CIMG 8-K
CIMG Inc. (CIMG)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
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Item 1.01 Entry into a Material Definitive Agreement.
On February 11, 2026, CIMG Inc. (the “Company”) entered into a convertible note and warrant purchase agreement (the “Purchase Agreement”) with certain non-U.S. investors (the “Investors”), providing for the private placement of convertible promissory notes in the aggregate principal amount of $5,000,000 (the “Notes”) and warrants to purchase the Company’s shares of common stock (the “Warrants”) in reliance on the registration exemptions of Regulation S (the “Transaction”). The Notes are issuable in two tranches, consisting of (i) an initial tranche in the aggregate principal amount of $1,600,000 and (ii) a second tranche in the aggregate principal amount of $3,400,000. The Notes bear interest at an annual rate of 7% and have a maturity date of August 12, 2027.
On February 13, 2026, the Company completed the initial closing and issued Notes in the aggregate principal amount of $1,600,000 to the Investors.
The Notes are convertible into shares of the Company’s shares of common stock, $0.00001 par value per share, at a conversion price equal to the volume weighted average price of the common stock for the ten (10) consecutive trading days ending on (and including) the trading day immediately prior to the date of conversion; provided, however, that in no event shall such conversion price be less than $0.14 per share, subject to adjustment as set forth in the Notes.
The Purchase Agreement also provides for the issuance to the Investors of the Warrants to purchase shares of the Company’s common stock, at an exercise price of $0.57 per share, subject to adjustments in accordance with the terms and conditions of the Warrants. The Warrants shall become exercisable from the date when the Company obtains the shareholder approval on the Transaction and remain exercisable until the three-year-anniversary from the respective issuance dates. The warrant coverage amount for each tranche is equal to the principal amount of Notes issued at such closing (excluding interest) divided by the “Minimum Price” (as defined under applicable Nasdaq rules) as of such closing date.
Pursuant to the Purchase Agreement, each Investor has agreed not to convert the Notes or exercise the Warrants unless and until the Company obtains the requisite shareholder approval under applicable Nasdaq listing rules.
The foregoing description of the Purchase Agreement, the Notes, and the Warrants does not purport to be complete and is qualified in its entirety by the full text of the Purchase Agreement and the forms of the Notes and the Warrants, which are attached hereto as Exhibits 10.1, 10.2 and 10.3, respectively, and are incorporated herein by reference.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information provided in Item 1.01 of this Current Report on Form 8-K is hereby incorporated by reference in this Item 2.03.
Item 3.02. Unregistered Sales of Equity Securities.
The information provided in Item 1.01 of this Current Report on Form 8-K is hereby incorporated by reference in this Item 3.02.
Item 9.01 Financial Statement and Exhibits
(d) Exhibits.
| Exhibit No. | Description | |
| 10.1 | Purchase Agreement, dated February 11, 2026, by and among the Company and the Investors | |
| 10.2 | Form of Notes | |
| 10.3 | Form of Warrants | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURE
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.
| CIMG Inc. | ||
| Dated: February 17, 2026 | By: | |
| Name: | Jianshuang Wang | |
| Title: | Chief Executive Officer | |
Exhibit 10.1
CONVERTIBLE NOTE AND WARRANT PURCHASE AGREEMENT
This Convertible Note and Warrant Purchase Agreement, dated as of February 11, 2026 (this “Agreement”, as the same may hereafter be modified, supplemented, extended, amended, restated or amended and restated from time to time), is entered into by and among CIMG Inc., a Nevada corporation (the “Company”), and the persons and entities listed on the schedule of investors attached hereto as Schedule I and also set forth on the investor signature pages (each an “Investor” and collectively, the “Investors”).
RECITALS
| A. | On the terms and subject to the conditions set forth herein, each Investor wishes to purchase from the Company, and the Company wishes to sell to each Investor, convertible promissory notes in the principal amount set forth opposite such Investor’s name on Schedule I hereto and the warrants referred to herein in reliance upon an exemption from securities registration requirements of the Securities Act of 1933, as amended, afforded by the provisions of Section 4(a)(2) and/or Rule 903 of Regulation S promulgated thereunder by the U.S. Securities and Exchange Commission (the “SEC”). | |
| B. | Capitalized terms not otherwise defined herein shall have the meaning set forth in Appendix 1 attached hereto. |
AGREEMENT
NOW THEREFORE, in consideration of the foregoing, and the representations, warranties, and conditions set forth below, the parties hereto, intending to be legally bound, hereby agree as follows:
1. The Notes and Warrants.
(a) Issuance of Notes.
(i) Subject to all of the terms and conditions hereof, the Company agrees to issue and sell to each Investor, and each Investor severally and not jointly agrees to purchase from the Company, convertible promissory notes of the Company in the aggregate principal amount set forth opposite such Investor’s name on Schedule I hereto (the “Notes”), which Notes shall be convertible into shares of Common Stock of the Company (the “Conversion Shares”) in accordance with the terms of the Notes.
The Notes shall be issued in two (2) tranches: the initial closing (the “Initial Closing”) shall occur on the second Business Day following the date hereof, and the second closing (the “Second Closing”) shall occur on the second Business Day following the filing by the Company of a registration statement on Form S-1 (the “Registration Statement”), in form and substance satisfactory to all Investors, which filing shall occur within fifteen (15) days after the Company has received the full aggregate purchase price due from all Investors at the Initial Closing, or as soon as possible after such date.
For purposes of this Agreement, each of the Initial Closing and the Second Closing is referred to herein as a “Closing,” and the date of each Closing is referred to herein as a “Closing Date.”
At each Closing, the Company shall issue and deliver to each Investor a Note in the applicable principal amount set forth opposite such Investor’s name on Schedule I (the “Initial Closing Principal Amount” or the “Second Closing Principal Amount,” as applicable) against payment by such Investor of the corresponding purchase price, substantially in a form as set forth in Exhibit A attached herein.
(b) Issuance of Warrants.
Subject to all of the terms and conditions hereof, the Company has authorized the issuance of warrants (the “Warrants”) to purchase up to such number of shares of Common Stock (the “Warrant Shares”) as is equal to the Warrant Coverage Amount (as defined below), as set forth in this Agreement and in the Warrants, in the form attached hereto as Exhibit B, to be dated two Business Days following the applicable Closing Date. The Warrants shall be issued at each Closing.
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The Company agrees to issue to each Investor, at each Closing, Warrants exercisable for a number of shares of Common Stock equal to the number of shares of Common Stock determined by dividing (x) the principal amount of the Notes issued to such Investor at such Closing (excluding interest to accrue thereon) by (y) the “Minimum Price” as of such Closing Date (the “Warrant Coverage Amount”), subject to adjustment as set forth in the Warrants.
“Minimum Price” shall mean, as of any date of determination, the lower of (i) the Nasdaq Official Closing Price of the Common Stock immediately preceding such date and (ii) the average Nasdaq Official Closing Price of the Common Stock for the five (5) Trading Days immediately preceding such date, in each case as contemplated by Nasdaq Listing Rule 5635(d)(1)(A).
(c) Delivery. At each Closing, the Company shall deliver to each Investor the Notes and Warrants to be purchased by such Investor at such Closing, against receipt by the Company of the corresponding purchase price set forth on Schedule I hereto for such Closing (the “Purchase Price”). All of the transactions set forth herein to be taken at a Closing, including the delivery of documents, shall be deemed to take place simultaneously at such Closing.
(d) Independent Nature of Investors’ Obligations and Rights. The obligations of each Investor under any Transaction Document are several and not joint with the obligations of any other Investor, and no Investor shall be responsible in any way for the performance of the obligations of any other Investor under any Transaction Document. Nothing contained herein or in any other Transaction Document, and no action taken by any Investor pursuant thereto, shall be deemed to constitute the Investors as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Investors are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by the Transaction Documents.
(e) Stockholder Approval. The Company shall obtain, as promptly as practicable following the Initial Closing, approval of its stockholders as may be required by applicable Nasdaq Listing Rules with respect to the issuance of Common Stock upon conversion of the Notes and the shares of Common Stock issuable upon the exercise of the Warrants. Each Investor hereby acknowledges and has agreed that it will not to convert its Note or excise its Warrants until the Company obtains its shareholder approval on this transaction set forth herein (the “Transaction”).
