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WARRANTS AND OTHER DERIVATIVE LIABILITIES AND FAIR VALUE MEASUREMENTS

9 Months Ended

Jun. 30, 2023

WARRANTS AND OTHER DERIVATIVE LIABILITIES AND FAIR VALUE MEASUREMENTS

WARRANTS AND OTHER DERIVATIVE LIABILITIES AND FAIR VALUE MEASUREMENTS

NOTE 8 – WARRANTS AND OTHER DERIVATIVE LIABILITIES AND FAIR VALUE MEASUREMENTS

ASC 825-10 defines fair value as the price that would be received from selling an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. When determining the fair value measurements for assets and liabilities required or permitted to be recorded at fair value, the Company considers the principal or most advantageous market in which it would transact and considers assumptions that market participants would use when pricing the asset or liability, such as inherent risk, transfer restrictions, and risk of non-performance. ASC 825-10 establishes a fair value hierarchy that requires an entity to maximize the use of observable inputs and minimize the use of unobservable inputs when measuring fair value. ASC 825-10 establishes three levels of inputs that may be used to measure fair value:

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Level 1 – Quoted prices in active markets for identical assets or liabilities.

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Level 2 – Observable inputs other than Level 1 prices such as quoted prices for similar assets or liabilities; quoted prices in markets with insufficient volume or infrequent transactions (less active markets); or model-derived valuations in which all significant inputs are observable or can be derived principally from or corroborated by observable market data for substantially the full term of the assets or liabilities.

●

Level 3 – Unobservable inputs to the valuation methodology that are significant to the measurement of fair value of assets or liabilities.

To the extent that valuation is based on models or inputs that are less observable or unobservable in the market, the determination of fair value requires more judgment. In certain cases, the inputs used to measure fair value may fall into different levels of the fair value hierarchy. In such cases, for disclosure purposes, the level in the fair value hierarchy within which the fair value measurement is disclosed and is determined based on the lowest level input that is significant to the fair value measurement.

Financial Instruments at Carrying Value That Approximated Fair Value

Certain financial instruments that are not carried at fair value on the condensed consolidated balance sheets are carried at amounts that approximate fair value, due to their short-term nature and credit risk. These instruments include cash and cash equivalents, accounts payable, accrued liabilities, and debt. Accounts payable are short-term in nature and generally terms are due upon receipt or within 30 to 90 days.

Non-Financial Assets Measured at Fair Value on a Non-Recurring Basis

Non-financial assets are only required to be measured at fair value when acquired as a part of business combination or when an impairment loss is recognized. See Note 14 - Property, Equipment and Leasehold Improvements and Note 6 – Intangible assets for further information. All these valuations are based on Level 3 – Unobservable inputs to the valuation methodology that are significant to the measurement of fair value of assets or liabilities.

Financial Liabilities Measured at Fair Value on a Recurring Basis

During the nine months ended June 30, 2023, the Company had two main types of financial liabilities measured at fair value on a recurring basis:

Warrant liabilities (that relate to sales of Series C Preferred Stock and Series D Preferred Stock issued pursuant to Securities Purchase Agreements) recognized as liabilities due to requirements of ASC 480 as the variable number of shares to be issued upon cashless exercise is based predominantly on monetary value.

Preferred C Warrants

The warrants, which were exercisable for common stock, issued in connection with the sale of Series C Preferred Stock (the “Preferred C Warrants”) in accordance with the November 2021 Merger Agreement and further amendments had an exercise price per share of $8.834 (after the reverse stock splits - $1,988) and a cashless exercise option based on certain formula established by relevant contracts. The initial financial costs recorded upon the issuance of the Preferred C Warrants during the year ended September 30, 2022 was $429,883,573. This amount is comprised of $137,090,205 preferred stock discount (amortized immediately as the preferred stock does not have a stated term of life) and $292,793,368 finance costs (calculated as the difference between fair value of warrant liabilities recognized and the preferred stock discount).

At each warrant exercise date and each accounting period end the warrant liability for the remaining unexercised warrants was marked-to-market value and the resulting gain or loss was recorded.

On February 10, 2022, the terms of the Prior SPA Warrants were amended, resulting in a change to the calculated derived dollar amount. The effect of these changes in the amount of $32,735,345 has been accounted for as deemed dividends on preferred stock and decreased additional paid-in capital of the Company.

During the year ended September 30, 2022, 186,441 (giving effect to the Reverse Stock Splits, see Note 1) Preferred C Warrants were exercised on a cashless basis resulting in the issuance of 2,369,842 shares of common stock, with a total fair market value of $554,371,539 at the date of exercise.

During the quarter ended December 31, 2022, 13,215 Preferred C Warrants that remained outstanding as at September 30, 2022 were fully exercised.

