SECURITIES PURCHASE AGREEMENT
Exhibit 99.1
This SECURITIES PURCHASE AGREEMENT (the “Agreement”) is made as of November 24, 2023 by and among Powerbridge Technologies Co. Ltd., a Cayman Islands exempted company (the “Company”), and [Name of the Purchaser] (the “Purchaser”).
1. | Definitions. As used in this Agreement, the following terms shall have the following respective meanings: |
(a) | “Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by or under common control with such Person. For purposes of this definition, “control” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlling” and “controlled” have correlative meanings. |
(b) | “Company Intellectual Property” shall mean all of the Intellectual Property owned by the Company or any of its Subsidiaries. |
(c) | “Company Options” shall mean options to purchase Ordinary Share under any of the Company Stock Option Plans. |
(d) | “Company Stock Option Plan” shall mean each stock option plan, stock award plan, stock appreciation right plan, phantom stock plan, stock option, other equity or equity-based compensation plan, equity or other equity based award to any employee, whether payable in cash, shares or otherwise (to the extent not issued pursuant to any of the foregoing plans), or other plan or contract of any nature with any employee pursuant to which any stock, option, warrant or other right to purchase or acquire share capital of the Company or right to payment based on the value of Company share capital has been granted or otherwise issued. |
(e) | “Exchange Act” shall mean the U.S. Securities Exchange Act of 1934, as amended. |
(f) | “FCPA” shall mean the Foreign Corrupt Practices Act of 1977, as amended. |
(g) | “GAAP” shall mean United States generally accepted accounting principles. |
(h) | “Governmental Entity” shall mean any national, provincial, state, municipal, local government, any instrumentality, subdivision, court, administrative agency or commission or other governmental authority or instrumentality, or any quasi-governmental or private body exercising any regulatory, taxing, importing or other governmental or quasi-governmental authority. |
(i) | “Intellectual Property” shall mean the rights associated with or arising under any of the following anywhere in the world: (i) patents and applications therefor; (ii) copyrights, copyright registrations and applications therefor, and all other corresponding rights in works of authorship, however denominated; (iii) rights in industrial designs and any registrations and applications therefor; (iv) trademark rights and corresponding rights in trade names, logos and service marks, trademarks or service marks, and registrations and applications therefor; (v) trade secrets rights and corresponding rights in confidential business and technical information and know-how (“Trade Secrets”); and (vi) any similar or equivalent rights to any of the foregoing anywhere in the world (as applicable). |
(j) | “Knowledge” of any Person that is not an individual means the knowledge of such Person’s directors and officers. |
(k) | “Legal Requirements” shall mean any national, provincial, state, municipal, local or other law, statute, constitution, principle of common law, resolution, ordinance, code, order, edict, decree, rule, regulation, ruling or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Entity. |
(l) | “Lien” shall mean any pledge, claim, lien, charge, encumbrance, option and security interest of any kind or nature whatsoever. |
(m) | “Market Price” means 70% multiplied by the lowest daily VWAPs during the twenty (20) Trading Days preceding the date of this Agreement. |
(n) | “Material Adverse Effect” shall mean, when used in connection with an entity, any change, event, violation, inaccuracy, circumstance or effect (any such item, an “Effect”), that could have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity or enforceability of any Transaction Document, (ii) a material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole, or (iii) a material adverse effect on the Company’s ability to perform in any material respect on a timely basis its obligations under any Transaction Document. |
(o) | “Nasdaq” shall mean the Nasdaq Capital Market. |
(p) | “Ordinary Share” shall mean the ordinary shares of the Company, par value US$0.40 per share. |
(q) | “Permits” shall mean all permits, licenses, variances, exemptions, orders and approvals from Governmental Entities. |
(r) | “Person” shall mean any individual, corporation (including any non-profit corporation), general partnership, limited partnership, limited liability partnership, joint venture, estate, trust, company (including any limited liability company or joint stock company), firm or other enterprise, association, organization, entity or Governmental Entity. |
(s) | “PRC” shall mean the People’s Republic of China and solely for the purposes of this Agreement, exclude Hong Kong SAR, Macao SAR and Taiwan. |
(t) | “Prospectus” means the final prospectus filed for the Registration Statement. |
(u) | “Prospectus Supplement” means the supplement to the Prospectus complying with Rule 424(b) of the Securities Act that is filed with the SEC and delivered by the Company to the Purchaser at the Closing. |