2. Representations and Warranties of the Company. The Company hereby represents and warrants to each Investor that:
(a) Organization; Good Standing and Qualification. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada and has all requisite corporate power and authority to carry on its business as now conducted. The Company is duly qualified to transact business and is in good standing in each jurisdiction in which the failure to so qualify would have a material adverse effect on its business or properties.
(b) Capitalization, Voting Rights and Other Rights.
(i) Authorized Stock. As of February 5, 2026, the authorized capital stock of the Company consisted of: 600,000,000 shares of Common Stock, of which 15,483,547 shares are issued and outstanding. The rights and privileges of the Common Stock are as stated in the Articles of Incorporation of the Company, as amended (the “Articles”).
(ii) The outstanding shares of Common Stock are all duly and validly authorized and issued, fully paid and nonassessable, and were issued in accordance with the registration or qualification provisions of the Securities Act of 1933, as amended (the “Securities Act” or the “Act”), and any relevant state securities laws, or pursuant to valid exemptions therefrom. The Company has no other equity securities, preferred stock, options, warrants, and other debt securities outstanding on the date hereof and on each Closing Date, other than that set out in Schedule II hereto and in the Company’s SEC filings.
(c) Reserved.
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(d) Authorization.
(i) Corporate Consent. All corporate action on the part of the Company, its officers and directors necessary for the authorization, execution and delivery of this Agreement, the Notes and Warrants has been taken or will be taken prior to each Closing, other than the approval of the Company’s stockholders, if required, which approval shall be obtained prior to the conversion of the Notes and exercise of the Warrants; and this Agreement, the Notes and Warrants constitute valid and legally binding obligations of the Company, enforceable in accordance with their respective terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting enforcement of creditors’ rights generally and (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies.
(e) Governmental Consents. No consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any Governmental Authority on the part of the Company is required in connection with the consummation of the transactions contemplated by this Agreement, except such other post-closing filings as may be required.
(f) Offering
(i) Subject in part to the truth and accuracy of each Investor’s representations set forth in Section 3 of this Agreement, the offer, sale and issuance of the Notes and Warrants as contemplated by this Agreement are exempt from the registration requirements of any applicable state and federal securities laws, and neither the Company nor any authorized agent acting on its behalf will take any action hereafter that would cause the loss of such exemption.
(ii) Reserved.
(iii) No representation or warranty of the Company contained in this Agreement, and no certificate furnished or to be furnished to Investors at each Closing contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading in light of the circumstances under which they were made.
(g) Compliance with Other Instruments. Except as set forth on the Disclosure Schedule Section 2(g), neither the Company nor any Subsidiary is in violation, default, conflict or breach of any provision of its organizational documents, or, in any material respect, of any instrument, judgment, order, writ, decree or contract to which it is a party or by which it is bound, or, to the Company’s knowledge, in violation of any applicable law, statute, rule or regulation. The execution, delivery and performance of this Agreement, the Notes and the Warrants, and the consummation of the transactions contemplated hereby and thereby, will not result in any such violation, default, conflict or breach, nor will such consummation constitute, with or without the passage of time and giving of notice, an event that results in (a) the creation of any lien, charge or encumbrance upon any assets of the Company or any Subsidiary or (b) the suspension, revocation, impairment, forfeiture or nonrenewal of any material permit, license, authorization or approval applicable to the Company or any Subsidiary, its business or operations or any of its assets or properties. Neither the Company nor any Subsidiary is required to obtain any waiver, consent or approval from any third party in connection with the issuance and sale of the Notes and the Warrants or the issuance of the Conversion Shares.
(h) Title to Property and Assets. The Company and each Subsidiary owns its property and assets free and clear of all mortgages, liens, loans and encumbrances, except such encumbrances and liens that arise in the ordinary course of business and do not materially impair the Company’s and each Subsidiary’s ownership or use of such property or assets. With respect to the property and assets it leases, the Company and each Subsidiary is in compliance with such leases and, to its knowledge, holds a valid leasehold interest free of any liens, claims or encumbrances. The Company and each Subsidiary does not own any real property.
(i) Financial Statements. The Company has filed with the SEC its audited financial statements for the fiscal year ended September 30, 2024, reported on by Assentsure PAC, independent public accountants (the “Financial Statements”). The Financial Statements have been prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated and with each other. The Financial Statements fairly present the financial condition and operating results of the Company as of the dates, and for the periods, indicated therein, subject to normal year-end audit adjustments. Except as set forth in the Financial Statements and except for the Notes and Warrants, the Company has no material liabilities or obligations, contingent or otherwise as at the date hereof. Except as disclosed in the Financial Statements, the Company and each Subsidiary is not a guarantor or indemnitor of any indebtedness of any other person, firm or corporation. The Company and each Subsidiary maintains and will continue to maintain a standard system of accounting established and administered in accordance with GAAP.
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(j) Tax Returns, Payments and Elections. The Company and each Subsidiary has filed all Tax returns and reports (including information returns and reports) as required by law. These returns and reports are true and correct in all material respects.
(k) Investment Company Status. The Company is not required to be registered as an “investment company” under the Investment Company Act of 1940.
(l) No Brokers or Finders. None of the Company or any of its Subsidiaries has retained, utilized or been represented by, or otherwise become obligated to, any broker, placement agent, financial advisor or finder in connection with the transactions contemplated by any of the Transaction Documents whose fees the Investors would be required to pay.
(m) No Undisclosed Liabilities. Neither the Company nor any of its Subsidiaries has any liabilities, obligations, claims, or losses (whether liquidated or unliquidated, secured or unsecured, absolute, accrued, contingent, or otherwise) that would be required to be disclosed on a balance sheet of the Company or any Subsidiary (including the notes thereto) in conformity with GAAP and are not disclosed in the Company’s SEC filings, other than those incurred in the ordinary course of the Company’s or its Subsidiaries respective businesses since September 30, 2023 and which, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
3. Representations and Warranties of the Investors. Each Investor, severally but not jointly and for that Investor alone, represents and warrants to the Company, as of the acquisition of a Note, as follows:
(a) Authorization. Such Investor has all requisite power and authority to enter into the Transaction Documents, to purchase the Notes and Warrants and to carry out and perform its obligations under the terms of the Transaction Documents. All action on the part of such Investor, its officers, directors and stockholders necessary for the authorization, execution and delivery of the Transaction Documents has been taken or will be taken prior to each Closing, and the Transaction Documents constitute valid and legally binding obligations of such Investor, enforceable in accordance with their respective terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting enforcement of creditors’ rights generally and (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies. No consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any Governmental Authority on the part of such Investor is required in connection with the consummation of the transactions contemplated by the Transaction Documents, except as may be required under applicable law.
(b) Purchase Entirely for Own Account. This Agreement is made with such Investor in reliance upon, among other things, such Investor’s representations to the Company, which, by such Investor’s execution of this Agreement, such Investor hereby confirms, that the Notes and Warrants, any replacement securities issued upon any transfer or replacement thereof, and any shares of Common Stock issuable upon conversion of the Notes and exercise of the Warrants (collectively, the “Securities”) will be acquired for investment for such Investor’s own account, not as a nominee or agent, and not with a view to, or for resale in connection with, any distribution of any part thereof in violation of the Securities Act, and that such Investor has no present intention of distributing any of the Notes or Warrants. By executing this Agreement, such Investor further represents that such Investor does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to any third person with respect to any of the Securities.
(c) Reliance Upon the Investors’ Representations. Each Investor acknowledges that the Notes and Warrants are not, and any shares acquired on conversion or exercise thereof at the time of issuance may not be, registered under the Securities Act on the ground that the sale provided for in this Agreement and the issuance of securities hereunder is exempt from registration under the Securities Act and that the Company’s reliance on such exemption is based, in part, on such Investor’s representations set forth herein.
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(d) Receipt of Information. Such Investor acknowledges that there has been provided or made available to it all the information it considers necessary or appropriate for deciding whether to purchase the Securities. Such Investor further represents that through its representatives it has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the offering of the Securities and the business, properties, prospects and financial condition of the Company. The foregoing, however, does not limit or modify the representations and warranties of the Company in Section 2 of this Agreement or the right of such Investor to rely thereon.
(e) Investment Experience. Such Investor is experienced in evaluating and investing in securities of companies in the development stage and acknowledges that it is able to fend for itself, can bear the economic risk of its investment, and has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of the investment in the Securities and is able, without impairing such Investor’s financial condition, to hold the Securities to be purchased by such Investor for an indefinite period of time and to suffer a complete loss of such Investor’s investment. Such Investor also represents it has not been organized solely for the purpose of acquiring the Securities.
