Blue Gold Ltd 6-K, filed Sep 24, 2026
Blue Gold Ltd (BGL)
About this 6-K
Blue Gold Ltd filed this 6-K on September 24, 2026.
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 2026
Commission File Number 001-42717
Blue Gold Limited
(Translation of registrant’s name into English)
94 Solaris Avenue
Camana Bay
PO Box 1348
Grand Cayman KY1-1108
Cayman Islands
(Address of principal executive offices)
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 ☐
INFORMATION CONTAINED IN THIS REPORT
Change in Directors and Executive Officers
On September 21, 2026, Blue Gold Limited (the “Company”) issued a press release announcing certain leadership, governance and related financial and accounting service changes. The press release is furnished as Exhibit 99.1 to this report on Form 6-K. The following summary is qualified in its entirety by reference to the full text of the press release attached hereto as Exhibit 99.1.
Appointment of Kevin Clark as Executive Chairman
Effective September 17, 2026, Kevin Clark was appointed Executive Chairman of the Board of Directors of the Company, succeeding Andrew Cavaghan. As Executive Chairman, Mr. Clark will provide strategic leadership for the Company and will work closely with the Board and management to execute on the Company’s key priorities.
Kevin Clark, age 56. Mr. Clark has served as Executive Chairman of the Board of Directors of Blue Gold Limited since September 17, 2026. Mr. Clark is a patent attorney, admitted to practice in the State of California and registered to practice before the United States Patent and Trademark Office, and currently maintains his own intellectual property law practice. Until September 14, 2026, Mr. Clark served as a director of Blue International Holdings Limited, an international holding company, and certain of its subsidiaries, including Future Global Resources Limited. Previously, Mr. Clark was a founding partner of Silicon Edge Law Group LLP, a law firm. He also served as a principal at Integrity Partners, an early-stage investment firm and early investor in Baidu, where he evaluated investment opportunities and advised portfolio companies on strategy, fundraising, and mergers and acquisitions. Earlier in his career, Mr. Clark served as a patent agent, where he focused on patent prosecution and licensing. Prior to that, Mr. Clark was an engineer at Qualcomm, Inc., a wireless technology company, where he designed integrated circuits for satellite and cellular wireless applications and led teams designing code division multiple access (CDMA) chips for second- and third-generation cellular systems. Mr. Clark currently serves as Executive Chairman of the Board of Directors of Blue Gold Limited. Within the last five years, Mr. Clark also served as a director of Blue International Holdings Limited and certain of its subsidiaries, including Future Global Resources Limited, until September 14, 2026. Mr. Clark holds a B.S. with honors in Electrical Engineering and Computer Science from the University of California, Berkeley, a Master's degree in Electrical and Computer Engineering from the University of California, San Diego, and a J.D. from Stanford Law School, where he graduated Order of the Coif.
There are no arrangements or understandings between Mr. Clark and any other person pursuant to which Mr. Clark was selected as Executive Chairman of the Board. There are no transactions between the Company and Mr. Clark that would be required to be reported under Item 7.B of Form 20-F.
Resignation of Andrew Cavaghan
Effective September 17, 2026, Andrew Cavaghan resigned as Chairman of the Board, Chief Executive Officer, and as a director of the Company. A copy of the transition and settlement agreement between the Company and Mr. Cavaghan is filed as an exhibit to this report and incorporated herein by reference (the “Transition and Settlement Agreement”). Mr. Cavaghan’s resignation was not the result of any disagreement with the Company on any matter relating to the Company’s operations, policies, or practices.
Appointment of Gary Herman as Non-Executive Director and Audit Committee Chairman
Effective September 17, 2026, Gary Herman was appointed as a non-executive director of the Company and Audit Committee Chairman, replacing Tao Tan.
Gary Herman, Director, age 62. is a seasoned investor, capital-markets strategist, and entrepreneur with more than three decades of investment, operational, restructuring, and corporate-governance experience across public and private companies. He currently serves as Chief Operating Officer of Galloway Capital Partners, LLC, an investment firm. Previously, Mr. Herman was affiliated with Arcadia Securities, LLC (2005-2020), a New York-based firm, where he co-managed Strategic Turnaround Equity Partners, LP (Cayman) and its affiliated entities. During that period, he also co-managed Abacoa Capital Master Fund, Ltd., a global macro-focused investment fund. Earlier in his career, he was an investment banker with Burnham Securities, Inc. Mr. Herman currently serves on the boards of DataMEDS AI, Inc. (Nasdaq: MEDS), SusGlobal Energy Corp. (OTCQB: SNRG), Flash Sports & Media Holdings, Inc. (OTCPK: FLZH), and Advent Technologies Holdings, Inc. In addition, he has been a board member of: SRM Entertainment, Inc. (n/k/a Tron, Inc.)(2023-2025), LQR House, Inc. (2023-2024), Jupiter Wellness, Inc. (2022-2024), Siyata Mobile, Inc. (2023-2025) and XS Financial, Inc. (2020-2024). Mr. Herman earned a B.S. in Political Science from the University at Albany’s Rockefeller College of Public Affairs & Policy, with minors in Business and Music. He is a licensed commercial pilot with an instrument rating.
There are no arrangements or understandings between Mr. Herman and any other person pursuant to which Mr. Herman was selected as a non-executive director or Audit Committee Chairman. There are no transactions between the Company and Mr. Herman that would be required to be reported under Item 7.B of Form 20-F.
Departure of Tao Tan
Effective September 17, 2026, Tao Tan departed as a director of the Company and Audit Committee Chairman, and was replaced in such roles by Gary Herman. Mr. Tan’s departure was not the result of any disagreement with the Company on any matter relating to the Company’s operations, policies, or practices.
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Resignation of James Samuelson as Chief Financial Officer
Effective September 18, 2026, James Samuelson resigned as Chief Financial Officer of the Company. A copy of the transition agreement between the Company and Mr. Samuelson is filed as an exhibit to this report and incorporated herein by reference (the “Transition Agreement”). Mr. Samuelson’s resignation was not the result of any disagreement with the Company on any matter relating to the Company’s operations, policies, or practices.
Designation of Shah Nawaz as Chief Financial Officer
Effective September 17, 2026, the Company engaged EMS Consulting Services, LLC (“EMS”) to provide outsourced financial and accounting services to the Company. Shah Nawaz, a Chartered Accountant and employee of EMS, has been designated to serve as the Company’s Chief Financial Officer.
Shah Nawaz has served as our Chief Financial Officer since September 17, 2026. Mr. Nawaz, age 33, is a Chartered Accountant whose career spans more than a decade across public accounting, audit and financial reporting in India and the United States capital markets. He began in chartered accountancy practice in India in 2015, where over the following years he led and participated in statutory audits of companies, trusts and scheduled banks, completed tax audits, finalized financial statements for private companies and partnerships, performed valuations of private companies, and handled corporate and income tax compliance matters, qualifying as a Chartered Accountant with the Institute of Chartered Accountants of India in 2020. Building on that foundation, he turned to U.S. reporting in 2023 and has since advised U.S.-listed and SEC-registered companies on their financial reporting and SEC compliance, work ranging from registration statements on Forms S-1 and S-3 and periodic reports on Forms 10-K and 10-Q to Regulation A reports on Forms 1-K and 1-SA and financial statements prepared for SEDAR filings, and extending to conversions from IFRS and local GAAP to U.S. GAAP and the technical memoranda and audit-ready schedules that carry companies through their annual audits. Across those engagements he has addressed the accounting areas that most often draw scrutiny - leases, revenue recognition, income taxes, goodwill and intangibles, debt and equity instruments and business combinations - and has valued equity instruments and derivatives and maintained capitalization tables for his clients. Mr. Nawaz is currently pursuing the ACCA qualification.
EMS is led by its founder, Eric Sherb, a Certified Public Accountant with 19 years of experience in accounting, financial advisory, audit, and mergers and acquisitions, including extensive experience advising public companies on financial reporting, technical accounting and strategic finance.
Except with respect to the Company’s engagement of EMS, there are no arrangements or understandings between Mr. Nawaz and any other person pursuant to which Mr. Nawaz was designated as the Company’s certifying officer. There are no transactions between the Company and Mr. Nawaz that would be required to be reported under Item 7.B of Form 20-F.
Private Placement of Unsecured Promissory Note and Warrants
On August 28, 2026, the Company entered into a Securities Purchase Agreement (the “Purchase Agreement”) with certain accredited investors (the “Purchaser”), pursuant to which the Company issued and sold, in a private placement exempt from registration under Section 4(a)(2) of the Securities Act of 1933, as amended, and Rule 506(b) of Regulation D, (i) an unsecured promissory note in an original principal amount of up to $250,000 (the “Note”) and (ii) detachable ordinary share purchase warrants (the “Warrants” and, together with the Note, the “Securities”).
Closing was subject to customary conditions, including accuracy of representations and warranties, compliance with pre-closing covenants, absence of a material adverse effect, delivery of transaction documents, and no trading suspension or banking moratorium.
Note
The Note bears interest at 10% per annum, calculated on a 360/30 basis from issuance, with principal and accrued interest payable in cash on November 30, 2026. The Note is unsecured and rank pari passu with the Company’s other unsecured, unsubordinated indebtedness. Prepayment requires the applicable holder’s prior written consent. Events of default include nonpayment when due (subject to a three-business-day cure period), material covenant breaches (subject to a ten-business-day cure period), cross-defaults on indebtedness exceeding $1,000,000, bankruptcy or insolvency proceedings, and unsatisfied judgments exceeding $250,000. Upon an event of default, holders may accelerate all amounts due. The Note includes a most favored nation provision covering more favorable economic terms in subsequent debt or equity issuances before the Note is repaid in full and prohibit dividends, share repurchases and other debt repayments while an event of default continues.
Warrants
Each Purchaser received a Warrant to purchase Class A ordinary shares of the Company (“Ordinary Shares”) at an exercise price of $0.50 per share. The number of shares underlying each Warrant equals 50% of the Purchaser’s subscription amount divided by $0.50, subject to adjustment.
Release of Restricted Shares
On September 11, 2026, the board of directors (the “Board”) of the Company adopted unanimous written resolutions approving the release from lock-up of 3,683,749 remaining restricted shares of the Company (the “Restricted Shares”).
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Pursuant to Article 39 of the Company’s amended and restated memorandum and articles of association (the “Articles”), the Board resolved, in its sole a discretion, to release all remaining Restricted Shares from lock-up. The release applies to all holders of Restricted Shares and is unconditional. Effective on the date of the resolutions, the released shares were no longer subject to the lock-up provisions of Article 39 and, subject to the Articles, applicable law and other transfer restrictions, may be transferred in accordance with the Articles.
Amendment to Facility Agreement with Kaela Ritchie
On September 11, 2026, the Board adopted unanimous written resolutions approving an amendment (the “Amendment”) to the Facility Agreement dated May 5, 2026 (the “Facility Agreement”), by and between the Company and Kaela Ritchie (the “Lender”).
The Amendment, dated and effective September 11, 2026, replaces Section 2.2 of the Facility Agreement and gives the Lender the right, but not the obligation, to require, before maturity, conversion of all or any portion of the outstanding advance balance into Class A Ordinary Shares at $0.50 per share, subject to customary adjustments for stock splits, stock dividends, combinations, recapitalizations and similar transactions.
Amended and Restated Indemnification Agreement
On September 11, 2026, the Board adopted unanimous written resolutions approving an amended and restated form of indemnification agreement (the “Amended and Restated Indemnification Agreement”) to be entered into by the Company with its directors and officers.
The Amended and Restated Indemnification Agreement expands the indemnification and related protections available to the Company’s directors and officers. It provides for mandatory indemnification for expenses and other liabilities incurred in connection with their service to the Company, to the fullest extent permitted by the Company’s constitutional documents and applicable law, and for mandatory advancement of expenses subject to an undertaking to repay amounts advanced if the indemnitee is ultimately determined not to be entitled to indemnification. It also provides for indemnification relating to personal guarantees issued for the benefit of the Company or its subsidiaries and affiliates.
Cayman Islands Litigation
On July 28, 2025, RCF VII Sponsors LLC, the former sponsor of Perception Capital Corp. IV, and S&R Capital Ltd. (together, “Plaintiffs”) filed an originating summons against the Company in the Grand Court of the Cayman Islands (the “Court”). The originating summons was converted into a writ action and a statement of claim was subsequently filed by the Plaintiffs on October 6, 2025. Plaintiffs seek a declaration that certain Class A ordinary shares received in exchange for Perception shares are unrestricted shares, as such term is defined in the Company’s Memorandum and Articles of Association (the “Pending Action”). The Company believes this claim has no merit and intends to vigorously defend against it, including by way of appeal. This claim poses a reasonable possibility of loss to the Company, but the Company is unable to reasonably estimate an amount or range of reasonably possible loss at this time.
On August 29, 2025, the Company filed a Form 6-K to provide its notice and proxy statement related to the extraordinary general meeting of shareholders (the “EGM”) that was scheduled to be held on September 8, 2025. Subsequently, the Plaintiffs filed an application for an interim injunction with the Court (the “Injunction Proceeding”) to prevent the Company from holding such EGM. The Injunction Proceeding was brought before the Court ex parte by the Plaintiffs.
On September 5, 2025, the Court issued an interim injunction in favor of the Plaintiffs. On September 10, 2025, the Company filed a Form 6-K disclosing that the directors of the Company have determined to postpone the EGM indefinitely. Following a hearing on September 22 and 23, 2025, as noted above, the Court ordered the conversion of the originating summons proceedings to a writ action and gave directions for the exchange of full pleadings and further evidence, leading to a trial of preliminary issues which was heard on November 19 to 21, 2025. In addition, at this hearing, the Court also heard arguments from the parties in relation to whether to continue, discharge or vary the injunction. The Court delivered its reserved judgment on the three preliminary issues and the injunction on May 14, 2026.
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By order dated July 20, 2026, following a consequential hearing of preliminary issues, the Court determined that (i) on a proper construction of the Company’s Amended and Restated Memorandum and Articles of Association passed on June 10, 2025 and effective from June 24, 2025 (the “Articles”), all Class A Ordinary shares purportedly owned by the Plaintiffs in the Company are Unrestricted Shares, as defined in Article 2 of the Articles, and (ii) for the purpose of Article 30 of the Articles, the shareholders within the relevant class for the purpose of effecting the variation of the Articles set out in the Notice of Extraordinary General Meeting dated August 29, 2025 to add a new Article 39 (the “Affected Class”) comprises (a) all Unrestricted Shares owned at the relevant record date by persons who received those shares because they owned shares in Perception Capital Corp. IV that were not redeemable in the Business Combination, and (b) all Unrestricted Class A Ordinary Shares issued upon exercise of any warrants issued or assumed by the Company in the Business Combination.
The Court also determined that the Company did not obtain consent in writing of the holders of a majority of the issued shares in the Affected Class, as required by Article 30 of the Articles, before calling the EGM to vote on the resolution to insert a new Article 39. The Court ordered that, consequential on the declaration regarding the Plaintiffs’ shares, the Company shall take all steps within its power as issuer, including giving all necessary directions and instructions to Continental Stock Transfer & Trust Company, to remove any restrictions and/or restrictive legends affecting the Plaintiffs’ Class A Ordinary shares in the Company imposed or directed by the Company, any issuer or any transfer agent preventing them from being treated as Unrestricted Shares in the Company. The Court also ordered that the Company cannot validly proceed to a vote on the resolution to insert a new Article 39 into the Articles unless and until it has obtained written consent from the Affected Class.
The Court also continued the injunction granted on September 5, 2025 until the trial of the remaining aspects of the Plaintiffs’ claim and the Company’s counterclaim. The Court determined that the Company pay the Plaintiffs’ costs of and occasioned by the trial of the preliminary issues, to be taxed forthwith on the standard basis if not agreed, and to make a payment on account of such costs in the sum of US $100,000 within 14 days following the issuance of a formal order on July 20, 2026. Such sum has since been paid. The costs of the application for and to continue the injunction are reserved. The remaining aspects of the Plaintiffs’ claim and the Company’s counterclaim remain pending.
On July 31, 2026, the Company filed a Notice of Appeal with the Cayman Islands Court of Appeal seeking to appeal the determination of the Court concerning the status of the Plaintiffs’ shares and in particular those shares which are subject of the Company’s counterclaim. The Company is currently awaiting further written reasons for the decision relating to the July 20, 2026 order. On the same date, the Company also filed an application with the Court seeking to stay the July 20, 2026 order pending determination of the appeal and seeking leave to appeal certain provisions of the July 20, 2026 order. The parties have exchanged evidence concerning the stay application.
The foregoing descriptions of the Purchase Agreement, Note, Warrants, Amendment to the Facility Agreement, the Amended and Restated Indemnification Agreement do not purport to be complete and are qualified in their entirety by reference to the full text of the Purchase Agreement, Note, Warrants, Amendment to the Facility Agreement, and the Amended and Restated Indemnification Agreement, copies of which are filed as exhibits to this report and incorporated herein by reference.
Payment Deferral Pursuant to Convertible Note with 3i, LP
Pursuant to a convertible note dated September 3, 2025 by and between the Company and 3i, LP (“3i”), a payment due on September 3, 2026 was deferred to October 5, 2026 in consideration for $200,000 paid by the Company to 3i.
This report on Form 6-K, including Exhibits 10.1, 10.2, 10.3, 10.4, 10.5, 10.6, 10.7, and 99.1 hereto, is hereby incorporated by reference into the Company’s Registration Statement on Form F-3 (File No. 333-298561).
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EXHIBIT INDEX
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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.
Date: September 24, 2026
| BLUE GOLD LIMITED | ||
| By: | /s/ Kevin Clark | |
| Kevin Clark | ||
| Executive Chairman | ||
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Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this “Agreement”) is dated as of August 28, 2026, between Blue Gold Limited, a Cayman Islands exempted company (the “Company”), and each purchaser identified on the signature pages hereto (each, including its successors and assigns, a “Purchaser” and collectively the “Purchasers”).
WHEREAS, subject to the terms and conditions set forth in this Agreement in reliance upon the exemption from securities registration afforded by Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”), and Rule 506(b) of Regulation D (“Regulation D”) as promulgated by the United States Securities and Exchange Commission (the “SEC”) under the Securities Act, the Company desires to issue and sell to each Purchaser, and each Purchaser, severally and not jointly, desires to purchase from the Company, the Notes and Warrants as more fully described in this Agreement.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt and adequacy of which are hereby acknowledged, the Company and each Purchaser agree as follows:
ARTICLE I
DEFINITIONS
1.1. Definitions. In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms have the meanings set forth in this Section 1.1:
“Acquiring Person” shall have the meaning ascribed to such term in Section 4.5.
“Action” shall have the meaning ascribed to such term in Section 3.1(h).
“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person as such terms are used in and construed under Rule 405 under the Securities Act.
“Applicable Laws” shall have the meaning ascribed to such term in Section 3.1(ff).
“Authorizations” shall have the meaning ascribed to such term in Section 3.1(ff).
“BHCA” shall have the meaning ascribed to such term in Section 3.1(cc).
“Board of Directors” means the board of directors, or any authorized committee thereof, of the Company.
“Business Day” means any day other than Saturday, Sunday, or other day on which banking institutions in the State of New York are authorized or required by law to remain closed.
“Closing” means the closing of the purchase and sale of the Securities pursuant to Section
“Closing Date” means the date on which all of the Transaction Documents have been executed and delivered by the applicable parties thereto, and all conditions precedent to (i) the Purchasers’ obligations to pay their respective Subscription Amounts and (ii) the Company’s obligations to deliver the Notes and Warrants, in each case, have been satisfied or waived.
“Commission” means the U.S. Securities and Exchange Commission.
“Company Counsel” means Lucosky Brookman LLP with offices located at 101 Wood Avenue, Fifth Floor, Woodbridge, NJ 08830.
“Environmental Law” shall have the meaning ascribed to such term in Section 3.1(k).
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“FCPA” means the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.
“Federal Reserve” shall have the meaning ascribed to such term in Section 3.1(cc).
“GAAP” shall have the meaning ascribed to such term in Section 3.1(g).
“Hazardous Substances” shall have the meaning ascribed to such term in Section 3.1(k).
“Intellectual Property Rights” shall have the meaning ascribed to such term in Section 3.1(n).
“IT Systems and Data” shall have the meaning ascribed to such term in Section 3.1(ee).
“Lien” means a lien, charge, mortgage, pledge, security interest, claim, right of first refusal, pre-emptive right, or other encumbrance of any kind whatsoever.
“Material Adverse Effect” shall have the meaning assigned to such term in Section 3.1(a).
“Material Permits” shall have the meaning assigned to such term in Section 3.1(p).
“Maturity Date” means November 30, 2026.
“Money Laundering Laws” shall have the meaning assigned to such term in Section 3.1(dd).
“Notes” means the unsecured promissory notes issued by the Company pursuant to this Agreement (each, a “Note”), with each Note having a principal amount equal to the applicable Purchaser’s Subscription Amount, bearing interest at ten percent (10%) per annum accruing until repayment, and providing for payment of outstanding principal plus accrued interest on the Maturity Date.
“Offering” means the offering of the Securities hereunder.
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“Ordinary Share” means each class A ordinary share of the Company, par value $0.0001 per share, and any other class of securities into which such securities may hereafter be reclassified or changed.
“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Personal Data” shall have the meaning ascribed to such term in Section 3.1(ee).
“Proceeding” means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding, such as a deposition) pending or, to the Company’s knowledge, threatened in writing against the Company, a Subsidiary or any of their respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign).
“Required Approvals” shall have the meaning ascribed to such term in Section 3.1(d).
“Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“Sanctions” shall have the meaning ascribed to such term in Section 3.1(aa).
“SEC Reports” shall have the meaning ascribed to such term in Section 3.1(f).
“Securities Act” shall have the meaning ascribed to such term in the recitals hereto.
“Securities” means, collectively, the Notes and the Warrants and, where the context requires, the Warrant Shares.
“Short Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include locating and/or borrowing Ordinary Shares).
“Subscription Amount” means, as to each Purchaser, the aggregate principal amount of Notes to be purchased by such Purchaser hereunder, as specified below such Purchaser’s name on the signature page of this Agreement and next to the heading “Subscription Amount,” in U.S. dollars and in immediately available funds.