(v) | “Registration Statement” means the effective registration statement on Form F-3 with SEC (file No. 333-253395), which registers the sale of the Securities to the Purchasers. |
(w) | “Rule 424” means Rule 424 promulgated by the SEC pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time, or any similar rule or regulation hereafter adopted by the SEC having substantially the same purpose and effect as such Rule. |
(x) | “SEC” shall mean the U.S. Securities and Exchange Commission. |
(y) | “Securities” means the Ordinary Shares. |
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(z) | “Securities Act” shall mean the Securities Act of 1933, as amended. |
(aa) | “Subsidiaries” shall mean, when used with respect to any party, any corporation or other organization, whether incorporated or unincorporated, at least a majority of the securities or other interests of which having by their terms ordinary voting power to elect a majority of the board of directors or others performing similar functions with respect to such corporation or other organization is directly or indirectly owned or controlled by such party or by any one or more of its Subsidiaries, or by such party and one or more of its Subsidiaries. For the avoidance of doubt, the Subsidiaries of the Company shall include any variable interest entity over which the Company or any of its Subsidiaries effects control pursuant to contractual arrangements and which is consolidated with the Company in accordance with generally accepted accounting principles applicable to the Company. |
(bb) | “Trading Day” means any day on which the Company’s principal market is open for trading. |
(cc) | “VWAP” means the volume weighted average price of the Ordinary Shares on the principal market for a particular Trading Day or set of Trading Days, as the case may be, as reported by Bloomberg. |
2. | Purchase and Sale. |
(a) | Purchase and Sale of the Purchase Shares. At the Closing, the Company hereby agrees to sell to the Purchaser, and the Purchaser hereby agrees to purchase [number of shares] shares of the ordinary shares of the Company, with a par value of US$0.40 each (the “Purchase Shares”), for a purchase price per share equal to the lesser of (a) the closing share price of the Company’s Ordinary Shares on Nasdaq of the day preceding the date of this Agreement, and (b) the Market Price. |
(c) | Company Deliveries. At the Closing, the Company shall deliver to the Purchaser the following: |
(i) | this Agreement duly executed by the Company; |
(ii) | a book-entry account statement representing the Purchase Shares being purchased by such Purchaser at the Closing; |
(iii) | a final and complete form of the Prospectus Supplement to be filed pursuant to Rule 424(b). |
(d) | Purchaser Deliveries. At the Closing, the Purchaser shall deliver to the Company the following: |
(i) | this Agreement duly executed by such Purchaser; |
(ii) | the purchase price for the Purchase Shares, made by wire transfer of U.S. Dollars to a bank account of the Company in accordance with the Company’s wire instructions. |
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3. | Representations and Warranties of the Company. Except as set forth in the Company SEC filings, the Company hereby represents and warrants to the Purchaser as follows: |
(b) | Capitalization. |
(ii) | Equity Incentive Plan. As of the date hereof: 50,542 Ordinary Shares are reserved for future issuance under the Company Stock Option Plan. All Ordinary Shares subject to issuance under the Company Stock Option Plans, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable (including payment of the exercise price therefor), would be duly authorized and validly issued, fully paid and nonassessable. Except for outstanding Company Options, there are no outstanding or authorized restricted stock unit, stock appreciation, phantom stock, profit participation or other forms of stock-based awards with respect to the Company. |
(c) | Authorization; Non-Contravention. |
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(d) | SEC Filings; Financial Statements; Internal Controls. |
(i) | SEC Filings. As of the date hereof, the Company has filed all the registration statements, prospectuses, reports, schedules, forms, statements and other documents (including exhibits and all other information incorporated by reference) required to be filed by it with the SEC. All such registration statements, prospectuses, reports, schedules, forms, statements and other documents in the form filed with the SEC have been made available to the Purchaser or are publicly available in the Interactive Data Electronic Applications database of the SEC. All such required registration statements, prospectuses, reports, schedules, forms, statements and other documents, as amended, are referred to herein as the “Company SEC filings.” As of their respective dates (or if subsequently amended or supplemented, on the date of such amendment or supplement), the Company SEC filings (i) were prepared in accordance and complied in all material respects with the requirements of the Securities Act or the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC filings, and (ii) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. None of the Company’s Subsidiaries is required to file any forms, reports or other documents with the SEC. No executive officer of the Company has failed to make the certifications required of him or her under Section 302 or 906 of the Xxxxxxxx-Xxxxx Act of 2002, as amended, and the rules and regulations promulgated thereunder, with respect to any Company SEC Filings. Neither the Company nor any of its executive officers has received notice from any Governmental Entity challenging or questioning the accuracy, completeness, form or manner of filing of such certifications. |
