Triller Group Inc 8-K, filed Jan 29, 2025
Triller Group Inc. (ILLR)
About this 8-K
Triller Group Inc filed this 8-K on January 29, 2025, reporting on events of January 24, 2025.
Items reported
- Item 1.01: Entered into a material agreement
- Item 3.02: Unregistered sale of equity
- Item 5.02: Director or officer change, or executive pay
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form
Current Report
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported)
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Securities registered pursuant to Section 12(b) of the Act:
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 Entry into a Material Definitive Agreement
Private Placement
On January 24, 2025, Triller Group Inc. (the “Company”) entered into a Securities Purchase Agreement (the “PIPE Purchase Agreement”) with KCP Holdings Limited, a Cayman Islands exempt company (the “Purchaser”) for a private placement offering (“Private Placement”) of an aggregate of $14,000,000 in shares of common stock and warrants of the Company (the “PIPE Securities”). The shares will be sold at $2.20 per share. Additionally, the Purchaser will receive a warrant to purchase an equivalent number of shares at an exercise price of $5.00 per share. These warrants will become exercisable six months after issuance and will remain exercisable for five years. The PIPE Purchase Agreement contains customary representations, warranties and covenants of the parties, and the closing was subject to customary closing conditions.
In connection with the PIPE Purchase Agreement, the Company also entered into a registration rights agreement (the “Registration Rights Agreement”) with the Purchaser on January 24, 2025. Pursuant to the Registration Rights Agreement, the Company will be required to file, on or prior to the 60th calendar day following the date of the Registration Rights Agreement (the “Filing Deadline”), a resale registration statement (the “Resale Registration Statement”) with the U.S. Securities and Exchange Commission (the “SEC”) to register the resale of the shares issued to the Purchaser and shares issuable upon exercise of any warrant issued to the Purchaser. Pursuant to the Registration Rights Agreement, the Company shall use its reasonable best efforts to cause such Resale Registration Statement to be declared effective by the SEC as promptly as practicable after the filing thereof, but in any event prior to the 120th day following the date of the Registration Rights Agreement. All expenses incurred in connection with the registrations and offerings contemplated by the Registration Rights Agreement, and certain attorneys’ fees incurred by any electing Purchasers, shall be borne by the Company, and all selling expenses incurred in connection with any registration shall be borne by any electing Purchasers in proportion to the number of registrable securities for which registration is requested.
The foregoing descriptions of the Warrant, PIPE Purchase Agreement and the Registration Rights Agreement are subject to, and qualified in their entirety by, such documents (or forms thereof), which are attached hereto as Exhibits 4.1, 10.1 and 10.2, respectively, and incorporated herein by reference.
Item 3.02 Unregistered Sales of Equity Securities
The information contained above in Item 1.01 is hereby incorporated by reference into this Item 3.02. Based in part upon the representations of the Purchaser in the PIPE Purchase Agreement, the offering and sale of the PIPE Securities is exempt from registration under Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”), Rule 506 of Regulation D promulgated under the Securities Act, and corresponding provisions of state securities or “blue sky” laws. The sale of the PIPE Securities by the Company in the Private Placement has not been registered under the Securities Act or any state securities laws and the PIPE Securities may not be offered or sold in the United States absent registration with the SEC or an applicable exemption from the registration requirements. The sale of such securities does not involve a public offering and was made without general solicitation or general advertising. In the PIPE Purchase Agreement, the Purchaser represented that it is an accredited investor, as such term is defined in Rule 501(a) of Regulation D under the Securities Act, and it is acquiring the PIPE Securities for investment purposes only and not with a view to any resale, distribution or other disposition of the PIPE Securities in violation of the United States federal securities laws.
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Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Pursuant to the PIPE Purchase Agreement, the Purchaser has the right to designate an individual to the board of directors of the Company (the “Board”). In accordance with the terms of the PIPE Purchase Agreement, the Company has appointed Mr. Roger C. Kennedy, the Purchaser’s designee, to the Board as a non-executive director, and member of each of the audit committee, remuneration committee and nomination committee of the board. In connection with such appointment, the Company entered into a director indemnification agreement with Mr. Kennedy on January 24, 2025 (the “Director Indemnification Agreement”), pursuant to which the Company agrees to hold harmless, defend, and indemnify Mr. Kennedy to the fullest extent permitted by applicable law and the Company’s charter and bylaws, against, among other things, liabilities and expenses incurred by him in connection with any proceeding arising out of his services as director, subject to the exceptions and limitations provided therein.
There are no family relationships between Mr. Kennedy and any executive officers or other directors of the Company. Except as set forth in this Current Report on Form 8-K, there is no arrangement or understanding between Mr. Kennedy and any other person pursuant to which Mr. Kennedy was appointed as a director. There are no transactions to which the Company is a party and in which Mr. Kennedy has a material interest that are required to be disclosed under Item 404(a) of Regulation S-K.
The foregoing descriptions of the Director Indemnification Agreement are subject to, and qualified in their entirety by, such document which is attached hereto as Exhibit 10.3 and incorporated herein by reference.
Item 8.01 Other Events.
On January 27, 2025, the Company issued a press release announcing the transactions described in Item 1.01 above. A copy of the press release is attached hereto as Exhibit 99.1 and is incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
| Exhibit No. | Exhibit | |
| 4.1 | Form of Warrant | |
| 10.1 | Securities Purchase Agreement, dated as of January 24, 2025 | |
| 10.2 | Registration Rights Agreement, dated as of January 24, 2025 | |
| 10.3 | Director Indemnification Agreement, dated as of January 24, 2025 | |
| 99.1 | Press Release | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). |
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SIGNATURE
Pursuant to the requirements of the Securities and Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| TRILLER GROUP INC. | |||
| By: | /s/ Shu Pei Huang, Desmond | ||
| Name: | Shu Pei Huang, Desmond | ||
| Title: | Acting Chief Financial Officer | ||
| Dated: January 29, 2025 | |||
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Exhibit 4.1
EXECUTION VERSION
NEITHER THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
COMMON STOCK PURCHASE WARRANT
TRILLER GROUP INC.
| Warrant Shares: 6,363,636 | Issue Date: January 24, 2025 | |
| Initial Exercise Date: July 24, 2025 |
THIS COMMON STOCK PURCHASE WARRANT (the “Warrant”) certifies that, for value received, KCP Holdings Limited or its assigns (the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after the date set forth above (the “Initial Exercise Date”) and on or prior to 5:00 p.m. (New York City time) on January 24, 2030 (the “Termination Date”) but not thereafter, to subscribe for and purchase from Triller Group Inc., a Delaware corporation (the “Company”), up to 6,363,636 shares of common stock, par value $0.001 per share (the “Common Stock”), (as subject to adjustment hereunder, the “Warrant Shares”). The purchase price of one share of Common Stock under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
Section 1. Definitions. In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated in this Section 1:
“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Board of Directors” means the board of directors of the Company.
“Business Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York generally are open for use by customers on such day.
“Commission” means the United States Securities and Exchange Commission.
“Common Stock” means the common stock of the Company, par value $0.001 per share, and any other class of securities into which such securities may hereafter be reclassified or changed.
“Common Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred shares, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Subsidiary” means any subsidiary of the Company required to be listed pursuant to Item 601(b)(21) of Regulation S-K.
“Trading Day” means a day on which the principal Trading Market is open for trading.
“Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange (or any successors to any of the foregoing).
“Transfer Agent” means Continental Stock Transfer & Trust Co., the current transfer agent of the Company, and any successor transfer agent of the Company.
Section 2. Exercise.
a) Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed PDF copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto (the “Notice of Exercise”). Within the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined in Section 2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the Warrant Shares specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United States bank. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise be required. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation as soon as reasonably practicable following the date on which the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise within one (1) Trading Day of receipt of such notice, but shall not refuse or object to the issuance of the Warrant Shares upon receipt of, and pursuant to, a duly completed Notice of Exercise, unless such refusal or objection is accompanied by a written notice setting for the basis therefor. The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof.
b) Exercise Price. The exercise price per share of Common Stock under this Warrant shall be $5.00, subject to adjustment hereunder (the “Exercise Price”).
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“Bid Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock is then reported on The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price Common Stock so reported, or (d) in all other cases, the fair market value of one share of Common Stock as determined by an independent appraiser selected in good faith by the Holders of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
“VWAP” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if the Common Stock is then listed or quoted on a Trading Market, if the Common Stock is then quoted OTCQB or OTCQX, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then listed or quoted for trading on a Trading Market or on OTCQB or OTCQX, and if prices for the Common Stock is then reported on The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per Common Stock so reported, or (d) in all other cases, the fair market value of an Common Stock as determined by an independent appraiser selected in good faith by the Holder and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
c) Mechanics of Exercise.
i. Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant Shares by the Holder or (B) the Warrant Shares are eligible for resale by the Holder without volume or manner-of-sale limitations pursuant to Rule 144, and otherwise by physical delivery of a certificate, registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by the date that is the earliest of (i) two (2) Trading Days after the delivery to the Company of the Notice of Exercise, (ii) one (1) Trading Day after delivery of the aggregate Exercise Price to the Company and (iii) the number of Trading Days comprising the Standard Settlement Period after the delivery to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery Date”). Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares, provided that, payment of the aggregate Exercise Price is received by the Warrant Share Delivery Date. If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of the Common Stock on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the third Trading Day after the Warrant Share Delivery Date) for each Trading Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain a transfer agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of the Notice of Exercise. The foregoing shall not in any way limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, money damages, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver Warrant Shares upon exercise of the Warrant as required pursuant to the terms hereof.
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ii. Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall at its own expense, at the request of a Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant.
iii. Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(d)(i) by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise. Any rescission by the Holder pursuant to this Section 2(d)(iii) shall not affect any other remedies available to the Holder under applicable law or equity as a result of the Company’s failure to timely deliver the Warrant Shares.
iv. Compensation for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions of Section 2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, Common Stock to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s total purchase price (including brokerage commissions, if any) for the Common Stock so purchased exceeds (y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B) at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of share of Common Stock that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of Common Stock with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, money damages, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver Warrant Shares upon exercise of the Warrant as required pursuant to the terms hereof.
v. No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Exercise Price or round up to the next whole share.
vi. Charges, Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company, and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided, however, that in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
vii. Closing of Books. The Company will not close its register or records in any manner which prevents the timely exercise of this Warrant, pursuant to the terms hereof.
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Section 3. Certain Adjustments.
a) Share Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a share dividend or otherwise makes a distribution or distributions on its Common Stock or any other equity or equity equivalent securities payable in Common Stock (which, for avoidance of doubt, shall not include any Common Stock issued by the Company upon exercise of this Warrant), (ii) subdivides (by any stock split, recapitalization or otherwise) outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of share consolidation) outstanding Common Stock into a smaller number of shares, or (iv) issues by reclassification of Common Stock any shares of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the number of shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for the determination of shareholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination, re-classification or any other similar event.
b) Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, shares or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”), at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of Common Stock are to be determined for the participation in such Distribution.
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c) Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company (or any Subsidiary), directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Common Stock or 50% or more of the voting power of the common equity of the Company, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires 50% or more of the outstanding Common Stock or 50% or more of the voting power of the common equity of the Company (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder, the number of shares of Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction. For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Holder shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. Notwithstanding anything to the contrary, in the event of a Fundamental Transaction, the Company or any Successor Entity (as defined below) shall, at the Holder’s option, exercisable at any time concurrently with, or within 30 days after, the consummation of the Fundamental Transaction (or, if later, the date of the public announcement of the applicable contemplated Fundamental Transaction), purchase this Warrant from the Holder by paying to the Holder an amount of cash equal to the Black Scholes Value (as defined below) of the remaining unexercised portion of this Warrant on the date of the consummation of such Fundamental Transaction; provided, however, that if the Fundamental Transaction is not within the Company’s control, including not approved by the Company’s Board of Directors, Holder shall only be entitled to receive from the Company or any Successor Entity the same type or form of consideration (and in the same proportion), at the Black Scholes Value of the unexercised portion of this Warrant, that is being offered and paid to the holders of Common Stock of the Company in connection with the Fundamental Transaction, whether that consideration be in the form of cash, stock or any combination thereof, or whether the holders of Common Stock are given the choice to receive from among alternative forms of consideration in connection with the Fundamental Transaction; provided, further, that if holders of Common Stock of the Company are not offered or paid any consideration in such Fundamental Transaction, such holders of Common Stock will be deemed to have received common shares of the Successor Entity (which Entity may be the Company following such Fundamental Transaction) in such Fundamental Transaction. “Black Scholes Value” means the value of this Warrant based on the Black Scholes Option Pricing Model obtained from the “OV” function on Bloomberg determined as of the day of consummation of the applicable Fundamental Transaction for pricing purposes and reflecting (A) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the time between the date of the public announcement of the applicable contemplated Fundamental Transaction and the Termination Date, (B) an expected volatility equal to the greater of 100% and the 100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading Day immediately following the public announcement of the applicable contemplated Fundamental Transaction, (C) the underlying price per share used in such calculation shall be the greater of (i) the sum of the price per share being offered in cash, if any, plus the value of any non-cash consideration, if any, being offered in such Fundamental Transaction and (ii) the highest VWAP during the period beginning on the Trading Day immediately preceding the public announcement of the applicable contemplated Fundamental Transaction (or the consummation of the applicable Fundamental Transaction, if earlier) and ending on the Trading Day of the Holder’s request pursuant to this Section 3(d) and (D) a remaining option time equal to the time between the date of the public announcement of the applicable contemplated Fundamental Transaction and the Termination Date and (E) a zero cost of borrow. The payment of the Black Scholes Value will be made by wire transfer of immediately available funds (or such other consideration) within the later of (i) five Business Days of the Holder’s election and (ii) the date of consummation of the Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant in accordance with the provisions of this Section 3(d) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of such Successor Entity (or its parent entity) equivalent to the Common Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares (but taking into account the relative value of the Common Stock pursuant to such Fundamental Transaction and the value of such shares, such number of shares and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall be added to the term “Company” under this Warrant (so that from and after the occurrence or consummation of such Fundamental Transaction, each and every provision of this Warrant referring to the “Company” shall refer instead to each of the Company and the Successor Entity or Successor Entities, jointly and severally), and the Successor Entity or Successor Entities, jointly and severally with the Company, may exercise every right and power of the Company prior thereto and the Successor Entity or Successor Entities shall assume all of the obligations of the Company prior thereto under this Warrant with the same effect as if the Company and such Successor Entity or Successor Entities, jointly and severally, had been named as the Company herein.
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d) Voluntary Adjustments by Company. The Company may at any time during the term of this Warrant reduce the then current Exercise Price to any amount and for any period of time deemed appropriate by the Board of Directors of the Company.
e) Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
f) Notice to Holder.
i. Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment. The Company will deliver such notice to the Holder as reasonably practicable following any adjustment of the Exercise Price, but in any event not later than ten Business Days thereafter.
ii. Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of any class or of any rights, (D) the approval of any shareholders of the Company shall be required in connection with any reclassification of the Common Stock, any consolidation or merger to which the Company (or any of its Subsidiaries) is a party, any sale or transfer of all or substantially all of its assets, or any compulsory share exchange whereby the Common Stock are converted into other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by email to the Holder at its last email address as it shall appear upon the Warrant Register of the Company, at least 20 calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent that any notice provided in this Warrant constitutes, or contains, material, non-public information regarding the Company or any of the Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Report on Form 8-K. The Holder shall remain entitled to exercise this Warrant during the period commencing on the date of such notice to the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
Section 4. Transfer of Warrant.
a) Transferability. Subject to compliance with any applicable securities laws and the conditions set forth in Section 4(d) hereof, this Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable, in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written assignment of this Warrant substantially in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the Company assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant Shares without having a new Warrant issued.
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b) New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the Issue Date of this Warrant and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c) Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes, absent actual notice to the contrary.
d) Transfer Restrictions. If, at the time of the surrender of this Warrant in connection with any transfer of this Warrant, the transfer of this Warrant shall not be either (i) registered pursuant to an effective registration statement under the Securities Act and under applicable state securities or blue sky laws or (ii) eligible for resale without volume or manner-of-sale restrictions or current public information requirements pursuant to Rule 144, the Company may require, as a condition of allowing such transfer, that the Holder or transferee of this Warrant, as the case may be, provide to the Company an opinion of counsel, the form and substance of which opinion shall be reasonably satisfactory to the Company to the effect that the transfer of this Warrant does not require registration under the Securities Act.
e) Representation by the Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring this Warrant and, upon any exercise hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account and not with a view to or for distributing or reselling such Warrant Shares or any part thereof in violation of the Securities Act or any applicable state securities law, except pursuant to sales registered or exempted under the Securities Act.
Section 5. Miscellaneous.
a) No Rights as Shareholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights, dividends or other rights as a shareholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly set forth in Section 3 or otherwise herein.
b) Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.
c) Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a Business Day, then, such action may be taken or such right may be exercised on the next succeeding Business Day.
d) Authorized Shares.
The Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant. The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of the Trading Market upon which the Common Stock may be listed. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue).
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Except and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use reasonable best efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may be, necessary to enable the Company to perform its obligations under this Warrant.
Before taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory body or bodies having jurisdiction thereof.
e) Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Warrant (whether brought against a party hereto or their respective affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, 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 improper or is an inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Warrant and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If either party shall commence an action, suit or proceeding to enforce any provisions of this Warrant, the prevailing party in such action, suit or proceeding shall be reimbursed by the other party for their reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
f) Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, will have restrictions upon resale imposed by state and federal securities laws.
g) Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision of this Warrant, if the Company willfully and knowingly fails to comply with any provision of this Warrant, which results in any material damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including, but not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
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h) Notices. Any and all notices or other communications or deliveries to be provided by the Holders hereunder including, without limitation, any Notice of Exercise, shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier service, addressed to the Company, at AGBA Tower, 68 Johnston Road Wan Chai, Hong Kong Attention: Chief Executive Officer, email address: Desmond.Shu@agba.com, or such other email address or address as the Company may specify for such purposes by notice to the Holders. Any and all notices or other communications or deliveries to be provided by the Company hereunder shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier service addressed to each Holder at the e-mail address or address of such Holder appearing on the books of the Company. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the time of transmission, if such notice or communication is delivered via e-mail at the e-mail address set forth in this Section prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the time of transmission, if such notice or communication is delivered via e-mail at the e-mail address set forth in this Section on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given.
i) Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase price of any Common Stock or as a shareholder of the Company, whether such liability is asserted by the Company or by creditors of the Company.
j) Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any action for specific performance that a remedy at law would be adequate.
k) Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable by the Holder or holder of Warrant Shares. For the avoidance of doubt, in the event that any Person acquires this Warrant or any Warrant Shares, such Person shall, be deemed a beneficiary hereof for all purposes and by taking and holding such Warrant or Warrant Shares, as applicable, such Person shall be treated as a “Holder” for all purposes under this Warrant and shall be entitled to receive the benefits of, and be conclusively deemed to have agreed to be bound by all of the applicable terms and provisions of, this Warrant.
l) Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company, on the one hand, and the Holder of this Warrant, on the other hand.
m) Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
n) Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.
o) Further Assurances. The Company shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as each Holder may reasonably request in order to carry out the intent and accomplish the purposes of this Warrant and the consummation of the transactions contemplated hereby..
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(Signature Page Follows)
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
TRILLER GROUP INC.
| By: | |||
| Name: | Desmond, Shu Pei Huang | ||
| Title: | Acting Group Chief Financial Officer | ||
NOTICE OF EXERCISE
To: TRILLER GROUP INC.
