual or potential differing interests between such Investor
Indemnitee or Company Indemnitee and any other party represented by such counsel in such proceeding. The Investor Indemnitee or Company
Indemnitee shall cooperate fully with the indemnifying party in connection with any negotiation or defense of any such action or claim
by the indemnifying party and shall furnish to the indemnifying party all information reasonably available to the Investor Indemnitee
or Company Indemnitee which relates to such action or claim. The indemnifying party shall keep the Investor Indemnitee or Company Indemnitee
reasonably apprised as to the status of the defense or any settlement negotiations with respect thereto. No indemnifying party shall be
liable for any settlement of any action, claim or proceeding effected without its prior written consent, provided, however, that the indemnifying
party shall not unreasonably withhold, delay or condition its consent. No indemnifying party shall, without the prior written consent
of the Investor Indemnitee or Company Indemnitee, consent to entry of any judgment or enter into any settlement or other compromise which
does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Investor Indemnitee or Company Indemnitee
of a release from all liability in respect to such claim or litigation. Following indemnification as provided for hereunder, the indemnifying
party shall be subrogated to all rights of the Investor Indemnitee or Company Indemnitee with respect to all third parties, firms or corporations
relating to the matter for which indemnification has been made. The indemnification required by this Article V shall be made by periodic
payments of the amount thereof during the course of the investigation or defense, as and when bills are received and payment therefor
is due.


 



     


     


    

 


Section 5.04     
Remedies. The remedies provided for in this Article
V are not exclusive and shall not limit any right or remedy which may be available to any indemnified person at law or equity. The
obligations of the parties to indemnify or
make contribution under this Article V shall survive expiration or termination of this Agreement.


 


Section 5.05     
Limitation of liability. Notwithstanding the foregoing, no party shall be entitled to recover from the other party for punitive,
indirect, incidental or consequential damages.


 


Article VI.

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:


 


Section 6.01     
Registration Statement.


 


		(a)	Filing of a Registration Statement. The Company shall prepare and file with the SEC a Registration
Statement, or multiple Registration Statements for the resale by the Investor of the Registrable Securities. The Company in its sole discretion
may choose when to file such Registration Statements; provided, however, that the Company shall not have the ability to request
any Advances until the effectiveness of a Registration Statement.



 


		(b)	Maintaining a Registration Statement. The Company shall maintain the effectiveness of any Registration
Statement that has been declared effective at all times during the Commitment Period, provided, however, that if the Company has received
notification pursuant to Section 2.04 that the Investor has completed resales pursuant to the Registration Statement for the full Commitment
Amount, then the Company shall be under no further obligation to maintain the effectiveness of the Registration Statement. Notwithstanding
anything to the contrary contained in this Agreement, the Company shall ensure that, when filed, each Registration Statement (including,
without limitation, all amendments and supplements thereto) and the prospectus (including, without limitation, all amendments and supplements
thereto) used in connection with such Registration Statement shall not contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein, or necessary to make the statements therein (in the case of prospectuses, in the light
of the circumstances in which they were made) not misleading. During the Commitment Period, the Company shall notify the Investor promptly
if (i) the Registration Statement shall cease to be effective under the Securities Act, (ii) the Common Shares shall cease to be authorized
for listing on the Principal Market, (iii) the Common Shares cease to be registered under Section 12(b) or Section 12(g) of the Exchange
Act or (iv) the Company fails to file in a timely manner all reports and other documents required of it as a reporting company under the
Exchange Act.



 


		(c)	Filing Procedures. 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, (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 or any of its Subsidiaries), (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 Registrable Securities; (ii) cause the related prospectus
to be amended or supplemented by any required prospectus supplement (subject to the terms of this Agreement), and as so supplemented or
amended to be filed pursuant to Rule 424 promulgated under the Securities Act; (iii) provide the Investor copies of all correspondence
from and to the SEC relating to a Registration Statement (provided that the Company may excise any information contained therein which
would constitute material non-public information, and (iv) comply with the provisions of the Securities Act with respect to the disposition
of all Common Shares of the Company covered by such Registration Statement until such time as all of such Common Shares shall have been
disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in such Registration
Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement
(including pursuant to this Section 6.01(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, 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 6.01(e), (y) subject itself to general taxation in any such jurisdiction, or (z) file a general consent to service
of process in any such jurisdiction. The Company shall promptly notify 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 6.02     
Suspension of Registration Statement.