(f) Understanding of Risk. Such Investor is fully aware of (i) the highly speculative nature of the Securities, (ii) the financial hazards involved, (iii) the lack of liquidity of the Securities and the restrictions on the transferability of the Securities (e.g. that such Investor may not be able to sell or dispose of the Securities), (iv) the qualifications and backgrounds of the management of the Company and (v) the tax consequences of acquiring the Securities.
(g) Investor Status. Each Investor is a “non-U.S. person” as defined in Regulation S of the Securities Act. Each Investor further makes the representations and warranties to the Company set forth on Exhibit C.
(h) Reserved.
(i) No Public Market. Such Investor understands and acknowledges that no public market now exists for any of the Notes and Warrants issued by the Company and that the Company has made no assurances that a public market will ever exist for the Securities or other securities of the Company.
(j) Restricted Securities. Such Investor understands that the Securities may not be sold, transferred or otherwise disposed of without registration under the Securities Act and applicable state securities laws or an exemption therefrom, and that in the absence of an effective registration statement covering the Securities or an available exemption from registration under the Securities Act, the Securities must be held indefinitely. Investor acknowledges that the Company has no obligation to make or keep “current public information” (as defined in Rule 144 under the Securities Act).
(k) Legends. To the extent applicable, each certificate or other document evidencing any of the Notes and Warrants shall be endorsed with the legend substantially in the form set forth below, and such Investor covenants that, except to the extent such restrictions are waived by the Company, such Investor shall not transfer the Notes and Warrants without complying with the restrictions on transfer described in the legends endorsed on any such Note and Warrant (except that the Company shall not require an opinion of counsel in connection with a transfer to an affiliated entity or pursuant to Rule 144):
“THIS [CONVERTIBLE PROMISSORY NOTE/WARRANT] AND THE SECURITIES ISSUABLE UPON THE [CONVERSION/EXERCISE] HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THIS [CONVERTIBLE PROMISSORY NOTE/WARRANT] HAS BEEN ISSUED PURSUANT TO A SAFE HARBOR FROM REGISTRATION UNDER REGULATION S PROMULGATED UNDER THE SECURITIES ACT. THE SECURITIES MAY NOT BE OFFERED OR SOLD IN THE UNITED STATES OR TO U.S. PERSONS (AS SUCH TERM IS DEFINED IN REGULATION S PROMULGATED UNDER THE SECURITIES ACT) UNLESS THE SECURITIES ARE REGISTERED UNDER THE SECURITIES ACT, PURSUANT TO REGULATION S OR PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. FURTHER, HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE MADE EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT.”
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(l) Tax Advisors. Such Investor has reviewed with its own tax advisors the U.S. federal, state and local and non-U.S. tax consequences of this investment and the transactions contemplated by this Agreement. With respect to such matters, such Investor relies solely on any such advisors and is not relying on any statements or representations of the Company or any of its agents, written or oral, as tax advice.
(m) Exculpation. Such Investor acknowledges that it is not relying upon any person, firm or corporation, other than the Company and its officers and directors, in making its investment or decision to invest in the Company.
(n) Reserved
(o) No Restricted Entities. Such Investor represents that neither it, nor any of its officers, directors or beneficial owners, is an individual or entity with whom the transactions described herein would be prohibited by a governmental authority, as identified on the United States Government Consolidated Screening List, or any other applicable governmental list or regulation that would prohibit or restrict the transactions described herein, including any prohibitions or restrictions based on the nationality of an entity or individual.
(p) No Brokers or Finders. Except as previously disclosed to the Company prior to the date of this Agreement, neither such Investor nor any of its Affiliates has retained, utilized or been represented by, or otherwise become obligated to, any broker, placement agent, financial advisor or finder in connection with the transactions contemplated by this Agreement whose fees the Company would be required to pay.
4. Conditions to Closing of the Investors. Each Investor’s obligations at each Closing are subject to the fulfillment, on or prior to such Closing Date, of all of the following conditions, any of which may be waived in whole or in part by such Investor with respect to itself:
(a) Representations and Warranties. The representations and warranties made by the Company in Section 2 hereof shall have been true and correct when made and shall be true and correct on the date hereof and on each Closing Date.
(b) Performance. The Company shall have performed and complied with all covenants, agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by the Company on or before such Closing.
(c) Governmental Approvals and Filings. Except for any notices required or permitted to be filed after each Closing Date with certain federal and state securities commissions, the Company shall have obtained all governmental approvals required in connection with the lawful sale and issuance of the Notes and Warrants.
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(d) Legal Requirements. At each Closing, the sale and issuance by the Company, and the purchase by such Investor of the Notes and Warrants, shall be legally permitted by all laws and regulations to which such Investor or the Company are subject.
(e) Proceedings and Documents. All corporate and other proceedings in connection with the transactions contemplated at each Closing and all documents and instruments incident to such transactions shall be reasonably satisfactory in substance and form to the Investors.
(f) Transaction Documents and other Deliverables. The Company shall have duly executed and delivered to the Investors the following documents:
(i) This Agreement, duly executed by the Company, including Schedule II hereto.
(ii) Each Note and Warrant issued hereunder in accordance with the terms of this Agreement and registered in the names of the Investor.
(iii) The Company shall have provided the Investors with the Company’s wire instructions for all amounts payable.
(iv) Reserved.
(v) Such other opinions, certificates, statements, including, without limitation, a closing statement, and agreements as the Investors may reasonably require.
(g) Approvals. The Company shall have obtained any necessary approvals by the Company’s Board of Directors or applicable third parties.
(h) Waivers. The Company shall have fully satisfied (including with respect to rights of timely notification) or obtained enforceable waivers in respect of any preemptive or similar rights (if any) with respect to the issuance of the Notes and Warrants.
(i) Ordinary Course of Business. The Company shall have remained in the ordinary course of business.
5. Conditions to Obligations of the Company. The Company’s obligation to issue and sell the Notes and Warrants at each Closing to each respective Investor is subject to the fulfillment, on or prior to each Closing Date, of the following conditions, any of which may be waived in whole or in part by the Company:
(a) Representations and Warranties. The representations and warranties made by such Investor in Section 3 hereof shall be true and correct when made, and shall be true and correct on each Closing Date.
(b) Governmental Approvals and Filings. Except for any notices required or permitted to be filed after each Closing Date with certain federal and state securities commissions, the Company shall have obtained all governmental approvals required in connection with the lawful sale and issuance of the Notes and Warrants.
(c) Legal Requirements. At each Closing, the sale and issuance by the Company, and the purchase by the Investors, of the Notes and Warrants shall be legally permitted by all laws and regulations to which the Investors or the Company are subject.
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(d) Purchase Price. Such Investor shall have delivered to the Company the Purchase Price in respect of the Notes and Warrants being purchased by such Investor referenced in Section 1 hereof.
(e) Reserved.
6. Miscellaneous.
(a) Waivers and Amendments. Any provision of this Agreement, the Notes and Warrants may be amended, waived or modified only upon the written consent of the Company and all Investors.
(b) Governing Law. This Agreement shall be governed by and construed and enforced in accordance with, and all questions concerning the construction, validity, interpretation, and performance of this Agreement 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 jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of New York. The Company 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 to the Company at the address set forth on the signature page to the Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. 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, 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 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 be deemed or operate to preclude the Investor(s) from bringing suit or taking other legal action against the Company in any other jurisdiction to collect on the Company’s obligations to the Investor(s), to realize on any collateral or any other security for such obligations, or to enforce a judgment or other court ruling in favor of the Investor(s). THE PARTIES HEREBY IRREVOCABLY WAIVE ANY RIGHT THEY MAY HAVE TO, AND AGREE NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
(c) Survival. The representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this Agreement.
(d) Successors and Assigns. Subject to the restrictions on transfer described in Sections 6(e) and the Notes and Warrants, the rights and obligations of the Company and the Investors shall be binding upon and benefit the successors, assigns, heirs, administrators and transferees of the parties. In connection with any assignment or transfer of the Notes and Warrants by an Investor in accordance with the terms of the Notes and Warrants, the Company shall update Schedule I to reflect such assignment or transfer.
(e) Assignment by the Company. The rights, interests or obligations hereunder may not be assigned, by operation of law or otherwise, in whole or in part, by the Company without the prior written consent of all Investors.