(1) The undersigned hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) Payment shall take the form of (check applicable box) in lawful money of the United States.
(3) Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
_______________________________
The Warrant Shares shall be delivered to the following DWAC Account Number:
_______________________________
_______________________________
_______________________________
(4) Accredited Investor. The undersigned is an “accredited investor” as defined in Regulation D promulgated under the Securities Act of 1933, as amended.
[SIGNATURE OF HOLDER]
| Name of Investing Entity: |
| Signature of Authorized Signatory of Investing Entity: |
| Name of Authorized Signatory: |
| Title of Authorized Signatory: |
| Date: |
EXHIBIT B
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this form and supply required information. Do not use this form to exercise the Warrant to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
| Name | |
| (Please Print) | |
| Address: | |
| (Please Print) | |
| Phone Number: | |
| Email Address: | |
| Dated: _______________ __, ______ | |
| Holder’s Signature: | |
| Holder’s Address: | |
Exhibit 10.1
Execution Version
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this “Agreement”), dated as of January 24, 2025, is by and among Triller Group Inc., a Delaware corporation (the “Company”), and KCP Holdings Limited (the “Purchaser”). Each of the Purchaser and the Company is sometimes referred to herein each as a “Party”, and collectively as the “Parties”.
W I T N E S S E T H:
WHEREAS, the Company desires to sell to the Purchaser, and the Purchaser desires to purchase from the Company, common stock, par value $0.001 per share (the “Common Stock,” and such shares of Common Stock issued pursuant to this Agreement, the “Sold Shares”) and warrants to purchase Common Stock, which shall be exercisable six months after the issuance and shall have a term of exercise equal to five years after the issuance and such other terms and conditions as are set forth in the form attached hereto as Exhibit B (each, a “Warrant” and collectively, the “Warrants,” and together with the Shares (as defined below), the “Securities”), in accordance with the terms and provisions of this Agreement;
WHEREAS, the Sold Shares and the shares of Common Stock issuable upon exercise of the Warrants (the “Warrant Shares”) offered and sold by the Company pursuant to the terms of this Agreement are sometimes referred to herein as the “Shares”;
WHEREAS, in connection with the consummation of the Transactions, the Parties also will execute and deliver, among other things, (a) the Warrant, substantially in the form attached hereto as Exhibit B, and (b) a Registration Rights Agreement, substantially in the form attached hereto as Exhibit C (the “Registration Rights Agreement”);
WHEREAS, the Board of Directors of the Company (the “Board”) has deemed it advisable and has authorized the issuance of the Securities and the consummation of the other Transactions contemplated under the Transaction Documents; and
WHEREAS, the Securities are not registered under the United States Securities Act of 1933 (the “Securities Act”), and are being offered and sold pursuant to an exemption from the registration requirements of Section 5 of the Securities Act contained in Section 4(a)(2) thereof and/or Regulation D thereunder.
NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the Company and the Purchaser agrees as follows:
ARTICLE I
PURCHASE AND SALE
Section 1.1 Issuance, Sale and Purchase of Securities. Upon the terms and conditions in this Agreement, the Company is offering to the Purchaser, and the Purchaser has agreed to purchase, the number of Securities set forth opposite the Purchaser’s name on the Purchaser’s signature page hereto, in each case, free and clear of any Liens.
Section 1.2 Closing. Upon the terms and subject to the conditions set forth herein, the Company agrees to sell, and the Purchaser agrees to purchase $14,000,000 of Sold Shares and Warrants, in each case, free and clear of any Liens, based upon the Purchase Price Per Share. The Purchaser shall deliver to the Company, via wire transfer, immediately available funds equal to the purchaser’s subscription amount (the “Purchaser’s Subscription Amount”) as set forth on the signature page hereto executed by the Purchaser, and the Company shall deliver to the Purchaser its Sold Shares and Warrants, and the Company and the Purchaser shall deliver the other items set forth in Section 1.3 deliverable at the Closing. Upon satisfaction of the covenants and conditions set forth in Section 1.3 and Section 1.4, the Closing shall take place remotely by electronic transfer of the Closing documentation. “Closing” means the closing of the purchase and sale of the Securities pursuant to this Section 1.2.
Section 1.3 Deliveries.
(a) On or prior to the trading date of Closing (the “Closing Date”), the Company shall deliver or cause to be delivered to the Purchaser the following:
(i) this Agreement duly executed by the Company;
(ii) the Sold Shares, free and clear of all Liens;
(iii) a copy of the irrevocable instructions to Continental Stock Transfer & Trust Co., the current transfer agent of the Company, and any successor transfer agent of the Company (the “Transfer Agent”) instructing the Transfer Agent to deliver, on an expedited basis, a certificate evidencing a number of Shares (the “Subscribed Shares”) equal to the Purchaser’s Subscription Amount divided by US$2.20 (the “Purchase Price Per Share”), registered in the name of the Purchaser, or, at the election of the Purchaser, evidence of the issuance of the Purchaser’s portion of the Shares hereunder as held in book entry form on the books of The Depository Trust Company or as held in DRS book-entry form by the Transfer Agent and registered in the name of the Purchaser, in each case, which evidence shall be reasonably satisfactory to the Purchaser (the number of the Purchaser’s Subscribed Shares shall be as set forth on Annex A);
(iv) a Warrant registered in the name of the Purchaser to purchase up to the same amount of Subscribed Shares, with an exercise price equal to $5.00 per share of Common Stock, duly executed by the Company, subject to adjustment in accordance with the terms therein (the number of each Purchaser’s Warrants shall be as set forth on Annex A);
(v) counterpart to the Registration Rights Agreement, duly executed by the Company;
(vi) counterpart to a director indemnification agreement, duly executed by the Company, in a form reasonably acceptable to the Purchaser (the “Director Indemnification Agreement”;
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(vii) wire instructions for payment of the Purchaser’s Subscription Amount; and
(viii) the certificate contemplated by Section 1.4(b)(v).
(b) On or prior to the Closing Date, the Purchaser shall deliver or cause to be delivered to the Company, as applicable, the following:
(i) this Agreement duly executed by the Purchaser;
(ii) counterpart to the Registration Rights Agreement, duly executed by the Purchaser;
(iii) a counterpart to the Director Indemnification Agreement, duly executed by the KCP Director;
(iv) the Purchaser’s Subscription Amount by wire transfer to the account of the Company specified in writing by the Company; and
(v) the certificate contemplated by Section 1.4(a)(iv).
Section 1.4 Closing Conditions.
(a) The obligations of the Company hereunder as to the Purchaser in connection with the Closing are subject to the following conditions being met by the Purchaser (any of which may be waived in writing by the Company in its sole discretion):
(i) the representations and warranties of the Purchaser set forth in this Agreement shall be true and correct in all respects (without giving effect to any materiality qualifiers therein, including any Purchaser Material Adverse Effect) as of the Closing (unless made as of a specific date therein, in which case as of such date), except where the failure of any such representations and warranties to be so true and correct would not reasonably be expected to have a Purchaser Material Adverse Effect as to the Purchaser;
(ii) all obligations, covenants and agreements of the Purchaser required to be performed at or prior to the Closing Date shall have been performed;
(iii) the delivery by the Purchaser of the items set forth in Section 1.3(b)(i), Section 1.3(b)(ii), Section 1.3(b)(iv), Section 1.3(b)(v), and Section 1.3(b)(iii) thereof;
(iv) the delivery by the Purchaser of a certificate, duly executed by the Purchaser, certifying that the conditions set forth in Section 1.4(a)(i) and Section 1.4(a)(ii) have been satisfied.
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(b) The obligations of the Purchaser hereunder in connection with the Closing are subject to the following conditions being met by the Company (any of which may be waived as to the Purchaser solely in writing by the Purchaser in its sole discretion):
(i) the representations and warranties of the Company (A) set forth in Section 2.1(a), Section 2.1(b), Section 2.1(c), Section 2.1(d), Section 2.1(e), Section 2.1(k), Section 2.1(l), and Section 2.1(o) (collectively, the “Company Fundamental Representations”) shall be true and correct in all respects (without giving effect to any materiality qualifiers therein, including any Company Material Adverse Effect) as of the Closing (unless made as of a specific date therein, in which case as of such date), and (B) set forth in this Agreement, other than the representations and warranties specified in clause (A), shall be true and correct in all material respects (or, to the extent representations or warranties are qualified by materiality or Company Material Adverse Effect, in all respects) as of the Closing (unless made as of a specific date therein, in which case as of such date);
(ii) all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed;
(iii) the delivery by the Company of the items set forth in Section 1.3(a) of this Agreement;
(iv) there shall have been no Company Material Adverse Effect with respect to the Company since the date hereof;
(v) the delivery by the Company to the Purchaser of a certificate, duly executed by the Company, certifying that the conditions set forth in Section 1.4(b)(i), Section 1.4(b)(ii) and Section 1.4(b)(iv) have been satisfied;
(vi) the Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities; and
(vii) the Sold Shares (A) shall be approved and designated for quotation or listed on the Nasdaq Capital Market, subject to official notice of issuance, and (B) shall not be suspended, in each case, as of the Closing, by the SEC or the Nasdaq Capital Market from trading on the Nasdaq Capital Market nor shall suspension by the SEC or the Nasdaq Capital Market have been threatened, as of the Closing, either (1) in writing by the SEC or the Nasdaq Capital Market or (2) by falling below the minimum listing maintenance requirements of the Nasdaq Capital Market.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties of the Company. The Company hereby represents and warrants to the Purchaser, except as otherwise set forth in the correspondingly numbered section of the confidential disclosure letter delivered by the Company to the Purchaser prior to the execution of this Agreement (the “Company Disclosure Letter”), as follows:
(a) Organization and Power. Each of the Company and its Subsidiaries is an entity duly incorporated or otherwise organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation, with the requisite power and authority to own and use its properties and assets and to carry on its business as is currently conducted. Neither the Company nor any of its Subsidiaries is in violation or default of any provision of the Company’s Certificate of Incorporation, dated October 15, 2024 (the “Certificate of Incorporation”), the Company’s current Bylaws or any other organizational documents of the Company or any of its Subsidiaries (collectively, the “Company Organizational Documents”). Each of the Company and its Subsidiaries is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary and no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification, except to the extent that the failure to be so qualified and in good standing would not have a Company Material Adverse Effect.
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(b) Due Issuance of the Securities. The Securities have been duly and validly authorized and, when issued and paid for pursuant to this Agreement, the Securities will be validly issued, fully paid and non-assessable, and the Securities shall be free and clear of all Liens and issued in compliance with all applicable securities Laws. Assuming the accuracy of the representations and warranties in Section 2.2(f) hereof, the offer and sale by the Company of the Securities is exempt from the registration and prospectus delivery requirements of the Securities Act and the rules and regulations thereunder.
(c) Authority and Validity. The Company has full power and authority to and has taken all necessary corporate action required to enter into, execute and deliver this Agreement, the other Transaction Documents and each agreement, certificate, document and instrument to be executed and delivered by it pursuant to this Agreement or the other Transaction Documents, and to perform its obligations hereunder. The execution and delivery by the Company of this Agreement and the other Transaction Documents and the performance by it of its obligations hereunder and thereunder have been duly authorized by all requisite actions on its part, including by the Board.
(d) Enforcement; Noncontravention. Each of this Agreement and the other Transaction Documents has been duly executed and delivered by the Company and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its 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. Neither the execution, the delivery of or the performance of any obligations under this Agreement or the other Transaction Documents, nor the consummation of the Transactions, will violate any constitution, statute, regulation, rule, injunction, judgment, Order, decree, ruling, charge, or other restriction of any Governmental Authority or Law to which the Company or any of its Subsidiaries is subject. Neither the execution, delivery by or performance of any obligations under the Company of this Agreement or the other Transaction Documents, nor the consummation by the Company of the Transactions, nor compliance by the Company with any of the terms and conditions hereof or of any other Transaction Document, will (A) contravene, conflict with or violate any existing federal, state, county or local Law, rule or regulation or any Order applicable to, or binding upon, it, (B) contravene, conflict with, violate or constitute a default under, any agreement, indenture, instrument or other Contract to which the Company or any of its Subsidiaries is party or result in the creation of any Lien upon any of the properties or assets of the Company or any of its Subsidiaries, or (C) result in a violation or breach of the Company Organizational Documents.
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(e) Filings, Consents and Approvals. Assuming the accuracy of the representations and warranties of the Purchaser in Section 2.2(e) and Section 2.2(f), neither the execution and delivery by the Company of this Agreement or the other Transaction Documents, nor the consummation by the Company of the Transactions, nor the performance by the Company of this Agreement or any other Transaction Documents in accordance with its terms requires the filing, consent, approval, order or authorization of, or registration with, or the giving notice to, any Governmental Authority or other public body or authority, except the filing of a Form D and current report on Form 8-K with the Securities and Exchange Commission (the “SEC”) or the listing of the Shares with the Nasdaq Capital Market.
(f) SEC Reports; Financial Statements.
(i) The Company has filed all reports, schedules, forms, statements (including registration statements, proxy statements or otherwise) and other documents (including all amendments, exhibits and schedules thereto) required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (or such shorter period as the Company was required by Law to file such material) (the foregoing materials, including the documents incorporated by reference therein, being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act, the Exchange Act and any other applicable Law, and none of the SEC Reports (including, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the SEC Reports (A) were prepared in all material respects in accordance with United States generally accepted accounting principles (“GAAP”) and fairly present in all material respects in accordance with GAAP the consolidated financial position of the Company and its Subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods shown (subject, in the case of unaudited quarterly financial statements, to normal year-end adjustments) and (B) comply in all material respects with applicable accounting requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of filing.
(ii) The Company has established and maintains, and at all times since January 1, 2022 has maintained, (A) systems of “internal control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that comply with the requirements of the Exchange Act in all material respects and have been designed by, or under the supervision of, its principal executive and principal financial officers, or persons performing similar functions, sufficient to provide reasonable assurance that (1) transactions are executed in accordance with management’s general or specific authorizations; (2) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (3) access to assets is permitted only in accordance with management’s general or specific authorization; and (4) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and (B) a system of “disclosure controls and procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that is designed to ensure that information required to be disclosed by the Company in reports that it files with the SEC pursuant to the SEC’s rules and forms is recorded and reported on a timely basis in all material respects, including controls and procedures designed to ensure that such information is accumulated and communicated to the Company’s management as reasonably appropriate to allow timely decisions regarding required disclosure. The Company’s disclosure controls and procedures were effective as of the times indicated in the SEC Reports, and the Company’s internal control over financial reporting was effective as of the times indicated in the SEC Reports and, at such times, the Company was not aware of any material weaknesses in its internal control over financial reporting. Since January 1, 2022, to the knowledge of the Company, there has not been any fraud, whether or not material, that involves management or other employees of the Company or any of its Subsidiaries who have a significant role in the Company’s internal controls over financial reporting.
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(g) No General Solicitation. Neither the Company nor any person or entity acting on behalf of the Company has offered or sold any of the Securities by any form of general solicitation or general advertising. The Company has offered the Securities for sale only to “accredited investors” within the meaning of Rule 501 under the Securities Act.
(h) No Integrated Offering. None of the Company nor its Subsidiaries, nor, to the knowledge of the Company, any Person acting on its or their behalf has made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause the offering or issuance of the Securities under this Agreement to be integrated with prior offerings by the Company for purposes of the Securities Act that would result in none of Regulation D or any other applicable exemption from registration under the Securities Act to be available, nor will the Company take any action or steps that would cause the offering or issuance of the Securities under this Agreement to be integrated with other offerings by the Company.
(i) No Undisclosed Liabilities. Neither the Company nor any of its Subsidiaries has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise), except liabilities expressly reserved against in the consolidated balance sheet (or the notes thereto) of the Company and its Subsidiaries included in the Company’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2024 (the “Balance Sheet Date”).
(j) Absence of Certain Changes. Since the Balance Sheet Date, there has not been any Company Material Adverse Effect.
(k) Equity Capitalization.
(i) As of the execution of this Agreement, the authorized capital stock of the Company consists of (A) 1,400,000,000 shares of Common Stock (“Common Stock”) and (B) 100,000,000 shares of preferred stock, par value $0.001 per share (“Preferred Stock”), including 11,803,398 shares of preferred class A stock (the “Series A-1 Preferred Stock”) and 35,000 shares of super voting preferred class B stock having a par value of $0.001 per share (the “Series B Preferred Stock”). As of the execution of this Agreement, (1) 162,840,680 shares of Common Stock were issued and outstanding, (2) an additional 24,022,431 shares of Common Stock were issued to the Company as escrow agent and held as treasury shares for purposes of potential liabilities, (3) 16,908,828 restricted stock units of the Company were outstanding pursuant to which a maximum of 16,908,828 shares of Common Stock could be issued and (4) 11,832,655 shares of Preferred Stock were issued and outstanding, including 11,801,804 shares of Series A-1 Preferred Stock and 30,851 shares of Series B Preferred Stock. As of the Closing, 6,363,636 shares of Common Stock will be reserved for issuance upon the exercise of the Warrants.
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(ii) All of such issued and outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and nonassessable. The Shares are and will not be subject to preemptive rights or any restrictions on transfer under applicable Law or any contract to which the Company is a party, other than those under applicable securities Laws and this Agreement, and will be free and clear of all stock transfer, documentary, sales and use, registration, recording, stamp and similar Tax (“Transfer Taxes”) under applicable Law of the United States (or any political subdivision thereof) and Liens. The Warrant Shares will be, as of the Closing, duly reserved for issuance and, when issued upon exercise thereof in accordance with the terms of the Warrants, will be duly authorized by all necessary corporate action on the part of the Company, validly issued, fully paid and nonassessable and, assuming the accuracy of each of the representations and warranties of the Purchaser set forth in Section 2.2, issued in compliance with all applicable securities Laws in all material respects and will not be subject to preemptive rights or any restrictions on transfer under applicable Law or any contract to which the Company is a party, other than those under applicable securities Laws, and will be free and clear of all Transfer Taxes under applicable Law of the United States (or any political subdivision thereof) and Liens.
(iii) Except as disclosed in the SEC Reports, there are no outstanding subscriptions, options, warrants, calls, convertible securities or other contracts (or any rights, preemptive rights or rights of first offer) relating to the issuance or repurchase of capital stock, or other equity interests of the Company or any of its Subsidiaries, to which the Company or any of its Subsidiaries is a party, or by which it is bound, obligating the Company or any of its Subsidiaries to (A) issue, transfer or sell, or cause to be issued, transferred or sold, any shares of capital stock or other equity interests of the Company or any of its Subsidiaries or securities, bonds, debentures, notes or other obligations convertible into or exchangeable for such shares of capital stock or other equity interests, (B) grant, extend or enter into any such subscription, option, warrant, call, convertible securities or other contract (or any such right, preemptive right or right of first offer) or (C) redeem or otherwise acquire any number of such shares of capital stock or other equity interests. Except as disclosed in the SEC Reports, neither the Company nor any of its Subsidiaries have outstanding any bonds, debentures, notes or other obligations, the holders of which have the right to vote (or convert into or exercise for securities having the right to vote) with the stockholders of the Company on any matter.
