Table of Contents

 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________________________________________________________________________________  
FORM 10-Q  
____________________________________________________________________________________________
x
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended March 31, 2019
or
¨
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from ______ to ______  
Commission File Number: 001-37854  
____________________________________________________________________________________________  
Ekso Bionics Holdings, Inc.

(Exact name of registrant as specified in its charter) 
____________________________________________________________________________________________
Nevada
 
99-0367049
(State or other jurisdiction of
incorporation or organization)
 
(I.R.S. Employer
Identification No.)
 
1414 Harbour Way South, Suite 1201
Richmond, CA
 
94804
(Address of principal executive offices)
 
(Zip Code)
 
(510) 984-1761
(Registrant’s telephone number, including area code)
____________________________________________________________________________________________

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes  x     No  ¨
 
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes  x      No  ¨
 
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer  ¨
 
Accelerated filer  x
 
 
 
Non-accelerated filer  ¨
 
Smaller reporting company   x
 
 
 
 
Emerging growth company   ¨  

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act   o  
 
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes  o  No  x
 
The number of shares of registrant’s common stock outstanding as of April 29, 2019 was 67,669,227 .
 


Table of Contents

  Ekso Bionics Holdings, Inc.
 
Quarterly Report on Form 10-Q  

Table of Contents
  
 
 
Page No.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

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PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
 
Ekso Bionics Holdings, Inc.
Condensed Consolidated Balance Sheets
(In thousands, except par value)
 
 
March 31, 2019
 
December 31, 2018
 
(unaudited)
 
(Note 2)
Assets
 

 
 

Current assets:
 

 
 

Cash
$
9,236

 
$
7,655

Accounts receivable, net of allowances of $179 and $128, respectively
3,793

 
3,660

Inventories, net
3,300

 
3,371

Prepaid expenses and other current assets
506

 
281

Total current assets
16,835

 
14,967

Property and equipment, net
2,331

 
2,365

Right-of-use assets
1,365

 

Goodwill
189

 
189

Other assets
140

 
134

Total assets
$
20,860

 
$
17,655

Liabilities and Stockholders' Equity
 
 
 
Current liabilities:
 
 
 
Accounts payable
$
2,474

 
$
3,156

Accrued liabilities
3,286

 
3,541

Deferred revenues, current
1,211

 
1,102

Note payable, current
2,333

 
2,333

Lease liabilities, current
406

 

Total current liabilities
9,710

 
10,132

Deferred revenues
1,499

 
1,495

Note payable, net
2,093

 
2,648

Lease liabilities
1,006

 

Warrant liability
1,964

 
585

Other non-current liabilities
54

 
67

Total liabilities
16,326

 
14,927

Commitments and contingencies (Note 14)


 


Stockholders' equity:
 
 
 
Convertible preferred stock, $0.001 par value; 10,000 shares authorized; none issued and outstanding at March 31, 2019 and December 31, 2018

 

Common stock, $0.001 par value; 141,429 shares authorized; 67,529 and 62,963, shares issued and outstanding at March 31, 2019 and December 31, 2018, respectively
68

 
63

Additional paid-in capital
182,107

 
173,903

Accumulated other comprehensive income (loss)
56

 
(92
)
Accumulated deficit
(177,697
)
 
(171,146
)
Total stockholders' equity
4,534

 
2,728

Total liabilities and stockholders' equity
$
20,860

 
$
17,655

 

The accompanying notes are an integral part of these condensed consolidated financial statements

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Table of Contents

Ekso Bionics Holdings, Inc.
Condensed Consolidated Statements of Operations and Comprehensive Loss
(In thousands, except per share amounts)
(Unaudited)
 
 
Three Months Ended
March 31,
 
2019
 
2018
Revenue
$
3,616

 
$
2,518

Cost of revenue
2,017

 
1,751

Gross profit
1,599

 
767

 
 
 
 
Operating expenses:
 
 
 
Sales and marketing
2,809

 
3,853

Research and development
1,384

 
1,808

General and administrative
2,317

 
3,738

Change in fair value, contingent consideration
1

 
(19
)
Total operating expenses
6,511

 
9,380

 
 
 
 
Loss from operations
(4,912
)
 
(8,613
)
 
 
 
 
Other income (expense), net:
 
 
 
Interest expense
(121
)
 
(163
)
Gain (loss) on revaluation of warrant liability
(1,122
)
 
732

Loss on modification of warrant
(257
)
 

Other (expense) income, net
(139
)
 
143

Total other (expense) income, net
(1,639
)
 
712

 
 
 
 
Net loss
$
(6,551
)
 
$
(7,901
)
Other comprehensive income (loss)
148

 
(207
)
Comprehensive loss
$
(6,403
)
 
$
(8,108
)
 
 
 
 
Basic and diluted net loss per share
$
(0.10
)
 
$
(0.13
)
 
 
 
 
Weighted average number of shares of common stock outstanding, basic and diluted
65,067

 
60,146

 
The accompanying notes are an integral part of these condensed consolidated financial statements

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Ekso Bionics Holdings, Inc.
Notes to Condensed Consolidated Financial Statements
($ and share amounts in thousands, except per share amounts)
(Unaudited)

Ekso Bionics Holdings, Inc.
Consolidated Statements of Stockholders’ Equity
(In thousands)
(Unaudited)
 
Convertible Preferred Stock
 
Common Stock
 
Additional Paid-in Capital
 
Accumulated Other Comprehensive
Income (Loss)
 
Accumulated Deficit
 
Total Stockholders' Equity
 
Shares
 
Amount
 
Shares
 
Amount
 
 
 
 
Balance at December 31, 2018

 

 
62,963

 
$
63

 
$
173,903

 
$
(92
)
 
$
(171,146
)
 
$
2,728

Net loss

 

 

 

 

 

 
(6,551
)
 
(6,551
)
Issuance of common stock under:
 
 
 
 
 
 
 
 
 
 
 
 
 
 


Equity financing, net

 

 
4,362

 
5

 
7,300

 

 

 
7,305

Equipois sales earn-out

 

 
18

 

 
22

 

 

 
22

Equity incentive plan

 

 
45

 

 
55

 

 

 
55

Matching contribution to 401(k) plan

 

 
141

 

 
191

 

 

 
191

Stock-based compensation expense

 

 

 

 
636

 

 

 
636

Foreign currency translation adjustments

 

 

 

 

 
148

 

 
148

Balance at March 31, 2019

 

 
67,529

 
$
68

 
$
182,107

 
$
56

 
$
(177,697
)
 
$
4,534


 
Convertible Preferred Stock
 
Common Stock
 
Additional Paid-in Capital
 
Accumulated Other Comprehensive
Loss
 
Accumulated Deficit
 
Total Stockholders' Equity
 
Shares
 
Amount
 
Shares
 
Amount
 
 
 
 
Balance at December 31, 2017

 

 
59,943

 
$
60

 
$
165,825

 
$
(340
)
 
$
(144,154
)
 
$
21,391

Net loss

 

 

 

 

 

 
(7,901
)
 
(7,901
)
Issuance of common stock under:
 
 
 
 
 
 
 
 
 
 
 
 
 
 


Equipois sales earn-out

 

 
18

 

 
28

 

 

 
28

Equity incentive plan

 

 
52

 

 

 

 

 

Matching contribution to 401(k) plan

 

 
221

 

 
508

 

 

 
508

In lieu of cash compensation

 

 
121

 

 
190

 

 

 
190

Stock-based compensation expense

 

 

 

 
830

 

 

 
830

Foreign currency translation adjustments

 

 

 

 

 
(207
)
 

 
(207
)
Balance at March 31, 2018

 

 
60,355

 
$
60

 
$
167,381

 
$
(547
)
 
$
(152,055
)
 
$
14,839


The accompanying notes are an integral part of these condensed consolidated financial statements


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Ekso Bionics Holdings, Inc.
Condensed Consolidated Statements of Cash Flows
(In thousands)
(Unaudited)
 
Three Months Ended March 31,
 
2019
 
2018
Operating activities:
 

 
 

Net loss
$
(6,551
)
 
$
(7,901
)
Adjustments to reconcile net loss to net cash used in operating activities
 
 
 
Depreciation and amortization
247

 
428

Inventory allowance expense
19

 
130

Changes in allowance for doubtful accounts
55

 
(16
)
Change in fair value of warrant liability
1,122

 
(732
)
Stock-based compensation expense
636

 
892

Amortization of debt discount and accretion of final payment fee
28

 
43

Change in fair value of contingent liabilities
1

 
(19
)
Common stock contribution to 401(k) plan
55

 
56

Loss on modification of warrants
257

 

Loss (gain) on foreign currency transactions
152

 
(153
)
Changes in operating assets and liabilities:
 
 
 
Accounts receivable
(188
)
 
(798
)
Inventories
(154
)
 
(286
)
Prepaid expenses, operating lease right-of-use assets, and other assets current and noncurrent
(142
)
 
379

Accounts payable
(660
)
 
1,011

Accrued and lease liabilities
(167
)
 
80

Deferred revenues
113

 
141

Net cash used in operating activities
(5,177
)
 
(6,745
)
Investing activities:
 
 
 
Acquisition of property and equipment
(7
)
 
(31
)
Net cash used in investing activities
(7
)
 
(31
)
Financing activities:
 
 
 
Proceeds from issuance of common stock, net
7,305

 

Principal payments on note payable
(591
)
 
(399
)
Proceeds from exercise of stock options
55

 

Net cash provided by (used in) financing activities
6,769

 
(399
)
Effect of exchange rate changes on cash
(4
)
 
(66
)
Net increase (decrease) in cash
1,581

 
(7,241
)
Cash at beginning of period
7,655

 
27,813

Cash at end of period
$
9,236

 
$
20,572

 
 
 
 
Supplemental disclosure of cash flow activities
 
 
 
Cash paid for interest
$
96

 
$
119

Cash paid for income taxes
$

 
$
16

 
 
 
 
Supplemental disclosure of non-cash activities
 
 
 
Initial recognition of operating lease right-of-use assets
$
1,454

 
$

Initial recognition of operating lease liabilities
$
1,498

 
$


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Table of Contents

Transfer of inventory to property and equipment
$
206

 
$
348

Share issuance for common stock contribution to 401(k) plan
$
191

 
$
508

Share issuance for employee bonuses
$

 
$
190

Equipois sales earn-out
$
22

 
$
28

 The accompanying notes are an integral part of these condensed consolidated financial statements

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Ekso Bionics Holdings, Inc.
Notes to Condensed Consolidated Financial Statements
($ and share amounts in thousands, except per share amounts)
(Unaudited)


1.    Organization
 
Description of Business
 
Ekso Bionics Holdings, Inc. (the “Company”) designs, develops and sells exoskeleton technology to augment human strength, endurance and mobility. The Company’s exoskeleton technology serves multiple markets and can be used both by able-bodied users as well as by persons with physical disabilities. The Company has sold or leased devices that (a) enable individuals with neurological conditions affecting gait (stroke and spinal cord injury) to rehabilitate and to walk again and (b) allow industrial workers to perform heavy duty work for extended periods. Founded in 2005, the Company is headquartered in the Bay Area and is listed on the Nasdaq Capital Market under the symbol “EKSO."
 
Liquidity and Going Concern
 
As of March 31, 2019 , the Company had an accumulated deficit of $177,697 .  Largely as a result of significant research and development activities related to the development of the Company’s advanced technology and commercialization of this technology into its medical device business, the Company has incurred significant operating losses and negative cash flows from operations since inception. In the three months ended March 31, 2019 , the Company used $5,177 of cash in its operations.
 
Cash on hand at March 31, 2019 was $9,236 , compared to $7,655 at December 31, 2018 . As noted in Note 9,  Long-Term Debt , borrowings under the Company’s long-term debt agreement have a requirement of minimum cash on hand equivalent to three months of cash burn. As of March 31, 2019 , the most recent determination of this restriction, $ 4,908 of cash must remain as restricted, with such amounts to be re-computed at each month end period. After considering cash restrictions, effective unrestricted cash as of March 31, 2019 is estimated to be $ 4,328 . Based on the current forecast, the Company’s cash on hand will not be sufficient to satisfy the Company’s operations for the next twelve months from the date of issuance of these condensed consolidated financial statements, which raises substantial doubt about the Company’s ability to continue as a going concern.
 
Based upon the Company’s current cash resources, the recent rate of using cash for operations and investment, and assuming modest increases in current revenue, the Company believes it has sufficient resources to meet its financial obligations until late in the second quarter of 2019. While the Company will require significant additional financing, the Company’s actual capital requirements may vary significantly and will depend on many factors. The Company plans to continue its investments (i) in its clinical and sales initiatives to accelerate adoption of the Ekso robotic exoskeleton in the rehabilitation market, (ii) in its research, development and commercialization activities with respect to an Ekso robotic exoskeleton for rehabilitation, and/or (iii) in the development and commercialization of able-bodied exoskeletons for industrial use.

The Company is actively pursuing opportunities to obtain additional financing through public or private equity and/or debt financings and corporate collaborations. Sales of additional equity securities by the Company could result in the dilution of the interests of existing stockholders. There can be no assurance that financing will be available when required in sufficient amounts, on acceptable terms or at all. In the event that the necessary additional financing is not obtained, the Company may be required to further reduce its discretionary overhead costs substantially, including research and development, general and administrative, and sales and marketing expenses or otherwise curtail operations.
 
2.    Basis of Presentation and Summary of Significant Accounting Policies and Estimates
 
Basis of Presentation
 
In the opinion of management, the accompanying unaudited condensed consolidated financial statements have been prepared on a consistent basis with the audited consolidated financial statements for the fiscal year ended December 31, 2018 , which included an explanatory paragraph expressing substantial doubt about the Company’s ability to continue as a going concern in the report of the Company's independent registered public accounting firm, and include all adjustments, consisting of only normal recurring adjustments, necessary to fairly state the information set forth herein. Certain reclassifications have been made to conform to the current period’s presentation. The Company’s investment in a variable interest entity (“VIE”) in which it exercises significant influence but does not control and is not the primary beneficiary is accounted for using the equity method. The condensed consolidated financial statements have been prepared in accordance with the rules and regulations of the Securities and Exchange Commission (“SEC”) and therefore, omit certain information and footnote disclosure necessary to present the financial statements

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Ekso Bionics Holdings, Inc.
Notes to Condensed Consolidated Financial Statements
($ and share amounts in thousands, except per share amounts)
(Unaudited)

in accordance with generally accepted accounting principles in the United States (“U.S. GAAP”). These financial statements should be read in conjunction with the audited consolidated financial statements and notes thereto included in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2018 , which was filed with the SEC on February 28, 2019. The results of operations for the three months ended March 31, 2019 are not necessarily indicative of the results to be expected for the entire fiscal year or any future periods.
 
Use of Estimates
 
The preparation of the condensed consolidated financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the balance sheet, and the reported amounts of revenues and expenses during the reporting period. For the Company, these estimates include, but are not limited to: revenue recognition, deferred revenue and the deferral of the associated costs, future warranty costs, accounting for leases, useful lives assigned to long-lived assets, valuation of inventory, realizability of deferred tax assets, the valuation of employee stock options and warrants, and contingencies. Actual results could differ from those estimates.

Foreign Currency

The assets and liabilities of foreign subsidiaries and equity investments, where the local currency is the functional currency, are translated from their respective functional currencies into U.S. dollars at the rates in effect at the balance sheet date and revenue and expense amounts are translated at average rates during the period, with resulting foreign currency translation adjustments recorded in accumulated other comprehensive income (loss) as a component of stockholders’ equity. Gains and losses from the re-measurement of balances denominated in currencies other than the entity's functional currency, are recorded in other expense, net in the accompanying consolidated statements of operations and comprehensive loss.

Investment in Unconsolidated Affiliate

Equity investments in which the Company exercises significant influence, but does not control and is not the primary beneficiary, are accounted for using the equity method. Investments accounted for under the equity method of accounting are recorded at cost within other assets on the consolidated balance sheets and subsequently increased or decreased by the Company's proportionate share of the net income or loss of the investee. The Company records its proportionate share of net income or loss of the investee in net investment income. The Company records its proportionate share of other comprehensive income or loss of the investee as a component of other comprehensive income. Dividends or other equity distributions in excess of the Company's cumulative equity in earnings of the investee are recorded as a reduction of the investment. Differences in the basis of the investments and the separate net asset values of the investees, if any, are amortized into net income over the remaining useful lives of the underlying assets and liabilities, except for the excess related to goodwill, if any.

The Company believes the equity method is an appropriate means for it to recognize increases or decreases measured by U.S. GAAP in the economic resources underlying the investments. Regular evaluation of these investments is appropriate to evaluate any potential need for impairment. The Company uses evidence of a loss in value to identify if an investment has an other than a temporary decline.

Variable Interest Entities

The Company determines whether it has relationships with entities defined as variable interest entities (VIEs) in accordance with ASC 810, Consolidation . Under this guidance, a VIE is consolidated by the variable interest holder that is determined to be the primary beneficiary.

An entity in which the Company holds a variable interest is a VIE if any of the following conditions exist: (a) the total equity investment at risk is not sufficient to permit the entity to finance its activities without additional subordinated financial support, (b) as a group, the holders of equity investment at risk lack either the direct or indirect ability through voting rights or similar rights to make decisions about an entity's activities that most significantly impact the entity's economic performance or the obligation to absorb the expected losses or right to receive the expected residual returns, or (c) the voting rights of some investors are disproportionate to their obligation to absorb the expected losses of the entity, their rights to receive the expected residual returns of the entity, or both and substantially all of the entity's activities either involve or are conducted on behalf of an investor with disproportionately few voting rights.

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Ekso Bionics Holdings, Inc.
Notes to Condensed Consolidated Financial Statements
($ and share amounts in thousands, except per share amounts)
(Unaudited)


The primary beneficiary is defined as the variable interest holder that is determined to have the controlling financial interest as a result of having both (a) the power to direct the activities of a VIE that most significantly impact the economic performance of the VIE and (b) the obligation to absorb losses or right to receive benefits from the VIE that could potentially be significant to the VIE. The Company determines whether an entity is a VIE at the inception of its variable interest in the entity and upon the occurrence of certain reconsideration events. The Company continually reassesses whether it is the primary beneficiary of VIEs in which it holds a variable interest.
 
Inventory
 
Inventories are recorded at the lower of cost or net realizable value. Cost is computed using the standard cost method, which approximates actual cost on a first-in, first-out basis. Materials from vendors are received and recorded as raw material. Once the raw materials are incorporated in the fabrication of the product, the related value of the component is recorded as work in progress or WIP. Direct and indirect labor and applicable overhead costs are also allocated and recorded to WIP inventory. Finished goods are comprised of completed products that are ready for customer shipment. The Company periodically evaluates the carrying value of inventory on hand for potential excess amounts over sales and forecasted demand. Excess and obsolete inventories identified, if any, are recorded as an inventory impairment charge to the consolidated statements of operations and comprehensive loss. The Company's estimate of write downs for excess and obsolete inventory is based on a detailed analysis of on-hand inventory and purchase commitments in excess of forecasted demand. 

Leases

In February 2016, the FASB issued Accounting Standard Update, or ASU, No. 2016-02, Leases (Topic 842), to enhance the transparency and comparability of financial reporting related to leasing arrangements. The Company adopted the standard effective January 1, 2019.

At the inception of an arrangement, the Company determines whether the arrangement is or contains a lease based on the unique facts and circumstances present. Operating lease liabilities and their corresponding right-of-use assets are recorded based on the present value of lease payments over the expected lease term. The interest rate implicit in lease contracts is typically not readily determinable. As such, the Company utilizes its incremental borrowing rate, which is the rate incurred to borrow on a collateralized basis over a similar term an amount equal to the lease payments in a similar economic environment. Certain adjustments to the right-of-use asset may be required for items such as initial direct costs paid or incentives received.

Leases with an initial term of 12 months or less are not recorded on the balance sheet. The Company recognizes the lease expense for such leases on a straight-line basis over the lease term.

Lease expense is recognized over the expected term on a straight-line basis. Operating leases are recognized on the balance sheet as right-of-use assets, lease liabilities current and lease liabilities non-current. As a result, the Company no longer recognizes deferred rent on the balance sheet.

Revenue Recognition
 
Revenue is recognized upon transfer of control of promised products or services to customers in an amount that reflects the consideration the Company expects to receive in exchange for those products or services. The Company enters into contracts that can include various combinations of products and services, which when capable of being distinct, are accounted for as separate performance obligations.
 
The Company’s medical device segment (EksoHealth) revenue is primarily generated through the sale and rental of the Ekso GT and associated software (SmartAssist and VariableAssist), and sale of accessories, and support and maintenance contracts (Ekso Care). Revenue from medical device product sales is recognized at the point in time when control of the product transfers to the customer. Transfer of control generally occurs upon shipment from the Company’s facility for sales of the Ekso GT, software, and accessories. Ekso Care support and maintenance contracts extend coverage beyond the Company’s standard warranty agreements. The separately priced Ekso Care contracts range from 12 to 48 months. The Company receives payment at the inception of the contract and recognize revenue over the term of the agreement. Revenue from medical device leases is recognized over the lease term, typically over 12 months.

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Ekso Bionics Holdings, Inc.
Notes to Condensed Consolidated Financial Statements
($ and share amounts in thousands, except per share amounts)
(Unaudited)


The Company’s industrial device segment (EksoWorks) revenue is generated by the sales of the upper body exoskeleton (EksoVest) and the support arm (EksoZeroG). Revenue from industrial device sales is recognized at the point in time when control of the product transfers to the customer. Transfer of control generally occurs upon shipment from the Company’s facility.
 
Refer to Note 6 – Revenue Recognition for further information, including revenue disaggregated by source.
 
Going Concern
 
The Company assesses its ability to continue as a going concern at every interim and annual period in accordance with Accounting Standards Codification 205-40. The accompanying condensed consolidated financial statements have been prepared assuming that the Company will continue as a going concern.
 
Concentration of Credit Risk and Other Risks and Uncertainties
 
Financial instruments that potentially subject the Company to concentrations of credit risk consist principally of cash and accounts receivable. The Company maintains its cash accounts in excess of federally insured limits. However, the Company believes it is not exposed to significant credit risk due to the financial position of the depository institutions in which these deposits are held. The Company extends credit to customers in the normal course of business and performs ongoing credit evaluations of its customers. Concentrations of credit risk with respect to accounts receivable exist to the full extent of amounts presented in the condensed consolidated financial statements. The Company does not require collateral from its customers to secure accounts receivable.
 
Accounts receivable are derived from the sale of products shipped to and services performed for customers. Invoices are aged based on contractual terms with the customer. The Company reviews accounts receivable for collectability and records an allowance for credit losses, as needed. The Company has not experienced any material losses related to accounts receivable as of March 31, 2019 and December 31, 2018 .
 
Many of the sales contracts with customers outside of the U.S. are settled in a foreign currency. The Company does not enter into any foreign currency hedging agreements and is susceptible to gains and losses from foreign currency fluctuations. To date, the Company has not experienced significant gains or losses upon settling foreign currency denominated accounts receivable.
 
As of March 31, 2019 , the Company had no customers with an accounts receivable balance totaling 10% or more of the Company’s total accounts receivable compared with one customer as of December 31, 2018 ( 19% ).
 
In the three months ended March 31, 2019 and 2018 , the Company had one customer with sales of 10% or more of the Company’s total revenue ( 11% ).
 
Recent Accounting Pronouncements

In January 2017, the FASB issued ASU No. 2017-04, Simplifying the Test for Goodwill Impairment. ASU 2017-04 eliminated the requirement to calculate the implied fair value of goodwill to measure a goodwill impairment charge. Instead, entities are required to record an impairment charge based on the excess of the carrying amount over its fair value. This update will be effective for the Company beginning January 1, 2020 and early adoption is permitted. The Company does not expect the impact of adopting ASU 2017-04 to be material on its consolidated financial statements.

In August 2018, the FASB issued ASU No. 2018-13, Fair Value Measurement (Topic 820): Disclosure Framework - Changes to the Disclosure Requirements for Fair Value Measurement . The standard modifies the disclosure requirements on fair value measurements in Topic 820 by removing the requirement to disclose the reasons for transfers between Level 1 and Level 2 of the fair value hierarchy and the policy for timing of such transfers. The standard expands the disclosure requirements for Level 3 fair value measurement, primarily focused on changes in unrealized gains and losses included in other comprehensive income. The amendments in this Update will be effective for all the Company in the first quarter of 2020. Early adoption is permitted. The Company is currently evaluating the impact that the adoption of the amendments in this update will have on its consolidated financial statements and related disclosures.



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Ekso Bionics Holdings, Inc.
Notes to Condensed Consolidated Financial Statements
($ and share amounts in thousands, except per share amounts)
(Unaudited)

Recently Adopted Accounting Standards
 
In February 2016, the FASB issued ASU 2016-02-Leases (ASC 842) and subsequent amendments to the initial guidance under ASU 2017-13, ASU 2018-10 and ASU 2018-11 (collectively, Topic 842) which superseded existing guidance on accounting for leases in ASC 840, Leases (ASC 840). Topic 842 requires the Company to recognize on its balance sheet a lease liability representing the present value of future lease payments and a right-of-use asset representing the lessee's right to use, or control the use of a specified asset for the lease term for any operating lease with a term greater than one year. This standard is effective for the Company in the first quarter of 2019. The Company used the modified retrospective transition method, under which we applied the standard to each lease that had commenced as of the beginning of January 1, 2019. In addition, the Company elected to apply the package of practical expedients permitted under the transition guidance, which among other things, allowed the Company to carry forward the historical lease classification.

Upon adoption of this standard on January 1, 2019, the Company recorded right–of–use assets and corresponding lease liabilities of $1,454 and $1,498 , respectively. As of March 31, 2019 , the right–of–use assets and corresponding lease liabilities in the Company's condensed consolidated balance sheets were $1,365 and $1,412 , respectively. The adoption of this standard did not have a material impact on the Company’s condensed consolidated statements of operations or cash flows, nor did it have a material impact on the financial covenants set forth in the Company's long-term debt agreement. The Company has provided detailed disclosures as required by the new standard (Refer to Note 10, Lease Obligations).

In August 2018, the SEC published Release No. 33–10532, Disclosure Update and Simplification, or DUSTR, which adopted amendments to certain disclosure requirements that have become redundant, duplicative, overlapping, outdated or superseded, in light of other SEC disclosure requirements, GAAP, or changes in the information environment. While most of the DUSTR amendments eliminate outdated or duplicative disclosure requirements, the final rule amends the interim financial statement requirements to include a reconciliation of changes in stockholders’ equity (deficit) in the notes or as a separate statement for each period for which a statement of comprehensive income (loss) is required to be filed. The new interim reconciliation of changes in stockholders’ equity (deficit) is included herein as a separate statement.

3.    Accumulated Other Comprehensive Income (Loss)
 
The following table sets forth the changes to accumulated comprehensive income (loss), net of tax, by component for the three months ended March 31, 2019 :
 
Foreign Currency Translation
Balance at December 31, 2018
$
(92
)
Current period other comprehensive income
148

Balance at March 31, 2019
$
56

 
4.    Fair Value Measurements
 
Fair value is defined as the exchange price that would be received for an asset or paid to transfer a liability (an exit price) in the principal or most advantageous market for the asset or liability in an orderly transaction between market participants on the measurement date. Valuation techniques used to measure fair value must maximize the use of observable inputs and minimize the use of unobservable inputs. Three levels of inputs, of which the first two are considered observable and the last unobservable, may be used to measure fair value which are the following:
 
Level 1 —Quoted prices in active markets for identical assets or liabilities. The Company considers a market to be active when transactions for the asset occur with sufficient frequency and volume to provide pricing information on an ongoing basis.
Level 2 —Inputs other than Level 1 that are observable, either directly or indirectly, such as quoted prices for similar assets or liabilities; quoted prices in markets that are not active; or other inputs that are observable or can be corroborated by observable market data for substantially the full term of the assets or liabilities.

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Ekso Bionics Holdings, Inc.
Notes to Condensed Consolidated Financial Statements
($ and share amounts in thousands, except per share amounts)
(Unaudited)

Level 3 —Unobservable inputs that are supported by little or no market activity and that are significant to the fair value of the assets or liabilities. The valuation of Level 3 investments requires the use of significant management judgments or estimation.

The Company’s fair value hierarchies for its financial assets and liabilities which require fair value measurement are as follows:
 
 
Total
 
Level 1
 
Level 2
 
Level 3
March 31, 2019
 
 

 
 

 
 

 
 

Liabilities
 
 

 
 

 
 

 
 

Warrant liabilities
 
$
1,964

 
$

 
$

 
$
1,964

Contingent success fee liability
 
$
35

 
$

 
$

 
$
35

 
 
 
 
 
 
 
 
 
December 31, 2018
 
 
 
 
 
 
 
 
Liabilities
 
 
 
 
 
 
 
 
Warrant liability
 
$
585

 
$

 
$

 
$
585

Contingent success fee liability
 
$
34

 
$

 
$

 
$
34

 
The following table sets forth a summary of the changes in the fair value of the Company’s Level 3 financial liabilities for the period ended March 31, 2019 , which were measured at fair value on a recurring basis:
 
 
Warrant Liability
 
Contingent Success
Fee Liability
Balance at December 31, 2018
 
$
585

 
$
34

Loss on revaluation of warrants issued in conjunction with 2015 financing
 
1,122

 

Loss on modification of warrants
 
257

 

Loss on revaluation of contingent liability
 

 
1

Balance at March 31, 2019
 
$
1,964

 
$
35

 
Refer to Note 11 Capitalization and Equity Structure – Warrants for additional information regarding the valuation of warrants.
 
5.    Inventories, net
 
Inventories consisted of the following:
 
March 31,
2019
 
December 31,
2018
Raw materials
$
2,967

 
$
2,676

Work in progress
303

 
331

Finished goods
335

 
730

 
3,605

 
3,737

Less: inventory reserve
(305
)
 
(366
)
Inventories, net
$
3,300

 
$
3,371


6.    Revenue Recognition

Revenue is recognized upon transfer of control of promised products or services to customers in an amount that reflects the consideration the Company expects to receive in exchange for those products or services. The Company enters into contracts that can include various combinations of products and services, which when capable of being distinct, are accounted for as separate performance obligations. Revenue recognition is evaluated based on the following five steps: (i) identification of the contract with the customer; (ii) identification of the performance obligations in the contract; (iii) determination of the transaction price; (iv) allocation of the transaction price to the performance obligations in the contract; and (v) recognition of revenue when or as a performance obligation is satisfied.

