Able View Global Inc 6-K, filed Sep 11, 2024
Able View Global Inc. (ABLV)
About this 6-K
Able View Global Inc filed this 6-K on September 11, 2024.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16 UNDER THE
SECURITIES EXCHANGE ACT OF 1934
For the month of September 2024
Commission File Number: 001-41785
Able View Global Inc.
(Exact name of Registrant as specified in its charter)
Floor 16, Dushi Headquarters Building
No. 168, Middle Xizang Road
Shanghai, 200001, People’s Republic of China
+86 185 0177 0425
(Address of principal executive office)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F:
Form 20-F ☒ Form 40-F ☐
Entry into a Material Definitive Agreement
On September 9, 2024, Able View Global Inc., a Cayman Islands exempted company (the “Company”) completed the signing of Convertible Note Purchase Agreements (the “Agreements”) with three (3) non-U.S. investors (the “Purchasers”).
Pursuant to the Agreements, the Company will issue and sell to the Purchasers convertible notes (the “Notes”) with aggregate principal amount of US$5,000,000, interest rate of 8% per annum, original issue discount of 20%, and maturity of three (3) years. The Notes are convertible into Class B Ordinary Shares of the Company (the “Conversion Shares”) at the option of the Purchasers, at a conversion price (the “Conversion Price”) of the higher of (i) 75% of the lowest volume-weighted average trading price of the Class B Ordinary Shares during the ten (10) latest consecutive business days preceding the conversion, and (ii) $0.6 per Class B Ordinary Share. In addition, the Company will issue the Purchasers warrants to purchase one (1) Class B Ordinary Share per Conversion Share (the “Conversion Warrants”) upon the conversion of the Notes, with the exercise price of such Conversion Warrants the same as the Conversion Price of the Notes.
The Purchasers are non-U.S. investors acquiring the above described securities in an “offshore transaction” as defined in Rule 902 of Regulation S under the Securities Act, and subject to transfer restrictions during the applicable restricted period. Pursuant to the Agreements, the Purchasers have agreed to a six-month lock-up regarding all securities of the Company. The Agreements contain other customary representations, warranties, covenants and conditions to closing for a transaction of this nature.
The foregoing descriptions are summaries of the material terms of such documents, do not purport to be complete and are qualified in their entirety by reference to the documents, the forms of which are attached hereto as exhibits.
Financial Statements and Exhibits
Exhibits.
| Number | ||
| 99.1 | Form of Convertible Note Purchase Agreement | |
| 99.2 | Form of Convertible Note | |
| 99.3 | Form of Conversion Warrant |
1
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| September 11, 2024 | Able View Global Inc. | |
| By: | /s/ Tang Jing | |
| Name: | Tang Jing | |
| Title: | Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) | |
2
Exhibit 99.1
CONVERTIBLE NOTE PURCHASE AGREEMENT
by and between
Able View Global Inc.
and
[Investor’s Name]
Dated [ ], 2024
THIS CONVERTIBLE NOTE PURCHASE AGREEMENT (this “Agreement”), dated [ ], 2024, is entered into by and between:
(1) Able View Global Inc., a Cayman Islands exempted company (the “Company”); and
(2) [Investor’s Name] (the “Purchaser”).
RECITALS
WHEREAS, the Company desires to issue and sell to the Purchaser, and the Purchaser desires to subscribe for and purchase from the Company, the Note (as defined below) on the terms and subject to the conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants and agreements set forth herein, as well as other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1 Definitions. In this Agreement, except to the extent otherwise provided or that the context otherwise requires:
“Affiliate” means, with respect to any specified Person, any Person that controls, is controlled by, or is under common control with such Person. For purposes of this definition, the term “control” (including the terms “controlling,” “controlled by” and “under common control with”), when used with respect to any specified Person, means the possession, directly or indirectly, individually or together with any other Person, of the power to direct or to cause the direction of the management and policies of a Person, whether through ownership of voting securities or other interests, by contract or otherwise.
“Agreement” has the meaning ascribed to this term in the preamble hereto.
“Anti-Money Laundering Laws” has the meaning ascribed to this term in Section 3.7(a).
“Business Day” means any day that is not a Saturday, a Sunday or other day on which banking institutions in the Cayman Islands, the State of New York, Beijing, or Hong Kong are required by Law to be closed.
“Class B Ordinary Shares” means the Class B Ordinary Shares of the Company, par value US$0.0001 per share.
“Closing” has the meaning ascribed to this term in Section 2.2(a).
“Closing Date” has the meaning ascribed to this term in Section 2.2(a).
“Company” has the meaning ascribed to this term in the preamble hereto.
“Company Material Adverse Effect” means any event, change, development or occurrence that has had or would reasonably be expected to have a material adverse effect on (a) the business, shareholders’ equity, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole (including any material adverse action by applicable regulatory authorities), or (b) the ability of the Company to enter into this Agreement, the Note or to perform its obligations hereunder or thereunder; provided, however, that for purposes of clause (a) above, no change, event, circumstance, development or effect attributable to or resulting from any of the following shall be deemed to be, or taken into account in determining whether there has been or would reasonably be expected to be, a Company Material Adverse Effect: (i) changes, events, developments or circumstances in or affecting general economic conditions or the securities, credit or financial markets in general (including interest rates and exchange rates), (ii) changes, events, developments or circumstances generally affecting the industries in which any of the Company and the Subsidiaries operate, (iii) changes or developments in GAAP, other applicable accounting rules or applicable Law, or the enforcement or interpretation thereof, or changes or developments in political, regulatory or legislative conditions, (iv) changes, events, circumstances or developments resulting from any weather-related or other force majeure event or natural disaster (including hurricane, tornado, flood, earthquake, tsunami or volcano eruption) or outbreak or escalation of hostilities or acts of war (whether or not declared) or terrorism, (v) seasonal fluctuations in the Company or its Subsidiaries’ business performance or results of operations, (vi) the matters publicly disclosed, (vii) any failure by the Company or any of the Subsidiaries to meet any internal or published projections, forecasts, estimates or projections or analysts’ expectations in respect of revenues, cash flow, earnings or other financial or operating metrics for any period, in and of itself, or (viii) any changes in the market price or trading volume of Class B Ordinary Shares; provided, however, that (A) the underlying cause(s) of such change or failure shall not be excluded in the case of clauses (vii) and (viii) (unless otherwise excepted under the foregoing clauses (i) through (vi)) and (B) any changes, events, circumstances or developments referred to in clauses (i), (ii), (iii) and (iv) shall not be excluded to the extent the same disproportionately affect (individually or together with other changes, events, circumstances or developments) the Company and the Subsidiaries, taken as a whole, as compared to other similarly situated Persons operating in the same principal industries in which the Company and the Subsidiaries operate.
2
“Company SEC Documents” means all reports, statements, schedules, forms and other documents filed or furnished by the Company with the SEC, including all financial statements, notes, exhibits and schedules included therein and all documents incorporated by reference therein.
“Conversion Shares” means the Class B Ordinary Shares into which the Note is convertible.
“Conversion Warrants” means the warrants to purchase one Class B Ordinary Share, with each such Conversion Warrant issued to the holder for each Conversion Share upon the conversion of the Note, a form of which is attached hereto as Exhibit B.
“Exchange Act” means the United States Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“GAAP” means accounting principles generally accepted in the United States.
“Governmental Authority” means any federal, national, supranational, state, provincial, local, municipal or other government, any governmental, quasi-governmental, supranational, judicial, regulatory or administrative authority (including any governmental division, department, agency, commission, instrumentality, organization, unit or body, political subdivision, and any court or other tribunal) or any stock exchange or self-regulatory organization (including Nasdaq Inc.) with competent jurisdiction.
“Governmental Order” means any order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any Governmental Authority.
“HKIAC” has the meaning ascribed to this term in Section 8.2(b).
“HKIAC Rules” has the meaning ascribed to this term in Section 8.2(b).
“Information” has the meaning ascribed to this term in Section 4.2(c).
“Law” means any statute, law, ordinance, regulation, rule, code, order, judgment, writ, injunction, decree or requirement of law (including common law) enacted, issued, promulgated, enforced or entered by a Governmental Authority.
“Lien” means, with respect to any property or asset, any mortgage, pledge, claim, security interest, easement, covenant, restriction, reservation, defect in title, encroachment or other encumbrance, lien (choate or inchoate), charge, equity, or other restriction or limitation, whether arising by contract or under Law.
“Lock-Up Securities” has the meaning ascribed to this term in Section 6.2.
“Note” means the convertible note in the principal value as set forth in the Section 2.1 of this Agreement issued to the Purchaser pursuant to Article II, the form of which is attached hereto as Exhibit A.
“Permits” has the meaning ascribed to this term in Section 3.7(b).
“Person” means an individual, a corporation, a limited liability company, an association, a partnership, a joint venture, a joint stock company, a trust, an unincorporated organization or a Governmental Authority.
“PRC” means the People’s Republic of China.
3
“Proceeding” means any action, suit, litigation, arbitration, proceeding (including any civil, criminal, administrative or appellate proceeding) or hearing commenced, brought, conducted or heard by or before, or otherwise involving, any arbitrator, arbitration panel, court or other Governmental Authority.
“Purchase Price” has the meaning ascribed to this term in Section 2.1.
“Purchaser” has the meaning ascribed to this term in the preamble hereto.
“Purchaser Material Adverse Effect” means any event, change or occurrence that has had or would reasonably be expected to have a material adverse effect on the ability of the Purchaser to enter into this Agreement or to perform its obligations hereunder.
“SEC” means the United States Securities and Exchange Commission.