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(i) | No Material Adverse Effect. Since June 30, 2023, no event or circumstance has occurred that, individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect on the Company. |
(i) | The Company and each of its Subsidiaries has taken reasonable steps consistent with applicable industry practice to protect and preserve the confidentiality of material confidential information that they wish to, or are obligated by third parties to, protect as Trade Secrets, and, to the Knowledge of the Company, there is no misappropriation from the Company of such Trade Secrets by any Person, except where such misappropriation could not reasonably be expected to have a Material Adverse Effect on the Company. |
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(ii) | To the Knowledge of the Company, none of the Company or any of its Subsidiaries or any of its or their current products or services is infringing upon or otherwise violating the Intellectual Property of any third party, except where such infringement could not reasonably be expected to have a Material Adverse Effect on the Company. |
(iii) | As of the date of this Agreement, the Company has not received written notice of any suit, claim, action, investigation or proceeding made, conducted or brought by a third party that has been served upon or, to the Knowledge of the Company, filed or threatened in writing with respect to any alleged infringement or other violation in any material respect by the Company or any of its Subsidiaries or any of its or their current products or services or other operation of the Company’s or its Subsidiaries’ business of the Intellectual Property of such third party. As of the date of this Agreement, to the Knowledge of the Company, there is no pending or threatened claim challenging the validity or enforceability of, or contesting the Company’s or any of its Subsidiaries’ rights with respect to, any of the material Company Intellectual Property. |
(iv) | The execution and delivery of this Agreement by the Company, and the consummation of the transactions contemplated hereby, will not result in (i) the Company or its Subsidiaries granting to any third party any rights or licenses to any Company Intellectual Property, (ii) any right of termination or cancellation under any Company Intellectual Property Agreement, or (iii) the imposition of any Lien on any Company Intellectual Property, except where any of the foregoing (in clauses (i) through (iii)) would not have a Company Material Adverse Effect. |
(k) | Compliance; Permits. |
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(n) | Foreign Private Issuer. The Company is a “foreign private issuer” within the meaning of Rule 405 under the Securities Act. |
4. | Representations, Warranties and Covenants of the Purchaser. The Purchaser represents and warrants to the Company as follows: |
5. | Conditions Precedent to Closing. |
(a) | Conditions to the Obligation of the Purchaser to Consummate the Closing. The obligation of the Purchaser to consummate the Closing and to purchase and pay for the Purchase Shares pursuant to this Agreement and the Prospectus and the Prospectus Supplement is subject to the satisfaction of the following conditions precedent: |
(i) | Representations and Warranties; Covenants. |
(1) | Each of the representations and warranties of the Company in Section 3 shall be true and correct in all respects as of the date of this Agreement and as of the date of the Closing as though made at that time. |
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(2) | The Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement prior to the date of Closing. |
(ii) | Qualifications. All authorizations, approvals or permits, if any, of any Governmental Entity that are required in connection with the lawful issuance, sale and purchase of the Purchase Shares, and the purchase and the procurement of foreign exchange for payment of the Purchase Price, pursuant to this Agreement shall have been duly obtained and effective as of the Closing. |
(iii) | A final and complete form of the Prospectus Supplement, to be used in connection with the issuance and sale of the Purchase Shares to the Purchaser, shall have been delivered to the Purchaser and to be filed by the Company within thirty (30) days after the date of Closing pursuant to Rule 424(b). |
(b) | Conditions to the Obligation of the Company to Consummate the Closing. The obligation of the Company to consummate the Closing and to issue and sell the Purchase Shares to the Purchaser at the Closing is subject to the satisfaction of the following conditions precedent: |