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Ekso Bionics Holdings, Inc.
Notes to Condensed Consolidated Financial Statements
($ and share amounts in thousands, except per share amounts)
(Unaudited)

 
For multiple-element arrangements, revenue is allocated to each performance obligation based on its relative standalone selling price. Standalone selling prices are determined based on observable prices at which the Company separately sells its products or services. If a standalone selling price is not directly observable, the Company estimates the selling price based on market conditions and entity-specific factors including features and functionality of the product and/or services, the geography of the Company’s customers, type of the Company’s markets. Any discounts or other reductions to the transaction price are allocated proportionately to all performance obligations within the multiple-element arrangement.
 
Contract Balances
 
Timing of revenue recognition may differ from the timing of invoicing to customers and receipt of payment. For the sale of its products, the Company generally recognizes revenue at a point in time through the ship-and-bill performance obligations. For the lease of its products, the Company generally recognizes revenue over the lease term commencing upon the completion of customer training. For service agreements, the Company generally invoices customers at the beginning of the coverage period and record revenue related to the billed amounts over time, equivalent to the coverage period of the maintenance and support contract.
 
Deferred revenue is comprised mainly of unearned revenue related to extended support and maintenance contracts (Ekso Care) but also includes other offerings for which the Company has been paid in advance and earns revenue when the Company transfers control of the product or service.
 
Deferred revenues consisted of the following:
 
March 31,
2019
 
December 31,
2018
Deferred extended maintenance and support
$
2,281

 
$
2,114

Deferred royalties
300

 
300

Deferred rental income
38

 
51

Customer deposits and advances
55

 
62

Deferred device revenues
36

 
70

Total deferred revenues
2,710

 
2,597

Less current portion
(1,211
)
 
(1,102
)
Deferred revenues, non-current
$
1,499

 
$
1,495

 
Deferred revenue activity consisted of the following:
 
Three months ended March 31, 2019
Beginning balance
$
2,597

Deferral of revenue
561

Recognition of deferred revenue
(448
)
Ending balance
$
2,710

 
At March 31, 2019 , the Company’s deferred revenue, was  $2,710 .  Excluding customer deposits, the Company expects to recognize approximately  $764  of the deferred revenue in the remainder of  2019 $788  in  2020 , and  $1,103 thereafter.

In addition to deferred revenue, the Company has non-cancellable backlog of  $815  related to its contracts for rental units with its customers. These rental contracts are classified as operating leases, typically with 12 -month lease terms, and rental income is recognized on a straight-line basis over the lease term.
 
As of March 31, 2019 , and December 31, 2018 , accounts receivable, net of allowance for doubtful accounts, were $3,793 and $3,660 , respectively, and are included in current assets on the Company’s condensed consolidated balance sheets.
 

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Ekso Bionics Holdings, Inc.
Notes to Condensed Consolidated Financial Statements
($ and share amounts in thousands, except per share amounts)
(Unaudited)

The allowance for doubtful accounts reflects the Company’s best estimate of probable losses inherent in the accounts receivable balance. The Company determines the allowance based on known troubled accounts, historical experience, and other currently available evidence. Payment terms and conditions vary by contract type, although terms generally include a requirement of payment within  30  to  60  days.
 
Disaggregation of revenue
 
The following table disaggregates the Company’s revenue by major source for the three months ended March 31, 2019 :
 
EksoHealth
 
EksoWorks
 
Total
Device revenue
$
2,075

 
$
717

 
$
2,792

Service, support and rentals
705

 

 
705

Parts and other
34

 
85

 
119

 
$
2,814

 
$
802

 
$
3,616

 
7.    Investment in Unconsolidated Affiliate

On January 30, 2019, the Company entered into an agreement (the "JV Agreement") with Zhejiang Youchuang Venture Capital Investment Co., Ltd (“ZYVC”) and another partner to establish Exoskeleton Intelligent Robotics Co. Limited (the “Investee”), a Chinese limited liability company designed to develop and serve the exoskeleton market in China and other Asian markets and to create a global exoskeleton manufacturing center in the Zhejiang Province of China.

The Company has the right to receive a 20% ownership interest in the Investee in exchange for the successful transfer of licenses for its manufacturing technology and relevant Chinese patent rights (the “IP”). The Company will also be entitled to receive royalties on the Investee’s medical and industrial product sales in China, Hong Kong, Malaysia and Singapore. The Company has one year from the date of the Investee’s formation to complete the transfer of the IP. Since the transferred IP was developed internally by the Company, all previous expenditures to develop the technology were recognized as expense in the period incurred and there was no carrying value on the Company’s consolidated balance sheet. The Company expects that it will recognize a gain on the Technology License Agreement based on the fair value of the Company’s equity interest in the Investee once control of the IP is transferred.

The Investee is a VIE for which the Company is not the primary beneficiary as the Company does not have the power to direct the activities that most significantly influence the economic performance of the entity. In addition to the Company’s exchange of license rights for the manufacturing technology, the Investee will be capitalized through cash investments of up to approximately $92,000 by the other two parties over the initial ten -year term of the agreement. The investment in the Investee is accounted for under the equity method of accounting because the Company has significant influence over the Investee through its ownership interest, technology license and manufacturing service agreements and representation on the board of directors. As of March 31, 2019 , there is no impact to the Company’s consolidated balance sheet except for the direct transaction costs which have been capitalized and will be included as part of the investment balance when the IP is transferred. Direct costs of $36 are included in other assets in the Company’s condensed consolidated balance sheets as of March 31, 2019 . In addition to contributing the licensed IP, the Company’s obligations to the Investee include assisting the Investee to become proficient in using the IP to manufacture products that meet regulatory standards, and providing supervision of appointed directors. The primary risks that the Company is exposed to from its involvement with the VIE include operational risk, foreign currency exposure risk and foreign regulatory risk. As of March 31, 2019 , the Company has no other implied or unfunded commitments related to the Investee and its maximum exposure to risk of loss will be limited to the carrying value of the investment.

Equity Investments

Concurrent with the signing of the agreement, ZYVC agreed to invest an aggregate of $10,000 in equity investments in the Company taking place in two tranches. On January 30, 2019, the Company executed a Share Purchase Agreement (the “SPA”) under which the Company sold 3,067 shares of its common stock for $5,000 at a purchase price of $1.63 . The SPA contains an anti-dilution right for a 60 -day period after closing, under which the investors were entitled to receive additional common shares if the Company

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Ekso Bionics Holdings, Inc.
Notes to Condensed Consolidated Financial Statements
($ and share amounts in thousands, except per share amounts)
(Unaudited)

had issued shares at a price below $1.63 during that period. This provision expired unexercised for all investors in April 2019. The Company recorded $8 in direct issuance costs as a reduction to the gross equity proceeds.

The remaining $5,000 investment in the Company’s common stock is contingent upon the shipment of the first products from the manufacturing facility. The equity investment price will be the volume weighted average price of 20 trading days before the issuing date, but with a collar so that the equity price will be no greater than 20% higher than the first investment and lower than 80% of the first investment price.

8.    Accrued Liabilities
 
Accrued liabilities consisted of the following:
 
March 31,
2019
 
December 31,
2018
Salaries, benefits and related expenses
$
2,458

 
$
2,446

Device warranty
289

 
307

Clinical trials
273

 
227

Severance
116

 
270

Financing lease liability
36

 
35

Other
114

 
256

Total
$
3,286

 
$
3,541

 
A reconciliation of the changes in the current portion of the device warranty liability for the three -month period ended  March 31, 2019  is as follows:
 
Warranty
Balance at December 31, 2018
$
307

Additions for estimated future expense
95

Incurred costs
(113
)
Balance at March 31, 2019
$
289

 
9.    Long-Term Debt
 
In December 2016, the Company entered into a loan agreement and received $7,000 that bears interest on the outstanding daily balance at a floating per annum rate equal to the 30-day U.S. LIBOR plus 5.41% . The loan agreement created a first priority security interest with respect to substantially all assets of the Company, including proceeds of intellectual property, but expressly excluding intellectual property itself.
 
The Company was required to pay accrued interest on the current loan on the first day of each month through and including January 1, 2018. Commencing on February 1, 2018, the Company was required to make equal monthly payments of principal, together with accrued and unpaid interest. The principal balance of the current loan amortizes ratably over 36 months , and matures on January 1, 2021, at which time all unpaid principal and accrued and unpaid interest shall be due and payable in full. In addition, a final payment of $245 will be due on the maturity date, of which $194 was accreted as of March 31, 2019 , to be paid in 2021 and is included as a component of note payable on the Company’s condensed consolidated balance sheets.
 
In December 2016, and pursuant to the loan agreement, the Company entered into a success fee agreement with the lender under which the Company agreed to pay the lender a $250 success fee upon the first to occur of any of the following events: (a) a sale or other disposition by the Company of all or substantially all of its assets; (b) a merger or consolidation of the Company into or with another person or entity, where the holders of the Company’s outstanding voting equity securities immediately prior to such merger or consolidation hold less than a majority of the issued and outstanding voting equity securities of the successor or surviving person or entity immediately following the consummation of such merger or consolidation; or (c) the closing price per share for the Company’s common stock being $8.00 or more for five successive business days. The estimated fair value of the success fee

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Ekso Bionics Holdings, Inc.
Notes to Condensed Consolidated Financial Statements
($ and share amounts in thousands, except per share amounts)
(Unaudited)

was determined using the Binomial Lattice Model and was recorded as a discount to the debt obligation. The fair value of the contingent success fee is re-measured each reporting period with any adjustments in fair value being recognized in the condensed consolidated statements of operations and comprehensive loss. The success fee is classified as a liability on the condensed consolidated balance sheets. At March 31, 2019 , the fair value of the contingent success fee liability was $35 .

The loan agreement includes a liquidity covenant requiring that the Company maintain unrestricted cash and cash equivalents in accounts of the lender or subject to control agreements in favor of the lender in an amount equal to at least three months of “Monthly Cash Burn,” which is the Company’s average monthly net income (loss) for the trailing six-month period plus certain expenses and plus the average monthly principal due and payable on interest-bearing liabilities in the immediately succeeding three-month period. Such amount was determined to be $ 4,908 as of March 31, 2019 , the most current determination, with the amount subject to change on a month-to-month basis. At March 31, 2019 , with cash on hand of $9,236 , the Company was compliant with this liquidity covenant and all other covenants. 

The final payment fee, debt issuance costs, and the initial fair value of the success fee combined with the stated interest resulted in an effective interest rate of 10.47% for the three months ended March 31, 2019 . The final payment fee, initial fair value of the success fee and debt issuance costs was and will be accreted, amortized and amortized, respectively, to interest expense using the effective interest method over the life of the loan.
 
The following table presents scheduled principal payments of the Company’s long-term debt and final payment fee as of March 31, 2019 :
Period
 
Amount
2019 - remainder
 
$
1,750

2020
 
2,333

2021
 
440

Total principal payments
 
4,523

Less accreted portion of final payment fee, net of issuance cost and success fee discounts
 
97

Long-term debt, net
 
$
4,426

 
 
 
Current portion
 
$
2,333

Long-term portion
 
2,093

Long-term debt, net
 
$
4,426

 
10.    Lease Obligations

In May 2017, the Company renewed its operating lease agreement for its headquarters and manufacturing facility in Richmond, California. The operating lease agreement expires in May 2022, with no further options to extend or terminate. During the renewal period, the base rent is approximately $32 per month during the first year, with incremental 3% increases per annum thereafter. The lease includes non-lease components (i.e. common area maintenance costs) that are paid separately from rent based on actual costs incurred and therefore were not included in the right-of-use asset and lease liability but are reflected as an expense in the period incurred.

In July 2017, the Company entered into an operating lease agreement for its European operations office in Hamburg, Germany. The initial Hamburg lease term ends in July 2022. The Company has an option to extend the lease for another five -year term. Until April 2019, the Company had an unoccupied leased sales office in Freiburg, which had an original lease term expiring in December 2020. In April 2019, the Company entered an agreement with the lessor of the Freiburg office releasing the Company from future lease payments after April 30, 2019.
 
In August 2015, the Company entered into a long-term financing lease for equipment. The aggregate principal of the lease at inception was $166 , with an interest rate of 4.7% , minimum monthly payments of $3 and a July 1, 2020 maturity. This financing lease liability is classified as a component of accrued liabilities and other non-current liabilities in the condensed consolidated balance sheets.

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Table of Contents

Ekso Bionics Holdings, Inc.
Notes to Condensed Consolidated Financial Statements
($ and share amounts in thousands, except per share amounts)
(Unaudited)

 
The Company's future lease payments as of March 31, 2019 are as follows, which are presented as lease liabilities, current and lease liabilities on the Company's condensed consolidated balance sheets:
Period
 
Operating Leases
2019 - remainder
 
$
406

2020
 
551

2021
 
564

2022
 
261

2023
 

Total lease payments
 
1,782

Less: imputed interest
 
(370
)
Present value of lease liabilities
 
$
1,412

 
 
 
Lease liabilities, current
 
$
406

Lease liabilities, noncurrent
 
1,006

Total lease liabilities
 
$
1,412

 
 
 
Weighted-average remaining lease term (in years)
 
3.2

Weighted-average discount rate
 
10.5
%
 
Lease expense under the Company’s operating leases was $140 and $143 for the three months ended March 31, 2019 and 2018 , respectively.

Practical Expedients

Leases with an initial term of 12 months or less are not recorded on the balance sheet. The Company recognizes the lease expense for such leases on a straight-line basis over the lease term.

The Company has elected to account for lease (e.g., fixed payments including rent) and non-lease components (e.g., common-area maintenance costs) as a single combined lease component under ASC 842 as the lease components are the predominant elements of the combined components.

As part of the transition to ASC 842, the Company elected to use the modified retrospective transition method with the new standard being applied as of the January 1, 2019 adoption date. Additionally, the Company has elected, as of the adoption date, not to reassess whether expired or existing contracts contain leases under the new definition of a lease, not to reassess the lease classification for expired or existing leases, not to reassess whether previously capitalized initial direct costs would qualify for capitalization under ASC 842.

11.    Capitalization and Equity Structure

Summary
 
The Company’s authorized capital stock at March 31, 2019 consisted of 141,429 shares of common stock and 10,000 shares of preferred stock. At March 31, 2019 , 67,529 shares of common stock were issued and outstanding and no shares of preferred stock were issued and outstanding.

Common Stock

On August 21, 2018, the Company entered into a Controlled Equity Offering SM Sales Agreement ("ATM Agreement") with Cantor Fitzgerald & Co. (the “Agent”) under which the Company may issue and sell shares of its common stock, from time to time, to

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Table of Contents

Ekso Bionics Holdings, Inc.
Notes to Condensed Consolidated Financial Statements
($ and share amounts in thousands, except per share amounts)
(Unaudited)

or through the Agent, by methods deemed to be an “at the market offering.” Shares having an aggregate offering price of up to $ 25,000 may b e offered pursuant to a prospectus dated August 21, 2018 (the “ATM Prospectus”) under the Company’s previously filed and currently effective shelf registration statement on Form S-3 (Registration No. 333-218517). For the three months ended March 31, 2019 , the Company sold 1,294 shares of common stock under the ATM Agreement at an average price of $1.85 per share, for aggregate proceeds of $ 2,313 , net of commission and issuance costs. As of March 31, 2019 , approximately $17,734 aggregate offering price of the Company's common stock remained available for issuance pursuant to the ATM Prospectus.

On January 30, 2019, the Company sold 3,067 shares of its common stock for $5,000 at a purchase price of $1.63 under the SPA , in connection with the JV Agreement. Refer to Note 7. Investment in Unconsolidated Affiliate – Equity Investments for additional information.

Warrants
 
Warrant shares outstanding as of December 31, 2018 and March 31, 2019 were as follows:  
Source
 
Exercise
Price
 
Term
(Years)
 
December 31,
2018
 
Expired
 
March 31, 2019
Information Agent Warrants
 
$
1.50

 
3
 
200

 

 
200

2015 Warrants
 
$
2.75

 
5
 
1,604

 

 
1,604

2014 PPO and Merger
 
 
 
 
 
 
 
 
 
 
Placement agent warrants
 
$
7.00

 
5
 
426

 
(426
)
 

PPO warrants
 
$
14.00

 
5
 
1,078

 
(1,078
)
 

Pre-2014 warrants
 
$
9.66

 
9-10
 
88

 

 
88

 
 
 
 
 
 
3,396

 
(1,504
)
 
1,892

 
Information Agent Warrants
 
In September 2017, in connection with the Rights Offering in August 2017, the Company issued warrants to purchase 200 shares of the Company’s common stock with an exercise price of $1.50 per share to an information agent (the “Information Agent Warrants”). The Information Agent Warrants became exercisable immediately upon issuance. These warrants were recorded in stockholders’ equity on the Company’s condensed consolidated balance sheet.
 
2015 Warrants

In December 2015, the Company issued warrants to purchase 2,122 shares with an exercise price of $3.74 per share (the “2015 Warrants”). The 2015 Warrants contain a put-option provision. Under this provision, while the 2015 Warrants are outstanding, if the Company enters into a Fundamental Transaction, defined as a merger, consolidation or similar transaction, the Company or any successor entity will, at the option of each warrant holder, exercisable at any time within 30 days after the consummation of the Fundamental Transaction, purchase the warrant from the holder exercising such option by paying to the holder an amount of cash equal to the Black-Scholes value of the remaining unexercised portion of such holder’s warrant on the date of the consummation of the Fundamental Transaction. Because of this put-option provision, the 2015 Warrants are classified as a liability and are marked to market at each reporting date. During the years ended December 31, 2016 and 2017, 488 shares and 30 shares, respectively, of the 2015 warrants, were exercised.
 
On March 8, 2019, the Company entered into an amendment to the 2015 Purchase Agreement (the “Amendment”) to retroactively remove a provision prohibiting the Company from effecting or entering into an agreement to effect any issuance by the Company of its common stock at a price determined based on the trading price of the Company's common stock or otherwise at a future determined price and reduced the exercise price of each such warrant from $3.74 per share to $2.75 per share, subject to further adjustments pursuant to the existing terms of such warrant. In the three months ended March 31, 2019 , the Company recorded a $257 loss on the modification of these warrants.
 

19

Table of Contents

Ekso Bionics Holdings, Inc.
Notes to Condensed Consolidated Financial Statements
($ and share amounts in thousands, except per share amounts)
(Unaudited)

The warrant liability related to the 2015 Warrants is measured at fair value at each reporting date using certain estimated inputs, which are classified within Level 3 of the fair value hierarchy. The following assumptions were used in the Black Scholes Option Pricing Model to measure the fair value of the 2015 warrants as of March 31, 2019 :
Current share price
$
2.51

Conversion price
$
2.75

Risk-free interest rate
2.30%

Term (years)
1.75

Volatility of stock
102.0%


12.    Stock-based Compensation
 
In June 2018, the Company’s stockholders ratified an amendment to the Company’s Amended and Restated 2014 Equity Incentive Plan (the “2014 Plan”), which was first approved by the stockholders in December 2017, to increase the number of shares available for grant by 4,400 shares.  As of March 31, 2019 , the total shares authorized for grant under the 2014 Plan was 9,114 , of which 1,580 were available for future grants.
 
Stock Options
 
The following table summarizes information about the Company’s stock options outstanding as of March 31, 2019 , and activity during the three months then ended:
 
Stock
Awards
 
Weighted-
Average
Exercise Price
 
Weighted-
Average
Remaining
Contractual
Life (Years)
 
Aggregate
Intrinsic
Value
Balance as of December 31, 2018
6,466

 
$
3.05

 
 
 
 
Options granted
65

 
$
2.23

 
 
 
 
Options exercised
(54
)
 
1.23

 
 
 
 
Options forfeited
(372
)
 
$
2.07

 
 
 
 
Options cancelled

 
$

 
 
 
 
Balance as of March 31, 2019
6,105

 
$
3.12

 
7.64
 
$
2,959

Vested and expected to vest at March 31, 2019
6,105

 
$
3.12

 
7.64
 
$
2,959

Exercisable as of March 31, 2019
2,602

 
$
4.64

 
5.59
 
$
823

 
As of March 31, 2019 , total unrecognized compensation cost related to unvested stock options was $4,856 . This amount is expected to be recognized as stock-based compensation expense in the Company’s condensed consolidated statements of operations and comprehensive income over the remaining weighted average vesting period of 2.85 years.
 
The per-share fair value of each stock option was determined on the date of grant using the Black-Scholes option pricing model using the following assumptions:
 
Three Months Ended March 31,
 
2019
 
2018
Dividend yield

 

Risk-free interest rate
2.45
%
 
2.74
%
Expected term (in years)
6

 
10

Volatility
103
%
 
88
%
 
Restricted Stock Units

20

Table of Contents

Ekso Bionics Holdings, Inc.
Notes to Condensed Consolidated Financial Statements
($ and share amounts in thousands, except per share amounts)
(Unaudited)

 
The Company issues restricted stock units (“RSUs”) to employees and non-employee service providers as permitted by the 2014 Plan. Each RSU represents the right to receive one share of the Company’s common stock upon vesting and subsequent settlement. The fair value of RSUs is determined based on the closing price of the Company’s common stock on the date of grant.
 
RSU activity for the period ended March 31, 2019 is summarized below:
 
Number of
Shares
 
Weighted-
Average Grant
Date Fair Value
Unvested as of December 31, 2018
278

 
$
1.83

Granted

 
$

Vested

 
$

Forfeited
(13
)
 
$
2.50

Unvested at March 31, 2019
265

 
$
1.79

 
As of March 31, 2019 , $387 of total unrecognized compensation expense related to unvested RSUs was expected to be recognized over a weighted average period of 3.24 years.
   
Compensation Expense
 
Total stock-based compensation expense related to options and RSUs granted to employees and non-employees is included in the condensed consolidated statements of operations and comprehensive loss as follows:
 
Three Months Ended March 31,
 
2019
 
2018
Sales and marketing
$
223

 
$
109

Research and development
45

 
179

General and administrative
368

 
604

 
$
636

 
$
892

 
401(k) Plan Share Match
 
In August 2017, the Company’s Board of Directors approved a match benefit to the Ekso Bionics 401(k) plan (the “401(k) Plan”) in the form of shares of the Company’s common stock.

During the three months ended March 31, 2019 , the Company issued 141 shares of common stock to eligible employees’ deferral accounts for the 401(k) Plan matching contribution representing 50% of each eligible employee’s elected deferral (up to the statutory limit) for the year ending December 31, 2018.
  
13.    Income Taxes

There were no material changes to the unrecognized tax benefits in the three months ended March 31, 2019 , and the Company does not expect significant changes to unrecognized tax benefits through the end of the fiscal year. Because of the Company’s history of tax losses, all years remain open to tax examination.
 
14.    Commitments and Contingencies

Material Contracts
 
The Company enters various license, research collaboration and development agreements which provide for payments to the Company for government grants, fees, cost reimbursements typically with a markup, technology transfer and license fees, and royalty payments on sales.

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Ekso Bionics Holdings, Inc.
Notes to Condensed Consolidated Financial Statements
($ and share amounts in thousands, except per share amounts)
(Unaudited)

 
The Company has two license agreements with the Regents of the University of California to maintain exclusive rights to certain patents. Pursuant to those license agreements, the Company is required to pay 1% of net sales of products sold to entities other than the U.S. government and, in the event of a sub-license, the Company owes 21% of license fees and must pass through 1% of the sub-licensee’s net sales of products sold to entities other than the U.S. government. The agreements also stipulate minimum annual royalties of $50 .
 
In connection with acquisition of Equipois, the Company assumed the rights and obligations of Equipois under a license agreement with the developer of certain intellectual property related to mechanical balance and support arm technologies, which grants the Company an exclusive license with respect to the technology and patent rights for certain fields of use. Pursuant to the terms of the license agreement, the Company pays the developer a single-digit royalty on net receipts, subject to a $50 annual minimum royalty requirement.
 
The Company purchases components from a variety of suppliers and use contract manufacturers to provide manufacturing services for its products. Purchase obligations are defined as agreements that are enforceable and legally binding and that specify all significant terms, including: fixed or minimum quantities to be purchased; fixed, minimum or variable price provisions; and the approximate timing of the transaction. The Company had purchase obligations primarily for purchases of inventory and manufacturing related service contracts totaling  $1,221  as of March 31, 2019 , which is expected to be paid within a year. Timing of payments and actual amounts paid may be different depending on the time of receipt of goods or services or changes to agreed-upon amounts for some obligations.
 
Contingencies
 
In the normal course of business, the Company is subject to various legal matters. In the opinion of management, the resolution of such matters will not have a material adverse effect on the Company’s condensed consolidated financial statements.
 
15.    Net Loss Per Share
 
The following table sets forth the computation of basic and diluted net loss per share:
 
Three Months Ended
March 31,
 
2019
 
2018
Numerator:
 

 
 

Net loss applicable to common stockholders, basic and diluted
$
(6,551
)
 
$
(7,901
)
Denominator:
 
 
 
Weighted-average number of shares, basic and diluted
65,067

 
60,146

 
 
 
 
Net loss per share, basic and diluted
$
(0.10
)
 
$
(0.13
)
 
The following table sets forth potential shares of common stock that are not included in the calculation of diluted net loss per share because to do so would be anti-dilutive as of the end of each period presented:
 
Three Months Ended
March 31,
 
2019
 
2018
Options to purchase common stock
6,105

 
2,898

Restricted stock
265

 
125

Warrants for common stock
1,892

 
3,396

Total common stock equivalents
8,262

 
6,419


16.    Segment Disclosures
 

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Ekso Bionics Holdings, Inc.
Notes to Condensed Consolidated Financial Statements
($ and share amounts in thousands, except per share amounts)
(Unaudited)

The Company has two reportable segments: EksoHealth (also referred to as the medical devices segment) and EksoWorks (also referred to as the industrial devices segment). The EksoHealth segment designs, engineers, manufactures, and sells exoskeletons for applications in the medical markets. The EksoWorks segment designs, engineers, manufactures, and sells exoskeleton devices to allow able-bodied users to perform heavy duty work for extended periods.
 
The Company evaluates performance and allocates resources based on segment gross profit margin. The reportable segments are each managed separately because they serve distinct markets, and one segment provides a service and the others manufacture and distribute unique products. The Company does not consider net assets as a segment measure and, accordingly, assets are not allocated.
 
Segment reporting information is as follows:
 
EksoHealth
 
EksoWorks
 
Total
Three months ended March 31, 2019
 

 
 

 
 

Revenue
$
2,814

 
$
802

 
$
3,616

Cost of revenue
1,300

 
717

 
2,017

Gross profit
$
1,514

 
$
85

 
$
1,599

 
 
 
 
 
 
Three months ended March 31, 2018
 

 
 

 
 

Revenue
$
2,122

 
$
396

 
$
2,518

Cost of revenue
1,387

 
364

 
1,751

Gross profit
$
735

 
$
32

 
$
767

 
Geographic information for revenue based on location of customers is as follows:
 
Three Months Ended March 31,
 
2019
 
2018
United States
$
2,371

 
$
1,353

All Other
1,245

 
1,165

 
$
3,616

 
$
2,518


17.    Related Party Transactions

One of the Company’s directors, Dr. Ted Wang, is the founder, general partner and Chief Investment Officer of Puissance Capital Management LP, or Puissance Capital, which is an affiliate of Puissance Cross-Border Opportunities II LLC, one of the Company’s largest stockholders. Prior to Dr. Wang’s appointment to the Board in September 2017, the Company entered into a one -year consulting agreement with Angel Pond Capital LLC, or Angel Pond, an entity solely owned and managed by Dr. Wang and affiliated with Puissance Capital. Angel Pond assists the Company with strategic positioning in the Asia Pacific region, including the introduction to potential strategic and capital partners and the development of strategic partnerships for the sale and manufacture of the Company’s products in that market. During the three months ended March 31, 2019 , Angel Pond provided consulting services amounting to $30 , which was expensed in the condensed consolidated statement of operations and comprehensive loss.

In connection with the consulting agreement with Angel Pond, the Company is required to make a payment of $1,000 to Angel Pond when a China joint venture is formed and registered in China. This amount has not yet been recorded in the Company's condensed consolidated financial statements as the joint venture has not completed registration in China.
  
18.     Subsequent Events

As previously reported, on January 30, 2019, Ekso Bionics, Inc. (“Ekso US”), a wholly-owned subsidiary of the Company, the Company, Zhejiang Youchuang Venture Capital Investment Co., Ltd. (“ZYVC”) and Shaoxing City Keqiao District Paradise Silicon Intelligent Robot Industrial Investment Partnership (Limited Partnership) (the “Industrial Investment Fund” and, together with ZYVC, the “JV Partners”) entered into an Equity Joint Venture Contract (the “JV Agreement”). The JV Agreement relates

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Ekso Bionics Holdings, Inc.
Notes to Condensed Consolidated Financial Statements
($ and share amounts in thousands, except per share amounts)
(Unaudited)

to the establishment and operation of a joint venture company called Exoskeleton Intelligent Robotics Co. Limited (the “China JV”) designed to develop and serve the exoskeleton market in China and other Asian markets and to create a global exoskeleton manufacturing center, and to the financing of the Company, as well as an obligation to fund the Company with an additional $5.0 million subject to satisfaction of certain conditions.
On April 30, 2019, Ekso US, the Company and the JV Partners entered into an Amendment to the JV Agreement (the “JV Amendment”). Among certain other clarifying changes, the JV Amendment reduces the amount of capital contributions required to be made by the JV Partners within 90 days of the formation of the China JV from 30% (or RMB 187.2 million ) to 10% (or RMB 62.4 million ) and requires that the JV Partners contribute RMB 124.8 million of their capital contributions upon notice by the China JV based on the China JV’s then current operating plan. The remaining RMB 436.8 million capital contribution of the JV Partners will be paid by them within the 10 years after the formation of the China JV as previously contemplated under the JV Agreement.


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Table of Contents

Item 2.  Management’s Discussion and Analysis of Financial Condition and Results of Operations
 
You should read the following discussion of our financial condition and results of operation in conjunction with the condensed consolidated financial statements and the notes thereto included elsewhere in this Quarterly Report on Form 10-Q and in our Annual Report on Form 10-K for the year ended December 31, 2018 .
 