 


		(a)	Establishment of a Black Out Period. During the Commitment Period, the Company from time to time
may suspend the use of the Registration Statement by written notice to the Investor in the event that the Company determines in its sole
discretion in good faith that such suspension is necessary to (A) delay the disclosure of material nonpublic information concerning the
Company, the disclosure of which at the time is not, in the good faith opinion of the Company, in the best interests of the Company or
(B) amend or supplement the Registration Statement or Prospectus so that such Registration Statement or Prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading (a “Black Out Period”).



 


		(b)	No Sales by Investor During the Black Out Period. During such Black Out Period, the Investor agrees
not to sell any Common Shares of the Company pursuant to such Registration Statement, but may sell shares pursuant to an exemption from
registration, if available, subject to the Investor’s compliance with Applicable Laws.



 


		(c)	Limitations on the Black Out Period. The Company shall not impose any Black Out Period that is
longer than 30 days or in a manner that is more restrictive (including, without limitation, as to duration) than the comparable restrictions
that the Company may impose on transfers of the Company’s equity securities by its directors and senior executive officers. In addition,
the Company shall not deliver any Advance Notice during any Black Out Period. If the public announcement of such material, nonpublic information
is made during a Black Out Period, the Black Out Period shall terminate immediately after such announcement, and the Company shall
immediately notify the Investor of the termination of the Black Out Period.



 






     


     


    

  


Section 6.03     
Listing of Common Shares. As of each Advance Date, the Shares to be sold by the Company from time to time hereunder will
have been registered under Section 12(b) of the Exchange Act and approved for listing on the Principal Market, subject to official notice
of issuance.


 


Section 6.04     
The Company shall not, without the prior written consent of the Investor, (i) issue or sell shares of Common Stock or Preferred
Stock without consideration or for a consideration per share less than the bid price of the Common Stock determined immediately prior
to its issuance, (ii) issue any preferred stock, warrant, option, right, contract, call, or other security or instrument granting the
holder thereof the right to acquire Common Stock without consideration or for a consideration less than such Common Stock’s bid
price or volume weighted average price, as quoted by Bloomberg, LP and determined immediately prior to its issuance, or (iii) enter into
any agreement to issue or sell, any Common Stock, Preferred Stock, options, warrants or convertible securities that are issuable pursuant
to such agreement or convertible into or exchangeable or exercisable for shares of Common Stock at a price which varies or may vary with
the bid price or volume weighted average price of the shares of Common Stock, as quoted by Bloomberg, LP.


 


Section 6.05     
Opinion of Counsel. Prior to the date of the delivery by the Company of the first Advance Notice, the Investor shall have
received an opinion letter from counsel to the Company in form and substance reasonably satisfactory to the Investor.


 


Section 6.06     
Exchange Act Registration. The Company will file in a timely manner all reports and other documents required of it as a
reporting company under the Exchange Act and will not take any action or file any document (whether or not permitted by Exchange Act or
the rules thereunder) to terminate or suspend its reporting and filing obligations under the Exchange Act.


 


Section 6.07     
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 6.08     
Corporate Existence. The Company will use commercially reasonable efforts to preserve and continue the corporate existence
of the Company during the Commitment Period.


 


Section 6.09      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
required 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 Company shall not
deliver to the Investor any Advance Notice, and the Company shall not sell any Shares pursuant to any pending Advance Notice (other
than as required pursuant to Section 2.02(d)), 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 6.10     
Consolidation. If an Advance Notice has been delivered to the Investor, then the Company shall not effect any consolidation
of the Company with or into, or a transfer of all or substantially all the assets of the Company to another entity before the transaction
contemplated in such Advance Notice has been closed in accordance with Section 2.02 hereof, and all Shares in connection with such Advance
have been received by the Investor.