(iv) Section 2.1(k)(iv) of the Company Disclosure Letter sets forth, as of the execution of this Agreement, the name and jurisdiction of organization of each Subsidiary of the Company or joint venture to which the Company or any of its Subsidiaries is party, the holders of each equity interest therein, the number and percentage (on a voting and economic basis) of equity interests owned by such holders. Except as otherwise provided in Section 2.1(k)(iv) of the Company Disclosure Letter, the outstanding shares of capital stock of, or other equity or voting interests in, each such Subsidiary and joint venture that are owned by the Company or its Subsidiaries are owned free and clear of all Liens. Each outstanding share of capital stock of each Subsidiary or joint venture of the Company or its Subsidiaries, which is held, directly or indirectly, by the Company, is duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights, and there are no outstanding subscriptions, options, warrants, calls, convertible securities or other contracts (or any rights, preemptive rights or rights of first offer) relating to the issuance, acquisition, redemption, repurchase or sale of any shares of capital stock or other equity or voting interests of any Subsidiary of the Company.
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(v) Except as otherwise provided in Section 2.1(k)(v) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries is a party to any voting trust or other agreement with respect to voting or registration of capital stock or other equity interests of the Company or any of its Subsidiaries.
(l) Direct Contact; No Broker. The contact between the Company and the Purchaser was made directly through an existing relationship. No broker, investment banker or other person is entitled to any broker’s, finder’s or other similar fee or commission in connection with the execution and delivery of this Agreement or the consummation of the Transactions based upon arrangements made by or on behalf of the Company or any of its Subsidiaries.
(m) Litigation. Except as disclosed in the SEC Reports or in Section 2.1(m) of the Company Disclosure Letter, and except as otherwise would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) there is no Action pending or, to the knowledge of the Company, threatened (A) against the Company, any of its Subsidiaries or any of their respective Representatives in their capacities as such, (B) to which the Company, any of its Subsidiaries or any of their respective Representatives in their capacities as such is a party or (C) to which any of the assets or properties of the Company or any of its Subsidiaries is subject, and (ii) there is no order, writ, injunction, decree, ruling or decision of any court, commission, board or other government agency (“Orders”) imposed upon the Company, any of its Subsidiaries or any of their respective Representatives in their capacities as such, in each case by or before a Governmental Authority. Except as disclosed in the SEC Reports or in Section 2.1(m) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries is in breach or violation of, or default under any settlement agreement except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole.
(n) Employee Matters. Except as would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, the Company and its Subsidiaries are in compliance with all applicable Laws in all material respects relating to labor, employment, fair employment practices, terms and conditions of employment, and wages and hours, and with the terms of all employee benefit plans (as defined in Section 3(3) of Employee Retirement Income Security Act of 1974 (“ERISA”)) that are maintained or sponsored by the Company or its Subsidiaries for the benefit of their respective current or former employees and with respect to which the Company or its Subsidiaries have any liability (“ERISA Documents”), and each such ERISA Document is in compliance with all applicable requirements of ERISA.
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(o) Investment Company Status. Neither the Company nor any of its Subsidiaries is an “investment company” as such term is defined in the Investment Company Act of 1940.
(p) Tax Matters.
(i) Except as would not reasonably be expected to have a Company Material Adverse Effect, the Company and each Subsidiary of the Company: (A) has timely and properly made or filed all U.S. federal, state and non-U.S. Tax returns, reports, statements, declarations or similar filings (including any election, information returns, schedules or attachments thereto and any amendments thereof) (“Tax Returns”) required to be filed by any jurisdiction to which it is subject and all such Tax Returns filed or required to be filed were true, correct and complete in all respects, (B) has timely paid all Taxes and other governmental assessments and charges, except those being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP, (C) has set aside on its financial statements adequate accruals in accordance with GAAP for the payment of all Taxes for periods subsequent to the periods to which such Tax Returns, respectively, apply, (D) has not received any written notice of any deficiencies for any Tax from any taxing authority except for those which have been resolved, which have been paid in full, or which are being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP on the Company’s financial statements, (E) is not the subject of any currently ongoing audit or other proceeding with respect to Taxes nor has any audit or other proceeding with respect to Taxes been proposed in writing against any of them, (F) has not participated in any listed transaction within the meaning of Treasury regulations Section 1.6011-4(b)(2), (G) has complied in all respects with all applicable Laws relating to the payment and withholding of Taxes and has duly and timely withheld and paid over to the appropriate taxing authority all amounts required to be so withheld and paid under all applicable Laws and (H) has no liens for Taxes upon any of their assets or properties.
(ii) The Company is not, has not been within the past five years and does not anticipate becoming, a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Internal Revenue Code of 1986 (the “Code”).
(iii) The consummation of the Transactions, including the issuance of the Securities, will not cause the net operating losses or other tax attributes of the Company to be subject to any limitations under Sections 382 or 383 of the Code.
(q) Listing and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and listed on the Nasdaq Capital Market, and the Company has taken no action designed to, or which to the knowledge of the Company is reasonably likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from the Nasdaq Capital Market, nor has the Company received any notification that the SEC or the Nasdaq Capital Market is contemplating terminating such registration or listing. The Company is in compliance in all material respects with the listing and listing maintenance requirements of Nasdaq applicable to it for the continued trading of its Common Stock on the Nasdaq Capital Market.
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(r) Intellectual Property Rights; Privacy.
(i) The Company and its Subsidiaries own or have sufficient rights to use all Intellectual Property Rights material to, and used in or necessary for, the conduct of their respective businesses as currently conducted and as currently planned to be conducted, all of which rights shall survive the consummation of the Transactions unchanged.
(ii) The conduct of the respective businesses of the Company and its Subsidiaries does not infringe, misappropriate or otherwise violate, and, since January 1, 2022, has not infringed, misappropriated or otherwise violated in any material respects any Intellectual Property Rights of any Person. To the knowledge of the Company, and except as otherwise is disclosed in the SEC Reports, since January 1, 2022, no Person has infringed, misappropriated or otherwise violated any Intellectual Property Rights owned by the Company or any of its Subsidiaries.
(iii) The IT Assets owned, used or held for use (including through cloud-based or other third party service providers) by the Company or any of its Subsidiaries are sufficient for the current and currently anticipated needs of the businesses of the Company and its Subsidiaries. The Company and its Subsidiaries are in material compliance, and since January 1, 2022, have been in material compliance, with all applicable Laws regarding privacy, cybersecurity or the protection of Personal Information and any privacy policies of the Company that have been publicly adopted. Except as otherwise disclosed in the SEC Reports, since January 1, 2022, the Company and its Subsidiaries have not experienced any actual or alleged data breach, security incident or incident of loss, theft, misuse or unauthorized processing of Personal Information in their possession or control or processed by any third party on their behalf.
(s) Compliance with Laws.
(i) The Company and each of its Subsidiaries are, and since January 1, 2022 have been, in compliance with and not in default under or in violation of any Law or Order, in each case that are applicable to the Company or any of its Subsidiaries, except where such non-compliance, default or violation would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, and, since January 1, 2022, neither the Company nor any of its Subsidiaries has received any written notice or, to the knowledge of the Company, other communication from any Governmental Authority regarding any actual or possible violation of, or failure to comply with, any Law or Order, except as would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole. The Company and each of its Subsidiaries hold all licenses, franchises, permits, certificates, approvals and authorizations from Governmental Authorities necessary for the lawful conduct of their respective businesses, except where the failure to hold the same would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole.
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(ii) The Company, each of its Subsidiaries and each of their respective Representatives acting on their behalf is, and since January 1, 2022 has been, in compliance in with (A) the Foreign Corrupt Practices Act of 1977 and any rules and regulations promulgated thereunder and (B) any other Laws applicable to the Company and its Subsidiaries that address the prevention of corruption, bribery, terrorism or money laundering (the “Anti-Corruption Laws”), in each case, except where such non-compliance would not reasonably be expected to be material to the Company or any of its Subsidiaries.
(iii) Except as would not reasonably be expected to be material to the Company or any of its Subsidiaries, since January 1, 2022, none of the Company, any of its Subsidiaries, or any of their respective Representatives acting on their behalf has: (A) unlawfully offered, paid, promised to pay, or authorized the payment of anything of value, including money, loans, gifts, travel, or entertainment, to any government official with the purpose of (1) influencing any act or decision of such government official in his or her official capacity or (2) inducing such government official to perform or omit to perform any activity in violation of his or her legal duties; except, with respect to the foregoing clauses (1) and (2), as permitted under the U.S. Foreign Corrupt Practices Act of 1977 or other applicable Law; or (B) made any illegal contribution to any political party or candidate.
(iv) Except as would not reasonably be expected to be material to the Company or any of its Subsidiaries, the Company, each of its Subsidiaries, and each of their respective Representatives acting on their behalf is, and, since January 1, 2022 has been, in compliance with all Laws or other financial restrictions administered by the Office of Foreign Assets Control of the United States Treasury Department (“OFAC”), including OFAC’s Specially Designated Nationals and Blocked Persons List, the U.S. Department of State, and sanctions administered by the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”). Except as would not reasonably be expected to be material to the Company or any of its Subsidiaries, none of the Company, any of its Subsidiaries, or any of their respective Representatives acting on their behalf is currently the subject or the target of any Sanctions, nor is the Company or any of its Subsidiaries located, organized or resident in a country or territory that is the subject or target of Sanctions, including Cuba, Iran, North Korea, Syria and Crimea.
(v) The Company will not use the proceeds from the Transactions (A) in furtherance of an offer, payment, promise to pay or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, or (B) to fund or facilitate any activities of or business with any person, or in any country or territory, that, at the time of such funding, is the subject or the target of Sanctions. Except as would not reasonably be expected to be material to the Company or any of its Subsidiaries, the Company and its Subsidiaries have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, compliance with all applicable Anti-Corruption Laws and Sanctions.
(t) Yorkville Note. Except as set forth in Section 2.1(t) of the Company Disclosure Letter, neither the Company nor any of its Affiliates are party to any agreement with YA II PN, LTD (“Yorkville”) or any of its Affiliates other than that certain Amended and Restated Secured Convertible Promissory Note, issued by the Company to Yorkville on June 28, 2024 (the “Yorkville Note”) and the other Yorkville Agreements. Neither the Company nor any of its Subsidiaries owes any costs, expenses or other liabilities to Yorkville or any of its Affiliates, other than the amounts set forth in Section 2.1(t) of the Company Disclosure Letter. Other than with respect to any Liens under the Yorkville Note or as otherwise set forth in Section 2.1(t) of the Company Disclosure Letter, the Company owns such shares of capital stock of Bare Knuckle Fighting Championships, Inc. (“BKFC,” and such shares, “BKFC Shares”) that constitute Collateral (as defined in the Yorkville Note) free and clear of any Liens.
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(u) Related Party Transactions. Except as disclosed in the SEC Reports, no stockholder, officer or director of the Company or any of its Subsidiaries or immediate family member thereof (a) is presently a party or has a direct or indirect interest in any Person (other than publicly traded securities) party to any agreement with the Company or any of its Subsidiaries, (b) owns any direct or indirect (other than through ownership of Common Stock) interest in any assets of the Company or any of its Subsidiaries or (c) has any cause of action or other claim against, or owes any amounts to, the Company or any of its Subsidiaries, except for claims of employees in the ordinary course of business.
(v) Material Contracts.
(i) Except as otherwise disclosed in the SEC Reports, neither the Company nor any of its Subsidiaries is in breach or violation of, or default under, respect any material Contract to which the Company or any of its Subsidiaries is a party, including any such Contract with any customer, supplier, licensor, vendor or other counterparty, and, to the knowledge of the Company, no event has occurred that, with the lapse of time or the giving of notice or both, would constitute a default under any such Contract by the Company or any of its Subsidiaries or would permit or cause the termination, non-renewal or modification thereof or acceleration or creation of any right or obligation thereunder, in each case except as would not, individually or in the aggregate, reasonably be expected to be material to the Company or any of its Subsidiaries.
(ii) Except with respect to the Yorkville Agreements, neither the Company nor any of its Subsidiaries is in breach or violation of or default under any agreements or documents in respect of the indebtedness of the Company or any of its Subsidiaries, including pursuant to any credit agreement, loan agreement, note, bond, indenture, mortgage or otherwise, except as would not, individually or in the aggregate, reasonably be expected to be material to the Company or any of its Subsidiaries, taken as a whole.
(iii) Except as provided in this Agreement or the Registration Rights Agreement, and except as otherwise disclosed in Section 2.1(v)(iii) of the Company Disclosure Letter, the Company has not granted any rights to register under the Securities Act any of its presently outstanding securities or any of its securities that may be issued subsequently.
(w) Board Approval for Section 16(b). On or prior to the Closing Date, the acquisition of the Securities (and any vesting and exercise of the Warrants and the Warrant Shares) has been approved by the Board or a committee thereof composed solely of two or more “non-employee directors” as defined in Rule 16b-3 of the Exchange Act for the express purpose of exempting the Purchaser’s and it’s Affiliates’ and the KCP Director’s and KCP’s (to the extent such person may be deemed to be a “director by deputization”) interests in such transactions from Section 16(b) of the Exchange Act pursuant to Rule 16b-3 thereunder.
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(x) Survival. The Company Fundamental Representations shall survive for five (5) years following the Closing, and all other representations and warranties of the Company set forth in this Section 2.1 shall survive for one (1) year following the Closing.
Section 2.2 Representations and Warranties of the Purchaser. The Purchaser hereby makes the following representations and warranties to the Company:
(a) Authority. The Purchaser has full power and authority to enter into, execute and deliver this Agreement and each agreement, certificate, document and instrument to be executed and delivered by the Purchaser pursuant to this Agreement and to perform his obligations hereunder. The execution and delivery by the Purchaser of this Agreement and the performance by the Purchaser of its obligations hereunder have been duly authorized by all requisite actions on his part.
(b) Valid Agreement. This Agreement has been duly executed and delivered by the Purchaser and constitutes the Purchaser’s legal, valid and binding obligation, enforceable against him in accordance with its 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.
(c) Consents. Neither the execution and delivery by the Purchaser of this Agreement nor the consummation by the Purchaser of any of the Transactions nor the performance by him of this Agreement in accordance with its terms requires the consent, approval, order or authorization of, or registration with, or the giving of notice to, any governmental or public body or authority or any third party, except as have been obtained, made or given and except as to any Section 16 or any Schedule 13D filings pursuant to the Exchange Act.
(d) No Conflict. Neither the execution and delivery by the Purchaser of this Agreement or the other Transaction Documents, nor the consummation by the Purchaser of the Transactions, nor compliance by the Purchaser with any of the terms and conditions hereof or of any other Transaction Document, will (A) contravene, conflict with or violate any existing federal, state, county or local Law, rule or regulation or any Order applicable to, or binding upon, the Purchaser, (B) contravene, conflict with, violate or constitute a default under, any agreement, indenture or instrument to which the Purchaser is party or result in the creation of any Lien upon any of the properties or assets of the Purchaser, or (C) result in a violation of the Purchaser’s organizational documents.
(e) No General Solicitation. The Purchaser is not purchasing the Securities because of any general solicitation or general advertisement, including, without limitation, (i) any advertisement, articles, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, and (ii) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.
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(f) Status and Investment Intent.
(i) Experience. The Purchaser has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment in the Securities. The Purchaser is capable of bearing the economic risks of such investment, including a complete loss of its investment.
(ii) Purchase Entirely for Own Account. The Purchaser is acquiring the Securities for his own account for investment purposes only and not with the view to, or with any intention of, resale, distribution or other disposition thereof. The Purchaser does not have any direct or indirect arrangement, or understanding with any other persons to distribute, or regarding the distribution of the Securities in violation of the Securities Act or other applicable laws.
(iii) Investor Accredited Status. The Purchaser is an “accredited investor”, as that term is defined in Rule 501(a) of Regulation D of the Securities Act. The Purchaser has, prior to the date hereof, provided the Company with an executed purchaser questionnaire that confirms the Purchaser’s status as an accredited investor.
(iv) Distribution Compliance Period. The Purchaser understands that the Securities are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Securities have not been registered under the Securities Act or any other securities laws of the United States or any other jurisdiction. The Purchaser understands that his investment in the Securities involves a high degree of risk and that he may lose its entire investment. The Purchaser acknowledges that the Securities may not be sold, hypothecated or otherwise disposed of unless registered under the Securities Act and applicable state securities laws or an exemption from registration is available. Any resale of any of the Securities may be made only pursuant to (A) a registration statement under the Securities Act which has been declared effective by the Securities and Exchange Commission and is effective at the time of such sale, or (B) a specific exemption from the registration requirements of the Securities Act.
(v) Restrictive Legend. The Purchaser understands that the certificate evidencing the Securities will bear a legend or other restriction substantially to the following effect:
“THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). NO SALE, PLEDGE, HYPOTHECATION, TRANSFER OR OTHER DISPOSITION OF THESE SECURITIES MAY BE MADE UNLESS EITHER (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (B) PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EITHER CASE UPON THE RECEIPT OF AN OPINION OF U.S. COUNSEL.”
(vi) Direct Contact; No Broker. The contact between the Company and the Purchaser was made directly through an existing relationship. No broker, investment banker or other person is entitled to any broker’s, finder’s or other similar fee or commission in connection with the execution and delivery of this Agreement or the consummation of the Transactions based upon arrangements made by or on behalf of the Purchaser.
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(g) Not an Affiliate. As of immediately prior to the Closing, the Purchaser is not an officer, director or “affiliate” (as that term is defined in Rule 415 of the Securities Act) of the Company.
(h) No Survival. The representations and warranties of the Purchaser set forth in this Section 2.2 shall survive for one (1) year following the Closing.
ARTICLE III
COVENANTS; MISCELLANEOUS
Section 3.1 No Shorting or Lending of Securities. The Purchaser shall not (i) engage in any short-selling activities involving the Sold Shares, or (ii) lend any Securities to any third party.
Section 3.2 Holding Period. The Purchaser acknowledges and agrees that during the six (6) month period immediately following the Closing Date, the Subscribed Shares and the Warrant Shares may not be transferred or sold for such six (6) month period without the prior written consent of the Company and subject to applicable U.S. federal securities laws, including without limitation Rule 144 of the Securities Act; provided, that the Purchaser shall be permitted to transfer or sell any or all of the Purchaser’s Shares at any time (a) to the Purchaser’s Affiliates, but only if the transferee agrees in writing to be bound by the terms of this Agreement, (b) pursuant to the terms of any merger, tender offer, exchange offer or other business combination involving the exchange of Common Stock or other equity or equity-like securities of the Company or (c) following the date the Company commences a voluntary case under Title 11 of the United States Bankruptcy Code or any other similar insolvency laws. In the case that the Purchaser is permitted to transfer or sell the Securities to a third party transferee, the Company shall, at the request of the holder of such Securities, issue such book-entry Securities to the holder or the applicable transferee of such Securities by electronic delivery (i) if eligible and requested by the holder or applicable transferee, on the applicable balance account at The Depository Trust Company and (ii) on the books of the Company or its transfer agent.
Section 3.3 Nasdaq Listing. Prior to the Closing, the Company shall cause the Sold Shares to be approved for listing on the Nasdaq Capital Market. Following the Closing, the Company shall apply to cause the Warrant Shares issuable upon exercise of the outstanding Warrants to be promptly approved for listing on the Nasdaq Capital Market, and the Company shall use best efforts to remain commercially viable and as a going-concern, so as to support the continued listing of the Common Stock (including the Shares) on the Nasdaq Capital Market. Following the Closing, the Company shall timely file all reports required to be filed with the SEC pursuant to the Securities Exchange Act of 1934 (the “Exchange Act”), and the Company shall use reasonable best efforts to maintain its status as an issuer required to file reports under the Exchange Act.
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Section 3.4 Use of Proceeds. The Company shall use the proceeds from the sale of the Securities for business building and working capital purposes and not to satisfy any Losses related to or arising out of any claim, dispute, settlement or any other Action, whether or not in connection with a proceeding.