“Securities Act” means the United States Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Subsidiary” means, as of the relevant date of determination, with respect to any Person (the “subject entity”), (i) any Person (x) more than fifty percent (50%) of whose shares or other interests entitled to vote in the election of directors or (y) more than fifty percent (50%) interest in the profits or capital of such Person are owned or controlled directly or indirectly by the subject entity or through one or more Subsidiaries of the subject entity, (ii) any Person, including for the avoidance of doubt any “variable interest entity,” whose financial statements, or portions thereof, are or are intended to be consolidated with the financial statements of the subject entity for financial reporting purposes in accordance with GAAP or (iii) any Person with respect to which the subject entity has the sole power to control or otherwise direct the business and policies of that entity directly or indirectly through another subsidiary or otherwise.
Section 1.2 Interpretation and Rules of Construction. In this Agreement, except to the extent otherwise provided or that the context otherwise requires:
(a) The words “party” and “parties” shall be construed to mean a party or the parties to this Agreement, and any reference to a party to this Agreement or any other agreement or document contemplated hereby shall include such party’s successors and permitted assigns.
(b) When a reference is made in this Agreement to an article, section or clause, such reference is to an article, section or clause of this Agreement.
(c) The headings for this Agreement are for reference purposes only and do not affect in any way the meaning or interpretation of this Agreement.
(d) Whenever the words “include,” “includes” or “including” are used in this Agreement, they are deemed to be followed by the words “without limitation.”
(e) The words “hereof,” “herein” and “hereunder” and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement.
(f) All terms defined in this Agreement have the defined meanings when used in any certificate or other document made or delivered pursuant hereto, unless otherwise defined therein.
(g) The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms.
(h) A reference to any legislation or to any provision of any legislation shall include any modification, amendment, re-enactment thereof, any legislative provision substituted therefor and all rules, regulations and statutory instruments issued or related to such legislation.
(i) The parties have each participated in the negotiation and drafting of this Agreement and if any ambiguity or question of interpretation should arise, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or burdening either party by virtue of the authorship of any of the provisions in this Agreement or any interim drafts thereof.
4
ARTICLE II
PURCHASE AND SALE OF THE NOTE
Section 2.1 Sale and Issuance of the Note. Subject to the terms and conditions of this Agreement, at the Closing, the Company agrees to issue and sell to the Purchaser, and the Purchaser agrees to subscribe for and purchase from the Company, the Note, for a purchase price of US$1,000,000 (the “Purchase Price”).
Section 2.2 Closing.
(a) Subject to the satisfaction or waiver of the conditions set forth in Article V, the closing of the transactions described in this Agreement (the “Closing”) shall take place as soon as practicable, or such other date as the parties may mutually agree in writing (the date on which the Closing takes place, the “Closing Date”).
(b) The Closing shall take place remotely via the exchange of documents and signatures, or at such other place and in such other manner as the parties may mutually agree in writing.
(c) At the Closing, the Purchaser shall pay the Purchase Price to the Company in U.S. dollars by wire transfer of immediately available funds to a bank account designated in writing by the Company to the Purchaser at least two (2) Business Days prior to the Closing Date.
(d) At the Closing, the Company shall deliver to the Purchaser the Note, dated the Closing Date and registered in the name of the Purchaser.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the Company SEC Documents, the Company hereby represents and warrants to the Purchaser that, as of the date hereof and as of the Closing:
Section 3.1 Organization, Good Standing and Qualification. The Company is a company duly incorporated, validly existing and in good standing under the Laws of the Cayman Islands, and each of the Company’s Subsidiaries is duly incorporated or organized, validly existing and in good standing (where such concept is applicable) under the Laws of the jurisdiction of its incorporation or organization. The Company and each of its Subsidiaries has the requisite corporate power and authority to own or lease all of its properties and assets and to carry on its business as it is now being conducted, and is duly licensed or qualified to do business in each jurisdiction in which the nature of the business conducted by it or the character or location of the properties and assets owned or leased by it makes such licensing or qualification necessary, except where the failure so to qualify or to be in good standing would not result in a Company Material Adverse Effect.
Section 3.2 Authorization. The Company has all requisite corporate power to enter into this Agreement and the Note and to perform its obligations hereunder and thereunder. The execution, delivery and performance of this Agreement and the Note by the Company have been duly authorized by all necessary corporate action on the part of the Company. This Agreement has been or will be duly executed and delivered by the Company and, assuming due authorization, execution and delivery by the Purchaser, constitute or will constitute legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as enforcement may be limited by general principles of equity, whether applied in a court of Law or a court of equity, and by applicable bankruptcy, insolvency and similar Law affecting creditors’ rights and remedies generally.
Section 3.3 Valid Issuance. The Note has been duly and validly authorized for issuance and sale to the Purchaser by the Company, and when issued and delivered by the Company against payment therefor by the Purchaser in accordance with the terms of this Agreement, the Note will be legally binding and valid obligations of the Company and enforceable against the Company in accordance with its terms, except as enforcement may be limited by general principles of equity, whether applied in a court of Law or a court of equity, and by applicable bankruptcy, insolvency and similar Law affecting creditors’ rights and remedies generally. The Conversion Shares and Conversion Warrants have been duly authorized for issuance and, when issued upon conversion of the Note, will be duly and validly issued, fully paid and non-assessable, and will not be subject to any pre-emptive or similar rights and will rank pari passu with all other existing Class B Ordinary Shares.
5
Section 3.4 No Violation. The execution, delivery and performance by the Company of this Agreement and the Note, the issuance of the Conversion Shares and Conversion Warrants upon conversion of the Note, and the consummation of the other transactions contemplated hereby and thereby, do not and will not (i) violate, conflict with or result in the breach of any provision of the certification of formation (or similar organizational documents) of the Company or any of its Subsidiaries, (ii) subject to the truth and accuracy of the representations and warranties of the Purchaser in Article IV, conflict with or violate any Law or Governmental Order applicable to the Company or any of its Subsidiaries or the assets, properties, businesses or operations of the Company or any of its Subsidiaries, or (iii) conflict with, result in any breach of, constitute a default (or event which with the giving of notice or lapse of time, or both, would become a default) under, require any consent under, or give to others any rights of termination, amendment, acceleration, suspension, revocation or cancellation of, any note, bond, mortgage or indenture, contract, agreement, lease, sublease, license, permit, franchise or other instrument or arrangement to which the Company or any of its Subsidiaries is a party or result in the creation of any Liens upon any of the properties or assets of the Company or any of its Subsidiaries.
Section 3.5 No Default. To the Company’s knowledge, neither the Company nor any of its Subsidiaries (i) is in violation of any provision of its Certificate of Formation (or similar organizational documents) ; (ii) is in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject; or (iii) is in violation of any law or statute applicable to the Company or any of its Subsidiaries or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority having jurisdiction over the Company or any of its Subsidiaries, except, in the case of clauses (ii) and (iii) above, for any such default or violation that would not reasonably be expected to have a Company Material Adverse Effect.
Section 3.6 Consents. Subject to the truth and accuracy of the representations and warranties of the Purchaser in Article IV, the execution, delivery and performance by the Company of this Agreement and the Note, the issuance of the Conversion Shares and Conversion Warrants upon conversion of the Note, and the consummation of the other transactions contemplated hereby and thereby do not and will not require any consent, approval, authorization or other order of, action by, filing with, or notification to, any Governmental Authority of the United States other than those as have been made or obtained, and except for any required filing or notification with the SEC in connection therewith.
Section 3.7 Compliance with Applicable Laws; Permits.
(a) None of the Company, its Subsidiaries and, the Company’s and its Subsidiaries’ respective directors, officers, and to the knowledge of the Company, employees, representatives, agents or affiliates, has violated, and the Company’s participation in the transaction contemplated hereby will not violate, any Anti-Money Laundering Laws (as defined below). As used herein, “Anti-Money Laundering Laws” means all applicable Laws regarding anti-money laundering, including, without limitation, Title 18 U.S. Code section 1956 and 1957, the USA Patriot Act, the Bank Secrecy Act, and international anti-money laundering principals or procedures published by an intergovernmental group or organization, such as the Financial Action Task Force on Money Laundering, of which the United States is a member and with which designation the United States representative to the group or organization continues to concur, in each case as amended, and any executive order, directive, or regulation pursuant to the authority of any of the foregoing, or any orders or licenses issued thereunder. There is no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its Subsidiaries with respect to Anti-Money Laundering Laws that is pending or, to the knowledge of the Company, threatened.
(b) Except in each case as has not had and would not reasonably be expected to have a Company Material Adverse Effect, (i) the Company and its Subsidiaries have all licenses, permits, qualifications, accreditations, approvals, consents, authorizations, franchises, variances, exemptions and orders of any Governmental Authority (collectively, the “Permits”), and have made all necessary filings required under applicable Laws, necessary to conduct the business of the Company and its Subsidiaries, (ii) since December 31, 2023, neither the Company nor any of its Subsidiaries has received any written notice of any violation of or failure to comply with any Permit or any actual or possible revocation, withdrawal, suspension, cancellation, termination or material modification of any Permit, and (iii) each such Permit has been validly issued or obtained and is in full force and effect.
6
Section 3.8 Capitalization; Subsidiaries.
(a) The authorised share capital of the Company is US$60,000 divided into 600,000,000 ordinary shares of par value of US$0.0001 each, comprising (a) 100,000,000 Class A Ordinary Shares of par value of US$0.0001 each, of which 24,871,433 shares are issued and outstanding as of the date of this Agreement; and (b) 500,000,000 Class B Ordinary Shares of par value of US$0.0001 each, of which 16,766,550 shares are issued and outstanding as of the date of this Agreement.