“Subsidiary” and “Subsidiaries” means any subsidiary of the Company and shall, where applicable, also include any direct or indirect subsidiary of the Company formed or acquired after the date hereof.
“Trading Day” means a day on which the Trading Market is open for trading.
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“Trading Market” means The Nasdaq Capital Market (or any nationally recognized successor thereto); provided, however, that in the event the Company’s Ordinary Shares are ever listed or traded on The Nasdaq Global Market, The Nasdaq Global Select Market, The New York Stock Exchange, NYSE American, NYSE Arca, the OTC Bulletin Board, or the OTCQX or the OTCQB operated by the OTC Markets Group, Inc. (or any nationally recognized successor to any of the foregoing), then the “Trading Market” shall mean such other market or exchange on which the Company’s Ordinary Shares are then listed or traded.
“Transaction Documents” means this Agreement, the Notes, the Warrants, all exhibits and schedules thereto and any other documents or agreements executed in connection with the transactions contemplated hereunder.
“Warrants” means the detachable ordinary share purchase warrants issued by the Company to each Purchaser pursuant to this Agreement (each, a “Warrant”), entitling such Purchaser to purchase the applicable Warrant Shares at an exercise price of $0.50 per Warrant Share, subject to the terms of the applicable Warrant.
“Warrant Shares” means the Ordinary Shares issuable upon exercise of the Warrants, calculated with respect to each Purchaser as such Purchaser’s Subscription Amount multiplied by 50% and divided by $0.50, subject to adjustment in accordance with the applicable Warrant.
ARTICLE II
PURCHASE AND SALE
2.1. Closing.
| (a) | On the Closing Date, upon the terms and subject to the conditions set forth herein, the Company agrees to sell and issue to each Purchaser, and each Purchaser, severally and not jointly, agrees to purchase, the following Securities: (i) an unsecured promissory Note in a principal amount equal to such Purchaser’s Subscription Amount and (ii) a Warrant to purchase a number of Warrant Shares equal to (such Purchaser’s Subscription Amount × 50%) ÷ $0.50. The aggregate principal amount of Notes issued under this Agreement shall not exceed $1,500,000. The Notes shall bear interest at ten percent (10%) per annum accruing until repayment, and the outstanding principal plus accrued interest shall be payable on the Maturity Date, in each case in accordance with the terms of the applicable Note. |
| (b) | Each Purchaser shall deliver to the Company, via wire transfer of immediately available funds, an amount equal to such Purchaser’s Subscription Amount as set forth on the signature page hereto. The Company shall deliver to each Purchaser its respective Note and Warrant and the other items set forth in Section 2.2 deliverable at the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Closing shall occur remotely via the exchange of documents and signatures or at such other location as the parties may mutually agree. |
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2.2. Deliveries.
| (a) | On or prior to the Closing Date, the Company shall deliver or cause to be delivered to each Purchaser the following: |
| (i) | this Agreement duly executed by the Company; |
| (ii) | the Company’s wire instructions, on Company letterhead and executed by the Company’s Chief Executive Officer or Chief Financial Officer; and |
| (iii) | the Note to be issued to such Purchaser, duly executed by the Company; and |
| (iv) | the Warrant to be issued to such Purchaser, duly executed by the Company. |
| (b) | On or prior to the Closing Date, each Purchaser shall deliver or cause to be delivered to the Company the following: |
| (i) | this Agreement duly executed by such Purchaser; and |
| (ii) | such Purchaser’s Subscription Amount, delivered by wire transfer of immediately available funds in accordance with the Company’s wire instructions. |
2.3. Closing Conditions.
| (a) | The obligations of the Company hereunder in connection with the Closing are subject to the following conditions being met: |
| (i) | the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect (as defined below), in all respects) when made and on the Closing Date of the representations and warranties of the Purchasers contained herein (unless such representation or warranty is as of a specific date therein in which case they shall be accurate as of such date); |
| (ii) | all obligations, covenants and agreements of each Purchaser required to be performed at or prior to the Closing Date shall have been performed; and |
| (iii) | the delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement. |
| (b) | The respective obligations of the Purchasers hereunder in connection with the Closing are subject to the following conditions being met: |
| (i) | the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the Closing Date of the representations and warranties of the Company contained herein (unless such representation or warranty is as of a specific date therein in which case they shall be accurate as of such date); |
| (ii) | all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed; |
| (iii) | the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement; |
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| (iv) | there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and |
| (v) | from the date hereof to the Closing Date, there shall not have occurred any suspension of trading in the Ordinary Shares by the Commission or the Trading Market, any banking moratorium declared by U.S. or New York State authorities, or any material adverse change in financial markets that, in the reasonable judgment of such Purchaser, makes it impracticable or inadvisable to purchase the Securities at the Closing. |
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1. Representations and Warranties of the Company. The Company hereby makes the following representations and warranties to each Purchaser in addition to the information included in the SEC Reports, which SEC Reports shall be deemed a part hereof and shall qualify any representation or warranty made herein to the extent of the disclosure contained in the corresponding section of the SEC Reports:
(a) Organization and Qualification. Each of the Company and the Subsidiaries has been duly organized and validly exists as a corporation, limited partnership or company in good standing (or the foreign equivalent thereof, if any) under the laws of its jurisdiction of organization. The Company and each of the Subsidiaries is duly qualified to do business and is in good standing as a foreign or extra-provincial corporation, partnership, company or limited liability company in each jurisdiction in which the character or location of its properties (owned, leased or licensed) or the nature or conduct of its business makes such qualification necessary, except for those failures to be so qualified or in good standing which (individually and in the aggregate) would not have a Material Adverse Effect. No Proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification. Neither the Company nor any Subsidiary is in violation nor default of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational or charter documents. The term “Material Adverse Effect” means a material adverse effect on (i) the business, general affairs, management, condition (financial or otherwise), results of operations, stockholders’ equity, assets, properties or prospects of the Company and the Subsidiaries, taken as a whole, (ii) the legality, validity or enforceability of any Transaction Document, or (iii) the Company’s ability to perform in any material respect on a timely basis its obligations under any Transaction Document.
(b) Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of this Agreement and each of the other Transaction Documents by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Company and no further action is required by the Company, the Board of Directors or the Company’s shareholders in connection herewith or therewith other than in connection with the Required Approvals (as defined below). This Agreement and each other Transaction Document to which the Company is a party has been (or upon delivery will have been) duly executed by the Company and, when delivered in accordance with the terms hereof and thereof, will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by general equitable principles and laws relating to the availability of specific performance, injunctive relief or other equitable remedies, and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.
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(c) No Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to which it is a party, the issuance and sale of the Securities and the consummation by it of the transactions contemplated hereby and thereby do not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any Lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment, anti-dilution or similar adjustments, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as could not have or reasonably be expected to result in a Material Adverse Effect.
(d) Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state (including state blue sky law), local or other governmental authority or other Person in connection with the execution, delivery and performance by the Company of the Transaction Documents, other than: (i) the filings required pursuant to Section 4.3 of this Agreement, and (ii) notices and/or applications to and approvals by each applicable Trading Market for the listing of the Warrant Shares, if any, for trading thereon in the time and manner required thereby (collectively, the “Required Approvals”).
(e) Issuance of the Notes and Warrants. The Notes and Warrants have been duly authorized and, when issued and delivered in accordance with the applicable Transaction Documents, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights generally and general principles of equity. The Warrant Shares, when issued upon exercise of the Warrants in accordance with their terms, will be duly authorized, validly issued, fully paid and non-assessable, free and clear of all Liens imposed by the Company, except for restrictions set forth in the Transaction Documents. The Company has reserved from its duly authorized share capital the maximum number of Warrant Shares issuable upon exercise of the Warrants. The Notes, Warrants and Warrant Shares are not and will not be subject to the preemptive rights of any holders of any security of the Company or similar contractual rights granted by the Company.
(f) Reports. Except as set forth in Schedule 3.1(f), the Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities Act and Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two (2) years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such materials) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension (or waiver from the Commission) of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Company has never been an issuer subject to Rule 144(i) under the Securities Act.
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(g) Financial Statements. The consolidated financial statements of the Company, including the notes thereto, comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with accounting principles generally accepted in the United States (“GAAP”) applied on a consistent basis during the periods involved, except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments.
(h) Litigation. Except as set forth in the SEC Reports, there is no action, suit, inquiry, notice of violation, Proceeding or investigation pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an “Action”) that (i) adversely affects or challenges the legality, validity or enforceability of any of the Transaction Documents or the Securities or (ii) would, if there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect. Except as set forth in the SEC Reports, neither the Company nor any Subsidiary, nor any director or executive officer thereof, is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty, which could result in a Material Adverse Effect. There has not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation by the Commission involving the Company or any current or former director or executive officer of the Company. The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary under the Exchange Act or the Securities Act.
(i) Labor Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees of the Company, which could reasonably be expected to result in a Material Adverse Effect. To the knowledge of the Company, no executive officer of the Company or any Subsidiary, is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third party, and the continued employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability with respect to any of the foregoing matters. The Company and its Subsidiaries are in compliance with all applicable U.S. federal, state, local and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment and wages and hours, except where the failure to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(j) Compliance. Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred that has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound (whether or not such default or violation has been waived), or (ii) is in violation of any judgment, decree or order of any court, arbitrator or other governmental authority, except in each case of (i) and (ii) as could not have or reasonably be expected to result in a Material Adverse Effect.
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(k) Environmental Law. There has been no storage, generation, transportation, handling, use, treatment, disposal, discharge, emission, contamination, release or other activity involving any kind of hazardous, toxic or other wastes, pollutants, contaminants, petroleum products or other hazardous or toxic substances, chemicals or materials (“Hazardous Substances”) by, due to, on behalf of, or caused by the Company or any Subsidiary (or, to the Company’s knowledge, any other entity for whose acts or omissions the Company is or may be liable) upon any property now or previously owned, operated, used or leased by the Company or any Subsidiary, or upon any other property, that would be a violation of or give rise to any liability under any applicable law, rule, regulation, order, judgment, decree or permit, common law provision or other legally binding standard relating to pollution or protection of human health and the environment (“Environmental Law”), except for violations and liabilities which, individually or in the aggregate, would not have a Material Adverse Effect. There has been no disposal, discharge, emission contamination or other release of any kind at, onto or from any such property or into the environment surrounding any such property of any Hazardous Substances with respect to which the Company or any Subsidiary has knowledge, except as would not, individually or in the aggregate, have a Material Adverse Effect. There is no pending or, to the best of the Company’s knowledge, threatened administrative, regulatory or judicial action, claim or notice of noncompliance or violation, investigation or proceedings relating to any Environmental Law against the Company or any Subsidiary, except as would not, individually or in the aggregate, have a Material Adverse Effect. To the best of the Company’s knowledge, no property of the Company or any Subsidiary is subject to any Lien under any Environmental Law, except as would not, individually or in the aggregate, have a Material Adverse Effect. Except as disclosed in the SEC Reports, neither the Company nor any Subsidiary is subject to any order, decree, agreement or other individualized legal requirement related to any Environmental Law, that, in any case (individually or in the aggregate), would have a Material Adverse Effect. The Company and each Subsidiary has all permits, authorizations and approvals required under any applicable Environmental Laws and are each in compliance with their requirements, except as would not, individually or in the aggregate, have a Material Adverse Effect. In the ordinary course of its business, the Company periodically reviews the effect of Environmental Laws on the business, operations and properties of the Company and the Subsidiaries and identifies and evaluates associated costs and liabilities (including, without limitation, any capital or operating expenditures required for clean-up, closure or remediation of properties or compliance with Environmental Laws, or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties). On the basis of such review, the Company has reasonably concluded that such associated costs and liabilities would not, individually or in the aggregate, have a Material Adverse Effect.
(l) Title to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned by them and good and marketable title in all personal property owned by them that is material to the business of the Company and the Subsidiaries, in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries and (ii) Liens for the payment of federal, state or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP and, the payment of which is neither delinquent nor subject to penalties. Any real property and facilities currently held under lease by the Company and the Subsidiaries are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance in all material respects.
(m) Regulatory Permits. Except where disclosed in the SEC Reports, the Company and the Subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the SEC Reports, except where the failure to possess such permits would not reasonably be expected to result in a Material Adverse Effect (“Material Permits”), and, except where disclosed in the SEC Reports, neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or modification of any Material Permit.
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(n) Intellectual Property. The Company and the Subsidiaries have, or have rights to use (or can acquire on reasonable terms), all patents, patent applications, trademarks, trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights and similar rights necessary or required for use in connection with their respective businesses as described in the SEC Reports and which the failure to so have could reasonably be expected to have a Material Adverse Effect (collectively, the “Intellectual Property Rights”). None of, and neither the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property Rights has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years from the date of this Agreement except as would not reasonably be expected to have a Material Adverse Effect. Neither the Company nor any Subsidiary has received, since the date of the latest financial statements included within SEC Reports, a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe upon the rights of any Person or is aware of any facts which would form a reasonable basis for any such claim, except as could not have or reasonably be expected to not have a Material Adverse Effect. To the knowledge of the Company, all such Intellectual Property Rights are enforceable and there is no existing infringement by another Person of any of the Intellectual Property Rights. The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and value of all of their intellectual properties, except where failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. None of the Intellectual Property Rights used by the Company or any of its Subsidiaries in their respective businesses has been obtained or is being used by the Company or such Subsidiary in violation of any contractual obligation binding on the Company or any of its subsidiaries in violation of the rights of any person. The Company and its subsidiaries have taken all reasonable steps in accordance with normal industry practice to protect and maintain the Intellectual Property Rights including, without limitation, the execution of appropriate nondisclosure and invention assignment agreements. The consummation of the transactions contemplated by this Agreement will not result in the loss or impairment of, or payment of, and additional amounts with respect to, nor require the consent of, any other person regarding the Company’s or any of its subsidiaries’ right to own or use any of the Intellectual Property Rights as owned or used in the conduct of such party’s business as currently conducted. To the knowledge of the Company and its Subsidiaries, no employee of any of the Company or its subsidiaries is the subject of any pending claim or proceeding involving a violation of any term of any employment contract, invention disclosure agreement, patent disclosure agreement, noncompetition agreement, non-solicitation agreement, nondisclosure agreement or restrictive covenant to or with a former employer, where the basis of such violation relates to such employee’s employment with the Company or its subsidiaries or actions undertaken by the employee while employed with the Company or its Subsidiaries. The Company has no knowledge of any facts that would preclude it from having valid license rights or clear title to the Intellectual Property Rights. The Company has no knowledge that it lacks or will be unable to obtain any rights or licenses to use all Intellectual Property Rights that are necessary to conduct its business.
(o) Insurance. The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged, including, but not limited to, directors and officers insurance coverage at least equal to the aggregate Subscription Amount. Neither the Company nor any Subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business without a significant increase in cost.
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(p) Transactions With Affiliates and Employees. Except as set forth in the SEC Reports, none of the executive officers or directors of the Company or any Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to any transaction with the Company or any Subsidiary (other than for services as employees, executive officers and directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from any executive officer, director or such employee or, to the knowledge of the Company, any entity in which any executive officer, director, or any such employee has a substantial interest or is an officer, director, trustee, stockholder, member or partner, in each case in excess of $120,000 other than for (i) payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company or a Subsidiary and (iii) other employee benefits, including stock option agreements under any stock option or omnibus incentive plan of the Company.
(q) Internal Accounting Controls. The Company and the Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
(r) Certain Fees. No brokerage or finder’s fees or commissions are or will be payable by the Company or any Subsidiary to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated by the Transaction Documents. Other than to Persons engaged by any Purchaser, the Purchasers shall have no obligation with respect to any fees or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section that may be due in connection with the transactions contemplated by the Transaction Documents.
(s) Investment Company. The Company is not, and immediately after receipt of payment for the Securities, will not be required to register as an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(t) Listing and Maintenance Requirements. The Company is subject to the reporting requirements of Section 13 of the Exchange Act and files periodic reports with the Commission; the Ordinary Shares are registered with the Commission under Section 12(b) of the Exchange Act and the Company is not in breach of any filing or other requirements under the Exchange Act. The Company has not received any notice that the Commission is contemplating terminating such registration. Except as set forth in the SEC Reports, the Company has not, in the 12 months preceding the date hereof, received notice from any Trading Market on which the Ordinary Shares are or have been listed or quoted to the effect that the Company is not in compliance with the listing or maintenance requirements of such Trading Market. The Ordinary Shares are currently eligible for electronic transfer through The Depository Trust Company or another established clearing corporation and the Company is current in payment of the fees to The Depository Trust Company (or such other established clearing corporation) in connection with such electronic transfer.
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(u) Disclosure. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company confirms that neither it nor any other Person acting on its behalf has provided any of the Purchasers or their agents or counsel with any information that it believes constitutes or might constitute material, non-public information that is not otherwise disclosed in the SEC Reports. The Company understands and confirms that the Purchasers will rely on the foregoing representation in effecting transactions in securities of the Company. All of the disclosure furnished by or on behalf of the Company to the Purchasers regarding the Company and its Subsidiaries, their respective businesses and the transactions contemplated hereby, including pursuant to the SEC Reports, is true and correct in all material respects and does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. The press releases disseminated by the Company during the twelve (12) months preceding the date of this Agreement taken as a whole do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made and when made, not misleading. The Company acknowledges and agrees that no Purchaser makes or has made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section 3.2 hereof.
(v) No Integrated Offering. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section 3.2, neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the Securities to be integrated with prior offerings by the Company for purposes of (i) the Securities Act, or (ii) except as set forth in the SEC Reports, any applicable stockholder approval provisions of any Trading Market on which any of the securities of the Company are listed or designated.
(w) Foreign Corrupt Practices; Criminal Acts. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary, any agent or other person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate funds, (iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person acting on its behalf of which the Company is aware) which is in violation of law, or (iv) violated in any material respect any provision of FCPA.
(x) Accountants. The Company’s independent registered public accounting firm is as set forth in the SEC Reports. To the knowledge and belief of the Company, such accounting firm is a registered public accounting firm as required by the Exchange Act.
(y) Acknowledgment Regarding Purchasers’ Purchase of Securities. The Company acknowledges and agrees that each of the Purchasers is acting solely in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated thereby. The Company further acknowledges that no Purchaser is acting as a placement agent, financial advisor or fiduciary of the Company (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated thereby and any advice given by any Purchaser or any of their respective representatives or agents in connection with the Transaction Documents and the transactions contemplated thereby is merely incidental to the Purchasers’ purchase of the Securities. The Company further represents to each Purchaser that the Company’s decision to enter into this Agreement and the other Transaction Documents has been based solely on the independent evaluation of the transactions contemplated hereby by the Company and its representatives.
(z) Regulation M Compliance. The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly or indirectly, any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of any of the Securities, (ii) sold, bid for, purchased, or paid any compensation for soliciting purchases of any of the Securities, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities of the Company.
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(aa) Office of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s knowledge, any director, officer, agent, employee or affiliate of the Company or any Subsidiary is currently subject to any “Sanctions,” which shall include but are not limited to any U.S. sanctions administered by the OFAC and the Company will not, directly or indirectly, use the proceeds of the Offering hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any Sanctions, including but not limited to U.S. sanctions administered by OFAC.
(bb) U.S. Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within the meaning of Section 897 of the U.S. Internal Revenue Code of 1986, as amended, and the Company shall so certify upon Purchaser’s request.
(cc) Bank Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company Act of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the “Federal Reserve”). Neither the Company nor any of its Subsidiaries owns or controls, directly or indirectly, five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent (25%) or more of the total equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its Subsidiaries exercises a controlling influence over the management or policies of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve.
(dd) Money Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance in all material respects with applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any Subsidiary, threatened.
(ee) Information Technology. The Company’s and the Subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software, websites, applications, and databases (collectively, “IT Systems and Data”) operate and perform in all material respects as required in connection with the operation of the business of the Company and the Subsidiaries as currently conducted. The Company and the Subsidiaries maintain and have implemented commercially reasonable controls, policies, procedures, and safeguards to maintain and protect their material confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and Data (including data of their respective customers, employees, suppliers, vendors and any third party data maintained by or on behalf of the Company or any Subsidiary) and all personal, personally identifiable, sensitive, confidential or regulated data (“Personal Data”) processed and stored thereon. To the knowledge of the Company, (x) there have been no security breaches or other compromises of or relating to IT Systems and Data and (y) the Company and the Subsidiaries have not been notified of, and have no knowledge of, any event or condition that would reasonably be expected to result in any such security breach or other compromise of their IT Systems and Data, except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect. The Company and the Subsidiaries have implemented backup and disaster recovery technology consistent with commercially reasonable industry standards and practices, and are presently in compliance in all material respects with all applicable laws or statutes and all applicable judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Data (including Personal Data) and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification, except for any such noncompliance that would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
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(ff) Regulatory. Except as described in the SEC Reports., the Company and its Subsidiaries (i) are and at all times have been in material compliance with all statutes, rules and regulations applicable to the ownership, testing, development, manufacture, packaging, processing, use, distribution, marketing, advertising, labeling, promotion, sale, offer for sale, storage, import, export or disposal of any product manufactured or distributed by the Company including, without limitation the Federal Food, Drug and Cosmetic Act (21 U.S.C. § 301 et seq.), the federal Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b)), the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act of 2009, and the Patient Protection and Affordable Care Act of 2010, as amended by the Health Care and Education Affordability Reconciliation Act of 2010, the regulations promulgated pursuant to such laws, and any successor government programs and comparable state laws, regulations relating to Good Clinical Practices and Good Laboratory Practices and all other local, state, federal, national, supranational and foreign laws, manual provisions, policies and administrative guidance relating to the regulation of the Company (collectively, the “Applicable Laws”); (ii) have not received any notice from any court or arbitrator or governmental or regulatory authority or third party alleging or asserting noncompliance with any Applicable Laws or any licenses, exemptions, certificates, approvals, clearances, authorizations, permits, registrations and supplements or amendments thereto required by any such Applicable Laws (“Authorizations”); (iii) possess all material Authorizations and such Authorizations are valid and in full force and effect and are not in violation of any term of any such Authorizations; (iv) have not received written notice of any claim, action, suit, proceeding, hearing, enforcement, investigation arbitration or other action from any court or arbitrator or governmental or regulatory authority or third party alleging that any product operation or activity is in violation of any Applicable Laws or Authorizations nor is any such claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action threatened; (v) have not received any written notice that any court or arbitrator or governmental or regulatory authority has taken, is taking or intends to take, action to limit, suspend, materially modify or revoke any Authorizations nor is any such limitation, suspension, modification or revocation threatened; (vi) have filed, obtained, maintained or submitted all material reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required by any Applicable Laws or Authorizations and that all such reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments were complete and accurate on the date filed (or were corrected or supplemented by a subsequent submission); and (vii) are not a party to any corporate integrity agreements, monitoring agreements, consent decrees, settlement orders, or similar agreements with or imposed by any governmental or regulatory authority.