This Quarterly Report on Form 10-Q contains forward-looking statements. These forward-looking statements include all statements other than statements of historical facts contained or incorporated by reference in this quarterly report, including statements regarding (i) the plans and objectives of management for future operations, including plans or objectives relating to the design, development and commercialization of human exoskeletons, (ii) a projection of income (including income/loss), earnings (including earnings/loss) per share, capital expenditures, dividends, capital structure or other financial items, (iii) our future financial performance, including any such statement contained in a discussion and analysis of financial condition by management or in the results of operations included pursuant to the rules and regulations of the SEC, (iv) our beliefs regarding the potential for commercial opportunity for exoskeleton technology in general and our exoskeleton products in particular, (v) our beliefs regarding potential clinical and other health benefits of our medical devices, and (vi) the assumptions underlying or relating to any statement described in points (i), (ii), (iii), (iv) or (v) above. The words “may,” “might,” “would,” “should,” “could,” “project,” “estimate,” “pro-forma,” “predict,” “potential,” “strategy,” “anticipate,” “attempt,” “develop,” “plan,” “help,” “believe,” “continue,” “intend,” “expect,” “future,” and similar expressions (including the negative of any of the foregoing) are intended to identify forward-looking statements.
 
The following factors, among others, including those described in the section titled “Risk Factors” included in our Annual Report on Form 10-K for the year ended December 31, 2018 , as updated and supplemented in this Quarterly Report under the heading “Part II – Item 1A. Risk Factors”, could cause our future results to differ materially from those expressed in the forward-looking information:
 
our ability to obtain adequate financing to fund operations and to develop or enhance our technology;
our ability to obtain or maintain regulatory approval to market the Company’s medical devices;
the anticipated timing, cost and progress of the development and commercialization of new products or services, and improvements to our existing products, and related impacts on our profitability and cash position;
our ability to effectively market and sell our products and expand our business, both in unit sales and product diversification;
our ability to achieve broad customer adoption of our products and services;
our ability to complete clinical trials on a timely basis and that completed clinical trials will be sufficient to support commercialization of our products;
existing or increased competition;
rapid changes in technological solutions available to our markets;
volatility with our business, including long and variable sales cycles, which could have a negative impact on our results of operations for any given quarter;
our ability to obtain or maintain patent protection for the Company’s intellectual property;
the scope, validity and enforceability of our and third-party intellectual property rights;
significant government regulation of medical devices and the healthcare industry;
our customers’ ability to get third-party reimbursement for our products and services associated with them;
our failure to implement our business plan or strategies;
our ability to retain or attract key employees;
stock volatility or illiquidity;
our ability to maintain adequate internal controls over financial reporting; and
overall economic and market conditions.

Although we believe that the assumptions underlying the forward-looking statements and forward-looking information contained herein are reasonable, any of the assumptions could be inaccurate, and therefore such statements and information included in this Quarterly Report on Form 10-Q may not prove to be accurate. In light of the significant uncertainties inherent in the forward-looking statements and forward-looking information included herein, the inclusion of such statements and information should not be regarded as a representation by us or any other person that the results or conditions described in such statements and information or that our objectives and plans will be achieved. Such forward-looking statements speak only as of the date of this report. Except as required by law, we undertake no obligation to update any forward-looking statements to reflect events or circumstances after the date of such statements.
 

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Table of Contents

Overview
 
We design, develop and sell exoskeleton technology to augment human strength, endurance and mobility. Our exoskeleton technology serves multiple markets and can be used both by able-bodied users as well as by persons with physical disabilities. We have sold, rented or leased devices that (a) enable individuals with neurological conditions affecting gait (stroke and spinal cord injury) to rehabilitate and to walk again and (b) allow industrial workers to perform heavy duty work for extended periods.
 
Today, our medical exoskeleton, Ekso GT, is used as a rehabilitation tool to allow physicians and therapists to rehabilitate patients who have suffered a stroke or spinal cord injury. With its unique features designed specifically for hospitals and its proprietary SmartAssist software, Ekso GT allows for the early mobilization of patients, with high step count and high dosage treatments. The intent is to allow the patient’s central nervous system to take advantage of a person’s neuroplasticity to maximize a patient’s recovery.
 
For able-bodied industrial workers, we introduced in 2017 a second commercial product for industrial applications, the EksoVest,  an upper body exoskeleton that elevates and supports a worker's arms to assist them with tasks ranging from chest height to overhead. It is lightweight and low profile, making it comfortable to wear in all conditions while enabling freedom of motion. The goal is for workplaces with the EksoVest to experience fewer on-site injuries while tasks are completed faster and with higher quality results, for workers to stay healthier and experience increased stamina, and for companies to gain greater productivity in factories and on construction sites. In 2019, we are focusing on increasing sales of the EksoVest and EksoZeroG by pursuing alternative channels such as rental agreements with construction equipment and heavy tool providers and working with automotive and related manufacturers to roll out our product(s) globally within their assembly operations. In addition, we believe there is additional mid-to-long-term potential in the industrial markets, and accordingly, we will continue our development efforts to expand our EksoWorks product offerings.
 
We believe the commercial opportunity for exoskeleton technology adoption is accelerating as a result of recent advancements in material technologies, electronic and electrical engineering, control technologies, and sensor and software development. Taken individually, many of these advancements have become ubiquitous in peoples’ everyday lives. We believe that we have learned how to integrate these existing technologies and wrap the result around a human being efficiently, elegantly and safely, supported by an industry leading intellectual property portfolio. We further believe that we can do so across a broad spectrum of applications, from persons with lower limb paralysis to able-bodied users.
 
First Quarter 2019 Highlights

In January 2019, we entered into a joint venture agreement (the “JV Agreement”) to form a Chinese limited liability company (the “China JV”) to develop and serve the exoskeleton market in China and other Asian markets and to create a global exoskeleton manufacturing center. In connection with the China JV, one of the China JV partner affiliates agreed to purchase an aggregate of 3,067,485 shares of our common stock at a price per share equal to $1.63, for aggregate proceeds to us of $5.0 million, which we received in February 2019. In addition, within thirty (30) business days of the China JV delivering its first batch of finished products to Ekso US, its affiliates or a third-party buyer located in the JV territory, the China JV or the China JV partner are obligated to invest a further $5.0 million in our common stock in accordance with the terms of the JV Agreement.

In the three months ended March 31, 2019 , we sold  1.3 million  shares of our common stock under our at-the-market offering program at an average price of  $1.85  per share, for aggregate proceeds of  $2.3 million , net of commission.
In the three months ended March 31, 2019 , we booked 23 Ekso GT units, 9 of which were rental units and 4 previously rented units were converted to sales.
Critical Accounting Policies and Estimates
 
Our discussion and analysis of our financial condition and results of operations is based upon our condensed consolidated financial statements, which have been prepared in accordance with U.S. GAAP. The preparation of these condensed consolidated financial statements requires us to make estimates, judgments and assumptions that affect the reported amounts of assets, liabilities, revenue and expenses, and the related disclosure of contingent assets and liabilities. We base our estimates on historical experience and on various other assumptions that we believe are reasonable under the circumstances. Our estimates form the basis for our judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. Actual results may differ from these estimates.
 

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Table of Contents

An accounting policy is considered to be critical if it requires an accounting estimate to be made based on assumptions about matters that are highly uncertain at the time the estimate is made, and if different estimates that reasonably could have been used, or changes in the accounting estimate that are reasonably likely to occur, could materially impact the condensed consolidated financial statements. We believe that our critical accounting policies reflect the more significant estimates and assumptions used in the preparation of the condensed consolidated financial statements.

Adoption of New Accounting Policy
 
In February 2016, the FASB issued ASU 2016-02-Leases (ASC 842) and subsequent amendments to the initial guidance under ASU 2017-13, ASU 2018-10 and ASU 2018-11 (collectively, Topic 842) which superseded existing guidance on accounting for leases in ASC 840, Leases (ASC 840). Topic 842 requires us to recognize on our balance sheet a lease liability representing the present value of future lease payments and a right-of-use asset representing the lessee's right to use, or control the use of a specified asset for the lease term for any operating lease with a term greater than one year. This standard is effective for us in the first quarter of 2019. We used the modified retrospective transition method, under which we applied the standard to each lease that had commenced as of the beginning of January 1, 2019. In addition, we elected to apply the package of practical expedients permitted under the transition guidance, which among other things, allowed us to carry forward the historical lease classification.

The adoption of this standard had a material impact on our condensed consolidated balance sheets, with the recognition of right of use assets and corresponding lease liabilities in the amounts of $1.5 million and $1.5 million respectively. The adoption of this standard did not have a material impact on our condensed consolidated statements of operations or cash flows, nor did it have a material impact on the financial covenants set forth in our long-term debt agreement. We have provided detailed right of use asset and liability disclosures as required by the new standard in Note 10 in the notes to our condensed consolidated financial statements under the caption Lease Obligations .
 
Results of Operations
 
The following table presents our results of operations (in thousands):
 
Three months ended March 31,
 
 
 
 
 
2019
 
2018
 
Change
 
% Change
 
 

 
 

 
 

 
 

Revenue
$
3,616

 
$
2,518

 
$
1,098

 
44
 %
Cost of Revenue
2,017

 
1,751

 
266

 
15
 %
Gross profit
1,599

 
767

 
832

 
108
 %
Operating expenses:
 

 
 

 
 

 
 

Sales and marketing
2,809

 
3,853

 
(1,044
)
 
(27
)%
Research and development
1,384

 
1,808

 
(424
)
 
(23
)%
General and administrative
2,317

 
3,738

 
(1,421
)
 
(38
)%
Change in fair value, contingent liabilities
1

 
(19
)
 
20

 
(105
)%
Total operating expenses
6,511

 
9,380

 
(2,869
)
 
(31
)%
Loss from operations
(4,912
)
 
(8,613
)
 
3,701

 
(43
)%
Other income (expense), net:
 

 
 

 
 

 
 

Interest expense
(121
)
 
(163
)
 
42

 
(26
)%
(Loss) gain on warrant liability
(1,122
)
 
732

 
(1,854
)
 
(253
)%
Loss on modification of warrant
(257
)
 

 
(257
)
 
 %
Other (expense) income, net
(139
)
 
143

 
(282
)
 
(197
)%
Total other (expense) income, net
(1,639
)
 
712

 
(2,351
)
 
(330
)%
Net loss
$
(6,551
)
 
$
(7,901
)
 
$
1,350

 
(17
)%
 
Revenue
 
Device and related revenue increased $ 1.1 million , or 44% , for the three months ended March 31, 2019 , compared to the same period of 2018 . This increase was made up of a $0.7 million increase in EksoHealth revenue and $0.4 million increase in EksoWorks revenue, primarily due to a higher volume of device sales.
 


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Table of Contents

Gross Profit
 
Gross profit increased $ 0.8 million , or 108% , for the three months ended March 31, 2019 , compared to the same period of 2018 , primarily due to higher volume and average selling price of EksoHealth devices.
 
Operating Expenses
 
Sales and marketing expenses decreased $ 1.0 million , or 27% , for the three months ended March 31, 2019 , compared to the same period of 2018 , primarily due to lower employment costs from decreased headcount, a decrease in advertising and trade show activities, and the absence of amortization expense related to intangible assets as intangible assets were fully amortized as of December 31, 2018.
 
Research and development expenses decreased $ 0.4 million , or 23% , for the three months ended March 31, 2019 , compared to the same period of 2018 , primarily due to lower employment costs from decreased headcount in the EksoWorks business unit.
 
General and administrative expenses decreased $ 1.4 million , or 38% , for the three months ended March 31, 2019 , compared to the same period of 2018 , primarily due to the absence of a severance charge related to the departure of our then Chief Executive Officer which was recorded in the comparable period and lower external consulting costs in the three months ended March 31, 2019.
 
Change in fair value, contingent liabilities for the three months ended March 31, 2019 , included changes of fair value of the contingent liabilities related to a success fee on our outstanding debt our lender.
 
Total Other (Expense) Income, Net
 
Loss on revaluation of warrant liability of $ 1.1 million for the three months ended March 31, 2019 was associated with the revaluation of warrants issued in 2015, compared to a $ 0.7 million gain upon revaluation of warrant liability for the three months ended March 31, 2018 . Losses on revaluation of warrant liability are caused by increases in our stock price, while gains upon revaluation of warrant liability are caused by decreases in our stock price.

Loss on modification of warrants of $0.3 million for the three months ended March 31, 2019 was due to the reduction of the warrant exercise price (See Note 11 in the notes to our condensed consolidated financial statements under the caption . Capitalization and Equity Structure). There was no comparable amount for the three months ended March 31, 2018 .
 
Other (expense) income, net decreased $ 0.3 million , or 197% , for the three months ended March 31, 2019 , compared to the same period of 2018 , due to unrealized gains and losses on foreign currency revaluations of inter-company monetary assets and liabilities.
 
Financial Condition, Liquidity and Capital Resource
 
Since the Company’s inception, it has devoted substantially all its efforts toward the development of exoskeletons for the medical and industrial markets, toward the commercialization of medical exoskeletons to rehabilitation centers and toward raising capital. The Company has financed our operations primarily through the issuance and sale of equity securities for cash consideration and through bank debt.
 
Liquidity and Capital Resources
 
As of March 31, 2019 , we had an accumulated deficit of $ 177.7 million .  Largely as a result of significant research and development activities related to the development of our advanced technology and commercialization of this technology into our medical device business, we have incurred significant operating losses and negative cash flows from operations since inception. In the three months ended March 31, 2019 , we used $ 5.2 million of cash in our operations.
  
Cash on hand at March 31, 2019 was $ 9.2 million , compared to $ 7.7 million at December 31, 2018 . As noted in Note 9 in the notes to our condensed consolidated financial statements under the caption  Long-Term Debt , borrowings under our long-term debt agreement have a requirement of minimum cash on hand roughly equivalent to three months of cash burn. As of March 31, 2019 , the most recent determination of this restriction, $ 4.9 million of cash must remain as restricted, with such amounts to be re-computed at each month end. After considering cash restrictions, effective unrestricted cash as of March 31, 2019 is estimated to be $ 4.3 million . Based on current forecasted amounts, our cash on hand will not be sufficient to satisfy our operations for the next twelve months from the date of issuance of these condensed consolidated financial statements, which raises substantial doubt about our ability to continue as a going concern.

28

Table of Contents

 
Based upon our current cash resources, the recent rate of using cash for operations and investment, and assuming modest increases in current revenue, we believe we have sufficient resources to meet our financial obligations until late in the second quarter of 2019. While we will require significant additional financing, our actual capital requirements may vary significantly and will depend on many factors. We plan to continue our investments (i) in our clinical and sales initiatives to accelerate adoption of the Ekso robotic exoskeleton in the rehabilitation market, (ii) in our research, development and commercialization activities with respect to an Ekso robotic exoskeleton for rehabilitation, and/or (iii) in the development and commercialization of able-bodied exoskeletons for industrial use.

We are actively pursuing opportunities to obtain additional financing through public or private equity and/or debt financings and corporate collaborations. Sales of additional equity securities by the Company could result in the dilution of the interests of existing stockholders. There can be no assurance that financing will be available when required in sufficient amounts, on acceptable terms or at all. In the event that the necessary additional financing is not obtained, we may be required to further reduce our discretionary overhead costs substantially, including research and development, general and administrative, and sales and marketing expenses or otherwise curtail operations.
   
Cash and Cash Equivalents
 
The following table summarizes the sources and uses of cash (in thousands). We held no cash equivalents for any of the periods presented.
 
Three months ended March 31,
 
2019
 
2018
Net cash used in operating activities
$
(5,177
)
 
$
(6,745
)
Net cash used in investing activities
(7
)
 
(31
)
Net cash provided (used in) by financing activities
6,769

 
(399
)
Effect of exchange rate changes on cash
(4
)
 
(66
)
Net increase (decrease) in cash
1,581

 
(7,241
)
Cash at the beginning of the period
7,655

 
27,813

Cash at the end of the period
$
9,236

 
$
20,572

 
Net Cash Used in Operating Activities
 
Net cash used in operations decreased $ 1.6 million , or 23% , for the three months ended March 31, 2019 , compared to the same period of 2018 primarily due to decreased employment costs as a result of lower headcount, lower consulting and marketing related costs, and an increase in cash collections related to an increase in sales.

Net Cash Provided by (Used in) Financing Activities
 
Net cash provided by financing activities of $ 6.8 million for the three months ended March 31, 2019 was from the sale of common stock under our "at the market offering" program of $2.3 million and proceeds of $5.0 million from equity investors associated with the JV Agreement, offset by aggregate principal payments of $0.6 million against our term loan.
 
Net cash used in financing activities of $ 0.4 million for the three months ended March 31, 2018 was related to aggregate principal payments against our term loan.

Contractual Obligations and Commitments
 
The following table summarizes our outstanding contractual obligations as of March 31, 2019 , and the effect those obligations are expected to have on our liquidity and cash flows in future periods (in thousands):

29


 
Payments Due By Period:
 
Total
 
Less than
One Year
 
1-3 Years
 
3-5 Years
 
After
5 Years
Term loan
$
4,847

 
$
2,587

 
$
2,260

 
$

 
$

Facility operating leases
1,782

 
543

 
1,239

 

 

Purchase obligations
1,221

 
1,221

 

 

 

Financing lease
48

 
36

 
12

 

 
 
Total
$
7,898

 
$
4,387

 
$
3,511

 
$

 
$


In addition to the table above, which reflects only fixed payment obligations, we have two license agreements to maintain exclusive rights to certain patents. Under these license agreements, we are required to pay 1% of net sales of products sold to entities other than the U.S. government. In the event of a sublicense, the Company owes 21% of license fees and must pass through 1% of the sub-licensee’s net sales of products sold to entities other than the U.S. government. The license agreements also stipulate minimum annual royalties of $50,000 per year.
 
In connection with our acquisition of Equipois in December 2015, we assumed the rights and obligations of Equipois under a license agreement with the developer of certain intellectual property related to mechanical balance and support arm technologies, which grants us an exclusive license with respect to the technology and patent rights for certain fields of use. Pursuant to the terms of the license agreement, we pay the developer a single-digit royalty on net receipts, subject to a $50,000 annual minimum royalty requirement.
 
We purchase components from a variety of suppliers and use contract manufacturers to provide manufacturing services for our products. Purchase obligations are defined as agreements that are enforceable and legally binding and that specify all significant terms, including: fixed or minimum quantities to be purchased; fixed, minimum or variable price provisions; and the approximate timing of the transaction. We had purchase obligations primarily for purchases of inventory and manufacturing related service contracts totaling $ 1.2 million  as of March 31, 2019 , which is expected to be paid within a year. Timing of payments and actual amounts paid may be different depending on the time of receipt of goods or services or changes to agreed-upon amounts for some obligations.
 
Item 3. Quantitative and Qualitative Disclosure About Market Risk
 
We are exposed to market risks in the ordinary course of our business, including inflation risks.
 
We do not believe that inflation has had a material effect on our business, financial condition or results of operations. If our costs were to become subject to significant inflationary pressures, we may not be able to fully offset such higher costs through price increases. Our inability or failure to do so could harm our business, financial condition and results of operations.
 
In addition, we conduct business in foreign countries and have subsidiaries based in Germany and Singapore. Accordingly, we are exposed to exchange rate risk. See Item 7A. Quantitative and Qualitative Disclosures About Market Risk in our Annual Report on Form 10-K for the year ended December 31, 2018 .
 
Item 4. Controls and Procedures
 
Disclosure Controls and Procedures.
 
Our management, with the participation of our principal executive officer and principal financial officer, conducted an evaluation of our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended (“Exchange Act”)) as of the end of the period covered by this report. Based upon that evaluation, our principal executive officer and principal financial officer concluded that, as of such date, our disclosure controls and procedures were effective to ensure that information required to be disclosed in reports filed by us under the Exchange Act is recorded, processed, summarized and reported within the required time periods and is accumulated and communicated to our management, including our principal executive officer and principal financial officer, as appropriate, to allow timely decisions regarding required disclosure.
 
It should be noted that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving their objectives and management necessarily applies its judgment and makes assumptions about the likelihood of future events. There can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions, regardless of how remote.  Management believes that the financial statements included in this report fairly present in all material respects our financial condition, results of operations and cash flows for the periods presented.

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Changes in Internal Control Over Financial Reporting
 
There were no changes in our internal control over financial reporting that occurred during the most recent fiscal quarter that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting. 

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PART II. OTHER INFORMATION
 
Item 1. Legal Proceedings
In December 2017, the Company disclosed that management had identified a material weakness in the Company’s internal controls over financial reporting due to a deficiency in the Company’s information technology (IT) general controls and segregation of duties. The Company has since implemented a more robust accounting and enterprise resource planning system. In response to the Company’s announcement, on February 5, 2018, a shareholder filed a derivative action in Nevada state court:  D’Arcy v. Looby et al. (Clark County, Nevada), Case No. a-18-768970-B (filed Feb. 5, 2018). The complaint alleges state law claims for breach of fiduciary duties, unjust enrichment, abuse of control, gross mismanagement, and waste of corporate assets. The Company’s management believes that the lawsuit is without merit, and the Company plans to defend against it. On March 1, 2019, the Company filed motions to dismiss the complaint. In lieu of defending the complaint, plaintiff sought to amend the complaint. Plaintiff’s amended complaint is due on May 24, 2019. The Company’s response to the amended complaint is due on June 28, 2019.
On July 26, 2018, July 31, 2018, and August 14, 2018, three shareholders filed separate derivative actions in California state court:  Elmes v. Peurach et al.  (Contra Costa County, California), Case No. CIVMSC18-01470 (filed July 26, 2018);  Leung v. Peurach et al. (Contra Costa County, California), Case No. CIVMSC18-01554 (filed July 31, 2018); and  Herby v. Hamilton et al.  (Contra Costa County, California), Case No. CIVMSC18-01642 (filed August 14, 2018). The  Elmes , Leung , and  Herby  complaints allege state law claims for breach of fiduciary duties, unjust enrichment, and waste of corporate assets. On October 3, 2018, the court consolidated the  Elmes Leung , and  Herby  actions, which are now maintained as one action:  Elmes v. Peurach et al.  (Contra Costa County, California), Case No. CIVMSC18-01470 (filed July 26, 2018). On December 20, 2018, the Company filed a motion to dismiss the actions. In lieu of defending the complaint, plaintiffs sought to amend the complaint. On April 4, 2019, plaintiffs filed a consolidated complaint in the Elmes action. The Company’s response to the consolidated complaint is due on May 7, 2019. The Company’s management believes that the lawsuit is without merit, and the Company plans to defend against it.
On January 18, 2019, plaintiffs in the  In re Ekso Bionics Holdings Corp. Derivative Litigation (previously described in the Company’s Annual Report on Form 10-K filed with the SEC on February 28, 2019)   filed a voluntary dismissal and stated their intent to join the  Elmes  action. On January 23, 2019, the court granted plaintiffs’ request and dismissed the lawsuit without prejudice.

Item 1A. Risk Factors

Other than as described below, we have not identified any material changes to the risk factors previously disclosed in Part I-Item 1A-“Risk Factors” in our Annual Report filed on Form 10-K for the fiscal year ended December 31, 2018 (the “Annual Report”). Our business, financial condition and operating results can be affected by a number of factors, whether currently known or unknown, including but not limited to those described below or in the Annual Report, any one or more of which could, directly or indirectly, cause our actual financial condition and operating results to vary materially from past, or from anticipated future, financial condition and operating results. Any of these factors, in whole or in part, could materially and adversely affect our business, financial condition, operating results and stock price. You should carefully consider the risks and uncertainties described below, together with all of the other information in this Quarterly Report on Form 10-Q, including the section titled “Part I-Item 2-Management’s Discussion and Analysis of Financial Condition and Results of Operations” and the condensed consolidated financial statements and related notes.

U.S regulatory review may result in delays, restrictions or other adverse impacts on the operations of our China JV.

In January 2019, we entered into the China JV to develop and serve the exoskeleton market in China and other Asian markets and to create a global exoskeleton manufacturing center.  In connection with the China JV, the China JV partners and their affiliates agreed to purchase an aggregate of 3,067,485 shares of our common stock at a price per share equal to $1.63, for aggregate proceeds to us of $5.0 million (the “Share Purchase”).

In February 2019, the Department of Defense (“DoD”) inquired about certain aspects of the China JV, including about our products’ classification under U.S. export control regimes and whether the China JV parties intended to notify the Committee on Foreign Investment in the United States (“CFIUS”) of the China JV. 

We believe the activities contemplated under the China JV agreement are in compliance with U.S. export control laws and regulations and that the China JV and the related investment are not covered by CFIUS’s regulations, including those establishing the newly-implemented CFIUS “Pilot Program.” Our response to DoD reflected these positions.

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Notwithstanding our views regarding CFIUS and the applicability of CFIUS’s regulations to the China JV, CFIUS has broad discretion to assert jurisdiction to review foreign investments in U.S. businesses, and to restrict the ownership thereof and the transfer of technology therefrom to foreign investors, including where CFIUS believes that such foreign investment may present potential national security risks to the United States. 

If CFIUS were to determine that the China JV or the Share Purchase is subject to CFIUS review, CFIUS could review the China JV and take actions if CFIUS were to identify national security concerns with the transactions. CFIUS’s actions could include the imposition of measures designed to mitigate and resolve any such national security concerns. Such mitigation measures may include, but not necessarily be limited to, a requirement that we obtain prior approval from the U.S. government to transfer certain technology related to our products, which would present a risk to the operations of the China JV.  If CFIUS were to determine that it cannot mitigate any identified national security concerns, CFIUS could recommend that the President of the United States compel the JV Partners to abandon or unwind the China JV or the Share Purchase. Even if a CFIUS review process does not result in mitigation or Presidential action, it might result in delay in the China JV’s ability to develop and serve the market in China.

In addition, notwithstanding our views regarding the classifications of our products under export control regimes, the Department of Commerce has authority in certain circumstances under the Export Control Reform Act and the Export Administration Regulations to inform parties that a license is required to export items or technology to certain destinations, for reasons that include risk that the technology may be transferred for proscribed end uses. In the event the U.S. government exercises such authority over our products, it may delay and ultimately restrict our ability to transfer manufacturing technology to China JV.   

Any of the foregoing actions by the U.S. government could materially and adversely affect our China JV, and therefore our business, financial condition and operating results.

Item 5.    Other Information
See Note “18. Subsequent Events” to the Financial Statements included in this Quarterly Report on Form 10-Q under the section titled “Part I-Item 1-Notes to Condensed Consolidated Financial Statements (unaudited)”.


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Item 6. Exhibits
 
Exhibit
Number
 
Description
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
101**
 
The following financial statements from the Ekso Bionics Holdings, Inc. Quarterly Report on Form 10-Q for the quarter ended March 31, 2019, formatted in Extensible Business Reporting Language (“XBRL”):
 
 
unaudited condensed consolidated balance sheets;
 
 
unaudited condensed consolidated statements of operations and comprehensive loss;
 
 
unaudited condensed consolidated statements of stockholders' equity;
 
 
unaudited condensed consolidated statement of cash flows;
 
 
notes to unaudited condensed consolidated financial statements;
 
*
Portions of this exhibit have been omitted as permitted by applicable regulations.
 
**
Filed herewith

34


SIGNATURES
 
Pursuant to the requirements of the Securities Exchange Act of 1934, Ekso Bionics Holdings, Inc. has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
 
 
EKSO BIONICS HOLDINGS, INC.
 
 
Date: May 1, 2019
By:
/s/ Jack Peurach
 
 
Jack Peurach
 
 
President and Chief Executive Officer
 
 
 
Date: May 1, 2019
By:
/s/ John F. Glenn
 
 
John F. Glenn
 
 
Chief Financial Officer
 
 
 
 
 
(Duly Authorized Officer and Principal Financial and Accounting Officer)

35
CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM
THIS EXHIBIT BECAUSE IT IS BOTH (I) NOT MATERIAL AND
(II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED.
SUCH PORTIONS ARE MARKED AS INDICATED
WITH BRACKETS (“[***]”) BELOW.