Section 3.5 Corporate Actions. At any time that any Securities are outstanding, the Company shall (a) from time to time take all lawful action within its control to cause the authorized capital stock of the Company to include a sufficient number of authorized but unissued shares of Common Stock to satisfy the exercise obligations under any Warrants then outstanding, and (b) not effect any voluntary deregistration under the Exchange Act or any voluntary delisting of the Common Stock from the Nasdaq Capital Market. So long as the Purchaser holds any Securities, the Company will not take any actions that would be reasonably likely to cause it to be an “investment company,” or a company controlled by an “investment company”, as such terms are defined in the Investment Company Act of 1940.
Section 3.6 Legends. Upon request of the Purchaser or any transferee of part or all of the Purchaser’s Securities, the legends set forth in Section 2.2(f)(v) of this Agreement or any other legends shall be removed from the applicable Securities, whether notated upon the certificates representing such Securities or on the book-entry accounts maintained by the Company’s transfer agent representing the Securities if such legend is not required in order to establish compliance with any provisions of the Securities Act.
Section 3.7 Section 16 Matters. If the Company becomes a party to a consolidation, merger or other similar transaction or otherwise or if there is any event or circumstance that may result in the Purchaser (or any of its Affiliates) or the KCP Director being deemed to have made a disposition or acquisition of equity securities of the Company or derivatives thereof for purposes of Section 16 of the Exchange Act, and if the KCP Director is serving on the Board at such time or has served on the Board during the preceding six (6) month period, (a) the Board or a committee thereof composed solely of two or more “non-employee directors” as defined in Rule 16b-3 of the Exchange Act will pre-approve such acquisition or disposition of equity securities of the Company or derivatives thereof for the express purpose of exempting the Purchaser’s and its Affiliates’ and the KCP Director’s and KCP’s (to the extent such person may be deemed to be a “director by deputization”) interests in such transaction from Section 16(b) of the Exchange Act pursuant to Rule 16b-3 thereunder and (b) if the transaction involves (i) a merger or consolidation to which the Company is a party and the Common Stock is, in whole or in part, converted into or exchanged for equity securities of a different issuer, (ii) a potential acquisition or deemed acquisition, or disposition or deemed disposition, by the Purchaser (or its Affiliates) or the KCP Director of equity securities of such other issuer or derivatives thereof and (iii) an Affiliate or other designee of the Purchaser (or its Affiliates) will serve on the board of directors (or its equivalent) of such other issuer pursuant to the terms of an agreement to which the Company is a party, then the Company shall require that such other issuer pre-approve any such acquisitions of equity securities or derivatives thereof for the express purpose of exempting the interests of the Purchaser (or its Affiliates) and the KCP Director (to the extent such person may be deemed to be a “director by deputization” of such other issuer) in such transactions from Section 16(b) of the Exchange Act pursuant to Rule 16b-3 thereunder.
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Section 3.8 Board Appointment.
(a) Concurrently with the Closing, the Company shall increase the size of the Board in order to elect or appoint an individual designated in writing by the Purchaser (such designee the “KCP Designee”) to the Board (any KCP Designee so elected or appointed to the Board, a “KCP Director”). The initial KCP Designee shall be Roger Kennedy. The Board shall appoint the KCP Director to any committee of the Board as requested by the KCP Director.
(b) Following the Closing, at any annual or special meeting of the Company’s stockholders at which the term of a KCP Director shall expire or any action by written consent in which the KCP Director is up for election, the Purchaser shall have the right to designate a KCP Designee for election to the Board at such meeting or action by written consent, subject in all instances to the Company’s standard diligence and vetting processes, which shall be commercially reasonable and the same processes used for other nominees for directorships and for directors on the Board. The Company shall include the KCP Designee designated by the Purchaser in the Company’s slate of nominees for the applicable meeting or action by written consent and shall recommend that the holders of Common Stock and any other securityholders with voting rights vote in favor of such KCP Designee’s election and shall support the KCP Designee in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees. Without the prior written consent of the Purchaser, the Board shall not remove any KCP Director from his or her directorship (except as required by law).
(c) In the event of the death, disability, resignation or removal of any KCP Director as a member of the Board, the Purchaser may designate a KCP Designee to replace such KCP Director and the Board shall fill such resulting vacancy with such KCP Designee, subject in all instances to the Company’s standard diligence and vetting processes, which shall be commercially reasonable and the same processes used for other nominees for directorships and for directors on the Board.
(d) The Company shall exculpate, indemnify and advance expenses to the KCP Director and provide the KCP Director with director and officer insurance, in each case, to the same extent it exculpates, indemnifies, advances expenses and provides such insurance to other members of the Board pursuant to the Company Organizational Documents, the Delaware General Corporation Law or otherwise. The Company acknowledges and agrees that it is the indemnitor of first resort (i.e., its obligations to the KCP Director are primary and any obligation of the Purchaser or its Affiliates to advance expenses or to provide indemnification for the same expenses or liabilities incurred by the KCP Director are secondary).
(e) The Company shall not decrease the size of the Board without the consent of the Purchaser if such decrease would require the resignation of the KCP Director.
(f) The Parties agree that the KCP Director shall be entitled to (i) reimbursement by the Company of expenses in the same manner and to the same extent as the other members of the Board and (ii) compensation (in cash, equity and otherwise) in the same manner and to the same extent as the other members of the Board. Any director minimum ownership requirements shall be deemed satisfied in respect of the KCP Designee or the KCP Director, as applicable, by any Securities held by the Purchaser or one or more of its Affiliates.
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Section 3.9 Securities Filings. The Company agrees to file a Form D with respect to the Securities if required under Regulation D and shall provide a copy thereof to the Purchaser no later than 5 business days prior to the filing thereof. Following the Closing Date, the Company shall make all filings and reports relating to the offer and sale of the Securities required under applicable securities or “Blue Sky” laws of the states of the United States. In furtherance of and not in limitation of the foregoing, the Company shall provide the Purchaser with a reasonable opportunity to review and comment upon drafts of all documents to be submitted to or filed with the SEC, whether publicly or not, in connection with the Transactions and the Transaction Documents and give reasonable consideration to all such comments.
Section 3.10 Information Rights.
(a) Following the Closing, the Company shall and shall cause its Subsidiaries to deliver to the Purchaser promptly upon reasonable advance notice, all books, records and information, including financial information, and documents concerning or regarding their respective businesses, properties and assets and personnel, as may be reasonably requested by or on behalf of the Purchaser.
(b) Following the Closing, the Company shall and shall cause its Subsidiaries to provide the Purchaser with reasonable access to the Representatives, offices and other facilities, contracts, books and records of the Company and its Subsidiaries, at such times and as the Purchaser may reasonably request. The Company shall and shall cause its Subsidiaries and Representatives to reasonably cooperate with the Purchaser and its Representatives in connection with such investigation and examination.
(c) The Company shall not be required to provide such information and materials described under Section 3.10(a) or Section 3.10(b) if the Company determines, in its reasonable judgment, that doing so would jeopardize the protection of attorney-client privilege; provided, however, the Company shall use reasonable best efforts to provide alternative, redacted or substitute documents or information in a manner that would not result in the loss of the ability to assert attorney-client privilege. Notwithstanding anything to the contrary contained herein, (a) the KCP Director shall be permitted to provide information and material about the Company and its Subsidiaries, including with respect to its and their affairs, finances and accounts, to the Purchaser and (b) the Company agrees that the KCP Director shall not be required by the terms of this Agreement, by Law or otherwise to share information with the Company or the other members of the Board that the KCP Director learns in his or her capacity as a fiduciary and employee of the Purchaser or any of its Affiliates.
Section 3.11 Confidentiality.
(a) Following the Closing, the Purchaser shall not, and shall direct its Representatives not to, disclose any Confidential Information to any person other than the Purchaser and its Representatives and to use the Confidential Information solely for the purposes of monitoring, administering or managing the Purchaser’s investment in the Company made pursuant to this Agreement. Notwithstanding the foregoing, the Purchaser and its Representatives may disclose Confidential Information in order to comply with applicable law. To the extent practical and legally permissible, the Purchaser shall, and shall direct its Representatives to, notify the Company of its intention to make such disclosure. The Purchaser agrees to reasonably cooperate, and to direct its Representatives to reasonably cooperate, with the Company so that the Company may seek, at its sole cost and expense, an appropriate protective order or other remedy. In the event that such a protective order or other remedy is not obtained, the Purchaser or its Representatives (as applicable) will furnish only that portion of the Confidential Information that is required by applicable law to be disclosed. Notwithstanding anything to the contrary contained in this Agreement, the restrictions set forth in this Section 3.11 shall not apply to disclosures made (A) in response to a formal request by a regulatory or self-regulatory authority or (B) in connection with a routine audit or examination by an auditor or examiner.
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(b) The Company acknowledges that the Purchaser, as a financial investor, may consider, make and may have made investments in a variety of markets and the participation in a potential transaction relating to the Company may enhance the Purchaser’s understanding of the markets in which the Purchaser or its Affiliates may now, or in the future, invest and that such further understanding will not in and of itself, be considered a violation of this Agreement. Further, nothing in this Agreement (nor the disclosure of the Confidential Information to the Purchaser) shall prevent the Purchaser or its Affiliates from evaluating or consummating possible investments in companies or undertakings whose businesses may be similar to or competitive with the business of the Company (and the Company shall not seek to restrict or prevent the Purchaser or its Affiliates from undertaking any such evaluation or consummation other than as set forth in this Agreement) to the extent the Purchaser does not use the Confidential Information in violation of this Agreement in such evaluation or consummation.
(c) Notwithstanding anything to the contrary in this Section 3.11 or Section 3.24, to the extent the Purchaser is or is owned or managed by one or more private equity or other investment vehicles, the Purchaser shall be permitted to provide customary disclosure (in the context of the private equity industry) of any information relating to the Company, its Subsidiaries or the transactions contemplated hereby to the vehicle or its or its Affiliates’ co-investors, investors or potential investors who are subject to customary confidentiality and non-use restrictions in connection with ordinary course fund-raising, marketing, information or investor reporting activities carried out consistent with customary private equity industry practices.
Section 3.12 Yorkville Matters. The Company shall use its best efforts (i) to satisfy, terminate, discharge and fully release the Yorkville Note and the other Yorkville Agreements (including, for clarity, to cause the release of any Liens under the Yorkville Agreements with respect to the BKFC Shares or any other Collateral (as defined in the Yorkville Note)), (ii) to unconditionally and forever settle any Actions related to the Yorkville Agreements and with Yorkville and its Affiliates (the “Yorkville Litigation”) and (iii) to terminate any Contracts between or among the Company or any of its Subsidiaries, on the one hand, and Yorkville and any of its Affiliates on the other hand, without any remaining or ongoing obligations or liabilities of the Company or any of its Subsidiaries pursuant to the Yorkville Agreements or otherwise, in each case of clauses (i) to (iii), within forty-five (45) days of the Closing Date. The Company shall keep the Purchaser reasonably informed in respect of the foregoing.
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Section 3.13 Termination. This Agreement may not be terminated except by mutual written agreement of the Parties. Nothing in this Section 3.13 shall be deemed to release any Party from any liability for any breach of this Agreement prior to the effective date of such termination.
Section 3.14 Further Assurances. Each Party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as any other Party may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the Transaction Documents and the consummation of Transactions.
Section 3.15 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to principles of conflicts of laws. Any action brought by either Party against the other concerning the Transactions shall be brought only in the state courts of New York or in the federal courts located in the state and county of New York. The Parties to this Agreement hereby irrevocably waive any objection to jurisdiction and venue of any action instituted hereunder and shall not assert any defense based on lack of jurisdiction or venue or based upon forum non conveniens.
Section 3.16 Consent to Jurisdiction. Each of the Company and the Purchaser hereby irrevocably waives, and agrees not to assert in any such suit, action or proceeding, any claim that it is not personally subject to the jurisdiction in New York of such court, that the suit, action or proceeding is brought in an inconvenient forum or that the venue of the suit, action or proceeding is improper. Nothing in this Section 3.16 shall affect or limit any right to serve process in any other manner permitted by law.
Section 3.17 Amendment. This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto.
Section 3.18 Binding Effect. This Agreement shall inure to the benefit of, and be binding upon, each of the Parties and their respective heirs, successors and permitted assigns.
Section 3.19 Assignment. Neither this Agreement nor any of the rights, duties or obligations hereunder may be assigned by the Company or the Purchaser without the prior express written consent of, in the case of any assignment by the Company, the Purchaser, and in the case of any assignment by the Purchaser, the Company; provided, that (a) the Purchaser may assign this Agreement (except with respect to matters relating to the KCP Director pursuant to Section 3.8 hereof, which shall be subject to further consultation with the Company prior to the effectiveness of any such assignment) to a third party transferee that purchases any Securities owned by the Purchaser so long as such third party transferee executes and delivers to the Company a written instrument accepting, adopting and agreeing to be bound by the terms of this Agreement and each other Transaction Document (as applicable) and (b) the Purchaser may assign this Agreement or any of its rights, duties or obligations hereunder to any of its Affiliates, subject to the same proviso in clause (a) of this section. Any purported assignment in violation of the foregoing sentence shall be null and void.
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Section 3.20 Notices. All notices, requests, demands, and other communications under this Agreement shall be in writing and shall be deemed to have been duly given on the date of actual delivery if delivered personally to the Parties to whom notice is to be given, on the date sent if sent by e-mail or facsimile, on the next business day following delivery if sent by courier or on the day of attempted delivery by postal service if mailed by registered or certified mail, return receipt requested, postage paid, and properly addressed. The address of the Purchaser for such notices and communications shall be as set forth on the signature pages attached hereto. If to the Company, at:
TRILLER GROUP INC.
7119 West Sunset Boulevard
Suite 782
Los Angeles, CA 90046
Attn: Shu Pei Huang, Desmond
Email: dshu@triller.co
Any Party may change its address for purposes of this Section 3.20 by giving the other Party a written notice of the new address in the manner set forth above.
Section 3.21 Entire Agreement. This Agreement constitutes the entire understanding and agreement between the Parties hereto with respect to the matters covered hereby, and all prior agreements and understandings, oral or in writing, if any, between the Parties with respect to the matters covered hereby are merged and superseded by this Agreement.
Section 3.22 Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the Parties hereto shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the Parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
Section 3.23 Fees and Expenses. Each Party will be responsible for all of its own expenses incurred in connection with the negotiation, preparation and execution of this Agreement; provided, that the Company shall reimburse the Purchaser at the Closing for all costs and expenses (including attorneys’ fees) incurred in connection with the negotiation, preparation and execution of the Transaction Documents and the consummation of the Transactions up to a maximum amount of $250,000.
Section 3.24 Public Announcements. The Purchaser and the Company shall consult with each other before issuing, and shall give each other the opportunity to review and comment upon, any press release or public announcement in respect of the Transaction Documents or the Transactions and shall not issue any such press release or make any such public statement prior to such consultation, except as may be required by applicable Law or Order. Notwithstanding the foregoing, this Section 3.24 shall not apply to any press release or other public statement made by the Company or the Purchaser which does not contain any information relating to the Transactions that has not been previously announced or made public in accordance with the terms of this Agreement.
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Section 3.25 Specific Performance. The Parties agree that irreparable damage would occur in the event any provision of this Agreement is not performed in accordance with the terms hereof. Accordingly, each Party shall be entitled to specific performance of the terms hereof, in addition to any other remedy at law or equity.
Section 3.26 Headings. The headings of the various articles and sections of this Agreement are inserted merely for the purpose of convenience and do not expressly or by implication limit, define or extend the specific terms of the section so designated.
Section 3.27 Execution in Counterparts. For the convenience of the Parties and to facilitate execution, this Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.
Section 3.28 Interpretation.
(a) When a reference is made in this Agreement to an Article, Section, Schedule or Exhibit, the reference shall be to an Article, Section, Schedule or Exhibit of this Agreement unless otherwise indicated.
(b) Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.”
(c) The words “hereof,” “herein,” and “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole (including all of the Schedules and Exhibits) and not to any particular provision of this Agreement.
(d) Unless otherwise specified in this Agreement, the term “dollars” and the symbol “$” mean U.S. dollars for purposes of this Agreement and all amounts in this Agreement shall be paid in U.S. dollars.
(e) The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term.
(f) Any agreement, instrument or statute defined or referred to in this Agreement means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes. Except as otherwise specifically provided herein, all references in this Agreement to any Law shall include such Law and the rules and regulations promulgated thereunder and shall also include, unless the context otherwise requires, all applicable guidelines, bulletins or policies made in connection therewith.
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(g) Each of the Parties has participated in the drafting and negotiation of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if it is drafted by each of the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of authorship of any of the provisions of this Agreement.
(h) The term “Company” means the Company and its predecessors and successors.
(i) Whenever the words “SEC Report” or “SEC Reports” qualifies any representation or warranty herein, any disclosures set forth or referenced in any risk factor, forward-looking statement, quantitative and qualitative disclosures about market risk section therein or in any other section therein to the extent they are forward-looking statements or cautionary, predictive or forward-looking in nature shall be deemed excluded from the words “SEC Report” or “SEC Reports”.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the day and year first above written.
| TRILLER GROUP INC. | ||
| By: | ||
| Name: | Shu Pei Huang, Desmond | |
| Title: | Acting Chief Financial Officer | |
PURCHASER SIGNATURE PAGE TO SHARE PURCHASE AGREEMENT
IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: KCP Holdings Limited.
Signature of Authorized Signatory of Purchaser:
Name of Authorized Signatory: Roger C. Kennedy
Title of Authorized Signatory: Director
Email Address of Authorized Signatory: roger.kennedy@kcplim.com
Facsimile Number of Authorized Signatory:
Address for Notice to Purchaser:
KCP Holdings Limited
71 Fort St., 3rd Floor
George Town, Cayman Islands KY1-1111
Attention: Roger C. Kennedy
Email: roger.kennedy@kcplim.com
with a copy to (which shall not constitute notice):
Sullivan & Cromwell LLP
125 Broad St.
New York, NY 10004
Attention: Ari Blaut
Lee C. Parnes
Email: blauta@sullcrom.com
parnesl@sullcrom.com
Investment Amount: $14,000,000
Number of Shares of Common Stock: 6,363,636 shares
Number of Warrant Shares: 6,363,636 warrants
ANNEX A
PURCHASER INFORMATION
| Purchaser | Subscribed Shares | Warrants | ||||||
| KCP Holdings Limited | 6,363,636 | 6,363,636 | ||||||
EXHIBIT A
DEFINITIONS
As used in this Agreement, the following terms have the meanings specified in this Exhibit A.
“Action” means any civil, criminal or administrative action, suit, demand, claim, complaint, litigation, investigation, review, audit, formal proceeding, arbitration, hearing or other similar dispute.
“Affiliate” means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by, or is under common control with, such Person. As used in this definition, the term “controls” (including the terms “controlled by” and “under common control with”) means possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through ownership of voting securities, by contract or otherwise. Notwithstanding the foregoing, “Affiliates” shall not include, and no provision of this Agreement shall be applicable to, the direct or indirect portfolio companies of investment funds advised or managed by the Purchaser or its Affiliates (“Portfolio Companies”). The Company acknowledges that the Purchaser’s employees, directors or partners of its Affiliates may also serve as directors of its Portfolio Companies and that such Portfolio Companies will not be deemed to be Affiliates solely due to the dual role of any such employee, director or partner.
“Company Material Adverse Effect” means any change, development, circumstance, fact or effect that, individually or in the aggregate, has or would reasonably be expected to (a) have, a material adverse effect on the business, results of operations, assets or financial condition of the Company and its Subsidiaries (taken as a whole), or (b) prevent, materially delay or materially impair the consummation by the Company of the Transactions in accordance with the terms of this Agreement.