3.2. Representations and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents and warrants as of the date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein, in which case they shall be accurate as of such date):
(a) Organization; Authority. Such Purchaser is either an individual or an entity duly incorporated or formed, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited liability company or similar power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of the Transaction Documents and performance by such Purchaser of the transactions contemplated by the Transaction Documents have been duly authorized by all necessary corporate, partnership, limited liability company or similar action, as applicable, on the part of such Purchaser. Each Transaction Document to which it is a party has been duly executed by such Purchaser, and when delivered by such Purchaser in accordance with the terms hereof or thereof, will constitute the valid and legally binding obligation of such Purchaser, enforceable against it in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally; (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies; and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.
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(b) Understandings or Arrangements. Such Purchaser is acquiring the Securities as principal for its own account and has no direct or indirect arrangement or understanding with any other person to distribute or regarding the distribution of such Securities. Such Purchaser is acquiring such Securities as principal for his, her or its own account and not with a view to or for distributing or reselling such Securities or any part thereof in violation of the Securities Act or any applicable state securities law, has no present intention of distributing any of such Securities in violation of the Securities Act or any applicable state securities law and has no direct or indirect arrangement or understanding with any other person to distribute or regarding the distribution of such Securities in violation of the Securities Act or any applicable state securities law (this representation and warranty not limiting such Purchaser’s right to sell such Securities in compliance with applicable federal and state securities laws).
(c) General Solicitation. Such Purchaser is not purchasing the Securities as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement.
(d) Accredited Investor Status. Such Purchaser is an “accredited investor” as that term is defined in Rule 501(a) of Regulation D.
(e) Experience of Such Purchaser. Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Securities, and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic risk of an investment in the Securities and, at the present time, is able to afford a complete loss of such investment.
(f) Access to Information. Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including all exhibits and schedules thereto) and the SEC Reports and has been afforded: (i) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the Securities and the merits and risks of investing in the Securities; (ii) access to information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to make an informed investment decision with respect to the investment.
(g) Certain Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, such Purchaser has not, nor has any Person acting on behalf of or pursuant to any understanding with such Purchaser, directly or indirectly executed any purchases or sales, including Short Sales, of the securities of the Company during the period commencing as of the time that such Purchaser first received a term sheet (written or oral) from the Company or any other Person representing the Company setting forth the material terms of the transactions contemplated hereunder and ending immediately prior to the execution hereof. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. Other than to other Persons party to this Agreement or to such Purchaser’s representatives, including, without limitation, its officers, directors, partners, legal and other advisors, employees, agents and Affiliates, such Purchaser has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). Notwithstanding the foregoing, for the avoidance of doubt, nothing contained herein shall constitute a representation or warranty against, or a prohibition of, any actions with respect to the borrowing of, arrangement to borrow, identification of the availability of, and/or securing of, securities of the Company in order for such Purchaser (or its broker or other financial representative) to effect Short Sales or similar transactions in the future.
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(h) No Voting Agreements. The Purchaser is not a party to any agreement or arrangement, whether written or oral, between the Purchaser and any other Purchaser and any of the Company’s stockholders as of the date hereof, regulating the management of the Company, the stockholders’ rights in the Company, the transfer of shares in the Company, including any voting agreements, stockholder agreements or any other similar agreement, even if its title is different or has any other relations or agreements with any of the Company’s stockholders, directors or officers.
(i) Brokers. No agent, broker, investment banker, person or firm acting in a similar capacity on behalf of or under the authority of the Purchaser is or will be entitled to any broker’s or finder’s fee or any other commission or similar fee, directly or indirectly, for which the Company or any of its Affiliates after the Closing could have any liabilities in connection with this Agreement, any of the transactions contemplated by this Agreement, or on account of any action taken by the Purchaser in connection with the transactions contemplated by this Agreement.
(j) Independent Advice. Each Purchaser understands that nothing in this Agreement or any other materials presented by or on behalf of the Company to the Purchaser in connection with the purchase of the Securities constitutes legal, tax or investment advice.
(k) Transfer or Resale. Such Purchaser understands that: (i) the Securities have not been and are not being registered under the Securities Act or any state securities laws, and may not be offered for sale, sold, assigned or transferred unless (A) subsequently registered thereunder, (B) such Purchaser shall have delivered to the Company (if requested by the Company) an opinion of counsel, in a form reasonably acceptable to the Company, to the effect that such Securities to be sold, assigned or transferred may be sold, assigned or transferred pursuant to an exemption from such registration, or (C) such Purchaser provides the Company with reasonable assurance that such Securities can be sold, assigned or transferred pursuant to Rule 144 or Rule 144A promulgated under the Securities Act (or a successor rule thereto) (collectively, “Rule 144”); (ii) any sale of the Securities made in reliance on Rule 144 may be made only in accordance with the terms of Rule 144, and further, if Rule 144 is not applicable, any resale of the Securities under circumstances in which the seller (or the Person through whom the sale is made) may be deemed to be an underwriter (as that term is defined in the Securities Act) may require compliance with some other exemption under the Securities Act or the rules and regulations of the SEC promulgated thereunder; and (iii) neither the Company nor any other Person is under any obligation to register the Securities under the Securities Act or any state securities laws or to comply with the terms and conditions of any exemption thereunder. Notwithstanding the foregoing, the Securities may be pledged in connection with a bona fide margin account or other loan or financing arrangement secured by the Securities and such pledge of the Securities shall not be deemed to be a transfer, sale or assignment of the Securities hereunder, and no Purchaser effecting a pledge of the Securities shall be required to provide the Company with any notice thereof or otherwise make any delivery to the Company pursuant to this Agreement or any other Transaction Document, including, without limitation, this Section 3.2(k).
The Company acknowledges and agrees that the representations contained in this Section 3.2 shall not modify, amend or affect such Purchaser’s right to rely on the Company’s representations and warranties contained in this Agreement or any representations and warranties contained in any other Transaction Document or any other document or instrument executed and/or delivered in connection with this Agreement or the consummation of the transactions contemplated hereby. Notwithstanding the foregoing, for the avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, except as set forth in this Agreement, with respect to locating or borrowing shares in order to effect Short Sales or similar transactions in the future.
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ARTICLE IV
OTHER AGREEMENTS OF THE PARTIES
4.1. Legends.
(a) Each Purchaser understands that the Notes and Warrants are being issued pursuant to an exemption from registration or qualification under the Securities Act and applicable state securities laws, and that any Warrant Shares issued upon exercise of the Warrants will likewise be issued pursuant to such an exemption. Except as set forth below, the Notes, Warrants and any certificate representing Warrant Shares shall bear any legend required by the “blue sky” laws of any state and a restrictive legend in substantially the following form (and a stop-transfer order may be placed against transfer of any such instrument or certificate):
NEITHER THE NOTES AND WARRANTS REPRESENTED BY THIS INSTRUMENT NOR THE ORDINARY SHARES ISSUABLE UPON EXERCISE OF THE WARRANTS HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED UNLESS (I) THEY HAVE BEEN REGISTERED UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS OR (II) AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE AND THE HOLDER HAS PROVIDED, IF REQUESTED BY THE COMPANY, AN OPINION OF COUNSEL IN A FORM REASONABLY ACCEPTABLE TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED. THESE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THESE SECURITIES.
(b) Removal of Legends. Any restrictive legend on a Note, Warrant or Warrant Share shall be removed or amended (i) while an effective registration statement covering the relevant security is available for the applicable sale or issuance under the Securities Act, (ii) following a sale of the relevant security pursuant to Rule 144 (assuming the transferor is not an Affiliate of the Company), (iii) if the relevant security is eligible to be sold, assigned or transferred under Rule 144, (iv) in connection with a sale, assignment or other transfer for which the Purchaser provides an opinion of counsel, in a generally acceptable form, to the effect that the transfer may be made without registration under the applicable requirements of the Securities Act, or (v) if the legend is not required under applicable requirements of the Securities Act. Upon satisfaction of the applicable requirements, the Company shall, at its expense and no later than two (2) Trading Days after receipt of the required deliverables, deliver a replacement Note or Warrant without the restrictive legend or, with respect to Warrant Shares, instruct its transfer agent to issue or deliver the Warrant Shares without the restrictive legend.
4.2. Furnishing of Information; Public Information. Until the earlier of (a) the time that no Purchaser owns any Securities and (b) the date on which the Company is no longer subject to the reporting requirements of the Exchange Act, the Company covenants to maintain the registration of its Ordinary Shares under Section 12(b) or 12(g) of the Exchange Act and to timely file (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to the Exchange Act, even if the Company is not then subject to such reporting requirements.
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4.3. Securities Laws Disclosure; Publicity. The Company shall file a Current Report on Form 6-K, including the Transaction Documents as exhibits thereto as deemed by Company Counsel, with the Commission within the time required by the Exchange Act. From and after the filing of such Form 6-K, the Company represents to the Purchasers that it shall have publicly disclosed all material, non-public information delivered to any of the Purchasers by the Company or any of the Subsidiaries or Affiliates, or any of their respective officers, directors, employees or agents in connection with the transactions contemplated by the Transaction Documents. In addition, effective upon the filing of such Form 6-K, the Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral, between the Company, any of the Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates, on the one hand, and any of the Purchasers or any of their Affiliates on the other hand, with respect to the transactions contemplated hereby shall terminate and be of no further force or effect. The Company and each Purchaser shall consult with each other in issuing any press releases with respect to the transactions contemplated hereby, and neither the Company nor any Purchaser shall issue any such press release nor otherwise make any such public statement without the prior consent of the Company, with respect to any press release of any Purchaser, or without the prior consent of each Purchaser, with respect to any press release of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure is required by law, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement or communication. Notwithstanding the foregoing, the Company shall not publicly disclose the name of any Purchaser, or include the name of any Purchaser in any filing with the Commission or any regulatory agency or applicable Trading Market, without the prior written consent of such Purchaser, except (a) as required by federal securities law in connection with the filing of final Transaction Documents with the Commission and (b) to the extent such disclosure is required by applicable law or Trading Market regulations, in which case the Company shall provide the Purchasers with prior notice of such disclosure permitted under this clause (b).
4.4. Stockholder Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other Person, that any Purchaser is an “Acquiring Person” under any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by the Company, or that any Purchaser could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving Securities under the Transaction Documents or under any other agreement between the Company and the Purchasers.
4.5. Non-Public Information. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, which shall be disclosed pursuant to Section 4.3, the Company covenants and agrees that neither it, nor any other Person acting on its behalf will provide any Purchaser or its agents or counsel with any information that constitutes, or the Company reasonably believes constitutes, material non-public information, unless prior thereto such Purchaser shall have consented to the receipt of such information and agreed with the Company to keep such information confidential. The Company understands and confirms that each Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company. To the extent that the Company delivers any material, non-public information to a Purchaser without such Purchaser’s consent, the Company hereby covenants and agrees that such Purchaser shall not have any duty of confidentiality to the Company, any of the Subsidiaries, or any of their respective officers, directors, agents, employees or Affiliates, or a duty to the Company, any of the Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates not to trade on the basis of, such material, non-public information, provided that the Purchaser shall remain subject to applicable law. To the extent that any notice provided pursuant to any Transaction Document constitutes, or contains, material, non-public information regarding the Company or any Subsidiaries, the Company shall simultaneously with the delivery of such notice file such material non-public information on with the Commission pursuant to a Current Report on Form 6-K. The Company understands and confirms that each Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company.
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4.6. Most Favored Nation. From and after the Closing until all Notes held by the Purchasers have been repaid in full, if the Company issues, sells or agrees to issue or sell any debt or equity securities, or any securities convertible into, exercisable for or exchangeable for equity securities, on more favorable economic terms than those applicable to the Securities, the Company shall promptly notify the Purchasers and, at each Purchaser’s election by written notice, provide such Purchaser with the benefit of those more favorable economic terms, including any lower price, higher interest rate, greater warrant coverage or other economic term, by amending or supplementing the applicable Transaction Documents or issuing additional securities, as applicable.
4.7. Use of Proceeds. The Company shall use the net proceeds from the sale of the Securities hereunder for pre-closing payment obligations, transaction execution costs and working capital.
4.8. Reservation of Ordinary Shares. As of the date hereof, the Company has reserved and the Company shall continue to reserve and keep available at all times, free of preemptive rights, a sufficient number of Ordinary Shares for the purpose of enabling the Company to issue the Warrant Shares upon exercise of the Warrants.
4.9. Listing of Warrant Shares. The Company hereby agrees to use commercially reasonable best efforts to maintain the listing or quotation of the Ordinary Shares on the Trading Market on which it is currently listed. To the extent required by the rules of such Trading Market, the Company shall promptly apply to list or quote the Warrant Shares and use commercially reasonable efforts to secure and maintain the listing of the Warrant Shares on such Trading Market. If the Company applies to have the Ordinary Shares traded on any other Trading Market, it will include the Warrant Shares in such application and will take such other action as is necessary to cause the Warrant Shares to be listed or quoted on such other Trading Market as promptly as possible. The Company will take all action reasonably necessary to continue the listing and trading of its Ordinary Shares on a Trading Market and will comply in all respects with the Company’s reporting, filing and other obligations under the bylaws or rules of the Trading Market. For so long as the Company maintains a listing or quotation of the Ordinary Shares on a Trading Market, the Company agrees to use commercially reasonable efforts to maintain the eligibility of the Warrant Shares for electronic transfer through the Depository Trust Company or another established clearing corporation, including, without limitation, by timely payment of fees to the Depository Trust Company or such other established clearing corporation in connection with such electronic transfer.
4.10. Equal Treatment of Purchasers. No consideration (including any modification of any Transaction Document) shall be offered or paid to any Person to amend or consent to a waiver or modification of any provision of the Transaction Documents unless the same consideration is also offered to all of the parties to such Transaction Documents. For clarification purposes, this provision constitutes a separate right granted to each Purchaser by the Company and negotiated separately by each Purchaser, and is intended for the Company to treat the Purchasers as a class and shall not in any way be construed as the Purchasers acting in concert or as a group with respect to the purchase, disposition or voting of Securities or otherwise.
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4.11. Certain Transactions and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales, including Short Sales, of any of the Company’s securities during the period commencing with the execution of this Agreement and ending at such time that the transactions contemplated by this Agreement are first publicly disclosed pursuant to the Current Report on Form 6-K as described in Section 4.3. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company pursuant to the Current Report on Form 6-K as described in Section 4.3, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in this Agreement, including the schedules hereto. Notwithstanding the foregoing, and notwithstanding anything contained in this Agreement to the contrary, the Company expressly acknowledges and agrees that (i) no Purchaser makes any representation, warranty or covenant hereby that it will not engage in effecting transactions in any securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the Current Report on Form 6-K as described in Section 4.3, (ii) no Purchaser shall be restricted or prohibited from effecting any transactions in any securities of the Company in accordance with applicable securities laws from and after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the Current Report on Form 6-K as described in Section 4.3 and (iii) no Purchaser shall have any duty of confidentiality or duty not to trade in the securities of the Company to the Company or the Subsidiaries after the issuance of the Current Report on Form 6-K as described in Section 4.3. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.
ARTICLE V
MISCELLANEOUS
5.1. Termination. This Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations hereunder only and without any effect whatsoever on the obligations between the Company and the other Purchasers prior to the Closing Date; provided, however, that no such termination will affect the right of any party to sue for any breach by any other party (or parties).
5.2. Fees and Expenses. Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement. The Company shall pay all reasonable fees and expenses associated with the issuance and delivery of the Notes and Warrants and, upon exercise of the Warrants, the issuance and delivery of the Warrant Shares. The Company shall pay any issuance, stamp or documentary taxes (other than transfer taxes) or charges imposed by any governmental body, agency or official (other than income taxes) by reason of the issuance of the Notes, Warrants or Warrant Shares to the Purchasers.
5.3. Entire Agreement. The Transaction Documents, together with the exhibits thereto, contain the entire understanding of the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules.
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5.4. Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earliest of: (a) the time of transmission, if such notice or communication is delivered via email attachment at the email address as set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the time of transmission, if such notice or communication is delivered via email attachment at the email address as set forth on the signature pages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (c) the second (2nd) Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt by the party to whom such notice is required to be given. The address for such notices and communications shall be as set forth on the signature pages attached hereto.
5.5. Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in the case of an amendment, by the Company and Purchasers holding at least 50.1% of the aggregate initial Subscription Amounts hereunder (or, prior to the Closing, the Company and each Purchaser) or, in the case of a waiver, by the party against whom enforcement of any such waived provision is sought, provided that if any amendment, modification or waiver disproportionately and adversely impacts a Purchaser (or group of Purchasers), the consent of such disproportionately impacted Purchaser (or at least 50.1% in interest of such group of Purchasers) shall also be required. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right. Any proposed amendment or waiver that disproportionately, materially and adversely affects the rights and obligations of any Purchaser relative to the comparable rights and obligations of the other Purchasers shall require the prior written consent of such adversely affected Purchaser. Any amendment effected in accordance with this Section 5.5 shall be binding upon each Purchaser and holder of Securities and the Company. To the extent that any notice provided pursuant to any Transaction Document constitutes, or contains, material, non-public information regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 6-K.
5.6. Headings. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof.
5.7. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of each Purchaser (other than by merger). Any Purchaser may assign any or all of its rights under this Agreement to any Person to whom such Purchaser assigns or transfers any Securities, provided that such transferee agrees in writing to be bound, with respect to the transferred Securities, by the provisions of the Transaction Documents that apply to the “Purchasers.”
5.8. Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, except as otherwise set forth in Section 5.15.
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5.9. Governing Law. Each of the Transaction Documents shall be governed by and construed in accordance with the law of the State of New York. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective affiliates, directors, officers, stockholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If any party shall commence a suit, action or proceeding to enforce any provisions of the Transaction Documents, then, the prevailing party in such suit, action or proceeding shall be reimbursed by the non-prevailing party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such suit, action or proceeding.
5.10. Survival. The representations and warranties contained herein shall survive the Closing and the delivery of the Securities for the applicable statute of limitations.
5.11. Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by e-mail delivery of a “.pdf” format data file, by other electronic signing created on an electronic platform (such as DocuSign) or by digital signing (such as Adobe Sign), such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such “.pdf” or other electronic or digital signature page were an original thereof.
5.12. Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
5.13. Rescission and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) any of the other Transaction Documents, whenever any Purchaser exercises a right, election, demand or option under a Transaction Document and the Company does not timely perform its related obligations within the periods therein provided, then such Purchaser may rescind or withdraw, in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election in whole or in part without prejudice to its future actions and rights.
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5.14. Replacement of Notes and Warrants. If any Note or Warrant is mutilated, lost, stolen or destroyed, the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation), or in lieu of and substitution therefor, a new Note or Warrant, but only upon receipt of evidence reasonably satisfactory to the Company of such loss, theft or destruction. The applicant for a new Note or Warrant under such circumstances shall also pay any reasonable third-party costs (including customary indemnity) associated with the issuance of such replacement Note or Warrant.
5.15. Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Purchasers and the Company will be entitled to specific performance under the Transaction Documents. The parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations contained in the Transaction Documents and hereby agree to waive and not to assert in any action for specific performance of any such obligation the defense that a remedy at law would be adequate.
5.16. Payment Set Aside. To the extent that the Company makes a payment or payments to any Purchaser pursuant to any Transaction Document or a Purchaser enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement or exercise or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged by or are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other Person under any law (including, without limitation, any bankruptcy law, state or federal law, common law or equitable cause of action), then to the extent of any such restoration the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such enforcement or setoff had not occurred.
5.17. Independent Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction Document are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance or nonperformance of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in any other Transaction Document, and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute the Purchasers as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by the Transaction Documents. Each Purchaser shall be entitled to independently protect and enforce its rights including, without limitation, the rights arising out of this Agreement or out of the other Transaction Documents, and it shall not be necessary for any other Purchaser to be joined as an additional party in any proceeding for such purpose. Each Purchaser has been represented by its own separate legal counsel in its review and negotiation of the Transaction Documents. The Company has elected to provide all Purchasers with the same terms and Transaction Documents for the convenience of the Company and not because it was required or requested to do so by any of the Purchasers. It is expressly understood and agreed that each provision contained in this Agreement and in each other Transaction Document is between the Company and a Purchaser, solely, and not between the Company and the Purchasers collectively and not between and among the Purchasers.
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5.18. Liquidated Damages. The Company’s obligations to pay any partial liquidated damages or other amounts owing under the Transaction Documents is a continuing obligation of the Company and shall not terminate until all unpaid partial liquidated damages and other amounts have been paid notwithstanding the fact that the instrument or security pursuant to which such partial liquidated damages or other amounts are due and payable shall have been canceled.
5.19. Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a Trading Day, then such action may be taken or such right may be exercised on the next succeeding Trading Day.
5.20. Currency. Unless otherwise stated, all dollar amounts and references to “$” in this Agreement refer to the lawful currency of the United States.
5.21. Construction. The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to revise the Transaction Documents and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each and every reference to share prices and Ordinary Shares in any Transaction Document shall be subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Ordinary Shares that occur after the date of this Agreement.