Preferred D Warrants

In accordance with Series D Securities Purchase Agreement for every share of Series D Preferred Stock purchased, the investors received 185% (for the final voluntary $100 million investment right expiring June 30, 2023 - 110%) warrants (the “Preferred D Warrants”) exercisable for shares of common stock at an exercise price per share equal to the lower of (i) $1.27 (after the Reverse Stock Splits - $286) or (ii) the market price of common stock on the trading day immediately preceding the purchase notice date. The Preferred D Warrants are exercisable during a five-year period commencing upon

issuance. The contracts for the Preferred D Warrants contain cashless exercise provisions similar to Preferred C Warrants described above. Therefore, management applied similar accounting treatment to recognition, measurement, and presentation of the warrant liabilities.

In September 2022 the Company received an initial investment in amount of $35 million (exercise price per share was $0.4379, or $98.5275 after the Reverse Stock Splits) and issued to investors 79,926,925 shares of Series D preferred stock, and 26,287 Preferred D warrants (hereinafter warrants and shares of common stock are presented giving effect to the Reverse Stock Splits, see Note 1).

By September 30, 2022 no Preferred D Warrants were exercised and all Preferred D Warrants remained outstanding with the fair value on September 30, 2022 in an amount of $55,398,551.

During the quarter ended December 31, 2022, all initial Preferred D Warrants were exercised on a cashless basis for 1,018,217 shares of common stock.

In November 2022, the Company received $150,000,000 and issued, in lieu of Series D Preferred Stock, notes convertible into shares of common stock and Preferred D warrants. As a result of the conversion of the convertible debt into shares of common stock in November 2022 and February 2023, 4,361,588 Preferred D warrants were issued. By June 30, 2023 all these Preferred D Warrants were exercised on a cashless basis for 9,366,447 shares of common stock.

During April 2023 we exercised our investment rights under Series D SPA and requested an additional $45 million (exercise price per share was $0.1 or $22.5 after Reverse Stock Splits) issuing to investors: 273,363,635 Series D Preferred Stock (converted to 1,214,949 shares of common stock), 785,051 shares of common stock (in lieu of Series D Preferred Stock), and 3,700,000 Preferred D warrants (post reverse stock split). The warrant liability recognized initially amounted to $73,260,454. By June 30, 2023 all these Preferred D Warrants were exercised on a cashless basis for 14,767,200 shares of common stock (post reverse stock split).

In June 2023 we exercised the second half of our investment right for $45 million (exercise price was $0.432 or $3.888 after reverse stock splits) and, in lieu of Series D Preferred Stock, investors received: 6,077,835 shares of common stock and 5,496,238 prefunded warrants exercisable for one share of common stock each, as well as 21,412,036 Preferred D Warrants.

In June 2023 one of the investors exercised their investment rights and invested $7 million (exercise price per share was $0.52 or $4.68 after Reverse Stock Splits). The Company issued, in lieu of Series D Preferred Stock, 1,495,726 shares of common stock and 2,767,094 Preferred D Warrants.

Final voluntary investment rights under the Series D SPA were exercised by the pool of investors in June 2023 and the Company received $100 million (exercise price per share was $0.1601, or $1.4409 after Reverse Stock Splits, for all but one of the investors, and $0.1696, or $1.5264 after Reverse Stock Splits, for one investor), issuing to investors, in lieu of Series D Preferred Stock: 18,373,082 shares of common stock and 50,815,919 prefunded warrants exercisable for one share of common stock each, as well as 76,107,900 Preferred D Warrants.

The warrant liability recognized in June 2023 upon initial accounting of these investments amounted to $254,962,776. By June 30, 2023 a part of these prefunded warrants and Preferred D Warrants was exercised on a cashless basis for 46,828,038 shares of common stock (post Reverse Stock Splits). As of June 30, 2023 28,482,585 prefunded warrants (recognized in equity) exercisable into the same number of shares of common stock, as well as 89,052,573 Preferred D Warrants (recognized as liabilities) exercisable into 155,414,904 shares of common stock (recognized as liability in the consolidated balance sheets) with fair value of $150,084,173 remained outstanding and their exercise (on a cash or cashless basis) is available to investors for a period of approximately 5 years.

The fair value of warrant obligations is calculated based on the number and market value of shares that can be issued upon exercise of the warrants. The number of shares to be issued in accordance with relevant agreements is variable and depends on (i) lowest closing market price of shares for 2 days before the exercise, and (i) multiplicator calculated based on Black Scholes formula where all elements, except for risk-free rate, are fixed on the investment date. Accordingly, the fair value

of warrants on recognition date and on subsequent dates was estimated as a maximum of (i) Black Scholes value for cash exercise of relevant warrants and (ii) current market value of the number of shares the Company would be required to issue upon cashless warrant exercise on a relevant date in accordance with warrant contract requirements. The latter valuation, based on observable inputs (level 2), has been higher and reflects the pattern of the warrants exercise since the inception of the Series D SPA.

At each warrant exercise date and each accounting period end the warrant liability for the remaining unexercised warrants was marked-to-market value and the resulting gain or loss was recorded in consolidated statement of operations as a “Gain / (loss) on derivative liability revaluation”.