“Confidential Information” means all confidential and proprietary information relating to the Company that the Company or its Representatives make available to the Purchaser or its Representatives pursuant to Section 3.11. “Confidential Information” does not include information that: (a) is or becomes generally available to the public; (b) is or has previously been disclosed to the Purchaser or its Representatives on a non-confidential basis by a third party; or (c) was independently developed by the Purchaser or its Representatives without the use of any other Confidential Information.
“Contract” means any agreement, undertaking, lease, license, contract, note, mortgage, indenture, arrangement or other obligation.
“Governmental Authority” means any government, court, regulatory or administrative agency, commission, arbitrator or authority or other legislative, executive or judicial governmental official or entity (in each case including any self-regulatory organization), whether federal, state or local, domestic, foreign or multinational.
“Intellectual Property Rights” means all rights anywhere in the world in or to: (a) trademarks, service marks, brand names, d/b/a’s, logos, symbols, trade dress, trade names, domain names and other indicia of origin, all applications and registrations for the foregoing, and all goodwill associated therewith and symbolized thereby, including all renewals of the same; (b) patents and patent applications; (c) confidential or proprietary trade secrets, discoveries, ideas, improvements, information, know-how, data and databases, including processes, schematics, business methods, drawings, specifications, designs, customer lists and supplier lists; (d) published and unpublished works of authorship, whether copyrightable or not (including software, website and mobile content, data, databases and other compilations of information), copyrights therein and thereto, and registrations and applications therefor, and all renewals, extensions, restorations and reversions thereof; and (e) all other intellectual property, industrial or proprietary rights.
“IT Assets” means technology devices, computers, software, servers, networks, workstations, routers, hubs, circuits, switches, data communications lines, and all other information technology equipment, and all data stored therein or processed thereby, and all associated documentation.
“Law” mean all state or federal laws, common law, statutes, ordinances, codes, rules or regulations or other similar requirement enacted, adopted, promulgated, or applied by any Governmental Authority, including any rules of any stock exchange or other self-regulatory organization.
“Lien” means any mortgage, charge, pledge, hypothecation, security interest, prior claim, encroachments, lien (statutory or otherwise), defect of title, adverse right or claim, or encumbrance of any kind, in each case, whether contingent or absolute.
“Losses” means any damages, losses, payments, liabilities, penalties, judgments, settlements, fines, and out-of-pocket costs and expenses (including any costs and expenses of any and all Actions and demands, assessments, judgments, settlements and compromises relating thereto and the reasonable costs and expenses of attorneys’, accountants’, consultants’ and other professionals’ fees and expenses incurred in the investigation or defense thereof or the enforcement of rights).
“Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, any other entity and any Governmental Authority or any department or agency thereof.
“Personal Information” means any information that identifies or could reasonably be used to identify an individual, browser or device, and any other “personal information,” “personal data” or similar information that is subject to any applicable Laws regarding privacy, cybersecurity or the protection of personal information.
“Purchaser Material Adverse Effect” means, as to the Purchaser, any change, development, circumstance, fact or effect that, individually or in the aggregate, that would prevent, materially delay or materially impair the consummation by the Purchaser of any of the Transactions in accordance with the terms of this Agreement.
“Representatives” means, with respect to any Person, its directors, officers, managers, members, employees, agents and professional advisors (including legal counsel, accountants, consultants and financial advisors).
“Subsidiary” means, with respect to any Person, any other Person of which at least a majority of the securities or ownership interests having by their terms ordinary voting power to elect a majority of the board of directors or other Persons performing similar functions is directly or indirectly owned or controlled by such Person and/or by one or more of its Subsidiaries.
“Tax” or “Taxes” means (a) taxes including all federal, state, local and foreign income, profits, franchise, gross receipts, environmental, customs duty, capital stock, severances, stamp, payroll, sales, employment, unemployment, disability, use, property, withholding, escheat, excise, production, value-added, occupancy and other taxes, duties or assessments of any nature whatsoever, together with all interest, penalties and additions imposed with respect to such amounts and any interest in respect of such penalties and additions and (b) any liability in respect of any items described in clause (a) payable by reason of contract, assumption, transferee or successor liability, operation of law, Treasury regulation Section 1.1502-6 (or any similar provision of law) or otherwise.
“Transaction Documents” means this Agreement, the Warrants, the Registration Rights Agreement and the Director Indemnification Agreement.
“Transactions” means the transactions contemplated hereby or under any of the Transaction Documents.
“Yorkville Agreements” means, collectively, (a) the Second Amended and Restated Standby Equity Purchase Agreement, dated June 28, 2024, (b) the Amended and Restated Registration Rights Agreement, dated June 28, 2024, by and between Yorkville and the Company, (c) the Yorkville Note, (d) the Amended and Restated Pledge Agreement, dated June 28, 2024, by and among Yorkville and the Pledgors (as defined therein) party thereto, (e) the Guaranty Agreement, dated June 28, 2024, by and among Yorkville and the Guarantors (as defined therein) party thereto, (f) the Amended and Restated Guaranty Agreement, dated June 28, 2024, by and among Yorkville and the Guarantors (as defined therein) parties thereto, (g) the Letter Agreement, dated June 28, 2024, by and among Yorkville, the Company and Triller Corp. and (h) each of the other agreements and instruments entered into or delivered by any of the parties to the foregoing in connection with the transactions contemplated therein or thereby.
EXHIBIT B
FORM OF WARRANT
[Attached]
EXHIBIT C
FORM OF REGISTRATION RIGHTS AGREEMENT
[Attached]
Exhibit 10.2
Execution Version
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of January 24, 2025, is made and entered into by and among Triller Group Inc., a Delaware corporation (the “Company”), and KCP Holdings Limited (the “Purchaser”). Each of the Purchaser and the Company is sometimes referred to herein each as a “Party”, and collectively as the “Parties”.
WHEREAS, pursuant to the Securities Purchase Agreement, by and among the Company and the Purchaser, dated as of January 24, 2025 (the “Securities Purchase Agreement”), upon the terms and subject to the conditions of the Securities Purchase Agreement, the Company has agreed to issue and sell to the Purchaser, and the Purchaser has agreed to purchase from the Company, at the Closing, shares of common stock of the Company, par value $0.001 per share (“Common Stock”), and warrants to purchase Common Stock (the “Warrants,” and the Common Stock issuable upon exercise of the Warrants, the “Warrant Shares,” and the Warrant Shares together with the shares of Common Stock offered and sold by the Company pursuant to the Securities Purchase Agreement, the “Shares”);
WHEREAS, in accordance with the terms of the Securities Purchase Agreement, the Company has agreed to provide the Purchaser certain registration rights under the Securities Act of 1933 (the “1933 Act”), and the rules and regulations thereunder, and applicable state securities laws.
NOW, THEREFORE, in consideration of the foregoing and the agreements contained in this Agreement, and intending to be legally bound by this Agreement, the Company and the Investors agree as follows:
Section 1. Definitions. Capitalized terms used and not otherwise defined in this Agreement that are defined in the Securities Purchase Agreement shall have the respective meanings ascribed to such terms in the Securities Purchase Agreement. As used in this Agreement, the following terms shall have the respective meanings set forth in this Section 1:
“1933 Act” shall have the meaning set forth in the preamble of this Agreement.
“Affiliate” means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by, or is under common control with, such Person; provided, that, notwithstanding the foregoing, with respect to any Purchaser, an “Affiliate” of a Person shall also include (a) such Person’s controlling member, general partner, manager and investment manager and affiliates thereof, (b) any entity with the same general partner, manager or investment manager as such Person or a general partner, manager or investment manager affiliated with such general partner, manager or investment manager of such Person and (c) any other Person that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, the first Person, the controlling member of such Person, the general partner of such Person, investment manager of such Person or an affiliate of such Person, controlling member, general partner or investment manager. As used in this definition, the term “controls” (including the terms “controlled by” and “under common control with”) means possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through ownership of voting securities, by contract or otherwise.
“Agreement” shall have the meaning set forth in the preamble of this Agreement.
“as converted basis” means (a) with respect to the outstanding shares of Common Stock as of any date, all outstanding shares of Common Stock calculated on a basis in which all shares of Common Stock issuable upon exercise of the outstanding Warrants (at the applicable exercise price in effect on such date) are assumed to be outstanding as of such date and (ii) with respect to any outstanding Warrants as of any date, the number of shares of Common Stock issuable upon exercise of such Warrants on such date (at the applicable exercise price in effect on such date).
“Block Trade” shall mean the disposition of Common Stock pursuant to a “block” trade or “overnight” deal. For purposes of clarity, a “block” trade or “overnight” deal means a registered securities offering in which an underwriter agrees to purchase the Common Stock at an agreed price or pricing formula without a prior marketing process.
“Business Day” means a day that is a Monday, Tuesday, Wednesday, Thursday or Friday and is not a day on which banking institutions in New York, New York generally are authorized or obligated by law, regulation or executive order to close.
“Commission” means the United States Securities and Exchange Commission.
“Common Stock” shall have the meaning set forth in the preamble of this Agreement.
“Company” shall have the meaning set forth in the preamble of this Agreement.
“Effectiveness Deadline” means, with respect to any registration statement required to be filed to cover the resale by the Investors of the Registrable Securities pursuant to Section 2, the one hundred twentieth (120th) day after the date of this Agreement.
“Effectiveness Period” shall have the meaning set forth in Section 2(b).
“Electing Investors” means, with respect to a registration, each of the Investors that has Registrable Securities directly owned by such Investor included in such registration in accordance with Section 2 or Section 6, as the case may be.
“Exchange Act” means the Securities Exchange Act of 1934 and the rules and regulations of the Commission thereunder.
“Filing Deadline” means, with respect to any registration statement required to be filed to cover the resale by Investors of the Registrable Securities pursuant to Section 2, sixty (60) calendar days following the date of this Agreement.
“Freely Tradable” means, with respect to any security, a security that is eligible to be sold by the holder thereof without any volume or manner of sale restrictions pursuant to Rule 144 and that, upon any such sale, does not have and is not subject to any restrictive legends.
“FINRA” means the Financial Industry Regulatory Authority, Inc.
“Indemnified Party” shall have the meaning set forth in Section 11(c).
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“Indemnifying Party” shall have the meaning set forth in Section 11(c).
“Investor Indemnitee” shall have the meaning set forth in Section 11(a).
“Investors” means (a) the Purchaser and (b) any Affiliate of the Purchaser, or (c) any other third-party transferee, in the case of clauses (b) and (c), that acquires or becomes a transferee or assignee of any Registrable Securities to the extent permitted pursuant to this Agreement and the Securities Purchase Agreement.
“Moving Party” shall have the meaning set forth in Section 14(c).
“Other Securities” shall have the meaning set forth in Section 6(a).
“Piggyback Notice” shall have the meaning set forth in Section 6(a).
“Piggyback Registration” shall have the meaning set forth in Section 6(a).
“prospectus” means the prospectus included in a registration statement (including a prospectus that includes any information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A under the 1933 Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Registrable Securities covered by a registration statement, and all other amendments and supplements to the prospectus, including post-effective amendments.
“Purchaser” shall have the meaning set forth in the preamble of this Agreement.
“register,” “registered,” and “registration” refer to a registration effected by preparing and filing a registration statement with the Commission in compliance with the 1933 Act and applicable rules and regulations thereunder, and the declaration or ordering of effectiveness of such registration statement by the Commission.
“Registrable Securities” means, as of any date of determination, (a) any Common Stock, including any Common Stock issued to the Investors pursuant to the exercise of any Warrant, and (b) any securities issued as (or issuable upon the conversion or exercise of any warrant, right or other security that is issued as) a dividend, stock split, recapitalization or other distribution with respect to, or in exchange for, or in replacement of, the securities referenced in clause (a) above; provided that the term “Registrable Securities” shall exclude in all cases any securities (i) that shall have ceased to be outstanding; (ii) that are sold pursuant to an effective registration statement under the 1933 Act or publicly resold in compliance with Rule 144; (iii) in the case of an Investor, all shares of Common Stock held by such Investor, on an as converted basis, which are Freely Tradable; or (iv) that have been sold in a private transaction in which the transferor’s rights under this Agreement are not assigned to the transferee of the securities.
“Registration Expenses” means (a) all expenses incurred in connection with the registrations and offerings contemplated pursuant to this Agreement, including all registration, qualification, listing and filing fees, printing expenses, escrow fees, fees and disbursements of counsel and blue sky fees and expenses, and fees and expenses not to exceed $100,000.00 per registration of one counsel for the Electing Investors; and (b) all expenses of any independent accountants in connection with any regular or special reviews or audits incident to or required by any such registration; provided that Registration Expenses shall not include any Selling Expenses.
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“registration statement” means any registration statement that is required to register the resale of the Registrable Securities under this Agreement, including the related prospectus and any pre- and post-effective amendments and supplements to each such registration statement or prospectus.
“Resale Shelf Registration” shall have the meaning set forth in Section 2(a).
“Resale Shelf Registration Statement” shall have the meaning set forth in Section 2(a).
“Rule 144” shall have the meaning set forth in Section 14.
“Securities Purchase Agreement” shall have the meaning set forth in the recitals of this Agreement.
“Selling Expenses” means all underwriting discounts, selling commissions and stock transfer taxes, if any, applicable to the sale of Registrable Securities by the Electing Investors.
“Shelf Offering” shall have the meaning set forth in Section 5.
“Shelf Registration” means the Resale Shelf Registration or a Subsequent Shelf Registration, as applicable.
“Shelf Registration Statement” means the Resale Shelf Registration Statement or a Subsequent Shelf Registration Statement, as applicable.
“Subsequent Shelf Registration” shall have the meaning set forth in Section 2(c).
“Subsequent Shelf Registration Statement” shall have the meaning set forth in Section 2(c).
“Subsidiary” means, with respect to any Person, any other Person of which at least a majority of the securities or ownership interests having by their terms ordinary voting power to elect a majority of the board of directors or other Persons performing similar functions is directly or indirectly owned or controlled by such Person and/or by one or more of its Subsidiaries.
“Suspension Period” shall have the meaning set forth in Section 4.
“Take-Down Notice” shall have the meaning set forth in Section 5.
Section 2. Registration.
(a) Subject to the other applicable provisions of this Agreement, the Company shall file, as promptly as reasonably practicable, but no later than the Filing Deadline, a registration statement under the 1933 Act covering the sale or distribution from time to time by the Investors, on a delayed or continuous basis pursuant to Rule 415 of the 1933 Act of all the Registrable Securities and shall provide for the registration of such Registrable Securities for resale by such Investors in accordance with any reasonable method of distribution elected by the Investors (such registration, a “Resale Shelf Registration”). The registration statement shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, then such registration shall be on another appropriate form for such purposes) (the “Resale Shelf Registration Statement”). The Company shall use its reasonable best efforts to cause such Resale Shelf Registration Statement to be declared effective by the Commission as promptly as practicable after the filing thereof, but in any event prior to the Effectiveness Deadline.
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(b) Once declared effective, the Company shall, subject to the other applicable provisions of this Agreement, use its reasonable best efforts to cause the Resale Shelf Registration Statement to be continuously effective and usable until such time as there are no longer any Registrable Securities (the “Effectiveness Period”).
(c) If any Shelf Registration ceases to be effective under the 1933 Act for any reason at any time during the Effectiveness Period, the Company shall use its reasonable best efforts to, as promptly as practicable, cause such Shelf Registration to again become effective under the 1933 Act (including obtaining the prompt withdrawal of any order suspending the effectiveness of such Shelf Registration), and in any event shall, as promptly as practicable, amend such Shelf Registration in a manner reasonably expected to obtain the withdrawal of any order suspending the effectiveness of such Shelf Registration or file an additional registration statement (a “Subsequent Shelf Registration Statement,” and such registration, a “Subsequent Shelf Registration”) for an offering to be made on a delayed or continuous basis pursuant to Rule 415 of the 1933 Act registering the resale from time to time by the Investors of all securities that are Registrable Securities as of the time of such filing. If a Subsequent Shelf Registration is filed, the Company shall use its reasonable best efforts to (i) cause such Subsequent Shelf Registration to become effective under the 1933 Act as promptly as is reasonably practicable after such filing, but in no event later than the date that is forty-five (45) days after such Subsequent Shelf Registration is filed and (ii) keep such Subsequent Shelf Registration (or another Subsequent Shelf Registration) continuously effective and usable until the end of the Effectiveness Period. Any such Subsequent Shelf Registration shall be a registration statement on Form S-3 to the extent that the Company is eligible to use such form. Otherwise, such Subsequent Shelf Registration shall be on another appropriate form and shall provide for the registration of such Registrable Securities for resale by such Investors in accordance with any reasonable method of distribution elected by the Investors.
(d) The Company shall supplement and amend any Shelf Registration if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration if required by the 1933 Act or as reasonably requested by the Investors covered by such Shelf Registration.
(e) If a Person becomes an Investor of Registrable Securities after a Shelf Registration becomes effective under the 1933 Act, the Company shall, as promptly as is reasonably practicable following delivery of written notice to the Company of such Person becoming an Investor and requesting for its name to be included as a selling securityholder in the prospectus related to the Shelf Registration:
(i) if required and permitted by applicable law, file with the Commission a supplement to the related prospectus or a post-effective amendment to the Shelf Registration so that such Investor is named as a selling securityholder in the Shelf Registration and the related prospectus in such a manner as to permit such Investor to deliver a prospectus to purchasers of the Registrable Securities in accordance with applicable law;
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(ii) if, pursuant to Section 2(e)(i), the Company shall have filed a post-effective amendment to the Shelf Registration that is not automatically effective, use its reasonable best efforts to cause such post-effective amendment to become effective under the 1933 Act as promptly as is reasonably practicable, but in any event by the date that is thirty (30) days after the date such post-effective amendment is required by Section 2(e)(i) to be filed; and
(iii) notify such Investor as promptly as is reasonably practicable after the effectiveness under the 1933 Act of any post-effective amendment filed pursuant to Section 2(e)(i).
(f) Notwithstanding the registration obligations set forth in this Section 2, in the event the Commission informs the Company that all of the Registrable Securities cannot be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform in writing each of the Investors and use its reasonable best efforts to file amendments to the Resale Shelf Registration Statement as required by the Commission and/or (ii) withdraw the Resale Shelf Registration Statement and file as promptly as possible a new registration statement (a “New Registration Statement”) on Form S-3, or if Form S-3 is not then available to the Purchaser for such registration statement, on such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall use its reasonable best efforts to advocate with the Commission for the registration of all of the Registrable Securities in accordance with any publicly available written or oral guidance, comments, requirements or requests of the Commission staff. Notwithstanding any other provision of this Agreement, if the Commission imposes a limitation on the number of Registrable Securities permitted to be registered on a particular Resale Registration Statement as a secondary offering, unless otherwise directed in writing by an Electing Investor as to further limit its Registrable Securities to be included on the Registration Statement, the number of Registrable Securities to be registered on such Registration Statement will be reduced pro rata among all such Electing Investors whose securities are included in such Resale Registration Statement, subject to a determination by the Commission that certain holders must be reduced first based on the number of Registrable Securities held by such holders. In the event the Company amends the Resale Shelf Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its reasonable best efforts to file with the Commission, as promptly as allowed by Commission provided to the Purchaser or to registrants of securities in general, one or more registration statements on Form S-3 or such other form available to register for resale those Registrable Securities that were not registered for resale on the Resale Shelf Registration Statement, as amended, or the New Registration Statement.