5.22. WAIVER OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
(Signature Pages Follow)
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IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
| BLUE GOLD Limited | ||
| By: | /s/ Andrew Cavaghan | |
| Name: | Andrew Cavaghan | |
| Title: | Chief Executive Officer | |
Address for Notice:
94 Solaris Avenue, Camana Bay
PO Box 1348, Grand Cayman, KY1-1108
Cayman Islands
Email: acavaghan@bluegoldone.com
Attention: Andrew Cavaghan, CEO
With a copy to (which shall not constitute notice):
Lucosky Brookman LLP
101 Wood Avenue South
Woodbridge, New Jersey 08830
Email: sbrookman@lucbro.com
Attention: Seth Brookman, Esq.
PURCHASER SIGNATURE PAGES TO
SECURITIES PURCHASE AGREEMENT
IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
| Name of Purchaser: | San Joaquin Investment Corp. | |
| Signature of Authorized Signatory of Purchaser: | ||
| Name of Authorized Signatory: | Andres Bluhm | |
| Title of Authorized Signatory: | Director | |
| Email Address of Authorized Signatory: | [ ] | |
| Address for Notice to Purchaser: [ ] | ||
| Address for Delivery of Notes and Warrants to Purchaser (if not same as address for notice): |
| Electronic delivery instructions for Warrant Shares, if applicable: | ||
| Subscription Amount: | $250,000 | |
| EIN Number: | ||
Exhibit 10.2
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR APPLICABLE STATE SECURITIES LAWS. THIS NOTE MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (A) IN THE ABSENCE OF (I) AN EFFECTIVE REGISTRATION STATEMENT FOR THIS NOTE UNDER THE SECURITIES ACT, OR (II) AN OPINION OF COUNSEL TO THE HOLDER (IF REQUESTED BY THE COMPANY), IN A FORM REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT, OR (B) UNLESS SOLD OR ELIGIBLE TO BE SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER THE SECURITIES ACT. NOTWITHSTANDING THE FOREGOING, THIS NOTE MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THIS NOTE.
BLUE GOLD LIMITED
UNSECURED PROMISSORY NOTE
| Issuance Date: August 28, 2026 | Original Principal Amount: $1,500,000 |
FOR VALUE RECEIVED, Blue Gold Limited, a Cayman Islands exempted company (the “Company”), hereby promises to pay to the order of $250,000, or its registered assigns (the “Holder”), the amount set forth above as the Original Principal Amount (as reduced by any payments or prepayments made in accordance with this Note, the “Principal”) and all interest accrued hereunder (the “Interest”) at the Interest Rate when due on November 30, 2026 (the “Maturity Date”), or earlier as provided in this Note. This unsecured promissory note (including any promissory notes issued in exchange, transfer or replacement hereof, this “Note”) is issued pursuant to that certain Securities Purchase Agreement, dated as of August 28, 2026 (the “Securities Purchase Agreement”), by and among the Company and the investors referred to therein, as amended from time to time. The aggregate original principal amount of all promissory notes issued pursuant to the Securities Purchase Agreement shall not exceed $1,500,000. Certain capitalized terms used herein are defined in Section 22 and capitalized terms not otherwise defined herein shall have the meanings set forth in the Securities Purchase Agreement.
1. PAYMENT OF PRINCIPAL. On the Maturity Date, the Company shall pay to the Holder in cash an amount equal to all outstanding Principal and all accrued and unpaid Interest. Unless otherwise expressly permitted by this Note, the Company may not prepay any portion of the outstanding Principal or accrued and unpaid Interest without the Holder’s prior written consent.
2. INTEREST; INTEREST RATE
(a) This Note shall bear interest at the rate of ten percent (10%) per annum (the “Interest Rate”) on the outstanding Principal.
(b) Interest on this Note shall commence accruing on the Issuance Date. Interest shall be computed on the basis of a 360-day year and twelve 30-day months. Interest shall be due and payable in cash with the Principal on the Maturity Date or earlier upon acceleration or permitted prepayment.
3. EVENTS OF DEFAULT
(a) Events of Default. Each of the following events shall constitute an “Event of Default”:
the Company fails to pay any Principal or Interest when due and such failure continues for three (3) Business Days after written notice from the Holder;
the Company breaches any material covenant or other material obligation under this Note and fails to cure such breach within ten (10) Business Days after written notice from the Holder;
the Company fails to pay when due any Indebtedness in excess of $1,000,000 or any such Indebtedness is accelerated before its stated maturity;
the Company commences any bankruptcy, insolvency, reorganization, liquidation or similar proceeding; any such proceeding is commenced against the Company and is not dismissed within sixty (60) days; the Company makes an assignment for the benefit of creditors; or the Company admits in writing its inability to pay its debts generally as they become due; or
a final judgment or judgments for the payment of money aggregating in excess of $250,000 are rendered against the Company and are not, within sixty (60) days after entry, bonded, discharged, settled or stayed pending appeal, or are not discharged within sixty (60) days after expiration of such stay.
(b) Acceleration. Upon the occurrence of an Event of Default, the Holder may, by written notice to the Company, declare all outstanding Principal and accrued and unpaid Interest immediately due and payable. If an Event of Default arises from bankruptcy, insolvency, reorganization or liquidation, all outstanding Principal and accrued and unpaid Interest shall become immediately due and payable without notice or demand. The Holder may exercise any other rights and remedies available at law or in equity or under this Note.
4. PREPAYMENT AND REDEMPTION The Company may prepay all or any portion of the outstanding Principal before the Maturity Date only with the Holder’s prior written consent. Any permitted prepayment shall be made in cash and shall include the Principal being prepaid and all Interest accrued and unpaid on such Principal through the date of payment. The Holder’s rights to accelerate this Note following an Event of Default are set forth in Section 3.
5. Reserved
6. COVENANTS. Until all Principal and accrued and unpaid Interest under this Note have been paid in full, the Company shall comply with the following covenants:
(a) Rank. All obligations under this Note are unsecured and rank at least pari passu with all other unsecured and unsubordinated Indebtedness of the Company, other than obligations mandatorily preferred by law.
(b) Restricted Payments. The Company shall not, directly or indirectly, declare or pay any dividend or other distribution on its share capital, redeem or repurchase any share capital, or repay any Indebtedness other than this Note, if an Event of Default has occurred and is continuing or would result from such payment.
(c) Maintenance. The Company shall preserve its existence and maintain its properties, rights, privileges and insurance reasonably necessary to conduct its business.
7. MOST FAVORED NATION. If, before all amounts due under this Note have been paid in full, the Company issues or agrees to issue any debt or equity securities to any other person on economic terms more favorable than the economic terms of this Note, including as to interest rate, maturity, repayment, fees, discounts, redemption, warrants or other economic terms, the Holder shall be entitled, at its option, to receive the benefit of those more favorable terms. The Company shall promptly give the Holder written notice of, and a copy of the definitive documentation.
8. AMENDING THE TERMS OF THIS NOTE The prior written consent of the Holder shall be required for any change, waiver or amendment to this Note.
9. TRANSFER. This Note and any portion of the outstanding Principal may be offered, sold, assigned or transferred by the Holder without the consent of the Company, subject to applicable securities laws and Section 3.2(k) of the Securities Purchase Agreement.
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10. REISSUANCE OF THIS NOTE.
(a) Transfer. If this Note is to be transferred, the Holder shall surrender this Note to the Company, whereupon the Company shall promptly issue and deliver upon the order of the Holder a new Note representing the outstanding Principal being transferred and, if less than the entire outstanding Principal is being transferred, a new Note to the Holder representing the outstanding Principal not being transferred.
(b) Lost, Stolen or Mutilated Note. Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Note (as to which a written certification and the indemnification contemplated below shall suffice as such evidence), and, in the case of loss, theft or destruction, of any indemnification undertaking by the Holder to the Company in customary and reasonable form and, in the case of mutilation, upon surrender and cancellation of this Note, the Company shall execute and deliver to the Holder a new Note representing the outstanding Principal.
(c) Note Exchangeable for Different Denominations. This Note is exchangeable, upon the surrender hereof by the Holder at the principal office of the Company, for a new Note or Notes in principal amounts of at least $1,000 representing in the aggregate the outstanding Principal of this Note, and each such new Note shall represent such portion of such outstanding Principal as is designated by the Holder at the time of such surrender.
(d) Issuance of New Notes. Whenever the Company is required to issue a new Note pursuant to the terms of this Note, such new Note (i) shall be of like tenor with this Note, (ii) shall represent, as indicated on its face, the Principal remaining outstanding or the Principal designated by the Holder, as applicable, (iii) shall have an issuance date that is the same as the Issuance Date of this Note, (iv) shall have the same rights and conditions as this Note, and (v) shall accrue Interest from the Issuance Date.
11. REMEDIES, CHARACTERIZATIONS, OTHER OBLIGATIONS, BREACHES AND INJUNCTIVE RELIEF. The remedies provided in this Note shall be cumulative and in addition to all other remedies available under this Note and any of the other Transaction Documents at law or in equity (including a decree of specific performance and/or other injunctive relief), and nothing herein shall limit the Holder’s right to pursue actual and consequential damages for any failure by the Company to comply with the terms of this Note. No failure on the part of the Holder to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise by the Holder of any right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. In addition, the exercise of any right or remedy of the Holder at law or equity or under this Note or any of the documents shall not be deemed to be an election of Holder’s rights or remedies under such documents or at law or equity. The Company covenants to the Holder that there shall be no characterization concerning this instrument other than as expressly provided herein. Amounts set forth or provided for herein with respect to payments and the computation thereof shall be the amounts to be received by the Holder and shall not, except as expressly provided herein, be subject to any other obligation of the Company. The Company acknowledges that a breach by it of its obligations hereunder shall cause irreparable harm to the Holder and that the remedy at law for any such breach may be inadequate. The Company therefore agrees that, in the event of any such breach or threatened breach, the Holder shall be entitled, in addition to all other available remedies, to specific performance and/or temporary, preliminary and permanent injunctive or other equitable relief from any court of competent jurisdiction in any such case without the necessity of proving actual damages and without posting a bond or other security. The Company shall provide all information and documentation to the Holder that is requested by the Holder to enable the Holder to confirm the Company’s compliance with the terms and conditions of this Note, including its payment obligations and covenants.
12. PAYMENT OF COLLECTION, ENFORCEMENT AND OTHER COSTS. If this Note is placed in the hands of an attorney for collection or enforcement, is collected or enforced through any legal proceeding, or the Holder otherwise takes action to collect amounts due under this Note or enforce its provisions, or if there occurs any bankruptcy, reorganization, receivership of the Company or other proceeding affecting Company creditors’ rights and involving a claim under this Note, the Company shall pay the costs incurred by the Holder in connection with that collection, enforcement or proceeding, including reasonable attorneys’ fees and disbursements.
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13.CONSTRUCTION; HEADINGS. This Note shall be deemed to be jointly drafted by the Company and the initial Holder and shall not be construed against either party as the drafter. The headings of this Note are for convenience of reference and shall not form part of, or affect the interpretation of, this Note. Unless the context clearly indicates otherwise, each pronoun includes the masculine, feminine, neuter, singular and plural forms. The terms “including,” “includes,” “include” and words of like import shall be construed broadly as if followed by the words “without limitation.” The terms “herein,” “hereunder,” “hereof” and words of like import refer to this entire Note. Unless expressly indicated otherwise, all section references are to sections of this Note.
14.FAILURE OR INDULGENCE NOT WAIVER. No failure or delay on the part of the Holder in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other right, power or privilege. No waiver shall be effective unless it is in writing and signed by an authorized representative of the waiving party.
15.NOTICES; CURRENCY; PAYMENTS.
a. Notices. Whenever notice is required to be given under this Note, unless otherwise provided herein, such notice shall be given in accordance with Section 9(f) of the Securities Purchase Agreement. The Company shall provide the Holder with prompt written notice of any Event of Default and any material action taken pursuant to this Note.
b. Currency. All dollar amounts referred to in this Note are in United States Dollars (“U.S. Dollars”), and all amounts owing under this Note shall be paid in U.S. Dollars. All amounts denominated in other currencies (if any) shall be converted into the U.S. Dollar equivalent amount in accordance with the Exchange Rate on the date of calculation. “Exchange Rate” means, in relation to any amount of currency to be converted into U.S. Dollars pursuant to this Note, the U.S. Dollar exchange rate as published in the Wall Street Journal on the relevant date of calculation (it being understood and agreed that where an amount is calculated with reference to, or over, a period of time, the date of calculation shall be the final date of such period of time).
c. Payments. Whenever any payment of cash is to be made by the Company to any recipient pursuant to this Note, unless otherwise expressly set forth herein, such payment shall be made in lawful money of the United States of America by certified check sent via overnight courier to such recipient at the address previously provided to the Company in writing, provided that the Holder may elect to receive payment by wire transfer of immediately available funds by providing prior written notice setting out such request and the Holder’s wire transfer instructions. Whenever any amount expressed to be due by this Note is due on a day that is not a Business Day, it shall instead be due on the next succeeding Business Day.
16. CANCELLATION. After all Principal, accrued Interest and other amounts owing under this Note have been paid in full, this Note shall automatically be deemed canceled, shall be surrendered to the Company for cancellation and shall not be reissued.
17. WAIVER OF NOTICE. To the extent permitted by law, the Company hereby irrevocably waives demand, notice, presentment, protest and all other demands and notices in connection with the delivery, acceptance, performance, default or enforcement of this Note and the Securities Purchase Agreement.
18.GOVERNING LAW. This Note shall be construed and enforced in accordance with, and all questions concerning the construction, validity, interpretation and performance of this Note shall be governed by, the internal laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York. The Company hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in The City of New York, Borough of Manhattan, for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein.
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The Company hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. Nothing contained herein shall limit the Holder from bringing suit or taking other legal action against the Company in any other jurisdiction to collect on the Company’s obligations under this Note or to enforce a judgment or other court ruling in favor of the Holder. The Company hereby appoints Lucosky Brookman LLP, legal counsel to the Company, as its agent for service of process in New York.
THE COMPANY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS NOTE OR ANY TRANSACTION CONTEMPLATED HEREBY. The Company and its properties, assets and revenues do not have any right of immunity under New York law from any legal action, suit or proceeding, from the giving of any relief in any legal action, suit or proceeding, from set-off or counterclaim, from the jurisdiction of any New York or United States federal court, from service of process, attachment upon or prior to judgment, attachment in aid of execution of judgment, execution of a judgment, or other legal process or proceeding for the giving of any relief or enforcement of a judgment.
| 19. | JUDGMENT CURRENCY. |
a. If for the purpose of obtaining or enforcing judgment against the Company in any court in any jurisdiction it becomes necessary to convert into any other currency (such other currency being hereinafter in this Section 19 referred to as the “Judgment Currency”) an amount due in U.S. dollars under this Note, the conversion shall be made at the Exchange Rate prevailing on the Business Day immediately preceding:
i. the date actual payment of the amount due, in the case of any proceeding in the courts of New York or in the courts of any other jurisdiction that shall give effect to such conversion being made on such date; or
ii. the date on which the foreign court determines, in the case of any proceeding in the courts of any other jurisdiction (the date as of which such conversion is made pursuant to this Section 19(a)(ii) being hereinafter referred to as the “Judgment Conversion Date”).
b. If in the case of any proceeding in the court of any jurisdiction referred to in Section 19(a)(ii) above, there is a change in the Exchange Rate prevailing between the Judgment Conversion Date and the date of actual payment of the amount due, the applicable party shall pay such adjusted amount as may be necessary to ensure that the amount paid in the Judgment Currency, when converted at the Exchange Rate prevailing on the date of payment, shall produce the amount of US dollars which could have been purchased with the amount of Judgment Currency stipulated in the judgment or judicial order at the Exchange Rate prevailing on the Judgment Conversion Date.
c. Any amount due from the Company under this provision shall be due as a separate debt and shall not be affected by judgment being obtained for any other amounts due under or in respect of this Note.
20. SEVERABILITY. If any provision of this Note is prohibited by law or otherwise determined to be invalid or unenforceable by a court of competent jurisdiction, the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended to apply to the broadest extent that it would be valid and enforceable, and the invalidity or unenforceability of such provision shall not affect the validity of the remaining provisions of this Note so long as this Note as so modified continues to express, without material change, the original intentions of the parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability of the provision(s) in question does not substantially impair the respective expectations or reciprocal obligations of the parties or the practical realization of the benefits that would otherwise be conferred upon the parties. The parties shall endeavor in good faith negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as close as possible to that of the prohibited, invalid or unenforceable provision(s).
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21. MAXIMUM PAYMENTS. Without limiting any provision of the Securities Purchase Agreement, nothing contained herein shall be deemed to establish or require the payment of a rate of interest or other charges in excess of the maximum permitted by applicable law. In the event that the rate of interest required to be paid or other charges hereunder exceed the maximum permitted by such law, any payments in excess of such maximum shall be credited against amounts owed by the Company to the Holder and thus refunded to the Company.
22. CERTAIN DEFINITIONS. For purposes of this Note, the following terms shall have the following meanings:
(a) “Business Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law to remain closed.
(b)”Excluded Securities” means any Ordinary Shares or Ordinary Share Equivalents issued or issuable by the Company: (i) in connection with any employee, consultant or director equity incentive plan or similar arrangement approved by the Board of Directors; (ii) upon exercise or conversion of any securities outstanding as of the Issuance Date; or (iii) pursuant to any equity line of credit or similar arrangement entered into prior to the Issuance Date.
(c)”Indebtedness” means, with respect to any person or entity, (i) all indebtedness for borrowed money, (ii) all obligations evidenced by notes, bonds, debentures or similar instruments, (iii) all obligations under capital leases, and (iv) all guarantees of any of the foregoing.
(d)”Ordinary Share Equivalents” means any securities of the Company that would entitle the holder thereof to acquire at any time Ordinary Shares, including, without limitation, any debt, preferred shares, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Ordinary Shares.
(e)”Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations thereunder.
(f)”Securities Purchase Agreement” means that certain Securities Purchase Agreement, dated as of August 28, 2026, by and among the Company and the investors referred to therein, as amended from time to time.
(g)”Transaction Documents” means this Note, the Securities Purchase Agreement and any other definitive documents executed in connection with the bridge note financing.
23. DISCLOSURE. Upon delivery by the Company to the Holder (or receipt by the Company from the Holder) of any notice in accordance with this Note, unless the Company has in good faith determined that the matters relating to such notice do not constitute material, non-public information relating to the Company, the Company shall, on or prior to 9:30 a.m., New York City time, on the Business Day immediately following such notice delivery date, publicly disclose such material, non-public information on a Current Report on Form 8-K or otherwise. If the Company believes that a notice contains material, non-public information, it shall indicate that in writing; in the absence of such indication, the Holder shall be entitled to presume that the information does not constitute material, non-public information relating to the Company.
24. ABSENCE OF TRADING AND DISCLOSURE RESTRICTIONS. The Company acknowledges and agrees that the Holder is not a fiduciary or agent of the Company and that the Holder shall have no obligation to (a) maintain the confidentiality of any information provided by the Company or (b) refrain from trading any securities while in possession of such information in the absence of a written non-disclosure agreement signed by an officer of the Holder that explicitly provides for such confidentiality and trading restrictions. In the absence of such an executed, written non-disclosure agreement, the Company acknowledges that the Holder may freely trade in any securities issued by the Company, may possess and use any information provided by the Company in connection with such trading activity, and may disclose any such information to any third party.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Company has caused this Promissory Note to be duly executed as of the Issuance Date set out above.
| BLUE GOLD LIMITED | ||
| By: | /s/ Andrew Cavaghan | |
| Name: | Andrew Cavaghan | |
| Title: | Chief Executive Officer | |
[Signature Page to Unsecured Promissory Note]
Exhibit 10.3
NEITHER THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
ORDINARY SHARE PURCHASE WARRANT
BLUE GOLD LIMITED
| Warrant Shares: [●] | Initial Exercise Date: August [●], 2026 |
THIS ORDINARY SHARE PURCHASE WARRANT (the “Warrant”) certifies that, for value received, [●], or its assigns (the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after the Initial Exercise Date set forth above (the “Initial Exercise Date”) and on or prior to 5:00 p.m. (New York City time) on August [●], 2031 (the “Termination Date”) but not thereafter, to subscribe for and purchase from Blue Gold Limited, a Cayman Islands exempted company (the “Company”), up to [●] Ordinary Shares (as subject to adjustment hereunder, the “Warrant Shares”). The purchase price of one Ordinary Share under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
Section 1. Definitions. In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated in this Section 1. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in the Purchase Agreement.
“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Bid Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Ordinary Shares are then listed or quoted on a Trading Market, the bid price of the Ordinary Shares for the time in question (or the nearest preceding date) on the Trading Market on which the Ordinary Shares are then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the Ordinary Shares for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Ordinary Shares are not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Ordinary Shares are then reported on the Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per Ordinary Share so reported, or (d) in all other cases, the fair market value of an Ordinary Share as determined by an independent appraiser selected in good faith by the Holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
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“Board of Directors” means the board of directors of the Company.
“Business Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York generally are open for use by customers on such day.
“Commission” means the United States Securities and Exchange Commission.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Ordinary Share” means each class A ordinary share of the Company, par value $0.0001 per share, and any other class of securities into which such securities may hereafter be reclassified or changed.
“Ordinary Share Equivalents” means any securities of the Company that would entitle the holder thereof to acquire at any time Ordinary Shares, including, without limitation, any debt, preferred shares, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Ordinary Shares.
“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Required Reserved Amount” means 100% of the number of Ordinary Shares that is issuable upon exercise of all Warrants then outstanding (without regard to any limitations on exercise).
“Purchase Agreement” means the securities purchase agreement, dated as of August [●], 2026, among the Company and the purchaser signatories thereto, as amended, modified or supplemented from time to time in accordance with its terms.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Subsidiary” means any subsidiary of the Company and shall, where applicable, also include any direct or indirect subsidiary of the Company formed or acquired after the date hereof.
“Trading Day” means a day on which the Ordinary Shares are traded on a Trading Market.
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“Trading Market” means any of the following markets or exchanges on which the Ordinary Shares are listed or quoted for trading on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange, OTCQB or OTCQX (or any successors to any of the foregoing).