 


Section 6.11     
Issuance of the Company’s Common Shares. The issuance and sale of the Common Shares hereunder shall be made in accordance
with the provisions and requirements of Section 4(a)(2) of the Securities Act and any applicable state securities law.


 


Section 6.12     
Expenses. The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated,
will pay all expenses incident to the performance of its obligations hereunder, including but not limited to (i) the preparation, printing
and filing of the Registration Statement and each amendment and supplement thereto, of each prospectus and of each amendment and supplement
thereto; (ii) the preparation, issuance and delivery of any Shares issued pursuant to this Agreement, (iii) all 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 6.13     
Current Report. The Company shall, not later than 9:00 a.m., New York City time, on the fourth 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 shall not, and the Company shall cause
each of its Subsidiaries and each of its and their respective officers, directors, employees and agents not to, provide the Investor with
any material, non-public information regarding the Company or any of its Subsidiaries without the express prior written consent of the
Investor (which may be granted or withheld in the Investor’s sole discretion); it being understood that the mere notification of
Investor required pursuant to Section 6.08 (iv) hereof shall not in and of itself be deemed to be material non-public information. Notwithstanding
anything contained in this Agreement to the contrary, the Company expressly agrees that it shall publicly disclose in the Current Report
any information communicated to the Investor by or, to the knowledge of the Company, on behalf of the Company in connection with the transactions
contemplated herein, which, following the date hereof would, if not so disclosed, constitute material, non-public information regarding
the Company or its Subsidiaries. The Company understands and confirms that the Investor will reply on the foregoing representations in
effecting resales of Shares under the Registration Statement.


 


Section 6.14     
Advance Notice Limitation. The Company shall not deliver an Advance Notice if a shareholder meeting or corporate action
date, or the record date for any shareholder meeting or any corporate action, would fall during the period beginning two Trading Days
prior to the date of delivery of such Advance Notice and ending two Trading Days following the Closing of such Advance.


 


Section 6.15     
Use of Proceeds. The proceeds from the sale of the Shares by the Company to Investor shall be used by the Company in the
manner as will be set forth in the Prospectus included in any Registration Statement (and any post-effective amendment thereto) and any
Prospectus Supplement thereto filed pursuant to this Agreement..


 


Section 6.16     
Compliance with Laws. The Company shall comply in all material respects with all Applicable Laws.


 


Section 6.17     
Market Activities. Neither the Company, nor any Subsidiary, nor any of their respective officers, directors or controlling
persons will, directly or indirectly, (i) take any action designed to cause or result in, or that constitutes or might reasonably
be expected to constitute or result, in the stabilization or manipulation of the price of any security of the Company to facilitate the
sale or resale of Common Shares or (ii) sell, bid for, or purchase Common Shares in violation of Regulation M, or pay anyone any
compensation for soliciting purchases of the Shares.


 






     


     


    

 


Section 6.18     
Trading Information. Upon the Company’s
request, the Investor agrees to provide the Company with trading reports setting forth the number and average sales prices of shares of
Common Stock sold by the Investor during the prior trading week.


 


Section 6.19     
Selling Restrictions. (i) Except as expressly set forth in Section 3.08 and 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, engage in any “short sale” (as such term is defined in Rule 200 of Regulation
SHO of the Exchange Act) of the Common Shares, 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 Advance Shares that such Restricted Person is unconditionally obligated to purchase under a pending Advance Notice but has not yet
received from the Company or the transfer agent pursuant to this Agreement.


 


Section 6.20     
Assignment. Neither this Agreement nor any rights or obligations of the parties hereto may be assigned to any other Person.