The Company has no outstanding warrants, options, bonds, debentures, notes or other obligations, the holders of which have the right to vote (or which are convertible into or exercisable or exchangeable for securities having the right to vote) with the shareholders of the Company on any matter. All issued and outstanding ordinary shares have been duly authorized and validly issued and are fully paid and non-assessable, are free of preemptive rights, were issued in compliance with applicable U.S. and other applicable securities Laws and were not issued in violation of any preemptive right, resale right, right of first refusal, or similar right.
(b) The authorized capital stock of the Company is sufficient to accommodate the issuance of the Conversion Shares and Conversion Warrants upon conversion of the Note.
(c) All outstanding shares of capital stock or other securities of the Subsidiaries (other than any Significant Subsidiary organized under the Laws of the PRC) are duly authorized, validly issued, fully paid and non-assessable. The registered capital of each Subsidiary organized under the Laws of the PRC has been timely contributed in accordance (if so required) with its articles of association.
Section 3.9 Litigation.
(a) As of the date of this Agreement, to the knowledge of the Company, there is no pending Proceeding against the Company or any of its Subsidiaries or any director or officer thereof (in their capacity as such), in each case, as would have, if decided adversely, a Company Material Adverse Effect.
(b) There is no Governmental Order in effect or pending to which the Company or any of its Subsidiaries is a party or subject which materially interferes with the business of the Company and its Subsidiaries as currently conducted, taken as a whole.
Section 3.10 [Intentionally Omitted].
Section 3.11 Intellectual Property. The Company owns, or possesses the right to use, all of the intellectual property, licenses, permits and other authorizations that are reasonably necessary for the operation of its business, without infringing the rights of any other Person, except for failures to so own, or so possess the right to use, that would not have a Company Material Adverse Effect.
Section 3.12 Real and Personal Property. Except as would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries have valid and marketable rights to lease or otherwise use, all items of real and personal property and assets (other than intellectual property, which is subject to Section 3.11) that are material to the business of the Company and its Subsidiaries, in each case free and clear of all Liens, encumbrances, claims and defects and imperfections of title.
Section 3.13 Investment Company. The Company is not, and immediately after receipt of the Purchase Price will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
Section 3.14 Offshore Transaction. Subject to the truth and accuracy of the representations and warranties of the Purchaser in Section 4.1(f), the offer, sale and issuance of the Note are conducted outside the United States in an “offshore transaction” as defined in Rule 902 of Regulation S under the Securities Act and are exempt from the registration requirements of the Securities Act.
Section 3.15 Listing. The Class B Ordinary Shares are registered pursuant to Section 12(b) of the Exchange Act and the shares of the Class B Ordinary Shares are listed on the Nasdaq Capital Market.
Section 3.16 [Intentionally Omitted].
Section 3.17 No General Solicitation. Neither the Company nor any other Person authorized by the Company to act on its behalf has engaged in a general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) of investors with respect to offers or sales of the Note. The Company has not, directly or indirectly, sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any security (as defined in the Securities Act) which, to its knowledge, is or will be integrated with the Note sold pursuant to this Agreement.
Section 3.18 Brokers. Neither the Company nor any other Person authorized by the Company to act on its behalf has retained, utilized or been represented by any broker or finder in connection with the transactions contemplated by this Agreement whose fees the Purchaser would be required to pay.
7
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE PURCHASER
Section 4.1 Representations and Warranties of the Purchaser. The Purchaser hereby represents and warrants to the Company that, as of the date hereof and as of the Closing:
(a) Organization and Good Standing. The Purchaser is duly incorporated, validly existing and in good standing under the Laws of its jurisdiction of organization, if the Purchaser is a corporate entity.
(b) Authorization. The Purchaser has all requisite corporate power to enter into this Agreement and to perform its obligations hereunder. The execution, delivery and performance of this Agreement by the Purchaser have been duly authorized by all necessary corporate or similar action on the part of the Purchaser. This Agreement has been or will be duly executed and delivered by the Purchaser and, assuming due authorization, execution and delivery by the Company, constitute or will constitute legal, valid and binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms, except as enforcement may be limited by general principles of equity, whether applied in a court of Law or a court of equity, and by applicable bankruptcy, insolvency and similar Law affecting creditors’ rights and remedies generally.
(c) No Violation. The execution, delivery and performance by the Purchaser of this Agreement and the Note and the consummation of the transactions contemplated hereby and thereby do not and will not (i) violate, conflict with or result in the breach of any provision of its memorandum and articles of association (or similar organizational documents), (ii) conflict with or violate any Law or Governmental Order applicable to it or any of its assets, properties or businesses, or (iii) conflict with, result in any breach of, constitute a default (or event which with the giving of notice or lapse of time, or both, would become a default) under, require any consent under, or give to others any rights of termination, amendment, acceleration, suspension, revocation or cancellation of, any note, bond, mortgage or indenture, contract, agreement, lease, sublease, license, permit, franchise or other instrument or arrangement to which it is a party or result in the creation of any Liens upon any of its properties or assets, other than, in the case of clauses (ii) and (iii) above, any such conflict, violation, default, termination, amendment, acceleration, suspension, revocation, cancellation or encumbrance that would not have a Purchaser Material Adverse Effect.
(d) Consents. The execution, delivery and performance by the Purchaser of this Agreement and the Note do not and will not require any consent, approval, authorization or other order of, action by, filing with, or notification to, any Governmental Authority or any third party.
(e) Offshore Transaction. The Purchaser is not a “U.S. person” and is located outside of the United States, as such terms are defined in Rule 902 of Regulation S under the Securities Act. The Purchaser has reviewed and signed a Regulation S Certification, attached hereto as Exhibit C, to that effect. The Purchaser is acquiring the Note in an offshore transaction executed in reliance upon the exemption from registration provided by Regulation S under the Securities Act. The Purchaser will not, during the restricted period that is applicable to the Note set forth in the legend set forth therein (the “Restricted Period”), offer or sell the Note (or create or maintain any derivative position equivalent thereto) in the United States, to or for the account or benefit of a U.S. Person other than in accordance with Regulation S, or engage in hedging transactions with regard to the Note prior to the expiration of the Restricted Period. If during the Restricted Period, the Purchaser offers or sells any of the Note in accordance with Regulation S, the Purchaser agrees that it shall ensure that the transferee of the Note makes the same representations and agrees to be bound by the same transfer restrictions as set forth herein.
(f) No Distribution. The Purchaser is acquiring the Note for its own account and not with a view towards, or for resale in connection with, the public sale or distribution thereof, except pursuant to sales registered or exempted under the Securities Act. The Purchaser does not presently have any agreement or understanding, directly or indirectly, to distribute the Note or any Conversion Shares or Conversion Warrants.
(g) Restricted Securities. The Purchaser acknowledges that the Note and the Conversion Shares and Conversion Warrants are “restricted securities” that have not been registered under the Securities Act or any applicable state securities Law, and may not be resold unless pursuant to an effective registration under the Securities Act and applicable state securities Laws or an exemption from.
8
(h) Brokers. Neither the Purchaser nor any other Person authorized by the Purchaser to act on its behalf has retained, utilized or been represented by any broker or finder in connection with the transactions contemplated by this Agreement whose fees the Company would be required to pay.
(i) No Additional Representations. The Purchaser acknowledges that the Company makes no express or implied representations or warranties as to any matter whatsoever except as expressly set forth in this Agreement or in any certificate delivered by the Company to the Purchaser in accordance with the terms hereof.
Section 4.2 No Reliance.
(a) The Purchaser represents and warrants that (i) it is a sophisticated investor familiar with transactions similar to those contemplated by this Agreement and the Note, and has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment in the Note and the Conversion Shares and Conversion Warrants; (ii) it is experienced in the trading of securities of private and public companies; and (iii) it is capable of bearing the economic risks of such investment, including a complete loss thereof.
(b) The Purchaser further represents and warrants that (i) it has carefully reviewed such information as it and its advisers deem necessary to make its decision to invest in the Note and the Conversion Shares and Conversion Warrants, (ii) has the ability to make, and has made, an informed decision as to the risks and merits of its investment in the Note and the Conversion Shares and Conversion Warrants on the terms set forth in this Agreement and the Note, and (iii) has made its own decision to consummate the transactions contemplated hereunder based exclusively on its own independent review, its financial experience, and consultations with such advisers as it deemed necessary. Without limiting the generality of the foregoing, the Purchaser acknowledges that neither the Company nor any of its Affiliates or representatives is acting as a fiduciary or financial or investment adviser to the Purchaser, or has given the Purchaser any investment advice, opinion or other information on whether an investment in the Note and/or the Conversion Shares and Conversion Warrants is prudent. The Purchaser is not relying on the Information (as defined below), or any other information other than the express representations set forth in this Agreement.
(c) The Purchaser acknowledges that the Company and its Affiliates and representatives possess material nonpublic information regarding the Company not known to the Purchaser that may impact the value of the Note and/or the Conversion Shares and Conversion Warrants (the “Information”), that the Information is not disclosed in the Company’s public disclosures or its filings with the SEC, and that the Company is not disclosing the Information to the Purchaser and that the Company and its Affiliates and representatives have not made, and are not making, any representation with respect to any Information. The Purchaser understands, based on its experience, the disadvantage to which the Purchaser is subject due to the disparity of information between the Company and the Purchaser and the fact that the Information is not being disclosed to the Purchaser. The Purchaser acknowledges and agrees that, notwithstanding such disparity, it has deemed it appropriate to enter into this Agreement and the Note and to consummate the transactions contemplated hereunder and thereunder. The Purchaser acknowledges the possibility that the Information may be material to a determination of a fair value for the Note or the Conversion Shares and Conversion Warrants and that value may be substantially different from the Purchase Price.