(f) Entire Agreement. This Agreement together with the other Transaction Documents constitute and contain the entire agreement among the Company and the Investors and supersede any and all prior agreements, negotiations, correspondence, understandings and communications among the parties, whether written or oral, respecting the subject matter hereof.
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(g) Notices. All notices, requests, demands, consents, instructions or other communications required or permitted hereunder shall be in writing and mailed or delivered to each party as follows: (i) if to an Investor, at such Investor’s address set forth in the signature page to this Agreement, or (ii) if to the Company, at such address below. All such notices and communications will be deemed effectively given the earlier of (i) when received, (ii) when delivered personally, (iii) one Business Day after being deposited with an overnight courier service of recognized standing or (iv) four days after being deposited in the U.S. mail, first class with postage prepaid.
| If to the Company, to: | CIMG Inc. |
| Room R2, FTY D, 16/F, Kin Ga Industrial Building, 9 San On Street, Tuen Mun, Hong Kong | |
| Attn: Jianshuang Wang | |
| Email: [*] | |
with a copy (which shall not constitute notice) to:
|
Huan Lou, Esq. McCarter & English, LLP 250 West 55th St., 13th Floor New York, NY 10019 |
| Attention: Huan Lou, Esq. | |
| Email: [email protected] | |
| If to the Investor, | see the signature page of each Investor |
(h) Separability of Agreements; Severability of this Agreement. The Company’s agreement with each of the Investors is a separate agreement and the sale of the Notes and Warrants to each of the Investors is a separate sale. Unless otherwise expressly provided herein, the rights of each Investor hereunder are several rights, not rights jointly held with any of the other Investors. Any invalidity, illegality or limitation on the enforceability of the Agreement or any part thereof, by any Investor whether arising by reason of the law of the respective Investor’s domicile or otherwise, shall in no way affect or impair the validity, legality or enforceability of this Agreement with respect to other Investors. If any provision of this Agreement shall be judicially determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
(i) Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same agreement. Facsimile copies of signed signature pages will be deemed binding originals.
(j) Expenses. All costs and expenses, including, without limitation, fees and disbursements of counsel, financial advisors and accountants, incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs and expenses, whether or not each Closing shall have occurred.
(k) Time of Essence. Time is of the essence.
(Signature Page Follows)
| 9 |
The parties have caused this Agreement to be duly executed and delivered by their proper and duly authorized officers as of the date and year first written above.
| COMPANY: | ||
| CIMG Inc. | ||
| By: | /s/ Jianshuang Wang | |
| Name: | Jianshuang Wang | |
| Title: | Chief Executive Officer | |
[Company Signature Page]
| 10 |
| INVESTOR: Xiangrong Dai | ||
| /s/ Xiangrong Dai | ||
| Email: | [*] | ||||
| Address: | [*] | ||||
| Total Purchase Price: | $ | 1,250,000 | |||
| Purchase Price payable at the Initial Closing: | $ | 400,000 | |||
| Purchase Price payable at the Second Closing: | $ | 850,000 | |||
[Investor Signature Page]
| 11 |
| INVESTOR: Yanqin Chen | ||
| /s/ Yanqin Chen | ||
| Email: | [*] | ||||
| Address: | [*] | ||||
| Total Purchase Price: | $ | 1,250,000 | |||
| Purchase Price payable at the Initial Closing: | $ | 400,000 | |||
| Purchase Price payable at the Second Closing: | $ | 850,000 | |||
[Investor Signature Page]
| 12 |
| INVESTOR: Metaverse Intelligence Tech Ltd | ||
| /s/ Wenwen Yu | ||
| Name: | Wenwen Yu | |
| Title: | Director | |
| Email: | [*] | ||||
| Address: | [*] | ||||
| Total Purchase Price: | $ | 1,250,000 | |||
| Purchase Price payable at the Initial Closing: | $ | 400,000 | |||
| Purchase Price payable at the Second Closing: | $ | 850,000 |
[Investor Signature Page]
| 13 |
| INVESTOR: YY Tech Inc. | ||
| /s/Yujie Liu | ||
| Name: | Yujie Liu | |
| Title: | Director | |
| Email: | [*] | ||||
| Address: | [*] | ||||
| Total Purchase Price: | $ | 1,250,000 | |||
| Purchase Price payable at the Initial Closing: | $ | 400,000 | |||
| Purchase Price payable at the Second Closing: | $ | 850,000 | |||
[Investor Signature Page]
| 14 |
APPENDIX 1
DEFINITIONS
As used in this Agreement, the following terms have the meanings specified below:
“Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
“Board of Directors” means the board of directors or comparable governing body of the Company or any committee thereof duly authorized to act on its behalf.
“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed.
“Code” means the U.S. Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder.
“Common Stock” means the Company’s common stock, par value $0.00001 per share, of the Company.
“Company” has the meaning set forth in this Agreement.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“dollars” or “$” refers to lawful money of the United States of America.
“Financial Officer” means the chief financial officer, treasurer, chief accounting officer, head of finance, vice president of finance or corporate controller of the Company, as the case may be.
“GAAP” means generally accepted accounting principles in the United States of America applied on a consistent basis.
“Governmental Authority” means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
“Joint Venture” means a joint venture, partnership or other similar arrangement, whether in corporate, partnership or other legal form; provided that, in no event shall any corporate Subsidiary of any Person be considered to be a Joint Venture to which such Person is a party.
“Nasdaq Official Closing Price” means the official closing price of the Common Stock as reported by Nasdaq (or, if Nasdaq ceases to report such price, any successor reporting service reasonably acceptable to the Company and the Investors).
“Material Adverse Effect” means a material adverse effect on (a) the business, property, financial condition or results of operations of Company and its Subsidiaries taken as a whole or (b) the rights and remedies of the Investors under this Agreement or the Transaction Documents.
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“Notes” means the convertible promissory notes issued under this Agreement in the form in Exhibit A attached hereto.
“OFAC” means the United States Treasury Department Office of Foreign Assets Control.
“Person” means any natural person, corporation, limited liability company, trust, Joint Venture, association, company, partnership, Governmental Authority or other entity.
“Subsidiary” means any subsidiary or consolidated affiliated entity (if any) of the Company.
“Trading Market” means the principal U.S. securities exchange or trading market on which the Common Stock is then listed or quoted for trading.
“Taxes” means any and all present or future taxes, levies, imposts, duties, deductions, charges or withholdings (including backup withholding) imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Transaction Documents” means this Agreement (including any amendment hereto or waiver hereunder), the Notes, and the Warrants.
“Warrants” means the warrants issued under this Agreement in the form in Exhibit B attached hereto.
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Exhibit 10.2
THIS CONVERTIBLE PROMISSORY NOTE AND THE SECURITIES ISSUABLE UPON THE CONVERSION HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THIS CONVERTIBLE PROMISSORY NOTE HAS BEEN ISSUED PURSUANT TO A SAFE HARBOR FROM REGISTRATION UNDER REGULATION S PROMULGATED UNDER THE SECURITIES ACT. THE SECURITIES MAY NOT BE OFFERED OR SOLD IN THE UNITED STATES OR TO U.S. PERSONS (AS SUCH TERM IS DEFINED IN REGULATION S PROMULGATED UNDER THE SECURITIES ACT) UNLESS THE SECURITIES ARE REGISTERED UNDER THE SECURITIES ACT, PURSUANT TO REGULATION S OR PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. FURTHER, HEDGING TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE MADE EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT
CIMG INC.
CONVERTIBLE PROMISSORY NOTE
Principal Amount: USD $[ ] |
Issue Date: [ ] |
For value received, CIMG Inc., a Nevada corporation (the “Company”), promises to pay to [ ] (the “Holder”) the Principal Amount of this Note as set forth above (the “Principal Amount”) and interest thereon at the rate of 7.0% per annum. This Note is issued pursuant to certain Convertible Note and Warrant Purchase Agreement dated February 11, 2026. This Note is subject to the following terms and conditions.
1. Maturity and Repayment. Unless converted or repaid pursuant to the terms set forth in this Note, the entire unpaid principal sum and all accrued and unpaid interest under this Note shall be due and payable on August [ ], 2027 (the “Maturity Date”).