“Variable Rate Transaction” means a transaction in which the Company (i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive, additional Ordinary Shares either (A) at a conversion price, exercise price or exchange rate or other price that is based upon, and/or varies with, the trading prices of or quotations for the Ordinary Shares at any time after the initial issuance of such debt or equity securities or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Ordinary Shares, or (ii) enters into, or effects a transaction under, any agreement whereby the Company may issue securities at a future determined price.
“Transfer Agent” means Continental Stock Transfer & Trust Company, the current transfer agent of the Company, with a mailing address of Attn: Compliance Dept., 1 State Street 30th Floor, New York, NY 10004-1561 and an email address of Compliance@continentalstock.com and oplink@continentalstock.com, and any successor transfer agent of the Company.
“VWAP” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Ordinary Shares are then listed or quoted on a Trading Market, the daily volume weighted average price of the Ordinary Shares for such date (or the nearest preceding date) on the Trading Market on which the Ordinary Shares then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the Ordinary Shares for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Ordinary Shares are not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Ordinary Shares are then reported on the Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per Ordinary Share so reported, or (d) in all other cases, the fair market value of an Ordinary Share as determined by an independent appraiser selected in good faith by the holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
“Warrants” means this Warrant and other Ordinary Share purchase warrants issued by the Company pursuant to the Purchase Agreement.
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Section 2. Exercise.
(a) Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed PDF copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto (the “Notice of Exercise”). Within the earlier of (i) one (1) Trading Day and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined in Section 2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the shares specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United States bank unless the cashless exercise procedure specified in Section 2(c) below is specified in the applicable Notice of Exercise. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise be required. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading Days of the date on which the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise on the Trading Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof.
(b) Exercise Price. The exercise price per Ordinary Share under this Warrant shall be $0.50, subject to adjustment hereunder (the “Exercise Price”).
(c) Cashless Exercise. If at the time of exercise hereof there is no effective registration statement registering, or the prospectus contained therein is not available for the issuance of the Warrant Shares to the Holder, then this Warrant may only be exercised, in whole or in part, at such time by means of a “cashless exercise” in which the Holder shall be entitled to receive a number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
| (A) | = | as applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of Exercise is (1) both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) the Bid Price of the Ordinary Shares on the principal Trading Market as reported by Bloomberg L.P. (“Bloomberg”) as of the time of the Holder’s execution of the applicable Notice of Exercise if such Notice of Exercise is executed during “regular trading hours” on a Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close of “regular trading hours” on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP on the date of the applicable Notice of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered pursuant to Section 2(a) hereof after the close of “regular trading hours” on such Trading Day; |
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| (B) | = | the Exercise Price of this Warrant, as adjusted hereunder; and |
| (X) | = | the number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a cash exercise rather than a cashless exercise. |
If Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the Securities Act, the holding period of the Warrant Shares being issued may be tacked on to the holding period of this Warrant. The Company agrees not to take any position contrary to this Section 2(c).
(d) Mechanics of Exercise.
| (i) | Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant Shares by Holder or (B) the Warrant Shares are eligible for resale by the Holder without volume or manner-of-sale limitations pursuant to Rule 144 (assuming cashless exercise of the Warrants), and otherwise by physical delivery of a certificate, registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by the date that is the earlier of (i) one (1) Trading Day after the delivery to the Company of the Notice of Exercise and (ii) the number of Trading Days comprising the Standard Settlement Period after the delivery to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery Date”). Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received within the earlier of (i) one (1) Trading Day and (ii) the number of Trading Days comprising the Standard Settlement Period following delivery of the Notice of Exercise. If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of the Ordinary Shares on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the third Trading Day after the Warrant Share Delivery Date) for each Trading Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain a transfer agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Ordinary Shares as in effect on the date of delivery of the Notice of Exercise. |
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| (ii) | Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant. |
| (iii) | Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(d)(i) by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise. |
| (iv) | Compensation for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions of Section 2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, Ordinary Shares to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s total purchase price (including brokerage commissions, if any) for the Ordinary Shares so purchased exceeds (y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B) at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of Ordinary Shares that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases Ordinary Shares having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of Ordinary Shares with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver Ordinary Shares upon exercise of the Warrant as required pursuant to the terms hereof. |
| (v) | No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Exercise Price or round up to the next whole share. |
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| (vi) | Charges, Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company, and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided, however, that, in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares. |
| (vii) | Closing of Books. The Company will not close its shareholder books or records in any manner which prevents the timely exercise of this Warrant, pursuant to the terms hereof. |
(e) Holder’s Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of Ordinary Shares beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of Ordinary Shares issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of Ordinary Shares which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or nonconverted portion of any other securities of the Company (including, without limitation, any other Ordinary Share Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 2(e), in determining the number of outstanding Ordinary Shares, a Holder may rely on the number of outstanding Ordinary Shares as reflected in (A) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company or the Transfer Agent setting forth the number of Ordinary Shares outstanding. Upon the written or oral request of a Holder, the Company shall within one Trading Day confirm orally and in writing to the Holder the number of Ordinary Shares then outstanding. In any case, the number of outstanding Ordinary Shares shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties since the date as of which such number of outstanding Ordinary Shares was reported. The “Beneficial Ownership Limitation” shall be 4.99% of the number of Ordinary Shares outstanding immediately after giving effect to the issuance of Ordinary Shares issuable upon exercise of this Warrant. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2(e), provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of Ordinary Shares outstanding immediately after giving effect to the issuance of Ordinary Shares upon exercise of this Warrant held by the Holder and the provisions of this Section 2(e) shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 2(e) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant.
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Section 3. Certain Adjustments.
(a) Share Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a share dividend or otherwise makes a distribution or distributions on Ordinary Shares or any other equity or equity equivalent securities payable in Ordinary Shares (which, for avoidance of doubt, shall not include any Ordinary Shares issued by the Company upon exercise of this Warrant), (ii) subdivides outstanding Ordinary Shares into a larger number of shares, (iii) combines (including by way of reverse share split) outstanding Ordinary Shares into a smaller number of shares, or (iv) issues by reclassification of Ordinary Shares any shares of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which the numerator shall be the number of Ordinary Shares (excluding treasury shares, if any) outstanding immediately before such event and of which the denominator shall be the number of Ordinary Shares outstanding immediately after such event, and the number of shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for the determination of shareholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.
(b) Subsequent Equity Sales. If the Company or any Subsidiary thereof, as applicable, at any time while this Warrant is outstanding, shall sell, enter into an agreement to sell, or grant any option to purchase, or sell or grant any right to reprice, or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any Ordinary Shares or Ordinary Share Equivalents, at an effective price per share less than the Exercise Price then in effect (such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”) (it being understood and agreed that if the holder of the Ordinary Shares or Ordinary Share Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive Ordinary Shares at an effective price per share that is less than the Exercise Price, such issuance shall be deemed to have occurred for less than the Exercise Price on such date of the Dilutive Issuance at such effective price), then simultaneously with the consummation (or, if earlier, the announcement) of each Dilutive Issuance the Exercise Price shall be reduced and only reduced to equal the Base Share Price. Notwithstanding the foregoing, no adjustments shall be made, paid or issued under this Section 3(b) in respect of any Excluded Securities (as defined in the Notes). The Company shall notify the Holder, in writing, no later than the Trading Day following the issuance or deemed issuance of any Ordinary Shares or Ordinary Share Equivalents subject to this Section 3(b), indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice, the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice pursuant to this Section 3(b), upon the occurrence of any Dilutive Issuance, the Holder is entitled to receive a number of Warrant Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Exercise. If the Company enters into a Variable Rate Transaction, the Company shall be deemed to have issued Ordinary Shares or Ordinary Share Equivalents at the lowest possible price, conversion price or exercise price at which such securities may be issued, converted or exercised.
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(c) Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants, issues or sells any Ordinary Share Equivalents or rights to purchase shares, warrants, securities or other property pro rata to the record holders of any class of Ordinary Shares (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of Ordinary Shares acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of Ordinary Shares are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that, to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such Ordinary Shares as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
(d) Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of Ordinary Shares, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”), at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder had held the number of Ordinary Shares acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of Ordinary Shares are to be determined for the participation in such Distribution (provided, however, that, to the extent that the Holder's right to participate in any such Distribution would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership of any Ordinary Shares as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
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(e) Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company or any Subsidiary, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Ordinary Shares are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of greater than 50% of the outstanding Ordinary Shares or greater than 50% of the voting power of the common equity of the Company, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires greater than 50% of the outstanding Ordinary Shares or greater than 50% of the voting power of the common equity of the Company (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of Ordinary Shares of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant in accordance with the provisions of this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall be added to the term “Company” under this Warrant (so that from and after the occurrence or consummation of such Fundamental Transaction, each and every provision of this Warrant and the other Transaction Documents referring to the “Company” shall refer instead to each of the Company and the Successor Entity or Successor Entities, jointly and severally), and the Successor Entity or Successor Entities, jointly and severally with the Company, may exercise every right and power of the Company prior thereto and the Successor Entity or Successor Entities shall assume all of the obligations of the Company prior thereto under this Warrant and the other Transaction Documents with the same effect as if the Company and such Successor Entity or Successor Entities, jointly and severally, had been named as the Company herein. For the avoidance of doubt, the Holder shall be entitled to the benefits of the provisions of this Section 3(e) regardless of (i) whether the Company has sufficient authorized Ordinary Shares for the issuance of Warrant Shares and/or (ii) whether a Fundamental Transaction occurs prior to the Initial Exercise Date.
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(f) Share Combination Event Adjustment. In addition to the other adjustments set forth in this Section 3, if at any time on or after the date of issuance of this Warrant there occurs any share split, reverse share split, share dividend, share combination recapitalization or other similar transaction involving the Ordinary Shares (each, a “Share Combination Event”, and the date thereof, the “Share Combination Event Date”) and the lowest VWAP during the period commencing five (5) consecutive Trading Days immediately preceding and through the five (5) consecutive Trading Days immediately following the Share Combination Event Date (the “Event Market Price”) (provided if the Share Combination Event is effective after close of trading on the Trading Market, then commencing on the next Trading Day, which period shall be the “Share Combination Adjustment Period”) is less than the Exercise Price then in effect (after giving effect to the adjustment in Section 3(a) above), then at the close of trading on the Trading Market on the last day of the Share Combination Adjustment Period, the Exercise Price then in effect shall be reduced (but in no event increased) to the Event Market Price and the number of Warrant Shares issuable upon exercise of this Warrant hereunder shall be proportionately increased such that the aggregate Exercise Price of this Warrant shall remain unchanged.
(g) Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes of this Section 3, the number of Ordinary Shares deemed to be issued and outstanding as of a given date shall be the sum of the number of Ordinary Shares (excluding treasury shares, if any) issued and outstanding.
(h) Notice to Holder.
(i) Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
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(ii) Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Ordinary Shares, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Ordinary Shares, (C) the Company shall authorize the granting to all holders of the Ordinary Shares rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights, (D) the approval of any shareholders of the Company shall be required in connection with any reclassification of the Ordinary Shares, any consolidation or merger to which the Company (or any of its Subsidiaries) is a party, any sale or transfer of all or substantially all of its assets, or any compulsory share exchange whereby the Ordinary Shares are converted into other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by email to the Holder at its last email address as it shall appear upon the Warrant Register of the Company, at least 20 calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Ordinary Shares of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Ordinary Shares of record shall be entitled to exchange their shares of the Ordinary Shares for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent that any notice provided in this Warrant constitutes, or contains, material, non-public information regarding the Company or any of the Subsidiaries, the Company shall simultaneously file such notice with the Commission in a report on an appropriate form. The Holder shall remain entitled to exercise this Warrant during the period commencing on the date of such notice to the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
(i) Voluntary Adjustment By Company. Subject to the rules and regulations of the Trading Market, the Company may at any time during the term of this Warrant reduce the then current Exercise Price to any amount and for any period of time deemed appropriate by the Board of Directors.
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Section 4. Transfer of Warrant.
(a) Transferability. Subject to compliance with any applicable securities laws and the conditions set forth in Section 4(d) hereof and to the provisions of the Purchase Agreement, this Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable, in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written assignment of this Warrant substantially in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the Company assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant Shares without having a new Warrant issued.
(b) New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice.
Warrants issued on transfers or exchanges shall be dated the initial issuance date of this Warrant and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
(c) Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes, absent actual notice to the contrary.
(d) Transfer Restrictions. If, at the time of the surrender of this Warrant in connection with any transfer of this Warrant, the transfer of this Warrant shall not be either (i) registered pursuant to an effective registration statement under the Securities Act and under applicable state securities or blue sky laws or (ii) eligible for resale without volume or manner-of-sale restrictions or current public information requirements pursuant to Rule 144, the Company may require, as a condition of allowing such transfer, that the Holder or transferee of this Warrant, as the case may be, comply with the applicable provisions of the Purchase Agreement.
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(e) Representation by the Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring this Warrant and, upon any exercise hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account and not with a view to or for distributing or reselling such Warrant Shares or any part thereof in violation of the Securities Act or any applicable state securities law, except pursuant to sales registered or exempted under the Securities Act.
Section 5. Miscellaneous.
(a) No Rights as Shareholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights, dividends or other rights as a shareholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly set forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant to Section 2(c) or to receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv) herein, in no event shall the Company be required to net cash settle an exercise of this Warrant.
(b) Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any share certificate relating to the Warrant Shares, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or share certificate, if mutilated, the Company will make and deliver a new Warrant or share certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or share certificate.
(c) Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business Day.
(d) Authorized Shares.
| (i) | The Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Ordinary Shares a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant not less than the Required Reserved Amount. The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of the Trading Market upon which the Ordinary Shares may be listed. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue). |
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| (ii) | Except and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may be, necessary to enable the Company to perform its obligations under this Warrant. |
| (iii) | Before taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory body or bodies having jurisdiction thereof. |
(e) Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Warrant (whether brought against a party hereto or their respective affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, County of New York for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Warrant and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If either party shall commence an action, suit or proceeding to enforce any provisions of this Warrant, the prevailing party in such action, suit or proceeding shall be reimbursed by the other party for their reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
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(f) Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
(g) Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision of this Warrant, if the Company willfully and knowingly fails to comply with any provision of this Warrant, which results in any material damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including, but not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
(h) Notices. Any and all notices or other communications or deliveries to be provided by the Holders hereunder including, without limitation, any Notice of Exercise, shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier service, addressed to the Company to the e-mail address or address and in the manner set forth in the notices section of the Purchase Agreement or such other email address or address as the Company may specify for such purposes by notice to the Holders. Any and all notices or other communications or deliveries to be provided by the Company hereunder shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier service addressed to each Holder at the e-mail address or address of such Holder appearing on the books of the Company. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the time of transmission, if such notice or communication is delivered via e-mail at the e-mail address set forth in this Section prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the time of transmission, if such notice or communication is delivered via e-mail at the e-mail address set forth in this Section on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given. To the extent that any notice provided hereunder constitutes, or contains, material, non-public information regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice with the Commission in a report on an appropriate form.
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(i) Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase price of any Ordinary Shares or as a shareholder of the Company, whether such liability is asserted by the Company or by creditors of the Company.
(j) Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any action for specific performance that a remedy at law would be adequate.
(k) Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable by the Holder or holder of Warrant Shares.
(l) Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company, on the one hand, and the Holder, on the other hand.
(m) Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
(n) No Expense Reimbursement. The Holder shall in no way be required the pay, or to reimburse the Company for, any fees or expenses of the Company’s transfer agent in connection with the issuance or holding or sale of the Ordinary Shares, Warrant and/or Warrant Shares. The Company shall solely be responsible for any and all such fees and expenses.
(o) Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.
********************
(Signature Page Follows)
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
| BLUE GOLD LIMITED | |||
| By: | |||
| Name: | Andrew Cavaghan | ||
| Title: | Chief Executive Officer | ||
NOTICE OF EXERCISE
TO: BLUE GOLD LIMITED
(1) The undersigned hereby elects to purchase __________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) Payment shall take the form of (check applicable box):
☐ in lawful money of the United States; or
☐ if permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection 2(c), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure set forth in subsection 2(c).
(3) Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
______________________________
The Warrant Shares shall be delivered to the following DWAC Account Number:
______________________________
______________________________
______________________________
[SIGNATURE OF HOLDER]
Name of Investing Entity: ___________________________________________________________________________
Signature of Authorized Signatory of Investing Entity: _____________________________________________________
Name of Authorized Signatory: _______________________________________________________________________
Title of Authorized Signatory: ________________________________________________________________________
Date: ___________________________________________________________________________________________
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this form and supply required information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
| Name: | ______________________________ | |
| (Please Print) | ||
| Address: | ______________________________ | |
| (Please Print) | ||
| Phone Number: | ______________________________ | |
| Email Address: | ______________________________ | |
| Dated: ____________________, _____ | ||
| Holder’s Signature: ________________ | ||
| Holder’s Address: _________________ |
Exhibit 10.4
EXHIBIT A
AMENDMENT TO FACILITY AGREEMENT
This AMENDMENT TO FACILITY AGREEMENT (this “Amendment”) is dated and effective as of the September 11, 2026 (the “Amendment Effective Date”), by and between BLUE GOLD LIMITED, a Cayman Islands exempt company (the “Company”) and Kaela Ritchie (the “Lender,” and together with the Company, the “Parties”).
RECITALS
WHEREAS, the Company and the Lender entered into and executed that certain Facility Agreement, dated as of May 5, 2026 (such Facility Agreement, together with all renewals, extensions, future advances, further amendments, modifications, substitutions, or replacements thereof, collectively referred to as the “Facility Agreement”); and
WHEREAS, pursuant to the Facility Agreement, the Lender is providing a drawdown loan facility to the Company of up to US $4,000,000 (Four Million United States Dollars), subject to increase upon the mutual agreement of Lender and Company; and
WHEREAS, the Lender and the Company desire to amend the Facility Agreement in certain respects as set forth in Section 4 of this Amendment; and
NOW, THEREFORE, in consideration of the premises and the mutual covenants of the parties hereinafter expressed and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, each intending to be legally bound, agree as follows:
1. Recitals. The recitations set forth in the preamble of this Amendment are true and correct and incorporated herein by this reference.
2. Capitalized Terms. All capitalized terms used in this Amendment shall have the same meaning ascribed to them in the Facility Agreement, as applicable, except as otherwise specifically set forth herein.
3. Conflicts. In the event of any conflict or ambiguity by and between the terms and provisions of this Amendment and the terms and provisions of the Facility Agreement, as the case may be, the terms and provisions of this Amendment shall control, but only to the extent of any such conflict or ambiguity.
4. Amendment to Facility Agreement.
(a) Section 2.2 of the Facility Agreement is hereby deleted in its entirety and replaced with the following:
“Notwithstanding anything to the contrary contained herein, at any time and from time to time prior to the date of Maturity, the Lender shall have the right, but not the obligation, to deliver a mandatory conversion notice to the Borrower requiring the Borrower to convert all or any portion of the outstanding Advance Balance into shares of the Borrower’s Class A ordinary shares, par value $0.0001 per share (collectively, the “Conversion Shares”), at a conversion price per share of $0.50 (subject to adjustment for any stock splits, stock dividends, stock combinations, recapitalizations or other similar transactions that occur with respect to the Class A ordinary shares following the Effective Date).”
5. Representations and Warranties of the Company. The Company hereby represents and warrants to the Lender that Lender: the execution and delivery by the Company of this Amendment, and all other documents executed and delivered in connection herewith and therewith, and the performance by Company of all of its obligations hereunder and thereunder, have been duly and validly authorized and approved by the Company and its board of directors pursuant to all applicable laws, and no other corporate or company action or consent on the part of the Company or its board of directors, is necessary or required by the Company to execute this Amendment, and the documents executed and delivered in connection herewith and therewith, to consummate the transactions contemplated herein and therein, or perform all of the Company’s obligations hereunder and thereunder. This Amendment, and each of the documents executed and delivered in connection herewith and therewith have been duly and validly executed by the Company (and the Person executing this Amendment, and all such other documents for the Company is duly authorized to act and execute same on behalf of Company) and constitute the valid and legally binding agreements of the Company, enforceable against the Company in accordance with their respective terms, except as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and other similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies.
6. Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Amendment shall be governed by the internal law of the State of New York.
7. Effect on Agreement and Transaction Documents. Except as expressly amended by this Amendment, all of the terms and provisions of the Facility Agreement shall remain and continue in full force and effect after the execution of this Amendment, are hereby ratified and confirmed, and incorporated herein by this reference.
8. Execution. This Amendment may be executed in one or more counterparts, all of which taken together shall be deemed and considered one and the same Amendment. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf’ format file or other similar format file, such signature shall be deemed an original for all purposes and shall create a valid and binding obligation of the party executing same with the same force and effect as if such facsimile or “.pdf’ signature page was an original thereof.
[Signatures on the following page]
IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment as of the day and year first above written.
| The Company: | ||
| BLUE GOLD LIMITED | ||
| By: | /s/ Andrew Cavaghan | |
| Name: | Andrew Cavaghan | |
| Title: | Chief Executive Officer | |
| Lender: | ||
| Kaela Ritchie | ||
| By: Kaela Ritchie | ||
| By: | /s/ Kaela Ritchie | |
| Name: | Kaela Ritchie | |
Exhibit 10.5
AMENDED AND RESTATED INDEMNITY AGREEMENT
This Amended and Restated Indemnity Agreement (the “Agreement”), between Blue Gold Limited, an exempted company incorporated with limited liability under the law of the Cayman Islands (the “Company”), and [________] a [[director][officer] of the Company or one of the Company’s subsidiaries][key employee or other service provider who satisfies the definition of Indemnifiable Person set forth below] (“Indemnitee”) is dated [_________], 2026 (the “Effective Date”).