Exhibit 10.1
2019 年 1 月 30 日
01 / 30 /2019
浙江优创创业投资有限公司
绍兴市柯桥区天堂硅谷智能机器人产业投资合伙企业༈有限合伙༉
爱科索仿生机械有限公司
关于
爱科索智能机器人有限公司
合资经营企业合同








EQUITY JOINT VENTURE CONTRACT
between
ZHEJIANG YOUCHUANG VENTURE CAPITAL INVESTMENT CO., LTD.
Shaoxing City Keqiao District Paradise Silicon Intelligent Robot Industrial Investment Partnership (Limited Partnership)

and
EKSO BIONICS, INC.
with respect to
Exoskeleton Intelligent Robotics Co. Limited


2019年 1月30日
01/30         , 2019




目录



第一条 定义     1
ARTICLE I DEFINITIONS     1
第二条合 营各方     9
ARTICLE II PARTIES TO THE JOINT VENTURE     9
第三条 公司成立     11
ARTICLE III ESTABLISHMENT OF THE COMPANY     11
第四条 经营范围     12
ARTICLE IV SCOPE OF BUSINESS     12
第五条 投资总额和注册资本     18
ARTICLE V TOTAL AMOUNT OF INVESTMENT AND REGISTERED CAPITAL     18
第六条 保密信息     24
ARTICLE VI CONFIDENTIAL INFORMATION     24
第七条 董事会     27
ARTICLE VII BOARD OF DIRECTORS     27
第八条 管理层     34
ARTICLE VIII MANAGEMENT     34
第九条 监事     38
ARTICLE IX SUPERVISORS     39
第十条 工会和劳务管理     40
ARTICLE X LABOR UNION AND LABOR MANAGEMENT     40
第十一条 税务、财务和审计     41
ARTICLE XI TAXATION, FINANCE AND AUDITING     41
第十二条外     46
ARTICLE XII FOREIGN EXCHANGE     46
第十三条 保险     46
ARTICLE XIII INSURANCE     46
第十四条 合营期限     46
ARTICLE XIV TERM OF THE JOINT VENTURE     46
第十五条 终止与清算     47
ARTICLE XV TERMINATION AND LIQUIDATION     47
第十六条 竞业禁止     51
ARTICLE XVI NON-COMPETE     51
第十七条 违约责任     56
ARTICLE XVII LIABILITY FOR BREACH OF CONTRACT     56
第十八章 不可抗力     56
ARTICLE XVIII FORCE MAJEURE     56
第十九条 适用法律     58
ARTICLE XIX GOVERNING LAW     58
第二十条 解决争议     58
ARTICLE XX RESOLUTION OF DISPUTES     58
第二十一条 效力和语言     59
ARTICLE XXI EFFECTIVENESS AND LANGUAGE     60
第二十二条 遵守法律     60
ARTICLE XXII COMPLIANCE WITH LAWS     60
第二十三条 其他事宜     61
ARTICLE XXIII MISCELLANEOUS     61
录A 技术许可协议     68
APPENDIX A TECHNOLOGY LICENSE AGREEMENT 68
录B 制造服务协议关键条款     68
APPENDIX B KEY TERM OF MANUFACTURING SERVICES AGREEMENT 68


合资经营企业合同
EQUITY JOINT VENTURE CONTRACT
根据合资经营法以及中国其他相关法律法规༌浙江优创创业投资有限公司 ༈一家根据中国法律成立的公司༌下文 简称 “优创”༉、 绍兴市柯桥区天堂硅谷智能机器人产业投资合伙企业༈有限合伙༉༈产业投资基金༉有限责任合伙企业 ༈一家根据中国法律成立的公司༌下文 简称 “产业投资基金”༉༌以及爱科索仿生机械有限公司 ༈一家根据美国特拉 华州法律成立的公司༌下文简称 “爱科索”༉༌本着平等互利原则༌经友好协商༌于2019年 1月30日     ༈下文简称 “生效日期”༉同意签署以下合资经营企业合同༈下文简称 “本合同”༉༌以期在中国浙江省绍兴市柯桥区成立、运营和管理爱科索智能机器人有限公司༈下文简称 “公司” 或 “合资公司”༉。༈在本合同 中༌优创、产业投资基金和爱科索统称为 “合同各方”༌单独称为 “ 合同一方 ”。优创和产业投资基金合称为 “中方股东”。༉
Zhejiang Youchuang Venture Capital Investment Co., Ltd., a company organized under the laws of the PRC (“ Youchuang ”), Shaoxing City Keqiao District Paradise Silicon Intelligent Robot Industrial Investment Partnership (Limited Partnership) (“Industrial Investment Fund”), a limited liability partnership organized under the laws of the PRC (“ Industrial Investment Fund ”), Ekso Bionics, Inc., a company organized under the laws of the State of Delaware, USA (“ Ekso Bionics ”), in accordance with the Joint Venture Law and other relevant published laws and regulations of the PRC, through friendly discussions and in conformity with the principles of equality and mutual benefit, have agreed to enter into this equity joint venture contract (this “ Contract ”) for the establishment, operation, and governance of Exoskeleton Intelligent Robotics Co. Limited (the “ Company ” or “ Joint Venture ”) in Keqiao District, Shaoxing, Zhejiang, China as of this 30 th day of January , 2019 (“ Effective Date ”). (Youchuang, Industrial Investment Fund and Ekso Bionics are collectively referred to as the “ Parties ” and individually referred to as a “ Party ” herein. Youchuang and Industrial Investment Fund are collectively referred to as the “ Chinese Shareholders ” herein.)

第一条 定义
Article I DEFINITIONS
1.1
定义。 除本合同条款或上下文另有规定外༌以下术语具有如下定义的含义༚
Definitions . Unless the terms or context indicate otherwise, the following terms have the meanings set out below:
关联方 ༌就某一 实体而言༌系指直接或通过 一个或多个中 间方间接控制该实体、或由该实体控制或与该实体受共同控制的任何其他实体。
Affiliate means, with respect to any specified Person, any other Person that, directly or indirectly through one or more intermediaries, Controls, is Controlled by or is under common Control with such specified Person.
市场监督管理局 系指中华人民共和国国家市场监督管理总局或负责本公司营业登记事 宜的地方市场监督管理局。
SAMR: means The State Administration for Market Regulation of the PRC or its delegated local authority in charge of the business registration of the Company.
公司章程 系指合资公司的公司章程༌由合同各方在签 署本合同一并 签署。
Articles of Association means the Articles of Association of the Company to be executed by the Parties simultaneously with this Contract.
董事会 系指公司董事会。
Board means the board of directors of the Company.
营业执照 系指由相关市场监督管理局颁发的公司营业执照༌其中载明本合同第4.2条所述的经营范围。
Business License means the business license of the Company issued by the relevant SAMR reflecting the business scope described under Article 4.2.
知识产权局 系指中国国家知识产权局。
CNIPA refers to the National Intellectual Property Administration in China.
主席 系指董事会主席。
Chairman means the chairman of the Board.
公司 应具有前言部分规定的含义。
Company shall have the meaning set out in the Preamble.
保密信息 应具有第6.1条规定的含义。
Confidential Information shall have the meaning set out in Article 6.1.
协商期 应具有第15.1条规定的含义。
Consultation Period shall have the meaning set out in Article 15.1.
本合同 应具有前言部分规定的含义。
Contract shall have the meaning set out in the Preamble.
控制 ༈包括 受控 ” 和 “ 受共同控制 ༉༌就某一 实体而言༌系指直接或间接拥有主导 或促使主导某个企业管理和政策的权利༌无论以持有50%或以上具有表决权的证券、股权、所有权或注册资本༌或拥有任命或选举董事会或管理层绝大多数成员的权利或通过合同、行政控制或其他方法。
Control (including the terms “ controlled by ”, and “ under common control with ”) means, as to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of 50% or more of the voting securities, equity interest, ownership, or registered capital, or the right to appoint or elect the majority of members of the board or management of such Person, or by contract, administrative control or other method.
现有产品 系指[***]EksoGT、EksoVest和EksoZeroG仿生臂[***]。
Current Products means to [***] EksoGT, EksoVest, and EksoZeroG Arm [***].
指定银行 系指国家外汇管理局和/或其地方分局批准的金融机构。
Designated Banks means financial institutions approved by the State Administration of Foreign Exchange and/or its local counterparts.
开发产品 系指 [***]。
Developed Products means [***].
爱科索 应具有前言部分规定的含义。
Ekso Bionics shall have the meaning set out in the Preamble.
股权 系指合同一方按其在公司注册 资本的投资比例而享有的公司权益。
Equity Interest means any rights and interests enjoyed by one Party with respect to the Company in proportion to its shareholding ratio in the registered capital of the Company.
成立日期 系指公司营业执照的颁发日期。
Establishment Date means the date on which the Business License of the Company is issued.
不可抗力事件 应具有第18.1条规定的含义。
Event of Force Majeure shall have the meaning set out in Article 18.1.
财务与会计制度 应具有第11.2条规定的含义。
Financial and Accounting System shall have the meaning set out in Article 11.2.
总经理 系指根据第8.1条规定任命的公司总经理。总经理兼任公司总裁和首席执行官。
General Manager means the general manager of the Company appointed in accordance with Article 8.1 and who also has the role of President and CEO of the Company.
政府当局 系指༈i༉任何政府机关或司法机关༛或༈ii༉任何政府部委、部门、办公室、委员会、政府机关、机构或组织 ༌包括但不限于国有 资产监督管理委员会、中华人民共和国商务部、国家市场监督管理总局、国家药品监督管理局和国家外汇管理局。
Governmental Authority means any (i) governmental or judicial authority; or (ii) ministry, department, office, commission, agency, authority or organisation of any government, including without limitation the State-owned Assets Supervision and Administration Commission, the MOFCOM, the SAMR, the NMPA, and the SAFE.
受影响方 应具有第18.1条规定的含义。
Hindered Party shall have the meaning set out in Article 18.1.
国际商会 应具有第20.1条规定的含义。
ICC shall have the meaning set out in Article 20.1.
改进系指 [***]。
Improvements means [***].
独立审计师 应具有第11.4条规定的含义。
Independent Auditor shall have the meaning set out in Article 11.4.
保险 系指根据中国现行法律规定的保险或再保险产品或服务。
Insurance means any product or service determined to constitute insurance, assurance or reinsurance by the laws in effect in the PRC.
合资经营法 系指《中外合资经营企业法》以及《中外合资经营企业法实施条例》。
Joint Venture Law means the Law on Sino-foreign Equity Joint Ventures and the Regulations for the Implementation of the Law on Sino-foreign Equity Joint Ventures.
合营期限 系指公司营业期限༌即自成立日期起[***]༌可另行延长。
Joint Venture Term means the term of operation of the Company, being a period of [***] commencing on the Establishment Date, as may be extended.
许可技术 系指[***]。
Licensed Technologies means [***].
清算委员会 应具有第15.3条规定的含义。
Liquidation Committee shall have the meaning set out in Article 15.3.
制造服务协议 系指自合资公司成立后将由爱科索和合资公司签署的制造服务协议。本协 议的关键条款详见附录B。
Manufacturing Services Agreement means the manufacturing services agreement to be entered into between Ekso Bionics and the Company subsequent to the establishment of the Joint Venture. The key terms of this agreement is set forth in Appendix B.
商务部 系指中华人民共和国商务部或其指定的地方机构。
MOFCOM means the Ministry of Commerce of the PRC or its delegated local authority.
药监局 系指国家药品监督管理局或其委派的地方机构。
NMPA refers to the National Medical Products Administration or its delegated local authority.
不参与方 应具有第5.5条规定的含义。
Non-participating Party shall have the meaning set out in Article 5.5.
转让股权 应具有第5.7条规定的含义。
Offered Interest shall have the meaning set out in Article 5.7
受让方 应具有第5.7条规定的含义。
Offered Party shall have the meaning set out in Article 5.7.
合同一方或合同各方 应具有前言部分规定的含义。
Party or Parties shall have the meaning set out in the Preamble.
专利权 系指 [***]。
Patent Rights means [***].
系指任何自然人、普通合伙企业或有限合伙企业、企业、公司、信托公司、有限责任公司、有限责任合伙企业、事业单位、协会或机构或其他法律实体。
Person means any natural person, general or limited partnership, corporation, company, trust, limited liability company, limited liability partnership, firm, association or organization or other legal entity.
中华人民共和国 ༈简称 “ 中国 在本合同中仅 包括中 华人民共和国大陆地区。
PRC or China means, for the purpose of this Contract only, the mainland of the People’s Republic of China.
中国公司法 系指《中华人民共和国公司法》。
PRC Company Law means the Company Law of the People’s Republic of China.
采购协议 系指合资公司成立后将由爱科索和合资公司签署的采购协议。
Purchase Agreement means the purchase agreement to be entered into between Ekso Bionics and the Company subsequent to the establishment of the Joint Venture.
质量管理体系 系指质量管理体系。
QMS means Quality Management System.
相关协议 系指技术许可协议和制造服务协议关键条款。
Related Agreements means the Technology License Agreement and Key Terms of Manufacturing Service Agreement.
人民币༈RMB༉ 系指中华人民共和国的法定货币。
Renminbi or RMB means the lawful currency of the PRC.
外汇管理局 系指中华人民共和国国家外汇管理局或其指定的地方机构。
SAFE means the State Administration of Foreign Exchange of the PRC or its delegated local authority.
高级管理人员 系指董事会根据第8.1条规定任命的总经理和首席财务官。
Senior Management Personnel means the General Manager and the Chief Financial Officer to be appointed by the Board pursuant to Article 8.1.
监事 系指合同一方根据第 9.1条规定任命的人。监事将根据本合同第9条和公司法监督公司的运营和财务状况。
Supervisor means a person appointed by a Party pursuant to Article 9.1, who shall supervise the operation and financial situation of the Company in accordance with Article 9 and the PRC Company Law.
技术许可协议 系指合资公司成立后将由爱科索和合资公司签署的技术许可协议༌以本合 同附录A的方式提供。
Technology License Agreement means the technology license agreement in the form attached hereto as Appendix A to be entered into between Ekso Bionics and the Company subsequent to the establishment of the Joint Venture.
终止通知 应具有第15.1条规定的含义。
Termination Notice shall have the meaning set out in Article 15.1.
制造服务协议关键条款 系指自合资公司成立后将由爱科索与本公司签署的制造服务协 议༌经双方同意༌以本合同附录B制造服务条款清单的形式提供。
Key Terms of Manufacturing Services Agreement means the term sheet of manufacturing services attached hereto as Appendix B as agreed by the Parties, which shall be developed into a manufacturing service agreement to be entered into between Ekso Bionics and the Company subsequent to the establishment of the Joint Venture.
合同区域 指中国、香港、新加坡、马来西亚以及合同各方协商确定的其他国家和地区༌ 但不包括日本、印度和澳大利 亚。
Territory means China, Hong Kong, Singapore, Malaysia and other countries to be mutually agreed by the Parties but excluding Japan, India and Australia.
商标许可协议 系指自合资公司成立后将由爱科索和本公司签署的商标许可协议。在合 资期间༌爱科索无偿或免费授权合资公司使用爱科索商标。
Trademark License Agreement means the trademark agreement to be entered into between Ekso Bionics and the Company subsequent to the establishment of the Joint Venture. Ekso Bionics shall license the Company to use Ekso Bionics trademarks free of charge during the Joint Venture period.
转让 应具有第5.7条规定的含义。
Transfer shall have the meaning set out in Article 5.7.
转让方 应具有第5.7条规定的含义。
Transferor Party shall have the meaning set out in Article 5.7.
转让通知 应具有第5.7条规定的含义。
Transfer Notice shall have the meaning set out in Article 5.7.
美元 系指美利坚合众国的法定货币。
USD means the lawful currency of the United States of America.
美国 系指美利坚合众国
USA means United States of America
优创 应具有前言部分规定的含义。
Youchuang shall have the meaning set out in the Preamble.
1.2
释义。 除非另有规定༌否则在本合同中༚
Interpretation. In the interpretation of this Contract, unless the context otherwise requires:
(a)
数形式将包括复数༌反之亦然༌特 是༈但不限于前述一般性情况༉༌任何以 单数形式定义的词语或表达༌若以复数形式提供༌则具有相应含义༌反之亦然。此外༌凡提及任何性别༌均应 包括其他性 别༛
the singular will include the plural and vice versa and in particular (but without limiting the generality of the foregoing) any word or expression defined in the singular will have the corresponding meaning if used in the plural and vice versa and a reference to any gender will include the other genders;
(b)
本合同提及 “ 包含 ”、 “ 包括 ”等词语时༌应理解为 “ 包括但不限于 ”༛
the words “include”, “includes” or “including” used in this Contract are deemed to be followed by the words “without limitation”;
(c)
本合同目录和标题仅供参考༌不得以任何方式影响本合同含义或解释༛
the table of contents and the headings for this Contract are for reference only and do not affect in anyway the meaning or interpretation of this Contract;
(d)
本合同提及任何法律包括其修 订、修改或增补版本 ༈包括任何 继任法律༉༛
all references to any law mean such law as amended, modified or supplemented from time to time, including any successor laws;
(e)
本合同提及任何条款或附录系指本合同条款或附录༈视情况而定༉༛以及
all references to any clause or Appendix in this Contract are references to such clauses or Appendix of this Contract (as the case may be); and
(f)
本合同提及任何人包括其 继承人和许可受让人。
all references to a particular person are also to its successors and permitted assigns.
第二条合营各方





ARTICLE II      PARTIES TO THE JOINT VENTURE
2.1
合同各方。 本合同各方包括༚
Parties. The Parties to this Contract are:
浙江优创创业投资有限公司
Zhejiang Youchuang Venture Capital Investment Co., Ltd.
法定地址༚
Legal Address:
中国浙江省绍兴市柯桥区环镇北路2号
No. 2 Huan Zhen North Road, Keqiao District, Shaoxing, Zhejiang Province, PRC
法定代表人༚
Legal Representative:
[***]
[***]
 
 
电子邮件/Email
[***]

绍兴市柯桥区天堂硅谷智能机器人产业投资合伙企业༈有限合伙༉
Shaoxing City Keqiao District Paradise Silicon Intelligent Robot Industrial Investment Partnership (Limited Partnership)

法定地址༚
Legal Address:
中国浙江省绍兴市柯桥区柯桥创意路199号B幢5楼-014
Room 014, 5th floor, Building B,No.199 Keqiao creative road, Keqiao District, Shaoxing City, Zhejiang Province PRC
执行事务合伙人委派代表༚
Assigned Representative of Managing Partner
[***]
[***]

电子邮件/Email
[***]

and
爱科索仿生机械有限公司
Ekso Bionics, Inc.

3



法定地址:
1414 Harbour Way South, Suite 1201
Richmond, California 94804 U.S.A.
法定代表人༚
l
[***]
[***]
电子邮箱/Email
[***]