All repayments under this Note (including payments of principal amount and interest) shall be made in lawful money of the United States of America at such place as the Holder hereof may from time to time designate in writing to the Company. The outstanding principal amount of this Note shall bear interest at the rate of 7% per annum, accruing daily from and including the date hereof (or the applicable date of any advance, as applicable) to but excluding the date such amount is paid in full. Interest shall be computed on the basis of a 360-day year and the actual number of days elapsed (and shall not compound unless expressly provided herein). All accrued and unpaid interest shall be due and payable in full on the Maturity Date, together with the outstanding principal amount of this Note and any other amounts due hereunder. Any payment received shall be applied first to any costs and expenses payable hereunder (if any), second to accrued and unpaid interest, and third to outstanding principal. If any amount due under this Note becomes payable on a day that is not a Business Day, such payment shall be due on the next succeeding Business Day. The Note may be prepaid by the Company at any time prior to its Maturity Date without any penalty.
2. Conversion.
(a) Conversion. Subject to the receipt of Stockholder Approval (as defined below), at the election of the Holder, upon delivery of a written conversion notice (in the form attached hereto as Exhibit A-1) to the Company at least one (1) business day prior to the proposed conversion date (the “Conversion Date”), all or any portion of the outstanding principal amount and all accrued and unpaid interest under this Note (the “Conversion Amount”) shall be converted into shares of common stock of the Company, $0.00001 par value per share (the “Common Stock”) of the Company or such other securities or property for which this Note may become convertible as a result of any adjustment described in Section 2(b), at a price per share equal to the Conversion Price. Notwithstanding anything to the contrary herein, the Note shall not be convertible prior to the Stockholder Approval. “Conversion Price” shall mean, with respect to any conversion of this Note, the VWAP of the Common Stock for the ten (10) consecutive Trading Days ending on (and including) the Trading Day immediately prior to the Conversion Date; provided, however, that in no event shall the Conversion Price be less than $0.14 per share (the “Floor Price”), subject to adjustment pursuant to Section 2(b).
| 1 |
For the purpose of this Note, “Stockholder Approval” shall mean the approval of the Company’s stockholders required for the transactions contemplated hereby, including pursuant to applicable Nasdaq rules (if applicable).
For the purpose of this Note, “VWAP” shall mean, for any Trading Day, the volume weighted average price of the Common Stock for such Trading Day as reported by Bloomberg L.P. (or, if Bloomberg ceases to report such price, any successor reporting service reasonably acceptable to the Company and all Investors). “Trading Day” shall mean any day on which the Common Stock is listed or quoted and traded on its principal Trading Market; provided, however, that if the Common Stock is not listed or quoted on any Trading Market, then “Trading Day” shall mean any Business Day.
(b) Adjustment.
(i) In the event of any change in the outstanding Common Stock of the Company by reason of stock dividends, split-ups, recapitalizations, reclassifications, combinations or exchanges of Securities, separations, reorganizations, liquidations, merger, consolidation, acquisition of the Company, or the like, the number, class and type of securities or other property issuable upon conversion of this Note and the Conversion Price shall be proportionately adjusted so that, upon conversion of the same aggregate Conversion Amount, the Holder shall receive the same number, class, and type of securities (or other property) that the Holder would have owned had this Note been converted immediately prior to such event and the Holder had continued to hold such securities (or other property) through such event. The form of this Note need not be changed as a result of any such adjustment.
(ii) Upon the occurrence of any adjustment pursuant to this Section 2(b), the Company shall, at its expense and upon the Holder’s written request, promptly compute such adjustment in accordance with the terms of this Note and prepare a certificate setting forth such adjustment, including (i) the adjusted Conversion Price and (ii) the adjusted number, class, or type of Conversion Shares or other securities or property issuable upon conversion of this Note (as applicable). Such certificate shall describe the event giving rise to the adjustment and showing in detail the facts upon which such adjustment is based. Upon written request, the Company shall promptly deliver a copy of such certificate to the Holder.
(c) Mechanics and Effect of Conversion. No fractional Conversion Shares shall be issued upon any conversion of this Note. Any fractional shares otherwise issuable upon conversion shall be rounded down to the nearest whole share. Upon conversion of this Note pursuant to this Section 2, the Holder shall surrender this Note to the Company at its principal offices. At its expense, the Company will, as soon as practicable thereafter, cause to be issued and delivered to such Holder a Book-Share Entry Statement for the number of Conversion Shares to which such Holder is entitled upon such conversion or confirmation of book-entry registration of such Conversion Shares, together with a check payable to the Holder for any cash amounts payable as described herein. Upon any conversion of this Note, the Company shall be released from its obligations and liabilities under this Note with regard to the portion of the Conversion Amount so converted.
3. Reserved.
4. Transfer; Successors and Assigns. The terms and conditions of this Note shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Notwithstanding the foregoing, the Holder may not assign, pledge, or otherwise transfer this Note without the prior written consent of the Company, except for transfers to affiliates. Subject to the preceding sentence, this Note may be transferred only upon surrender of the original Note for registration of transfer, duly endorsed, or accompanied by a duly executed written instrument of transfer in form satisfactory to the Company. Thereupon, a new convertible promissory note for the same principal amount will be issued to, and registered in the name of, the transferee.
5. Governing Law. This Note and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of New York, without giving effect to principles of conflicts of law.
| 2 |
6. Notices. Any notice required or permitted by this Note shall be in writing and shall be deemed sufficient upon receipt, when delivered personally or by courier, overnight delivery service or confirmed e-mail, or forty-eight (48) hours after being deposited in the U.S. mail as certified or registered mail with postage prepaid, if such notice is addressed to the party to be notified at such party’s address or e-mail as set forth below or as subsequently modified by written notice. The addresses and e-mail addresses for such communications shall be:
| If to the Company, by email only, to: | CIMG Inc. |
| Attention: Jianshuang Wang | |
| Email: [*] | |
with a copy (which shall not constitute notice) to:
|
McCarter & English LLP 250 West 55th Street, 13th Floor New York, NY 10019 |
| Attention: Huan Lou | |
| Email: [email protected] | |
| If to the Holder, to: | Please refer to the Holder’s respective contact information set forth in the Convertible Note and Warrant Purchase Agreement, dated February 11, 2026, by and among the Company and the parties named thereto. |
7. Amendments and Waivers. Any term of this Note may be amended or waived only with the written consent of the Company and the Holder. Any amendment or waiver effected in accordance with this Section 7 shall be binding upon the Company, the Holder and transferee of this Note.
8. Stockholders, Officers and Directors Not Liable. In no event shall any stockholder, officer or director of the Company be liable for any amounts due or payable pursuant to this Note.
9. Titles and Subtitles. The titles and subtitles used in this Note are used for convenience only and are not to be considered in construing or interpreting this Note.
[THIS SPACE LEFT INTENTIONALLY BLANK; SIGNATURE PAGE FOLLOWS]
| 3 |
This Note is executed and delivered as of the date first set forth above.
| COMPANY: | ||
| For and on behalf of | ||
| CIMG INC., a Nevada corporation | ||
| Name: | Jianshuang Wang | |
| Title: | Chief Executive Officer | |
[Signature Page to Convertible Note]
| 4 |
Exhibit 10.3
THIS WARRANT AND THE COMMON STOCK ISSUABLE UPON THE EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE TRANSFERRED EXCEPT UPON DELIVERY TO THE COMPANY OF AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO IT THAT SUCH TRANSFER IS EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THIS WARRANT MAY NOT BE EXERCISED IN THE UNITED STATES OR BY OR ON BEHALF OF A U.S. PERSON OR A PERSON IN THE UNITED STATES UNLESS REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS IS AVAILABLE AND AN OPINION OF COUNSEL IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE ISSUER, IS PROVIDED TO SUCH EFFECT. THE TERMS “UNITED STATES” AND “U.S. PERSON” ARE AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
CIMG Inc.
Warrant for the Purchase of Common Stock
| Issuance Date: [ ], 2026 | shares of Common Stock |
CIMG Inc., a Nevada corporation (the “Company”), hereby certifies that, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, [ ], the registered holder hereof, or its permitted assigns (the “Holder”), is entitled, subject to the terms and conditions set forth below, to purchase from the Company, upon surrender of this Warrant, at any time or times on or after the receipt of the Stockholder Approval (as defined in section 1(e)), but before 5:00 p.m. Eastern Time on [ ], 2029, being three years from the Issuance Date (the “Expiration Date”), a number of shares of the Company’s common stock, par value $0.00001 per share (“Common Stock”), at an exercise price per share of $0.57 (the “Exercise Price”), subject to adjustment as provided herein (the “Warrant Shares”).