Section 3. [Reserved]
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Section 4. Suspension. Notwithstanding anything to the contrary in this Agreement, upon notice to the Investors, the Company may delay, on one (1) occasion in any twelve (12)-month period, the Filing Deadline and/or the Effectiveness Deadline with respect to, or suspend the effectiveness or availability of any registration statement for up to thirty (30) days in the aggregate in any twelve (12)-month period (a “Suspension Period”) if the Board reasonably determines in good faith that there is a valid business purpose for suspension of such registration statement; provided that (a) any suspension of a registration statement pursuant to Section 9 shall be treated as a Suspension Period for purposes of calculating the maximum number of days of any Suspension Period under this Section 4, (b) the Company shall be actively employing in good faith all reasonable best efforts to launch such registered offering through such Suspension Period and (c) the Investors are afforded the opportunity to include the Registrable Securities in an offering described in and in accordance with Section 6. The Company shall notify the Investors in writing that such Suspension Period is for a valid business purpose reasonably determined by the Board in good faith and such certificate shall contain a statement of the reasons for such Suspension Period and an approximation of the anticipated length of such Suspension Period (provided such notice shall not contain material, non-public information about the Company). If the Company defers any registration of Registrable Securities pursuant to Section 2, the Investors shall be entitled to withdraw such demand for registration, as applicable.
Section 5. Take-Down Notice. Subject to the other applicable provisions of this Agreement, at any time that any Shelf Registration Statement is effective, if an Investor delivers a notice to the Company (a “Take-Down Notice”) stating that it intends to effect a sale or distribution of all or part of its Registrable Securities included by it on any Shelf Registration Statement that requires an amendment or supplement to the Shelf Registration Statement (a “Shelf Offering”) and stating the number of the Registrable Securities to be included in such Shelf Offering, then the Company shall amend or supplement the Shelf Registration Statement as may be necessary, subject to the other applicable provisions of this Agreement, in order to enable such Registrable Securities to be sold and distributed pursuant to the Shelf Offering.
Section 6. Piggyback Registration.
(a) Subject to the terms and conditions of this Agreement, if at any time the Company files a registration statement under the 1933 Act with respect to an offering of Common Stock or any other equity securities of the Company (such Common Stock and other equity securities collectively, “Other Securities”), whether or not for sale for its own account (other than a registration statement (i) on Form S-4, Form S-8 or any successor forms thereto or (ii) filed solely in connection with any employee benefit or dividend reinvestment plan), then the Company shall promptly give written notice of such filing to the Investors, which notice shall be given, to the extent reasonably practicable, no later than ten (10) Business Days before the filing or launch date (the “Piggyback Notice”). The Piggyback Notice and the contents thereof shall be kept confidential by the Investors. The Piggyback Notice shall offer each Investor the opportunity to include (or cause to be included) in such registration statement, subject to the terms and conditions of this Agreement, the number of Registrable Securities as such Investor may request (for clarity, other than with respect to any Registrable Securities of such Investor for which a Resale Registration Statement has previously been filed by the Company pursuant to this Agreement and such Registrable Securities have been sold) (a “Piggyback Registration”). Subject to the terms and conditions of this Agreement, the Company shall include in each such Piggyback Registration all Registrable Securities with respect to which the Company has received from an Electing Investor a written request for inclusion therein (a “Piggyback Request”) within five (5) Business Days following receipt of any Piggyback Notice by such Electing Investor (but in any event not later than one (1) Business Day prior to the filing date of a Piggyback Registration Statement), which Piggyback Request shall specify the maximum number of Registrable Securities intended to be disposed of by such Electing Investor and the intended method of distribution. For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, the Company may not commence or permit the commencement of any sale of Other Securities in a public offering to which this Section 6 applies unless the Electing Investors shall have received the Piggyback Notice in respect to such public offering not less than ten (10) Business Days prior to the commencement of such sale of Other Securities. The Electing Investors shall be permitted to withdraw all or part of the Registrable Securities from a Piggyback Registration at any time at least one (1) Business Day prior to the effective date of the registration statement relating to such Piggyback Registration.
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(b) If any Other Securities to be registered pursuant to the registration giving rise to the rights under this Section 6 are to be sold in an underwritten offering, (i) the Company or other Persons designated by the Company shall have the right to appoint the book-running, managing and other underwriter(s) for such offering in their discretion and (ii) to the extent such Other Securities are of the same class as the Registrable Securities, the Electing Investors shall be permitted to include in such offering any number of the Registrable Securities included in each such Electing Investor’s Piggyback Request on the same terms and conditions as such Other Securities proposed by the Company or any third party to be included in such offering; provided, however, that if the managing underwriter(s) of such underwritten offering advise the Company in writing that it is their good faith opinion that the total amount of Registrable Securities requested to be so included, together with all Other Securities that the Company and any other Persons having rights to participate in such registration intend to include in such offering (an “Underwriter Cutback”), exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect on the price, timing or distribution of the Registrable Securities to be so included together with all Other Securities, then there shall be included in such firm commitment underwritten offering the number or dollar amount of Registrable Securities and such Other Securities that in the good faith opinion of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows: (A) in the event that the Piggyback Registration is initiated as a primary underwritten offering on behalf of the Company, (1) first, the Other Securities that the Company proposes to sell in such offering and (2) second, and only if all the securities referred to in clause (1) have been included, any Other Securities proposed to be included in such offering by any other holders of such Other Securities to whom the Company has a contractual obligation to facilitate such offering and any Registrable Securities requested to be included therein by any Electing Investors, and (B) if the Piggyback Registration is initiated as an underwritten offering on behalf of a holder of Other Securities to whom the Company has a contractual obligation to facilitate such offering (other than an Electing Investor), (1) first, the Other Securities that such holder demanding the offering pursuant to such contractual right proposes to sell in such offering, (2) second, and only if all the securities referred to in clause (1) have been included, any Other Securities proposed to be sold for the account of the Company in such offering, and (3) third, and only if all the securities referred to in clauses (1) and (2) have been included, any Registrable Securities requested to be included in such offering by any Electing Investors and any Other Securities proposed to be included in such offering by any other holders of Other Securities to whom the Company has a contractual obligation to facilitate such offering, in each case of clauses (A)(2) and (B)(3), allocated pro rata on the basis of the number of Other Securities and Registrable Securities proposed to be included in such offering, up to the number or dollar amount of such securities, if any, that the managing underwriters determine can be included in the offering without reasonably being expected to adversely affect such offering (including the price, timing or distribution of the securities to be offered in such offering).
(c) Notwithstanding the foregoing, the Piggyback Registration rights described in Section 6 shall not apply to any Block Trades undertaken by the Company on behalf of itself.
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Section 7. Expenses of Registration. Except as specifically provided for in this Agreement, all Registration Expenses incurred in connection with any registration, qualification or compliance hereunder shall be borne by the Company. All Selling Expenses incurred in connection with any registration hereunder shall be borne by the Electing Investors in proportion to the number of Registrable Securities for which registration was requested.
Section 8. Obligations of the Company. Whenever required to effect the registration of any Registrable Securities pursuant to Section 2 or Section 6 of this Agreement, the Company shall, as promptly as reasonably practicable:
(a) Prepare and file with the Commission a registration statement (including all required exhibits to such registration statement) with respect to such Registrable Securities and use reasonable best efforts to cause such registration statement to become effective, or prepare and file with the Commission a prospectus supplement with respect to such Registrable Securities pursuant to an effective registration statement and keep such registration statement effective or such prospectus supplement current, in each case for the period of the distribution contemplated thereby, in accordance with the applicable provisions of this Agreement;
(b) Prepare and file with the Commission such amendments, including post-effective amendments, and supplements to the applicable registration statement and the prospectus or prospectus supplement used in connection with such registration statement as may be necessary to comply with the provisions of the 1933 Act with respect to the disposition of all securities covered by such registration statement (including to permit the intended method of distribution thereof) and as may be necessary to keep the registration statement continuously effective for the period set forth in this Agreement;
(c) Furnish to the Electing Investors and to their legal counsel copies of the registration statement and the prospectus included therein (including each preliminary prospectus) proposed to be filed and provide the Electing Investors and their legal counsel a reasonable opportunity to review and comment on such documents, and give reasonable consideration to the inclusion in such documents of any comments reasonably and timely made; provided that the Company shall include in such documents any such comments that are necessary to correct any material misstatement or omission regarding an Electing Investor;
(d) If requested by an Electing Investor, promptly include in any prospectus supplement or post-effective amendment such information as any Electing Investor may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably practicable after the Company has received such request; provided, however, that the Company shall not be required to take any actions under this Section 8(d) that are not, in the opinion of counsel for the Company, in compliance with applicable law;
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(e) Furnish to the Electing Investors and to their legal counsel such number of copies of the applicable registration statement and each such amendment and supplement thereto (including in each case all exhibits but not documents incorporated by reference) and of a prospectus, including a preliminary prospectus, in conformity with the requirements of the 1933 Act, and such other documents as the Electing Investors may reasonably request in order to facilitate the disposition of Registrable Securities owned by the Electing Investors. The Company hereby consents to the use of such prospectus and each amendment or supplement thereto by each of the Electing Investors in accordance with applicable laws and regulations in connection with the offering and sale of the Registrable Securities covered by such prospectus and any amendment or supplement thereto;
(f) Use its reasonable best efforts to register and qualify the securities covered by such registration statement under blue sky or such other securities laws of such jurisdictions as shall be reasonably requested by the Electing Investors and to keep such registration or qualification in effect for so long as such registration statement remains in effect; provided that the Company shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdictions;
(g) In connection with a customary due diligence review, make available for inspection by the Electing Investors participating in any such disposition of Registrable Securities and any counsel or accountants retained by the Electing Investors, all financial and other records, pertinent corporate documents and properties of the Company and its Subsidiaries, and cause the officers, directors and employees of the Company and its Subsidiaries to supply all information and participate in customary due diligence sessions in each case reasonably requested by any such representative, counsel or accountant in connection with such registration statement; provided that (i) any party receiving confidential materials shall execute a confidentiality agreement on customary terms if reasonably requested by the Company and (ii) the Company may restrict access to documents or information that it determines, in its reasonable judgment, are competitively sensitive or legally privileged;
(h) Enter into customary agreements and take such other actions as are reasonably required in order to facilitate the disposition of such Registrable Securities;
(i) [Reserved]
(j) Use reasonable best efforts to list the Registrable Securities covered by such registration statement with any securities exchange on which the Common Stock is then listed;
(k) Give notice to the Electing Investors as promptly as reasonably practicable:
(i) when any registration statement filed pursuant to Section 2 or in which Registrable Securities are included pursuant to Section 6, or any amendment to such registration statement, has been filed with the Commission, and when such registration statement or any post-effective amendment to such registration statement has become effective;
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(ii) when any prospectus or any prospectus supplement has been filed and, with respect to such registration statement, when the same has become effective;
(iii) of any request by the Commission or other federal or state governmental authority for amendments or supplements to any registration statement (or any information incorporated by reference in, or exhibits to, such registration statement) filed pursuant to Section 2 or in which Registrable Securities are included pursuant to Section 6 or the prospectus (including information incorporated by reference in such prospectus) included in such registration statement or for additional information;
(iv) of the issuance by the Commission of any stop order suspending the effectiveness of any registration statement filed pursuant to Section 2 or in which Registrable Securities are included pursuant to Section 6 or the initiation of any proceedings for that purpose;
(v) if at any time the Company has reason to believe that the representations and warranties of the Company or any of its Subsidiaries contained in any agreement (including any underwriting agreement contemplated by Section 8(h) above) cease to be true and correct;
(vi) of the receipt by the Company or its legal counsel of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and
(vii) at any time when a prospectus relating to any such registration statement is required to be delivered under the 1933 Act, of the occurrence of any event as a result of which such prospectus (including any material incorporated by reference or deemed to be incorporated by reference in such prospectus), as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, which event requires the Company to make changes in such effective registration statement and prospectus in order to ensure that the statements therein or incorporated by reference therein will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing (which notice shall be accompanied by an instruction to suspend the use of the prospectus until the requisite changes have been made and shall not contain any material, non-public information about the Company);
(l) Use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of any registration statement referred to in Section 8(k)(iv) at the earliest practicable time;
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(m) Cooperate with the Electing Investors and each underwriter or agent participating in the disposition of Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA, including the use of reasonable best efforts to obtain FINRA’s pre-clearance or pre-approval of the registration statement and applicable prospectus upon filing with the Commission;
(n) Upon the occurrence of any event contemplated by Section 8(k)(vii), reasonably promptly prepare a post-effective amendment to such registration statement or a supplement to the related prospectus or file any other required document so that, as thereafter delivered to the Electing Investors, the prospectus will not contain (or incorporate by reference) an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If the Company notifies the Electing Investors in accordance with Section 8(k)(vii) to suspend the use of the prospectus until the requisite changes to the prospectus have been made, then the Electing Investors shall suspend use of such prospectus and, if requested by the Company, use their reasonable best efforts to return to the Company all copies of such prospectus (at the Company’s expense) other than permanent file copies then in the Electing Investors’ possession, and the period of effectiveness of such registration statement provided for in Section 8(a) above shall be extended by the number of days from and including the date of the giving of such notice to the date the Electing Investors shall have received such amended or supplemented prospectus pursuant to this Section 8(n); and
(o) Procure the cooperation of the Company’s transfer agent in settling any offering or sale of Registrable Securities, including with respect to the transfer of physical stock certificates into book-entry form, no later than the effective date of such registration statement. In connection therewith, if reasonably required by the Company’s transfer agent, the Company shall, promptly after the effectiveness of the registration statement, cause an opinion of counsel as to the effectiveness of the registration statement to be delivered to and maintained with its transfer agent, together with any other authorizations, certificates and directions required by the transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without legend upon sale by the holder of such shares of Registrable Securities under the registration statement.
Section 9. Suspension of Sales. Upon receipt of written notice from the Company pursuant to Section 8(k)(vii), the Electing Investors shall immediately discontinue disposition of Registrable Securities until they (a) have received copies of a supplemented or amended prospectus or prospectus supplement pursuant to Section 8(n) or (b) are advised in writing by the Company that the use of the prospectus and, if applicable, prospectus supplement may be resumed, and, if so directed by the Company, the Electing Investors shall deliver to the Company (at the Company’s expense) all copies, other than permanent file copies then in the Electing Investors’ possession, of the prospectus and, if applicable, prospectus supplement covering such Registrable Securities current at the time of receipt of such notice.
Section 10. Limitation on Subsequent Registration Rights. From and after the date hereof, the Company shall not enter into any agreement granting any holder or prospective holder of any securities of the Company registration rights with respect to such securities that conflict with the rights granted to the Investors herein without the prior written consent of the Investors holding a majority of the Registrable Securities.
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Section 11. Indemnification.
(a) Notwithstanding any termination of this Agreement, the Company shall indemnify and hold harmless, to the fullest extent permitted by law, each of the Electing Investors and each of their respective current and former officers, directors, employees, agents, partners, members, stockholders, representatives and Affiliates, and each Person or entity, if any, that controls the Electing Investors within the meaning of Section 15 of the 1933 Act or Section 20 of the Exchange Act, and the officers, directors, employees, agents partners, members, managers, stockholders, representatives and Affiliates of each such controlling Person (each, an “Investor Indemnitee”), from and against any and all losses, claims, damages, actions, liabilities, penalties, charges, amounts paid in settlement and costs and expenses (including reasonable fees, expenses and disbursements of attorneys and other professionals) (collectively, “Losses”), joint or several, arising out of, caused by, based upon, resulting from or relating to (i) any untrue or alleged untrue statement of material fact contained or incorporated by reference in any registration statement, prospectus, preliminary prospectus or final prospectus contained therein, offering circular or other document, or any amendment or supplement thereto, or contained in any “issuer free writing prospectus” (as such term is defined in Rule 433 under the 1933 Act) prepared by the Company or authorized by it in writing for use by the Investors or any amendment or supplement thereto; (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; or (iii) any violation by the Company of any rule or regulation promulgated under the 1933 Act, the Exchange Act or state securities laws applicable to the Company in connection with any such registration, and, without limiting the foregoing, the Company will reimburse each of the Investor Indemnitees for any reasonable legal and any other expenses reasonably incurred in connection with investigating, preparing or defending against any such Losses, as such expenses are incurred; provided that the Company shall not be liable to such Investor Indemnitee with respect to any Losses for which any Electing Investor must indemnify any Company Indemnitee under Section 11(b).
(b) Each Electing Investor shall, to the fullest extent permitted by law, severally and not jointly, indemnify and hold harmless the Company and its officers, directors, employees, agents, representatives and Affiliates of the Company’s securities covered by such a registration, each Person who controls the Company (each, a “Company Indemnitee”), from and against any and all Losses arising out of, caused by, based upon, resulting from or relating to (i) any untrue or alleged untrue statement of material fact contained in any registration statement, prospectus, preliminary prospectus, offering circular or other document, or any amendment or supplement thereto, or contained in any “issuer free writing prospectus” (as such term is defined in Rule 433 under the 1933 Act) or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case of (i) and (ii), but only to the extent that such untrue statements or omissions are based solely upon information regarding such Electing Investor furnished in writing to the Company by such Electing Investor stated to be specifically for use therein. In no event shall the liability of any Electing Investor hereunder be greater in amount than the dollar amount of the net proceeds received by such Electing Investor upon the sale of the Registrable Securities giving rise to such indemnification obligation.
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(c) If any proceeding shall be brought or asserted against any Person entitled to indemnity hereunder (an “Indemnified Party”) with respect to a claim for which indemnity is required under this Agreement, such Indemnified Party shall promptly notify the Person from whom indemnity is sought (the “Indemnifying Party”) in writing, and the Indemnifying Party shall assume the defense in such proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all fees and expenses incurred in connection with such defense; provided that the failure of any Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations or liabilities pursuant to this Section 11, except (and only) to the extent that it shall be finally determined by a court of competent jurisdiction (which determination is not subject to appeal or further review) that such failure shall have proximately and materially adversely prejudiced the Indemnifying Party. An Indemnified Party shall have the right to employ separate counsel in any such proceeding and to participate in the defense of such proceeding, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party or Parties unless: (i) the Indemnifying Party has agreed in writing to pay such fees and expenses; (ii) the Indemnifying Party shall have failed promptly to assume the defense of such proceeding and to employ counsel reasonably satisfactory to such Indemnified Party in any such proceeding; or (iii) the named parties to any such proceeding (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party, and, in the reasonable judgment of such Indemnified Party, a conflict of interest may exist as a result of the representation of both such Indemnified Party and the Indemnifying Party by the same counsel (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense thereof and such counsel shall be at the expense of the Indemnifying Party); provided that the Indemnifying Party shall not be liable for the fees and expenses of more than one separate firm of attorneys (in addition to, but only to the extent necessary, one local counsel in each relevant jurisdiction) at any time for all Indemnified Parties, unless in the reasonable judgment of any Indemnified Party a conflict of interest may exist between such Indemnified Party and any other Indemnified Parties with respect to a claim. The Indemnifying Party shall not be liable for any settlement of any such proceeding effected without its written consent, which consent shall not be unreasonably withheld, conditioned or delayed. No Indemnifying Party shall, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending proceeding in respect of which any Indemnified Party is a party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such proceeding. All fees and expenses of the Indemnified Party (including reasonable fees and expenses to the extent incurred in connection with investigating or preparing to defend such proceeding in a manner not inconsistent with this Section 11) shall be paid to the Indemnified Party, as incurred, promptly upon receipt of written notice thereof by the Indemnifying Party (regardless of whether it is ultimately determined that an Indemnified Party is not entitled to indemnification hereunder; provided that the Indemnifying Party may require such Indemnified Party to undertake to reimburse all such fees and expenses to the extent it is finally judicially determined that such Indemnified Party is not entitled to indemnification under this Section 11). The indemnification set forth in this Section 11 shall be in addition to any other indemnification rights or agreements that an Indemnified Party may have.