WHEREAS, the Company is aware that competent and experienced persons are increasingly reluctant to serve as representatives of companies unless they are protected by comprehensive liability insurance and indemnification, due to increased exposure to litigation costs and risks resulting from their service to such companies, and due to the fact that the exposure frequently bears no reasonable relationship to the compensation of such representatives;
WHEREAS, the members of the board of directors of the Company have concluded that to retain and attract talented and experienced individuals to serve as representatives of the Company and its subsidiaries and Affiliates and to encourage such individuals to take the business risks necessary for the success of the Company and its subsidiaries and affiliates, it is necessary for the Company to contractually indemnify certain of its representatives and the representatives of its subsidiaries and affiliates, for claims against such representatives in connection with their service; and
WHEREAS, the Company desires and has requested Indemnitee to serve or continue to serve as a representative of the Company and/or one or more of its subsidiaries or affiliates free from undue concern about unreasonable claims for damages arising out of or related to such services; and
WHEREAS, the Company and Indemnitee are parties to an indemnity agreement dated [_________] (the “Prior Agreement”) and wish to amend and restate the Prior Agreement in its entirety on the terms set forth herein.
NOW THEREFORE, in consideration of the premises and the mutual covenants contained herein and for other valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows:
1. Definitions. For purposes of this Agreement, the following terms have the following respective meanings:
(a) “Affiliate” of the Company means any corporation, company, partnership, limited liability company, joint venture, trust or other enterprise in respect of which Indemnitee is or was or will be serving as a director, officer, trustee, manager, member, partner, employee, agent, attorney, consultant, member of the entity’s governing body (whether constituted as a board of directors, board of managers, general partner or otherwise), fiduciary, or in any other similar capacity at the request, election or direction of the Company, and including, but not limited to, any employee benefit plan of the Company or a Subsidiary or Affiliate of the Company.
(b) “Agreement” has the meaning set forth in the introduction hereto.
(c) “Board” means the board of directors of the Company.
(d) “Change in Control” means (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than a Subsidiary or a trustee or other fiduciary holding securities under an employee benefit plan of the Company or Subsidiary, is or becomes the “Beneficial Owner” (as defined in Rule 13d-3 under said Act), directly or indirectly, of securities of the Company representing 50% or more of the total voting power represented by the Company’s then outstanding shares, or (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board and any new director whose election by the Board or nomination for election by the Company’s shareholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority, or (iii) the shareholders of the Company approve a merger or consolidation of the Company with any other company, other than a merger or consolidation that would result in the shares of the Company outstanding immediately before continuing to represent (either by remaining outstanding or by being converted into shares or capital stock of the surviving entity) at least 80% of the total voting power represented by the shares of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the shareholders of the Company approve a plan of voluntary liquidation of the Company or an agreement for the sale or disposition by the Company (in one transaction or a series of transactions) of all or substantially all of the Company’s assets.
(e) “Company” means Blue Gold Limited, an exempted company incorporated with limited liability under the law of the Cayman Islands.
(f) “Effective Date” has the meaning set forth in the introduction to this Agreement.
(g) “Expenses” means all direct and indirect costs of any type or nature whatsoever (including, without limitation, all attorneys’ fees and related disbursements, bonds and other out-of-pocket costs), paid or incurred by Indemnitee in connection with either the investigation, defense or appeal of, or being a witness in a Proceeding (as defined below), or establishing or enforcing a right to indemnification under this Agreement or otherwise; provided, however, that Expenses shall not include any judgments, fines, excise taxes or penalties or amounts paid in settlement of a Proceeding.
(h) “Indemnifiable Event” means any event or occurrence related to Indemnitee’s service for the Company or any Subsidiary or Affiliate as an Indemnifiable Person (as defined below), or by reason of anything done or not done, or any act or omission, by Indemnitee in any such capacity.
(i) “Indemnifiable Person” means any person who is or was a director, officer, employee, attorney, trustee, manager, member, partner, consultant, member of an entity’s governing body (whether constituted as a board of directors, board of managers, general partner or otherwise) or other agent or fiduciary of the Company or a Subsidiary or Affiliate of the Company.
(j) “Indemnitee” has the meaning set forth in the introduction to this Agreement.
(k) “Independent Director” has the meaning set forth in Section 6(b) hereof.
(l) “Independent Counsel” means legal counsel that has not performed services for the Company or Indemnitee in the five years preceding the time in question and that would not, under applicable standards of professional conduct, have a conflict of interest in representing either the Company or Indemnitee.
(m) “M&A” means the Company’s amended and restated memorandum and articles of association as they may be amended from time to time.
(n) “Obligation” has the meaning set forth in Section 3(d) hereof.
(o) “Other Indemnitor” has the meaning set forth in Section 3(c) hereof.
(p) “Other Liabilities” means any and all liabilities of any type whatsoever incurred by Indemnitee in connection with the performance by the Indemnitee of the services pursuant to Section 2 hereof and the taking of actions and entering agreements or other arrangements in connection with and for the benefit of the business of the Company, including any and all liabilities incurred by reason of or in connection with the Indemnitee holding the position at the Company or any of its Subsidiaries or Affiliates to which he or she has been appointed or elected (including, but not limited to, judgments, fines, penalties, any and all benefit plan related excise taxes or penalties, and amounts paid in settlement and all interest, taxes, assessments and other charges paid or payable in connection with or in respect of any such judgments, fines, any and all benefit plan related excise taxes or penalties, or amounts paid in settlement).
(q) “Prior Agreement” has the meaning set forth in the recitals to this Agreement.
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(r) “Proceeding” means any threatened, pending, or completed action, suit, inquiry or other proceeding, whether brought by or in the right of the Company or otherwise and whether civil, criminal, administrative, investigative, legislative or any other type whatsoever, preliminary, informal or formal, including any arbitration or other alternative dispute resolution and including any appeal of any of the foregoing.
(s) “Reviewing Party” has the meaning set forth in Section 8(c) hereof
(t) “Subsidiary” means any entity of which more than 50% of the outstanding voting securities is owned directly or indirectly by the Company.
2. Agreement to Serve. The Indemnitee agrees to serve and/or continue to serve as an Indemnifiable Person in the capacity or capacities in which Indemnitee currently serves the Company as an Indemnifiable Person, and any additional capacity in which Indemnitee may agree to serve, until such time as Indemnitee’s service in a particular capacity shall end according to the terms of an agreement, the M&A, applicable law, or otherwise. Nothing contained in this Agreement is intended to create any right to continued employment or other form of service for the Company or a Subsidiary or Affiliate of the Company by Indemnitee. The Company acknowledges that it has entered into this Agreement with Indemnitee to induce Indemnitee to serve as an Indemnifiable Person, and the Company further acknowledges that Indemnitee is relying upon this Agreement in serving as an Indemnifiable Person.
3. Mandatory Indemnification.
(a) Agreement to Indemnify. The Company shall indemnify Indemnitee from and against any and all Expenses and Other Liabilities incurred by Indemnitee in connection with the performance by the Indemnitee of the services pursuant to Section 2 hereof and for any Expenses and Other Liabilities or in connection with any Proceeding (including in preparation for such Proceeding) to the fullest extent not prohibited by the provisions of the M&A and applicable law.
(b) Exception for Amounts Covered by Insurance and Other Sources. Notwithstanding the foregoing, except as provided in Section 3(c), the Company shall not be obligated to indemnify Indemnitee for Expenses or Other Liabilities of any type whatsoever (including, but not limited to judgments, fines, penalties, any and all benefit plan related excise taxes or penalties and amounts paid in settlement) to the extent such have been paid directly to Indemnitee (or paid directly to a third party on Indemnitee’s behalf) by any directors and officers, or other type, of insurance maintained by the Company or other indemnity arrangements with third parties.
(c) Company Obligations Primary. The Company acknowledges that an Indemnitee that is a member of the Board may have rights to indemnification for Expenses and Other Liabilities provided by another sponsoring organization (“Other Indemnitor”). The Company agrees with such an Indemnitee that the Company is the indemnitor of first resort of such Indemnitee with respect to matters for which indemnification is provided under this Agreement and that the Company will be obligated to make all payments due to or for the benefit of such Indemnitee under this Agreement without regard to any rights that such Indemnitee may have against the Other Indemnitor. The Company waives any equitable rights to contribution or indemnification from the Other Indemnitor in respect of any amounts paid to such Indemnitee. The Company further agrees that no reimbursement of Other Liabilities or payment of Expenses by the Other Indemnitor to or for the benefit of such Indemnitee shall affect the obligations of the Company, and that the Company shall be obligated to repay the Other Indemnitor for all amounts so paid or reimbursed to the extent that the Company has an obligation to indemnify such Indemnitee for such Expenses or Other Liabilities.
(d) Personal Guarantee Indemnification. Without limiting the generality of Section 3(a) and for the avoidance of doubt, the Company shall, to the fullest extent not prohibited by the provisions of the M&A and applicable law, indemnify and hold harmless any Indemnitee who has issued any guarantee for any loan, credit facility, lease, or other financial obligation for the direct or indirect benefit of Company or any corporation, company, partnership, limited liability company, joint venture, trust or other enterprise that was prior to the date hereof, is as of the date hereof, and becomes at any time after the date hereof a Subsidiary or Affiliate of the Company (each such obligation, an “Obligation”), from and against any and all Expenses, Other Liabilities, losses, claims, damages, liabilities, costs and charges (including, without limitation, all interest, penalties, legal fees, accounting fees and any other professional fees and expenses) arising from or in connection with (i) the enforcement, calling upon or exercise of any rights under any such guarantee by any creditor, lender or other obligee, (ii) any demand, claim or action made or brought against Indemnitee in respect of such guarantee, (iii) any payment made or required to be made by Indemnitee in satisfaction of any such guarantee, or (iv) the negotiation, defence or settlement of any claim relating to such guarantee. Such indemnification shall apply regardless of whether the Obligation was incurred before or after the Effective Date and regardless of whether the guarantee was documented in a formal written instrument, provided that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company or any of its Subsidiaries or Affiliates in providing such personal guarantee.
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4. Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of any Expenses or Other Liabilities but not entitled, however, to indemnification for the total amount of such Expenses or Other Liabilities, the Company shall nevertheless indemnify Indemnitee for such total amount except as to the portion for which indemnification is prohibited by the provisions of the M&A or applicable law. In any review or Proceeding to determine the extent of indemnification, the Company shall bear the burden to establish, by clear and convincing evidence, the lack of a successful resolution of a particular claim, issue or matter and which amounts sought in indemnity are allocable to claims, issues or matters which were not successfully resolved.
5. Liability Insurance. So long as Indemnitee shall continue to serve the Company or a Subsidiary or Affiliate of the Company as an Indemnifiable Person and so long as Indemnitee shall be subject to any possible claim or threatened, pending or completed Proceeding as a result of an Indemnifiable Event, the Company shall use reasonable efforts to maintain in full force and effect for the benefit of Indemnitee as an insured (i) liability insurance issued by one or more reputable insurers and having the policy amount and deductible deemed appropriate by the Board and providing in all respects coverage at least comparable to and in the same amount as that provided to the Chairman of the Board or a Chief Executive Officer of the Company and (ii) any replacement or substitute policies issued by one or more reputable insurers providing in all respects coverage at least comparable to and in the same amount as that being provided to the Chairman of the Board or a Chief Executive Officer of the Company. The purchase, establishment and maintenance of any such insurance or other arrangements shall not in any way limit or affect the rights and obligations of the Company or of Indemnitee under this Agreement except as expressly provided, and the execution and delivery of this Agreement by the Company and Indemnitee shall not in any way limit or affect the rights and obligations of the Company or the other party or parties under any such insurance or other arrangement.
6. Mandatory Advancement of Expenses.
(a) Advancement. If requested by Indemnitee, the Company shall advance before the final disposition of the Proceeding all Expenses and reasonably incurred by Indemnitee in connection with (including in preparation for) a Proceeding related to an Indemnifiable Event. Indemnitee undertakes to repay such amounts advanced if, and only if and to the extent that, it shall ultimately be determined that Indemnitee is not entitled to be indemnified by the Company under the provisions of this Agreement, the M&A or applicable law. The advances to be made shall be paid by the Company to Indemnitee or directly to a third party designated by Indemnitee within thirty (30) days following delivery of a written request by Indemnitee to the Company. Indemnitee’s undertaking to repay any Expenses advanced to Indemnitee shall be unsecured and shall not be subject to the accrual or payment of any interest and shall not be conditioned upon Indemnitee’s ability to repay such advances.
(b) Exception. Notwithstanding the provisions of Section 6(a), the Company shall not be obligated to make any further advance of Expenses to Indemnitee if any one of the following determines in good faith that the facts known to them at the time such determination is made demonstrate clearly and convincingly that Indemnitee acted in bad faith: (i) those members of the Board consisting of directors who were not parties to the Proceeding for which a claim is made under this Agreement (“Independent Directors”), even though less than a quorum, (ii) by a committee of Independent Directors designated by a majority vote of Independent Directors, even though less than a quorum, (iii) Independent Counsel, by written legal opinion, or (iv) a panel of arbitrators (one of whom is selected by the Company, another of whom is selected by Indemnitee and the last of whom is selected by the first two arbitrators so selected). The Company shall have the option to submit the question of whether Indemnitee has acted in bad faith to one of the four alternative decision makers set forth in the preceding sentence and to select the decision maker, but following a favorable determination to Indemnitee rendered by the first decision maker selected, the Company may not submit the matter to another of the named decision makers. If the Company elects to submit the matter to Independent Counsel, such counsel shall be selected by Indemnitee and approved by the Independent Directors or a committee of Independent Directors (which approval may not be unreasonably withheld). Any decision maker so selected shall render a decision within thirty (30) days of such decision maker’s selection (which shall include in the case of Independent Counsel or a panel of arbitrators, when the person or persons acting as such counsel or such panel has or have been selected as provided above). If a decision is made by the decision maker that Indemnitee acted in bad faith, Indemnitee shall have the right to apply to the courts of the Cayman Islands for the purpose of determining whether Indemnitee has acted in bad faith.
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7. Notice and Other Indemnification Procedures.
(a) Notification. Promptly after receipt by Indemnitee of notice of the commencement of or the threat of commencement of any Proceeding, Indemnitee shall, if Indemnitee believes that indemnification or advancement of Expenses with respect may be sought from the Company under this Agreement, notify the Company of the commencement or threat of commencement. However, a failure so to notify the Company promptly following Indemnitee’s receipt of such notice shall not relieve the Company from any liability that it may have to Indemnitee except to the extent that the Company is actually and materially prejudiced in its defense of such Proceeding as a result of such failure.
(b) Insurance and Other Matters. If, at the time of the receipt of a notice of the commencement of a Proceeding under Section 7(a), the Company has director and officer liability insurance in effect, the Company shall give prompt notice of the commencement of such Proceeding to the issuers in accordance with the procedures set forth in the respective policies. The Company shall take all reasonable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such insurance policies.
(c) Assumption of Defense. If the Company shall be obligated to advance the Expenses for any Proceeding against Indemnitee, the Company, if deemed appropriate by the Company, shall be entitled to assume the defense of such Proceeding. Such defense by the Company may include the representation of two or more parties by one attorney or law firm as permitted under the ethical rules and legal requirements related to joint representations. Following delivery of written notice to Indemnitee of the Company’s election to assume the defense of such Proceeding, the approval by Indemnitee (which approval shall not be unreasonably withheld) of counsel designated by the Company and the retention of such counsel by the Company, the Company will not be liable to Indemnitee under this Agreement for any fees and expenses of counsel subsequently incurred by Indemnitee with respect to the same Proceeding. If (A) the employment of counsel by Indemnitee has been previously authorized by the Company, (B) Indemnitee shall have notified the Board in writing that Indemnitee has reasonably concluded that there is likely to be a conflict of interest between the Company and Indemnitee in the conduct of any such defense, or (C) the Company fails to employ counsel to assume the defense of such Proceeding, the fees and expenses of Indemnitee’s counsel shall be subject to indemnification and/or advancement under the terms of this Agreement. Nothing shall prevent Indemnitee from employing counsel for any such Proceeding at Indemnitee’s expense.
(d) Settlement. The Company shall not be liable to indemnify Indemnitee under this Agreement or otherwise for any amounts paid in settlement of any Proceeding effected without the Company’s written consent; provided, however, that if a Change in Control has occurred, the Company shall be liable for indemnification of Indemnitee for amounts paid in settlement if the Independent Counsel has approved the settlement. Neither the Company nor any Subsidiary or Affiliate of the Company shall enter into a settlement of any Proceeding that might result in the imposition of any Expense, Other Liability, penalty, limitation or detriment on Indemnitee, whether indemnifiable under this Agreement or otherwise, without Indemnitee’s written consent. Neither the Company nor Indemnitee shall unreasonably withhold consent from any settlement of any Proceeding.
8. Determination of Right to Indemnification.
(a) Success on the Merits or Otherwise. To the extent that Indemnitee has been successful on the merits or otherwise in defense of any Proceeding referred to in Section 3(a) or in the defense of any claim, issue or matter, the Company shall indemnify Indemnitee against Expenses actually and reasonably incurred.
(b) Indemnification in Other Situations. If Section 8(a) is inapplicable, the Company shall also indemnify Indemnitee if he or she has not failed to meet the applicable standard of conduct for indemnification.
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(c) Forum. Indemnitee shall be entitled to select the forum in which determination of whether or not Indemnitee has met the applicable standard of conduct shall be decided, and such election will be made from among the following:
(1) Those members of the Board who are Independent Directors even though less than a quorum;
(2) A committee of Independent Directors designated by a majority vote of Independent Directors, even though less than a quorum; or
(3) Independent Counsel selected by Indemnitee and approved by the Board, which approval may not be unreasonably withheld, which counsel shall make such determination in a written opinion.
If Indemnitee is an officer or a director of the Company at the time that Indemnitee is selecting the forum, then Indemnitee shall not select Independent Counsel as such forum unless there are no Independent Directors or unless the Independent Directors agree to the selection of independent counsel as the forum. The selected forum shall be referred to as the “Reviewing Party.” Notwithstanding the foregoing, following any Change in Control, the Reviewing Party shall be Independent Counsel selected in the manner provided in Section 8(c)(3) above.
(d) As soon as practicable, and in no event later than thirty (30) days after receipt by the Company of written notice of Indemnitee’s choice of forum under Section 8(c) above, the Company and Indemnitee shall each submit to the Reviewing Party such information as they believe is appropriate for the Reviewing Party to consider. The Reviewing Party shall arrive at its decision within a reasonable period of time following the receipt of all such information from the Company and Indemnitee, but in no event later than thirty (30) days following the receipt of all such information, provided that the time by which the Reviewing Party must reach a decision may be extended by mutual agreement of the Company and Indemnitee. Indemnitee shall cooperate with the Reviewing Party, including providing to the Reviewing Party, upon reasonable advance request, any documentation or information which is not subject to attorney-client privilege or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to the Reviewing Party’s determination. The Reviewing Party shall act reasonably and in good faith in making a determination under this Section 8. All Expenses associated with the process set forth in this Section 8(d), including but not limited to the Expenses of the Reviewing Party, shall be paid by the Company.
(e) Expenses. The Company shall indemnify Indemnitee against all Expenses incurred by Indemnitee in connection with any hearing or Proceeding under this Section 8 or under Section 6(b) involving Indemnitee and against all Expenses and Other Liabilities incurred by Indemnitee in connection with any other Proceeding between the Company and Indemnitee involving the interpretation or enforcement of the rights of Indemnitee under this Agreement unless a court of competent jurisdiction finds that each of the material claims of Indemnitee in any such Proceeding was frivolous or made in bad faith.
(f) Determination of “Good Faith”. For purposes of any determination of whether Indemnitee acted in “good faith” or acted in “bad faith,” Indemnitee shall be deemed to have acted in good faith or not acted in bad faith if in taking or failing to take the action in question Indemnitee relied on the records or books of account of the Company or a Subsidiary or Affiliate of the Company, including financial statements, or on information, opinions, reports or statements provided to Indemnitee by the officers or other employees of the Company or a Subsidiary or Affiliate of the Company in the course of their duties, or on the advice of legal counsel for the Company or a Subsidiary or Affiliate of the Company, or on information or records given or reports made to the Company or a Subsidiary or Affiliate of the Company by an independent certified public accountant or by an appraiser or other expert selected by the Company or a Subsidiary or Affiliate of the Company, or by any other person (including legal counsel, accountants and financial advisors) as to matters Indemnitee reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company. In connection with any determination as to whether Indemnitee is entitled to be indemnified, or to advancement of expenses, the Reviewing Party, decision maker under Section 6(b) or court shall presume that Indemnitee has satisfied the applicable standard of conduct and is entitled to indemnification or advancement of Expenses, as the case may be, and the burden of proof shall be on the Company to establish, by clear and convincing evidence, that Indemnitee is not so entitled. The provisions of this Section 8(f) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement. In addition, the knowledge and/or actions, or failures to act, of any other person serving the Company or a Subsidiary or Affiliate of the Company as an Indemnifiable Person shall not be imputed to Indemnitee for purposes of determining the right to indemnification. Notwithstanding anything in this Agreement to the contrary, no determination as to Indemnitee’s entitlement to indemnification shall be required to be made before the final disposition of a Proceeding.
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9. Exceptions. Any other provision to the contrary notwithstanding,
(a) Claims Initiated by Indemnitee. The Company shall not be obligated under the terms of this Agreement to indemnify or advance Expenses to Indemnitee with respect to Proceedings or claims initiated or brought voluntarily by Indemnitee and not by way of defense, except (1) with respect to Proceedings brought to establish or enforce a right to indemnification under this Agreement, any other statute or law or otherwise, (2) where the Board has consented to the initiation of such Proceeding, or (3) with respect to Proceedings brought to discharge Indemnitee’s fiduciary responsibilities, but such indemnification or advancement of Expenses may be provided by the Company in specific cases if the Board finds it to be appropriate; or
(b) Section 16(b) Actions. The Company shall not be obligated under the terms of this Agreement to indemnify Indemnitee on account of any suit in which judgment is rendered against Indemnitee for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company under the provisions of Section 16(b) of the Securities Exchange Act of l934, as amended, or similar provisions of any applicable law in the event that the provisions of such Section 16(b) are made applicable after the date hereof to officers or directors of foreign private issuers as defined in Rue 405 under the U.S. Securities Act of 1933, as amended; or
(c) Unlawful Indemnification. The Company shall not be obligated under the terms of this Agreement to indemnify Indemnitee for Other Liabilities if such indemnification is prohibited by law.