As used herein, the term “this Warrant” shall mean and include this warrant and any warrants hereafter issued as a consequence of the exercise or transfer of this Warrant in whole or in part. The rights, preferences and obligations of a holder of Common Stock are set forth in the Company’s Third Amended and Restated Bylaws dated March 17, 2022 and the Company’s Articles of Incorporation, as amended.
The number of Warrant Shares and the Exercise Price may be adjusted from time to time as hereinafter set forth. This Warrant is issued pursuant to that certain Convertible Note and Warrant Purchase Agreement, dated as of February 11, 2026, between the Company and the Holder (as the same may be amended from time to time, the “Purchase Agreement”).
1. Exercise of Warrant.
(a) Subject to the terms and conditions hereof, this Warrant may be exercised by the Holder, in whole or in part, during normal business hours on any business day on or after the receipt of Stockholder Approval (as defined in Section 1(e)) and prior to 5:00 p.m. Eastern Time on the Expiration Date by:
(i) delivery of a duly executed written notice, in the form of the subscription notice attached as Exhibit A hereto (the “Exercise Notice”), of such Holder’s election to exercise this Warrant, which notice shall specify the number of Warrant Shares to be purchased;
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(ii) payment to the Company of an amount equal to the Exercise Price multiplied by the number of Warrant Shares as to which this Warrant is being exercised (the “Aggregate Exercise Price”), either in cash or by certified check or wire transfer of immediately available funds or by delivery of this Warrant through a cashless exercise in accordance with Section 1(b) below; and
(iii) delivery to the Company of this Warrant (or an indemnity and evidence with respect to this Warrant in the case of its loss, theft, mutilation or destruction as provided in Section 8);
Upon the Company’s receipt of the Exercise Notice, the Aggregate Exercise Price (or notice of a cashless exercise) and this Warrant (or an indemnity and evidence with respect to this Warrant in the case of its loss, theft, mutilation or destruction as provided in Section 8) (the “Exercise Delivery Documents”), the Holder shall be deemed for all entity 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 certificates evidencing such Warrant Shares.
(b) This Warrant may also be exercised by the Holder through a cashless exercise, as described in this Section 1(b). In lieu of exercising this Warrant for cash, the Holder may elect to receive Warrant Shares equal to the value (as determined below) of this Warrant (or the portion thereof being exercised), by (i) the delivery to the Company of a duly executed Exercise Notice specifying the number of Warrant Shares to be applied to such exercise, and (ii) delivery to the Company of this Warrant (or an indemnity and evidence with respect to this Warrant in the case of its loss, theft, mutilation or destruction as provided in Section 8). The number of shares of Common Stock to be issued upon exercise of this Warrant pursuant to this Section 1(b) shall equal the value of this Warrant (or the portion thereof being exercised) computed as of the date of delivery of this Warrant to the Company using the following formula:
| X = | Y(A - B) |
||
| A |
| Where: | ||
| X = | the number of shares of Common Stock to be issued to Holder under this Section 1(b); | |
| Y = | the number of Warrant Shares identified in the Exercise Notice as being surrendered for the cashless exercise; | |
| A = | the Fair Market Value of one share of Common Stock (at the date of such valuation); and | |
| B = | the Exercise Price (as adjusted to the date of such calculation). |
For purposes of this Section 1(b), Fair Market Value shall have the definition provided in Section 5(h).
The Company acknowledges and agrees that this Warrant was issued on the date set forth on the first page as the Issuance Date. Consequently, the Company acknowledges and agrees that, if the Holder conducts a cashless exercise, the period during which the Holder held this Warrant may, for purposes of Rule 144 promulgated under the Securities Act of 1933, as amended (the “Securities Act”), be “tacked” to the period during which the Holder holds the Warrant Shares received upon such cashless exercise.
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(c) Effect of Exercise. Upon receipt by the Company of an Exercise Notice, together with proper payment of the Exercise Price, the Company agrees that such Warrant Shares shall be deemed to be issued to the Holder as the record holder of such Warrant Shares as of the close of business on the date on which the Exercise Notice has been delivered and payment has been made for such Warrant Shares in accordance with this Warrant and the Holder shall be deemed to be the holder of record of the Warrant Shares, notwithstanding that the Share transfer books of the Company shall then be closed or that certificates representing such Warrant Shares shall not then be actually delivered to the Holder. On or before the second (2nd) business day following the date on which the Company has received each Exercise Notice, the Aggregate Exercise Price (or notice of a cashless exercise) and this Warrant (or an indemnification undertaking with respect to this Warrant in the case of its loss, theft, mutilation or destruction) (the “Exercise Delivery Documents”), the Company shall issue and deliver to the address as specified in the Exercise Notice, a certificate, registered in the name of the holder of this Warrant or its designee, for the number of Warrant Shares to which the holder of this Warrant is entitled pursuant to such exercise. If this Warrant shall be exercised in part only, the Company shall, upon surrender of this Warrant for cancellation, execute and deliver a new Warrant evidencing the right of the Holder to purchase the balance of the Warrant Shares subject to purchase hereunder within two (2) business days of receipt of the Warrant.
(d) 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 1 or otherwise, to the extent that after giving effect to such issuance after exercise as set forth on the applicable Exercise Notice, the Holder (together with (i) the Holder’s affiliates, (ii) any other Persons acting as a group together with the Holder or any of the Holder’s affiliates, and (iii) any other Persons whose beneficial ownership of the shares of Common Stock would or could be aggregated with the Holder’s for the purposes of Section 13(d) (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 shares of Common Stock beneficially owned by the Holder and its affiliates and Attribution Parties shall include the number of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of Warrant 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 Common Stock 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 1(d), 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 1(d) 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 an Exercise Notice 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 and shall have no liability for exercises of the Warrant that are not in compliance with the Beneficial Ownership Limitation, except to the extent the Holder relies on the number of outstanding shares of Common Stock that was provided by the Company. 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, and the Company shall have no obligation to verify or confirm the accuracy of such determination and shall have no liability for exercises of the Warrant that are not in compliance with the Beneficial Ownership Limitation, except to the extent the Holder relies on the number of outstanding shares of Common Stock that was provided by the Company. For purposes of this Section 1(d), in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock 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 shares of Common Stock 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 shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock 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 shares of Common Stock was reported. The “Beneficial Ownership Limitation” shall be 19.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of Warrant 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 1(d), provided that the Beneficial Ownership Limitation in no event exceeds 19.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of Warrant Shares upon exercise of this Warrant held by the Holder and the provisions of this Section 1(d) 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 1(d) 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. If the Warrant is unexercisable as a result of the Holder’s Beneficial Ownership Limitation, no alternate consideration is owing to the Holder.
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(e) Voting Share Restriction. In the event the Common Stock is being traded on the Nasdaq Stock Market or any comparable trading market at the time of exercise and the Holder’s exercise of this Warrant would result in the Holder owning more than twenty percent (20%) of the Company’s issued Common Stock, Holder may only exercise up to the number of Warrant Shares equivalent to 19.99% of the Company’s issued Common Stock until such time as the Company receives Stockholder Approval. Upon receipt of the Exercise Notice from the Holder which would result in the Holder owning twenty percent (20%) or more of the Company’s issued Common Stock, the Company shall seek Stockholder Approval of the Holder’s ownership of twenty percent (20%) or more of the Company’s issued Common Stock. In the event the Company is unable to obtain Stockholder Approval within 120 days after receipt of the Exercise Notice or the shareholders disapprove such issuance of Common Stock, the Holder shall be entitled to a cash payment to place it in the position that it would have been in had the Holder received the relevant Warrant Shares on such date and sold them on-market on the same date at the volume weighted average price of those Warrant Shares for that day. In addition, no exercise of this Warrant may be undertaken until the Company’s stockholders approve the transactions contemplated by the Purchase Agreement, which for the avoidance of doubt shall be upon the effectiveness of any written consent of the majority stockholders and information statement pursuant to applicable SEC regulations or upon stockholder approval by meeting, as may be determined by the Board of the Company. For the purposes of this Warrant, the issuance of the Warrant Shares is deemed to be a transaction subject to Nasdaq Listing Rule 5635(d). For purposes of this Warrant, “Stockholder Approval” shall mean the approval of the Company’s shareholders as required by Nasdaq Listing Rule 5635(d) (and any other applicable Nasdaq rules), which approval, for the avoidance of doubt, shall be obtained either upon the effectiveness of any written consent of the majority shareholders and information statement pursuant to applicable SEC regulations or upon stockholder approval by meeting, as may be determined by the board of directors of the Company.