(d) The Purchaser agrees that neither the Company nor any of its Affiliates or representatives shall have any liability to the Purchaser whatsoever due to or in connection with the non-disclosure of the Information, and the Purchaser hereby irrevocably waives any claim that it might have based on the failure of the Company to disclose the Information. The Purchaser hereby irrevocably and unconditionally expressly releases, discharges and waives, to the fullest extent permitted by law, any and all claims, rights, causes of action, suits, obligations, debts, demands, liabilities, controversies, costs, expenses, fees or damages of any kind (including, but not limited to, any and all claims alleging violations of federal or state securities laws, common-law fraud or deceit, breach of fiduciary duty, negligence or otherwise), whether directly, derivatively, representatively or in any other capacity, that it may have or hereafter acquire against the Company, or any of its Affiliates and their respective officers, employees, agents and controlling persons, relating to the offer and sale of the Note and/or the Conversion Shares and Conversion Warrants, including the existence or non-existence of any Information, the Purchaser’s inability to review such Information or any failure to disclose such Information.
(e) The Purchaser understands that the Company relies on the accuracy and truth of the foregoing representations, warranties, acknowledgements and agreements in entering into this Agreement and the Note and performing its obligations hereunder and thereunder, and would not engage in the transactions contemplated by this Agreement and the Note in the absence of such representations, warranties, acknowledgements and agreements, and the Purchaser hereby consents to such reliance.
(f) Notwithstanding the forgoing, nothing in this Section 4.2 shall be deemed to limit or restrict the Purchaser’s rights or remedies with respect to any breach or violation by the Company of any of its representations, warranties or covenants contained in this Agreement or the Note.
9
ARTICLE V
CONDITIONS
Section 5.1 Conditions to the Purchaser’s Obligations. The obligations of the Purchaser to consummate the Closing are subject to the satisfaction, on or before the Closing Date, of the following conditions, any of which may be waived in writing by the Purchaser in its sole discretion:
(a) The representations and warranties of the Company contained in Article III shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Company Material Adverse Effect, which shall be true and correct to such extent) as of the date hereof and as of the Closing (except for those representations and warranties that speak as of a specific date, which shall be so true and correct as of such date).
(b) The Company shall have performed its obligations hereunder to be performed on or before the Closing Date in all material respects.
(c) Since the date hereof, there shall not have occurred any circumstance or event that has had or would reasonably be expected to have a Company Material Adverse Effect.
Section 5.2 Conditions to the Company’s Obligations. The obligations of the Company to consummate the Closing are subject to the satisfaction, on or before the Closing Date, of the following conditions, any of which may be waived in writing by the Company in its sole discretion:
(a) The representations and warranties of the Purchaser contained herein shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Purchaser Material Adverse Effect, which shall be true and correct to such extent) as of the date hereof and as of the Closing.
(b) The Purchaser shall have performed its obligations hereunder to be performed on or before the Closing Date in all material respects.
(c) Since the date hereof, there shall not have occurred any circumstance or event that has had or would reasonably be expected to have a Purchaser Material Adverse Effect.
ARTICLE VI
AGREEMENTS
Section 6.1 Use of Proceeds. The Company shall use the net proceeds from the sale of the Note hereunder for working capital and other lawful general corporate purposes consistent with past practice and in the ordinary course of business or for the payment of any amount payable hereunder, and shall not use such proceeds (a) for the satisfaction of any portion of the Company’s debt other than payment of any amount payable hereunder or any trade payables in the ordinary course of the Company’s business and consistent with past practices, (b) for the payment of dividends on or the redemption of any capital stock of the Company, ADS or any shares, interests, rights to acquire, warrants, options, participations or other equivalents of or interests in (however designated) stock issued by the Company or (c) for the settlement of any outstanding litigation.
Section 6.2 Lock-up. The Purchaser shall not, at any time during the first six (6) months of the term of the Note, directly or indirectly, (i) offer, sell, pledge, transfer, assign or otherwise dispose of all or any part of the Note, any Conversion Shares, any Conversion Warrants, any ordinary shares, or other securities of the Company (collectively, “Lock-Up Securities”) to any third party, (ii) enter into any swap, short sale or any other arrangement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of any Lock-Up Securities, (iii) enter into any agreement with respect to any of the foregoing, or (iv) publicly disclose the intention to effect any of the foregoing, without, in each case, the prior written consent of the Company.
ARTICLE VII
TERMINATION
Section 7.1 Termination. This Agreement may be terminated:
(a) by the written consent of both parties; or
(b) by either the Company or the Purchaser, if the Closing shall not have occurred by December 31, 2024; provided, however, that the right to terminate this Agreement under this Section 7.1(b) shall not be available to any party whose failure to fulfill any obligation under this Agreement shall have been the principal cause of, or shall have resulted in, the failure of the Closing to occur on or prior to such date.
Section 7.2 Effect of Termination. Upon any termination of this Agreement pursuant to Section 7.1, this Agreement will have no further force or effect, except that this Section 7.2 and Article VIII shall survive such termination and remain in full force and effect; provided that no termination of this Agreement shall relieve any party of liability for any breach of this Agreement prior to such termination.
10
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Successors and Assigns; No Third Party Beneficiaries. This Agreement and the rights and obligations herein may not be assigned by any party without the prior written consent of the other party. This Agreement shall be binding upon and inure solely to the benefit of the parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever, except as expressly provided in this Agreement.
Section 8.2 Governing Law; Dispute Resolution.
(a) This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the principles of conflict of laws.
(b) Any dispute, controversy, difference or claim arising out of or relating to this Agreement, including its existence, validity, interpretation, performance, breach or termination or any dispute regarding non-contractual obligations arising out of or relating to it, shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (“HKIAC”) under the HKIAC Administered Arbitration Rules (the “HKIAC Rules”) in force when the notice of arbitration is submitted. The law of this arbitration clause shall be Hong Kong law. The seat of arbitration shall be Hong Kong. The arbitration tribunal shall consist of one arbitrator to be appointed in accordance with the HKIAC Rules. Any party may apply for a preservation order or seek other interim or injunctive relief, and judgment upon an award rendered in arbitration proceedings under this Agreement may be applied for and entered, in each case in any court of competent jurisdiction.
Section 8.3 Counterparts. This Agreement may be signed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
Section 8.4 Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be deemed duly given, made or received (i) on the date of delivery if delivered in person, (ii) on the date of confirmation of receipt of transmission by facsimile or other form of electronic delivery (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party) or (iii) three (3) Business Days after deposit with an internationally recognized express courier service to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 8.4):
If to the Company, to:
Floor 16, Dushi Headquarters Building
No. 168, Middle Xizang Road
Shanghai, 200001, People’s Republic of China
+86 185 0177 0425
Attn: Dennis Tang, CFO
Email: dennis.tang@ableview.hk
If to the Purchaser, to:
[ ]
11
Section 8.5 Fees and Expenses. Each party shall bear and pay its own costs, fees and expenses incurred by it in connection with this Agreement and the transactions contemplated hereby.
Section 8.6 Entire Agreement. Except as otherwise provided herein, this Agreement, the Note, and the other documents delivered pursuant hereto or thereto constitute the entire agreement between the parties with respect to the subject matter hereof and thereof, and supersede all prior agreements and understandings, both oral and written, between the parties and/or their Subsidiaries and Affiliates with respect to such subject matter.
Section 8.7 Amendment; Waiver.
(a) This Agreement may be amended, modified or supplemented only by a written instrument duly executed by both parties.
(b) The observance of any provision in this Agreement may be waived only by the written consent of the party against whom such waiver is to be effective. No failure or delay on the part of any party to exercise any right hereunder shall operate as waiver thereof, nor shall any single or partial exercise by any party of any right preclude any other or future exercise thereof or the exercise of any other right.
Section 8.8 Severability. If any provision of this Agreement is found to be invalid or unenforceable, then such provision shall be construed, to the extent feasible, so as to render the provision enforceable and to provide for the consummation of the transactions contemplated hereby on substantially the same terms as originally set forth herein, and if no feasible interpretation would save such provision, it shall be severed from the remainder of this Agreement, which shall remain in full force and effect unless the severed provision is essential to the rights or benefits intended by the parties. In such event, the parties shall use commercially reasonable efforts to negotiate, in good faith, a substitute, valid and enforceable provision or agreement, which most nearly effects the parties’ intent in entering into this Agreement.
[The remainder of this page is intentionally left blank.]
12
IN WITNESS WHEREOF, the parties have caused their duly authorized representatives to execute this Agreement on the date first above written.
| Able View Global Inc. | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Convertible Note Purchase Agreement]
13
IN WITNESS WHEREOF, the parties have caused their duly authorized representatives to execute this Agreement as of the date first above written.
| [Investor’s name] | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Convertible Note Purchase Agreement]
14
EXHIBIT A
FORM OF CONVERTIBLE NOTE
[See a separate file.]
EXHIBIT B
FORM OF WARRANT
[See a separate file.]
EXHIBIT C
REG S CERTIFICATION
[See a separate file.]