10. Non-exclusivity. The provisions for indemnification and advancement of Expenses set forth in this Agreement shall not be deemed exclusive of any other rights which Indemnitee may have under any provision of law, the M&A, the vote of the Company’s shareholders or disinterested directors, other agreements, or otherwise, both as to acts or omissions in his or her official capacity and to acts or omissions in another capacity while serving the Company or a Subsidiary or Affiliate of the Company as an Indemnifiable Person and Indemnitee’s rights shall continue after Indemnitee has ceased serving the Company or a Subsidiary or Affiliate of the Company as an Indemnifiable Person and shall inure to the benefit of the successors and assigns, heirs, executors, personal and legal representatives, and administrators of Indemnitee.
11. Severability. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever, (i) the validity, legality and enforceability of the remaining provisions of the Agreement (including, without limitation, all portions of any paragraphs of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) shall not in any way be affected or impaired, and (ii) to the fullest extent possible, the provisions of this Agreement (including, without limitation, all portions of any paragraphs of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.
12. Modification and Waiver. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both of the parties. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision (regardless of whether similar) and except as expressly provided, no such waiver shall constitute a continuing waiver.
13. Successors and Assigns. The terms of this Agreement shall bind, and shall inure to the benefit of, the successors and assigns, heirs, executors, personal and legal representatives, and administrators of the parties.
14. Notice. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed duly given (i) if delivered by hand and a receipt is provided by the party to whom such communication is delivered, (ii) if mailed by certified or registered mail with postage prepaid, return receipt requested, on the signing by the recipient of an acknowledgement of receipt form accompanying delivery through the internationally recognized delivery service, (iii) personal service by a process server, or (iv) delivery to the recipient’s address by overnight delivery or other commercial delivery service. Addresses for notice to either party are as shown on the signature page of this Agreement, or as subsequently modified by written notice complying with the provisions of this Section 14. Delivery of communications to the Company with respect to this Agreement shall be sent to the attention of the Company’s General Counsel.
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15. No Presumptions. For purposes of this Agreement, the termination of any Proceeding, by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law or otherwise. In addition, neither the failure of the Company or a Reviewing Party or one of the decision makers described in Section 6(b) to have made a determination as to whether Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual determination by the Company including a determination under Section 6(b), or a Reviewing Party that Indemnitee has not met such standard of conduct or did not have such belief, before the commencement of Proceedings by Indemnitee to secure a judicial determination by exercising Indemnitee’s rights under Section 6(b) of this Agreement shall be a defense to Indemnitee’s claim or create a presumption that Indemnitee has failed to meet any particular standard of conduct or did not have any particular belief or is not entitled to indemnification under applicable law or otherwise.
16. Survival of Rights. The rights conferred on Indemnitee by this Agreement shall continue after Indemnitee has ceased to serve the Company or a Subsidiary or Affiliate of the Company as an Indemnifiable Person and shall inure to the benefit of Indemnitee’s successors and assigns, heirs, executors, personal and legal representatives, and administrators.
17. Subrogation and Contribution.
(a) Except as otherwise expressly provided in this Agreement, in the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all documents required and shall do all acts that may be necessary to secure such rights and to enable the Company effectively to bring suit to enforce such rights.
(b) Whether or not the indemnification provided for in this Agreement is available to Indemnitee, in respect of any Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding), the Company shall pay, in the first instance, the entire amount of any judgment or settlement of such Proceeding without prejudice to any right of contribution it may have against Indemnitee.
(c) Without diminishing or impairing the obligations of the Company in Section 17(b), if, for any reason, Indemnitee shall elect or be required to pay all or any portion of any judgment or settlement in any Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding), the Company shall contribute to the amount of Expenses and Other Liabilities paid in settlement and actually and reasonably incurred and paid or payable by Indemnitee in proportion to the relative benefits received by the Company and all officers, directors or employees of the Company, other than Indemnitee, who are jointly liable with Indemnitee (or would be if joined in such Proceeding), on the one hand, and Indemnitee, on the other hand, from the transaction from which such Proceeding arose; provided, however, that the proportion determined on the basis of relative benefit may, to the extent necessary to conform to law, be further adjusted by reference to the relative fault of the Company and all officers, directors or employees of the Company other than Indemnitee who are jointly liable with Indemnitee (or would be if joined in such Proceeding), on the one hand, and Indemnitee, on the other hand, in connection with the events that resulted in such Expenses and Other Liabilities, as well as any other equitable considerations which the law may require to be considered. The relative fault of the Company and all officers, directors or employees of the Company, other than Indemnitee, who are jointly liable with Indemnitee (or would be if joined in such Proceeding), on the one hand, and Indemnitee, on the other hand, shall be determined by reference to, among other things, the degree to which their actions were motivated by intent to gain personal profit or advantage, the degree to which their liability is primary or secondary and the degree to which their conduct is active or passive.
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(d) The Company agrees to fully indemnify and hold Indemnitee harmless from any claims of contribution which may be brought by officers, directors or employees of the Company, other than Indemnitee, who may be jointly liable with Indemnitee.
(e) To the fullest extent permissible under applicable law and without diminishing or impairing the obligations of the Company set forth in Section 17(b), Section 17(c), and Section 17(d), if the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount incurred by or on behalf of Indemnitee, whether for Other Liabilities and/or for Expenses, in connection with any claim relating to an Indemnifiable Event under this Agreement, in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and Indemnitee as a result of the event(s) and/or transaction(s) giving cause to such Proceeding; and/or (ii) the relative fault of the Company (and its directors, officers, employees and agents) and Indemnitee in connection with such event(s) and/or transaction(s).
18. Security. To the extent requested by Indemnitee and approved by the Board, the Company may at any time and from time to time provide security to Indemnitee for the Company’s obligations through an irrevocable bank line of credit, funded trust or other collateral.
19. Specific Performance, Etc. The parties recognize that if any provision of this Agreement is violated by the Company, Indemnitee may be without an adequate remedy at law. Accordingly, in the event of any such violation, Indemnitee shall be entitled, if Indemnitee so elects, to institute Proceedings, either in law or at equity, to obtain damages, to enforce specific performance, to enjoin such violation, or to obtain any relief or any combination of the foregoing as Indemnitee may elect to pursue.
20. Counterparts. This Agreement may be executed in counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute one and the same agreement. Only one such counterpart signed by the party against whom enforceability is sought needs to be produced to evidence the existence of this Agreement.
21. Headings. The headings of the sections and paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction or interpretation.
22. Governing Law. This Agreement shall be governed by and construed accordance with law of the Cayman Islands, as applied to contracts between residents thereof entered into and to be performed entirely therein.
23. Consent to Jurisdiction. The Company and Indemnitee each irrevocably consent to the jurisdiction of the courts of the Cayman Islands for all purposes in connection with any Proceeding which arises out of or relates to this Agreement.
[Signature Page Follows]
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The parties have entered into this Amended and Restated Indemnity Agreement as of the date first above written.
| BLUE GOLD LIMITED | |||
| By: | |||
| Name: | |||
| Title: | |||
| INDEMNITEE | |||
| By: | |||
| Name: | |||
Signature page
Amended and Restated Indemnification Agreement
dated _____, 2026
Exhibit 10.6
TRANSITION AND SETTLEMENT AGREEMENT
This agreement is dated 17 September 2026.
PARTIES
(1) Blue Gold Limited, a company incorporated in the Cayman Islands (the Company); and
(2) Andrew Cavaghan of Glebe House, Upper Swainswick, Bath BA1 8BX (Executive).
The Company and the Executive are together the Parties and each a Party.
BACKGROUND
(A) The Executive has resigned as Chairman, Chief Executive Officer and a director of the Company by letter dated 11 September 2026.
(B) The Parties wish to record the terms on which the Executive will step down, provide a short transition and settle claims arising from his offices, employment or engagement with the Company.
AGREED TERMS
| 1. | Definitions and interpretation |
| 1.1 | In this Agreement: |
Adviser means the independent adviser identified in the adviser certificate at Schedule 2;
Agreement means this transition and settlement agreement, including its schedules;
Agreement Date means the date of this Agreement;
EIP means the Company equity incentive plan under which shares or awards have been granted to the Executive;
Non Performance Shares means all shares granted to the Executive under the EIP that are not subject to Performance Awards;
Performance Awards means the awards granted to the Executive under the EIP that remain subject to performance conditions and restrictions until December 2029;
Release Conditions means the Company performing clauses 5, 6 and 9.1 in full and the Company and Executive complying in all material respects with this Agreement;
Termination Date means 16 September 2026; and
Transition Period means the period from the Agreement Date to and including 14 October 2026.
| 1.2 | References to legislation include that legislation as amended or replaced. A reference to writing includes email. Clause and schedule headings do not affect interpretation. |
| 2. | Cessation of offices and employment |
| 2.1 | The Executive ceases to hold office as Chairman, Chief Executive Officer and a director of the Company on the Termination Date. To the extent any employment, consultancy or other engagement with the Company or a group undertaking continues after that date, it terminates on the Termination Date without notice. |
| 2.2 | The Executive shall promptly sign any reasonable document and do anything reasonably required to give effect to clause 2.1, including filings recording the cessation of his directorship. The Company shall make all corporate and regulatory filings for which it is responsible. |
| 2.3 | Except for the rights and obligations expressly preserved by this Agreement, the Executive has no continuing authority to act for or bind the Company after the Termination Date. |
| 3. | Transition assistance |
| 3.1 | During the Transition Period, the Executive shall remain reasonably available to assist the incoming leadership team with handover and transition matters concerning his former responsibilities. |
| 3.2 | The assistance under clause 3.1 shall be provided without further compensation. It shall be requested on reasonable notice, at reasonable times and in a manner that does not unreasonably interfere with the Executive’s other commitments. |
| 4. | Company property |
| 4.1 | If the Company makes a written request before the end of the Transition Period, the Executive shall return the Company laptop and mobile telephone in his possession by 14 October 2026 or as soon as reasonably practicable after the Company supplies suitable prepaid and insured return arrangements. |
| 4.2 | The Company shall bear the reasonable packing, insurance and delivery costs of returning those items. If it makes no written request before the end of the Transition Period, the Executive may retain them and the Company shall have no further claim to them. |
| 5. | Expenses |
| 5.1 | The Company shall pay all outstanding business expenses already approved for payment to the Executive no later than 30 September 2026. |
| 5.2 | Payment under clause 5.1 is without deduction except as required by law and shall be made to the bank account most recently used by the Company to reimburse the Executive, unless the Executive gives different written instructions. |
| 6. | Equity incentive plan |
| 6.1 | Within five calendar days after the Agreement Date, the Company shall take all steps within its control, and shall procure that its registrar and transfer agent take all steps within their control, to remove every restrictive legend from the Non Performance Shares. |
| 6.2 | The restrictions applicable to the Performance Awards shall remain in place until December 2029 in accordance with the applicable EIP grant terms. Nothing in this Agreement accelerates the vesting of, or removes the performance conditions applying to, the Performance Awards. |
| 6.3 | The Company shall cause a registration statement on Form S-8 covering all shares comprised in the EIP to be filed and effective no later than 30 September 2026, subject only to any matter outside the Company’s reasonable control that makes effectiveness by that date legally impossible. If that exception applies, the Company shall notify the Executive promptly, give reasonable details and use all reasonable endeavours to achieve effectiveness as soon as possible. |
| 6.4 | The Company shall not take, or omit to take, any step principally intended to frustrate the Executive’s rights under this clause 6. |
| 7. | Mining opportunities and personnel |
| 7.1 | The Company consents to the Executive independently pursuing any mining acquisition or investment that the Company was considering or working on before the Agreement Date. To the extent any existing duty or restriction owed by the Executive to the Company would prevent that activity, the Company waives that duty or restriction for this purpose, but this clause does not transfer Company property or permit misuse of confidential information belonging to a third party. |
| 7.2 | If the Executive wishes to pursue an opportunity within clause 7.1, the Parties shall negotiate in good faith and use reasonable endeavours to agree by 30 September 2026 whether, and on what terms, compensation should be paid to the Company in respect of that opportunity, which are expected to encompass reimbursement of any due diligence and transactions costs incurred by the company and a royalty. |
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| 7.3 | The Executive may separately approach, engage or employ any current or former employee, officer or director of the Company whose background is in mining and whose engagement with the Company was largely based on the Company pursuing mining activities. The Company waives any non solicitation restriction owed to it by the Executive to the extent necessary to permit that activity. |
| 7.4 | Nothing in clause 7.3 requires any person to accept an engagement or permits either Party to induce a breach of that person’s contract. |
| 8. | Announcement and non disparagement |
| 8.1 | The Company shall give the Executive a reasonable opportunity to comment on and approve any press release or public announcement concerning his resignation or departure before publication. The Executive shall not unreasonably withhold or delay approval. |
| 8.2 | Neither Party shall make or publish any statement about the other that is defamatory or disparaging. The Company shall use reasonable endeavours to ensure that its directors and executive officers comply with this clause as if they were the Company. |
| 8.3 | Clause 8 does not prevent a Party from making a truthful statement required by law, regulation, a court, a competent authority or a recognised stock exchange, making a protected disclosure, obtaining professional advice, or correcting a materially inaccurate public statement. Where lawful and practicable, the Party making a required public statement shall consult the other Party in advance. |
| 9. | Mutual settlement and release |
| 9.1 | With effect from the Agreement Date, the Company irrevocably waives and releases the Executive from all claims, demands, causes of action and liabilities, whether known or unknown, that the Company has or may have arising from or connected with his offices, employment, engagement, resignation or departure, except for: |
| (a) | a claim to enforce this Agreement; |
| (b) | a claim arising from fraud or fraudulent concealment by the Executive; and |
| (c) | a claim that cannot lawfully be waived. |
| 9.2 | Subject to the Release Conditions and clause 10, the Executive irrevocably waives and releases the Company and each of its past and present group undertakings, officers, directors, employees and shareholders from all claims, demands, causes of action and liabilities, whether known or unknown, that he has or may have arising from or connected with his offices, employment, engagement, resignation or departure, including the particular statutory claims listed in Schedule 1. |
| 9.3 | The waiver in clause 9.2 does not apply to: |
| (a) | a claim to enforce this Agreement; |
| (b) | accrued rights under any pension scheme; |
| (c) | a personal injury claim of which the Executive is not aware, and could not reasonably be expected to be aware, at the Agreement Date; or |
| (d) | a claim that cannot lawfully be waived. |
| 9.4 | Each Party accepts the releases in this clause as full and final settlement of the released claims. Neither Party admits liability. |
| 9.5 | No person other than a Party may enforce this clause, except that each person released under clause 9.2 may enforce the benefit of that release under the Contracts Rights of Third Parties Act 1999. |
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| 10. | Settlement agreement conditions |
| 10.1 | The Parties intend this Agreement to satisfy the statutory conditions regulating settlement agreements, including section 203 of the Employment Rights Act 1996 and section 147 of the Equality Act 2010, and the corresponding conditions under the legislation identified in Schedule 1. |
| 10.2 | The Executive warrants that, before signing this Agreement, he received independent advice from the Adviser on its terms and effect, including its effect on his ability to pursue the claims listed in Schedule 1. |
| 10.3 | The Executive warrants that the Adviser is a relevant independent adviser for the applicable legislation and has in force a contract of insurance or an indemnity covering the risk of a claim by the Executive arising from that advice. |
| 10.4 | The Executive shall procure that the Adviser signs the certificate in Schedule 2 and delivers it to the Company when the Executive signs this Agreement. The waiver of the Executive’s statutory claims under clause 9.2 takes effect only when the Company receives that signed certificate. |
| 10.5 | The Company shall pay the reasonable professional fees charged by the Adviser for advising the Executive on this Agreement and completing the certificate in Schedule 2, up to an aggregate maximum of US$5,000 (or its sterling equivalent on the date of the Adviser’s invoice), inclusive of any VAT, taxes and disbursements. The Company shall pay the Adviser directly within 10 calendar days after receiving a valid invoice. The Executive is responsible for any amount above that cap unless the Company agrees otherwise in writing. |
| 11. | Warranties and authority |
| 11.1 | Each Party warrants that it has authority to enter into and perform this Agreement. |
| 11.2 | The Company warrants that its board or a duly authorised committee has approved this Agreement and the transactions contemplated by it, including the releases, equity actions and waivers given by the Company. |
| 11.3 | The Executive warrants that, as at the Agreement Date, he has not assigned any claim released under clause 9.2 and is not aware of any circumstances giving rise to a personal injury claim against a released person. |
| 12. | Confidential and protected communications |
| 12.1 | Nothing in this Agreement prevents the Executive from making a protected disclosure within Part IVA of the Employment Rights Act 1996, reporting a suspected criminal offence, co operating with a regulator or law enforcement body, or making any disclosure required by law. |
| 12.2 | Nothing in this Agreement requires either Party to conceal unlawful conduct or prevents either Party from obtaining confidential legal, tax, financial or medical advice. |
| 13. | Notices |
| 13.1 | A notice under this Agreement must be in writing and delivered by hand, prepaid first class post or email to the address last notified by the receiving Party for that purpose. |
| 13.2 | A notice is deemed received: if delivered by hand, when left at the proper address; if sent by prepaid first class post within the United Kingdom, at 9.00 am on the second Business Day after posting; and if sent by email, when transmitted without an error message, provided that an email sent after 5.00 pm is deemed received at 9.00 am on the next Business Day. |
| 13.3 | Notices to the Executive shall be sent to Glebe House, Upper Swainswick, Bath BA1 8BX and his email address most recently used for correspondence with the Company. Notices to the Company shall be sent to its registered office and to the email address most recently used by its Compensation Committee to correspond with the Executive. |
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| 14. | Entire agreement and continuing documents |
| 14.1 | This Agreement constitutes the entire agreement between the Parties concerning the Executive’s resignation, departure and transition and supersedes all earlier discussions or correspondence on those subjects. |
| 14.2 | The EIP and each applicable grant document continue in force except to the extent expressly varied by this Agreement. If there is an inconsistency, this Agreement prevails to the extent of the inconsistency. |
| 14.3 | Each Party acknowledges that it has not relied on any statement or promise not set out in this Agreement. This clause does not exclude liability for fraud or fraudulent misrepresentation. |
| 15. | Variation assignment and further assurance |
| 15.1 | A variation of this Agreement is effective only if it is in writing and signed by or on behalf of each Party. |
| 15.2 | Neither Party may assign or transfer its rights or obligations under this Agreement without the other Party’s prior written consent, except that the Company may assign the benefit of clause 9 to a successor to all or substantially all of its business. |
| 15.3 | Each Party shall sign documents and take reasonable steps necessary to give effect to this Agreement. |
| 16. | Severance |
| 16.1 | If any provision is invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If modification is not possible, the provision shall be deleted. The remaining provisions continue in force. |
| 17. | Counterparts and electronic signature |
| 17.1 | This Agreement may be signed in counterparts. Each counterpart is an original and all counterparts together form one agreement. |
| 17.2 | Delivery of a signed counterpart by email or an electronic signature platform is effective as delivery of an original. |
| 18. | Governing law and jurisdiction |
| 18.1 | This Agreement and any non contractual obligations arising out of or in connection with it are governed by the law of England and Wales. |
| 18.2 | The courts of England and Wales have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement, including a dispute relating to its existence, validity or termination or any non contractual obligation. |
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SCHEDULE 1
PARTICULAR CLAIMS WAIVED BY THE EXECUTIVE
The claims waived by clause 9.2 include claims arising under or by reference to the following provisions, to the extent applicable to the Executive and the circumstances of his departure:
| 1. | the Employment Rights Act 1996, including claims for unfair dismissal, automatically unfair dismissal, unlawful detriment, unauthorised deductions from wages, statutory notice and failure to provide written particulars; |
| 2. | the Equality Act 2010, including claims concerning direct or indirect discrimination, harassment, victimisation, equal pay and failure to make reasonable adjustments; |
| 3. | the Trade Union and Labour Relations Consolidation Act 1992, including claims concerning trade union activities and collective consultation; |
| 4. | the Working Time Regulations 1998, including claims concerning working time, rest periods and holiday pay; |
| 5. | the National Minimum Wage Act 1998; |
| 6. | the Part time Workers Prevention of Less Favourable Treatment Regulations 2000 and the Fixed term Employees Prevention of Less Favourable Treatment Regulations 2002; |
| 7. | the Transfer of Undertakings Protection of Employment Regulations 2006; |
| 8. | the Agency Workers Regulations 2010; |
| 9. | the Employment Relations Act 1999, the Employment Act 2002 and the Employment Act 2008; |
| 10. | the Pensions Act 2008, so far as claims may lawfully be settled; |
| 11. | the Data Protection Act 2018 and the UK General Data Protection Regulation, so far as claims may lawfully be settled; |
| 12. | contract, tort, breach of fiduciary or statutory duty, negligence, misrepresentation, defamation, personal injury of which the Executive is aware, and any claim for salary, bonus, commission, holiday pay, expenses, notice, severance, compensation or benefits; and |
| 13. | any claim arising from the Executive’s status as an officer or director, his resignation from office or the termination of his employment or engagement. |
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SCHEDULE 2
INDEPENDENT ADVISER CERTIFICATE
I confirm that I am a relevant independent adviser for the purposes of section 203 of the Employment Rights Act 1996, section 147 of the Equality Act 2010 and the other applicable legislation identified in Schedule 1.
I have advised Andrew Cavaghan on the terms and effect of this Agreement and, in particular, its effect on his ability to pursue the claims identified in Schedule 1.
At the time I gave that advice, a contract of insurance or an indemnity provided cover for the risk of a claim by Andrew Cavaghan arising from that advice.
Signed by the Adviser: ______________________________________________
Name of Adviser: ______________________________________________
Name of firm: ______________________________________________
Professional status: ______________________________________________
Address: ______________________________________________
Date: ______________________________________________
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SIGNATURES
This Agreement has been entered into on the date stated at the beginning of it.
| Signed by Andrew Cavaghan | Signed for and on behalf of | |||
| Blue Gold Limited | ||||
| Signature: | Signature: | |||
| Date: | Name: David Edward | |||
| Title: Chairman of the Compensation Committee | ||||
| Date: | ||||
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Exhibit 10.7
TRANSITION AGREEMENT
TRANSITION AGREEMENT (the “Agreement”) is executed September 18, 2026 (the “Effective Date”) by and among Blue Gold Limited, an exempted company incorporated under the laws of the Cayman Islands, BlueGold One LLC, a Wyoming Limited Liability Company (hereinafter collectively referred to collectively as the “Company”) and James Samuelson, an individual (hereinafter referred to as “Samuelson”).