 


Section 6.21     
Non-Public Information. The Company covenants and agrees that, other than as expressly required by Section 6.08 hereof,
or, with the Investor’s consent pursuant to Section 6.12, it shall refrain from disclosing, and shall cause its officers, directors,
employees and agents to refrain from disclosing, any material non-public information (as determined under the Securities Act, the Exchange
Act, or the rules and regulations of the SEC) to the Investor without also disseminating such information to the public, unless prior
to disclosure of such information the Company identifies such information as being material non-public information and provides the Investor
with the opportunity to accept or refuse to accept such material non-public information for review. Unless specifically agreed to in writing,
in no event shall the Investor have a duty of confidentiality, or be deemed to have agreed to maintain information in confidence, with
respect to the delivery of any Advance Notices.


 


Article VII.

Conditions for Delivery of Advance Notice


 


Section 7.01     
Conditions Precedent to the Right of the Company to Deliver an Advance Notice. The right of the Company to deliver an Advance
Notice and the obligations of the Investor hereunder with respect to an Advance are subject to the satisfaction or waiver, on each Advance
Notice Date (a “Condition Satisfaction Date”), of each of the following conditions:


 


		(a)	Accuracy of the Company’s Representations and Warranties. The representations and warranties
of the Company in this Agreement shall be true and correct in all material respects.



 






     


     


    

 


		(b)	Registration of the Common Shares with the SEC. There is an effective Registration Statement pursuant
to which the Investor is permitted to utilize the prospectus thereunder to resell all of the Common Shares issuable pursuant to such Advance
Notice. The Company shall have filed with the SEC in a timely manner all reports, notices and other documents required under the Exchange
Act and applicable SEC regulations during the twelve-month period immediately preceding the applicable Condition Satisfaction Date.



 


		(c)	Authority. The Company shall have obtained all permits and qualifications required by any applicable
state for the offer and sale of all the Common Shares issuable pursuant to such Advance Notice, or shall have the availability of exemptions
therefrom. The sale and issuance of such Common Shares shall be legally permitted by all laws and regulations to which the Company is
subject.



 


		(d)	No Material Outside Event. No Material Outside Event shall have occurred and be continuing.



 


		(e)	Performance by the Company. The Company shall have performed, satisfied and complied in all material
respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company
at or prior the applicable Condition Satisfaction Date.



 


		(f)	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.



 


		(g)	No Suspension of Trading in or Delisting of Common Shares. The Common Shares are quoted for trading
on the Principal Market and all of the Shares issuable pursuant to such Advance Notice will be listed or quoted for trading on the Principal
Market. The issuance of Common Shares with respect to the applicable Advance Notice will not violate the shareholder approval requirements
of the Principal Market. The Company shall not have received any written notice that is then still pending threatening the continued quotation
of the Common Shares on the Principal Market.



 


		(h)	Authorized. There shall be a sufficient number of authorized but unissued and otherwise unreserved
Common Shares for the issuance of all of the Shares issuable pursuant to such Advance Notice.



 


		(i)	Executed Advance Notice. The representations contained in the applicable Advance Notice shall be
true and correct in all material respects as of the applicable Condition Satisfaction Date.



 


		(j)	Consecutive Advance Notices. Except with respect to the first Advance Notice, the Company shall
have delivered all Shares relating to all prior Advances, and at least 5 Trading Days shall have elapsed from the immediately preceding
Advance Date.



 






     


     


    

 


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 shall be governed
by and interpreted in accordance with the laws of the State of New York without regard to the principles of conflict of laws. The parties
further agree that any action between them shall be heard in New York County, New York, and expressly consent to the jurisdiction and
venue of the Supreme Court of New York, sitting in New York County, New York and the United States District Court of the Southern District
of New York, sitting in New York, New York, for the adjudication of any civil action asserted pursuant to this Agreement.


 


Article X. Termination


 


Section 10.01  
Termination.


 


		(a)	Unless earlier terminated as provided hereunder, this Agreement shall terminate automatically on the earliest
of (i) the first day of the month next following the 36-month anniversary of the date hereof or (ii) the date on which the Investor
shall have made payment of Advances pursuant to this Agreement for Common Shares equal to the Commitment Amount.