Exhibit 99.2
CONVERTIBLE NOTE
THIS NOTE AND THE SECURITIES REPRESENTED HEREBY WERE ISSUED IN AN OFFSHORE TRANSACTION TO PERSONS WHO WERE NOT U.S. PERSONS AND WERE NOT PURCHASING FOR THE ACCOUNT OR BENEFIT OF U.S. PERSONS PURSUANT TO REGULATION S UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). ACCORDINGLY, THIS NOTE AND THE SECURITIES REPRESENTED HEREBY (INCLUDING CLASS B ORDINARY SHARE ISSUABLE UPON CONVERSION HEREOF) HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT, OR UNDER ANY OTHER SECURITIES LAWS. THIS NOTE AND THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND OTHER APPLICABLE SECURITIES LAWS. PRIOR TO THE EXPIRATION OF SIX MONTHS AFTER THE LATER OF THE COMMENCEMENT OF THE OFFERING OF THIS SECURITY AND THE CLOSING DATE (THE “DISTRIBUTION COMPLIANCE PERIOD”), THIS NOTE AND THE SECURITIES REPRESENTED HEREBY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON EXCEPT (1) TO ABLE VIEW GLOBAL INC., A CAYMAN ISLANDS EXEMPTED COMPANY (THE “COMPANY”) OR ANY SUBSIDIARY THEREOF; (2) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION PURSUANT TO REGULATION S UNDER THE SECURITIES ACT; (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OF THE COMPANY THAT COVERS THE RESALE OF THIS NOTE OR SECURITIES REPRESENTED HEREBY; (4) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT; OR (5) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
PRIOR TO THE REGISTRATION OF ANY TRANSFER, THE COMPANY RESERVES THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER, BY ITS ACCEPTANCE OF THIS NOTE, REPRESENTS THAT IT UNDERSTANDS AND AGREES TO THE FOREGOING RESTRICTIONS.
CONVERTIBLE NOTE
| US$1,250,000 | [ ], 2024 |
Subject to the terms and conditions of this Convertible Note (the “Note”), for good and valuable consideration received, Able View Global Inc., a Cayman Islands exempted company (the “Company”), promises to pay to the order of [investor’s name] (such party and any permitted transferee, the “Holder”), the principal amount of US$1,250,000, with an original issue discount of 20%, plus accrued and unpaid interest thereon at the rate provided below, on [ ], 2027 (the “Maturity Date”), or such earlier or later date as may be otherwise provided herein, unless the outstanding principal, together with accrued interest, is settled in accordance with Article 3 of the Note.
The Note is issued pursuant to, subject to the provisions of and in accordance with, the Convertible Note Purchase Agreement, dated [ ], 2024 (the “Purchase Agreement”), by and between the Company and the Holder. Capitalized terms used and not defined herein have the meanings set forth in the Purchase Agreement.
The following is a statement of the rights of the Holder of the Note and the terms and conditions to which the Note is subject, and to which the Holder hereof, by the acceptance of the Note, agrees:
ARTICLE 1
DEFINITIONS
“Board of Directors” means the board of directors of the Company or a committee of such board duly authorized to act for it hereunder.
“Business Day” means any day that is not a Saturday, a Sunday or other day on which banking institutions in the Cayman Islands, the State of New York, Beijing or Hong Kong are required by Law to be closed.
“Class B Ordinary Share” means the Class B Ordinary Share of the Company, par value US$0.0001 per share, at the date of this Note, subject to Section 4.2.
“Close of Business” means 5:00 P.M., New York City time.
“Common Equity” of any Person means the common stock or equivalent of such Person that is generally entitled (a) to vote in the election of directors of such Person or (b) if such Person is not a corporation, to vote or otherwise participate in the selection of the governing body, partners, managers or others that will control the management or policies of such Person.
“Company” has the meaning ascribed to this term in the Preamble.
“Conversion Date” has the meaning ascribed to this term in Section 3.3(a).
“Conversion Notice” has the meaning ascribed to this term in Section 3.3(a).
“Event of Default” has the meaning ascribed to this term in Section 2.4.
“Exchange Act” means the United States Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Fundamental Change” shall be deemed to have occurred at the time after the Note is originally issued if any of the following occurs:
(a) a “person” or “group” within the meaning of Section 13(d) of the Exchange Act, other than the Company, its Subsidiaries, any Permitted Holders and the employee benefit plans of the Company and its Subsidiaries, files a Schedule TO or any schedule, form or report under the Exchange Act disclosing that such person or group has become the direct or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of the Company’s Common Equity representing more than 50% of the voting power of all shares of the Company’s Common Equity;
2
(b) the consummation of (i) any recapitalization, reclassification or change of the Class B Ordinary Share (other than changes resulting from a subdivision or combination) as a result of which the Class B Ordinary Share would be converted into, or exchanged for, stock, other securities, other property or assets; (ii) any share exchange, amalgamation, scheme of arrangement, consolidation or merger of the Company pursuant to which the Class B Ordinary Share will be converted into cash, securities or other property; (iii) any sale, lease or other transfer in one transaction or a series of transactions of all or substantially all of the consolidated assets of the Company and its Subsidiaries, taken as a whole, to any “person” or “group” (as those terms are used in Sections 13(d) and 14(d) of the Exchange Act) other than one of the Company’s Subsidiaries; or (iv) any statutory share exchange;
(c) the shareholders of the Company or any of its Significant Subsidiaries approve any plan or proposal for the liquidation or dissolution of the Company or any of its Significant Subsidiaries;
(d) the Company or any of its Significant Subsidiaries commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to the Company or such Significant Subsidiary or its debts under any bankruptcy, insolvency or other similar Law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of the Company or such Significant Subsidiary or all or substantially all of its property, or consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or make a general assignment for the benefit of creditors, or fail generally to pay its debts as they become due; or
(e) an involuntary case or other proceeding is commenced against the Company or any of its Significant Subsidiaries seeking liquidation, reorganization or other relief with respect to the Company or such Significant Subsidiary or its debts under any bankruptcy, insolvency or other similar Law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of the Company or such Significant Subsidiary or all or substantially all of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 30 consecutive calendar days;
provided, however, that a transaction or transactions described in clause (a) or (b) above shall not constitute a Fundamental Change, if 100% of the consideration received or to be received by holders of the Class B Ordinary Share, excluding cash payments for any fractional Class B Ordinary Share or made in connection with any dissenters’ rights, in connection with such transaction or transactions consists of shares of Common Equity in respect of Common Equity that are listed or quoted on any of The New York Stock Exchange, The NASDAQ Stock Market (or any of their respective successors) or will be so listed or quoted when issued or exchanged in connection with such transaction or transactions and as a result of such transaction or transactions the Note becomes convertible into such consideration, excluding cash payments for any fractional Class B Ordinary Share or made in connection with any dissenters’ rights.
“GAAP” means accounting principles generally accepted in the United States.
“Governmental Authority” means any federal, national, supranational, state, provincial, local, municipal or other government, any governmental, quasi-governmental, supranational, judicial, regulatory or administrative authority (including any governmental division, department, agency, commission, instrumentality, organization, unit or body, political subdivision, and any court or other tribunal) or any stock exchange or self-regulatory organization with competent jurisdiction.
“HKIAC” has the meaning ascribed to this term in Section 10.4(b).
“HKIAC Rules” has the meaning ascribed to this term in Section 10.4(b).
“Holder” has the meaning ascribed to this term in the Preamble.
“Law” means any statute, law, ordinance, regulation, rule, code, order, judgment, writ, injunction, decree or requirement of law (including common law) enacted, issued, promulgated, enforced or entered by a Governmental Authority.
“Majority Holders” means the holders of a majority in aggregate principal amount of all notes issued under the Purchase Agreement.
“Maturity Date” has the meaning ascribed to this term in the Preamble.
“Merger Event” has the meaning ascribed to this term in Section 4.2.
3
“Note” has the meaning ascribed to this term in the Preamble.
“Note Issuance Date” has the meaning ascribed to this term in Section 2.1.
“Reference Property” and “unit of Reference Property” have the meanings ascribed thereto in Section 4.2.
“Significant Subsidiary” means a Subsidiary of the Company that meets the definition of “significant subsidiary” in Article 1, Rule 1-02 of Regulation S-X under the Exchange Act (but with all references to “10%” therein being deemed to refer to “15%”).
“Subsidiary” means, as of the relevant date of determination, with respect to any Person (the “subject entity”), (i) any Person (x) more than fifty percent (50%) of whose shares or other interests entitled to vote in the election of directors or (y) more than fifty percent (50%) interest in the profits or capital of such Person are owned or controlled directly or indirectly by the subject entity or through one or more Subsidiaries of the subject entity, (ii) any Person, including for the avoidance of doubt any “variable interest entity,” whose financial statements, or portions thereof, are or are intended to be consolidated with the financial statements of the subject entity for financial reporting purposes in accordance with GAAP or (iii) any Person with respect to which the subject entity has the sole power to control or otherwise direct the business and policies of that entity directly or indirectly through another subsidiary or otherwise.
“Successor Company” has the meaning ascribed to this term in Section 7.1(a).
“U.S.” means the United States of America.
“US$” means the United States dollar, the lawful currency of the United States of America.
ARTICLE 2
INTEREST; PAYMENTS; DEFAULTS
2.1 Interest Rate. The principal amount outstanding under the Note shall bear interest which shall accrue at a simple rate of 8% per annum until maturity or such earlier or later time as the principal becomes due and payable hereunder. Interest on the Note shall accrue from the date on which the Note is issued (the “Note Issuance Date”) and be payable on the Maturity Date. Accrued interest on the Note shall be computed on the basis of the actual number of days elapsed and a year of 365 days.
2.2 Payment. All amounts payable on or in respect of the Note or the indebtedness evidenced hereby shall be paid to the Holder in US$, in immediately available funds on the date that any principal or interest is due and payable hereunder. The Company shall make such payments of the due and unpaid principal amount of the Note, together with accrued and unpaid interest thereon, on each such date to the Holder by wire transfer of immediately available funds for the account of the Holder as the Holder may designate from time to time and notify in writing to the Company at least three Business Days prior to each payment date. If any such payment date or the Maturity Date falls on a day that is not a Business Day, the required payment will be made on the next succeeding Business Day and no interest on such payment will accrue in respect of the delay. In no event may the Company make any prepayment of any principal or interest due hereunder prior to the respective dates on which such principal or interest is due and payable without the prior written consent of the Holder.
2.3 Seniority. The Note ranks junior in right of payment to any of the Company’s current and future indebtedness, whether or not such indebtedness is secured.