2.2
声明与保证
Representations and Warranties
合同各方均向其他方声明和保证༚༈i༉其在注册成立地点依法成立并有效存续༌具备独立法人资格༌并具有充分的权力和权利༌开展其营业执照、公司章程或类似企业文件规定的业务༛༈ii༉具有充分的权力和权利༌签署本合同并履行合同义务༛༈iii༉其授权代表已获得充分授权签署本合同并使该方受本合同约束༛༈iv༉自本合同生效日期起༌本合同条款即构成对其合法、有效和有约束力的义务。
Each of the Parties represents and warrants to the others that: (i) it is a duly organized and validly existing independent legal person in the place of its incorporation or establishment and has the full power and right to conduct its business in accordance with its business license, articles of association or similar corporate organizational documents; (ii) it possesses full power and authority to enter into this Contract and to perform its obligations hereunder; (iii) its representative whose signature is affixed hereto has been fully authorized to sign this Contract and to bind such Party thereby; and (iv) upon the Effective Date of this Contract, the provisions of this Contract shall constitute its legal, valid and binding obligations.
第三条 公司成立
ARTICLE III      ESTABLISHMENT OF THE COMPANY
3.1
成立。 中方股东及爱科索根据合资经营法、其他适用中国法律法规及本合同规定༌同意成立合资公司༌以期开展本合同第4.2条所述业务。
Establishment. Chinese Shareholders and Ekso Bionics, in accordance with the Joint Venture Law, other applicable laws and regulations of the PRC and the provisions of this Contract, hereby agree to establish the Company with the objective to engage in the business as set forth in Article 4.2 of this Contract.
3.2
名称。 成立公司中文名称为”爱科索智能机器人有限公司”༌英文名称为 “Exoskeleton Intelligent Robotics Co. Limited”。
Name. The name of the Company shall be “爱科索智能机器人有限公司” in Chinese and “Exoskeleton Intelligent Robotics Co. Limited” in English.
3.3
地点。 合同各方同意༌公司成立地点为绍兴市。公司法定地址为中国浙江省绍兴市柯桥区柯北大道1115号。
Location. The Parties agree that the Company shall be established in the city of Shaoxing. The legal address of the Company shall be located in No. 1115 Kebei Avenue, Keqiao District, Shaoxing, Zhejiang Province, PRC.
3.4
有限责任。 合资公司为有限责任公司。除非本合同明文规定༌否则 ༌一旦合同一方已全 额支付公司注册资本的出资额༌则无需通过出资、贷款、垫款、担保或其他方式进 一步向公司或代表公司提供 资金。合资公司债权人仅对合资公司的资产具有追索权 ༌不得向合同任一方 寻求偿还。若合资公司资产不足以偿还债权人索赔 ༌合同任一方 对此均不承担责任。因合资公司经营产生的任何第三方索赔༌合资公司应免于合同各方承担任何直接损失、损害或责任。
Limited Liability. The Company is a limited liability company. Except as otherwise expressly provided herein, once a Party has paid in full its contribution to the registered capital of the Company, it shall not be required to provide any further funds to or on behalf of the Company by way of capital contribution, loan, advance, guarantee or otherwise. Creditors of the Company shall have recourse only to the assets of the Company and shall not seek repayment from either of the Parties. If the Company’s assets are insufficient to satisfy its creditor’s claims, no Party shall be liable for any deficiency. The Company shall indemnify and hold the Parties harmless against any and all direct losses, damages, or liabilities suffered by the Parties in respect of any third party claims arising out of the operation of the Company.
第四条 经营范围
ARTICLE IV      SCOPE OF BUSINESS
4.1
目的。 合同各方成立公司目的在于加强经济合作༌在拟人外骨骼技术领域寻求紧密的战略合作༌将公司发展成为中外市场上可穿戴仿生外骨骼产品的富有竞争力的制造商。
Purpose. The purpose of the Parties in establishing the Company is to strengthen the economic cooperation, seek close strategic cooperation in the area of anthropomorphic exoskeleton technology and develop the Company into a competitive manufacturer of wearable and bionic exoskeleton products for the Chinese and overseas market.
4.2
经营范围。 [***]。涉及许可证的凭证经营。༈具体经营范围应经主管政府当局批准༉
Scope of Business. [***]. Licenses for operation should be obtained if required. (the specific scope shall be subject to the approval of competent Governmental Authorities).
4.3
生产规模。 合资公司将 [***]。
Scope of Production. The Company will [***].
4.4
销售安排。 合资公司采用爱科索出资的专利权和爱科索许可的许可技术༌[***]制造产品[***]并在本协议约定的[***]内销售产品༌其不得将许可技术授权给 任何第三方或合同任一方༌用于在其他地方使用或制造相关 产品༌但是༌爱科索可以使用此类技术在中国以外的司法管辖区注册的专利在合同区域外制造和销售其产品、组件和配件。[***]
合资公司应仅可在合同区域内以爱科索商标和品牌销售产品。 [***]
Sales Arrangement. The Company can use the Patent Rights contributed by Ekso Bionics and the Licensed Technologies licensed by Ekso Bionics to manufacture the Current Products and [***] sell the Current Products in [***] agreed herein, and shall not license the Licensed Technologies to any third parties or Party to use or manufacture anywhere, provided however that Ekso Bionics can use such technologies and the patents registered in the jurisdictions other than China to manufacture and sell its products, components and subassemblies outside the Territory. [***]
The Company shall sell its products only in the Territory under the trademark and brands of Ekso Bionics. [***]
4.5    合同各方责任。
Responsibilities of the Parties.
(a)
优创责任༚
Responsibilities of Youchuang:
(i)
在规定期限内提供认缴资本额༛
contribute the subscribed capital contribution within prescribed period;
(ii)
在合资公司成立前༌负责与合资项目所在区域内的政府当局沟通༌并提供相关协助༌确保合资公司获 取相关政府当局批准༌包括公司注册、 产品注册等程序༛
be responsible for the communication and coordination with relevant Governmental Authorities of the territory where the Joint Venture project is located prior to the establishment of the Company, and assist the Company to complete the relevant approvals with the competent Governmental Authorities, including company registration, product registration procedures, etc.;
(iii)
负责合资公司临时生产场地༌并协助公司设计和建造工厂、其他工程设施、水电供应以及电信和其他基础设施༛
be responsible for the premises required for the temporary production of the Company, and assist the Company with the design and construction of the factory building and other engineering facilities as well as water supply, power supply and telecommunication and other infrastructures.
(iv)
在合资公司成立前༌协助公司采购或租赁设备、材料、原材料、办公设施、车辆、通信设施等༌并协助公司提交进口设备文件༛
assist the Company to purchase or rent equipment, materials, raw materials, office appliances, vehicles, communication facilities, etc. in China, and assist the Company with the submission formalities of importing equipment prior to the establishment of the Company;
(v)
尽最大商业努力༌实施符合遵守美国、加拿大和欧盟༌且适合合资公司经营范围的质量管理体系༌费用由合资公司承担༛但是༌合资公司应负责整体生产并确保质量管理体系始终符合适用监管要求༛
use commercially best efforts to implement at the Company’s expense QMS appropriate to the scope of its operation and compliant with the regulations of the USA, Canada, and the European Union; provided that the Company shall be responsible for overall production and maintaining the QMS consistent with the applicable regulatory requirements;
(vi)
尽最大商业努力༌协助合资公司处理在药监局注册的相关事宜༛
use commercially best efforts to assist the Company with the matters related to the NMPA registration;
(vii)
协助并配合合资公司聘用高级管理层༌协助合资公司聘用中方管理人员、技术人员、工人和其他必要人员༛
assist and coordinate the recruitment of senior management of the Joint Venture, and assist the Joint Venture with recruiting local Chinese managers, technicians, workers and other necessary personnel;
(viii)
协助合资公司开展产品临床测试和营销管理等网络建设༛
assist the Joint Venture with the product clinical test and network construction such as marketing management;
(ix)
负责处理合资公司委托的其他事宜༛以及
be responsible for handling other matters entrusted by the Joint Venture; and
(x)
监督并促使其指定董事按照本合同和公司章程规定履行职责 ༌包括但不限于参加适 时召开的董事会会议。
supervise and cause the directors appointed by it to perform their duties in accordance with the provisions of this Contract and the Articles of Association, including but not limited to attending duly convened Board meetings.
(xi)
作为协议 的一部分༌ 优创或优创指定的第三方将在协议签订后立即向Ekso Bionics Holdings, Inc. 股权投资五百万美元 ($5,000,000), 投资每股价格为2019年1月29日(周二) 收盘价༌_ 1 _. 63 美元(购买价格)。并根据股权购买协议提供60天反稀释条款。
As part of the agreement, Youchuang or the third party designated by Youchuang will make an immediate equity investment of USD five million ($5,000,000) in Ekso Bionics Holdings, Inc. at price per share of $_ 1 _ _ 63 _ (the Purchase Price), the closing price of Tuesday, January 29, 2019, subject to a 60 day anti-dilution provision per shareholder purchase agreement.
(xii)
合资公司能够生产制造合格的EksoGT、EksoVest和EksoZeroG Arm产品后༌自向买方༈如爱科索、其关联方和中国境内外的任何第三方༉发 出第一批 Ekso Vest、EksoZeroG Arm ༈成品༉以及现有的Ekso GT配件༈指EKSO GT完整的成品的全部配件༌到达爱科索在买方当地组装成品并验收成功后༉༈“发货日期”起༉后 30个工作日内༌合资公司或优创或优创指定第三方向 Ekso Bionics Holdings, Inc. 投资五百万美元༈500万美元༉༈股权投资价格由 “发货日期”之前20个交易日的成交量加权平均价决定༌但股权 价格与第一次 签约后五百万美元投资的股权价格相比不高于20%༌ 同时 也不低于第一次 签约后五百万美元投资的股权价格的80%༉༌作为向爱科索的股权投资。
After the Joint Venture is able to manufacture qualified EksoGT, EksoVest and EksoZeroG Arm products, the Joint Venture or Youchuang or the third party designated by Youchuang will invest USD Five Million (5,000,000) in Ekso Bionics Holdings, Inc. as the equity investment within thirty business days after issuing the first batch of Current industrial products (i.e. finished products, and current EKSO GT components (all components of the EKSO GT finished products after they are successfully assembled as a finished product locally) to the buyer (such as Ekso Bionics, its Affiliates and any third parties either in China or outside China) (“Shipment Date”). The equity investment price will be the volume weighted average price of 20 trading days before the issuing date, but with a collar so that the equity price will be no greater than 20% higher than the first investment and no lower than 80% of the first investment price. (First investment is the first 5 $mm investment made after signing the joint venture contract)
(b)
产业投资基金责任༚
Responsibilities of Industrial Investment Fund:
(i)
在规定期限内提供认缴资本额༛
contribute the subscribed capital contribution within prescribed period;
(ii)
负责处理合资公司委托的其他事宜༛以及
be responsible for handling other matters entrusted by the Joint Venture; and
(iii)
监督并促使其指定的董事按照本合同和公司章程的规定履行职责 ༌包括但不限于参加适 时召开的董事会会议。
supervise and cause the directors appointed by it to perform their duties in accordance with the provisions of this Contract and the Articles of Association, including but not limited to attending duly convened Board meetings.
(c)
爱科索责任༚
(d)
Responsibilities of Ekso Bionics:
(i)
在规定期限内提供认缴资本额༛
contribute the subscribed capital contribution within prescribed period;
(ii)
协助合资公司掌握爱科索提供或许可的技术༌确保公司可制造与爱科索产品具有相同质量的产品。合资公司在其成立后提供场地、水电设备并根据爱科索要求的采购设备和原材料༌并雇佣至少[***]名合格的生产工程师༌在本公司符合上述条件的情况下༌爱科索应在[***]内完成 [***]༌并在本公司提供上述场地、设施和人员后[***]内完成[***]。[***]必须符合爱科索现有相应产品适用的FDA和欧盟主管部门所规定的质量要求༌公司和爱科索应共同确保[***]也满足国家药品监督管理局的相关质量要求༛
assist the Joint Venture in mastering the technologies to be contributed or licensed by Ekso Bionics for a goal that the Company can manufacture products with the same quality of the same products manufactured by Ekso Bionics. The Company shall provide the site and utilities following its Establishment Date, and purchase equipment and raw materials as required by the Ekso Bionics and hire a minimum of [***] competent production engineers. Subject to the Company complying with the foregoing requirements, Ekso Bionics shall manufacture [***] within [***] and [***] within [***] from when the above site, facilities and personnel are provided by the Company. The [***] must comply with the quality requirements prescribed by FDA and competent authority in EU that the current equivalent product manufactured by Ekso Bionics have satisfied, and Company and Ekso Bionics should work together to ensure that the [***] can also satisfy the relevant NMPA’s quality requirements;
(iii)
尽最大商业努力༌协助合资公司实施符合遵守美国、加拿大和欧盟༌且适合公司经营范围的质量管理体系༌费用由合资公司承担༈如上文第4.5༈a༉༈v༉条所述༉༛但是༌合资公司应负责整体生产并确保质量管理体系始终符合适用监管要求༛
use commercially best efforts to assist the Company at the Company’s expense in implementing QMS appropriate to the scope of its operation and compliant with the regulations of the US, Canada, and the European Union as set forth in Article 4.5(a)(v) above; provided that the Company shall be responsible for overall production and maintaining the QMS consistent with the applicable regulatory requirements.
(iv)
根据技术许可协议规定༌提供技术培训༛
provide technical training in accordance with the Technology License Agreement;
(v)
监督并促使其指定的董事按照本合同和公司章程的规定履行职责 ༌包括但不限于参加适 时召开的董事会会议༛
supervise and cause the directors appointed by it to perform their duties in accordance with the provisions of this Contract and the Articles of Association, including but not limited to attending duly convened Board meetings;
(vi)
负责提供其所拥有的产品注册审批所需的相关文件资 料༌包括但不限于向中国 药品监管部门申报产品注册的产品风险分析报告༌产品技术标 准༌产品检验报告༌临床评价资料༌产品说明及标签样稿༌与产品研 制、生产有关的质量管理体系文件༌证明产品安全、有效所需的其他文件༌协助合资公司向药监局做好 [***]产品注册事宜。
Responsible to the extent already in Ekso Bionics’ possession for providing the related documents required (including but not limited to the analysis report of product risks, product technical standards, product inspection report, clinical evaluation materials, product description and label sample manuscript, quality management system documents relevant to the product development and production and other materials required for evidencing) for necessary registration and approval, and assisting the Joint Venture in the product registration of [***] with the NMPA;
(vii)
负责处理合资公司委托的其他事宜。
be responsible for handling other matters entrusted by the Company;
(viii)
为了让优创能够履行第4.5 (a)(xi)条和4.5(a)(xii)条所述的契约和义务༌爱科索应在合营期内就[***]向本公司授予永久不可撤销的免费独家中国区许 可༌唯一目的是 让本公司能够在合同区域内制造和销售开发产品༈“开发产品许可”༉。
subject to Youchuang fulfilling its covenants and obligations provided under Articles 4.5 (a)(xi) and 4.5(a)(xii) , Ekso Bionics shall grant the Company a perpetual, irrevocable, royalty-free, exclusive China license during the Joint Venture Term to [***] for the sole purpose to enable the Company to manufacture and sell the Developed Products the Developed Products within the Territory (“ Developed Products License ”).
4.5
研发费用
Development Fees
关于开发产品的许可༌双方特此确认并同意༌自发货日期起[***]后༌[***]༈“研发费用”༉༌本公司将[***]支付[***]༌研发费用的支付方式应在技术许可协议中规定。
In consideration of the Developed Products License, the Parties hereby acknowledge and agree that the Company will pay [***] (“Development Fees”), after [***] commencing from the Shipment Date. The Company will pay [***], the payment method for Development Fees shall be provided in the Technology License Agreement.
第五条 投资总额和注册资本
ARTICLE V      TOTAL AMOUNT OF INVESTMENT AND REGISTERED CAPITAL
5.1
投资总额。 合资公司投资总额为人民币7.8亿元༌符合第5.2༈a༉条列出的公司注册资本。
Total Investment Amount. The total investment of the Company shall be RMB 780 million which conforms with the Company’s registered capital as set forth in Article 5.2(a).
5.2
注册资本。
Registered Capital.
合资公司注册资本为人民币7.8亿元༈人民币柒亿捌仟万元༉。
The registered capital of the Company shall be RMB 780 million (seven hundred and eighty million Renminbi).
(a)
优创应向合资公司注册资本出资人民币3.24亿元༈人民币叁亿贰仟肆佰万元༉༌ 占公司注册资 本的百分之四十一点五四 ༈41.54%༉。优创应以人民币现金出资。
Youchuang shall contribute RMB 324 million (three hundred and twenty-four million Renminbi) to the registered capital of the Company, representing a forty-one-point fifty-four percent (41.54%) share of the registered capital of the Company. Youchuang shall make its capital contribution in cash in RMB.
(b)
产业投资基金应向合资公司注册资本出资人民币3亿元༈人民币叁亿元༉༌占公司注册资本的百分之三十八点四六༈38.46%༉。产业投资基金应以人民币现金出资。
Industrial Investment Fund shall contribute RMB 300 million (three hundred million Renminbi) to the registered capital of the Company, representing thirty-eight-point forty-six percent (38.46%) share of the registered capital of the Company. Industrial Investment Fund shall make its capital contribution in cash in RMB.
(c)
爱科索应转让和出资专利权༌折合人民币1.56亿元༈人民币壹亿伍仟陆佰万元༉༌ 作为合资公司注册资本的出资额༌占公司注册资本的百分之二十༈20%༉。
Ekso Bionics shall transfer and contribute the Patent Rights, equivalent to RMB 156 million (one hundred and fifty- six million Renminbi) to the registered capital of the Company, representing a twenty percent (20%) share of the registered capital of the Company.
(d)
合同各方应按以下要求出资༚
The Parties shall make their capital contribution to the Company as follows:
(i)
优创应自合资公司成立日期起[***]内༌支付[***]出资 额༛根据合资公司的发展情况༌余下的认缴出资应自[***]完成出资[***]༛
Youchuang shall make [***] of its capital contribution within [***] from the Establishment Date of the Company and the remaining subscribed capital contribution shall be paid in [***];
(ii)
产业投资基金应自合资公司成立日期起[***]内༌支付[***]出资额༛[***]༌余下的认缴出资应自[***]༛
Industrial Investment Fund shall make [***] of its capital contribution within [***] from the Establishment Date of the Company and the remaining subscribed capital contribution shall be paid in [***];
(iii)
爱科索应自合资公司成立日期起[***]内向合资公司完成出资技术文本转让移交,[***]内在中国国家知识产权局完成专利权的转让登记。
Ekso Bionics shall complete the transfer of all relevant Technical Documentation of contribution within [***] from the Establishment Date. The completion of the Patent Rights transfer registration with CNIPA within [***].
5.3
专利权的转让以及专利权的技术改进
Transfer of Patent Rights and Technical Improvements of Patent Rights
(a)
爱科索应根据第5.2 (d)(iii)条规定完成专利权的转让登记。除非另外签订相关协议进行专门约定༌否则在成立日期之后༌爱科索及其关联方均无权以任何形式在中国境内使用或利用或允许任何第三方以任何形式在中国境内使用或利用专利权 的任何部分༌包括以改 进为目的的使用或利用。
Ekso Bionics shall complete the transfer registration of Patent Rights in accordance with Article 5.2 (d)(iii). After the Establishment Date, neither Ekso Bionics nor its Affiliates shall have any right to use or utilize in China in any form, or permit any third party in China to use or utilize in any form, any part of the Patent Rights, including use or utilization for the purpose of Improvement, unless otherwise specifically agreed by the Related Agreements.
(b)
[***]
[***]
(c)
[***]
[***]
(d)
[***]
[***]
5.4
评估和验资。 优创或本公司应 聘用一家合格的 资产评估公司对专利权开展评估, 爱科索按照评估机构要求提供出资技术的相关材料。合同各方向本公司完成资本出资后༌本公司应 指定一家在中国注册的合格会 计师事务所༌核实出资额并出具验资报告。
Evaluation and Capital Verification. Youchuang or the company shall engage an qualified asset appraisal firm to conduct the evaluation of the Patent Rights. EKSO should provide the relevant documents of the contribution technologies in accordance with the requirement of the asset appraisal firm. After each Party has made its contribution to the Company’s registered capital, the Company shall appoint a qualified accounting firm registered in China to verify such capital contribution and issue a contribution verification report.
5.5
新增注册资本。 若董事会根据决议确定合资公司需要额外资金并且公司通过新增注册资本筹集资金༌则合同各方有权依据其股权对公司新增注册资本出资 。若合同一方༈ 不参与方 ”༉未能在出资期限༈于签署的增资协议中规定༉届满[***]内完成全部或部分出资༌则合同其他方有权按其各自权益比例增加出资༌且不参与方在合资公司的权益应相应摊薄。在此情况下༌合同各方均应视为已同意新增注册资本༌并应促使其指定董事批准该增资。合同各方同意༌合资公司未来所需投资应通过新增注册资本或董事会批准的其他方式筹集。
Increase of Registered Capital. If the Board determines on the basis of a resolution that the Company requires additional funds and the Company raises such funds from an increase in its registered capital, the Parties have the right to contribute in accordance with its Equity Interest to such increase in the registered capital of the Company. If one Party (the “ Non‑participating Party ”) fails to make all or part of its capital contribution within [***] after the date of expiry of the capital contribution period as prescribed by the capital increase agreement it executed, then the other Parties shall be entitled to make any such increase in proportion to their respective equity ratio and the Non-participating Party’s Equity Interest in the Company shall be diluted accordingly, in which case each Party shall be deemed to have consented to such increase of the Company’s registered capital and shall cause its appointed director(s) to approve such increase. The Parties agree that the investment required for the Company in the future shall be raised through increase of the registered capital or other means approved by the Board.
5.6
额外融资。
Additional Financing.
(a)
就营运资金而言༌合资公司可根据本合同以公司资产作为抵押品向金融机构申请贷款。
With respect to working capital, the Company may apply for loans from financial institutions by using the Company’s assets as collateral in accordance with this Contract.
(b)
[***]
[***]
5.7
股权转让
Transfers of Equity Interest.
(a)
未经其他方事先书 面同意༌合同任一方均不得向任何第 三方或本合同其他方出售、转让、分配、给予༈每项均称为 “ 转让 ”༉其在合资公司的全部或部分股权。但是༌[***]。
No Party may sell, transfer, assign, give (each a “ Transfer ”) all or any part of its Equity Interest in the Company to any third party or any other Party) without the prior written consent of the other Parties, except that [***]
(b)
经其他方事先书 面同意༌当合同一方希望向第三方 转让其在合资公司的全部或部分股权时༈第5.7༈a༉条所述情况除外༉༌以下程序适用。意图转让其全部或部分股权 的合同一方༈ 转让方 ”༉应向其他方༈“ 受让方 ”༉发出书面通知༈“ 转让通知 ”༉༌[***]༛但是༌所述价格和条件必须是真实的༌且是对受让方和转让方协商的公允公平反映。按照其在合资公司的权益比例༌受让方有权优先购买转让股权༌但其购买条件不得优于转让通知中规定的买方购买条件。收到转让通知后[***]内༌受让方应提交书面答复༌ 说明其是否选择行使权利༌购买合资公司的转让股权 。若一名受 让方未能在[***]༈如上所述༉内答复转让通知或放弃其优先购买权༌则 另一受 让方可选择购买所有转让股权。若两名受让方均未在[***]༈如上所述༉内答复转让通知或放弃优先购买权༌则应视为已事先书面同意༌转让方应在[***]内༌将转让股权转让给预期的受让人༌其转让条件不得优于转让通知中规定的买方购买条件。若转让方未在上述期限内向意图受让股权的受让方出售转让股权༌ 则在尚未重复第5.7༈b༉和༈c༉条规定程序的情况下༌转让方不得处置转让股权。
Upon the prior written consent of the other Parties, when a Party wishes to Transfer all or any part of its Equity Interest in the Company to a third party other than as contemplated in Section 5.7(a)., the following procedure shall apply. The Party wishing to Transfer all or part of its Equity Interest (the “ Transferor Party ”) shall give written notice (the “ Transfer Notice ”) to the other Parties (the “ Offered Parties ”) [***]; provided, however that such price and conditions must be bona fide, reflect an arm’s length fair value negotiation by such transferee and the Transferor Party. The Offered Parties shall have the right of first refusal to purchase such Offered Interest on terms no more favorable to the purchasers than those set forth in the Transfer Notice in proportion to their respective equity ratio in the Company. Within [***] after the Transfer Notice, the Offered Parties shall deliver their written responses stating whether they choose to exercise their right to purchase the Offered Interest in the Company. If one Offered Party fails to respond to the Transfer Notice or waive its right of first refusal within the aforementioned [***] period, the other Offered Party may choose to purchase all the Offered Interest. If both the Offered Parties fail to respond to the Transfer Notice or waive their right of first refusal within the aforementioned [***] period, they shall be deemed to have given their prior written consent and the Transferor Party shall, within a period of [***], transfer the Offered Interest to the intended transferee on terms no more favorable to the purchasers than those specified in the Transfer Notice. In the event the Transferor Party does not consummate the sale of the Offered Interest to the intended transferee within the aforesaid period, the Transferor Party may not dispose of such Offered Interest without repeating the offer procedures set forth in paragraphs (b) and (c) of this Article 5.7.
(c)
若受让方或合同各方行使其优先购买权༌则合同各方应以善意原则谈判相关文件事宜༌并根据具有法律约束力的协议༈其中载明的购买条件不得优于转让通知中规定的买方购买条件༉༌尽商业合理努力向受让方出售转让股权。
If the Offered Party or Parties exercises its right of first refusal, the Parties shall enter into good faith negotiations to document, and use their commercially reasonable efforts to consummate, the sale of the Offered Interest to the Offered Party pursuant to a legally binding agreement containing terms no more favorable to the purchasers than those set forth in the Transfer Notice.
(d)
合资公司股权受让方应承担本合同规定的转让方义务和责任。
Any transferee of any Equity Interest in the Company shall assume the corresponding obligations and responsibilities of the Transferor Party as stipulated in this Contract.
(e)
当合同一方根据本合同第 5.7条转让其在合资公司的全部或部分股权时༌༈i༉合同各方同意协助向商务部༈具体视情况而定༉和市场监督管理局申请完成转让所需的备案和注册程序༌以及༈ii༉合同各方应开展或促使他人开展进 一步行 为和事项༌并签署和交付转让生效所需的其他协议、证书、文书 和文件༌包括但不限于༚若商 务部༈具体视情况而定༉和市场监督管理局要求༌则应签署相关董事会决议༌促使该方指定董事及时批准该转让༌并对本合同和公司章程作出相应修正。
Upon any Transfer by a Party of all or any part of its Equity Interest in the Company pursuant to this Article 5.7, (i) each Party agrees to assist in applying for the record‑filing and registration with MOFCOM (if applicable) and SAMR required for the completion of such Transfer, and (ii) each Party shall do and perform, or cause to be done and performed, all such further acts and things and shall execute and deliver all such other agreements, certificates, instruments and documents as necessary to give effect to the Transfer, including, without limitation, causing such Party’s appointed directors to timely approve such Transfer by executing relevant board resolution if so required by MOFCOM (if applicable) and SAMR, and any corresponding amendments to this Contract and the Articles of Association.
(f)
合同各方有权将其在合资公司的全部或部分股权转让至关联方༌并且合同各方特此同意该项转让༌并放弃根据本合同第5.7条可能享有的优先购买权。
Each Party shall have the right to Transfer all or part of its Equity Interest in the Company to an Affiliate, and each Party hereby consents to any such Transfer and waives any right of first refusal that it might otherwise have under this Article 5.7.
(g)
[***]
[***]
第六条 保密信息
ARTICLE VI      CONFIDENTIAL INFORMATION
6.1
保密性。
Confidentiality.
(a)
合同任一方或其关 联方根据本合同条款或相关协议或以其他方式向合资公司披露的、或由合资公司开发制定的所有技术、专有技术、技法、商业秘密、贸易制度、方法、规格、设计和其他专有信息༌以及本合同条款和其他机密业务和技术信息༈统称 “ 保密信息 ”༉应仅可供合资公司及其职员使用༌且仅可用于公司账户和目的。对于合资公司或其他合同方或其关联方可能向其披露或提供的所有保密信息༌合同各方和合资公司应确保其机密性。未经董事会或相关方或其关联方明确书面授权༈视情况而定༉༌不得向任何第三方披露此类保密信息。
All technology, know-how, techniques, trade secrets, trade practices, methods, specifications, designs and other proprietary information disclosed by any Party or any of its Affiliates to the Company under the terms of this Contract or any of the Related Agreements or otherwise, or developed by the Company, as well as the terms of this Contract and other confidential business and technical information (collectively, “ Confidential Information ”) shall be used by the Company and its personnel solely for the Company’s account and purposes. Each Party and the Company shall maintain the secrecy of all Confidential Information that may be disclosed or furnished to it by the Company or the other Parties or any of their Affiliates, and it shall not disclose or reveal any such Confidential Information to any third party absent explicit written authorization from the Board or the relevant Party or its Affiliate(s), as the case may be.
(b)
于由合同一方或其关 联方获取的但不归其所有的保密信息༌该方仅可向为履行本合同职责所需的指定员工披露此类信息。在此情况下༌接收方应 采取一切合理 防措施༌包括与 该员工签订保密协议༌以防该员工出于个人利益使用保密信息或未经授权将保密信息披露至第三方。
Confidential Information obtained by, but not belonging to, a Party or its Affiliates may be disclosed by that Party only to its designated employees whose duties require such disclosure for the implementation of this Contract. In that event, the receiving Party shall take all reasonable precautions, including the execution of a confidentiality agreement with each such employee to prevent such employees from using Confidential Information for their personal benefit and to prevent any unauthorized disclosure of such Confidential Information to any third party.
(c)
合同各方应 确保公司采取一切合理的 防措施༌包括与其 员工签订保密协议༌以防止员工出于个人利益使用保密信息༌防止任何未经授权的信息泄露给第三方。
The Parties shall also ensure that the Company shall take all reasonable precautions, including the execution of confidentiality agreements with its employees, to prevent its employees from using Confidential Information for their personal benefit and to prevent any unauthorized disclosure of such Confidential Information to any third party.
(d)
尽管有上述规定༌接收方在第6.1条项下义务༈在某种程度上༉不适用于满足以下条件的保密信息༚
Notwithstanding the foregoing, the receiving Party’s obligations pursuant to this Article 6.1 will not apply to the extent any Confidential Information:
(i)
并非因接收方的行为或疏忽༌导致保密信息当前或此后由公众所知或由公众所用༛
is now or hereafter becomes generally known or available to the public, through no act or omission on the part of the receiving Party;
(ii)
在从披露方收到信息前༌接收方已知晓保密信息༌且无使用或披露方面限制༛
was known, without restriction as to use or disclosure, by the receiving Party prior to receiving such information from the disclosing Party;
(iii)
保密信息由接收方从第三方获得༌该第三方有权进行披露༌且披露的信息不存在使用或披露方面的限制༛或者
is rightfully acquired by the Receiving Party from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or
(iv)
由接收方在未使用披露方保密信息的情况下༌独立开发的保密信息。
is independently developed by the Receiving Party without access to any Confidential Information of the Disclosing party.
(e)
尽管有上述规定༌在获 得披露保密信息的合同一方或其关 联方事先书面批准的情况下༌合资公司可向政府当局、相关证券交易所或其他主管当局披露保密信息༌ 以获得必要政府许可༛或根据相关法律、证券交易所规则或政府当局或对 任何合同一方具有管 辖权的机构要求而披露保密信息༛或在必要时向外部律师、会计师和顾问披露༌以获其专业协助。但是༌上述外部顾问应承诺遵守本合同和相关协议的保密规定。
Notwithstanding the foregoing, the Company may, with prior written approval of the Party or its Affiliate(s) who disclosed the Confidential Information, reveal Confidential Information to government authorities, relevant stock exchange or other competent authorities to the extent necessary to obtain any required governmental approval, or to the extent as required by relevant laws, rules of any stock exchange, and any government authority or other competent authorities that have jurisdiction over any Party hereto, and to outside lawyers, accountants and consultants to the extent necessary for them to provide their professional assistance, provided that such outside advisors shall be requested to undertake to respect the confidentiality provisions of this Contract and each of the Related Agreements.
(f)
接收方在本条中的保密义务在[***]内始终有效。
The Receiving Party’s confidentiality obligation in this Section shall be in effect for [***].
(g)
未经其他方对相关公告、公开通知或其他通知的格式和内容作出事先书面༌合同 任一方均不得就本合同或相关合同的存 续或其计划交易发布任何公告或发表任何公开通知或其他通知༌但因任何适用法律或证券交易所规则 要求公开的除外。若合同一方根据适用法律或 证券交易所规则发布任何公告༌在适用法律或证券交易所规则许可范围内༌该方应在发出公告前༌尽快向其他方提供相关公告的内容。
No Party may make any announcement, have any public communication or issue any circular in connection with the existence of or the transactions contemplated by this Contract or any Related Contract without the other Parties’ prior written consent of the format and content of the relevant announcement, public communication or circular, unless any applicable law or the rules of any stock exchange require public disclosure of the existence of or the transactions contemplated by this Contract or any Related Contract. If a Party makes any announcement in accordance with the applicable law or the rules of any stock exchange, to the extent practicable and permitted by the applicable law or the rules of such stock exchange, such Party shall provide the content of the relevant announcement to the other Parties as soon as practicable before it is made.
第七条 董事会
ARTICLE VII      BOARD OF DIRECTORS
7.1
董事会构成。
Formation.
(a)
公司应成立由五༈5༉名董事构成的董事会༌出资达到公司注册资本[***]以上的股东[***]拥有委派董事的权利༌但任何情况下༌爱科索均有权 委派一༈ 1༉名董事。其人员构成如下所示༚༈i༉优创应有权任命两༈2༉名董事༛༈ii༉ 产业投资基金应有权 任命一 ༈1༉名董事༛༈iii༉ 爱科索应有权 任命一 ༈1༉名董事༛༈iv ༉最后一名董事由 优创和爱科索共同任命༈决定权由优创掌控༉༌第五名董事应担任合资公司总裁、首席执行官和总经理。董事任期应为三༈3༉年。任期届满后༌经任命方重新委任后可连任。
The Company shall have a Board consisting of five (5) directors and shareholders with an amount of contributed capital reaching [***] of the registered capital of the Company have the right of appointing directors to the Company, but Ekso Bionics shall have the right to appoint one (1) director in any cases. The Board’s composition is as follows: (i) Youchuang shall have the right to appoint two (2) directors; (ii) Industrial Investment Fund shall have the right to appoint one (1) director; (iii) Ekso Bionics shall have the right to appoint one (1) director; and (iv) the fifth director shall be appointed by Youchuang and Ekso Bionics jointly with Youchuang having the right to make a final decision. The fifth director shall serve as the President, Chief Executive Officer and General Manager of the Company. The term of office for each director shall be three (3) years renewable upon reappointment by the appointing Party.
(b)
若因董事退休、辞职、患病、丧失能力或死亡༌或因原任命方撤回任命导致董事会席位出现 空缺༌原任命方或合同各方可指派一名 继任者༌填补该空缺余下任期༌ 并以书面方式向合资公司和其他方通知该继任者姓名。
If a seat on the Board is vacated by the retirement, resignation, illness, loss of capacity or death of a director, or by the removal of such director by the Party that originally appointed him or her, the original appointing Party or Parties may appoint a successor to serve as director for the remaining term whose seat is vacated, and notify the Company and the other Parties in writing of the name of the successor,
(c)
优创应从其任命董事中选 取一名董事༌担任董事会主席一 职。
The Chairman of the Board shall be designated by Youchuang from the directors appointed by it.
7.2
权限和权力。
Authority; Powers.
董事会应为合资公司最高权力机构༌负责指导公司业务的整体管理、监督和控制。除本合同其他部分规定的董事会任何其他权力外༌董事会还应就下列事项作出决定༚
The Board shall be the highest authority of the Company, and shall direct the overall management, supervision and control of the business of the Company. Accordingly, in addition to any other powers of the Board specified elsewhere in this Contract, the Board shall make decisions regarding the following matters:
(a)
修订公司章程༛
any amendment to the Articles of Association of the Company;
(b)
公司或其任何子公司的清算、清盘或破产、重组或其他类似破产程序༛
any liquidation, winding up or bankruptcy, reorganization or other analogous insolvency proceeding of the Company or any of its subsidiaries;
(c)
公司注册资金增减༛以及
any increase or reduction of the registered capital of the Company;
(d)
涉及公司或其子公司的合并、分拆或类 似交易༈包括 变更企业形式༉༛
merger, spin-off or similar transactions (including change of enterprise form) involving the Company or its subsidiaries;
(e)
公司投资或收购任何其他公司或成立任何子公司或分公司༛
investment in or acquisition of any company or establishment of any subsidiary or branch company by the Company;
(f)
变更或调整公司或其子公司或分公司的经营范围或业务༛
changing or adjusting the business scope or the business operated by the Company or its subsidiaries or branch companies;
(g)
与第三方建立其他合资公司或其他机构༛
establishment of a joint venture or other association with third parties.
(h)
分配股息或利润༛
dividend or profit distribution;
(i)
收购负债༌前提是该收购累计风险超过公司实收资本和储备总额༛
acquisition of liabilities which result in a cumulative exposure exceeding the total of the Company’s paid-up capital and reserves;
(j)
批准合资公司将爱科索出资的专利权和/或许可的许可技术向优创、产业投资基金或任何第三方进行技术合作、转让、许可或处置༌或商标许可但相关协议所述的除外༛
approval of trademark license, technology cooperation, transfer, assignment, license or disposal of any technologies contributed or licensed by Ekso Bionics such as the Patent Rights and/or Licensed Technologies, to Youchuang, the Industrial Investment Fund, or any third parties, except for those arrangement under the Related Agreements;
(k)
发行债券或向任何金融机构或任何人借款的决定༌前提是该笔债权或借款总额连同现有负债 ༈包括 长期和短期负债༉占合资公司实收资本和储备累计总额的百分之[***]༛
any decisions to issue bonds or to borrow funds from any financial institution or any Person which, together with all then existing indebtedness (long and short term both included) will reach [***] percent of the cumulative aggregate of the Company’s paid‑up capital and reserves;
(l)
除非本合同另有约定༌决定收购出售或者托管公司业务或固定资产༛
except as prescribed otherwise in this Contract, any decisions to acquire, dispose of or place in custody of Company’s business or fixed assets;
(m)
除本合同或者合同双方事先拟定的任何商业 安排外༌本公司与任何一方或其附属公司之 间于会计年度累计交易超过 [***]的任何合同或协议及其修改。
Except for this Contract or any commercial arrangements previously agreed in written by the Parties, any contract or agreement between the Company and any Party or its Affiliates that exceeds [***] cumulative in an accounting year as well as any amendments or modifications to any of such contract or agreement;
(n)
任命和解雇合资公司独立审计师༌但是当拟任命的独立审计师具备相应资质和经验时 ༌任一董 事不得不合理地拒绝对该独立审计师的任命༛
appointment and dismissal of the Company’s Independent Auditor, but when the nominated Independent Auditor is equipped with relevant qualifications and experience, directors shall not veto the appointment of such Independent Auditor unreasonably;
(o)
提起或解决任何争议金额超过[***]的诉讼或仲裁༛
commencement or settlement of any litigation or arbitration with the amount in dispute involving sums of more than [***];
(p)
金额超过[***]的抵押、质押、留置或任何其他产权负担或任何担保[***]༛
provision of any mortgage, pledge, lien or any other encumbrance or any guarantee by the Company with the amount of more than [***].
(q)
新加入任何股东༈合同各方的全资子公司或关联方除外༉༛
acceptance of any new shareholder, except for a wholly-owned subsidiary or of affiliate of the Parties, into the Company;
(r)
根据第14.2条规定延长合营期限༛
the extension of Joint Venture Term in accordance with Article 14.2;
(s)
根据第23.1条规定修订本合同及相关协议༛
modifications to this Contract and the Related Agreements as provided in Article 23.1.
(t)
后续股权融资方案༛
follow-up equity financing plan;
(u)
员工股权激励方案༛
Employee equity incentive plan;
(v)
向其他第三方出租不动产
leasing real estates to any third parties
(w)
公司保险投保和续保༛
procurement and maintenance of the Company’s insurance;
(x)
任命和解雇高级管理人员及决定其薪酬和福利༌以及变更相关人员的职责和权限༛
appointment and dismissal of the Senior Management Personnel and their compensation and benefits, and any changes to their respective roles and authority;
(y)
批准公司年度经营计划以及经审计的年度财务报表༛
approval of the annual operating plan and approval of the Company’s audited annual financial statements.
(z)
提起或解决任何争议金额超过[***]的诉讼或仲裁༛
commencement or settlement of any litigation or arbitration with the amount in dispute involving sums of more than [***];
7.3
董事会决策༛要求获 得一致同意的行 为。 除非本合同和公司章程另有规定༌否则董事会决策应由超过 二分之一༈ 1/2༉董事在正式召集和召开的董事会会议༈亲自出席会议或通过电话、视频会议或所有与会者可相互交流和倾听的其他电子方式召开的会议༉投票༈亲自投票或由代理人投票༉做出༛但是༌涉及[***]条所述事项的决议 ༌需由董事会所有董事一致投 赞成票༈亲自投票或由代理人投票༉的情况下༌方可在正式召集和召开的董事会会议༈亲自出席会议或通过电话、视频会议或所有与会者可相互交流和倾听的其他电子方式召开的会议༉上通过。尽管本合同有任何相反规定༌ 需特别指出的是༌本公司因知识产权的处置而召开董事会会议决定第7.2 (j)条所述事项时༌爱科索任命的董事必须参加该等董事会会议༈可亲自出席会议或通过电话会议、视频会议或所有与会者可相互交流和倾听的其他电子方式召开的会议༉༌并就该等事项进行赞成投票༌否则第7.2 (j)条所述事项相关的董事会规定应无效。
Board Decisions; Actions Requiring Unanimous Consent. Unless otherwise provided in this Contract and the Articles of Association, decisions of the Board shall be made by more than one half (1/2) of those directors voting in person or represented by proxy at a duly constituted and convened meeting (either in person, or by telephone, video-conference or any other electronic means by which all participants may speak to and hear each other) of the Board; provided, however, that resolutions involving those matters described in [***] may only be adopted at a duly constituted and convened meeting of the Board upon the unanimous affirmative vote of each and every director of the Board voting in person or by proxy at such meeting (either in person, or by telephone, video-conference or any other electronic means by which all participants may speak to and hear each other). Notwithstanding anything to the contrary in this Contract, in particular, as to Board meetings where the matters described in Article 7.2 (j) on disposal of the intellectual property right by the Company would be decided, the director appointed by Ekso Bionics must attend such Board meetings (either in person, or by telephone, video-conference or any other electronic means by which all participants may speak to and hear each other) and vote in favor of such matters, otherwise the Board resolutions in connection with the matters in Article 7.2(j) are void and invalid.
7.4
董事会主席。 主席应在董事会规定范围内行使其权力。未经董事会事先书面授权༌在任何情况下不得以合同约束合资公司或以其他方式代表公司采取任何行动。若主席因任何原因无法履行其职责༌其应授权 一名董事履行其 职责。
The Chairman. The Chairman shall exercise his authority within the limits prescribed by the Board and may not under any circumstances contractually bind the Company or otherwise take any action on behalf of the Company without the prior written authorization of the Board. If the Chairman for any reason is unable to perform his or her duties, he shall authorize one director to carry out his duties.
7.5
董事会会议。 董事会每年至少召开[***]次定期会议。会议应由主席召开并主持。主席应在至少在[***]名董事提出动议后༌在任何时间召开董事会特别会议。会议通知应根据公司章程规定有效发布༈是指至少应以第23.3条通知条款(b)、(d)和(e)中约定的电子邮件、电话和邮寄方式进行通知和发布༉༌可同时采用多种该等方式发送༌或如果收件人已明确确认 收到通知༌只需以任意一种方式 发送即可。应按照公司章程要求༌保存所有董事会会议记录。参加董事会会议༌董事可亲自出席༌亦可通过电话、视频会议或任何其他电子通讯方式参与༌前提是所有与会者均可互相交谈并听到对方 声音。所有董事会文件༌包括但不限于会 议通知、会议记录和董事会决议༌均应采用中文和英文书。
Meetings. Regular meetings of the Board shall be convened at least [***] times each year. Meetings shall be called and presided over by the Chairman. The Chairman shall convene a special meeting of the Board at any time upon a motion of at least [***] directors. Notice of meetings shall be given and distributed effectively, which means that the notice of Board meeting shall be issued and delivered at least using the methods prescribed under Article 23.3 (b), (d) and (e) concurrently, or either of those methods if the recipient has expressly confirmed the receipt of the notice. A record shall be kept of the minutes of all Board meetings in accordance with the requirements of the Articles of Association. Board meetings may be held either in person or by telephone, video-conference or any other electronic means of communication by which all participants may speak to and hear each other. All the Board documents, including without limitation, Board meeting notices, minutes and Board resolutions, shall be prepared in both Chinese and English.
7.6
总经理报告。 在各董事会会议上༌除非经 董事会一致豁免༌否 则总经理应向董事会全面汇报合资公司的经营现状以及涉及公司所有重大发展或计划行动༌并应向会议提交公司当前完整财务信息。特别的༌总经理有义务在每次董事会会议上༌就本公司与上次董事会间隔期间 内与任何一方或其附属公司 签署的每份合同或协议༈不论其金额如何༉向董事会详细汇报༌除相关协议项下的商业协定外。
General Manager’s Report. At each meeting of the Board, unless waived unanimously by the Board, the General Manager shall report fully to the Board with respect to the current status of the operations of the Company and with respect to all major developments or planned actions involving the Company and shall present to the meeting complete current financial information with respect to the Company. In particular, the General Manager is obliged to report in detail at each board meeting on each contract or agreement between the Company and any Party or its Affiliates (regardless of the amount) that occurred during the period since the last board meeting, except for the commercial arrangement under the Related Agreements.
7.7
法定人数。 根据第7.5条规定༌若董事会会议通知已有效传达至各董事༌ 除非有二分之一༈ 1/2༉董事出席༌否则不得召开董事会会议。否则༌不得在任何董事会会议上决定任何事项。
Quorum. Subject to the condition that the Board meeting notice has been effectively delivered to the directors according to Article 7.5, a Board meeting shall not be convened unless one- half (1/2) of all the directors attend the Board meeting, otherwise, no matters shall be transacted at any Board meeting.
7.8
书面同意。 若董事会所有成员以书面形式同意需董事会投票表决之事宜༌则可在未举行会议的情况下采取相关行动。此类书面同意应与董事会会议记录及公司其他记录 一并 归档༌并与董事现场投票决议具有相同效力。
Written Consents. Any action requiring the vote of the Board may be taken without a meeting if all members of the Board consent in writing to such action. Such written consents shall be filed with the minutes of the Board and other records of the Company and shall have the same force and effect as a vote taken by members physically present.
7.9
无个人责任。 任何董事或高级管理人员在履行其作为代表合资公司的董事或高级管理人员的职责时༌不对其行为承担任何责任༌但违反中华人民共和国刑法的行为除外。对于针对各董事和高级管理人员在履行其作为代表公司的董事或高级管理人员的职责时所发生行为的任何索赔༌公司应予以赔偿༈违反中华人民共和国刑法的行为除外༉。
No Personal Liability. No director or Senior Management Personnel shall have any liability for their acts when performing their duties as a director or Senior Management Personnel representing the Company, except for such acts in violation of PRC criminal laws. The Company shall indemnify each director and member of Senior Management Personnel against any claims made against such director or Senior Management Personnel in relation to acts performed in carrying out his duties as a director or Senior Management Personnel representing the Company (except for acts in violation of any PRC criminal laws).
第八条 管理层
ARTICLE VIII      MANAGEMENT
8.1
高级管理人员。
Senior Management Personnel.
(a)
高级管理人员应负责合资公司的日常运营。高级管理人员应由总经理和首席财务官组成༌总经理兼任公司总裁和首席执行官。
The Senior Management Personnel shall be responsible for the Company’s daily operations. The Senior Management Personnel shall be composed of the General Manager, who also serves as President and Chief Executive Officer of the Company, and the Chief Financial Officer.
(b)
总经理应由爱科索和优创共同任命༈决定权由优创掌握༉༌并经董事会批准。[***] 将担任公司的法人代表。首席财务官应由优创任命༌并经董事会批准。
The General Manager shall be mutually nominated by Ekso Bionics and Youchuang where Youchuang has the right to make a final decision, and approved by the Board. The [***] will be the legal representative of the Company. The Chief Financial Officer shall be nominated by Youchuang, and shall be approved by the Board.
(c)
董事会应正式任命各高级管理人员༌并确定其薪酬。
The Board shall formally appoint each member of the Senior Management Personnel and determine their remunerations.
8.2
职责。
Duties.
(a)
总经理。总经理应执行董事会决议并有权༈i༉根据各年度经营计划组织和领导公司日常运营和商业销售活动 ༌包括但不限于代表公司 签署合同༌༈ii༉指导并监督其他管理人员的职责履行情况༌༈iii༉负责公司制造管理和产品制造以及采购活动管理中涉及的所有技术问题༌以及༈iv༉负责以下事项༚
General Manager. The General Manager shall implement the resolutions of the Board and have the full authority to (i) organize and lead the daily operations and commercial sales activities of the Company in accordance with each Annual Business Plan including without limitation the signing of contracts on behalf of the Company, (ii) provide direction to and supervise the other management personnel with respect to the performance of their roles, (iii) be responsible for all technical issues involved in the manufacturing management and product manufacturing of the Company and the management of sourcing activities, and (iv) be responsible for the following:
(i)
负责公司日常运营管理༌组织实施董事会决议༛
being in charge of the management of the Company’s day-to-day operations, and organizing the implementation of the resolutions of the Board;
(ii)
组织编制公司年度经营计 划༌其中包括批准年度 财务预算和执行董事会批准的年度经营计划༛
organizing the preparation of the Company’s Annual Business Plans, which would also include approval of the annual financial budget and the implementation of the Annual Business Plans approved by the Board;
(iii)
制定公司管理结构和制度༛
formulating the Company’s management structure and system;
(iv)
与其他管理人员共同编制公司基本行政管理规则和主要政策༛
preparing, with other management personnel, the Company’s basic management rules of administration and main policies;
(v)
雇用或解雇除高级管理人员外的其他管理人员༌高级管理人员由合同各方根据第8.1条之规定任命༛
hiring or dismissing management personnel other than the Senior Management Personnel that shall be nominated by the Parties pursuant to Article 8.1;
(vi)
在合营期限初期内༌引进转让和许可技术༌为员工组织技术培训༌为公司制造业务做好技术准备༌根据约定技术标准管理公司设施建设、设备安装和调试༌并在公司进入正常生产后༌管理公司制造技术和技术改进 ༈包括工厂和 设备技术改进༉༛
bringing transferred and licensed technology into the Company at the initial state of the Joint Venture Term, organizing the technical training for employees, making technical preparation for the Company’s manufacturing, managing the construction of the Company’s facilities, equipment installation and commissioning pursuant to the agreed technical standards, and managing the Company’s manufacturing techniques and technical improvement after the Company commences its normal production (including technical improvement of plants and equipment);
(vii)
负责产品在药监局的注册༌以及相关政府当局的联络和配合工作༛
taking responsibilities of product NMPA registration and the contact and coordination with the Governmental Authorities;
(viii)
决定在公司日常经营中现有产品的出租༛以及
deciding to lease the Current Products during daily ordinary business operation at market price; and
(ix)
公司章程或董事会授予的其他权力和职责。
other powers and duties as granted in the Company’s Articles of Association or by the Board.
(b)
首席财务官。首席财务官应在总经理领导下履行其职责。首席财务官职责 包括但不限于以下内容༚
Chief Financial Officer. The Chief Financial Officer shall perform his or her duties under the leadership of the General Manager. The duties of the Chief Financial Officer shall include, without limitation, the following:
(i)
雇用、解雇并监督所有财务和会计人员༛
hiring, dismissing and supervising all financial and accounting personnel;
(ii)
审核并批准会计账簿༛
reviewing and approving accounting books;
(iii)
编制并提交年度预算以供公司批准༛
preparing and submitting annual budget for approval by the Company;
(iv)
根据公司管理权限༌批准公司支出༛
approving the expenditures of the Company according to the management authority limitations of the Company;
(v)
向总经理和董事会汇报重大财务问题和支出༛
reporting to the General Manager and the Board on major financial issues and expenditure
(vi)
提议发行债券或向任何金融机构或任何人借款༛
proposing to issue bonds or to borrow funds from any financial institution or any Person;
(vii)
根据第11.8条规定向总经理和董事会提交报告༛以及
submitting reports to the General Manager and the Board in accordance with Article 11.8; and
(viii)
总经理和董事会指示的其他职责。
other duties as directed by the General Manager and the Board.
8.3
免职与撤换。
Removal or Replacement.
(a)
若高级管理人员出现重大失职或出于任何其他合理原因༌公司可在董事会决议通过后随时罢免和撤换高级管理人员༌任命相应高级管理人员 的合同一方 应提名替换人员。尽管存在上述规定༌若该人员 由合同一方向公司提名༌当其出 现重大失职时༌应 合同另一方合理要求 ༈在第8.3条下中方股东应被视为 一方༉༌ 该方应将该人从借调人员名单中移除并提名替换人员。
In case of a material breach of duty, or for any other reasonable reason, the Senior Management Personnel may be removed and replaced at any time upon resolution of the Board, and the Party that nominates such member of Senior Management Personnel shall nominates a replacement. Notwithstanding the foregoing, if such person is nominated by a Party to the Company, when he/she commits a material breach of duty, upon reasonable request of the other Party (the Chinese Shareholders shall be treated as one Party under this Article 8.3), such Party shall remove such person from such secondment and nominee a replacement.
(b)
若任何高级管理人员因任何原因遭到解雇或离职༌则应以与任命原高管人员相同的方式提名、任命或选择继任者。
If any Senior Management Personnel is discharged or departs for any reason, a successor shall be nominated, appointed or selected in the same manner as the original appointee.
8.4
薪酬与福利。 合资公司其他高级管理人员的薪酬和福利应经董事会批准并由公司支付。公司直接聘用的其他人员的薪酬和福利༌应根据公司政策确定༌与其专业知识和经验相适应༌并符合中国地方标准和适用法律要求。
Compensation and Benefits. The compensation and benefits of other Senior Management Personnel of the Company shall be approved by the Board and paid by the Company. The compensation and benefits of the other personnel hired directly by the Company shall be determined according to the policies of the Company and commensurate with their expertise and experience in accordance with the established local standards and applicable laws of the PRC.
第九条 监事
ARTICLE IX      SUPERVISORS
9.1
中方股东和爱 科索各自指定一 ༈1༉名监事。
Chinese Shareholders and Ekso Bionics shall each appoint one (1) Supervisor.
9.2
监事应履行下列职责༚
The Supervisors shall exercise the following duties:
(i)
监督董事会和高级管理人员履行职责的行为༌并提议解雇任何违反任何法律、公司章程、公司政策或董事会决议的人员༛
supervise the behaviour of the Board and Senior Management Personnel in the performance of their duties, and propose the dismissal of any such person who violates any law, the Articles of Association, the policies of the Company or any resolution of the Board;
(ii)
要求任何董事或高级管理人员纠正其导致公司利益受损的任何不当行为༛
demand any director, or Senior Management Personnel to correct any misconduct of such person if such misconduct has caused damage to the interests of the Company;
(iii)
根据《中华人民共和国公司法》针对董事或高级管理人员提起诉讼༛以及
file litigation against the directors or Senior Management Personnel in accordance with the PRC Company Law; and
(iv)
行使《中华人民共和国公司法》和公司章程规定的其他职责和权力。
exercise other duties and powers specified in the PRC Company Law and the Articles of Association.
9.3
监事任期为[***]。监事任期届满༌可续任。监事任命和解雇由任命该监 事的合同一方自行决定。但是༌任何董事和高 级管理人员不得兼任监 事一 职。监事不得因其监事身份而从公司获取任何报酬。
Each Supervisor shall serve for a term of [***]. At the time of expiration of his or her term, a Supervisor may be reappointed. The appointment and dismissal of Supervisors is at the sole discretion of the Party appointing them, provided that any directors and Senior Management Personnel shall not serve simultaneously as Supervisors. Supervisors shall not enjoy any remuneration from the Company as a result of their status as a Supervisor.
9.4
监事可以无投票权身份参加董事会会议༌并就董事会会议议程事宜提问或提出建议。
Supervisors may attend meetings of the Board in a non-voting capacity, and submit inquiries or suggestions regarding items in the Board meeting agenda.
9.5
若监事发现公司运营中存在违规行为༌可开展调查。必要时༌监事可聘请会计师事务所或其他专业机构协助工作。监事在履职过程中为了维护公司利益所需的费用由公司承担。
If the Supervisors discover irregularities in the operations of the Company, they may conduct an investigation. When necessary, the Supervisors may engage an accounting firm or other professional bodies to assist them in their work. The reasonable expenses needed by the supervisor to safeguard the interests of the Company during the performance of his/her duties shall be borne by the Company
第十条 工会和劳务管理
ARTICLE X      LABOR UNION AND LABOR MANAGEMENT
10.1
招聘和雇用员工。
Recruiting and Hiring of Employees.
(a)
除非合同各方另有约定༌否则公司有权直接从中国和其他地方招聘和雇用员工。在所有情况下༌公司可根据其标准和要求自由选择所有员工༌并且仅雇用符合相应资格的人员。
Unless the Parties otherwise agree, the Company shall have the right to recruit and hire employees directly from any available sources in the PRC and elsewhere. In all cases, the Company shall be free to select all its employees in accordance with its standards and requirements, and shall employ only those persons who are sufficiently qualified for employment.
(b)
合同各方应尽最大努力为公司提供支持༌确保公司聘用合格员工༌并向公司借调或推荐其合格员工༌并促使其相关关联方向公司借调或推荐其合格员工。
Each Party shall make their best efforts to provide the Company with its support for the Company to hire qualified employees and shall second or recommend and cause its relevant Affiliates to second or recommend its qualified employees to the Company.
10.2
直接雇用员工的劳务管理。
Labor Management of Directly Hired Employees.
(i)
合资公司直接聘用员工的劳务管理事项 ༌包括工会事 项、公司与员工之间个人劳动合同的订立、员工招聘、薪酬、解雇、福利和劳动保险等༌均应按照适用中国劳动法律法规办理。
All matters concerning labor management of those employees directly hired by the Company, including labor union matters, the conclusion of individual labor contracts between the Company and its employees and the recruitment, compensation, dismissal, welfare benefits and labor insurance of employees shall be handled in accordance with applicable Chinese labor laws and regulations.
(ii)
公司应与每位员工签订个人劳动合同༌但高级管理人员以及合同各方或其关联方根据适当借调协议派遣的其他人员除外。各劳动合同应 包括公司与 员工就工种、技术能力要求、薪酬和福利达成的协议。公司应根据中国适用劳动法律法规制定相关政策༌确定员工年薪和奖金总额。
The Company shall sign an individual labor contract with each of its employees, except for Senior Management Personnel and other personnel dispatched by the Parties or their Affiliates pursuant to an appropriate secondment agreement. Each individual labor contract shall include the agreement reached between the Company and the employee concerning the type of work, technical ability requirements, compensation and benefits of such employee. The total amount of annual salaries and bonuses shall be determined according to the policies of the Company formulated in accordance with applicable Chinese labor laws and regulations.
(iii)
公司员工有权依照中国工会法律法规成立工会。若成立工会༌则公司应遵守所有适用且不时生效的工会法律法规。
The Company’s employees shall have the right to establish a labor union in accordance with Chinese labor union laws and regulations. If a labor union is organized, the Company shall comply with all applicable labor union laws and regulations, as in effect from time to time.
第十一条 税务、财务和审计
ARTICLE XI      TAXATION, FINANCE AND AUDITING
11.1
税务。 合资公司及合同各方应依据适用的中国国家和地方法律法规、中国政府与任何相关国家之间达成的协议或多边协议༌承担因订立本合同和成立合资公司而产生的税款。
Taxation. The Company and each Party shall be responsible for taxes incurred by virtue of its entering into this Contract and establishment of the Company in compliance with applicable national and local laws and regulations of the PRC, agreements between the governments of the PRC and any relevant country or multilateral agreements to which the PRC is a party.
11.2
财务和会计制度。
Financial and Accounting System.
(a)
合资公司应根据中华人民共和国法律法规、本合同和公司章程༌建立财务和会计制度༈“ 财务和会计制度 ”༉༌并确保其满足中国《企业会计准则 》要求༌但是可根据美国《一般会 计准则》༈“美国GAAP” ༉和美国《一般公 认审计准则》提供财务报表和审计报告。由合资公司自行编制或由他人代为编制的财务报表应采用中文和英文书。
The Company shall establish a financial and accounting system (the “ Financial and Accounting System ”) in accordance with PRC laws and regulations, this Contract and the Articles of Association and in a manner sufficient to satisfy the China Accounting Standards for Business Enterprises and can provide financial statements and audit reports in accordance with the USA Generally Accepted Accounting Principles (“USA GAAP”) and USA Generally Accepted Audit Standards. Financial statements prepared by or for the Company shall be in Chinese and English.
(b)
财务和会计制度应经董事会批准后方可实施。董事会以全票通过方式批准财务和会计制度时༌必须考虑建立有效的内部会计和报告控制措施、开展有利的企业资源规划༈” ERP ”༉系统以及聘用合格人员。对于会计程序和惯例变更༌仅当经 董事会二分之一 ༈1/2༉表决通过后方可实施。
The Financial and Accounting System shall be implemented after being approved by the Board. The Board by unanimous votes must consider a strong internal accounting and reporting controls, a robust Enterprise Resource Planning (“ ERP ”) system, and qualified personnel in its approval of the Financial and Accounting System. Changes to accounting procedures and practices shall be implemented only after being approved by one-half (1/2) the Board.
(c)
为满足合同各方财务报告要求༌合资公司应自行承担费用༌至少按[***]以及要求的方式༌编制中方股东或爱科索要求的财务 信息༌包括合同任一方可能要求提供的༌用于支持其运 营报告的财务预测信息。此类财务信息应及时向合同各方提供༌以满足爱科索境外上市公司披露要求。
In order to meet the financial reporting requirements of the Parties, the Company shall, at the expense of the Company, prepare at a minimum on a [***] basis and in the manner required such financial information as is required by Chinese Shareholders or Ekso Bionics, including financial forecasts as may be requested by either of the Parties to support their operational reporting requirements. Such financial information must be provided to the Parties on the after each [***] on a timely manner, that should meet the information disclosure requirements applicable to Ekso Bionics Holdings, Inc., as a public company in the USA.
11.3
账簿。 公司所有账簿均应在任何合理时间 内供合同任一方或其代表 审阅。合同各方均有权随时自费聘请独立会计师༌审计公司账簿和记录༈除非该审计结果与独立审计师审计结果存在明显差异༌并经董事会同意༌在此情况下༌费用应由公司承担༉。合资公司应与上述会计师开展充分合作༌并允许其充分使用公司账簿和记录。公司记录应按照中国法律法规规定保存。
Books. All account books of the Company shall be made available for inspection or audit by any Party or its representatives at all reasonable times. Each Party shall have the right at any time to retain independent accountants to audit the books and records of the Company at its own expense (unless the results of any such audit are significantly different from that conducted by the Independent Auditor and are accepted by the Board, in which case the expense shall be borne by the Company). The Company shall extend full cooperation to any such accountants, and shall allow them full access to the books and records of the Company. The records of the Company shall be kept in accordance with relevant PRC laws and regulations.
11.4
独立审计师。 董事会应选择在中国注册的合格会计师事务所。该会计师事务所 ༈并非合同任一方的 审计师༉应担任公司独立审计师༈“ 独立审计师 ”༉༌对本公司进行审计。符合必要标准的审计师应任命为公司首席独立审计师。若董事会确定独立审计师无法达到上述标准༌则可以更换该独立审计师༌或聘请 另一名 审计师༌以填补或调整独立审计师的工作或执行特定会计和审计任务༌费用由公司承担。
Independent Auditor. The Board shall select a qualified accounting firm registered in China This accounting firm (who shall not be the auditor of any Party)is the independent auditor of the Company (the “ Independent Auditor ”) to conduct audits of the Company . The audit firm who meets the requisite criteria shall be appointed as the initial Independent Auditor of the Company. In the event that the Board determines that the Independent Auditor is unable to meet the requisite standards, it may replace such Independent Auditor, or retain another auditor, at Company expense, to supplement or adjust the work of the Independent Auditor or to perform specific accounting and auditing tasks.
11.5
币种。 合资公司以人民币为会计单位。出于会计目的将外币兑换为人民币的༌应按照中 国人民银行在相关交易日提供的相关货币买卖价平均值计算༈本合同另有规定时除外༉。理论上༌除合资合同、公司章程或合资公司签署的其他协议规定的外币支付外༌合资公 司在中国境内的所有款项 ༈包括但不限于 劳动力成本和人员薪酬༈支付外国雇员的薪酬 除外༉༉均应采用人民币结算和支付。
Currency. The Company shall use Renminbi as its accounting unit. The conversion of foreign currencies into Renminbi for accounting purposes shall be calculated according to the average of the buying and selling rates quoted by the People’s Bank of China for the relevant currency on the date of the relevant transaction (except as otherwise provided herein). In principle, except for foreign currency payments prescribed in the Joint Venture Contract, the Articles of Association or other agreements signed by the Joint Venture, all payments (including but not limited to the labour costs and remuneration to personnel other than foreigners) by the Joint Venture in China shall be settled and paid by the Joint Venture in the currency of Renminbi.
11.6
银行账户。 合资公司将根据中国法律开立人民币银行账户和外币银行账户。如有需要并经董事会批准༌公司亦可根据中国相关外汇法律及法规在中国境外开立外币银行账户。
Bank Accounts. The Joint Venture shall open Renminbi bank accounts and foreign currency bank accounts in accordance with the laws of the PRC. If necessary and approved by the Board, the Company may also open foreign currency bank accounts outside of the PRC in accordance with relevant PRC foreign exchange laws and regulations.
11.7
财年。 公司财年应自1月1 日起算༈第一个 财年自成立日期起算༉༌截至每年12月31 日༈最后一个 财年以本合同规定解散公司之日计算༉。
Fiscal Year. The fiscal year of the Company shall begin on January 1 (or on the Establishment Date in the case of the first fiscal year) and end on December 31 of each year (or, in the case of the final fiscal year, on the date of dissolution of the Company in accordance with the provisions of this Contract).
11.8
报告。 公司首席财务官应提交公司[***]管理报告、[***]财务报表༌供总经理和董事会审核。各财年结束后༌独立审计师应尽快对公司账簿和报表开展年度审计༌并及时向爱科索及产业投资基金提供༌以满足爱科索境外上市公司披露要求及产业投资基金规范运作要求。
Reporting. The Chief Financial Officer of the Company shall present [***] management reports and [***] financial statements of the Company for the General Manager’s and the Board’s review. An annual audit of the books and statements of the Company shall be made by the Independent Auditor and provided to Ekso Bionics and Industrial Investment Fund on a timely basis provided however that should meet the information disclosure requirements applicable to Ekso Bionics Holdings, Inc., as a public company in the USA and the standardized operation requirements of the Industrial Investment Fund.
11.9
折旧。 公司所有固定资产应均按照中国会计制度以及适用税务法律法规有关规定在资产使用寿命内计提折旧。
Depreciation. All fixed assets of the Company shall be depreciated over the useful life of the assets in accordance with Chinese Accounting System and relevant provisions of applicable tax laws and regulations.
11.10
三大基金。 公司将税后利润分配至董事会确定的储备基金、发展基金和员工奖金福利基金。
Three Funds. The Company shall make allocations of after tax profits to its reserve fund, expansion fund and employee bonus and welfare fund, as determined by the Board.
11.11
利润。
Profits.
(a)
公司应按照财务会计制度༌于每[***]确定税后可分配利润的数额。
The Company shall determine the amount of its after-tax distributable profit, in accordance with the Financial and Accounting System, on [***] basis.
(b)
分配三大基金的金额༈由董事会确定༉应在税后利润分配༈或再投资༉前拨出。
The contributions to the three funds, as determined by the Board, shall be set aside prior to any distribution (or reinvestment) of after-tax profit.
(c)
董事会应根据公司生产经营情况༌决定是否向股东分配利润。
The Board shall determine on whether to distribute profits to shareholders based on the production and operation status of the Company.
11.12
预算。 各年度业务计划应 包括下一 财年详细预 算༌包括最低运 营目标、财务预算、资本投资计划、部署和借款、技术支持计划、价格水平预测、销售额、开支、收益和可分配利润等生产经营所需的其他项目。
Budgets. Each Annual Business Plan shall include detailed budgets for the ensuing fiscal year, including at a minimum operational targets, a financial budget, a plan for capital investments, dispositions and borrowings, a technical support plan, forecasts of price levels, sales, expenses, earnings and distributable profits, and such other items as are required for production and business operations.
第十二条外汇
ARTICLE XII      FOREIGN EXCHANGE
12.1
概述。 公司一切外 汇事宜༌应按中华人民共和国相关外汇法律和法规办理。
General. All foreign exchange matters of the Company shall be handled in accordance with the relevant foreign exchange laws and regulations of the PRC.
12.2
获取外币。 公司成立后༌应立即在国家外汇局登记༌以便在指定银行开立外汇账户并购买外币。
Access to Foreign Currency. Promptly after the establishment of the Company, the Company shall register with the SAFE so as to be able to open foreign exchange accounts with and to purchase foreign currency from the Designated Banks.
第十三条 保险
ARTICLE XIII      INSURANCE
13.1
保险。 公司应在中国境内信誉良好的保险公司投保和续保各类保险༌以全面并充分地为公司投保火灾损失险以及其他常用保险。
Insurance. The Company shall purchase and maintain various insurance from reputable insurance companies within the PRC to fully and adequately cover the Company against loss or damage by fire and such other risks as are customarily insured against.
第十四条 合营期限
ARTICLE XIV      TERM OF THE JOINT VENTURE
14.1
合营期限。 合营期限应为[***]༌自合资公司成立日期起至合资公司成立[***]止༌除非按照第14.2条延长期限或按照第十五条提前终止。
Joint Venture Term. The Joint Venture Term shall be [***] commencing on the Establishment Date and ending on the [***] anniversary of such date unless extended pursuant to Article 14.2 or terminated earlier in accordance with Article XV.
14.2
延期。 合营期限届满或延期前༌合同各方应本着诚信原则就公司进 一步 发展进行协商。合同各方可同意延长合营期限。合营期限届满或延期前༌应至少提前[***]就延期进行协商。如协商成功༌则合同各方应[***]。
Extension. Prior to the expiration of the Joint Venture Term, or any extension thereof, the Parties shall discuss in good faith about the further development of the Company. The Parties may agree to extend such term. Negotiations for such extension shall begin at least [***] prior to the expiration of the Joint Venture Term or the extension thereof. If such negotiations conclude successfully, the Parties shall [***].
第十五条 终止与清算
ARTICLE XV      TERMINATION AND LIQUIDATION
15.1
终止。 出现以下情况༌本合同应终止༚根据第5.7༈b ༉条༌合同其中一方成 为公司注册资本中所有股本权益的实益所有人。此外༌发 生以下任何情形༌合同一方可随 向合同另一方 发出书面终止通知༈“ 终止通知 ”༉༈仅限于第15条规定༌中方股东应被视为 方༉༌以终止本合同༚
Termination. This Contract shall terminate when through the application of Article 5.7 (b) one of the Parties becomes the beneficial owner of all of the Equity Interest in the registered capital of the Company. In addition, one Party may give a written notice of termination (“ Termination Notice ”) to the other Party (the Chinese Shareholders shall be treated as one Party under this Article 15) at any time upon the occurrence of any of the following events:
(a)
合同另一方 严重违反本合同༌且在收到违约通知后[***]未能纠正其在本合同项下的任何重大违约或履行其在本合同项下义务༛
the other Party materially breaches this Contract and fails to remedy [***] of receipt of notice thereof any material breach or non-performance of its obligations under this Contract;
(b)
另一方 单方面违反本合同第5.7条转让规定和限制༌转让其在合资公司的股权༛
upon a transfer by the other Party arbitrarily of its Equity Interest in the Company in violation of the transfer provisions and restrictions set forth in Article 5.7;
(c)
合同另一方破 产或遭遇清算或解散༌停止运营或无力偿还到期债务༛
the other Party becomes bankrupt, or is the subject of proceedings for liquidation or dissolution, or ceases to carry on business or becomes unable to pay its debts as they come due;
(d)
公司遭受重大损失༈就本条而言༌“重大损失”是指累计损失超过公司注册资本的损失༉༛
the Company suffers material losses (for the purpose of this clause, “material loss” means accumulated losses amounting to more than the registered capital of the Company);
(e)
公司全部或任何重大资产[***]由任何政府当局以任何理由从公司提取༛
all or any material portion of the assets of the Company, [***] are taken from the Company by any government authority for whatever reason;
(f)
任何政府当局要求修改本合同或公司章程条款、相关协议或公司营业执照༌从而对 公司或合同任一方造成重大不良后果༌或如 16.2༈b༉条所述༌中国法律发生任何变更或新增任何条款༌对 合同一方的 经济利益造成重大不利影响༌且合同各方未能为维护受影响方的经济 利益而就本合同修正案达成一致意 见༛
any Governmental Authority requires any provision of this Contract or the Articles of Association, the Related Agreements or the Company’s Business License to be revised in such a way as to cause significant adverse consequences to the Company or any Party, or any change to or new provision of PRC law that materially adversely impacts the economic interests of one of the Parties set forth in Article 16.2(b) has occurred, and the Parties cannot agree upon amendments to maintain the affected Party’s economic benefits;
(g)
任何不可抗力事件事件或后果严重影响公司正常运作༌且影响期限超过[***]༌且合同各方未能根据本合同第18.1条寻求公平解决方案༛
the conditions or consequences of any Event of Force Majeure significantly interfere with the normal functioning of the Company for a period in excess of [***] and the Parties have been unable to find an equitable solution pursuant to Article 18.1 hereof;
(h)
对公司开展第4.2条中所述活动的能力具有重大影响的任何批准、许可、许可证、证书或权利༌遭到撤销、发生重大不利修改或届满时未续期༌且此状况在发生后[***]内未纠正至合同各方满意的程度༛以及
any approval, permit, license, certificate or right materially affecting the Company’s ability to conduct full scope of activities contemplated in Article 4.2 is rescinded, amended in a materially adverse manner, or is not renewed upon expiration, and such situation cannot be rectified to the mutual satisfaction of the Parties within [***] thereof; and
如合同一方根据本合同第 15.1条发出终止通知༌[***]合同各方应[***]。
In the event that one Party gives a Termination Notice pursuant to Article 15.1 hereof, the Parties shall, [***].
15.2
终止效力。 若༈a༉合同各方同意终止本合同༌༈b༉根据第15.1条终止本合同༌或༈c༉ 合营期限届满或未根据本合同第14.2条延期༌则公司应在经董事会批准后解散。
Effect of Termination. In the event that (a) the Parties mutually agree to terminate this Contract, (b) this Contract is terminated pursuant to Article 15.1 hereof, or (c) the Joint Venture Term expires or is not extended pursuant to Article 14.2 hereof, the Company shall be dissolved after the approval of the Board.
15.3
清算。
Liquidation.
(a)
如必须清算公司༌在董事会批准公司解散后的[***]内༌合同各方应成立清算委员会༈“ 清算委员会 ”༉。清算委员会有权代表公司处 理一切法律事 务。清算委员会应根据适用中国法律法规以及本合同规定要求༌对公司资产进行估价和清算。
In the event that the Company must be liquidated, within [***] after the dissolution of the Company is approved by the Board, the Parties shall set up a liquidation committee (the “ Liquidation Committee ”) with the power to represent the Company in all legal matters. The Liquidation Committee shall value and liquidate the Company’s assets in accordance with the applicable PRC laws and regulations and the principles set out herein.
(b)
清算委员会应由合同各方组成༌合同各方应指定代表履行其在清算委员会中的权利和义务。清算委员会成员代表可以是༈但并非必须是༉合资公司董事。可任命专业顾问 ༈包括中国境内或国外的合格会 计师和律师༉为清算委员会的成员代表༌ 或协助清算委员会工作。清算委员会作出的决定应经全体成员༈合同各方代表༉ 一致表决通 过。
The Liquidation Committee shall be composed of the Parties and each Party shall appoint a representative to carry out its rights and obligation in the Liquidation Committee. The representatives of the members of the Liquidation Committee may, but need not be, the directors of the Company. Professional advisers, including accountants and lawyers qualified either in the PRC or abroad, may be appointed to be representatives of the members of or to assist the Liquidation Committee. The Liquidation Committee shall make decisions with unanimous votes of all the members (representatives of each Party).
(c)
清算委员会应彻底审查公司资产和负债༌并根据本合同规定和审查结果༌制定清算计划༌并在经董事会批准后执行该计划。清算计划应规定༌在价格及其他条款相同的情况下༌相对第三方而言༌合同各方将享有优先购买权༌购买公司任何机械、设备和其他设施༌并进 一步 规定༌爱科索应有权优先购买其最初出资的技术以及从技术许可协议衍生或发展的知识产权。
The Liquidation Committee shall conduct a thorough examination of the Company’s assets and liabilities, on the basis of which it shall, in accordance with the relevant provisions of this Contract, develop a liquidation plan that, if approved by the Board, shall be executed by the Liquidation Committee. The liquidation plan shall provide that the Parties will have a priority right, assuming equal price and other terms, over third parties to purchase any of the Company’s machinery, equipment and other facilities, and further that Ekso Bionics shall have a priority right to purchase the technologies originally contributed by it, and intellectual property rights which are derived or developed from the Technology License Agreement.
(d)
制定和执行清算计划时༌清算委员会应 尽一切努力 为公司资产争取尽可能高的人民币价格。
In developing and executing the liquidation plan, the Liquidation Committee shall use every effort to obtain the highest possible price in RMB for the Company’s assets.
(e)
就清算程序而言༌根据技术许可协议向公司提供的保密信息不应视为公司资产༌ 不可转让༌而应按照技术许可协议规定归还或销毁。
The Confidential Information made available to the Company under the Technology License Agreement shall not be deemed an asset of the Company for purposes of liquidation proceedings, and may not be transferred but shall be either returned or destroyed as provided for in the Technology License Agreement.
(f)
应从公司资产中优先支付༈相对于其他债权人༉清算费用 ༌包括清算委 员会成员和顾问报酬༉。
The liquidation expenses, including remuneration of members and advisors to the Liquidation Committee, shall be paid out of the Company’s assets in priority over the claims of other creditors.
(g)
公司资产未偿债务清算结算后༌当公司具有偿付能力时༌合资公司按照以下方式分配资产[***]༈iii༉自第༈ii༉项工作结束后༌若清算资本仍有剩余༌则应按原先向公司出资的注册资本所占的百分比༌将剩余资本分配至合同各方。[***]
After the liquidation of the Company’s assets and the settlement of all of its outstanding debts, as long as the Company is solvent, the Company distributes its assets in the following way: [***]; and (iii) if after item (ii) there is surplus of liquidated assets, then such assets shall be distributed to all the Parties in proportion to their then respective percentage of the registered capital of the Company. [***]
(h)
完成所有清算程序后༌清算委员会应编 制一份最 终报告༌提交董事会批准༌并将批准报告提交至中华人民共和国商务部༈如需要༉༌将公司营业执照交至原注册机关༌并完成所有其他手续༌以交割公司会计账簿和其他文件༌所发生的费用由公司自行承担。
On completion of all liquidation procedures, the Liquidation Committee shall prepare a final report for the Board to approve, submit the approved report to MOFCOM (if required), surrender the Company’s Business License to the original registration authority and complete all other formalities for closing the Company’s accounting books and other documents at its own expenses.
(i)
就根据上文第༈g༉款以人民币向爱科索分配的余额部分༌清算委员会应协助爱科索获取中国相关政府当局许可༌并以最有利价格通过中国指定银行或中国法律许可的其他方式༌以人民币购买美元༌并协助爱科索将该笔款项汇出中国。
With respect to the Renminbi portion of the balance to be distributed to Ekso Bionics under paragraph (g) above, the Liquidation Committee shall assist Ekso Bionics in obtaining approval from the relevant Government Authorities of the PRC, and purchasing US dollars by Renminbi at the most favourable prices through Designated Banks in the PRC or through other means permitted under PRC law, and assist Ekso Bionics in remitting such money out of China.
15.4
其他义务。 合同各方特此同意༌促使其指定董事以符合第十五条规定的方式行事。
Further Obligations. The Parties hereby agree to cause their appointed directors to act in such manner as to give effect to the provisions of this Article XV.