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(d) If the indemnification provided for in Section 11(a) or Section 11(b) is held by a court of competent jurisdiction to be unavailable to an Indemnified Party with respect to any Losses referred to in Section 11(a) or Section 11(b), as the case may be, or is insufficient to hold the Indemnified Party harmless as contemplated therein, then notwithstanding any termination of this Agreement the Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such Losses in such proportion as is appropriate to reflect the relative fault of the Indemnified Party, on the one hand, and the Indemnifying Party, on the other hand, in connection with the statements, omissions or violations which resulted in such Losses, as well as any other relevant equitable considerations. The relative fault of the Indemnifying Party, on the one hand, and of the Indemnified Party, on the other hand, shall be determined by reference to, among other factors, whether the untrue or alleged untrue statement of a material fact or omission to state a material fact relates to information supplied by the Indemnifying Party or by the Indemnified Party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Investors agree that it would not be just and equitable if contribution pursuant to this Section 11(d) were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in this Section 11(d). Notwithstanding the foregoing, in no event shall the liability of any Electing Investor hereunder be greater in amount than the dollar amount of the net proceeds received by such Electing Investor upon the sale of the Registrable Securities giving rise to such contribution obligation. No Indemnified Party guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from an Indemnifying Party not guilty of such fraudulent misrepresentation.
Section 12. Agreement to Furnish Information. If requested by the Company, each Electing Investor shall provide such information regarding itself and its Registrable Securities as may be reasonably required by the Company in connection with the filing of a registration statement and the completion of any public offering of the Registrable Securities pursuant to such registration statement.
Section 13. Rule 144 Reporting. With a view to making available to the Investors the benefits of certain rules and regulations of the Commission which may permit the sale of the Registrable Securities that are Common Stock to the public without registration, the Company agrees to use its reasonable best efforts to: (a) make and keep public information available, as those terms are understood and defined in Rule 144 under the 1933 Act or any similar or analogous rule promulgated under the 1933 Act, at all times after the effective date of this Agreement (“Rule 144”); (b) file with the Commission, in a timely manner, all reports and other documents required of the Company under the Exchange Act; (c) so long as the Investors own any Registrable Securities, furnish to such Investors forthwith upon request: (i) a written statement by the Company as to its compliance with the reporting requirements of Rule 144 and of the Exchange Act; (ii) a copy of the most recent annual or quarterly report of the Company; and (iii) such other reports and documents as such Investors may reasonably request in availing themselves of any rule or regulation of the Commission allowing them to sell any such Common Stock without registration and (d) so long as the Investors own any Registrable Securities, take such further necessary action as any Investor may reasonably request in connection with the removal of any restrictive legend on the Registrable Securities being sold, all to the extent required from time to time to enable such Investor to sell the Restricted Securities without registration under the Securities Act within the limitations of the exemption provided by Rule 144.
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Section 14. Miscellaneous.
(a) Termination of Registration Rights. The registration rights of any particular Investor granted under this Agreement shall terminate with respect to such Investor upon the date upon which neither the Investor nor any of its Affiliates holds any Registrable Securities.
(b) Governing Law; Submission to Jurisdiction; Waiver of Jury Trial, Etc. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to principles of conflicts of laws. Any action brought by either Party against the other concerning the Transactions shall be brought only in the state courts of New York or in the federal courts located in the state and county of New York. The Parties to this Agreement hereby irrevocably waive any objection to jurisdiction and venue of any action instituted hereunder and shall not assert any defense based on lack of jurisdiction or venue or based upon forum non conveniens.
(c) Specific Performance. The Parties agree that irreparable damage would occur in the event any provision of this Agreement is not performed in accordance with the terms hereof. Accordingly, each Party shall be entitled to specific performance of the terms hereof, in addition to any other remedy at law or equity.
(d) Successors and Assigns. The registration rights hereunder are not transferable and may not be assigned to any person without the prior written consent of the other party hereto; provided, that any Investor may assign (in whole or in part) its rights and obligations hereunder to any transferee or assignee of Registrable Securities in connection with any transfer or assignment of Registrable Securities in accordance with the terms hereof and of the Securities Purchase Agreement; provided, further, that, as a condition to the effectiveness of any such assignment of this Agreement (in whole or in part), any such transferee or assignee must agree in writing to be bound by the terms and conditions hereof. Any assignment in violation of the forgoing shall be null and void ab initio. Upon the effectiveness of any assignment (in whole or in part) of this Agreement by any Investor in accordance with the foregoing, such assignee shall, without any further writing or action of any kind, be deemed a beneficiary hereof for all purposes and such assigned or transferred Registrable Securities shall be held subject to all the terms of this Agreement, and by taking and holding such Registrable Securities such assignee shall be treated as an “Investor” for all purposes under this Agreement and shall be entitled to receive the benefits of this Agreement. For the avoidance of doubt, no Person who acquires securities transferred in violation of this Agreement or the Securities Purchase Agreement, or who acquires securities that upon acquisition cease to be Registrable Shares, shall have any rights under this Agreement with respect to such securities, and such securities shall not have the benefits afforded hereunder to Registrable Securities. In the event that the Company consolidates or merges with or into any Person and the Common Stock or any other Registrable Securities are, in whole or in part, converted into or exchanged for securities of a different issuer, and any Investor would, upon completion of such merger or consolidation, hold Registrable Securities of such issuer, then as a condition to such transaction the Company will cause such issuer to assume all of the Company’s rights and obligations under this Agreement in a written instrument delivered to the Investors.
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(e) No Third-Party Beneficiaries. Notwithstanding anything contained in this Agreement to the contrary, this Agreement is intended solely for the benefit of the parties hereto and their respective successors, heirs and permitted assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other person; provided, however, that each Indemnified Party shall be entitled to the rights, remedies and obligations provided to an Indemnified Party under Section 12, and each such Indemnified Party shall have standing as a third-party beneficiary under Section 12 to enforce such rights, remedies and obligations.
(f) Entire Agreement. This Agreement and the Securities Purchase Agreement constitutes the entire understanding and agreement between the Parties hereto with respect to the matters covered hereby, and all prior agreements and understandings, oral or in writing, if any, between the Parties with respect to the matters covered hereby are merged and superseded by this Agreement.
(g) Notices. All notices, requests, demands, and other communications under this Agreement shall be in writing and shall be deemed to have been duly given on the date of actual delivery if delivered personally to the Parties to whom notice is to be given, on the date sent if sent by e-mail or facsimile, on the next business day following delivery if sent by courier or on the day of attempted delivery by postal service if mailed by registered or certified mail, return receipt requested, postage paid, and properly addressed. The address of the Purchaser for such notices and communications shall be as set forth on the signature page attached hereto. If to the Company, at:
Triller Group Inc.
7119 West Sunset Boulevard
Suite 782
Los Angeles, CA 90046
Attn: Shu Pei Huang, Desmond
Email: dshu@triller.co
Any Party may change its address for purposes of this Section 14(g) by giving the other Party a written notice of the new address in the manner set forth above.
(h) Delays or Omissions. No failure on the part of any party to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or remedy by such party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and not exclusive of any other remedies provided by law.
(i) Expenses. The Company and the Investors shall bear their own expenses and legal fees incurred on their behalf with respect to this Agreement and the transactions contemplated hereby, except as otherwise provided in Section 7.
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(j) Amendments and Waivers. Provisions of this Agreement may be amended and the observance thereof may be waived (either generally or in a particular instance and either retroactively or prospectively) only if such amendment or waiver is in writing and signed, in the case of an amendment, by the Company and the holders of at least a majority of the Registrable Securities then outstanding or, in the case of a waiver, by the party against whom the waiver is to be effective. Any amendment or waiver effected in accordance with this Section 14(j) shall be binding upon each holder of any Registrable Securities at the time outstanding (including securities convertible into Registrable Securities), each future holder of all such Registrable Securities and the Company. No such amendment shall be effective to the extent that it applies to less than all of the Investors or holders of Registrable Securities. Notwithstanding the foregoing, each of KCP Holdings Limited and the Company agree to amend and restate this Agreement within thirty (30) days of the date hereof solely for the purpose of including as “Purchasers” hereunder such other investors that have been discussed between KCP Holdings Limited and the Company prior to the date hereof and that invest in the Company pursuant to a securities purchase agreement substantially similar to the Securities Purchase Agreement within thirty (30) days of the date hereof.
(k) Execution in Counterparts. For the convenience of the Parties and to facilitate execution, this Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.
(l) Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the Parties hereto shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the Parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
(m) Binding Effect. This Agreement shall inure to the benefit of, and be binding upon, each of the Parties and their respective heirs, successors and permitted assigns.
(n) Interpretation.
(i) When a reference is made in this Agreement to an Article, Section, Schedule or Exhibit, such reference shall be to an Article, Section, Schedule or Exhibit of this Agreement unless otherwise indicated.
(ii) Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.”
(iii) The words “hereof,” “herein,” and “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole (including all of the Schedules and Exhibits) and not to any particular provision of this Agreement.
(iv) Unless otherwise specified in this Agreement, the term “dollars” and the symbol “$” mean U.S. dollars for purposes of this Agreement and all amounts in this Agreement shall be paid in U.S. dollars.
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(v) The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term.
(vi) Any agreement, instrument or statute defined or referred to in this Agreement means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes. Except as otherwise specifically provided herein, all references in this Agreement to any Law shall include such Law and the rules and regulations promulgated thereunder and shall also include, unless the context otherwise requires, all applicable guidelines, bulletins or policies made in connection therewith.
(vii) Each of the Parties has participated in the drafting and negotiation of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if it is drafted by each of the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of authorship of any of the provisions of this Agreement.
(viii) The term “Company” means the Company and its predecessors and successors.
[Signature pages follow.]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
| TRILLER GROUP INC. | |||
| By: | |||
| Name: | Shu Pei Huang, Desmond | ||
| Title: | Acting Chief Financial Officer | ||
[Signature Page to Registration Rights Agreement]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
| KCP HOLDINGS LIMITED | |||
| By: | |||
| Name: | Roger C. Kennedy | ||
| Title: | Director | ||
| Address for Notice to Purchaser: | ||
| KCP Holdings Limited | ||
| 71 Fort St., 3rd Floor | ||
| George Town, Cayman Islands KY1-1111 | ||
| Attention: | Roger C. Kennedy | |
| Email: | roger.kennedy@kcplim.com | |
| with a copy to (which shall not constitute notice): | ||
| Sullivan & Cromwell LLP | ||
| 125 Broad St. | ||
| New York, NY 10004 | ||
| Attention: | Ari Blaut | |
| Lee C. Parnes | ||
| Email: | blauta@sullcrom.com | |
| parnesl@sullcrom.com | ||
[Signature Page to Registration Rights Agreement]
Exhibit 10.3
EXECUTION VERSION
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this “Agreement”) is made as of January 24, 2025 by and between Triller Group Inc., a Delaware corporation (the “Company”), and Roger C. Kennedy (the “Indemnitee”), a director of the Company.
WHEREAS, the Indemnitee has agreed to serve as a director of the Company and in such capacity will render valuable services to the Company;
WHEREAS, in order to induce and encourage highly experienced and capable persons such as the Indemnitee to serve as directors and officers of the Company, the board of directors of the Company (the “Board”) has determined that it is reasonably prudent and necessary for the Company contractually to obligate itself to indemnify, and to advance expenses on behalf of, such persons; and
NOW, THEREFORE, in consideration of the premises and mutual agreements hereinafter set forth, and other good and valuable consideration, including, without limitation, the service of the Indemnitee, the receipt of which hereby is acknowledged, and in order to induce the Indemnitee to serve, or continue to serve, as a director of the Company, the Company and the Indemnitee hereby agree as follows:
1 Definitions. As used in this Agreement:
(a) A “Change in Control” occurs upon the earliest to occur after the date of this Agreement of any of the following events:
(i) Acquisition of Shares by Third Party. Any Person (as defined below) is or becomes the Beneficial Owner (as defined below), directly or indirectly, of equity securities of the Company representing fifteen percent (15%) or more of the combined voting power or the combined economic ownership of the Company’s then outstanding equity securities unless the change in relative beneficial ownership of the Company’s equity securities by any Person results solely from a reduction in the aggregate number of outstanding shares of equity securities entitled to vote generally in the election of directors;
(ii) Change in Board of Directors. During any period of two (2) consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in Sections 1(a)(i), 1(a)(iii) or 1(a)(iv)) whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the members of the Board;
(iii) Corporate Transactions. The effective date of a merger or consolidation of the Company with any other entity, other than a merger or consolidation which would result in the equity securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power or the combined economic ownership of the equity securities of the surviving entity outstanding immediately after such merger or consolidation or with the power to elect at least a majority of the board of directors or other governing body of such surviving entity;
(iv) Liquidation. The approval by the stockholders of the Company of a complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; and
(v) Other Events. There occurs any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any similar item on any similar schedule or form) promulgated under the Exchange Act (as defined below), whether or not the Company is then subject to such reporting requirement.
(b) “Beneficial Owner” has the meaning given to such term in Rule 13d-3 under the Exchange Act; provided, however, that Beneficial Owner excludes any Person otherwise becoming a Beneficial Owner by reason of the stockholders of the Company approving a merger of the Company with another entity.
(c) “Disinterested Director” with respect to any request by the Indemnitee for indemnification or advancement of expenses hereunder shall mean a director of the Company who neither is nor was a party to the Proceeding (as defined below) in respect of which indemnification or advancement is being sought by the Indemnitee.
(d) “DGCL” means the General Corporation Law of the State of Delaware, as amended from time to time;
(e) “Exchange Act” means the United States Securities Exchange Act of 1934, as amended from time to time.
(f) “Expenses” shall mean any expense, liability or loss, including, without limitation, damages, judgments, fines, penalties, settlements and costs, attorneys’ fees and disbursements and costs of attachment or similar bond, investigations, liabilities, losses, taxes, any expense paid or incurred in connection with investigating, defending, being a witness in, participating in (including on appeal), or preparing for any of the foregoing in, any Proceeding, and any taxes, interests, assessments or other charges imposed as a result of the actual or deemed receipt of any payment under this Agreement.
(g) “Independent Legal Counsel” shall mean any firm of attorneys, selected in accordance with the terms of Section 5(b), so long as such firm is not presently representing and has not in the preceding five (5) years represented the Company, the Company’s subsidiaries or affiliates, the Indemnitee, any entity controlled by the Indemnitee, or any party adverse to the Company in any matter material to any such party (other than with respect to matters concerning the Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements). Notwithstanding the foregoing, the term “Independent Legal Counsel” shall not include any person who, under applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or the Indemnitee in an action to determine the Indemnitee’s right to indemnification or advancement of expenses under this Agreement, the Company’s Certificate of Incorporation (the “Charter”), which became effective as of October 15, 2024, or the Company’s bylaws (the “Bylaws”), in each case, as the same may be amended from time to time.
(h) “Person” has the meaning as set forth in Sections 13(d) and 14(d) of the Exchange Act; provided, however, that Person excludes (i) the Company, (ii) any trustee or other fiduciary holding securities under an employee benefit plan of the Company, and (iii) any corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of shares of the Company.
(i) “Proceeding” shall mean any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, hearing or any other proceeding (including, without limitation, an appeal therefrom), formal or informal, whether brought in the name of the Company or otherwise, whether of a civil, criminal, administrative or investigative nature, and whether by, in or involving a court or an administrative, other governmental or private entity or body (including, without limitation, an investigation by the Company or its Board), in which the Indemnitee was, is or will be involved as a party or otherwise, by reason of (i) the fact that the Indemnitee is or was a director (or a director appointee) or an executive officer of the Company, or is or was serving at the request of the Company as an agent of another enterprise, (ii) any actual, alleged or suspected act or omission or neglect or breach of duty or other obligation, including, without limitation, any actual, alleged or suspected error or misstatement or misleading statement, which the Indemnitee commits or suffers while acting in Indemnitee’s capacity as a director (or director appointee) or executive officer of the Company or any other entity or enterprise for which the Indemnitee was serving at the request of the Company as an agent thereof, (iii) any business, transaction, communication, filing, disclosure or other activity of the Company or any other entity or enterprise for which the Indemnitee was serving at the request of the Company as an agent thereof, (iv) the Indemnitee attempting to establish or establishing a right to indemnification or advancement of expenses pursuant to this Agreement, the Charter, the Bylaws, applicable law or otherwise or (v) the Indemnitee attempting to establish or establishing a right to recovery under any directors’ and officers’ liability insurance policies maintained by the Company, in each case of the foregoing (i) through (v), whether or not the Indemnitee is acting or serving in any such capacity at the time any Expense is incurred for which indemnification is provided under this Agreement.
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(j) The phrase “serving at the request of the Company as an agent of another enterprise” or any similar terminology shall mean, unless the context otherwise requires, serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit or welfare plan or other enterprise, foreign or domestic. The phrase “serving at the request of the Company” shall include, without limitation, any service as a director or an executive officer of the Company which imposes duties on, or involves services by, such director or executive officer with respect to the Company or any of the Company’s subsidiaries, affiliates, employee benefit or welfare plans, such plan’s participants or beneficiaries or any other enterprise, foreign or domestic. In the event that the Indemnitee shall be a director, officer, employee or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit or welfare plan or other enterprise, foreign or domestic, 50% or more of the ordinary shares, combined voting power or total equity interest of which is owned by the Company or any subsidiary or affiliate thereof, then it shall be presumed conclusively that the Indemnitee is so acting at the request of the Company.
2 Indemnification. Subject always to Section 6 below, the Company hereby agrees to hold harmless, defend and indemnify the Indemnitee to the fullest extent permitted by applicable law, the Charter and the Bylaws, in each case, as such may be amended from time to time in accordance with Section 17 of this Agreement. In furtherance of the foregoing indemnification and without limiting the generality thereof:
(a) Proceedings. The Company shall indemnify the Indemnitee against all Expenses if the Indemnitee is a party to, or threatened to be made a party to, or is otherwise involved in, any Proceeding, including any Proceeding by or in the right of the Company.
(b) Indemnification for Expenses of Witness. Notwithstanding any other provision of this Agreement, to the extent that the Indemnitee has prepared to serve or has served as a witness or is made to respond to discovery requests in any Proceeding to which the Indemnitee is not a party, the Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by the Indemnitee in connection therewith, in each case, to the maximum extent permitted by the Charter and the Bylaws.
(c) Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of Expenses incurred in connection with any Proceedings, but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion of such Expenses to which Indemnitee is entitled, in each case, to the maximum extent permitted by the Charter and the Bylaws.
(d) Successful Claims. To the extent that Indemnitee shall have been successful on the merits or otherwise in defense of any Proceeding, or any portion thereof, or in defense of any issue or matter therein, including, without limitation, dismissal without prejudice, Indemnitee shall be indemnified against all Expenses relating to, arising out of or resulting from such Proceeding, without any further determination under Section 6.
3 Contribution. If the indemnification provided in Section 2 above is unavailable to Indemnitee for any reason (other than those set forth in Section 6) in connection with a Proceeding, the Company, in lieu of indemnifying Indemnitee thereunder, shall, to the maximum extent permitted by the Charter and the Bylaws, contribute to the amount of Expenses paid or payable by the Indemnitee in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (a) the relative benefits received by the Company and the Indemnitee and/or (b) the relative fault of the Company, the Company’s employees and other directors and such Indemnitee, in each case, in connection with the transaction or events from which such Proceeding arose. The relative fault of the Company, the Company’s employees and other directors and the Indemnitee shall be determined by reference to, among other things, the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent the circumstances resulting in such Expenses.