2.4 Events of Default. For purposes of the Note, an “Event of Default” shall be deemed to have occurred if any of the following events occur, whatever the reason or cause for such Event of Default and whether it is voluntary or involuntary or is effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any Governmental Authority or otherwise:
(a) Breach of Conversion Obligation. The Company fails to comply with its obligation to convert all or a portion of the Note in accordance with Article 3 upon Holder’s exercise of its conversion rights and such failure continues for, or such conversion is not rescinded within, a period of five Business Days.
(b) Breach of Other Obligations. The Company fails for 60 calendar days after written notice from the Majority Holders has been received by the Company to comply with any of its other agreements expressly set forth in the Note.
4
2.5 Consequences of Event of Default.
(a) If one or more Events of Default shall have occurred and be continuing, unless the principal of the Note shall have already become due and payable, the Majority Holders may by notice in writing to the Company, declare 100% of the outstanding principal of, and accrued and unpaid interest on, the Note to be due and payable immediately, and upon any such declaration the same shall become and shall automatically be immediately due and payable.
(b) If (1) rescission would not conflict with any arbitral award (or if applicable, any judgment or decree of a court of competent jurisdiction) and (2) any and all existing Events of Default under the Note, other than the nonpayment of the principal of and accrued and unpaid interest on the Note that shall have become due solely by such acceleration, shall have been cured or waived (or are waived concurrently with the rescission or annulment), then the Majority Holders, by written notice to the Company, may waive all defaults or Events of Default with respect to the Note and rescind and annul such declaration and its consequences and such defaults shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of the Note; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent Event of Default, nor shall such waiver or rescission impair any right consequent thereon.
ARTICLE 3
CONVERSION
3.1 Conversion by Holder. The principal and unpaid accrued interest on each Note will convert at the Purchaser’s option (a “Optional Conversion”), on or before the Maturity Date and while such Note remains outstanding, into shares (the “Conversion Shares”) of the Company’s Class B Ordinary Shares, at the then applicable Conversion Price. At the Optional Conversion, the Holder shall also receive, for each one Conversion Share, one warrant (a “Conversion Warrant”) to purchase one Class B Ordinary Share at an exercise price equal to the Conversion Price, with an option for cashless exercise of the Conversion Warrant.
3.2 Conversion Price. Subject to adjustments as provided in Article 4, the price per share of Conversion Shares equal to the higher of (i) 75% of the lowest volume-weighted average price (VWAP) of the Class B Ordinary Shares trading on the NASDAQ Stock Market during the ten (10) latest consecutive Business Days preceding the Optional Conversion, and (ii) $0.6 per Class B Ordinary Share.
3.3 Conversion Procedure; Settlement Upon Conversion.
(a) Subject to Section 3.3(c), this Note shall be converted at the Close of Business ten (10) Business Days from the date that the Holder delivers a duly completed irrevocable written notice (the “Conversion Notice”) and the Note for cancellation to the Company according to Section 3.1. After the receipt of the Note and the Conversion Notice, the Company shall (i) take all actions and execute all documents necessary to effect the issuance of the full number of Conversion Shares and Conversion Warrants to which the Holder shall be entitled in satisfaction of any conversion pursuant to this Section 3, (ii) deliver to the Holder the Conversion Warrants and certificate(s) or book records representing the Conversion Shares and (iii) subject to Section 3.3(c), cancel the Note. For the avoidance of doubt, the Holder only has one chance for the Note conversion.
(b) The Company shall not issue any fractional Class B Ordinary Share upon conversion of the Note and shall instead pay cash in lieu of any fractional Class B Ordinary Share deliverable upon conversion based on the Conversion Price.
(c) If the Holder submits the Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due on the delivery of the Class B Ordinary Share upon such conversion of the Note, unless the tax is due because the Holder requests such Class B Ordinary Share to be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax.
(d) Except as provided in Section 4.2, no adjustment shall be made for dividends on any Class B Ordinary Share delivered upon any conversion of this Note as provided in this Article 3.
5
ARTICLE 4
ADJUSTMENTS
4.1 Intentionally Omitted.
4.2 Effect of Recapitalizations, Reclassifications and Changes of the Class B Ordinary Share.
(a) In the case of:
(i) any recapitalization, reclassification or change of the Class B Ordinary Share (other than changes resulting from a subdivision or combination),
(ii) any consolidation, merger, combination or similar transaction involving the Company,
(iii) any sale, lease or other transfer to a third party of all or substantially all of the consolidated assets of the Company and the Company’s Subsidiaries; or
(iv) any statutory share exchange,
in each case, as a result of which the Class B Ordinary Share would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute an amendment to this Note providing that, at and after the effective time of such Merger Event, the right to convert the Note shall be changed into a right to convert the Note into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of Class B Ordinary Share equal to the quotient of the Note amount divided by the applicable Conversion Price immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the kind and amount of Reference Property that a holder of one Class B Ordinary Share is entitled to receive) upon such Merger Event; provided, however, that at and after the effective time of the Merger Event the number of Class B Ordinary Share otherwise deliverable upon any conversion of the Note in accordance with Article 3 shall instead be deliverable in the amount and type of Reference Property that a holder of that number of Class B Ordinary Share would have been entitled to receive in such Merger Event.
If the Merger Event causes the Class B Ordinary Share to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of holder election), then (i) (A) the Reference Property into which the Note will be convertible shall be deemed to be the weighted average of the types and amounts of consideration received by the holders of Class B Ordinary Share that affirmatively make such an election or (B) if no such holders affirmatively make such an election, the types and amounts of consideration actually received by such holders, and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clause (i) attributable to one Class B Ordinary Share. The Company shall provide written notice to the Holder of such weighted average as soon as practicable after such determination is made.
Such amendment described in the second immediately preceding paragraph shall provide for adjustments that shall be as nearly equivalent as is practicable to the adjustments provided for in this Article 4 (it being understood that no such adjustments shall be required with respect to any portion of the Reference Property that does not consist of shares of Common Equity (however evidenced) or depositary receipts in respect thereof). If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the Company or the successor or purchasing Person, as the case may be, in such Merger Event, then such other Person shall also execute such amendment, and such amendment shall contain such additional provisions to protect the interests of the Holder as the Board of Directors shall reasonably consider necessary by reason of the foregoing.
(b) None of the foregoing provisions shall affect the right of the Holder to convert this Note into Class B Ordinary Share as set forth in Article 3 prior to the effective date of such Merger Event.
(c) The above provisions of this Section 4.2 shall similarly apply to successive Merger Events.
4.3 Certain Covenants.
(a) The Company covenants that all Class B Ordinary Share delivered upon any conversion of this Note will be fully paid and non-assessable by the Company and free from all liens and charges with respect to the issue thereof.
(b) The Company covenants that if any Class B Ordinary Share to be provided for the purpose of any conversion of this Note require approval of any Governmental Authority under any Law before such Class B Ordinary Share may be validly issued upon conversion, the Company will, to the extent then permitted by applicable Law, secure such approval, as the case may be.
(c) The parties hereto acknowledge and agree that the Holder may only resell the Note, the Class B Ordinary Share delivered upon conversion of all or any portion of the Note or any such Class B Ordinary Share pursuant to an effective registration statement or an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and other applicable securities Laws.
6
4.4 Notice for Certain Actions. In case of any (a) Merger Event or (b) voluntary or involuntary dissolution, liquidation or winding-up of the Company, then, in each case (unless notice of such event is otherwise required pursuant to another provision of this Note), the Company shall deliver a notice to the Holder, as promptly as possible but in any event at least 20 calendar days prior to the applicable date hereinafter specified, stating (i) the date on which a record is to be taken for the purpose of such action by the Company or, if a record is not to be taken, the date as of which the holders of Class B Ordinary Share, as the case may be, of record are to be determined for the purposes of such action by the Company, or (ii) the date on which such Merger Event, dissolution, liquidation or winding-up is expected to become effective or occur, and the date as of which it is expected that holders of Class B Ordinary Share, as the case may be, of record shall be entitled to exchange their Class B Ordinary Share, as the case may be, for securities or other property deliverable upon such Merger Event, dissolution, liquidation or winding-up. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such action by the Company or one of its Subsidiaries, Merger Event, dissolution, liquidation or winding-up.
ARTICLE 5.
REDEMPTION
The Company may redeem, or prepay the principal or accrued interest of the Notes, only under written approval by the Holder.
ARTCLE 6
COVENANTS
6.1 Payment of Principal and Interest. The Company covenants and agrees that it will cause to be paid the principal of, and accrued and unpaid interest on, this Note at the respective times and in the manner provided herein.
6.2 Existence. The Company shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence.
6.3 No Withholding. All payments and deliveries made by, or on behalf of, the Company or any successor to the Company under or with respect to the Note, including, but not limited to, payments of principal, payments of interest and deliveries of Class B Ordinary Share (together with any cash payment in lieu of any fractional Class B Ordinary Share) upon conversion of the Note, shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or within any jurisdiction in which the Company or any successor to the Company is, for tax purposes, organized or resident or doing business or through which payment is made or deemed made (or any political subdivision or taxing authority thereof or therein), unless such withholding or deduction is required by Law or by regulation or governmental policy having the force of Law.
ARTICLE 7
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
7.1 Company May Consolidate, Etc. on Certain Terms. Subject to the provisions of Section 7.2, the Company shall not consolidate with, or merge with or into, or sell, convey, transfer or lease all or substantially all of its properties and assets to any other Person, unless:
(a) either (i) the resulting, surviving or transferee Person (the “Successor Company”) shall be the Company or (ii) the Successor Company (if not the Company) shall expressly assume all of the obligations of the Company under this Note; and
(b) immediately after giving effect to such transaction, no default or Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing under this Note.