第十六条 竞业禁止
ARTICLE XVI      NON-COMPETE
16.1
合营期间༌未经爱科索事先书面同意༌优创༈并应促使合营༉不得直接或༈通过任何关联方或其他方式༉间接从事以下活动༚
During the Joint Venture Term, without the prior written consent of Ekso Bionics, Youchuang shall not, and shall cause the Company not to, directly or indirectly (through any Affiliate or otherwise),:
(a)
除公司业务外༌在[***]开发、运营、制造、控制、分销或投资与爱科索产品具有竞争性的业务、产品或技术。
develop, operate, manufacture, control, distribute or invest in any business, products or technologies competing with Ekso Bionics other than the business of the Company within [***];
(b)
建议或以任何方式协助༈无论是否有利可得༉与爱科索任何业务存在竞争的对手༌ 包括宣 传或支持任何竞争对手的产品或服务、招揽客户或作为中介为此类竞争对手提供服务、或借款或提供任何其它形式的经济援助༌以帮助任何此类竞争对手༛
advise or assist in any way, whether or not for consideration, any competitor in any aspect of the business of Ekso Bionics, including advertising or otherwise endorsing the products or services of any such competitor, soliciting customers or otherwise serving as an intermediary for any such competitor or loaning money or rendering any other form of financial assistance to any such competitor;
(c)
作为独立订约人༌招揽、雇佣、引诱或以其他方式聘用爱科索当前或过去员工༛ 或作为独立订约人༌参与讨论爱科索当前或过去员工、委托销售人员或顾问或提供类似服务人员的雇佣或聘用事宜༛或协助任何第三方从事前述活动༌除非该人员已与爱科索及其关联方解除雇佣关系或其他关系超过[***]༛ 或
solicit, hire, induce or otherwise offer employment or engagement as an independent contractor to, or engage in discussions regarding employment or engagement as an independent contractor with, any person who is or was an employee, commissioned salesperson or consultant of, or who performed similar services for, Ekso Bionics, or assist any third party with respect to any of the foregoing, unless such person has been separated from his or her employment or other relationship with Ekso Bionics and each of their respective Affiliates for a period of [***]; or
(d)
从事任何旨在逃避本合同有关竞业禁止规定的行为。
engage in any practice the purpose or effect of which is to evade the provisions of this covenant not to compete.
本合同终止或期满后[***]内༌未经爱科索事先书面同意༌优创不得开发、经营、制造、控制、分销或投资与爱科索具有竞争性的任何业务、产品或技术。
For [***] after the termination or expiration of this Contract, without the prior written consent of Ekso Bionics, Youchuang shall not develop, operate, manufacture, control, distribute or invest in any business, products or technologies competing with Ekso Bionics.
尽管有上述规定༌合资公司[***]; 或自行组织和雇用内部人员在合同区域内销售现有产品和开发产品。若本公司不收购[***]将保留在当地区域运营的权利。
Notwithstanding the foregoing, after the Company [***], or organize and hire its own personnel to sell current products and developed products in the territory. If the company does not acquire [***], then [***]will be able to continue to operate in the local area.)
在本公司获得在合同区域内供应爱科索产品的必要资格并完成必要登记和许可程序之前༌ 鉴于上述选项༌爱科索将有权在[***]内销售现有产品。
Prior to the time when the Company has the necessary qualifications, registrations and licenses to supply Ekso products in the Territory and to consider the above options, Ekso Asia will be entitled to sell the Current Products [***].
16.2
合营期间༌ 产业投资基金不得从事以下活动༚
During the Joint Venture Term, Industrial Investment Fund shall not:
(a)
除公司业务外༌在合同区域合同范围内开发、运营、制造、控制、分销或投资与现有产品具有竞争性的业务、产品或技术༛
develop, operate, manufacture, control, distribute or invest in any business, products or technologies competing with the Current Products other than the business of the Company within the Territory;
(b)
建议或以任何方式协助༈无论是否有利可得༉与爱科索任何业务存在竞争的对手༌ 包括宣 传或支持任何竞争对手的产品或服务、招揽客户或作为中介为此类竞争对手提供服务、或借款或提供任何其它形式的经济援助༌以帮助任何此类竞争对手༛
advise or assist in any way, whether or not for consideration, any competitor in any aspect of the business of Ekso Bionics, including advertising or otherwise endorsing the products or services of any such competitor, soliciting customers or otherwise serving as an intermediary for any such competitor or loaning money or rendering any other form of financial assistance to any such competitor;
(c)
作为独立订约人༌招揽、雇佣引诱或 以其他方式聘用爱科索当前或过去员工༛或作为独立订约人༌参与讨论爱科索当前或过去员工、委托销售人员或顾问或提供类似服务人员的雇佣或聘用事宜༛或协助任何第三方从事前述活动༌除非该人员已与合资公司及其关联方解除聘用关系或其他关系[***]期限༛ 或
solicit, hire, induce or otherwise offer employment or engagement as an independent contractor to, or engage in discussions regarding employment or engagement as an independent contractor with, any person who is or was an employee, commissioned salesperson or consultant of, or who performed similar services for, Ekso Bionics, or assist any third party with respect to any of the foregoing, unless such person has been separated from his or her employment or other relationship with Ekso Bionics and each of their respective Affiliates for a period of [***]; or
(d)
从事任何旨在规避本合同有关竞业禁止义务的行为。
engage in any practice the purpose or effect of which is to evade the provisions of this covenant not to compete.
本合同终止或期满后[***]内༌未经爱科索事先书面同意༌产业投资基金不得开发经营、制造、控制、分销或投资与爱科索具有竞争性的任何业务、产品或技术。
For [***] after the termination or expiration of this Contract, without the prior written consent of Ekso Bionics, Industrial Investment Fund shall not develop, operate, manufacture, control, distribute or invest in any business, products or technologies competing with Ekso Bionics.
产业投资基金指定或委派参与公司决策、调研、审计或其他任何活动或行为的人员不得接触公司核心技术资 料༈包括但不限于 产品设计图纸、技术参数、技术专利、软件原代码、制造工艺参数等༉、重要研发成果、关键的供应商及客户资源༌同时上述人员必须与公司签订保密协议。产业投资基金在任何情况下均不得向竞争企业或第三方披露、共享或转让本公司或爱科索的任何机密信息或作出任何有损或违反本公司利益的举动。
The personnel designated or appointed by Industrial Investment Fund who are involved in the decision-making, researching, auditing or any other activities or actions of the Company shall not have access to any core technologies of the Company, including but without limitation design drawings, technology parameters, patents, software source codes, parameters of manufacturing processes, any important research and development achievement, key suppliers and clients resource, and such personnel shall enter into a confidentiality agreement with the Company. The Industrial Investment Fund shall in no event disclose, share or transfer any Confidential Information of the Company or Ekso Bionics to the competing business or third parties, or do anything harmful or against the interest of the Company.
16.3
中国法律变更。 若在本合同签署日后༌中国任何国家或地方政府当局对任何国家或地方法律、法规、条例或规定作出任何变 更༌包括修 订、补充和废除现有法律、法规、条例和规定༌或对现有法律、法规、条例或规定做出不同的解释或颁布实施方法༈就第16.3条而言༌统称为 “变更”༉༌或颁布新法律、法规、条例或规定༈就第16.3条而言༌ 统称为 “新规定”༉༚
Change in Chinese Law . If, after the date this Contract is signed, any national or local Government Authorities of the PRC makes any change to any provision of any PRC national or local law, regulation, decree or provision, including amendment, supplementation or repeal of an existing law, regulation, decree or provision, or introduction of a different interpretation or method of implementation of an existing law, regulation, decree or provision (for the purpose of this Article 16.3, collectively, a “change”), or promulgates a new law, regulation, decree or provision (for the purpose of this Article 16.3, collectively, a “new provision”):
(a)
相对于本合同签署日生效的相关法律、法规、条例或规定而言༌若该变更或新规定对合资 公司或合同任一方更有利༈且合同另一方并未遭到重大不利影响༉༌ 则公司和该相关方应立即申请获得此变更或新规定的利益。合资公司和合同各方应尽最大努力促使该申请获得批准。
If the change or new provision is more favorable to the Company or either of the Parties than the relevant laws, regulations, decrees or provisions in effect on the date this Contract was signed (and the other Parties is not materially and adversely affected thereby), the Company and the Party concerned shall promptly apply to receive the benefits of such change or new provision. The Company and the Parties shall use their best efforts to cause such application to be approved.
(b)
若此变更或新规 定使合同任一方在本合同 项下的经济利益遭到重大不利影响༈无论直接或间接༉༌则 在受影响方通知合同另一方 时༌合同各方应立即协商并对本合同作出所有此类必要的修订༌以维护受影响方在本合同项下的经济利益。
If, because of such change or new provision, any Party’s economic benefits under this Contract are materially and adversely affected, directly or indirectly, then, upon notice by the affected Party to the other Parties, the Parties shall consult promptly and make all such amendments to this Contract as are required to maintain the affected Party’s economic benefits hereunder.
(c)
若在上述第༈b༉款中所指协商开始后[***]内༌合同各方未能就上述第༈b༉款中所述修订 达成一致༌且若此 变更或新规定与国际 管理不一致༌ 则在本合同项下的经济利益受到重大不利影响 的合同一方可根据第 15.1条单方面终止本合同。
If the amendments provided for in paragraph (b) above cannot be agreed upon within [***] of the commencement of the consultation referred to in paragraph (b) above, and if such change or new provision is inconsistent with international practice, then such Party whose economic benefits under this Contract are materially and adversely affected may unilaterally terminate this Contract pursuant to Article 15.1.
第十七条 违约责任
ARTICLE XVII      LIABILITY FOR BREACH OF CONTRACT
17.1
违约。 若合同一方༈ 为避免疑义༌优创和产业投资基金为单独缔约方༉违反本合同项下的任何声明、保证和义务 ༌且在收到合同另一方或多方 发出的违约通知后[***]内༌未能纠正该等违约行为༌则违约方应赔偿 合同另一方或多方因 该等违约行为而遭受的任何损失。合同各方进 一步同意༌如任何一方延 迟出资、以瑕疵股权出资、出资不足或单方面撤资༌则履约方有权要求违约方向公司支付利息༌利率为[***] 。若任何一方 迟延出资导致公司终止༌则履约方有权[***]。
Breach of Contract. If a Party (to avoid any doubt, Youchuang and the Industrial Investment Fund are separate Parties) breaches any representation, warranty, obligation under this Contract and fails to correct such breach within [***] from receipt of notice thereof from the other Party or Parties, the breaching Party shall indemnify the other Parties for any losses caused by such breach. All Parties further agree that if any Party delays the capital contribution, has defective capital contribution, inadequate contribution or withdraws contribution arbitrarily, the performing Party shall be entitled to request the breaching Party to pay interest to the Company at the rate of [***] of the delayed contribution. If any Party’s delay above mentioned circumstances in capital contribution results in the termination of the Company, the performing Party shall be entitled to [***].
17.2
无间接损害。 在任何情况下༌合同任一方均不 对其他方的利润或收入损失、资本成本或公司客户对任何资本成本的索赔承担责任༌也不对任何特殊的、间接的、附带的或非直接的损害赔偿承担责任。
No Consequential Damages. In no event shall any Party be liable to the others for loss of profit or revenues, cost of capital or claims by the Company’s customers for any of the same, or for any special, consequential, incidental or indirect damages.
第十八章 不可抗力
ARTICLE XVIII      FORCE MAJEURE
18.1
不可抗力。
Force Majeure.
(a)
由于不可抗力事件༈即༌合同各方不可预见、且其发生和后果无法预防或避免的 事件༌包括地震、台 风、洪水、火灾和其他严重自然灾害、战争、暴动和类似军事行动、内乱和罢工、怠工及其他劳动行为、政府作为或不作为༌下文统称” 不可抗力事件 ”༉导 致合同一方无法全部或部分履行本合同 项下义务时༌若所有以下条件均满足༌则应根据不可抗力事件对本合同履行的影响༌免除遭遇此类 不可抗力事件的合同一方༈ 受影响方 ”༉的全部或部分责任༚
When the obligations of a Party under this Contract cannot be performed in full or in part because of an event that is unforeseeable and the occurrence and consequences of which cannot be prevented or avoided, including earthquake, typhoon, flood, fire and other serious natural disasters, war, insurrection and similar military actions, civil unrest and strikes, slowdowns and other labor actions, acts of or failures to act by governments (an “ Event of Force Majeure ”), the liability of the Party that encounters such Event of Force Majeure (the “ Hindered Party ”) shall be released in full or in part in light of the impact of the event upon the performance of this Contact, if all of the following conditions are met:
(i)
不可抗力事件是中断、阻碍或延迟受影响方履行其在本合同项下义务的直接原因༛
The Event of Force Majeure was the direct cause of the stoppage, impediment or delay encountered by the Hindered Party in performing its obligations under this Contract;
(ii)
受影响方已尽其合理努力履行其在本合同项下义务༌以减少因不可抗力事件而对其他方或公司造成的损失༛以及
The Hindered Party used its reasonable best efforts to perform its obligations under this Contract and to reduce the losses to the other Parties or to the Company arising from the Event of Force Majeure; and
(iii)
不可抗力事件发生时༌受影响方立即通知其他方༌在不可抗力事件发生后[***]内提供有关不可抗力事件的书 面信息༌包括延 迟履行或部分履行本合同的原因说明。
At the time of the occurrence of the Event of Force Majeure, the Hindered Party immediately informed the other Parties, providing written information on such event within [***] of its occurrence, including a statement of the reasons for the delay in implementing or partial implementation of this Contract.
(b)
若发生不可抗力事件༌合同各方应协商并决定是否应根据不可抗力事件对履行本合同的影响༌对本合同作出修订༌是否应部分或全部免除、降低或延迟履行受影响方在本合同项下的义务。
If an Event of Force Majeure shall occur, the Parties shall consult and decide whether this Contract should be amended in light of the impact of the event upon the implementation hereof, and whether the Hindered Party’s obligations hereunder should be partially or fully released, reduced or delayed.
第十九条 适用法律
ARTICLE XIX      GOVERNING LAW
19.1
适用法律。 本合同订立、效力、解释、执行、修订和终止以及本合同项下争议的解决均受中华人民共和国法律法规管辖。如中国当前法律和法规未对特定事项作规定的༌则采用国际惯例。
Governing Law. The formation, validity, interpretation, execution, amendment and termination of and settlement of disputes under this Contract shall all be governed by the published laws and regulations of the PRC. When the published laws and regulations of the PRC do not cover a certain matter, international practices shall apply.
第二十条 解决争议
ARTICLE XX      RESOLUTION OF DISPUTES
20.1
解决争议。
Resolution of Disputes.
(a)
因签署和履行本合同发生或与其相关的任何争议、纠纷或索赔༌合同各方应通过友好协 商解决。合同一方向合同另一方 发出协商书面请求后༌应立即开展协商。若在通知发出之日起[***]内无法解决争议༌则 在合同任一方向合同另一方 发出书面通知请求仲裁的情况下༌可提起仲裁。
Any dispute, controversy or claim arising out of or relating to the execution and performance of this Contract shall be resolved by friendly consultation between the Parties. Such consultation shall begin immediately after one Party has delivered to the other Parties a written request for such consultation. If within [***] following the date on which such notice is given the dispute cannot be resolved, the dispute shall be submitted to arbitration upon the request of any Party with written notice to the other Parties.
(b)
应根据当时有效的国际商会༈下文简称 “国际商会”༉调解与仲裁规则实施仲裁。仲裁地点为香港。
The arbitration shall be conducted in Hong Kong by the then effective Rules of Conciliation and Arbitration of the International Chamber of Commerce (“ ICC ”).
(c)
仲裁程序应采用英语和中文开展。若在仲裁过程中需要翻译人员༌合同各方应根据仲裁规则指定独立个人༌由国际商会委托༌担任正式翻译人员。仲裁庭应采用在争议提交国际商会之日有效的国际商会调解与仲裁规则༛但是༌若此规则 ༈包括有关仲裁 员任命的规定༉与第20.1条的规定相冲突༌则以第20.1条规定为准。
The arbitration proceedings shall be conducted in English and Chinese. If a translator is required during the arbitration proceedings, the Parties shall appoint an independent person to be entrusted by ICC as the official translator in accordance with the arbitration rules. The arbitration tribunal shall apply the ICC Rules of Conciliation and Arbitration in effect on the date when the dispute is submitted to the ICC; provided, however, that if such rules are in conflict with the provisions of this Article 20.1, including the provisions concerning the appointment of arbitrators, the provisions of this Article 20.1 shall prevail.
(d)
仲裁裁决具有终局性༌对合同各方均具有约 束力༌合同任一方均可向有管 辖权的法院申请强制执行裁决。[***]
The award of the arbitration tribunal shall be final and binding upon the Parties, and any Party may apply to a court of competent jurisdiction for enforcement of such award. [***]
(e)
在根据上述仲裁规则启动之任何仲裁程序中༌在不损 害合同任一方 寻求紧急或临时救济权 利的情况下༌合同任一方均可向有管 辖权的法院申请临时或紧急救济༌ 包括 临时性保全措施或暂时禁制令。
Without prejudice to any Party’s right to seek emergency or interim relief in any arbitral proceeding initiated in accordance with the above-rules of arbitration, any Party may apply to a court of competent jurisdiction for interim or emergency relief, including conservatory measures of protection or a preliminary injunction.
20.2
其他不受影响的事宜。 争议解决期间༌除争议事项外༌合同各方应继续履行本合同所有其他方面。
Other Matters Unaffected. During the period when a dispute is being resolved, except for the matter being disputed, the Parties shall in all other respects continue their implementation of this Contract.
第二十一条 效力和语言
ARTICLE XXI      EFFECTIVENESS AND LANGUAGE
21.1
效力。 本合同自合同各方签署后生效。
Effectiveness . The Contract shall come into legal effect upon signing by the Parties .
21.2
若本合同与公司章程存在任何不一致༌ 则以本合同为准。
If there is any discrepancy between this Contract and the Articles of Association of the Company, this Contract shall prevail.
21.3
语言。 本合同以英文和中文两种语言书写༌每种语言各六༈6༉份。两种语言的文本具有同等有效性和法律效力。合同各方承认其已审阅本合同两种语言文本༌且两种文本在所有重要方面完全相同。
Language. This Contract is written in Chinese and English in [six (6)] copies in each language. The two language texts shall have equal validity and legal effect. Each Party acknowledges that it has reviewed both language texts of this Contract and that they are substantially the same in all material respects.
第二十二条 遵守法律
ARTICLE XXII      COMPLIANCE WITH LAWS
在履行本合同项下活动时 ༌合同各方同意遵守适用法律༌包括中国和美国法律。 为此༌合同各方承认1977年《美国反海外腐败法》修订版༌禁止美国公司向外国政府任何官员直接或间接支付或提供任何有价值物品༈该法律涵盖美国公司是外国公司少数股东的情形༉༌以影响其作为公职身份所做行为或决定༌或诱使其利用其在外国政府的影响力༌协助公司为任何人或与任何人获取或保留业务༌或向任何人介绍业务。因此༌本合同各方同意不会向任何人༈无论政府官员或是私营个体༉支付、承诺支付或授权支付任何有价值的物品༌用于非法或不正当诱导任何政府官员、政党或政党官员、或政治职位候选人༌以便通过非法或不正当手段协助公司经营、获取或保留业务。合同各方进 一步同意采取一切合理措施确保其与公司运 营相关的任何代理人或代表༌遵守适用本合同活动和义务 的所有法律༌包括但不限于上述 应对不当款项的法律和义务。
In the performance of activities under this Contract, the Parties agree to comply with applicable laws, including those of the PRC and the USA, In this connection the Parties recognize that the United States Foreign Corrupt Practices Act of 1977 as amended, prohibits the payment or giving of anything of value either directly or indirectly by a US company (which law encompasses situations where the US company is the holder of a minority interest in a foreign company) to any official of a foreign government for the purposes of influencing an act or decision in his or her official capacity or inducing him or her to use their influence with the foreign government to assist a company in obtaining or retaining business for or with or directing business to, any person. Accordingly, each Party hereto agrees that it will not pay, promise to pay, or authorize the payment of anything of value, directly or indirectly, to any person (whether governmental official or private individual) for the purpose of illegally or improperly inducing any governmental official or any political party or official thereof or any candidate for political office to illegally or improperly assist in the operation of the Company in obtaining or retaining business, or to take any other action favorable to any Party. Each Party further agrees that it will take all reasonable steps to ensure that any of its agents or representatives associated with the operation of the Company shall comply with all laws which apply to the activities and obligations under this Agreement, including, but not limited to, those laws and obligations dealing with improper payments as described above.
第二十三条 其他事宜