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4 Advancement of Expenses. The Expenses incurred by the Indemnitee in any Proceeding shall be paid by the Company in accordance with the terms of this Section 4 in advance of the final disposition of the Proceeding at the written request of the Indemnitee to the fullest extent permitted by applicable law; provided, however, that the Indemnitee shall set forth in such request: (a) an undertaking in writing to repay any advances if it is ultimately determined as provided in Section 5(c) that the Indemnitee is not entitled to indemnification under this Agreement, the Charter, the Bylaws or applicable law; and (b) (if so requested in writing by the Company) reasonable evidence that such Expenses have been incurred by the Indemnitee in connection with such Proceeding. Advances will be unsecured and interest free. Indemnitee shall qualify for such advances upon the execution of this Agreement without any further undertaking. Within five business days after any request by Indemnitee for Expenses to be paid, advanced or reimbursed hereunder, the Company shall, in accordance with such request (but without duplication), (i) pay such Expenses on behalf of Indemnitee, (ii) advance to Indemnitee funds in an amount sufficient to pay such Expenses, or (iii) reimburse Indemnitee for such Expenses. For clarity, the Company shall promptly pay, advance or reimburse any expenses of the Indemnitee in order to enforce its right to indemnification under this Agreement in accordance with the terms of Section 2.
5 Indemnification Procedure; Determination of Right to Indemnification.
(a) As soon as reasonably practicable after receipt by the Indemnitee of notice of the commencement of any Proceeding, the Indemnitee shall, if a claim for indemnification in respect thereof is to be made against the Company under this Agreement, notify the Company of the commencement thereof in a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification. The omission to so notify the Company will not relieve the Company from any liability which the Company may have to the Indemnitee under this Agreement unless the Company shall have lost significant substantive or procedural rights with respect to the defense of any Proceeding as a result of such omission to so notify.
(b) The Indemnitee shall be conclusively presumed to be entitled to indemnification under this Agreement unless a determination is made that the Indemnitee is not entitled to indemnification under this Agreement, the Charter, the Bylaws or applicable law by one of the following two methods, which method, if there has not been a Change in Control, shall be: (i) by a majority vote of the Board of a quorum consisting of Disinterested Directors or (ii) if a quorum of the Board consisting of Disinterested Directors is not obtainable or, even if obtainable, said Disinterested Directors so direct, by Independent Legal Counsel (selected by such Disinterested Directors or by the Board if a quorum of Disinterested Directors is not obtainable, and, in each case, reasonably approved by the Indemnitee) in a written opinion to the Board, a copy of which shall be delivered to the Indemnitee. If a Change in Control shall have occurred and the Indemnitee so requests in writing, such determination shall be made only by Independent Legal Counsel (selected by the Indemnitee and reasonably approved by a quorum of Disinterested Directors or, if such a quorum is not obtainable, by the Board) in the manner set forth in this subsection. The Company shall abide by the determination of the Independent Legal Counsel and pay the reasonable fees of the Independent Legal Counsel incurred in connection with making any such determination.
(c) If (i) a determination is made that the Indemnitee is not entitled to indemnification under this Agreement or (ii) a claim for indemnification or advancement of Expenses under this Agreement is not paid by the Company within thirty (30) days after receipt by the Company of written notice thereof, the Indemnitee is entitled to an adjudication in any court of competent jurisdiction. Such judicial proceeding shall be made de novo. The burden of proving that indemnification or advances are not appropriate shall be on the Company. Neither the failure of the directors of the Company or Independent Legal Counsel to have made a determination prior to the commencement of such action that indemnification or advancement of Expenses is proper in the circumstances because the Indemnitee has met the applicable standard of conduct, if any, nor an actual determination by the directors of the Company or Independent Legal Counsel that the Indemnitee has not met the applicable standard of conduct, shall be a defense for the benefit of the Company to an action by the Indemnitee or create a presumption for the purpose of such an action that the Indemnitee has not met the applicable standard of conduct. The termination of any Proceeding by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself (A) create a presumption that the Indemnitee did not act in good faith and in a manner which such Indemnitee reasonably believed to be in the best interests of the Company and/or its stockholders, and, with respect to any criminal Proceeding, that the Indemnitee had no reasonable cause to believe that such Indemnitee’s conduct was unlawful or (B) otherwise adversely affect the rights of the Indemnitee to indemnification or advancement of Expenses under this Agreement, except as may be provided herein.
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(d) If a court of competent jurisdiction shall determine that the Indemnitee is entitled to any indemnification or advancement of Expenses hereunder, the Company shall, to the maximum extent permitted by the Charter and the Bylaws, pay all Expenses incurred by the Indemnitee (including, but not limited to, any appellate proceedings). For the avoidance of doubt, nothing in this Section 5(d) shall prejudice or limit Indemnitee’s right to advancement of Expenses in accordance with the terms of Section 4.
(e) With respect to any Proceeding for which indemnification or advancement of Expenses is requested, the Company will be entitled to participate therein at its own expense and, except as otherwise provided below, to the extent that it may wish, the Company may assume the defense thereof at its own expense, with counsel reasonably satisfactory to the Indemnitee. After notice from the Company to the Indemnitee of its election to assume the defense of a Proceeding and selection of counsel reasonably satisfactory to the Indemnitee, the Company will not be liable to the Indemnitee under this Agreement for any Expenses subsequently incurred by the Indemnitee in connection with the defense thereof, other than as provided below. The Company shall not settle any Proceeding in any manner which would impose any penalty or limitation on the Indemnitee, or which would contain an admission of fault by the Indemnitee, without the Indemnitee’s prior written consent. The Indemnitee shall have the right to employ such Indemnitee’s own counsel in any Proceeding, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense of the Proceeding shall be at the expense of the Indemnitee, unless (i) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with an actual or potential conflict, (ii) the named parties in any such Proceeding (including any impleaded parties) include both the Company and Indemnitee, and Indemnitee shall conclude that there may be one or more legal defenses available to such Indemnitee that are different from or in addition to those available to the Company, (iii) any such representation by such counsel would be precluded under the applicable standards of professional conduct then prevailing or (iv) Indemnitee has interests in the claim or underlying subject matter that are different from or in addition to those of other persons against whom the Proceeding has been made or might reasonably be expected to be made. The Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company or as to which the Indemnitee has reasonably concluded that there may be a conflict of interest between the Company and the Indemnitee.
(f) Indemnitee shall reasonably cooperate with the Company in connection with any Proceeding for which indemnification or advancement of Expenses is requested by Indemnitee hereunder.
6 Limitations on Indemnification. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against the Indemnitee:
(a) in connection with any Proceeding initiated and/or brought voluntarily by the Indemnitee and not by way of defense, unless (i) the Board authorized the Proceeding prior to its initiation or (ii) the Proceeding is to enforce indemnification rights under this Agreement, the Charter, the Bylaws, applicable law or otherwise;
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(b) in respect of any conduct for which the Indemnitee: (i) did not act in a manner that the Indemnitee reasonably believed to be in or not opposed to the best interests of the Company; or (ii) in the case of criminal Proceedings, had no reasonable cause to believe was lawful;
(c) for (i) any breach of the Indemnitee’s duty of loyalty to the Company or its stockholders, or (ii) acts or omissions not in good faith or which involve, intentional misconduct or a knowing violation of law; or
(d) if a court of competent jurisdiction finally determines that such indemnification is unlawful.
7 Insurance. To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, or agents or fiduciaries of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that such person serves at the request of the Company, the Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any director, officer, employee, agent or fiduciary under such policy or policies. If, at the time of the receipt of a notice of a Proceeding pursuant to the terms of this Agreement, the Company has directors’ and officers’ insurance in effect, the Company shall give prompt notice of the commencement of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies.
8 No Employment Rights. Nothing in this Agreement is intended to create in the Indemnitee any right to employment or continued employment with the Company.
9 Continuation of Indemnification. All agreements and obligations of the Company contained herein shall continue during the period that the Indemnitee is a director of the Company (or is or was serving at the request of the Company as an agent of another enterprise, foreign or domestic) and shall continue thereafter so long as the Indemnitee shall be subject to any Proceeding by reason of the fact that the Indemnitee is or was a director of the Company or is or was serving in any other capacity referred to in this Section 9. This Agreement shall continue in effect regardless of whether the Indemnitee continues to serve as a director of the Company or as an agent of another enterprise at the Company’s request.
10 Indemnification Hereunder Not Exclusive. The indemnification provided by this Agreement shall not be deemed to be exclusive of any other rights to which the Indemnitee may be entitled under the Charter, the Bylaws, any agreement, vote of stockholders or vote of Disinterested Directors, provisions of applicable law, or otherwise, both as to action or omission in the Indemnitee’s official capacity and as to action or omission in another capacity on behalf of the Company while holding such office.
11 Other Indemnity Agreement. Other than this Agreement, the Company has not entered into as of the date of this Agreement, and shall not enter into following the date of this Agreement, any indemnification agreement or side letter or other similar agreement or arrangement (collectively, an “Indemnity Agreement”), or amend any existing Indemnity Agreement, with any existing or future director/executive officer of the Company that has the effect of establishing rights or otherwise benefiting such director/executive officer in a manner more favorable in any respect than the rights and benefits established in favor of the Indemnitee by this Agreement, unless, in each such case, the Indemnitee is offered the opportunity to receive the rights and benefits of such Indemnity Agreement. All Indemnity Agreements shall be in writing.
12 Assignment; Successors and Assigns. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by either party thereto without the prior written consent of the other party, except that the Company may, without such consent, assign all such rights and obligations to a successor in interest to the Company which assumes all obligations of the Company under this Agreement in a written agreement in form and substance satisfactory to the Indemnitee. Notwithstanding the foregoing, this Agreement shall be binding upon and inure to the benefit of and be enforceable by and against the parties hereto and the Company’s successors (including any direct or indirect successor by purchase, merger, consolidation, or otherwise to all or substantially all of the business and/or assets of the Company) and assigns, as well as the Indemnitee’s spouses, heirs, and personal and legal representatives.
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13 Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee, who shall execute all documents reasonably required and shall do all acts that may be reasonably necessary to secure such rights and to enable the Company effectively to bring suit to enforce such rights.
14 Severability. Each and every section, sentence, term and provision of this Agreement is separate and distinct so that if any section, sentence, term or provision thereof shall be held to be invalid, unlawful or unenforceable for any reason, such invalidity, unlawfulness or unenforceability shall not affect the validity, lawfulness or enforceability of any other section, sentence, term or provision of this Agreement. To the extent required, any section, sentence, term or provision of this Agreement may be modified by a court of competent jurisdiction to preserve its validity and to provide the Indemnitee with the broadest possible indemnification permitted under applicable law. The Company’s inability, pursuant to a court order or decision, to perform its obligations under this Agreement shall not constitute a breach of this Agreement.
15 Savings Clause. If this Agreement or any section, sentence, term or provision of this Agreement is invalidated on any ground by any court of competent jurisdiction, the Company shall nevertheless indemnify the Indemnitee as to any Expenses which are incurred with respect to any Proceeding to the fullest extent permitted by any (a) applicable section, sentence, term or provision of this Agreement that has not been invalidated and (b) applicable law.
16 Interpretation; Governing Law. This Agreement shall be construed as a whole and in accordance with its fair meaning and any ambiguities shall not be construed for or against either party. Headings are for convenience only and shall not be used in construing meaning. This Agreement shall be governed and interpreted in accordance with Delaware laws without regard to the conflict of laws principles thereof. Each of the parties to this Agreement irrevocably agrees that the federal and state courts located in the Borough of Manhattan, City of New York, State of New York shall have exclusive jurisdiction to hear and determine any claim, suit, action or proceeding, and to settle any disputes, which may arise out of or are in any way related to or in connection with this Agreement, and, for such purposes, irrevocably submits to the exclusive jurisdiction of such courts.
17 Amendments. No amendment, waiver, modification, termination or cancellation of this Agreement shall be effective unless in writing signed by the party against whom enforcement is sought or whom is adversely effected by such amendment. The indemnification rights afforded to the Indemnitee hereby are contract rights and may not be diminished, eliminated or otherwise affected by amendments to the Charter, the Bylaws or by other agreements, including directors’ and officers’ liability insurance policies, of the Company.
18 Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each party and delivered to the other.
19 Notices. Any notice required to be given under this Agreement shall be directed to the Company at Triller Group Inc., 7119 West Sunset Blvd., Suite 782, Los Angeles, CA 90046, and to the Indemnitee at or to such other address as the Indemnitee shall designate to the Company in writing.
20 Entire Agreement. This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Indemnification Agreement as of the date first written above.
| TRILLER GROUP INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
| INDEMNITEE | ||
| Name: | ||
| Address: | ||
[Signature Page to Indemnification Agreement]
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Exhibit 99.1
Triller Steals Social Media Spotlight with $50 Million Fundraise
Triller Group Inc. (Nasdaq: ILLR) secures its place as a fierce competitor to TikTok, YouTube Shorts, and Instagram Reels with bold innovations, star power, and continued momentum
Los Angeles, CA, Jan. 29, 2025 (GLOBE NEWSWIRE) -- Triller Group Inc. (“Triller” or “the Company”) is making waves in the technology and investor sectors, announcing a $50 million equity funding round secured through a private placement with institutional investors. This investment fuels Triller’s rapid ascent as the next powerhouse in short-form video platforms, further challenging TikTok’s dominance to become the superior platform for creators, users, and collaborators.
Backed by global icons like Conor McGregor, The Weeknd, Marshmello, Lil Wayne, and many more, Triller surged into the top five in the “Photo and Video” category of app stores, solidifying its status as a rising star in digital entertainment.
Supercharging the Creator Revolution
In addition to enhancing the platform for users, the fundraise enables Triller to accelerate its mission of empowering creators. Triller will unveil cutting-edge AI-driven tools, enhanced live-streaming capabilities, and a revamped video editing suite, providing creators with unmatched opportunities to engage audiences and monetize their content.
“At Triller, we’re not just building a platform—we’re leading a movement,” said Wing Fai Ng, CEO of Triller Group Inc. “Whether TikTok is banned or not has no bearing on our trajectory. With powerhouses like Conor McGregor and other global icons who champion our vision, we’ve created a platform that is designed to outlast TikTok and any other competitor. We’re not building our business around the failure of others; this seismic shift in social media is only the beginning of what’s to come.”
Triller: The New Home for Viral Content
As TikTok faces ongoing challenges and uncertainty, Triller has emerged as the ultimate refuge and frontrunner for displaced influencers and content creators. Triller’s savemytiktoks.com campaign has ushered in waves of creators seeking a U.S.-owned platform free from political and regulatory roadblocks.
Under the new leadership of former TikTok Executive Sean Kim, Triller is redefining the user experience and what it means to create, distribute and monetize content.
BKFC & TrillerTV: Entertainment Frontiers Redefined
Triller isn’t stopping at short-form videos; the Bare-Knuckle Fighting Championship (BKFC) brand reaches over 250 million fans across 60 countries, while TrillerTV is celebrating a decade of streaming success. Upcoming events like Wrestle Kingdom 19 from Tokyo Dome draw millions of viewers and further positions Triller as a multimedia powerhouse.
Triller’s Future: Poised for Dominance in 2025
With the fund raise and these developments underway, Triller is poised to become the premier social media hub in 2025, attracting top talent and ensuring long-term growth and success through its transparent and innovative environment.
Following President Donald Trump’s reelection, Triller Group made a sizeable contribution to the Trump Inaugural Fund, underscoring its dedication to supporting initiatives that resonate with its business values and long-term vision.
Navigating the Ship: Investment and Changes to Triller’s Leadership
Triller Group has also appointed Dr. Roger Kennedy as an non-executive director following a designation by KCP Holdings Limited, the lead investor in this funding round. He will join the board’s audit, remuneration, and nomination committees.
The private placement consisted of common stock and warrants, with the Company’s shares priced at $2.20 each. This funding round is the first new capital infusion following the AGBA-Triller merger, with an additional fundraise expected later this year.
This fundraise is a powerful catalyst for Triller Group’s commitment to innovation and growth. With strong backing from our investors and the star power of icons like Conor McGregor, Triller is gearing up to disrupt the digital content landscape like never before. Together with its team, partners, and creators, Triller is creating a platform where ownership, growth, and meaningful monetization are finally within reach.
For more details, please refer to the Company’s report on Form 8-K filed with the Securities and Exchange Commission on January 29, 2025.
About Triller Group Inc.
Nasdaq: ILLR. Triller Group is a US-based company that operates two main businesses: the newly merged US-based social media operations (Triller Corp.), and the legacy operations of the Company in Hong Kong (“AGBA”).
Triller Corp. is a next generation, AI-powered, social media and live-streaming event platform for creators. Pairing music culture with sports, fashion, entertainment, and influencers through a 360-degree view of content and technology, Triller Corp. uses proprietary AI technology to push and track content virally to affiliated and non-affiliated sites and networks, enabling them to reach millions of additional users. Triller Corp. additionally owns Triller Sports, Bare-Knuckle Fighting Championship (BKFC); Amplify.ai, a leading machine-learning, AI platform; and TrillerTV, a premier global PPV, AVOD, and SVOD streaming service. For more information, visit www.trillercorp.com
Established in 1993, AGBA is a leading, multi-channel business platform that incorporates cutting edge machine-learning and offers a broad set of financial services and healthcare products to consumers through a tech-led ecosystem, enabling clients to unlock the choices that best suit their needs. Trusted by over 400,000 individual and corporate customers, the Group is organized into four market-leading businesses: Platform Business, Distribution Business, Healthcare Business, and Fintech Business. For more information, please visit www.agba.com.
Safe Harbor Statement
This press release contains forward-looking statements as defined by the Private Securities Litigation Reform Act of 1995. Forward-looking statements include statements concerning plans, objectives, goals, strategies, future events or performance, and underlying assumptions and other statements that are other than statements of historical facts. When the Company uses words such as “may,” “will,” “intend,” “should,” “believe,” “expect,” “anticipate,” “project,” “estimate” or similar expressions that do not relate solely to historical matters, it is making forward-looking statements. Forward-looking statements are not guarantees of future performance and involve risks and uncertainties that may cause the actual results to differ materially from the Company’s expectations discussed in the forward-looking statements. These statements are subject to uncertainties and risks including, but not limited to, the following: the Company’s goals and strategies; the Company’s future business development; product and service demand and acceptance; changes in technology; economic conditions; the outcome of any legal proceedings that may be instituted against us following the consummation of the business combination; expectations regarding our strategies and future financial performance, including its future business plans or objectives, prospective performance and opportunities and competitors, revenues, products, pricing, operating expenses, market trends, liquidity, cash flows and uses of cash, capital expenditures, and our ability to invest in growth initiatives and pursue acquisition opportunities; reputation and brand; the impact of competition and pricing; government regulations; fluctuations in general economic and business conditions in Hong Kong and the international markets the Company plans to serve and assumptions underlying or related to any of the foregoing and other risks contained in reports filed by the Company with the SEC, the length and severity of the recent coronavirus outbreak, including its impacts across our business and operations. For these reasons, among others, investors are cautioned not to place undue reliance upon any forward-looking statements in this press release. Additional factors are discussed in the Company’s filings with the SEC, which are available for review at www.sec.gov. The Company undertakes no obligation to publicly revise these forward–looking statements to reflect events or circumstances that arise after the date hereof.
Investor & Media Relations:
Bethany Lai
ir@triller.co
Breanne Fritcher
triller@wachsman.com
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