For purposes of this Section 7.1, the sale, conveyance, transfer or lease of all or substantially all of the properties and assets of one or more Subsidiaries of the Company to another Person, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company and its Subsidiaries on a consolidated basis, shall be deemed to be the sale, conveyance, transfer or lease of all or substantially all of the properties and assets of the Company to another Person.
7
7.2 Successor Corporation to Be Substituted. In case of any such consolidation, merger, sale, conveyance, transfer or lease and upon the assumption by the Successor Company of the due and punctual payment of the principal of and accrued and unpaid interest on the Note, the due and punctual delivery or payment, as the case may be, of any consideration due upon conversion of the Note and the due and punctual performance of all of the covenants and conditions of this Note to be performed by the Company, such Successor Company (if not the Company) shall succeed to and, except in the case of a lease of all or substantially all of the Company’s properties and assets, shall be substituted for the Company, with the same effect as if it had been named herein as the party of the first part. Such Successor Company thereupon may cause the Note to be signed and re-issued in its own name. The Note as so re-issued shall in all respects have the same legal rank and benefit as though it had been issued at the date of the execution hereof. In the event of any such consolidation, merger, sale, conveyance or transfer (but not in the case of a lease), upon compliance with this Article 7 the Person named as the “Company” in the first paragraph of this Note (or any successor that shall thereafter have become such in the manner prescribed in this Article 7) may be dissolved, wound up and liquidated at any time thereafter and, except in the case of a lease, such Person shall be released from its liabilities as obligor and maker of this Note and from its obligations under this Note.
In case of any such consolidation, merger, sale, conveyance, transfer or lease, such changes in phraseology and form (but not in substance) may be made in the Note thereafter to be re-issued as may be appropriate.
ARTICLE 8
NO RIGHTS AS SHAREHOLDER PRIOR TO CONVERSION
For the avoidance of doubt, the Holder hereby acknowledges and agrees that it has not been conferred with any of the rights of a shareholder of the Company, including the right to vote as such, by any of the provisions hereof or any right (a) to vote for the election of directors or upon any matter submitted to shareholders at any meeting thereof, (b) to give or withhold consent to any corporate action (whether upon any recapitalization, issuance of shares, reclassification of shares, change of par value, or change of shares to no par value, consolidation, merger, scheme of arrangement, conveyance, or otherwise), (c) to receive notice of meetings or to receive in-kind dividends or subscription rights or otherwise until the Note shall have been converted and Class B Ordinary Share issuable upon the conversion hereof shall have been issued, as provided for in the Note.
ARTICLE 9
CANCELLATION
After all amounts at any time owing on the Note have been paid in full or upon the conversion of the Note in full pursuant to Article 3, the Note shall be surrendered to the Company for cancellation and shall not be reissued.
ARTICLE 10
MISCELLANEOUS
10.1 Termination of Rights. All rights under this Note shall terminate when (a) all amounts at any time owing on this Note have been paid in full or (b) the Note is converted pursuant to the terms set forth in Article 3.
10.2 Amendments and Waivers; Notice. The amendment or waiver of any term of the Note shall be subject to the written consent of the Majority Holders and the Company. The provision of notice shall be made pursuant to the terms of the Purchase Agreement.
10.3 Transferability.
(a) The Note and the Class B Ordinary Share issuable upon conversion of the Note may only be disposed of pursuant to an effective registration statement under, and in compliance with the requirements of, the Securities Act, or pursuant to an available exemption from the registration requirements of the Securities Act, and in compliance with any other applicable securities Laws.
(b) The Holder shall not, at any time during the first six (6) months of the term of the Note, directly or indirectly, (i) offer, sell, pledge, transfer, assign or otherwise dispose of all or any part of the Note, any Conversion Shares, any Class B Ordinary Share, or other securities of the Company (collectively, “Lock-Up Securities”) to any third party, (ii) enter into any swap, short sale or any other arrangement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of any Lock-Up Securities, (iii) enter into any agreement with respect to any of the foregoing, or (iv) publicly disclose the intention to effect any of the foregoing, without, in each case, the prior written consent of the Company.
(c) The Holder agrees to the imprinting, until no longer required hereby, of a legend on any certificate evidencing any Class B Ordinary Share issuable upon conversion of the Note to the following effect:
8
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED EXCEPT PURSUANT TO REGISTRATION UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION. HEDGING TRANSACTIONS INVOLVING THE SECURITIES REPRESENTED HEREBY MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT. THIS CERTIFICATE MUST BE SURRENDERED TO THE COMPANY OR ITS TRANSFER AGENT AS A CONDITION PRECEDENT TO THE SALE, PLEDGE, HYPOTHECATION OR ANY OTHER TRANSFER OF ANY INTEREST IN ANY OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE.
10.4 Governing Law; Dispute Resolution.
(a) This Note shall be governed by and construed in accordance with the laws of the State of New York, without regard to the principles of conflict of laws.
(b) Any dispute, controversy, difference or claim arising out of or relating to this Note, including its existence, validity, interpretation, performance, breach or termination or any dispute regarding non-contractual obligations arising out of or relating to it, shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (“HKIAC”) under the HKIAC Administered Arbitration Rules (the “HKIAC Rules”) in force when the notice of arbitration is submitted. The law of this arbitration clause shall be Hong Kong law. The seat of arbitration shall be Hong Kong. The arbitration tribunal shall consist of one arbitrator to be appointed in accordance with the HKIAC Rules. Any party may apply for a preservation order or seek other interim or injunctive relief, and judgment upon an award rendered in arbitration proceedings under this Note may be applied for and entered, in each case in any court of competent jurisdiction.
10.5 Delays or Omissions. No delay or failure by any party to insist on the strict performance of any provision of the Note, or to exercise any power, right or remedy, will be deemed a waiver or impairment of such performance, power, right or remedy or of any other provision of the Note, nor shall it be construed to be a waiver of any breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring.
10.6 Interpretation. If any claim is made by a party relating to any conflict, omission or ambiguity in the provisions of the Note, no presumption or burden of proof or persuasion will be implied because the Note was prepared by or at the request of any party or its counsel.
10.7 Provisions Binding on Company’s Successors. All the covenants, stipulations, promises and agreements of the Company contained in this Note shall bind its successors and assigns whether so expressed or not.
10.8 Official Acts by Successor Corporation. Any act or proceeding by any provision of this Note authorized or required to be done or performed by any board, committee or officer of the Company shall and may be done and performed with like force and effect by the like board, committee or officer of any corporation or other entity that shall at the time be the lawful sole successor of the Company.
10.9 Force Majeure. In no event shall the Company be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Company shall use reasonable efforts to resume performance as soon as practicable under the circumstances.
[The remainder of this page has been deliberately left blank]
9
IN WITNESS WHEREOF, the Company has caused the Note to be issued on the date first above written.
| COMPANY: | ||
| Able View Global Inc. | ||
| By: | ||
| (Signature) | ||
| Name: | ||
| Title: | ||
[Signature Page to Convertible Note]
10
Exhibit 99.3
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR IN ACCORDANCE WITH AN EXEMPTION FROM REGISTRATION UNDER THAT ACT.
WARRANT TO PURCHASE
CLASS B ORDINARY SHARES OF
ABLE VIEW GLOBAL INC.
This certifies that [investor’s name] , or any party to whom this Warrant is assigned in accordance with its terms (the “Holder”), is entitled to subscribe for and purchase a certain number of the Class B Ordinary Shares of Able View Global Inc., a Cayman Islands exempted company (the “Company”), on the terms and conditions of this Warrant, in accordance with and as partial consideration for that certain Convertible Note Purchase Agreement (the “Agreement”), dated [ ] , 2024, entered into by and between the Holder and the Company, including the convertible note (the “Note”) attached as Exhibit A to the Agreement. Capitalized terms not defined herein have the meanings as such terms are defined in the Note. The number of Class B Ordinary Shares this Warrant entitles the Holder to purchase is as described in Article 3 of the Note.
1. Definitions. As used in this Warrant, the term:
1.1 “Conversion Price” has the meaning as the term is defined in the Note.
1.2 “Effective Date” means the date of the Optional Conversion.
1.3 “Expiration Date” means the date twelve (12) months after the Effective Date.
1.4 “1933 Act” means the Securities Act of 1933, as amended.
1.5 “Optional Conversion” has the meaning as the term is defined in the Note.
1.6 “Warrant” means this Warrant and any warrants delivered in substitution or exchange for this Warrant in accordance with the provisions of this Warrant.
1.7 “Warrant Price” means a price equal to the Conversion Price per Class B Ordinary Share.
2. Exercise of Warrant.
(a) At any time before the Expiration Date, the Holder may exercise the purchase rights represented by this Warrant, in whole or in part, by surrendering this Warrant (with a duly executed subscription in the form attached) at the Company’s principal corporate office (on the date hereof at the location specified in Section 10 of this Warrant) and by paying the Company, by check payable to the Company, the aggregate Warrant Price for the Class B Ordinary Shares being purchased.
(b) In lieu of exercising this Warrant pursuant to Section 1(a) above, the Holder may elect to exercise this Warrant on a “cashless” basis and to receive, without the payment by the Holder of any additional consideration, Class B Ordinary Shares equal to the value of this Warrant (or the portion thereof being cancelled) by surrender of this Warrant at the principal office of the Company (together with a duly executed subscription in the form attached), in which event the Company shall issue to the Holder hereof a number of Class B Ordinary Shares computed using the following formula:
X = Y (A-B)
A
Where: X = The number of Class B Ordinary Shares to be issued to the Holder pursuant to this net exercise;
Y = The number of Class B Ordinary Shares in respect of which the net issue election is made;
A = The fair market value of one share of the Class B Ordinary Share at the time the net issue election is made;
B = The Warrant Price (as adjusted to the date of the net issuance).