(i) | Representations and Warranties; Covenants. |
(1) | Each of the representations and warranties of the Purchaser in Section 4 shall be true and correct in all respects as of the date of this Agreement and as of the date of the Closing as though made at that time. |
(2) | The Purchaser shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement prior to the date of Closing. |
(ii) | Qualifications. All authorizations, approvals or permits, if any, of any Governmental Entity that are required in connection with the lawful issuance and sale of the Purchase Shares pursuant to this Agreement shall be duly obtained and effective as of the Closing. |
6. | Miscellaneous Provisions. |
(b) | Notices. |
(i) | Any notices, reports or other correspondence (hereinafter collectively referred to as “correspondence”) required or permitted to be given hereunder shall be sent by international courier, facsimile, electronic mail or delivered by hand to the party to whom such correspondence is required or permitted to be given hereunder. Where a notice is sent by overnight courier, service of the notice shall be deemed to be effected by properly addressing, and sending such notice through an internationally recognized express courier service, delivery fees pre-paid, and to have been effected three (3) business days following the day the same is sent as aforesaid. Where a notice is delivered by facsimile, electronic mail, by hand or by messenger, service of the notice shall be deemed to be effected upon delivery; provided that facsimile or electronic mail alone does not constitute an effective notice. |
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(ii) | All correspondence shall be addressed as follows: |
Powerbridge Technologies Co., Ltd.
Address: Advanced Business Park, 9th Fl, Bldg C2
00 Xxxxxx Xxxx, Xxxxxxxx Xxxxxxxx,
Zhuhai, Guangdong 519080, China
Address:
Attention:
Email:
(iii) | Any entity may change the address to which correspondence to it is to be addressed by notification as provided for herein. |
(c) | Captions. The captions and paragraph headings of this Agreement are solely for the convenience of reference and shall not affect its interpretation. |
(e) | Governing Law; Arbitration. |
(i) | This Agreement shall be governed by and construed in accordance with the internal and substantive laws of the State of New York. |
(ii) | Other than as set forth in Section 6(e)(iii), each of the parties hereto irrevocably agrees that any dispute or controversy arising out of, relating to, or concerning any interpretation, construction, performance or breach of this Agreement, shall be submitted to arbitration, which shall be conducted in Hong Kong under the auspices of the Hong Kong International Arbitration Centre (“HKIAC”) in accordance with the HKIAC Administered Arbitration Rules then in effect. If submitted to arbitration in any jurisdiction, the decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction. The parties to the arbitration shall each pay an equal share of the costs and expenses of such arbitration, and each party shall separately pay for its respective counsel fees and expenses; provided, however, that the prevailing party in any such arbitration shall be entitled to recover from the non-prevailing party its reasonable costs and attorney fees. |
(f) | Amendment. This Agreement may not be amended, modified or terminated, and no rights or provisions may be waived, except with the written consent of the Company and Purchaser. |
(g) | Expenses. Each party will bear its own costs and expenses in connection with the drafting and negotiation of this Agreement. |
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(m) | Termination. |
(i) | This Agreement may be terminated, and the transactions contemplated hereby abandoned at any time, by mutual consent of the Company and the Purchaser. This Agreement may also be terminated (x) by the Purchaser, by written notice to the Company, or (y) by the Company, by written notice to the Purchaser; provided, however, that no such termination will affect the right of any party to sue for any breach by any other party (or parties), and provided, further, that the right of any party to terminate this Agreement shall not be available to any party who’s action or failure to act has been a principal cause of or resulted in the failure of the Closing to occur on or before such date and such action or failure to act constitutes a material breach of this Agreement. |
(ii) | If terminated, this Agreement shall become void and there shall be no liability or obligation on the part of any party hereto or their respective officers, directors or affiliates; provided, however, that (1) each party shall remain liable for any breach of this Agreement prior to its termination, and (2) the provisions of this Section 6 shall remain in full force and effect and survive any termination. |
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THE COMPANY | ||
POWERBRIDGE TECHNOLOGIES CO. LTD. | ||
By: | ||
Name: | ||
Title: |
THE PURCHASER | ||
By: | ||
Name: | ||
Title: |