W I T N E S S E T H:
WHEREAS, Samuelson currently serves as the Chief Financial Officer of the Company, pursuant to that certain Executive Offer Letter dated May 15, 2026, by and among the Company, as Company, and Samuelson, as Executive (the “Employment Agreement”); and
WHEREAS, Samuelson desires to resign all positions he holds with the Company and terminate his relationship with the Company, and the Company desires to accept Samuelson’s resignation, as provided for herein, and mutually terminate their relationship.
A G R E E M E N T:
NOW, THEREFORE, in consideration of the mutual covenants, promises and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are acknowledged and confirmed, the parties hereby agree as follows:
1. Resignation and Services
Samuelson resigns all positions as officer and employee of the Company effective at the close of business on Friday, September 18, 2026. Except as set forth in this Section 1, Samuelson shall not be required to provide any further information or services to the Company subsequent to his resignation, except as provided herein.
a. Active Services through September 30, 2026. Samuelson agrees to continue to provide services to the Company expressly limited to assisting the Company with the filing of Form 6-Ks and relating registration statements on Forms F-1, F-3, and S-8, and providing general transition assistance through September 30, 2026.
b. Availability and Consulting Services. From October 1, 2026, through December 31, 2026, Samuelson agrees to remain available to answer questions or provide consulting services relating to SEC filings and compliance, subject to the timely payment provisions in Section 2(c).
c. Post-December 31, 2026 Services. If the Company requests any services from Samuelson past December 31, 2026, Samuelson shall prepare a budget for such services. Any such budget must be mutually agreed upon by the parties, and the full amount of the agreed-upon budget must be paid to Samuelson in advance of performing any such services. All services performed past December 31, 2026, shall be billed at Samuelson’s hourly rate of $750 per hour.
d. Return of Company Property. Samuelson acknowledges his obligation to return Company property. Samuelson has possession of one (1) Company laptop computer, which constitutes the sole Company property in his possession. The parties acknowledge that the cost of shipping and returning this laptop to the United Kingdom likely exceeds its fair market value.
2. Salary, Expenses, and Compensation
In full settlement and satisfaction of any amounts due Samuelson for compensation from the Company, and as consideration for the continued consulting services of Samuelson, Blue Gold Limited and BlueGold One LLC shall pay Samuelson the following sums on the following dates:
a. Accrued Salary and Expenses. The Company shall issue immediate payment of all past due and accrued salary and business expenses up to the Effective Date.
b. Active Salary Continuation. The Company shall pay Samuelson his full, standard salary through September 30, 2026, paid in accordance with the Company’s regular, scheduled payroll cycle.
c. Consulting and Compliance Payments. The Company shall make three (3) monthly payments to Samuelson, with each payment in the exact amount of $20,833 USD, due on the following dates:
| ○ | October 1, 2026 |
| ○ | November 1, 2026 |
| ○ | December 1, 2026 |
d. Late Payment Penalty and Forfeiture of Services. The Company and Samuelson shall each have the right to terminate the Consulting and Compliance Payments upon fourteen (14) days written notice (“Termination Date”). The Company remains obligated to make the Consulting and Compliance Payments until and through the Termination Date.
3. Equity and Stock Value True-Up Provision
a. Accelerated Vesting and Issuance. The parties agree that all 250,000 shares of common stock previously granted to Samuelson under the Company’s Equity and Incentive Plan (EIP) shall automatically and immediately vest in full. The Company shall issue these shares to Samuelson upon the effectiveness of the Form S-8 registration statement registering the shares underlying the EIP in an amount of 125,000 shares on November 2, 2026 and 125,000 shares on November 16, 2026.
4. Mutual Releases
a. Company Release of Claims. The Company, on behalf of itself, its subsidiaries, and its affiliates, provides an immediate, unconditional, and full general release to Samuelson from any and all claims, demands, actions, liabilities, or obligations of any kind, known or unknown, arising out of or connected to his employment, his role as Chief Financial Officer, or his relationship with the Company.
b. Samuelson Release of Claims. Contingent upon, and effective only after, the Company’s full, complete, and timely compliance with all cash payments detailed in Section 2 and the proper delivery and execution of the stock provisions outlined in Section 3, Samuelson agrees to fully and forever waive, release, and discharge the Company from any and all employment-related claims as detailed below.
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c. Scope of Samuelson Release. Samuelson, and anyone who could have a legal right to assert any of Samuelson’s claims against the Company on Samuelson’s behalf, including but not limited to Samuelson’s heirs, executors, representatives, agents, insurers, administrators, successors, and assigns (collectively, the “Samuelson Releasors”) irrevocably and unconditionally fully and forever waive, release, and discharge the Company, its subsidiaries, affiliates, predecessors, successors, and assigns, and all of their respective officers, directors, employees, trustees, members, shareholders, and partners, in their corporate and individual capacities (collectively, the “Samuelson Releasees”) from any and all claims, demands, actions, causes of actions, obligations, judgments, rights, fees, damages, debts, obligations, liabilities, penalties, fines, fees, and expenses (inclusive of attorneys’ fees) of any kind whatsoever (collectively, “Samuelson Claims”), known or unknown, suspected or unsuspected, arising directly or indirectly out of or in any way connected with the transactions and occurrences between the parties to date, including Samuelson’s employment with the Company under the Employment Agreement, including without limitation any claims under any federal, state, local, or foreign law, that Samuelson Releasors may have, have ever had or may in the future have arising out of, or in any way related to Samuelson’s hire, benefits, employment, termination, or separation from employment with the Company and any actual or alleged act, omission, transaction, practice, conduct, occurrence, or other matter, including, but not limited to:
i. any claims under any local, state or federal constitution, statute, law, ordinance, bylaw, or regulation dealing with either employment, employment discrimination, retaliation, mass layoffs, plant closings, and/or employment benefits and/or those laws, statutes or regulations concerning discrimination on the basis of race, color, creed, religion, age, sex, sexual harassment, sexual orientation, national origin, ancestry, handicap or disability, veteran status or any military service or application for military service or any other category protected by law, including all claims under Title VII of the Civil Rights Act (42 U.S.C. § 2000e et seq.); the Americans With Disabilities Act (42 U.S.C. § 12101 et seq.); the Rehabilitation Act (29 U.S.C. § 701 et seq.); the Equal Pay Act; the Age Discrimination in Employment Act (“ADEA”) (29 U.S.C. § 729, et seq.); the Employee Retirement Income Security Act (“ERISA”) (29 U.S.C. § 1001, et seq.); the Family and Medical Leave Act (29 U.S.C. § 2601, et seq.); the Fair Credit Reporting Act (15 U.S.C. § 1681 et seq.); the Worker Adjustment and Retraining Notification Act (29 U.S.C. § 2101 et seq.); all as may have been amended; and any federal, state or local law or regulation concerning securities, stock or stock options, including without limitation any claims that might be brought under the Sarbanes-Oxley Act or other federal or state whistleblower protection statutes;
ii. any and all claims for compensation of any type whatsoever, including but not limited to claims for salary, wages, bonuses, commissions, incentive compensation, vacation, and severance that may be legally waived and released;
iii. any and all claims arising under tort, contract, and quasi-contract law, including but not limited to claims of breach of an expressed or implied contract, tortious interference with contract or prospective business advantage, breach of the covenant of good faith and fair dealing, promissory estoppel, detrimental reliance, invasion of privacy, nonphysical injury, personal injury or sickness or any other harm, wrongful or retaliatory discharge, fraud, defamation, slander, libel, false imprisonment, and negligent or intentional infliction of emotional distress; and
iv. any and all claims for monetary or equitable relief, including but not limited to attorneys’ fees, back pay, front pay, reinstatement, experts’ fees, medical fees or expenses, costs, and disbursements.
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However, to the extent that the same may not legally be released or waived, this general release and waiver of Samuelson Claims excludes, and Samuelson does not waive, release, or discharge any claims which cannot be waived by law. Samuelson acknowledges and agrees that it is Samuelson’s intention that this Agreement shall be effective as a full and final accord and satisfaction and settlement of, and as a bar to, each and every claim, demand, action, contract, covenant, cause of action, obligation, debt, controversy, promise, agreement, liability, cost, expense, and lien, as referred to and released above, that Samuelson has or may have against the Samuelson Releasees. Nothing contained herein is intended to constitute or shall be construed as a waiver or release of Samuelson’s right to participate in an investigation by the Equal Employment Opportunity Commission, the Securities and Exchange Commission or any other federal or state agency. Notwithstanding the foregoing, Samuelson expressly waives and releases any right to recover any type of personal relief from the Releasees, including monetary damages or claims for reinstatement, in any administrative action or proceeding, whether state or federal, and whether brought by Samuelson or on Samuelson’s behalf by an administrative agency, related in any way to the matters released herein.
5. Mutual Covenant Not to Sue
a. Samuelson Covenant. Samuelson, on behalf of himself and the Samuelson Releasors, covenants not to institute or maintain any judicial, administrative, arbitral, or other proceeding, dispute, suit, or action at law or equity against any Samuelson Releasee, nor institute, prosecute or in any way aid in the institution or prosecution of any claim, demand, action, or cause of action for damages, costs, loss of services, expenses, penalties, fines, or compensation of any kind or character, resulting or to result, known or unknown, past, present, or future which are, were, might or could have been asserted against a Samuelson Releasee prior to the date hereof, excluding however, the obligations of the Company pursuant to this Agreement.
b. Company Covenant. The Company, on behalf of itself and the Samuelson Releasees, covenants not to institute or maintain any judicial, administrative, arbitral, or other proceeding, dispute, suit, or action at law or equity against any Company Releasee, nor institute, prosecute or in any way aid in the institution or prosecution of any claim, demand, action, or cause of action for damages, costs, loss of services, expenses, penalties, fines, or compensation of any kind or character, resulting or to result, known or unknown, past, present, or future which are, were, might or could have been asserted against a Samuelson Releasor prior to the date hereof, excluding however, the obligations of Samuelson pursuant to this Agreement.
6. Mutual Non-Disparagement
a. Samuelson Covenant. Samuelson agrees that he will not, directly or indirectly, make, publish, or communicate to any person or entity, including but not limited to competitors, customers, or clients of the Company, any disparaging, defamatory, or negative remarks, comments, or statements concerning the Company, its business practices, products, services, or any of its current or former directors, officers, or employees.
b. Company Covenant. The Company agrees that its executive officers and board members will not, directly or indirectly, make, publish, or communicate to any person or entity any disparaging, defamatory, or negative remarks, comments, or statements concerning Samuelson, his professional performance, or his tenure as Chief Financial Officer of the Company.
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c. Exclusions. Nothing in this Section 6 shall prohibit either party from providing truthful testimony or information as required by law, regulation, valid legal process, or an investigation by an authorized government agency (including the SEC).
7. Representation
By signing this Agreement, Samuelson hereby acknowledges and confirms that:
(i) Samuelson has read this Agreement in its entirety and understands all of its terms;
(ii) by this Agreement, Samuelson has been advised in writing of the right to consult with an attorney of Samuelson’s choosing and has consulted with counsel to the extent Samuelson believed was necessary before executing this Agreement;
(iii) Samuelson knowingly, freely, and voluntarily assents to all of the terms and conditions set out in this Agreement including, without limitation, the waiver, release, and covenants contained in it;
(iv) Samuelson is executing this Agreement, including the waiver and release, in exchange for good and valuable consideration in addition to anything of value to which Samuelson is otherwise entitled;
(v) Samuelson was given adequate time under all applicable laws to fully consider the terms of this Agreement;
(vi) after receipt of the payments and stock criteria set forth herein, Samuelson agrees that Blue Gold Limited and/or BlueGold One LLC. owe him no wages, employee benefits, or other compensation or monetary amounts that were owed to Samuelson including, but not limited to, all salary, bonuses, commissions, business expenses, allowances, vacation pay and other employee benefits as a result of his employment;
(vii) once the payments and stock terms are completed, all termination provisions of the original Employment Agreement have been waived by Samuelson or satisfied by the Company.
8. Notices
All notices and other communications given by any party hereto in connection herewith (a) must be in writing and (b) may be served only by (i) depositing the same in the United States mail, properly addressed, postage prepaid, registered or certified mail, and with return receipt requested, (ii) delivering the same in person; or (iii) by overnight package delivery, courier, or by electronic mail.
Any notice or other communication deposited in the mail in the manner provided herein shall be effective upon the earlier to occur of receipt by the addressee or the expiration of three (3) days after the date on which it is so deposited. For the purpose hereof, the addresses of the parties hereto shall be as follows:
If to Samuelson:
James Samuelson
[ ]
[ ]
Email: [ ]
If to the Company:
Carla Parsons
Company Secretary
Email: [ ]
Any party hereto may change its address for the purposes hereof by giving written notice of such change of address to the other parties as specified herein.
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9. Section 409A
This Agreement is intended to comply with Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”), or an exemption thereunder and shall be construed and administered in accordance with Section 409A. Notwithstanding any other provision of this Agreement, payments provided under this Agreement may only be made upon an event and in a manner that complies with Section 409A or an applicable exemption. Any payments under this Agreement that may be excluded from Section 409A either as separation pay due to an involuntary separation from service, as a short-term deferral, or as a settlement payment pursuant to a bona fide legal dispute shall be excluded from Section 409A to the maximum extent possible. For purposes of Section 409A, any installment payments provided under this Agreement shall each be treated as a separate payment. Any payments to be made under this Agreement upon a termination of employment shall only be made upon a “separation from service” under Section 409A. Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement comply with Section 409A and in no event shall the Company be liable for all or any portion of any taxes, penalties, interest, or other expenses that may be incurred by Samuelson on account of non-compliance with Section 409A.
10. Entire Agreement
This Agreement supersedes all prior negotiations, understandings and agreements between Samuelson, on the one hand, and the Company, on the other hand, relating to the subject matters hereof, other than any other agreement signed contemporaneously herewith, including, without limitation, the Employment Agreement.
11. Amendments
No alterations, modifications, amendments or changes in this Agreement shall be effective or binding on any party hereto, unless the same shall be in writing and executed by all of the parties hereto.
12. Enforceability & Assignments
This Agreement and all agreements and covenants made by the parties hereto under this Agreement shall inure to the benefit of, and be enforceable by and against, their respective heirs, successors, legal representatives and permitted assignees. No party may assign this Agreement without the prior written consent of the other party.
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13. Governing Law; Jurisdiction and Venue
This Agreement shall be governed by, construed under, and enforced in accordance with the laws of the State of Florida. Any action or proceeding by either of the Parties to enforce this Agreement shall be brought exclusively in any state or federal court located in the state of Florida, County of Manatee. The Parties hereby irrevocably submit to the exclusive jurisdiction of such courts and waive the defense of inconvenient forum to the maintenance of any such action or proceeding in such venue.
14. Severability
If a court of competent jurisdiction declares that any provision of this Agreement is illegal, invalid or unenforceable, then such provision shall be modified automatically to the extent necessary to make such provision fully enforceable. If such court does not modify any such provision as contemplated herein, but instead declares it to be wholly illegal, invalid or unenforceable, then such provision shall be severed from this Agreement, and such declaration shall in no way affect the legality, validity and enforceability of the other provisions of this Agreement to which such declaration does not relate.
In this event, this Agreement shall be construed as if it did not contain the particular provision held to be illegal, invalid or unenforceable, the rights and obligations of the parties hereto shall be construed and enforced accordingly, and this Agreement otherwise shall remain in full force and effect.
15. Captions & Counterparts
The captions contained herein are for reference only and shall not affect the interpretation of this Agreement. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original for all purposes, and all of which together shall constitute one and the same instrument.
(Signature Page to Follow)
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IN WITNESS WHEREOF, the parties hereunto set their hands and seals as of the Effective Date.
| JAMES SAMUELSON | ||
| By: | /s/ James Samuelson |
|
| James Samuelson | ||
| BLUE GOLD LIMITED | ||
| By: | /s/ David Edward |
|
| Name: | David Edward | |
| Title: | Compensation Committee Chairman | |
| BLUEGOLD ONE LLC | ||
| By: | /s/ Nathan Dionne |
|
| Name: | Nathan Dionne | |
| Title: | CTO | |
Exhibit 99.1
Blue Gold Announces Appointment of Kevin Clark as Executive Chairman of the Board
NEW YORK, September 21, 2026 /PRNewswire/ -- Blue Gold Limited (Nasdaq: BGL) (Nasdaq: BGLWW) (“Blue Gold” or the “Company”), a gold mining company with the infrastructure to deliver gold from mine-to-wallet, today announced a series of leadership, governance and strategic initiatives designed to strengthen operational execution, improve liquidity, and enhance long-term shareholder value.
Kevin Clark has been appointed Executive Chairman of the Board of Directors of the Company, effective September 17, 2026. Mr. Clark succeeds Andrew Cavaghan, who has resigned as Chairman of the Board, Chief Executive Officer, and as a director, effective the same date.
Mr. Clark graduated with honors with a BS in Electrical Engineering and Computer Science from the University of California, Berkeley. He also holds a Master’s Degree in Electrical and Computer Engineering from the University of California at San Diego and a JD from Stanford Law School, where he graduated Order of the Coif. As an engineer at Qualcomm, he designed integrated circuits for satellite and cellular wireless applications, led teams designing industry-leading code division multiple access (CDMA) chips for use in second and third generation cellular systems, and later, as a patent agent, secured and managed intellectual property, primarily patent prosecution and licensing. As founding partner of Silicon Edge Law Group LLP, he helped form a unique firm specializing in helping high-tech companies develop, protect, and enhance their intellectual assets and shareholder value. He now maintains his own intellectual property law practice and remains Of Counsel to the firm. Mr. Clark was a principal at Integrity Partners, an early investor in Baidu. He joined Integrity Partners shortly after its formation, evaluating investment opportunities and working alongside entrepreneurs in portfolio companies, providing strategy, fundraising, and M&A analysis.
In his new role as Executive Chairman, Mr. Clark will provide strategic leadership for the Company and will work closely with the Board and management to execute on the Company’s key priorities.
Mr. Clark stated, “This is an important time for the Company, and I believe it is an opportunity to look forward and develop a strategic plan which delivers shareholder value. I am taking on the role of Executive Chairman with a focus on providing leadership and direction to assist the Company in realizing the full potential of its assets. I would also like to personally thank Andrew Cavaghan for his leadership, dedicated service and extraordinary time commitment to Blue Gold.”
Additional Management and Board Changes
The Company also announced that Gary Herman has been appointed as a non-executive director and Audit Committee Chairman, replacing Tao Tan, effective September 17, 2026. Mr. Herman is a seasoned investor and capital-markets professional with more than three decades of experience in investing, corporate management, restructuring and governance across public and private companies. He currently serves as Chief Operating Officer of Galloway Capital Partners, LLC and has served on the boards of numerous public and private companies. Earlier in his career, Mr. Herman held investment management roles with Arcadia Securities, LLC and was an investment banker with Burnham Securities, Inc.
Jim Samuelson has resigned as Chief Financial Officer, effective September 17, 2026. The Company has engaged EMS Consulting Services, LLC (“EMS”) to provide outsourced financial and accounting services, with Shah Nawaz, a Chartered Accountant and employee of EMS, designated to serve as the Company’s certifying officer. EMS is led by founder Eric Sherb, a Certified Public Accountant with 19 years of experience in accounting, financial advisory, audit and mergers and acquisitions, including extensive experience advising public companies on financial reporting, technical accounting and strategic finance.
About Blue Gold Limited
Blue Gold Limited (Nasdaq: BGL) (Nasdaq: BGLWW) is a gold mining company with the infrastructure to deliver gold from mine-to-wallet. The Company’s mission is to explore, develop and operate high quality mining projects while leveraging modern technologies to sell the gold directly to end customers in tokenized form. Blue Gold prioritizes growth, sustainable development, and transparency in all its business practices. We believe that our commitment to responsible mining will enable us to create value for our shareholders while minimizing our environmental footprint.
Forward-Looking Statements
This press release includes “forward-looking statements” within the meaning of the safe harbor for forward-looking statements provided by Section 21E of the Securities Exchange Act of 1934, as amended, and the Private Securities Litigation Reform Act of 1995. You are cautioned not to place undue reliance on these forward-looking statements, which are current only as of the date of this press release. Each of these forward-looking statements involves risks and uncertainties. Important factors that could cause actual results to differ materially from those discussed or implied in the forward-looking statements include, but are not limited to: general economic or political conditions; negative economic conditions that could impact Blue Gold Limited and the gold industry in general; reduction in demand for Blue Gold Limited’s products; changes in the markets that Blue Gold Limited targets; and any change in laws applicable to Blue Gold Limited or any regulatory or judicial interpretation. As a result, we cannot assure you that the forward-looking statements included in this press release will prove to be accurate or correct. These and other important factors and risks are discussed in Blue Gold Limited’s annual report on Form 20-F, filed with the U.S. Securities and Exchange Commission (the “SEC”) on April 29, 2026, and other filings with the SEC. In light of these risks, uncertainties, and assumptions, the future performance or events described in the forward-looking statements in this press release might not occur. Accordingly, you should not rely upon forward-looking statements as a prediction of actual results, and we do not assume any responsibility for the accuracy or completeness of any of these forward-looking statements. Except as required by applicable law, we do not undertake any obligation to, and will not, update any forward-looking statements, whether as a result of new information, future events, or otherwise. For more information regarding Blue Gold Limited, please visit https://bluegoldltd.com.
No Offer or Solicitation
This press release shall not constitute a solicitation of a proxy, consent, or authorization with respect to any securities. This press release shall also not constitute an offer to sell or the solicitation of an offer to buy any securities.
For Further Information Contact:
Dave Gentry
RedChip Companies, Inc.
1-800-REDCHIP (733-2447)
1-407-644-4256
BGL@redchip.com