2. Representations of Holder. The Holder, by the acceptance hereof, represents and warrants that it:
(a) is acquiring this Warrant and the Warrant Shares solely for its own account, for investment and not with a view towards the distribution or resale thereof in violation of the Securities Act or any applicable state securities laws;
(b) is not a “U.S. Person” (as defined in Regulation S promulgated under the Securities Act (“Regulation S”));
(c) acquired this Warrant in an offshore transaction (as defined in Regulation S);
(d) aware that the sale of this Warrant is being made in reliance on the exemption from registration provided by Regulation S; and
(e) acknowledges and covenants that this Warrant may not be exercised by or on behalf of a U.S. Person, except pursuant to an exemption from the registration requirements of the Securities Act and applicable securities laws; If the Holder cannot make any of the foregoing representations at the time of any exercise of this Warrant because it would be factually incorrect at that time, the Holder shall so notify the Company, and it shall be a condition to the Holder’s exercise of this Warrant at that time that the Company receive such other assurances as the Company then considers reasonably necessary to assure the Company that the issuance of the Warrant Shares upon such exercise of this Warrant at such time shall not violate the Securities Act or any state securities laws.
3. Restrictions on Transfer.
(a) Notwithstanding any provisions contained in this Warrant to the contrary, this Warrant and the related Warrant Shares shall not be transferable except pursuant to the proviso contained in the following sentence or upon the conditions specified in this Section 3, which conditions are intended, among other things, to insure compliance with the provisions of the Securities Act and applicable state law in respect of the transfer of this Warrant or such Warrant Shares. The Holder by acceptance of this Warrant agrees that the Holder will not transfer this Warrant or the related Warrant Shares prior to delivery to the Company of an opinion of the Holder’s counsel (as such opinion and such counsel are described in Section 3(b) hereof) or until registration of such Warrant Shares under the Securities Act has become effective or after a sale of such Warrant or Warrant Shares has been consummated pursuant to Rule 144 under the Securities Act.
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(b) The Holder, by its acceptance hereof, agrees that prior to any transfer of this Warrant or of the related Warrant Shares (other than as permitted by Section 3(a) hereof or pursuant to a registration under the Securities Act), the Holder will give written notice to the Company of its intention to effect such transfer, together with an opinion of such counsel for the Holder as shall be reasonably acceptable to the Company, to the effect that the proposed transfer of this Warrant and/or such Warrant Shares may be effected without registration under the Securities Act. Upon delivery of such notice and opinion to the Company, the Holder shall be entitled to transfer this Warrant and/or such Warrant Shares in accordance with the intended method of disposition specified in the notice to the Company.
(c) Each certificate representing Warrant Shares issued upon exercise or exchange of this Warrant shall bear the following legend, unless the opinion of counsel referred to in Section 3(b) states such legend is not required:
“THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE TRANSFERRED EXCEPT UPON DELIVERY TO THE COMPANY OF AN OPINION OF COUNSEL SATISFACTORY IN FORM AND SUBSTANCE TO IT THAT SUCH TRANSFER IS EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED.”
4. Reservation of Shares. The Company shall at all times prior to the receipt of Stockholder Approval reserve and keep available out of its authorized and unissued shares of Common Stock such number of shares of Common Stock as is then available for the purpose of providing for the exercise of this Warrant. Upon obtaining Stockholder Approval and the effectiveness of any related amendment to the Company’s Articles of Incorporation increasing its authorized shares of Common Stock, the Company shall reserve and keep available out of its authorized and unissued shares of Common Stock the maximum number of shares of Common Stock issuable upon exercise of this Warrant. The Company covenants that all shares of Common Stock issuable upon exercise of this Warrant, upon receipt by the Company of the full Exercise Price therefor, and all shares of Common Stock issuable upon exercise of this Warrant, shall be validly issued, fully paid and non-assessable.
5. Exercise Price Adjustments. The Exercise Price shall be subject to adjustment from time to time as follows:
(a) (i) In the event that the Company shall (A) pay a dividend or make a distribution, in shares of Common Stock, on any class of equity interests of the Company or any subsidiary, (B) split or subdivide its outstanding shares of Common Stock into a greater number shares of Common Stock, or (C) combine its outstanding shares of Common Stock into a smaller number of Shares, then in each such case the Exercise Price in effect immediately prior thereto shall be adjusted so that the Holder of this Warrant thereafter surrendered for exercise shall be entitled to receive the number of shares of Common Stock that such Holder would have owned or have been entitled to receive after the occurrence of any of the events described above had such Warrant been exercised immediately prior to the occurrence of such event. An adjustment made pursuant to this Section 5(a)(i) shall become effective immediately after the close of business on the record date in the case of a dividend or distribution (except as provided in Section 5(e) below) and shall become effective immediately after the close of business on the effective date in the case of such subdivision, split or combination, as the case may be. Any Shares issuable in payment by the Company of a dividend shall be deemed to have been issued immediately prior to the close of business on the record date for such dividend for purposes of calculating the number of outstanding shares of Common Stock under clause (iii) below.
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(ii) Upon any adjustment of the Exercise Price or a number of issuable Warrant Shares pursuant to Section 5(a), the Company shall give written notice thereof to the Holder, setting forth in reasonable detail the calculation of such adjustment.
(iii) No adjustment in the Exercise Price shall be required unless the adjustment would require an increase or decrease of at least 1% in the Exercise Price then in effect; provided, however, that any adjustments that by reason of this Section 5(a)(iii) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 5(a) shall be made to the nearest cent or nearest 1/100th of a share of Common Stock.
(iv) In the event that, at any time as a result of an adjustment made pursuant to Section 5(a)(i) or 5(a)(iii) above, the Holder of this Warrant thereafter surrendered for exercise shall become entitled to receive any equity interest of the Company other than shares of Common Stock, thereafter the number of such other equity interests so receivable upon exercise of this Warrant shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the shares of Common Stock contained in Section 5(a)(i) above, and the other provisions of this Section 5(a) with respect to the shares of Common Stock shall apply on like terms to any such other equity interests.
(b) In case of any reclassification of the shares of Common Stock (other than in a transaction to which Section 5(a)(i) applies), any consolidation of the Company with, or merger of the Company into, any other entity, any merger of another entity into the Company (other than a merger that does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock of the Company), any sale or transfer of all or substantially all of the assets of the Company or any compulsory Share or equity interest exchange, pursuant to which exchange the shares of Common Stock are converted into other securities, cash or other property, then lawful provision shall be made as part of the terms of such transaction whereby the Holder of this Warrant then outstanding shall have the right thereafter, during the period this Warrant shall be exercisable, to exercise this Warrant only for the kind and amount of securities, cash and other property receivable upon the reclassification, consolidation, merger, sale, transfer or share exchange by a holder of the number of shares of Common Stock of the Company into which this Warrant might have been able to exercise for immediately prior to the reclassification, consolidation, merger, sale, transfer or share exchange assuming that such holder of shares of Common Stock failed to exercise rights of election, if any, as to the kind or amount of securities, cash or other property receivable upon consummation of such transaction subject to adjustment as provided in Section 5(a) above following the date of consummation of such transaction. The Company shall not effect any such reclassification, consolidation, merger, sale, transfer, share exchange or other disposition unless prior to or simultaneously with the consummation thereof the successor corporation (if other than the Company) resulting from such consolidation or merger, or the corporation purchasing or otherwise acquiring such assets or other appropriate corporation or entity shall assume, by written instrument executed and delivered to the Holder, the obligation to deliver to the Holder upon its exercise of this Warrant such Shares, equity interest, securities or assets as, in accordance with the foregoing provisions, the Holder may be entitled to purchase and the other obligations under this Warrant. The provisions of this Section 5(b) shall similarly apply to successive reclassifications, consolidations, mergers, sales, transfers or share exchanges.