All the warrants mentioned in this section provide that if the Company issues or sells, enters into a definitive, binding agreement pursuant to which he Company is required to issue or sell or is deemed, pursuant to the provisions of the Warrants, to have issued or sold, any shares of common stock for a price per share lower than the exercise price then in effect, subject to certain limited exceptions, then the exercise price of the warrants shall be reduced to such lower price per share. In addition, the exercise price and the number of shares of common stock issuable upon exercise of the warrants are subject to adjustment in connection with stock splits, dividends or distributions or other similar transactions.

Other derivative liabilities

Other derivative liabilities recognized and remeasured subsequently at fair value correspond to convertible debentures, warrants, and preferred stock, that failed equity presentation when the Company had insufficient number of authorized shares available to settle all potential future conversion transactions. These derivative liabilities were initially recognized on November 15, 2022, when the Company entered into Amendment No. 3 to the Series D SPA (see Note 7) having an insufficient number of authorized shares of common stock available for issuance upon conversion of preferred stock and convertible notes payable and the exercise of outstanding warrants. They have been reclassified to equity upon authorization of increase of common stock available for issuance by stockholders of the Company in January, 2023.

Qiantu Warrants

On March 14, 2023, the Company entered into an Intellectual Property and Distribution Agreement (the “IP Agreement”) with Qiantu Motor (Suzhou) Ltd., and two of Qiantu Suzhou’s affiliates (herein “Qiantu”). Pursuant to the IP Agreement, Qiantu granted the Company the exclusive license to use certain of Qiantu’s trademarks and the exclusive right to assemble, manufacture, and sell the homologated vehicles based on the Qiantu K-50 model throughout North America and South America for a period of five years (see Note 18 for more details). These rights will be obtained and the commitment will only be effective upon the Company’s assessment of feasibility and profitability of the project.

As a part of consideration for the Company’s entry into the IP Agreement, the Company issued to Qiantu USA warrants to purchase up to 333,333 (giving effect to the Reverse Stock Splits, see Note 1) shares of the Company’s common stock (the “Qiantu Warrants”).

The warrants are exercisable at Qiantu USA’s discretion commencing at any time from September 30, 2023 up to and including September 30, 2024 at 110% of the market price of the Company’s common stock at the close of trading on the earlier of (a) when the Company completes its obligations to its Series D Preferred Stock investors; or (b) June 15, 2023. The Qiantu Warrants have anti-dilution provisions similar to those described above, but they provide for exemption for Series D Preferred Stock transactions rights and obligations that existed on the date the Qiantu Warrants were issued.

As it was expected that the Company may not have a sufficient number of authorized shares of common stock available for issuance during the term of the contract (up to September 2024) and the shares to be issued upon possible exercise of warrants have not been registered yet, the Qiantu Warrants were recognized at fair value on inception ($6,814,000) and on each subsequent period end. Fair value on June 30, 2023 amounted to $234,300. The difference has been recognized within gains (losses) on derivative liabilities revaluation in the consolidated statements of operations.

Upon issuance of the instruments underlying the derivative liabilities and upon revaluation (immediately prior to conversion of the underlying instrument and on the balance sheet date), the Company estimated the fair value of these

derivatives using the Black-Scholes Pricing Model and binomial option valuation techniques based on the following assumptions: (1) dividend yield of 0%, (2) expected annualized volatility of approximately 198%, (3) risk-free interest rate of 4.3% to 4.7%. These liabilities are classified as having significant unobservable input (level 3) in the table below.

Breakdown of items recorded at fair value on a recurring basis in condensed consolidated balance sheets by levels of observable and unobservable inputs as of June 30, 2023 and on September 30, 2022 is presented below:

June 30,

Quoted Prices

Significant

2023

in Active

Other

Unobservable

Markets for

Observable

Inputs

Identical Assets

Inputs

(Level 3)

(Level 1)

(Level 2)

Derivative liability

150,318,473

150,084,173

234,300

September 30,

Quoted Prices

Significant

2022

in Active

Other

Unobservable

Markets for

Observable

Inputs

Identical Assets

Inputs

(Level 3)

(Level 1)

(Level 2)

Derivative liability

84,799,179

A summary of all changes in warrants and other derivative liabilities is presented below:


Balance, September 30, 2022	$	84,799,179
Derivative liabilities recognized upon issuance of convertible instruments		499,737,254
Derivative liability recognized upon authorized shares shortfall		11,978,166
Loss / (gain) on derivative liability revaluation		89,462,559
Reclassification of derivative liabilities to equity upon authorization of sufficient common shares		(47,818,882)
Financing loss upon over-issuance of shares from warrants		8,934,892
Receivables upon over-issuance of shares from warrants		17,721,868
Reclassification to liability to issue shares upon unfinished warrant exercise on period end		(5,378,806)
Conversions of warrants into common shares		(509,117,758)
Balance, June 30, 2023	$	150,318,473

Balance, September 30, 2021	$	-
Derivative liabilities recognized upon issuance of convertible instruments		269,344,178
Loss / (gain) on derivative liability revaluation		124,672,956
Conversions of warrants into common shares		(420,626,121)
Change in agreement with warrant holders (recognized as deemed dividends)		32,735,345
Balance, June 30, 2022	$	6,126,358