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ARTICLE XXIII      MISCELLANEOUS
23.1
修订。 合同各方应签署中英文协议༌修订本合同。中英文协议具有同等有效性及法律效力༌并经合同各方正式授权代表签署后方可生效。合同各方可通过讨论在本合同加入第三方。若合同各方同意让第三方参与༌则应对本合同作出更新༌以纳入第三方作为投资者༌并反映合同各方与该第三方之间商定的其他条款和条件。
Amendments. Amendments to this Contract must be made by a written agreement signed by each of the Parties in both Chinese and English languages, each of which shall have equal validity and legal effect, and shall become effective upon the execution by duly authorized representatives of the Parties. The Parties may discuss to involve a third party to this Contract. If the Parties agree to involve such a third party, this Contract shall be updated to include such third party as an investor and reflect other terms and conditions agreed among the Parties and such third party.
23.2
存续条款。 第六条、第十七条、第十九条和第二十条所载合同各方协议在本合同到期或终止以及公司解散后继续有效。
Survival. The agreements of the Parties contained in Article VI, XVII, Article XIX and XX shall continue to survive after the expiration or termination of this Contract and the dissolution of the Company.
23.3
通知。 合同任一方或合资公司根据本合同要求提供的通知或其他通信应以英文或中文书写༌并以信函形式、传真或电子邮件方式发至下列地址或合同其他方不时通知的指定地址༌以及合资公司不时有效的法定地址。除非本合同另有规定༌通知视为有效送达的日期应按以下规定确定༚
Notices. Notices or other communications required to be given by any Party or the Company pursuant to this Contract shall be written in English or Chinese and sent in letter form, facsimile or email to the address of the other Parties set forth below or to such other address as may from time to time be designated by the other Parties through notification to such Party, and to the Company at its legal address as in effect from time to time. Unless prescribed otherwise in this Contract, the dates on which notices shall be deemed to have been effectively given shall be determined as follows:
(a)
通过专人递送的通知应视为在专人递送之日有效送达༛
Notices given by personal delivery shall be deemed effectively given on the date of personal delivery;
(b)
以邮寄方式发出的通知在经挂号空邮、邮资已付信件或第三方寄出༌送至国际认可的快递服务邮出之日༈如邮戳所示༉后的第七天即视为有效送达༛以及
Notices given in letter form shall be deemed effectively given on the seventh day after the date mailed (as indicated by the postmark) by registered airmail, postage prepaid, or the third day after delivery to an internationally recognized courier service; and

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(c)
通过传真方式发出的通知应在有关文件所示传真发送日期后的第一个营业日视为有效送达。
Notices given by facsimile shall be deemed effectively given on the first business day following the date of transmission, as indicated on the document in question.
(d)
通过电子邮件方式发出的通知应在有关电子邮件所示电子邮件发送日期后的第一个营业日视为有效送达。
Notices given by emails shall be deemed effectively given on the first business day following the date of transmission, as indicated on the email system of the sender.
(e)
通过电话方式发出的通知应在电话有效接通并应答的当日视为有效送达༈此方法仅适用于递送董事会会议通知༌为通知董事的三种方法之一༉。
Notices given by telephone shall be deemed effectively given on the date on which such telephone is effectively connected and answered (this method is only applicable to deliver Board meeting notice, as one of three methods to inform the directors).
优创
Youchuang
浙江优创创业投资有限公司
Zhejiang Youchuang Venture Capital Investment Co., Ltd.
Address
[***]
[***]
收件人༚
Attention:
[***]
[***]
传真号码༚
Fax Number:
[***]
电子邮件༚
Email༚
[***]
电话༚
Telephone:
[***]

产 业 投 资 基 金Industrial Investment Fund:
绍兴市柯桥区天堂硅谷智能机器人产业投资合伙企业༈有限合伙༉
Shaoxing City Keqiao District Paradise Silicon Intelligent
Robot Industrial Investment Partnership (Limited Partnership)
Address
[***]
[***]
收件人༚
Attention:
[***]
[***]
传真号码༚
Fax Number:
[***]
电子邮件༚
Email༚
[***]
电话༚
Telephone:
[***]

6




爱科索༚
Ekso Bionics
爱科索仿生机械有限公司
Ekso Bionics, Inc.
Address
[***]
收件人༚
Attention:
[***]
[***]
[***]
传真号码༚
Fax Number:
[***]
电子邮件༚
Email༚
[***]
电话༚
Telephone:
[***]

23.4
完整协议。 本合同构成合同各方之间就本合同标的达成的完整且唯一的协议༌并取代合同各方之前就本合同标的达成的所有口头或书面协议、合同、规约和通信。
Entire Agreement. This Contract constitutes the complete and only agreement among the Parties on the subject matter of this Contract and replaces all previous oral or written agreements, contracts, understandings and communications of the Parties in respect of the subject matter of this Contract.
23.5
无暗示放弃要求。 在特定情况下由于其他方的违约行为而放弃其权利的合同一方༌在其他情况下不应视为放弃对其他方的类似违约行为进行追索的权利。
No Implied Waivers. A Party that in a particular situation waives its rights in respect of a breach of contract by the other Parties shall not be deemed to have waived its rights against the other Parties for a similar breach of contract in other situations.
23.6
可分割性。 若本合同任何或部分条款按照任何法律被认定为在任何方面无效、非法或不可强制执行༌则本合同中其他剩余条款的有效性、合法性和可强制执行性不应受到任何形式的影响或损害。合同各方特此同意其不会宣称本合同任何条款非法或不可执行。
Severance. If any provision of this Contract or part thereof is rendered void, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Each Party hereby agrees that it will not allege the illegality or unenforceability of any provision of this Contract.
23.7
不得转让。 本合同对合同各方及其各自继承人和受让人均具有约束力༌并可强制执行。除非本合同条款另有规定༌否则未经其他方事先书面许可༌合同任一方均不得将本合同项下的任何权利或义务转让给任何人。
No Assignment. This Contract shall be binding upon and shall be enforceable by each Party hereto and its respective successors and assigns. Except as otherwise permitted by

7



the terms of this Contract, no Party may assign any of its rights or obligations hereunder to any person without the prior written approval of the other Parties.
23.8
冲突或不一致。 本合同规定的合同各方权利和义务在整个营业期内应持续存在༌且不得因公司章程而受到损害。若本合同与公司章程有任何冲突或不一致༌以本合同为准。
Conflict or Inconsistency. The rights and obligations of the Parties established by and under this Contract shall continue to exist throughout the Operation Term and shall not be prejudiced by the adoption of the Articles of Association. In the event of any conflict or inconsistency between this Contract and the Articles of Association, this Contract shall prevail.
【本页特意留白༌下页为签名页】
[The remainder of this page is intentionally left blank; signature page follows]


本合同由合同各方授权代表在文首所载年份和日期签署。

This Contract is executed by the authorized representatives of the Parties, on the date and year first indicated above.