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(c) If:
(i) the Company shall take any action which would require an adjustment in the Exercise Price pursuant to Section 5(a); or
(ii) the Company shall authorize the granting to the holders of its shares of Common Stock generally of rights, warrants or options to subscribe for or purchase any Shares of any class or any other rights, warrants or options; or
(iii) there shall be any reclassification or change of the shares of Common Stock (other than a subdivision or combination of its outstanding shares of Common Stock) or any consolidation, merger or statutory exchange to which the Company is a party and for which approval of any stockholders of the Company is required, or the sale or transfer of all or substantially all of the assets of the Company; or
(iv) there shall be a voluntary or involuntary dissolution, liquidation or winding up of the Company;
then, in each such case, the Company shall cause to be filed with the transfer agent for this Warrant (unless there are no such transfer agent) and shall cause to be mailed to each Holder at such Holder’s address as shown on the books of the Company or the transfer agent for this Warrant, as promptly as possible, but at least thirty (30) days prior to the applicable date hereinafter specified, a notice stating (A) the record date record for the purpose of such dividend, distribution or granting of rights, warrants or options, or, if a record date shall not be set, the date as of which the holders of shares of Common Stock of record to be entitled to such dividend, distribution or rights, warrants or options are to be determined, or (B the date on which such reclassification, change, consolidation, merger, statutory exchange, sale, transfer, dissolution, liquidation or winding-up is expected to become effective or occur, and the date as of which it is expected that holders of shares of Common Stock of record shall be entitled to exchange their shares of Common Stock for securities or other property deliverable upon such reclassification, change, consolidation, merger, statutory exchange, sale, transfer, dissolution, liquidation or winding up. Failure to give such notice or any defect therein shall not affect the legality or validity of the proceedings described in this Section 5(c).
(d) Whenever the Exercise Price is adjusted as herein provided, the Company shall promptly file with the transfer agent for this Warrant (unless there are no such transfer agent) a certificate of the authorized officer of the Company setting forth the Exercise Price after the adjustment and setting forth a brief statement of the facts requiring such adjustment and a computation thereof. The Company shall promptly cause a notice of the adjusted Exercise Price to be mailed to each Holder.
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(e) In any case in which Section 5(a) provides that an adjustment shall become effective immediately after a record date for an event and the date fixed for such adjustment pursuant to Section 5(a) occurs after such record date but before the occurrence of such event, the Company may defer until the actual occurrence of such event (i) issuing to the Holder of this Warrant exercised after such record date and before the occurrence of such event the additional shares of Common Stock issuable upon such exercise by reason of the adjustment required by such event over and above the shares of Common Stock issuable upon such exercise before giving effect to such adjustment, and (ii) issuing to such holder any fraction of shares of Common Stock.
(f) Under no circumstances shall the Exercise Price be adjusted as a result of the issuance of securities at price lower than, the Exercise Price, except for the structural adjustments expressly set forth in Section 5.
(g) In case the Company shall take any action affecting the shares of Common Stock, other than actions described in this Section 5, which in the opinion of the Board of Directors of the Company, as applicable, would materially adversely affect the exercise right of the Holder, the Exercise Price may be adjusted, to the extent permitted by law, in such manner, if any, and at such time, as the Board of Directors, as applicable, may determine to be equitable in the circumstances.
(h) For the purpose of any computation under Section 1(b) or this Section 5, the “Fair Market Value” per share of Common Stock on any day shall mean: (i) if the principal trading market for such securities is a national or regional securities exchange, the closing price on such exchange on such day; or (ii) the last reported sales price so reported on such day; or (iii) if neither (i) nor (ii) above are applicable, and if bid and ask prices for Common Stock are reported in the over-the-counter market by NASDAQ (or, if not so reported, by the National Quotation Bureau), the average of the high bid and low ask prices so reported on such day. Notwithstanding the foregoing, if there is no reported closing price, last reported sales price, or bid and ask prices, as the case may be, for the day in question, then the Fair Market Value shall be determined as of the latest date prior to such day for which such closing price, last reported sales price, or bid and ask prices, as the case may be, are available, unless such securities have not been traded on an exchange or in the over-the-counter market for thirty (30) or more days immediately prior to the day in question, in which case the Fair Market Value shall be determined in good faith by, and reflected in a formal resolution of, the Board of Directors, of the Company.
(i) Upon each adjustment of the Exercise Price, this Warrant shall thereafter evidence the right to purchase, at the adjusted Exercise Price, that number of shares of Common Stock (calculated to the nearest thousandth) obtained by dividing (i) the product obtained by multiplying the number of shares of Common Stock purchasable upon exercise of this Warrant prior to adjustment of the number of shares of Common Stock by the Exercise Price in effect prior to adjustment of the Exercise Price, by (ii) the Exercise Price in effect after such adjustment of the Exercise Price.
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6. Reserved.
7. Transfer Taxes. The issuance of any shares of Common Stock or other securities upon the exercise of this Warrant, and the delivery of certificates or other instruments representing such shares of Common Stock or other securities, shall be made without charge to the Holder for any tax or other charge in respect of such issuance.
8. Loss or Mutilation of Warrant. Upon receipt of evidence reasonably satisfactory to the Company of the loss, theft, mutilation or destruction of this Warrant (and upon surrender of this Warrant if mutilated), and upon reimbursement of the Company’s reasonable expenses, the Company shall execute and deliver to the Holder thereof a new Warrant of like date, tenor, and denomination.
9. No Rights as a Stockholder. The Holder of this Warrant shall not have, solely on account of such status, any rights of a stockholder of the Company, either at law or in equity, except as provided in this Warrant.
10. Notice. Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Warrant must be in writing and will be deemed to have been made upon receipt when delivered personally, via pre-paid overnight courier or by certified mail, postage pre-paid, return receipt requested. The addresses for such communications shall be:
If to the Company:
CIMG Inc.
Room R2, FTY D, 16/F, Kin Ga Industrial Building,
9 San On Street, Tuen Mun, Hong Kong
Attention: Jianshuang Wang
| If to the Holder: | Please refer to the contact information set forth on the signature page to the Purchase Agreement. |
or such other address as the Company or Holder, as applicable, may specify in written notice given to the other party in accordance with this Section 10.
11. Amendments; Integration. This Warrant and any term hereof may be changed, waived, discharged, or terminated only by an instrument in writing signed by the party hereto against which enforcement of such change, waiver, discharge or termination is sought. This Warrant constitutes the entire understanding and agreement of the parties hereto with respect to the subject matter of this Warrant, and supersedes all prior representations, agreements, arrangements and understandings, written or oral, between the parties with such subject matter.
12. Expiration. This Warrant, in all events, shall be wholly void and of no effect after 5:00 p.m. Eastern Time on the Expiration Date.
13. Successors and Assigns. The terms and provisions of this Warrant shall inure to the benefit of, and be binding upon, the Company and the Holder and their respective successors and permitted assigns.
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14. Descriptive Headings. The descriptive headings of the several sections and paragraphs of this Warrant are inserted for convenience only and do not constitute a part of this Warrant.
15. Governing Law. This Warrant shall be governed by and construed and enforced in accordance with, and all questions concerning the construction, validity, interpretation, and performance of this Warrant 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 jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of New York. The Company 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 to the Company at the address set forth on the signature page to the Purchase Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. 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, 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 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 be deemed or operate to preclude the Holder from bringing suit or taking other legal action against the Company in any other jurisdiction to collect on the Company’s obligations to the Holder, to realize on any collateral or any other security for such obligations, or to enforce a judgment or other court ruling in favor of the Holder. THE COMPANY AND HOLDER HEREBY IRREVOCABLY WAIVE ANY RIGHT THEY MAY HAVE TO, AND AGREE NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS WARRANT OR ANY TRANSACTION CONTEMPLATED HEREBY.
16. Remedies, Characterization, Other Obligations, Breaches and Injunctive Relief.
The remedies provided in this Warrant shall be cumulative and in addition to all other remedies available under this Warrant and 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 right of the Holder to pursue actual and consequential damages for any failure by the Company to comply with the terms of this Warrant. 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, exercises and the like (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 (or the performance thereof). The Company acknowledges that a breach by it of its obligations hereunder will 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 of this Warrant 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 Warrant (including, without limitation, compliance with Section 1 hereof). The issuance of shares and certificates for shares as contemplated hereby upon the exercise of this Warrant shall be made without charge to the Holder or such shares for any issuance tax or other costs in respect thereof, provided that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of any certificate in a name other than the Holder or its agent on its behalf.
[Signature page follows]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed as of the Issuance Date.
| CIMG Inc., | ||
| a Nevada corporation | ||
| By: | ||
| Name: | Jianshuang Wang | |
| Title: | Chief Executive Officer | |
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