 


		(b)	The Company may terminate this Agreement effective upon five Trading Days’ prior written notice
to the Investor; provided that (i) there are no outstanding Advance Notices, the Common Shares under which have yet to be issued, and
(ii) the Company has paid all amounts owed to the Investor pursuant to this Agreement. This Agreement may be terminated at any time by
the mutual written consent of the parties, effective as of the date of such mutual written consent unless otherwise provided in such written
consent.



 


		(c)	Nothing in this Section 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 V shall survive termination hereunder.



 






     


     


    

 


Article XI. Notices


 


Other than with respect to
Advance Notices, which must be in writing and will be deemed delivered on the day set forth in Section 2.01(b), any notices, consents,
waivers, or other communications required or permitted to be given under the terms of this Agreement must be in writing and will be deemed
to have been delivered (i) upon receipt, when delivered personally; (ii) upon receipt, when sent by facsimile or e-mail if sent on a Trading
Day, or, if not sent on a Trading Day, on the immediately following Trading Day; (iii) 5 days after being sent by U.S. certified mail,
return receipt requested, (iv) 1 day after deposit with a nationally recognized overnight delivery service, in each case properly addressed
to the party to receive the same. The addresses and facsimile numbers for such communications (except for Advance Notices which shall
be delivered in accordance with Exhibit A hereof) shall be:


 


	If to the Company, to:	 	Phoenix Motor Inc.
	 	1500 Lakeview Loop
	 	Anaheim, CA
	 	Attention: 	Chris Wang
	 	Telephone: 	(917)386-8650
	 	Email: 	chrisw@phoenixmotorcars.com
	 	 	 	 
	With a copy to (which shall not constitute notice or delivery of process) to:	 	Phoenix Motor Inc.
	 	1500 Lakeview Loop
	 	Anaheim, CA
	 	Attention: 	Mark Hastings
	 	Telephone:	(203)858-5244
	 	Email: 	markh@phoenixmotorcars.com
	 	 	 	 
	If to the Investor(s):	 	YA II PN, Ltd.
	 	1012 Springfield Avenue
	 	Mountainside, NJ 07092
	 	Attention:	Mark Angelo
	 	 	Portfolio Manager
	 	Telephone:	(201) 985-8300
	 	Email:	mangelo@yorkvilleadvisors.com
	 	 	 	 
	With a Copy (which shall not constitute notice or delivery of process) to:	 	David Gonzalez, Esq.
	 	1012 Springfield Avenue
	 	Mountainside, NJ 07092
	 	Telephone:	(201) 985-8300
	 	Email: 	legal@yorkvilleadvisors.com






 






     


     


    

 


or at such other address and/or e-mail and/or
to the attention of such other person as the recipient party has specified by written notice given to each other party three Business
Days prior to the effectiveness of such change. Written confirmation of receipt (i) given by the recipient of such notice, consent, waiver
or other communication, (ii) electronically generated by the sender’s email service provider containing the time, date, recipient
email address or (iii) provided by a nationally recognized overnight delivery service shall be rebuttable evidence of personal service,
receipt by facsimile or receipt from a nationally recognized overnight delivery service in accordance with clause (i), (ii) or (iii) above,
respectively.


 


Article XII. Miscellaneous


 


Section 12.01  
Counterparts. This Agreement may be executed in identical counterparts, both which shall be considered one and the same
agreement and shall become effective when counterparts have been signed by each party and delivered to the other party. Facsimile or other
electronically scanned and delivered signatures (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform
Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com), including
by e-mail attachment, shall be deemed to have been duly and validly delivered and be valid and effective for all purposes of this Agreement.


 


Section 12.02  
Entire Agreement; Amendments. This Agreement supersedes all other prior oral or written agreements between the Investor,
the Company, their respective affiliates and persons acting on their behalf with respect to the matters discussed herein, and this Agreement
contains the entire understanding of the parties with respect to the matters covered herein and, except as specifically set forth herein,
neither the Company nor the Investor makes any representation, warranty, covenant or undertaking with respect to such matters. No provision
of this Agreement may be waived or amended other than by an instrument in writing signed by the parties to this Agreement.