浙江优创创业投资有限公司༈公司印章༉
Zhejiang Youchuang Venture Capital
Investment Co., Ltd. (Company Seal)

签署人    
By /s/ 吴建龙     
姓名༚ 吴建龙
Name: Wu Jianlong
职务༚
Title:

8




绍兴市柯桥区天堂硅谷智能机器人产业投资合伙企业༈有限合伙༉【公司印章】

Shaoxing City Keqiao District Paradise Silicon
Intelligent Robot Industrial Investment
Partnership (Limited Partnership) 【Company
Seal】

签署人
By /s/ 包雪青
姓名༚包雪青
Name: Bao Xueqing
职务༚
Title:

9




爱科索仿生机械有限公司
Ekso Bionics, Inc.


签署人
By /s/ Jack Peurach    
姓名༚
Name: Jack Peurach
职务༚
Title: CEO, Ekso Bionics Holdings, Inc.



签署和背书人༚
SIGNED AND ENDORSED BY:
Ekso Bionics Holdings, Inc.

签署人
By /s/ Jack Peurach    
姓名༚
Name: Jack Peurach
职务༚
Title: CEO, Ekso Bionics Holdings, Inc.



10




附录A 技术许可协议

11



APPENDIX A TECHNOLOGY LICENSE AGREEMENT

12




[* * *]




13



附录B 制造服务协议关键条款
APPENDIX B KEY TERM OF MANUFACTURING SERVICES AGREEMENT

14




[* * *]


15
Exhibit 10.2

SHARE PURCHASE AGREEMENT


This Share Purchase Agreement (this “ Agreement ”), dated as of January 30, 2019, is entered into by and between Ekso Bionics Holdings, Inc., a Nevada corporation (including any of its successors by merger, acquisition, reorganization, conversion or otherwise, the “ Company ”), and the Persons set forth on Schedule I hereto (the “ Purchasers ” and each, a “ Purchaser ”).
RECITALS
WHEREAS, the Company wishes to sell an aggregate of 3,067,485 newly-issued common shares, par value $0.001 (the “ Shares ”) to the Purchasers, and each Purchaser desires to purchase from the Company the number of Shares set forth on Schedule I hereto, on the terms and conditions contained herein;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained and other good and valuable consideration, the Company agrees and each of the Purchasers agrees with the Company, intending to be legally bound hereby, as follows:
ARTICLE I

DEFINITIONS
Capitalized terms used in this Agreement have the meanings specified in (a) the preamble, (b) the recitals, (c) Article I or (d) elsewhere in this Agreement, as the case may be:
Business Day ” means any day other than a Saturday, Sunday or other day on which banking institutions in New York, New York are authorized or obligated by law, regulation or executive order to close.
Common Shares ” means the Company’s common shares, par value $0.001 per share.
Exchange Act ” means the Securities Exchange Act of 1934, as amended.
Exempt Issuance ” means the issuance of (a) Common Shares pursuant to this Agreement or the JV Agreement, (b) Common Shares in the at-the-market offering conducted pursuant to the Sales Agreement between the Company and Cantor Fitzgerald & Co. dated August 21, 2018, (c) Common Shares or options to employees, officers or directors of the Company pursuant to any stock or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose for services rendered to the Company, (d) Common Shares in the Company’s 401(k) plan as matching contributions pursuant to such plan, (e) Common Shares upon the exercise or exchange of or conversion of other securities exercisable or exchangeable for or convertible into Common Shares issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities




(other than in connection with stock splits or combinations) or to extend the term of such securities, and (f) securities issued pursuant to acquisitions or strategic transactions approved by a majority of the disinterested directors of the Company, provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital from an entity whose primary business is investing in securities.
Governmental Body ” means any (a) nation, state, county, city, town, village, district, or other jurisdiction of any nature, (b) federal, state, local, municipal, foreign, or other government, (c) governmental or quasi-governmental authority of any nature (including any governmental agency, branch, department, official, or entity and any court or other tribunal), (d) multinational governmental organization or body, or (e) body exercising, or entitled to exercise, any administrative, executive, judicial, legislative, police, regulatory or taxing authority or power of any nature.
Laws ” means all statutes, treaties, codes, ordinances, decrees, rules, regulations, municipal bylaws, judicial or arbitral or administrative or ministerial or departmental or regulatory judgments, orders, decisions, rulings or awards, policies, certificates, codes, licenses, permits, approval, guidelines, voluntary restraints, inspection reports, or any provisions of such laws, including general principles of common law and equity and the requirements of all Governmental Bodies, binding or affecting the Person referred to in the context in which such word is used; and " Law " means any one of them.
Lien ” means, with respect to the Shares (whether the same is consensual or nonconsensual or arises by contract, operation of law, legal process or otherwise): (i) any mortgage, lien, security interest, pledge, attachment, levy or other charge or encumbrance of any kind thereupon or in respect thereof or (ii) any other arrangement under which the same is transferred, sequestered or otherwise identified with the intention of subjecting the same to, or making the same available for, the payment or performance of any liability in priority to the payment of the ordinary, unsecured creditors, and which under applicable law has the foregoing effect, including any “adverse claim” (as Section 8-102(a) of each applicable Uniform Commercial Code defines that term).
Person ” means any individual, firm, corporation, partnership, limited liability company, joint venture, association, trust, unincorporated organization, government or agency or subdivision thereof or any other entity.
SEC ” means the Securities and Exchange Commission.
Securities Act ” means the Securities Act of 1933, as amended.
ARTICLE II

PURCHASE OF SHARES; CLOSING
Section 2.1     Purchase of Shares . Upon the terms and subject to the conditions of this Agreement, and on the basis of the representations and warranties hereinafter set forth, at the Closing, the Company shall sell, transfer, convey, assign and deliver to each Purchaser, and each Purchaser shall acquire and purchase from the Company, the Shares as set forth on Schedule I hereto at a price per Share equal to $1.63 (the “ Purchase Price ”), which is based on the closing price of the Company’s common shares as reported by the Nasdaq Stock Market on January 29, 2019. At or prior to the Closing, the Company shall deliver or cause

2


to be delivered to the Purchasers and the Purchasers shall deliver or cause to be delivered to the Company fully-executed copies of the Joint Venture Agreement by and between the Company and Zhejiang Youchuang Venture Capital Investment Co., Ltd. and certain other partners dated as of the date hereof (the “ JV Agreement ”) to which, inter alia, the Company and the Purchasers are party.
Section 2.2     Closing . The closing of the transaction contemplated hereby (the “ Closing ”) shall take place within ten (10) days following the execution hereof or as otherwise agreed in writing by the Company and the Purchasers at such time and place upon which the Purchasers and the Company shall agree. The date on which the Closing is held is referred to in this Agreement as the “ Closing Date .” The parties need not be present in person at Closing, and documents may be delivered through counsel.
Section 2.3     Delivery . At the closing, the Company shall deliver to each Purchaser the Shares purchased by such Purchaser hereunder, in book-entry form, against payment of the aggregate Purchase Price for such Shares in immediately available funds.
ARTICLE III

REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to each Purchaser, as of the date hereof and as of the Closing Date, as follows:
Section 3.1     Authorization .
(a) The Company has full corporate power and authority under its governing documents and has taken all necessary action to authorize it to execute and deliver this Agreement, to consummate the transactions contemplated herein and to take all actions required to be taken by it pursuant to the provisions hereof.
(b)    This Agreement constitutes the valid and binding obligation of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors’ rights generally and to the principles of equity (whether enforcement is sought in a proceeding in equity or at law).
(c)     The Company and each of its subsidiaries is an entity duly incorporated or otherwise organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any subsidiary is in violation nor default of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational or charter documents, and is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, could not have or reasonably be expected to result in 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 (a “ Material Adverse Effect ”).
Section 3.2     The Shares . The Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and free and clear of all Liens.

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Section 3.3     Non-Contravention . Neither the execution and delivery of this Agreement or any documents executed in connection herewith, nor the consummation of the transactions contemplated herein or therein, does or shall violate, conflict with, result in a breach of the governing documents of the Company, except in each such case, as would not reasonably be expected to have a Material Adverse Effect.
Section 3.4     Validity . There is no investigation, claim, proceeding or litigation of any type pending or, to the knowledge of the Company, threatened, to which the Company is a party that (i) questions or involves the validity or enforceability of any of the Company’s obligations under this Agreement or (ii) seeks (or reasonably might be expected to seek) (A) to prevent or delay the consummation by the Company of the transactions contemplated by the Agreement or (B) damages in connection with any such consummation, except, in each such case, as would not reasonably be expected to have a Material Adverse Effect.
Section 3.5     Litigation . There is no investigation, claim, proceeding or litigation pending or, to the knowledge of the Company, threatened against the Company except, in each such case, as would not reasonably be expected to have a Material Adverse Effect.
Section 3.6     SEC Reports. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the “ SEC Reports ”) on a timely basis. As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the SEC Reports comply as to form in all material respects with applicable accounting requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“ GAAP ”), except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments.
ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser represents and warrants to the Company, severally and not jointly, as of the date hereof and as of the Closing Date, as follows:
Section 4.1     Organization; Authorization . If such Purchaser is not an individual, such Purchaser is duly organized, validly existing and in good standing under the laws of its jurisdiction of formation and has the requisite power and authority to carry on its business as it is now being conducted. Such Purchaser has the requisite power and authority to enter into this Agreement and to perform and consummate the transactions contemplated hereby and the execution and delivery by such Purchaser of this Agreement, the acquisition of the Shares and the performance and consummation of the transactions contemplated hereby

4


(a) are within the power and authority of such Purchaser and (b) have been duly authorized by all necessary action of such Purchaser. This Agreement has been duly and validly executed and delivered by such Purchaser. Assuming the due authorization, execution and delivery by the Company of this Agreement, this Agreement constitutes a valid and binding obligation of such Purchaser enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors' rights generally and to the principles of equity (whether enforcement is sought in a proceeding in equity or at law).
Section 4.2     No Conflicts . Assuming the accuracy of the representations and warranties of the Company contained in this Agreement, the execution, delivery and performance of this Agreement by such Purchaser, the acquisition of the Shares and the consummation by such Purchaser of the other transactions contemplated hereby and the compliance by such Purchaser with the terms of this Agreement do not and will not conflict with or do not result and will not result in any breach or violation of any of the terms or provisions of, or do not constitute or will not constitute a default under, do not cause or will not cause (or do not permit or will not permit) the maturation or acceleration of any liability or obligation or the termination of any right under, or do not result in the creation or imposition of any lien, charge or encumbrance upon, any property or assets of such Purchaser pursuant to the terms of (i) the charter or bylaws or other applicable organizational documents of such Purchaser; (ii) any indenture, mortgage, deed of trust, voting trust agreement, shareholders’ agreement, note agreement or other agreement or instrument to which such Purchaser is a party or by which it is bound or to which its respective property is subject; or (iii) any statute, judgment, decree, order, rule or regulation applicable to such Purchaser of any government, arbitrator, court, regulatory body or administrative agency or other governmental agency or body, domestic or foreign, having jurisdiction over such Purchaser or its activities or properties, which in each case of subclauses (i) through (iii) would materially and adversely impair such Purchaser’s ability to acquire the Shares hereunder or to perform on a timely basis its other obligations under this Agreement.
Section 4.3     Validity . There is no investigation, claim, proceeding or litigation of any type pending or, to the knowledge of the such Purchaser, threatened to which such Purchaser is a party that (i) questions or involves the validity or enforceability of such Purchaser’s obligations under this Agreement or (ii) seeks (or reasonably might be expected to seek) (A) to prevent or delay the consummation by such Purchaser of the transactions contemplated by this Agreement or (B) damages in connection with any such consummation.
Section 4.4     No Consent . Assuming the accuracy of the representations and warranties of the Company contained in this Agreement, no authorization, approval, consent or license of any government, governmental instrumentality or court, domestic or foreign (other than under the Securities Act) is required for the acquisition of the Shares by such Purchaser hereunder, or the consummation by such Purchaser of the transactions contemplated by this Agreement, except the absence of which will not have or would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect of the type described in clause (i) of such term.
Section 4.5     Information . Based solely on the disclosures set forth in the SEC Reports and the representations and warranties contained herein, such Purchaser is familiar with the business in which the Company is engaged, and based upon its knowledge and experience in financial and business matters, such Purchaser is familiar with the investments of the type that it is undertaking to purchase; is fully aware of the problems and risks involved in making an investment of this type; and is capable of evaluating the merits and risks of this investment. Such Purchaser has agreed to enter into this Agreement based solely on the SEC Reports, its own assessment, analysis and investigation and on the representations, warranties, terms and conditions contained herein.

5


Section 4.4     Status of the Purchaser .
(a) Such Purchaser represents that (1) such Purchaser is not a U.S. Person as defined in Regulation S promulgated under the Securities Act (a “ U.S. Person ”), (2) such Purchaser is outside the United States, (3) such Purchaser is not acquiring the Shares for the account or benefit of any U.S. Person, and (4) it will offer, sell, pledge or otherwise transfer the Shares (or create or maintain any derivative position equivalent thereto) only pursuant to an effective registration statement under the Securities Act or any available exemption therefrom and, in any case, in accordance with applicable state securities laws.
(b)    Such Purchaser understands that the Shares have not been registered under the Securities Act and the Shares are being issued in reliance upon a specific exemption therefrom, which exemption depends upon, among other things, the accuracy of its representations set forth herein. Moreover, such Purchaser understands that the Company is under no obligation to register the Shares with the SEC in the United States.
(c )    Such Purchaser understands and agrees that the Shares cannot be offered, resold or otherwise transferred except pursuant to an effective registration statement under the Securities Act or an available exemption from registration. In order to prevent any transfer from taking place in violation of this paragraph, such Purchaser hereby agrees that the Company may cause a stop transfer order to be placed with the Company’s transfer agent with respect to the Shares.
(f)    Such Purchaser understands that no U.S. federal or state agency has approved or disapproved, passed upon or endorsed the merits of the distribution of such shares described herein or made any finding or determination as to the fairness of such shares for investment. Without limiting the foregoing, such Purchaser further acknowledges and agrees that none of the Company nor any of its employees, affiliates, advisors, agents or other representatives has made any representation or warranty concerning any estimates, projections, forecasts, business plans or other forward-looking information regarding the Company or its businesses and operations.
ARTICLE V

COVENANTS
Section 5.1     Conduct of Business Pending Closing . The Company agrees that between the date of the execution of this Agreement and the Closing, the Company shall (i) conduct the business and maintain and preserve its assets in the ordinary course of business (ii) not cause the distribution of any dividends, and (iii) use its reasonable efforts to cause all of the representations and warranties in Article III hereof to continue to be true and correct.
Section 5.2     Governmental Filings . As promptly as practicable after the execution of this Agreement, each party shall, in cooperation with the other, file any reports or notifications that may be required to be filed by it under applicable law, if any.
Section 5.3     Consents . After the Closing, the Company shall use its reasonable best efforts to obtain any consents or approvals or assist in any filings required in connection with the transactions contemplated hereby that are reasonably requested by the Purchasers and that have not been previously obtained or made.
Section 5.4     Public Announcements . No Purchaser shall without the prior approval of the Company issue or permit any of its partners, shareholders, directors, officers, managers, members, employees

6


or agents to issue any press release or other public announcement with respect to this Agreement or the transactions contemplated hereby, except as may be required by Law or the rules of the SEC or the Nasdaq Stock Market.
Section 5.5      Nasdaq Listing . The Company shall use reasonable best efforts to cause the Shares acquired hereunder to be listed on the Nasdaq Capital Market within 30 calendar days of their issuance.
Section 5.6     Restrictive Legends. Each Purchaser understands and agrees that the Shares acquired by it will bear a legend substantially similar to the legend set forth below in addition to any other legend that may be required by applicable law or by any agreement between the Company and such Purchaser:
“THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. THE SHARES MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OR (2) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE STATE SECURITIES LAWS AND THE SECURITIES LAWS OF OTHER JURISDICTIONS, AND IN THE CASE OF A TRANSACTION EXEMPT FROM REGISTRATION, UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT THAT SUCH TRANSACTION DOES NOT REQUIRE REGISTRATION UNDER THE SECURITIES ACT AND SUCH OTHER APPLICABLE LAWS.”
Section 5.7      No Stabilization . No Purchaser will take, directly or indirectly, any action designed to stabilize or manipulate the price of the Company’s common shares to facilitate the sale or resale of the Shares acquired by such Purchaser hereunder.
Section 5.8      Anti-Dilution Rights . In the event that the Company issues Common Shares prior to the 60 th day after the Closing Date at a price per share less than $1.63, other than in an Exempt Issuance (such issuance a “ Subsequent Covered Issuance ”), then the Purchasers shall have the right to receive additional Common Shares from the Company upon such Subsequent Covered Issuance.  The number of additional Common Shares issuable to each such Purchaser upon a Subsequent Covered Issuance shall be calculated as follows:
N =     S x (1.63 - P)
                 P
Where:
               N = the number of additional Common Shares to be issued;
               S = the number of Shares such Purchaser purchased pursuant to this Agreement; and
               P = the price per share of the Common Shares sold in the Subsequent Covered Offering.

Provided however, that the aggregate number of Common Shares purchased hereunder, together with any Common Shares issued pursuant to this Section 5.8, shall not exceed 19.9% of the total number of issued and outstanding Common Shares as of the date hereof.


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ARTICLE VI

CONDITIONS TO CLOSING
Section 6.1     Conditions to Obligations of the Purchasers . The obligations of the Purchasers to consummate the transactions contemplated herein are subject, at the option of each such Purchaser, to satisfaction of the following conditions:
(a)     Compliance . The Company shall have complied with its covenants and agreements contained herein, and the representations and warranties contained in Article III hereof shall be true and correct in all material respects (except those representations and warranties qualified by materiality shall be true and correct in all respects) on the date hereof and as of the Closing Date.
(b)     Share Certificates . After each Purchaser pays the Purchase Price in cash, check or by wire transfer to a bank account identified by the Company, the Company shall issue a share certificate or initiate book-entry issuance in the name of such Purchaser evidencing the Shares, which certificate shall contain such legends (or the equivalent if such shares are held in book entry form) as the Company deems necessary or advisable to carry out the provisions of this Agreement.
(c)     Orders, etc . No action, suit or proceeding shall have been commenced or shall be pending or threatened, and no statute, rule, regulation or order shall have been enacted, promulgated, issued or deemed applicable to the transactions contemplated by this Agreement, by any Governmental Body or court that reasonably may be expected to prohibit consummation of the transactions contemplated by this Agreement.
(d)     Consents . All consents and approvals required to be obtained by the Company in connection with the execution, delivery and performance of this Agreement shall have been obtained.
Section 6.2     Conditions to Obligations of the Company . The obligations of the Company to consummate the transactions contemplated herein are subject, at the option of the Company, to satisfaction of the following conditions:
(a)     Compliance . Each Purchaser shall have complied with its covenants and agreements contained herein, including but not limited to the payment of the Purchase Price, and the representations and warranties contained in Article IV hereof shall be true and correct in all material respects (except those representations and warranties qualified by materiality shall be true and correct in all respects) on the date hereof and as of the Closing Date.
(b)     Orders, etc . No action, suit or proceeding shall have been commenced or shall be pending or threatened, and no statute, rule, regulation or order shall have been enacted, promulgated, issued or deemed applicable to the transactions contemplated by this Agreement, by any Governmental Body or court that reasonably may be expected to prohibit consummation of the transactions contemplated by this Agreement.
(c)     Consents . All consents and approvals required to be obtained by the Purchasers in connection with the execution, delivery and performance of this Agreement shall have been obtained.
ARTICLE VII

TERMINATION

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Section 7.1     Grounds for Termination . This Agreement may be terminated at any time prior to the Closing Date:
(a)    by the written agreement of the Purchasers and the Company; or
(b)    by any party by written notice thereof to the others, if the Closing contemplated hereby shall not have been consummated on or before February 8, 2019, or such other date, if any, as the Purchasers and the Company shall agree upon in writing.
ARTICLE VIII

GENERAL PROVISIONS
Section 8.1     Effectiveness of Agreement . This Agreement shall become effective on the date first hereinabove written upon its execution by the respective authorized signatory of the Company and the Purchasers.
Section 8.2     Entire Agreement . This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof. This Agreement may not be modified, amended or terminated except by a written instrument specifically referring to this Agreement and signed by all the parties hereto.
Section 8.3     Waivers and Consents . All waivers and consents given hereunder shall be in writing. No waiver by any party hereto of any breach or anticipated breach of any provision hereof by any other party shall be deemed a waiver of any other contemporaneous, preceding or succeeding breach or anticipated breach, whether or not similar. Except as provided in this Agreement, no action taken pursuant to this Agreement, including any investigation by or on behalf of any party, shall be deemed to constitute a waiver by the party taking such action of compliance with any representations, warranties, covenants or agreements contained in this Agreement.
Section 8.4     Assignments, Successors and No Third-Party Rights . No party may assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the other party. Subject to the preceding sentence, this Agreement will apply to, be binding in all respects upon and inure to the benefit of the successors and permitted assigns of the parties.
Section 8.5     Choice of Law; Resolution of Disputes . This Agreement shall be governed by, and construed and enforced in accordance with, the substantive laws of the State of New York without regard to its principles of conflicts of laws. Any legal action or proceeding in connection with this Agreement or the performance hereof may be brought in the state and federal courts located in the Borough of Manhattan, City, County and State of New York, and the parties hereby irrevocably submit to the non-exclusive jurisdiction of such courts for the purpose of any such action or proceeding. The parties hereby irrevocably waive trial by jury in any action, proceeding or claim brought by any part hereto or beneficiary hereof on any matter whatsoever arising out of or in any way connected with this Agreement.
Section 8.6     Construction; Section Headings; Table of Contents . The language used in this Agreement shall be deemed to be the language the parties hereto have chosen to express their mutual intent, and no rule of strict construction will be applied against any party hereto. The section headings and any table of contents contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.

9


Section 8.7     Severability . Any term or provision of this Agreement that is invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only as broad as is enforceable.
Section 8.8     Counterparts . This Agreement may be executed in any number of counterparts, each such counterpart shall be deemed to be an original instrument, and all such counterparts together shall be deemed to be one and the same instrument.
[Signature Page Follows]



10

Exhibit 10.2

IN WITNESS WHEREOF , the undersigned have executed this Agreement as of the date first above written.

EKSO BIONICS HOLDINGS, INC.
By: /s/ Jack Peurach
Name: Jack Peurach
Title: CEO, Ekso Bionics Holdings, Inc
WEIYUAN FANG
/s/ Weiyuan Fang
Address:     20-1-501 Tianma Garden
Jiyang Jiedao
Zhuji City, Zhejiang Province
China
E-mail:     fw671107001@163.com    
HAIXIA YUAN
/s/ Haixia Yuan
Address:     Room 1201, Building 9, Tiancheng Jinjiang Garden
No.118 Huansha North Road
Zhuji City, Zhejiang Province
China
E-mail:         
CHAMPION LINK TRADING LIMITED
By: /s/ Weijiang Huang
Name: Weijiang Huang    
Title: Director    
Address:     Flat/Rm 01-02 11/F
Office Tower Two Grand Plaza
625&639 Nathan Road
Mongkok  KL   Hong Kong
E-mail:         





[Signature Page to Share Purchase Agreement]

Exhibit 10.2



12

Exhibit 10.2

Schedule I

Name of Purchaser
Payment Amount/ Shares
WEIYUAN FANG
$750,000.00 for 460,123 shares
HAIXIA YUAN
$3,000,000.00 for 1,840,491 shares
CHAMPION LINK TRADING LIMITED
$1,250,000.00 for 766,871 shares






Exhibit 31.1
 
CERTIFICATION

I, Jack Peurach, certify that:
(1)
I have reviewed this Quarterly Report on Form 10-Q of Ekso Bionics Holdings, Inc.;
(2)
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
(3)
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the company as of, and for, the periods presented in this report;
(4)
The company’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the company and have:
(a)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b)
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c)
Evaluated the effectiveness of the company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d)
Disclosed in this report any change in the company’s internal control over financial reporting that occurred during the company’s most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the company’s internal control over financial reporting; and
(5)
The company’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the company’s auditors and the audit committee of the company’s board of directors (or persons performing the equivalent functions):
(a)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company’s ability to record, process, summarize and report financial information; and
(b)
Any fraud, whether or not material, that involves management or other employees who have a significant role in the company’s internal control over financial reporting.
 
Date: May 1, 2019
 
 
/s/ Jack Peurach
 
Jack Peurach
 
Principal Executive Officer




Exhibit 31.2
 
CERTIFICATION

I, John F. Glenn, certify that:
(1)
I have reviewed this Quarterly Report on Form 10-Q of Ekso Bionics Holdings, Inc.;
(2)
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
(3)
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the company as of, and for, the periods presented in this report;
(4)
The company’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the company and have:
(a)
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b)
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c)
Evaluated the effectiveness of the company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d)
Disclosed in this report any change in the company’s internal control over financial reporting that occurred during the company’s most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the company’s internal control over financial reporting; and
(5)
The company’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the company’s auditors and the audit committee of the company’s board of directors (or persons performing the equivalent functions):
(a)
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company’s ability to record, process, summarize and report financial information; and
(b)
Any fraud, whether or not material, that involves management or other employees who have a significant role in the company’s internal control over financial reporting.
 
Date: May 1, 2019
 
 
/s/ John F. Glenn
 
John F. Glenn
 
Principal Financial Officer




Exhibit 32.1
 
CERTIFICATION BY THE PRINCIPAL EXECUTIVE OFFICER PURSUANT TO
18 U.S.C. SECTION 1350
 
In connection with the Quarterly Report on Form 10-Q of Ekso Bionics Holdings, Inc. (the “Company”), for the quarterly period ended March 31, 2019 as filed with the Securities and Exchange Commission (the “Report”), I, Jack Peurach, President and Chief Executive Officer and principal executive officer, hereby certify as of the date hereof, solely for purposes of 18 U.S.C. §1350, as adopted pursuant to §906 of the Sarbanes-Oxley Act of 2002, that to the best of my knowledge:
 
(1)
The Report fully complies with the requirements of Section 13(a) or 15(d), as applicable, of the Securities Exchange Act of 1934; and
(2)
The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company at the dates and for the periods indicated.
 
Dated: May 1, 2019
  
 
/s/ Jack Peurach
 
Jack Peurach
 
Principal Executive Officer




Exhibit 32.2
 
CERTIFICATION BY THE PRINCIPAL FINANCIAL OFFICER PURSUANT TO
18 U.S.C. SECTION 1350
 
In connection with the Quarterly Report on Form 10-Q of Ekso Bionics Holdings, Inc. (the “Company”), for the quarterly period ended March 31, 2019 as filed with the Securities and Exchange Commission (the “Report”), I, John F. Glenn, Chief Financial Officer and principal financial officer, hereby certify as of the date hereof, solely for purposes of 18 U.S.C. §1350, as adopted pursuant to §906 of the Sarbanes-Oxley Act of 2002, that to the best of my knowledge:
 
(1)
The Report fully complies with the requirements of Section 13(a) or 15(d), as applicable, of the Securities Exchange Act of 1934; and
(2)
The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company at the dates and for the periods indicated.
 
Dated: May 1, 2019
  
 
/s/ John F. Glenn
 
John F. Glenn
 
Principal Financial Officer