For purposes of this Warrant, the “fair market value” of one share of Class B Ordinary Share as of a particular date shall be determined as the first of the following that applies: (i) if traded on a securities exchange such as the Nasdaq Capital Market or through an interdealer quotation system such as the OTC Bulletin Board or the OTC Markets (or any successor thereto), the fair market value shall be deemed to be the average of the closing sale prices of the Class B Ordinary Share on such exchange or quotation system over the ten (10) day period ending three (3) days prior to such particular date; (ii) if not traded on such an exchange or quotation system, the fair market value of the Class B Ordinary Share shall be the value as determined in good faith by the Board of Directors of the Company.
2.1 Delivery of Certificates. Within three (3) days after each exercise of the purchase rights represented by this Warrant, the Company shall deliver a certificate for the Class B Ordinary Shares so purchased to the Holder and, unless this Warrant has been fully exercised or expired, a new Warrant representing the balance of the Class B Ordinary Shares subject to this Warrant.
2.2 Effect of Exercise. The person entitled to receive the Class B Ordinary Shares issuable upon any exercise of the purchase rights represented by this Warrant shall be treated for all purposes as the holder of such shares of record as of the close of business on the date of exercise.
2.3 Issue Taxes. The Company shall pay all issue and other taxes that may be payable in respect of any issue or delivery to the Holder of Class B Ordinary Shares upon exercise of this Warrant.
3. Stock Fully Paid; Reservation of Shares. The Company covenants and agrees that all securities that it may issue upon the exercise of the rights represented by this Warrant will, upon issuance, be fully paid and nonassessable and free from all taxes, liens and charges. The Company further covenants and agrees that, during the period within which the Holder may exercise the rights represented by this Warrant, the Company shall at all times have authorized and reserved for issuance enough shares of its Class B Ordinary Shares or other securities for the full exercise of the rights represented by this Warrant. The Company shall not, by an amendment to its Articles of Association or through reorganization, consolidation, merger, dissolution, issue or sale of securities, sale of assets or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant.
2
4. Adjustments. The Warrant Price and the number of Class B Ordinary Shares that the Company must issue upon exercise of this Warrant shall be subject to adjustment in accordance with Sections 4.1 through 4.3.
4.1 Adjustment to Warrant Price for Combinations or Subdivisions of Class B Ordinary Shares. If the Company at any time or from time to time after the date on which the Warrant Price is fixed at a set amount in U.S. dollars (1) declares or pays, without consideration, any dividend on the Class B Ordinary Shares payable in Class B Ordinary Shares; (2) creates any right to acquire Class B Ordinary Shares for no consideration; (3) subdivides the outstanding Class B Ordinary Shares (by stock split, reclassification or otherwise); or (4) combines or consolidates the outstanding Class B Ordinary Shares, by reclassification or otherwise, into a lesser number of Class B Ordinary Shares, the Company shall proportionately increase or decrease the Warrant Price, as appropriate.
4.2 Adjustments for Reclassification and Reorganization. If the Class B Ordinary Shares issuable upon exercise of this Warrant changes into shares of any other class or classes of security or into any other property for any reason other than a subdivision or combination of shares provided for in Section 4.1, including without limitation any reorganization, reclassification, merger or consolidation, the Company shall take all steps necessary to give the Holder the right, by exercising this Warrant, to purchase the kind and amount of securities or other property receivable upon any such change by the owner of the number of Class B Ordinary Shares subject to this Warrant immediately before the change.
4.3 Spin Offs. If the Company spins off any subsidiary by distributing to the Company’s shareholders as a dividend or otherwise any stock or other securities of the subsidiary, the Company shall reserve until the Expiration Date enough of such shares or other securities for delivery to the Holders upon any exercise of the rights represented by this Warrant to the same extent as if the Holders owned of record all Class B Ordinary Shares or other securities subject to this Warrant on the record date for the distribution of the subsidiary’s shares or other securities.
4.4 Certificates as to Adjustments. Upon each adjustment or readjustment required by this Section 4, the Company at its expense shall promptly compute such adjustment or readjustment in accordance with this Section, cause independent public accountants selected by the Company to verify such computation and prepare and furnish to the Holder a certificate setting forth such adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based.
5. Fractional Shares. The Company shall not issue any fractional shares in connection with any exercise of this Warrant. If any fraction of a share would be issuable on the exercise of this Warrant (or specified portions thereof), the Company shall, at its election, either purchase such fraction for an amount in cash equal to the same fraction of the Warrant Price of such share of Class B Ordinary Shares on the date of exercise of this Warrant or round such fraction of a share up to one whole share.
6. Intentionally Omitted.
7. Transfer and Exchange.
7.1 Transfer. Subject to Section 7.3, the Holder may transfer all or part of this Warrant at any time on the books of the Company at its principal office upon surrender of this Warrant, properly endorsed. Upon such surrender, the Company shall issue and deliver to the transferee a new Warrant or Warrants representing the Warrants so transferred. Upon any partial transfer, the Company shall issue and deliver to the Holder a new Warrant or Warrants with respect to the Warrants not so transferred.
3
7.2 Exchange. The Holder may exchange this Warrant at any time at the principal office of the Company for Warrants in such denominations as the Holder may designate in writing. No such exchanges will increase the total number of Class B Ordinary Shares or other securities that are subject to this Warrant.
7.3 Securities Act of 1933. By accepting this Warrant, the Holder agrees that this Warrant and the shares of the Class B Ordinary Shares issuable upon exercise of this Warrant may not be offered or sold except in compliance with the 1933 Act, and then only with the recipient’s agreement to comply with this Section 7 with respect to any resale or other disposition of such securities. The Company may make a notation on its records in order to implement such restriction on transferability.
8. Loss or Mutilation. Upon the Company’s receipt of reasonably satisfactory evidence of the ownership and the loss, theft, destruction or mutilation of this Warrant and (in the case of loss, theft or destruction) of a reasonably satisfactory indemnity or (in the case of mutilation) upon surrender and cancellation of this Warrant, the Company shall execute and deliver a new Warrant to the Holder.
9. Successors. All the covenants and provisions of this Warrant shall bind and inure to the benefit of the Holder and the Company and their respective successors and assigns.
10. Notices. All notices and other communications given pursuant to this Warrant shall be in writing and shall be deemed to have been given when personally delivered or when mailed by prepaid registered, certified or express mail, return receipt requested. Notices should be addressed as follows:
(a) If to Holder, then to the address of the Holder on file in the books and records of the Company.
(b) If to the Company, then to:
Able View Global Inc.
Room 1802, Shanghai International Building
511 Weihai Road, Jing’an District, Shanghai, China
Tel: +86 185 0177 0425
| Attention: | Jing Tang | |
Chief Financial Officer |
Such addresses for notices may be changed by any party by notice to the other party pursuant to this Section 10.
11. Amendment. This Warrant may be amended only by an instrument in writing signed by the Company and the Holder.
12. Construction of Warrant. This Warrant shall be construed as a whole and in accordance with its fair meaning. A reference in this Warrant to any section shall be deemed to include a reference to every section the number of which begins with the number of the section to which reference is made. This Warrant has been negotiated by both parties and its language shall not be construed for or against any party.
13. Law Governing. This Warrant is executed, delivered and to be performed in the State of New York and shall be construed and enforced in accordance with and governed by the New York law without regard to any conflicts of law or choice of forum provisions.
4
Dated as of [ ] , 2024
| ABLE VIEW GLOBAL INC. | ||
| By: | ||
| Name: | Jing Tang | |
| Title: | Chief Financial Officer | |
5
SUBSCRIPTION FORM
(To be executed only upon exercise of Warrant)
The undersigned Holder hereby irrevocably elects to exercise the attached Warrant and to purchase ____________ Class B Ordinary Shares of Able View Global Inc. issuable upon the exercisable of such Warrant and requests that certificates for such Class B Ordinary Shares be issued in the name of:
_________________________________
(Please type or print name and address)
_________________________________
_________________________________
_________________________________
(Social Security or Taxpayer I.D. No.)
and delivered to ___________________________________________________________________________________
________________________________________________________________________________________________
(Please type or print name and address)
and, if such number of Class B Ordinary Shares shall not be all the Class B Ordinary Shares evidenced by such Warrant, that a new Warrant for the balance of such Class B Ordinary Shares shall be registered in the name of, and delivered to, the Holder at the address stated below. Capitalized terms used and not defined herein shall have the respective meaning ascribed to them in the attached Warrant.
In full payment of the purchase price with respect to the Class B Ordinary Shares exercised, the undersigned hereby [tenders payment of $ ________ by check payable in United States currency to the order of Able View Global Inc. pursuant to Section 2(a) of the attached Warrant][exercises the attached Warrant with respect to _____ Class B Ordinary Shares via means of cashless exercise pursuant to Section 2(b) of the attached Warrant and instructs the Company to issue _____ Class B Ordinary Shares to the Holder.]
| Dated: | |||
| (Address) | |||
| (Social Security or Taxpayer I.D. No.) | |||
ISSUE OF A NEW WARRANT
(To be executed only upon partial exercise,
exchange, or partial transfer of Warrant)
Please issue ____Warrants, each representing the right to purchase ____Class B Ordinary Shares of Able View Global Inc. to the registered holder.
Dated:
| (Signature of Registered Holder) |
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned registered Holder of this Warrant sells, assigns and transfers unto the Assignee named below all of the rights of the undersigned under the Warrant, with respect to the number of Class B Ordinary Shares set forth below (the “Transfer”):
| Name of Assignee | Address | No. of Shares | ||
The undersigned irrevocably constitutes and appoints____________ as the undersigned’s attorney-in-fact, with full power of substitution, to make the transfer on the books of Able View Global Inc.
Dated:
| (Signature) |