 


Section 12.03  
Reporting Entity for the Common Shares. The reporting entity relied upon for the determination of the trading price or trading
volume of the Common Shares on any given Trading Day for the purposes of this Agreement shall be Bloomberg, L.P. or any successor thereto.
The written mutual consent of the Investor and the Company shall be required to employ any other reporting entity.


 


Section 12.04  
Commitment and Structuring 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 has paid YA Global II SPV, LLC, a subsidiary of the Investor, a structuring fee in the amount of $20,000
and, on the date hereof, the Company will issue to the Investor Common Shares in an amount equal to $100,000 based on the VWAP of the
Company’s Common Shares on the date this Agreement is executed (the “Commitment Fee Shares”), as a commitment
fee.


 


Section 12.05  
Fully Earned.The Commitment Fee Shares shall be deemed fully earned as of the date hereof. 


 






     


     


    

 


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.


 


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EXHIBIT A

ADVANCE NOTICE


 


PHOENIX MOTOR INC.


 





	 	Dated: ______________	 	Advance Notice Number: ____



 


The
undersigned, _______________________, hereby certifies, with respect to the sale of Common Shares of
PHOENIX MOTOR INC. (the “Company”) issuable in connection with this Advance Notice, delivered pursuant to that certain
STANDBY EQUITY PURCHASE AGREEMENT, dated as of [____________] (the “Agreement”), as follows (with capitalized terms
used herein without definition having the same meanings as given to them in the Agreement): 


 


1.       The
undersigned is the duly elected ______________ of the Company.


 


2.       There
are no fundamental changes to the information set forth in the Registration Statement which would require the Company to file a post-effective
amendment to the Registration Statement.


 


3.        The
Company has performed in all material respects all covenants and agreements to be performed by the Company contained in this Agreement
on or prior to the Advance Notice Date. All conditions to the delivery of this Advance Notice are satisfied as of the date hereof.


 


4.       The
Number of Advance Shares the Company is requesting is _____________________.


 


5.       The
Minimum Acceptable Price with respect to this Advance Notice is _________ (if left blank then no Minimum Acceptable Price will be applicable
to this Advance).


 


6.       The number of Common Shares
of the Company outstanding as of the date hereof is ___________.


 


6.       The Exchange Cap is ___________ Common Shares.


 


7.       The Principal Market Minimum Acceptable Price is _________.


 


  


The undersigned has executed
this Advance Notice as of the date first set forth above.


 





	 	PHOENIX MOTOR INC.	 
	 	 	 	 
	 	By:	 	 
	 	 	 	 



 


 



     


     


    

   


EXHIBIT B


FORM OF SETTLEMENT DOCUMENT


VIA EMAIL


 


PHOENIX MOTOR INC.


Attn: 


Email:


 


	 	Below please find the settlement information with respect to the Advance Notice Date of:	 
	1.	Advance Shares requested in the Advance Notice	 _________ Shares
	2.	Minimum Acceptable Price for this Advance (if any)	 
	3.	Number of Excluded Days (if any)	 
	4	Adjusted Advance Shares Amount (after taking into account any adjustments pursuant to Section 2.01):	 
	5.	Market Price	 
	6.	Purchase Price (Market Price x 93%) per share	 
	7.	Number of Advance Shares due to Investor	 
	8.	Dollar Amount to be paid to the Issuer	$


 


If there were any Excluded Days then add the following (see Section 2.01(d)):


 


	9.	Number of Additional Shares to be issued to Investor	 
	10.	Additional amount to be paid to the Company by the Investor (Additional Shares in number 9 x Minimum Acceptable Price)	 
	11.	Total Amount to be paid to Company (Purchase Price in number 6 + Additional amount in number 10):	 
	12.	Total Shares to be issued to Investor (Shares due to Investor in number 7 + Additional Shares in number 9):	 
	 	Dollar Amount to be paid to the Issuer	$


 


 


Please issue the number of Advance
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:



Sincerely, 


 


YA II PN, LTD.


 


  


 


Agreed and approved By PHOENIX MOTOR INC.:


 


 


__________________________________


Name: 


Title: