WF Holding Ltd 6-K, filed Jul 31, 2026
WF Holding Ltd (WFF)
About this 6-K
WF Holding Ltd filed this 6-K on July 31, 2026.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER PURSUANT TO
RULE 13a-16 OR 15d-16
UNDER THE SECURITIES EXCHANGE ACT OF 1934
For the month of: July 2026
Commission File Number: 001-42566
WF HOLDING LIMITED
(Translation of registrant’s name into English)
Lot 3893, Jalan 4D
Kg. Baru Subang
Seksyen U6, 40150 Shah Alam, Selangor, Malaysia
60-378471828
(Address of principal executive office)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.
Form 20-F ☒ Form 40-F ☐
Entry into a Material Definitive Agreement
On July 30, 2026, WF Holding Limited (the “Company”) entered into a standby equity purchase agreement (the “Purchase Agreement”) with an institutional investor (the “Investor”), pursuant to which the Investor has agreed to purchase up to an aggregate of $30,000,000 of the Company’s ordinary shares (the “Commitment Amount”) from time to time over the term of the Purchase Agreement.
In consideration for the Investor’s commitment to purchase ordinary shares under the Purchase Agreement, the Company has agreed to issue 750,000 ordinary shares to the Investor.
Under the terms and subject to the conditions of the Purchase Agreement, the Company has the right, but not the obligation, to sell to the Investor, and the Investor is obligated to purchase, ordinary shares in an amount of up to the Commitment Amount. Sales under the Purchase Agreement will not commence until all of the conditions set forth in the Purchase Agreement have been satisfied, including that the Prospectus Supplement (as defined below) has been filed with the Securities and Exchange Commission (the “SEC”). Thereafter, the Company may, from time to time and at its sole discretion, for a period of twenty-four (24) months from the date of the Purchase Agreement, on any trading day that it selects, provided that the closing price of the ordinary shares is equal to or greater than $0.10, direct the Investor to purchase a minimum of $100,000 and up to a maximum of $3,000,000 of the Company’s ordinary shares, subject to a beneficial ownership limitation equal to 9.99% of the ordinary shares outstanding from time to time.
The Company will control the timing and amount of any sales of ordinary shares to the Investor. The purchase price of the ordinary shares that may be sold to the Investor under the Purchase Agreement will be equal to the lower of (i) $1.01 (equal to 50% of the closing price of the ordinary shares on the Nasdaq Capital Market on the date of the Purchase Agreement) and (ii) 50% of the lowest closing price of the ordinary shares on the Nasdaq Capital Market during the one hundred and eighty (180) trading days immediately preceding the applicable purchase request date, in each case subject to a floor price of $0.10 (subject to adjustment in the event of a share split, share dividend, recapitalization, reorganization or similar transaction).
The Purchase Agreement contains customary representations and warranties, covenants and closing conditions. The Purchase Agreement will automatically terminate on the earliest of (i) the first day of the month next following the 24-month anniversary of the date of the Purchase Agreement or (ii) the date on which the Investor shall have purchased ordinary shares equal to the Commitment Amount. The Purchase Agreement may also be terminated by mutual agreement of the parties. Neither party may assign or transfer its rights and obligations under the Purchase Agreement.
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The ordinary shares issuable to the Investor are being offered by the Company pursuant to an effective shelf registration statement on Form F-3 (File No. 333-296397) (the “Shelf Registration Statement”), which became effective on June 10, 2026, and pursuant to a prospectus supplement filed with the SEC (the “Prospectus Supplement”).
Actual sales of ordinary shares to the Investor will depend on a variety of factors to be determined by the Company from time to time, including, among others, market conditions, the trading price of the ordinary shares and determinations by the Company as to the appropriate sources of funding for the Company and its operations.
This report on Form 6-K shall not constitute an offer to sell or a solicitation of an offer to buy any ordinary shares, nor shall there by any sale of ordinary shares in any state or jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or other jurisdiction.
In connection with the foregoing transactions, on July 30, 2026, the Company entered into a placement agency agreement (the “Placement Agency Agreement”) with Univest Securities, LLC (the “Placement Agent”), pursuant to which the Placement Agent agreed to act as the Company’s exclusive placement agent in connection with the Purchase Agreement. Pursuant to the Placement Agency Agreement, the Placement Agent is entitled to (i) a cash fee equal to five percent (5%) of the aggregate gross proceeds received under the Purchase Agreement and (ii) reimbursement of reasonable travel and out-of-pocket expenses, including legal counsel fees and disbursements, in an amount not to exceed an aggregate of $50,000, subject to compliance with FINRA Rule 5110(f)(2)(D).
Pursuant to the Placement Agency Agreement, the Company has agreed to grant the Placement Agent, for a period of twelve (12) months from the date of the Placement Agency Agreement, a right of first refusal to provide investment banking services to the Company. For these purposes, investment banking services shall include, without limitation, acting as lead manager for any underwritten public offering, acting as placement agent, initial purchaser or financial advisor in connection with any private offering of securities, and acting as financial advisor in connection with any sale or other transfer, directly or indirectly, of a majority of the shares or assets of the Company to another entity, any purchase or other transfer by another entity, directly or indirectly, of a majority of the shares or assets of the Company, and any merger or consolidation of the Company with another entity. For the avoidance of doubt, the foregoing right of first refusal shall not apply to (i) any financing transaction where the Company deals directly with the lender or investor without using any intermediary, (ii) any employee benefit or compensation-related issuance, or (iii) any acquisition-related issuance of securities as consideration without the intention of financing. Such right of first refusal is also subject to FINRA Rule 5110(g), which grants the Company a right of termination for cause, which includes that the Company may terminate the Placement Agent’s engagement upon the Placement Agent’s material failure to provide the services required by the Placement Agency Agreement.
The foregoing description of the Purchase Agreement, the Placement Agency Agreement and the transactions contemplated thereby do not purport to be complete and are qualified in their entirety by reference to the full text of the Purchase Agreement and the Placement Agency Agreement, which are filed as Exhibit 10.1 and 10.2 hereto, respectively, and incorporated herein by reference.
Incorporation by Reference
The information contained in this report on Form 6-K is hereby incorporated by reference into the Shelf Registration Statement and shall be a part thereof from the date on which this report is furnished, to the extent not superseded by documents or reports subsequently filed or furnished.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| Date: July 31, 2026 | WF HOLDING LIMITED | |
| /s/ Leah Siang Ling | ||
| Name: | Leah Siang Ling | |
| Title: | Co-Chief Executive Officer | |
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EXHIBIT INDEX
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Exhibit 5.1
| WF Holding Limited | D | +852 3656 6054 | |
| E | nathan.powell@ogier.com | ||
| D | +852 3656 6023 | ||
| E | janice.chu@ogier.com | ||
| Reference: JTC/SWL/517669.00001 | |||
31 July 2026
Dear Sirs
WF Holding Limited (the Company)
We have acted as Cayman Islands counsel to the Company in connection with the Company’s prospectus supplement dated 31 July 2026 and accompanying prospectus dated 10 June 2026 forming part of the Company’s registration statement on Form F-3, including all amendments or supplements thereto (the Registration Statement) filed by the Company with the United States Securities and Exchange Commission (the Commission) under the United States Securities Act 1933, as amended (the Securities Act) on or about the date hereof. The prospectus supplement relates to the proposed offering and sale by the Company to Javelin Global Investors Limited (the Investor) of (i) up to an aggregate of US$30,000,000 of the Company’s ordinary shares of US$0.00025 par value each (the Purchase Shares) from time to time pursuant to the Standby Equity Purchase Agreement dated 30 July 2026 entered into between the Company and the Investor (the Purchase Agreement) and (ii) 750,000 ordinary shares of US$0.00025 par value each to be issued to the Investor as commitment shares pursuant to the Purchase Agreement (the Commitment Shares, and together with the Purchase Shares, the Ordinary Shares) (the Offering).
Unless a contrary intention appears, all capitalised terms used in this opinion have the respective meanings set forth in the Documents (as defined below). The headings herein are for convenience only and do not affect the construction of this opinion.
| 1 | Documents examined |
For the purposes of giving this opinion, we have examined originals, copies, or drafts of the following documents (the Documents):
| (a) | the certificate of incorporation of the Company dated 7 March 2023 issued by the Registrar of Companies of the Cayman Islands (the Registrar); |
| (b) | the amended and restated memorandum and articles of association of the Company adopted by special resolution passed on 5 September 2024; |
|
Ogier Providing advice on British Virgin Islands,
Floor 11 Central Tower 28 Queen’s Road Central Central Hong Kong
T +852 3656 6000 F +852 3656 6001 ogier.com |
Partners Nicholas Plowman Nathan Powell Anthony Oakes Oliver Payne Kate Hodson David Nelson Joanne Collett Dennis Li Cecilia Li |
Yuki Yan David Lin Alan Wong Janice Chu Zhao Rong Ooi Rachel Huang** Florence Chan*‡ Richard Bennett**‡ James Bergstrom‡ |
* admitted in New Zealand ** admitted in England and Wales ‡ not ordinarily resident in Hong Kong |
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| (c) | the second amended and restated memorandum and articles of association of the Company adopted by a special resolution passed on 10 July 2026 (together with item (b), the Memorandum and Articles); |
| (d) | a certificate of good standing dated 28 July 2026 (the Good Standing Certificate) issued by the Registrar in respect of the Company; |
| (e) | a copy of the register of directors and officers of the Company as provided to us on 28 July 2026 (the ROD); |
| (f) | copies of the listed shareholder list of the Company in respect of Ordinary Shares and Class A Ordinary Shares (as defined below) as provided to us on 30 July 2026 (the ROM, and together with the ROD, the Registers); |
| (g) | the Registration Statement, including the prospectus supplement dated 31 July 2026 and accompanying prospectus dated 10 June 2026; |
| (h) | the Purchase Agreement; |
| (i) | a copy of the written resolutions of all of the directors of the Company dated 30 July 2026 approving among others; the Company’s filing of the Registration Statement, the Company’s entry into and performance of the Purchase Agreement and the issuance and sale of the Purchase Shares and the Commitment Shares (the Board Resolutions); |
| (j) | a certificate dated 30 July 2026 as to certain matters of fact signed by a director of the Company (the Director’s Certificate). |
| 2 | Assumptions |
In giving this opinion we have relied upon the assumptions set forth in this paragraph 2 without having carried out any independent investigation or verification in respect of those assumptions:
| (a) | all original documents examined by us are authentic and complete; |
| (b) | all copy documents examined by us (whether in facsimile, electronic or other form) conform to the originals and those originals are authentic and complete; |
| (c) | all signatures, seals, dates, stamps and markings (whether on original or copy documents) are genuine; |
| (d) | each of the Good Standing Certificate, the Registers and the Director’s Certificate is accurate and complete as at the date of this opinion; |
| (e) | the Memorandum and Articles provided to us are in full force and effect at relevant time and have not been amended, varied, supplemented or revoked in any respect; |
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| (f) | all copies of the Registration Statement and the Purchase Agreement are true and correct copies and the Registration Statement and the Purchase Agreement conform in every material respect to the latest drafts of the same produced to us and, where the Registration Statement and Purchase Agreement has been provided to us in successive drafts marked-up to indicate changes to such documents, all such changes have been so indicated; |
| (g) | the Board Resolutions remain in full force and effect and have not been, and will not be, rescinded or amended, and each of the directors of the Company has acted in good faith with a view to the best interests of the Company and has exercised the standard of care, diligence and skill that is required of him or her in approving the Offering, the Purchase Agreement and the transactions set out in the Board Resolutions and no director has a financial interest in or other relationship to a party of the transactions contemplated by the Offering, the Purchase Agreement and the Board Resolutions which has not been properly disclosed in the Board Resolutions; |
| (h) | neither the directors and shareholders of the Company have taken or will take any steps to wind up the Company or to appoint a liquidator or restructuring officer of the Company, and no receiver has been or will be appointed over any of the Company’s property or assets; |
| (i) | the Company will issue the Ordinary Shares in accordance with the terms of the Purchase Agreement and in furtherance of its objects as set out in its Memorandum; |
| (j) | the Company will have sufficient authorized but unissued share capital to effect the issue of the Purchase Shares and the Commitment Shares at any time of issuance; |
| (k) | all parties other than the Company have the capacity, power and authority to enter into and perform their obligations under all documents entered into by such parties in connection with the issuance of the Ordinary Shares, and the due execution and delivery thereof by each party thereto have been duly authorised; |
| (l) | no invitation has been or will be made by or on behalf of the Company to the public in the Cayman Islands to subscribe for any Ordinary Shares and none of the Ordinary Shares have been offered or issued to residents of the Cayman Islands; |
| (m) | upon the issue of any Ordinary Shares, the Company will receive consideration for the full issue price thereof in accordance with the Purchase Agreement, which shall be equal to at least the par value thereof; |
| (n) | the Company is, and after the issuance (where applicable) of the Ordinary Shares, will be able to pay its liabilities as they fall due; and |
| (o) | there is no provision of the law of any jurisdiction, other than the Cayman Islands, which would have any implication in relation to the opinions expressed herein. |
| 3 | Opinions |
On the basis of the examinations and assumptions referred to above and subject to the limitations and qualifications set forth in paragraph 4 below, we are of the opinion that:
Corporate status
| (a) | The Company has been duly incorporated as an exempted company with limited liability and is validly existing and in good standing with the Registrar under the laws of the Cayman Islands. |
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Authorised Share capital
| (b) | The authorised share capital of the Company is US$25,000,000,000 divided into 90,000,000,000,000 ordinary shares of par value of US$0.00025 each (the Ordinary Shares) and 10,000,000,000,000 Class A ordinary shares of a par value of US$0.00025 each (the Class A Ordinary Shares). |
Corporate Authorisation
| (c) | The Company has taken all requisite corporate action to authorise its entry into, execution and delivery of the Purchase Agreement and the issuance and sale of the Purchase Shares and the Commitment Shares pursuant to the Purchase Agreement and the Registration Statement. |
Ordinary Shares
| (d) | The Purchase Shares, when issued and allotted by the Company against payment in full of the consideration therefor in accordance with the terms of the Purchase Agreement, the Registration Statement and the Board Resolutions, and when valid entry has been made in the register of members of the Company reflecting such issuance of Purchase Shares as fully paid shares, will be recognised as having been duly authorised and validly issued, fully paid and non-assessable. |
| (e) | The Commitment Shares, when issued and allotted by the Company in accordance with the terms of the Purchase Agreement, the Registration Statement and the Board Resolutions, and when valid entry has been made in the register of members of the Company reflecting such issuance of Commitment Shares as fully paid shares, will be recognised as having been duly authorised and validly issued, fully paid and non-assessable. |
| 4 | Limitations and Qualifications |
| 4.1 | We offer no opinion: |
| (a) | as to any laws other than the laws of the Cayman Islands, and we have not, for the purposes of this opinion, made any investigation of the laws of any other jurisdiction, and we express no opinion as to the meaning, validity, or effect of references in the Registration Statement to statutes, rules, regulations, codes or judicial authority of any jurisdiction other than the Cayman Islands; |
| (b) | except to the extent that this opinion expressly provides otherwise, as to the commercial terms of, or the validity, enforceability or effect of the Registration Statement or the Purchase Agreement, the accuracy of representations, the fulfilment of warranties or conditions, the occurrence of events of default or terminating events or the existence of any conflicts or inconsistencies among the Registration Statement, the Purchase Agreement and any other agreements into which the Company may have entered or any other documents; or |
| (c) | as to whether the acceptance execution or performance of the Company’s obligations under the Registration Statement, the Purchase Agreement or Documents will result in the breach of or infringe any other agreement, deed or document (other than the Company’s Memorandum and Articles) entered into by or binding on the Company. |
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| 4.2 | Under the Companies Act (Revised) (the Companies Act) of the Cayman Islands annual returns in respect of the Company must be filed with the Registrar, together with payment of annual filing fees. A failure to file annual returns and pay annual filing fees may result in the Company being struck off the Register of Companies, following which its assets will vest in the Financial Secretary of the Cayman Islands and will be subject to disposition or retention for the benefit of the public of the Cayman Islands. |
| 4.3 | In good standing means only that as of the date of this opinion the Company is up-to-date with the filing of its annual returns and payment of annual fees with the Registrar. We have made no enquiries into the Company’s good standing with respect to any filings or payment of fees, or both, that it may be required to make under the laws of the Cayman Islands other than the Companies Act. |
| 5 | Governing law of this opinion |
| 5.1 | This opinion is: |
| (a) | governed by, and shall be construed in accordance with, the laws of the Cayman Islands; |
| (b) | limited to the matters expressly stated in it; and |
| (c) | confined to, and given on the basis of, the laws and practice in the Cayman Islands at the date of this opinion. |
| 5.2 | Unless otherwise indicated, a reference to any specific Cayman Islands legislation is a reference to that legislation as amended to, and as in force at, the date of this opinion. |
| 6 | Consent |
We hereby consent to the filing of this opinion as an exhibit to a Form 6-K to be filed with the Commission on the date hereof and also consent to the reference to our firm under the headings “Cayman Islands Taxation” and “Legal Matters” of the Registration Statement and the prospectus supplement forming part of the Registration Statement.
This opinion may be used only in connection with the offer and sale of the Purchase Shares and the Commitment Shares and while the Registration Statement is effective.
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Yours faithfully
/s/ Ogier
Ogier
Exhibit 10.1
STANDBY EQUITY PURCHASE AGREEMENT
THIS STANDBY EQUITY PURCHASE AGREEMENT (this “Agreement”) dated as of July 30, 2026 is made by and between Javelin Global Investors Limited, a British Virgin Islands company (the “Investor”), and WF Holding Limited, a Cayman Islands exempted company (the “Company”).
BACKGROUND
WHEREAS, the parties desire that, upon the terms and subject to the conditions contained herein, the Company shall have the right to issue and sell to the Investor, from time to time as provided herein, and the Investor shall purchase from the Company, up to $30,000,000 of the Company’s ordinary shares, $0.00025 par value (the “Ordinary Shares”);
WHEREAS, the Ordinary Shares are listed for trading on the Nasdaq Capital Market under the symbol “WFF;” and
WHEREAS, the offer and sale of the Ordinary Shares issuable hereunder will be registered on the Company’s registration statement on Form F-3 (File No. 333-296397) under Section 5 under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the “Securities Act”).
AGREEMENT
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
Certain Definitions
Section 1.01. Definitions. In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms have the meanings set forth in this Article I:
“Advance Notice” shall mean a written notice substantially in the form of Exhibit A attached hereto to the Investor executed by an officer of the Company and setting forth the amount of an Advance that the Company desires to issue and sell to the Investor.
“Advance Notice Date” shall mean each date the Company delivers (in accordance with Section 2.01(e) of this Agreement) to the Investor an Advance Notice, subject to the terms of this Agreement.
“Advance Shares” shall mean the number of Ordinary Shares that the Company desires to issue and sell to the Investor as requested by the Company in an Advance Notice.
“Advances” shall mean any issuance and sale from the Company to the Investor pursuant to Article II hereof.
“Applicable Laws” shall mean all applicable laws, statutes, rules, regulations, orders, executive orders, directives, policies, guidelines and codes having the force of law, whether local, national, or international, as amended from time to time, including without limitation (i) all applicable laws that relate to money laundering, terrorist financing, financial record keeping and reporting, (ii) all applicable laws that relate to anti-bribery, anti-corruption, books and records and internal controls, including the United States Foreign Corrupt Practices Act of 1977, and (iii) any laws relating to sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Asset Control (“OFAC”), the U.S. State Department, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority.
“Commitment Amount” shall mean $30,000,000 of Advance Shares.
“Commitment Period” shall mean the period commencing on the date hereof and expiring upon the date of termination of this Agreement in accordance with Section 7.01.
“Environmental Laws” shall mean all applicable federal, state and local laws relating to pollution or protection of human health or the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata), including, without limitation, laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, as well as all authorizations, codes, decrees, demands or demand letters, injunctions, judgments, licenses, notices or notice letters, orders, permits, plans or regulations issued, entered, promulgated or approved thereunder.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Floor Price” shall mean $0.10 per Advance Share, which shall be adjusted for any reorganization, recapitalization, share dividend, share split or other similar transaction.
“Material Adverse Effect” shall mean any event, occurrence or condition that has had or would reasonably be expected to have (i) a material adverse effect on the legality, validity or enforceability of this Agreement or the transactions contemplated herein, (ii) a material adverse effect on the results of operations, assets, business or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a whole, or (iii) a material adverse effect on the Company’s ability to perform in any material respect on a timely basis its obligations under this Agreement.
“Maximum Purchase Amount” means, with respect to any Advance, the lesser of (i) $3,000,000.00 and (ii) the unused portion of the Commitment Amount.
“Minimum Purchase Amount” means $100,000.00; provided that, if the unused portion of the Commitment Amount is less than such amount, the Minimum Purchase Amount shall equal such unused portion.
“Person” shall mean an individual, a corporation, a partnership, a limited liability company, a trust or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
“Principal Market” means any of the following markets or exchanges on which the Ordinary Shares are listed or quoted for trading on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange (or any successors to any of the foregoing).
“Prospectus” means any prospectus (including, without limitation, all amendments and supplements thereto) used in connection with the Registration Statement.
“Purchase Price” shall mean the lower of: (i) 50% of the closing price of the Ordinary Shares on the Principal Market on the date of this Agreement and (ii) 50% of the lowest closing price of the Ordinary Shares on the Principal Market during the one hundred and eighty (180) Trading Days immediately preceding the applicable Advance Notice Date, in each case rounded down to the nearest two (2) decimal places; provided that in no event shall the Purchase Price be less than the Floor Price.
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“Restricted Issuance” means the issuance, incurrence or guaranty of any debt obligations (including any merchant cash advance, account receivable factoring or other similar agreement), other than trade payables in the ordinary course of business, or the issuance of any securities that (i) have or may have conversion rights of any kind, contingent, conditional or otherwise, in which the number of shares that may be issued pursuant to such conversion right varies with the market price of the Ordinary Shares; (ii) are or may become convertible into Ordinary Shares (including without limitation convertible debt, warrants or convertible preferred shares), with a conversion price that varies with the market price of the Ordinary Shares, even if such security only becomes convertible following an event of default, the passage of time, or another trigger event or condition; (iii) have a fixed conversion price, exercise price or exchange price that is subject to being reset at some future date at any time after the initial issuance of such debt or equity security (a) due to a change in the market price of Company’s Ordinary Shares since the date of the initial issuance or (b) upon the occurrence of specified or contingent events directly or indirectly related to the business of Company (including, without limitation, any “full ratchet” or “weighted average” anti-dilution provisions, but not including any standard anti-dilution protection for any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction), or such debt security contains a fixed conversion price with a provision to increase the outstanding balance upon a breach or default; or (iv) are issued or will be issued in connection with a Section 3(a)(9) exchange, a Section 3(a)(10) settlement, or any other similar settlement or exchange. For the avoidance of doubt, Ordinary Shares issued pursuant to any of the following will not be considered Restricted Issuances: (i) primary offerings after three (3) months following the initial Closing; (ii) issuances to non-US persons; and (iii) the issuance of Ordinary Shares in conjunction with acquisitions provided that such issuances do not cause a change of control or have variable price mechanisms.
“SEC” shall mean the U.S. Securities and Exchange Commission.
“Securities” shall mean the Commitment Fee Shares and the Advance Shares to be issued from time to time hereunder pursuant to an Advance.
“Subsidiary” shall mean any Person in which the Company, directly or indirectly, (i) owns a majority of the outstanding capital stock or holds a majority equity or similar interest of such Person or (ii) controls or operates all or substantially all of the business, operations or administration of such Person.
“Trading Day” shall mean any day during which the Principal Market shall be open for business.
“Transaction Documents” shall mean, collectively, this Agreement and each of the other agreements and instruments entered into or delivered by any of the parties hereto in connection with the transactions contemplated hereby and thereby, as may be amended from time to time.
ARTICLE II
Advances
Section 2.01. Advances; Mechanics. Subject to the terms and conditions of this Agreement, the Company, at its sole and exclusive option, shall have the right, but not the obligation, to issue and sell to the Investor, and the Investor shall purchase from the Company, Advance Shares on the following terms:
(a) Prepayment. Within five (5) Trading Days of the date of this Agreement, the Investor shall pay $3,000,000.00 to the Company via wire transfer of immediately available funds (the “Pre-Paid Credit”), which shall be applied towards the Advances as set forth below, provided, however, that the Investor shall not be required to fund the Pre-Paid Credit unless and until the Company has delivered the documents and satisfied the conditions set forth in Section 2.03.
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(b) Advance Notice. At any time during the Commitment Period (provided that the Pre-Paid Credit has been delivered to the Company) on any Trading Day selected by the Company where the closing price on the Principal Market is equal to or greater than the Floor Price, the Company may require the Investor to purchase Advance Shares in an amount equal to no more than the Maximum Purchase Amount and no less than the Minimum Purchase Amount by delivering an Advance Notice to the Investor. The Company shall, in its sole discretion, select the amount of the Advance it desires to issue and sell to the Investor in each Advance Notice (within the foregoing limitations) and the time it desires to deliver each Advance Notice.
(c) Ownership Limitation; Commitment Amount. At the request of the Company, the Investor will inform the Company of the amount of Ordinary Shares the Investor currently beneficially owns. In no event shall the number of Advance Shares issuable to the Investor pursuant to an Advance cause the aggregate number of Ordinary Shares beneficially owned (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by the Investor and its affiliates as a result of previous issuances and sales of Ordinary Shares to the Investor under this Agreement to exceed 9.99% of the then outstanding Ordinary Shares (the “Ownership Limitation”). In connection with each Advance Notice delivered by the Company, any portion of the Advance that would (i) cause the Investor to exceed the Ownership Limitation or (ii) cause the aggregate number of Advance Shares issued and sold to the Investor hereunder to exceed the Commitment Amount shall automatically be withdrawn with no further action required by the Company, and such Advance Notice shall be deemed automatically modified to reduce the amount of the Advance requested by an amount equal to such withdrawn portion; provided that in the event of any such automatic withdrawal and automatic modification, each of the Company and the Investor shall promptly notify the other of such event.
(d) Registration and Exchange Limitation. In no event shall an Advance exceed the amount registered under the Registration Statement then in effect (the “Registration Limitation”). In connection with each Advance Notice, any portion of an Advance that would exceed the Registration Limitation shall automatically be withdrawn with no further action required by the Company and such Advance Notice shall be deemed automatically modified to reduce the aggregate amount of the requested Advance by an amount equal to such withdrawn portion in respect of each Advance Notice; provided that in the event of any such automatic withdrawal and automatic modification, each of the Company and the Investor shall promptly notify the other of such event.
(e) Date of Delivery of Advance Notice. An Advance Notice shall be deemed delivered on (i) the day it is received by the Investor if such notice is received by email or facsimile on or before 4:00 p.m. Eastern Time (or later if waived by the Investor in its sole discretion), or (ii) the immediately succeeding day if it is received by email or facsimile after 4:00 p.m. Eastern Time.
(f) Binding Commitment. Notwithstanding any other provision in this Agreement, the Company and the Investor acknowledge and agree that upon the Investor’s receipt of a valid Advance Notice the parties shall be deemed to have entered into an unconditional contract binding on both parties for the purchase and sale of Advance Shares pursuant to such Advance Notice in accordance with the terms of this Agreement and, subject to Applicable Law and to Section 3.09, the Investor may sell Ordinary Shares after the receipt of such Advance Notice.
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Section 2.02. Closings. The closing of each Advance and each sale and purchase of Advance Shares related to each Advance (each, a “Closing”) shall take place as soon as practicable on or after each Advance Notice Date in accordance with the procedures set forth below. In connection with each Closing, the Company and the Investor shall fulfill each of its obligations as set forth below:
(a) Delivery of Advance Shares. Promptly after receipt of the Advance Notice (and, in any event, not later than two (2) Trading Days after such receipt), the Investor shall pay to the Company the aggregate Purchase Price of the Advance Shares as set forth in the Advance Notice in cash in immediately available funds to an account designated by the Company in writing and transmit notification to the Company that such funds transfer has been requested. Promptly upon receipt of such notification, the Company will, or will cause its transfer agent to, electronically transfer such number of Advance Shares to be purchased by the Investor as set forth in the Advance Notice by crediting the Investor’s account or its designee’s account at the Depository Trust Company through its Deposit Withdrawal at Custodian System or by such other means of delivery as may be mutually agreed upon by the parties hereto, and transmit notification to the Investor that such share transfer has been requested. Notwithstanding the foregoing, all payments owed by the Investor pursuant to the Advance Notices shall first be deduced from the Pre-Paid Credit such that no additional payments shall be required from the Investor until the Pre-Paid Credit has been reduced to zero.
(b) The Advance Shares. No fractional shares shall be issued, and any fractional amounts shall be rounded to the next higher whole number of shares. To facilitate the transfer of the Advance Shares by the Investor, the Advance Shares will not bear any restrictive legends so long as there is an effective Registration Statement covering such Advance Shares (it being understood and agreed by the Investor that notwithstanding the lack of restrictive legends, the Investor may only sell such Advance Shares in compliance with the requirements of the Securities Act (including any applicable prospectus delivery requirements) or pursuant to an available exemption).
(c) Additional Deliveries. On or prior to any such Closing, each of the Company and the Investor shall deliver to each other all documents, instruments and writings required to be delivered or reasonably requested by either of them pursuant to this Agreement in order to implement and effect the transactions contemplated herein.
Section 2.03.Initial Closing Deliverables. On or prior to the funding of the Pre-Paid Credit, and in any event prior to the delivery of the first Advance Notice, the Company shall deliver, or cause to be delivered, to the Investor:
(a) duly executed copies of this Agreement and the other Transaction Documents to which the Company is a party;
(b) an opinion of Cayman Islands counsel to the Company, dated as of the date of funding of the Pre-Paid Credit and in form and substance reasonably satisfactory to the Investor, covering, among other customary matters, the Company’s due incorporation and good standing, corporate power and authority, due authorization, execution and delivery of the Transaction Documents and the valid issuance of the Securities as fully paid and non-assessable;
(c) an opinion of U.S. securities counsel to the Company, dated as of the date of funding of the Pre-Paid Credit and in form and substance reasonably satisfactory to the Investor, covering, among other customary matters, the enforceability of the Agreement under New York law, the effectiveness of the Registration Statement, the filing of the Prospectus Supplement and the registration of the offer and sale of the Securities under the Securities Act;
(d) a certificate executed by an authorized officer of the Company certifying that the representations and warranties of the Company contained herein are true and correct in all material respects, that the Company has performed in all material respects its covenants required to be performed prior to such date and that no Material Adverse Effect has occurred;
(e) a certificate of the secretary or other authorized officer of the Company attaching and certifying the Company’s memorandum and articles of association, the resolutions of the board of directors approving the Transaction Documents and the issuance of the Securities, and the incumbency and signatures of the officers executing the Transaction Documents;
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(f) a certificate of good standing of the Company issued by the Registrar of Companies of the Cayman Islands, dated as of a recent date;
(g) evidence reasonably satisfactory to the Investor that the Form 6-K and the Prospectus Supplement covering the full Commitment Amount have been filed with the SEC and that the Registration Statement remains effective;
(h) evidence that the Advance Shares and the Commitment Fee Shares have been approved for listing on the Principal Market, subject only to official notice of issuance;
(i) irrevocable instructions to the Company’s transfer agent authorizing the issuance and delivery of the Securities through DTC’s DWAC system, without restrictive legends, in accordance with this Agreement; and
(j) such other customary certificates, instruments and documents as the Investor may reasonably request in connection with the transactions contemplated hereby.
ARTICLE III
Representations and Warranties of Investor
The Investor hereby represents and warrants to, and agrees with, the Company as follows:
Section 3.01. Organization and Authorization. The Investor is duly incorporated, validly existing and in good standing under its jurisdiction of organization and has all requisite power and authority to execute, deliver and perform this Agreement, including all transactions contemplated hereby. The decision to invest and the execution and delivery of this Agreement by the Investor, the performance by the Investor of its obligations hereunder and the consummation by the Investor of the transactions contemplated hereby have been duly authorized and require no other proceedings on the part of the Investor. The undersigned has the right, power and authority to execute and deliver this Agreement and all other instruments on behalf of the Investor or its shareholders. This Agreement has been duly executed and delivered by the Investor and, assuming the execution and delivery hereof and acceptance thereof by the Company, will constitute the legal, valid and binding obligations of the Investor, enforceable against the Investor in accordance with its terms.
Section 3.02. Evaluation of Risks. The Investor has such knowledge and experience in financial, tax and business matters as to be capable of evaluating the merits and risks of, and bearing the economic risks entailed by, an investment in the Ordinary Shares of the Company and of protecting its interests in connection with the transactions contemplated hereby. The Investor acknowledges and agrees that its investment in the Company involves a high degree of risk, and that the Investor may lose all or a part of its investment.
Section 3.03. No Legal, Investment or Tax Advice from the Company. The Investor acknowledges that it had the opportunity to review this Agreement and the transactions contemplated by this Agreement with its own legal counsel and investment and tax advisors. The Investor is relying solely on such counsel and advisors and not on any statements or representations of the Company or any of the Company’s representatives or agents for legal, tax, investment or other advice with respect to the Investor’s acquisition of Ordinary Shares hereunder, the transactions contemplated by this Agreement or the laws of any jurisdiction, and the Investor acknowledges that the Investor may lose all or a part of its investment.
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Section 3.04. Investment Purpose. The Investor is acquiring the Securities for its own account, for investment purposes and not with a view towards, or for resale in connection with, the public sale or distribution thereof, in violation of the Securities Act or any applicable state securities laws; provided, however, that by making the representations herein, the Investor does not agree, or make any representation or warranty, to hold any of the Securities for any minimum or other specific term and reserves the right to dispose of the Securities at any time in accordance with, or pursuant to, the Registration Statement filed pursuant to this Agreement or an applicable exemption under the Securities Act. The Investor does not presently have any agreement or understanding, directly or indirectly, with any Person to sell or distribute any of the Securities. The Investor is acquiring the Securities hereunder in the ordinary course of its business.
Section 3.05. Accredited Investor. The Investor is an “Accredited Investor” as that term is defined in Rule 501(a)(3) of Regulation D promulgated under the Securities Act.
Section 3.06. Information. The Investor and its advisors (and its counsel), if any, have been furnished with all materials relating to the business, finances and operations of the Company and information the Investor deemed material to making an informed investment decision. The Investor and its advisors (and its counsel), if any, have been afforded the opportunity to ask questions of the Company and its management and have received answers to such questions. Neither such inquiries nor any other due diligence investigations conducted by such Investor or its advisors (and its counsel), if any, or its representatives shall modify, amend or affect the Investor’s right to rely on the Company’s representations and warranties contained in this Agreement. The Investor acknowledges and agrees that the Company has not made to the Investor, and the Investor acknowledges and agrees it has not relied upon, any representations and warranties of the Company, its employees or any third party other than the representations and warranties of the Company contained in this Agreement. The Investor understands that its investment involves a high degree of risk. The Investor has sought such accounting, legal and tax advice, as it has considered necessary to make an informed investment decision with respect to the transactions contemplated hereby.
Section 3.07. Not an Affiliate. The Investor is not an officer, director or a Person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with the Company or any “affiliate” of the Company (as that term is defined in Rule 405 promulgated under the Securities Act).
Section 3.08. Trading Activities. The Investor’s trading activities with respect to the Ordinary Shares shall be in compliance with all applicable federal and state securities laws, rules and regulations and the rules and regulations of the Principal Market. Neither the Investor nor its affiliates has any open short position in the Ordinary Shares, nor has the Investor entered into any hedging transaction that establishes a net short position with respect to the Ordinary Shares, and the Investor agrees that it shall not, and that it will cause its affiliates not to, engage in any short sales or hedging transactions with respect to the Ordinary Shares; provided that the Company acknowledges and agrees that upon delivery of an Advance Notice the Investor has the right to sell (a) the Advance Shares to be issued to the Investor pursuant to the Advance Notice prior to receiving such Advance Shares, or (b) other Ordinary Shares sold by the Company to Investor pursuant to this Agreement and which the Company has continuously held as a long position.
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ARTICLE IV
Representations and Warranties of the Company
Except as set forth in the SEC Documents, the Company represents and warrants to the Investor as follows:
Section 4.01. Organization and Qualification. Each of the Company and each Subsidiary is an entity duly incorporated and validly existing under the laws of its jurisdiction of organization or incorporation, and has the requisite power and authority to own its properties and to carry on its business as now being conducted. Each of the Company and each Subsidiary is duly qualified to do business and is in good standing (to the extent applicable) in every jurisdiction in which the nature of the business conducted by it makes such qualification necessary, except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect.
Section 4.02. Authorization, Enforcement, Compliance with Other Instruments. The Company has the requisite corporate power and authority to enter into and perform its obligations under this Agreement and the other Transaction Documents and to issue the Securities in accordance with the terms hereof and thereof. The execution and delivery by the Company of this Agreement and the other Transaction Documents, and the consummation by the Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Securities) have been or (with respect to consummation) will be duly authorized by the Company’s board of directors and no further consent or authorization will be required by the Company, its board of directors or its shareholders. This Agreement and the other Transaction Documents to which it is a party have been (or, when executed and delivered, will be) duly executed and delivered by the Company and, assuming the execution and delivery thereof and acceptance by the Investor, constitute (or, when duly executed and delivered, will be) the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or other laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies and except as rights to indemnification and to contribution may be limited by federal or state securities law.
Section 4.03. Authorization of the Securities. The Securities to be issued under this Agreement have been, or with respect to Advance Shares to be purchased by the Investor pursuant to an Advance Notice, will be, when issued and delivered pursuant to the terms approved by the board of directors of the Company or a duly authorized committee thereof, or a duly authorized executive committee, against payment therefor as provided herein, duly and validly authorized and issued and fully paid and nonassessable, free and clear of any pledge, lien, encumbrance, security interest or other claim, including any statutory or contractual preemptive rights, resale rights, rights of first refusal or other similar rights. The Advance Shares, when issued, will conform to the description thereof set forth in or incorporated into the Prospectus.
Section 4.04. No Conflict. The execution, delivery and performance of the Transaction Documents by the Company and the consummation by the Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Securities) will not (a) result in a violation of the memorandum and articles of association, as amended, or other organizational documents of the Company (with respect to consummation, as the same may be amended prior to the date on which any of the transactions contemplated hereby are consummated), (b) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Company or its Subsidiaries is a party, or (c) result in a violation of any law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations) applicable to the Company or its Subsidiaries or by which any property or asset of the Company or its Subsidiaries is bound or affected except, in the case of clause (b or (c) above, to the extent such violations that would not reasonably be expected to have a Material Adverse Effect.
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Section 4.05. Filings, Consents and Approvals. No further authorization, approval or consent of any court, governmental body, regulatory agency, self-regulatory organization, stock exchange, shareholder, investor or lender of the Company is required for the Company’s execution, delivery or performance of the Transaction Documents or the offer, issuance and sale of the Securities, except for: (a) the filing of the Prospectus Supplement pursuant to Section 6.01(b); (b) the filing of any current report on Form 6-K required in connection with the transactions contemplated hereby; (c) any filings, notifications or approvals required by the Principal Market; (d) any filing required under applicable state securities or “blue sky” laws; and (e) the written consent of the requisite purchasers required under the Securities Purchase Agreement entered into by the Company on June 10, 2026.
Section 4.06. SEC Documents. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by it with the SEC pursuant to the Exchange Act for the two years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (all of the foregoing filed within two years preceding the date hereof or amended after the date hereof, or filed after the date hereof, and all exhibits included therein and financial statements and schedules thereto and documents incorporated by reference therein, and all registration statements filed by the Company under the Securities Act, being hereinafter referred to as the “SEC Documents”). The Company has made available to the Investor through the SEC’s website at http://www.sec.gov, true and complete copies of the SEC Documents.
Section 4.07. Financial Statements. The consolidated financial statements of the Company included or incorporated by reference in SEC Documents, together with the related notes and schedules, present fairly, in all material respects, the consolidated financial position of the Company and the Subsidiaries as of the dates indicated and the consolidated results of operations, cash flows and changes in stockholders’ equity of the Company for the periods specified and have been prepared in compliance with the requirements of the Securities Act and Exchange Act and in conformity with generally accepted accounting principles in the United States (“GAAP”) applied on a consistent basis (except for (a) such adjustments to accounting standards and practices as are noted therein, (b) in the case of unaudited interim financial statements, to the extent such financial statements may not include footnotes required by GAAP or may be condensed or summary statements and (c) such adjustments which will not be material, either individually or in the aggregate) during the periods involved. The other financial and statistical data with respect to the Company and the Subsidiaries contained or incorporated by reference in the SEC Documents are accurately and fairly presented and prepared on a basis consistent with the financial statements and books and records of the Company. There are no financial statements (historical or pro forma) that are required to be included or incorporated by reference in the SEC Documents that are not included or incorporated by reference as required. The Company and the Subsidiaries do not have any material liabilities or obligations, direct or contingent (including any off-balance sheet obligations), not described in the SEC Documents (excluding the exhibits thereto). All disclosures contained or incorporated by reference in the SEC Documents regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of the SEC) comply in all material respects with Regulation G of the Exchange Act and Item 10 of Regulation S-K under the Securities Act, to the extent applicable. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the SEC Documents fairly presents the information called for in all material respects and has been prepared in accordance with the SEC’s rules and guidelines applicable thereto.
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Section 4.08. Registration Statement and Prospectus. The Registration Statement and the offer and sale of Securities as contemplated hereby will meet the requirements of Rule 415 under the Securities Act and comply in all material respects with said Rule. Copies of the Registration Statement, any Prospectus, and any such amendments or supplements thereto and all documents incorporated by reference therein that were filed with the SEC on or prior to the date of this Agreement have been delivered, or are available through EDGAR, to the Investor and its counsel. The Company has not distributed and, prior to the later to occur of each date of Closing and completion of the distribution of the Securities, will not distribute any offering material in connection with the offering or sale of the Securities other than the Registration Statement and the Prospectus to which the Investor has consented.
Section 4.09. No Misstatement or Omission. The Registration Statement, when it became effective, and any Prospectus, on the date of such Prospectus or amendment or supplement, conformed and will conform in all material respects with the requirements of the Securities Act. At each Advance Notice Date, the Registration Statement, and the Prospectus, as of such date, will conform in all material respects with the requirements of the Securities Act. The Registration Statement, when it became effective, did 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. Each Prospectus did not, or will not, include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The documents incorporated by reference in the Prospectus did not, and any further documents filed and incorporated by reference therein will not, when filed with the SEC, contain an untrue statement of a material fact or omit to state a material fact required to be stated in such document or necessary to make the statements in such document, in light of the circumstances under which they were made, not misleading. The foregoing shall not apply to statements in, or omissions from, any such document made in reliance upon, and in conformity with, information furnished to the Company by the Investor specifically for use in the preparation thereof.
Section 4.10. Conformity with Securities Act and Exchange Act. The Registration Statement, each Prospectus, or any amendment or supplement thereto, and the documents incorporated by reference in the Registration Statement, Prospectus or any amendment or supplement thereto, when such documents were or are filed with the SEC under the Securities Act or the Exchange Act or became or become effective under the Securities Act, as the case may be, conformed or will conform in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable.
Section 4.11. Equity Capitalization. As of the date hereof, the maximum number of shares the Company is authorized to issue is 90,000,000,000,000 Ordinary Shares and 10,000,000,000,000 Class A Shares. As of the date hereof, the Company had 41,919,934 Ordinary Shares and 3,440,664 Class A Shares outstanding. The Ordinary Shares are registered pursuant to Section 12(b) of the Exchange Act and are currently listed on the Nasdaq Capital Market under the trading symbol “WFF.” The Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Ordinary Shares under the Exchange Act, delisting the Ordinary Shares 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. To the Company’s knowledge, it is in compliance with all applicable listing requirements of the Nasdaq Capital Market.
Section 4.12. Intellectual Property Rights. The Company and its Subsidiaries own or possess adequate rights or licenses to use all material trademarks, trade names, service marks, service mark registrations, service names, patents, patent rights, copyrights, inventions, licenses, approvals, governmental authorizations, trade secrets and rights, if any, necessary to conduct their respective businesses as now conducted, except as would not cause a Material Adverse Effect. The Company and its Subsidiaries have not received written notice of any infringement by the Company or its Subsidiaries of trademark, trade name rights, patents, patent rights, copyrights, inventions, licenses, service names, service marks, service mark registrations, or trade secrets, except as would not cause a Material Adverse Effect. To the knowledge of the Company, there is no claim, action or proceeding being made or brought against, or to the Company’s knowledge, being threatened against the Company or its Subsidiaries regarding trademark, trade name, patents, patent rights, invention, copyright, license, service names, service marks, service mark registrations, trade secret or other infringement, except as would not cause a Material Adverse Effect.
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Section 4.13. Employee Relations. Neither the Company nor any of its Subsidiaries is involved in any labor dispute nor, to the knowledge of the Company or any of its Subsidiaries, is any such dispute threatened, in each case which is reasonably likely to cause a Material Adverse Effect.
Section 4.14. Environmental Laws. The Company and its Subsidiaries (a) have not received written notice alleging any failure to comply in all material respects with all Environmental Laws, (b) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (c) have not received written notice alleging any failure to comply with all terms and conditions of any such permit, license or approval where, in each of the foregoing clauses, the failure to so comply would be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 4.15. Title. Except as would not cause a Material Adverse Effect, the Company (or its Subsidiaries) has indefeasible fee simple or leasehold title to its properties and material assets owned by it, free and clear of any pledge, lien, security interest, encumbrance, claim or equitable interest other than such as are not material to the business of the Company. Any real property and facilities held under lease by the Company and its Subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company and its Subsidiaries.
Section 4.16. Regulatory Permits. Except as would not cause a Material Adverse Effect, the Company and its Subsidiaries possess all material certificates, authorizations and permits issued by the appropriate federal, state or foreign regulatory authorities necessary to own their respective businesses, and neither the Company nor any such Subsidiary has received any written notice of proceedings relating to the revocation or modification of any such certificate, authorization or permits.
Section 4.17. Internal Accounting Controls. Except as disclosed in the SEC Documents, the Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that (a) transactions are executed in accordance with management’s general or specific authorizations, (b) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability, (c) access to assets is permitted only in accordance with management’s general or specific authorization and (d) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
Section 4.18. Absence of Litigation. Except as disclosed in the SEC Documents, there is no action, suit, proceeding, inquiry or investigation before or by any court, public board, government agency, self-regulatory organization or body pending against or affecting the Company, the Ordinary Shares or any of the Company’s Subsidiaries, wherein an unfavorable decision, ruling or finding would have a Material Adverse Effect.
Section 4.19. Subsidiaries. The Company has Subsidiaries as set forth in the SEC Documents.
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Section 4.20. Tax Status. Except as would not have a Material Adverse Effect, each of the Company and its Subsidiaries (a) has timely made or filed all foreign, federal and state income and all other tax returns, reports and declarations required by any jurisdiction to which it is subject, (b) has timely paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports and declarations, except those being contested in good faith and (c) has set aside on its books provision reasonably adequate for the payment of all taxes for periods subsequent to the periods to which such returns, reports or declarations apply. Except as would not have a Material Adverse Effect, Company has not received written notification any unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company and its Subsidiaries know of no basis for any such claim where failure to pay would cause a Material Adverse Effect.
Section 4.21. Certain Transactions. Except as not required to be disclosed pursuant to Applicable Law (including, for the avoidance of doubt, not yet required to be disclosed at the relevant time) or except as disclosed in the SEC Documents, none of the officers or directors of the Company is presently a party to any transaction with the Company (other than for services as employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from any officer or director, or to the knowledge of the Company, any corporation, partnership, trust or other entity in which any officer or director has a substantial interest or is an officer, director, trustee or partner.
Section 4.22. Acknowledgment Regarding Investor’s Purchase of Securities. The Company acknowledges and agrees that the Investor is acting solely in the capacity of an arm’s length investor with respect to this Agreement and the transactions contemplated hereunder. The Company further acknowledges that the Investor is not acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to this Agreement and the transactions contemplated hereunder and any advice given by the Investor or any of its representatives or agents in connection with this Agreement and the transactions contemplated hereunder is merely incidental to the Investor’s purchase of the Securities hereunder. The Company is aware and acknowledges that it shall not be able to request Advances under this Agreement if the Registration Statement is not effective or if any issuances of Advance Shares pursuant to any Advances would violate any rules of the Principal Market. The Company acknowledges and agrees that it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement.
Section 4.23. Relationship of the Parties. Neither the Company, nor any of its subsidiaries, affiliates, nor any Person acting on its or their behalf is a client or customer of the Investor or any of its affiliates and neither the Investor nor any of its affiliates has provided, or will provide, any services to the Company or any of its affiliates, its subsidiaries, or any Person acting on its or their behalf. The Investor’s relationship to Company is solely as investor as provided for in the Transaction Documents.
Section 4.24. Compliance with Laws. Except as would not have a Material Adverse Effect, the Company and each of its Subsidiaries are in compliance with Applicable Laws. The Company has not received a notice of non-compliance by any director, officer or employee of the Company or any Subsidiary, or any agent, affiliate or other Person acting on behalf of the Company or any Subsidiary has not complied with Applicable Laws, and is not aware of any pending change or contemplated change to any Applicable Law or regulation or governmental position, in each case that would have a Material Adverse Effect.
Section 4.25. Sanctions Matters. Neither the Company, nor any Subsidiary of the Company, nor, to the Company’s knowledge, any director, officer, agent, employee or affiliate of the Company or any Subsidiary of the Company, is a Person that is, or is owned or controlled by a Person that is: (a) on the list of Specially Designated Nationals and Blocked Persons maintained by OFAC from time to time; (b) the subject of any sanctions administered or enforced by OFAC, the U.S. State Department, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority; or (c) has a place of business in, or is operating, organized, resident or doing business in a country or territory that is, or whose government is, the subject of any OFAC economic sanction program (including, without limitation, programs related to Crimea, Cuba, Iran, North Korea, Sudan and Syria).
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ARTICLE V
Indemnification
Section 5.01. Indemnification by the Company. In consideration of the Investor’s execution and delivery of this Agreement, and in addition to all of the Company’s other obligations under this Agreement, the Company shall defend, protect, indemnify and hold harmless the Investor and each of its respective officers, directors, partners, employees and agents (including, without limitation, those retained in connection with the transactions contemplated by this Agreement) and each Person who controls the Investor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Investor Indemnitees”) from and against any and all actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and reasonable and documented expenses in connection therewith (irrespective of whether any such Investor Indemnitee is a party to the action for which indemnification hereunder is sought), and including reasonable attorneys’ fees and disbursements (the “Indemnified Liabilities”), incurred by the Investor Indemnitees or any of them as a result of, or arising out of, or relating to (a) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement for the registration of the Securities as originally filed or in any amendment thereof, or in any related prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Investor specifically for inclusion therein; (b) any material misrepresentation or breach of any material representation or material warranty made by the Company in this Agreement or any other certificate, instrument or document contemplated hereby or thereby; or (c) any material breach of any material covenant, material agreement or material obligation of the Company contained in this Agreement or any other certificate, instrument or document contemplated hereby or thereby. To the extent that the foregoing undertaking by the Company may be unenforceable under Applicable Law, the Company shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities, which is permissible under Applicable Law.
Section 5.02. Indemnification by the Investor. In consideration of the Company’s execution and delivery of this Agreement, and in addition to all of the Investor’s other obligations under this Agreement, the Investor shall defend, protect, indemnify and hold harmless the Company and all of its officers, directors, shareholders, employees and agents (including, without limitation, those retained in connection with the transactions contemplated by this Agreement) and each Person who controls the Investor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Company Indemnitees”) from and against any and all Indemnified Liabilities incurred by the Company Indemnitees or any of them as a result of, or arising out of, or relating to (a) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement for the registration of the Securities as originally filed or in any amendment thereof, or in any related Prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the Investor will only be liable for written information relating to the Investor furnished to the Company by or on behalf of the Investor specifically for inclusion in the documents referred to in the foregoing indemnity, and will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Investor by or on behalf of the Company specifically for inclusion therein; (b) any misrepresentation or breach of any representation or warranty made by the Investor in this Agreement or any instrument or document contemplated hereby or thereby executed by the Investor; or (c) any breach of any covenant, agreement or obligation of the Investor(s) contained in this Agreement or any other certificate, instrument or document contemplated hereby or thereby executed by the Investor. To the extent that the foregoing undertaking by the Investor may be unenforceable under Applicable Law, the Investor shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities, which is permissible under Applicable Law.
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Section 5.03. Notice of Claim. Promptly after receipt by an Investor Indemnitee or Company Indemnitee of notice of the commencement of any action or proceeding (including any governmental action or proceeding) involving an Indemnified Liability, such Investor Indemnitee or Company Indemnitee, as applicable, shall, if a claim for an Indemnified Liability in respect thereof is to be made against any indemnifying party under this Article V, deliver to the indemnifying party a written notice of the commencement thereof; but the failure to so notify the indemnifying party will not relieve it of liability under this Article V except to the extent the indemnifying party is prejudiced by such failure. The indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume control of the defense thereof with counsel mutually reasonably satisfactory to the indemnifying party and the Investor Indemnitee or Company Indemnitee, as the case may be; provided, however, that an Investor Indemnitee or Company Indemnitee shall have the right to retain its own counsel with the actual and reasonable third party fees and expenses of not more than one counsel for such Investor Indemnitee or Company Indemnitee to be paid by the indemnifying party, if, in the reasonable opinion of counsel retained by the indemnifying party, the representation by such counsel of the Investor Indemnitee or Company Indemnitee and the indemnifying party would be inappropriate due to actual or potential differing interests between such Investor Indemnitee or Company Indemnitee and any other party represented by such counsel in such proceeding. The Investor Indemnitee or Company Indemnitee shall cooperate fully with the indemnifying party in connection with any negotiation or defense of any such action or claim by the indemnifying party and shall furnish to the indemnifying party all information reasonably available to the Investor Indemnitee or Company Indemnitee which relates to such action or claim. The indemnifying party shall keep the Investor Indemnitee or Company Indemnitee reasonably apprised as to the status of the defense or any settlement negotiations with respect thereto. No indemnifying party shall be liable for any settlement of any action, claim or proceeding effected without its prior written consent, provided, however, that the indemnifying party shall not unreasonably withhold, delay or condition its consent. No indemnifying party shall, without the prior written consent of the Investor Indemnitee or Company Indemnitee, consent to entry of any judgment or enter into any settlement or other compromise which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Investor Indemnitee or Company Indemnitee of a release from all liability in respect to such claim or litigation. Following indemnification as provided for hereunder, the indemnifying party shall be subrogated to all rights of the Investor Indemnitee or Company Indemnitee with respect to all third parties, firms or corporations relating to the matter for which indemnification has been made. The indemnification required by this Article V shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received and payment therefor is due.
Section 5.04. Remedies. The remedies provided for in this Article V are not exclusive and shall not limit any right or remedy which may be available to any indemnified Person at law or equity. The obligations of the parties to indemnify or make contribution under this Article V shall survive expiration or termination of this Agreement for a period of three years.
Section 5.05. Limitation of liability. Notwithstanding the foregoing, no party shall be entitled to recover from the other party for punitive, indirect, incidental or consequential damages.
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ARTICLE VI
Additional Covenants
The Company covenants with the Investor, and the Investor covenants with the Company, as follows, which covenants of one party are for the benefit of the other party, during the Commitment Period:
Section 6.01. Registration Statement.
(a) Filing of Registration Statement. The Company has filed, in accordance with the provisions of the Securities Act and the rules and regulations thereunder, with the SEC a shelf registration statement on Form F-3 (File Number 333-296397) (including any amendments, all documents filed as part thereof or incorporated by reference therein, and including any information contained in the Prospectus and the Prospectus Supplement (as defined below) or deemed to be a part of the registration statement pursuant to Rule 430B of the Securities Act, the “Registration Statement”) including a base Prospectus, with respect to the issuance and sale of securities by the Company, including Ordinary Shares, which contains, among other things a plan of distribution section disclosing the methods by which the Company may sell the Ordinary Shares. The Registration Statement was declared effective on June 10, 2026 and remains in effect on the date hereof.
(b) Initial Disclosure. Promptly after the execution of this Agreement, the Company shall furnish with the SEC a report on Form 6-K, or such other appropriate form as determined by counsel to the Company, relating to the transactions contemplated by this Agreement and file a Prospectus Supplement pursuant to Rule 424(b) of the Securities Act for the full Commitment Amount and the Commitment shares disclosing all information relating to the transactions contemplated hereby required to be disclosed therein and an updated plan of distribution, including, without limitation, the name of the Investor, the amount of the Securities being offered hereunder, the terms of the offering, the Purchase Price, and other material terms of the offering, and any other information or disclosure necessary to register the transactions contemplated herein (the “Prospectus Supplement”).
(c) Maintaining the Registration Statement. The Company shall use commercially reasonable efforts to maintain the effectiveness of the Registration Statement with respect to the Securities at all times during the Commitment Period; provided, however, that the Company will be under no further obligation to maintain the effectiveness of the Registration Statement after the earlier to occur of (i) the date on which the Investor has purchased the full Commitment Amount and has completed the subsequent resale of the full Commitment Amount (the Investor agrees to notify the Company when all subsequent resales are completed), (ii) the 90th day following the date on which the Investor has purchased the full Commitment Amount, or (iii) the 90th day following the termination of this Agreement in accordance with its terms. Notwithstanding anything to the contrary contained in this Agreement, the Company shall ensure that, when filed, the Registration Statement shall not contain any 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 (in the case of Prospectuses, in the light of the circumstances in which they were made) not misleading.
(d) Filing Procedures. Not less than one (1) Trading Day prior to the filing of the Prospectus Supplement, the Company shall furnish to the Investor a copy of the proposed Prospectus Supplement, which will be subject to the reasonable and prompt review of the Investor (if the Prospectus Supplement contains material non-public information as consented to by the Investor, the information provided to the Investor will be kept strictly confidential until filed and treated as subject to Section 6.05). The Investor shall furnish comments on the Prospectus Supplement to the Company within 24 hours of the receipt thereof. If the Investor fails to provide comments to the Company within such 24-hour period, then the Prospectus Supplement shall be deemed accepted by the Investor in the form originally delivered by the Company to the Investor.
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(e) Blue-Sky. The Company shall use its commercially reasonable efforts to, if required by Applicable Law, (i) register and qualify the Ordinary Shares covered by the Registration Statement under such other securities or “blue sky” laws of such jurisdictions in the United States as the Investor reasonably requests, (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Commitment Period, (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Commitment Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Ordinary Shares for sale in such jurisdictions; provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (w) make any change to its memorandum and articles of association, as amended, or other organizational documents, (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 6.01(e), (y) subject itself to general taxation in any such jurisdiction, or (z) file a general consent to service of process in any such jurisdiction. The Company shall promptly notify the Investor of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Ordinary Shares for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
Section 6.02. Listing of Ordinary Shares. As of each Advance Notice Date, the Advance Shares to be sold by the Company hereunder will have been registered under Section 12(b) of the Exchange Act and approved for listing on the Principal Market.
Section 6.03. Exchange Act Registration. During the Commitment Period, the Company will file in a timely manner all reports and other documents required of it as a reporting company under the Exchange Act and will not take any action or file any document (whether or not permitted by Exchange Act or the rules thereunder) to terminate or suspend its reporting and filing obligations under the Exchange Act.
Section 6.04. Trading on Principal Market. During the Commitment Period, trading in the Ordinary Shares will not be suspended, halted, chilled, frozen, reach zero bid or otherwise cease trading on the Principal Market for a period of more than five (5) consecutive Trading Days.
Section 6.05. Notice of Certain Events Affecting Registration; Suspension of Right to Make an Advance. The Company will promptly notify the Investor, and confirm in writing, upon its becoming aware of the occurrence of any of the following events in respect of the Registration Statement or related Prospectus (in each of which cases the information provided to Investor will be kept strictly confidential): (a) except for requests made in connection with SEC investigations disclosed in the SEC Documents, receipt of any request for additional information by the SEC or any other Federal or state governmental authority during the period of effectiveness of the Registration Statement or any request for amendments or supplements to the Registration Statement or related Prospectus; (b) the issuance by the SEC or any other Federal governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; (c) receipt of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Ordinary Shares for sale in any jurisdiction or the initiation or written threat of any proceeding for such purpose; (d) the happening of any event that makes any statement made in the Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in the Registration Statement, related Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the related Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or of the necessity to amend the Registration Statement or supplement a related Prospectus to comply with the Securities Act or any other law; and (e) the Company’s reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; and the Company will promptly make available to the Investor any such supplement or amendment to the related Prospectus. The Company shall not deliver to the Investor any Advance Notice, and the Company shall not sell any Advance Shares pursuant to any pending Advance Notice, during the continuation of any of the foregoing events.
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Section 6.06. Market Activities. The Company will not, directly or indirectly, take any action designed to cause or result in, or that constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company under Regulation M of the Exchange Act.
Section 6.07. Expenses. The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated, will pay all expenses incident to the performance of its obligations hereunder, including but not limited to (a) the preparation, printing and filing of the Registration Statement and each amendment and supplement thereto, of each Prospectus and of each amendment and supplement thereto; (b) the preparation, issuance and delivery of any Securities issued pursuant to this Agreement, (c) all reasonable fees and disbursements of the Company’s counsel, accountants and other advisors (but not, for the avoidance doubt, the fees and disbursements of the Investor’s counsel, accountants and other advisors), (d) the qualification of the Securities under securities laws in accordance with the provisions of this Agreement, including filing fees in connection therewith, (e) the printing and delivery of copies of any Prospectus and any amendments or supplements thereto, (f) the fees and expenses incurred in connection with the listing or qualification of the Securities for trading on the Principal Market, and (g) filing fees of the SEC and the Principal Market.
Section 6.08. Confidentiality. The Company shall not, and the Company shall cause each of its Subsidiaries and each of its and their respective officers, directors, employees and agents not to, provide the Investor with any material, non-public information regarding the Company or any of its Subsidiaries without the express prior written consent of the Investor (which may be granted or withheld in the Investor’s sole discretion and if granted must include an agreement to keep such information confidential until publicly disclosed), it being understood that the mere notification to Investor required pursuant to Section 6.05(e) hereof shall not in and of itself be deemed to be material non-public information. Notwithstanding anything contained in this Agreement to the contrary, the Company expressly agrees that it shall publicly disclose promptly following the date hereof, but in any event prior to delivering the first Advance Notice hereunder, any information communicated to the Investor by or, to the knowledge of the Company, on behalf of the Company in connection with the transactions contemplated herein, which, following the date hereof would, if not so disclosed, constitute material, non-public information regarding the Company or its Subsidiaries.
Section 6.09. Compliance with Laws. The Company shall comply in all material respects with all Applicable Laws.
Section 6.10. Non-Disclosure of Non-Public Information. The Company covenants and agrees that, other than as expressly required by Section 6.05 hereof, or, with the Investor’s consent pursuant to Section 6.01(d), it shall refrain from disclosing, and shall cause its officers, directors, employees and agents to refrain from disclosing, any material non-public information (as determined under the Securities Act, the Exchange Act, or the rules and regulations of the SEC) to the Investor without also disseminating such information to the public, unless prior to disclosure of such information the Company identifies such information as being material non-public information and provides the Investor with the opportunity to accept or refuse to accept such material non-public information for review. Unless specifically agreed to in writing, in no event shall the Investor have a duty of confidentiality, or be deemed to have agreed to maintain information in confidence, with respect to the delivery of any Advance Notices.
Section 6.11. Reservation of Shares. The Company shall at all times during the Commitment Period reserve and keep available out of its duly authorized and unissued Ordinary Shares a number of Ordinary Shares sufficient to satisfy in full the Commitment Amount, calculated using the Floor Price.
Section 6.12. Restricted Issuance. During the Commitment Period, the Company will not make any Restricted Issuance without Investor’s prior written consent, which consent may be granted or withheld in Investor’s sole and absolute discretion.
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ARTICLE VII
Miscellaneous
Section 7.01. Termination.
(a) Automatic Termination. Unless earlier terminated as provided hereunder, this Agreement shall terminate automatically on the earliest of (i) the first day of the month next following the 24-month anniversary of the date hereof or (ii) the date on which the Investor shall have made payment of Advances pursuant to this Agreement for Advance Shares equal to the Commitment Amount.
(b) Termination by Mutual Agreement. This Agreement may be terminated at any time by the mutual written consent of the parties, effective as of the date of such mutual written consent unless otherwise provided in such written consent.
(c) Effect of Termination. Nothing in this Section 7.01 shall be deemed to release the Company or the Investor from any liability for any breach under this Agreement, or to impair the rights of the Company and the Investor to compel specific performance by the other party of its obligations under this Agreement. The indemnification provisions contained in Article V shall survive termination hereunder.
Section 7.02. Non-Exclusive Agreement. Notwithstanding anything contained herein, this Agreement and the rights awarded to the Investor hereunder are non-exclusive, and the Company may, at any time throughout the term of this Agreement and thereafter, issue and allot, or undertake to issue and allot, any shares and/or securities and/or convertible notes, bonds, debentures, options to acquire shares or other securities and/or other facilities which may be converted into or replaced by Ordinary Shares or other securities of the Company, and to extend, renew and/or recycle any bonds and/or debentures, and/or grant any rights with respect to its existing and/or future shares. Notwithstanding the foregoing, the Company shall not enter into any agreement or otherwise agree to any covenant, condition, or obligation that locks up, restricts in any way or otherwise prohibits the Company from entering into a variable rate transaction with the Investor or any affiliate of the Investor, or from issuing Ordinary Shares, preferred shares, warrants, convertible notes, other debt securities, or any other Company securities to the Investor or any affiliate of the Investor.
Section 7.03. Choice of Law/Jurisdiction. This Agreement shall be construed and enforced in accordance with, and all questions concerning the construction, validity, interpretation and performance of this Agreement shall be governed by, the internal laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than the State of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts located in the Borough of Manhattan, New York, New York for the adjudication of any dispute arising out of or relating to this Agreement, any other Transaction Document or any transaction contemplated hereby or thereby, 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 TO THIS AGREEMENT IRREVOCABLY WAIVES ANY AND ALL RIGHTS SUCH PARTY MAY HAVE TO DEMAND THAT ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT, OR THE RELATIONSHIPS OF THE PARTIES HERETO BE TRIED BY JURY. THIS WAIVER EXTENDS TO ANY AND ALL RIGHTS TO DEMAND A TRIAL BY JURY ARISING UNDER COMMON LAW OR ANY APPLICABLE STATUTE, LAW, RULE OR REGULATION. FURTHER, EACH PARTY HERETO ACKNOWLEDGES THAT SUCH PARTY IS KNOWINGLY AND VOLUNTARILY WAIVING SUCH PARTY’S RIGHT TO DEMAND TRIAL BY JURY.
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Section 7.04. Specific Performance. Each party acknowledges and agrees that the other party may suffer irreparable harm if such party fails to perform any material provision of this Agreement or any other Transaction Document in accordance with its specific terms. Accordingly, each party shall be entitled to seek injunctive relief or specific performance to prevent or cure breaches of this Agreement or any other Transaction Document, in addition to any other remedy available at law or in equity.
Section 7.05. Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
Section 7.06. Headings. The headings of this Agreement are for convenience of reference only and shall not form part of, or affect the interpretation of, this Agreement.
Section 7.07. Severability. In the event that any provision of this Agreement is invalid or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform to such statute or rule of law. Any provision hereof which may prove invalid or unenforceable under any law shall not affect the validity or enforceability of any other provision hereof.
Section 7.08. Entire Agreement; Amendments. This Agreement supersedes all other prior oral or written agreements between the Investor, the Company, their respective affiliates and Persons acting on their behalf with respect to the matters discussed herein, and this Agreement contains the entire understanding of the parties with respect to the matters covered herein and, except as specifically set forth herein, neither the Company nor the Investor makes any representation, warranty, covenant or undertaking with respect to such matters. No provision of this Agreement may be amended other than by a written instrument signed by both parties hereto and no provision of this Agreement may be waived other than in a written instrument signed by the party against whom enforcement of such waiver is sought. No failure or delay in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other right, power or privilege.
Section 7.09. Assignment. Neither this Agreement nor any rights or obligations of the parties hereto may be assigned to any other Person.
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Section 7.10. Notices. Any notices, consents, waivers, or other communications required or permitted to be given under the terms of this Agreement must be in writing and will be deemed to have been delivered (a) upon receipt, when delivered personally; (b) upon receipt, when sent by facsimile or e-mail if sent on a Trading Day, or, if not sent on a Trading Day, on the immediately following Trading Day; (c) five (5) days after being sent by certified mail, return receipt requested, or (d) one (1) day after deposit with a nationally recognized overnight delivery service, in each case properly addressed to the party to receive the same. The addresses and facsimile numbers for such communications (except for Advance Notices which shall be delivered in accordance with Exhibit A hereof and will be deemed delivered on the date set forth in Section 2.01(e)) shall be as set forth below. Either may change its information contained in this Section 7.10 by delivering notice to the other party as set forth herein.
If to the Company:
WF Holding Limited
Attn: Leah Siang Ling, Co-Chief Executive Officer
Lot 3893, Jalan 4D
Kg. Baru Subang
Seksyen U6, 40150 Shah Alam
Selangor, Malaysia
Email: ir@wffholding.com
If to the Investor:
Javelin Global Investors Limited
Attn: YANTO, ANTON, Director
OMC Chambers, Wickhams Cay 1
Road Town, Tortola
British Virgin Islands
Email: inquire@javelinglobal.org
Section 7.11. Commitment Fee. Each of the parties shall pay its own fees and expenses (including the fees of any attorneys, accountants, appraisers or others engaged by such party) in connection with this Agreement and the transactions contemplated hereby. On the date of the initial Closing, the Company will issue to the Investor or its designee an aggregate of 750,000 Ordinary Shares (the “Commitment Fee Shares”) as a commitment fee. The Commitment Fee Shares shall be issued pursuant to the Registration Statement and shall be freely tradeable by the Investor upon receipt.
Section 7.12. Certain Other Fees. The Company has engaged Univest Securities, LLC (the “Placement Agent”) as a placement agent in connection with the transactions contemplated hereby pursuant a Placement Agency Agreement, dated July 30, 2026. Except for the fees and expenses payable to the Placement Agent and as disclosed in the Prospectus Supplement, no commission, placement agent fee, finder’s fee or similar payment will become due and owing by the Company as a result of the transactions contemplated hereby. The Company shall be solely responsible for all such fees and expenses. To the Company’s knowledge, the Placement Agent is a broker-dealer registered with the SEC and a member of the Financial Industry Regulatory Authority. The Investor shall have no obligation with respect to any broker fees or with respect to any claims made by or on behalf of other persons for fees of a type contemplated in this subsection that may be due in connection with the transactions contemplated hereby and the Company shall indemnify and hold harmless each of the Investor, the Investor’s employees, officers, directors, shareholders, members, managers, agents, and partners, and their respective affiliates, from and against all claims, losses, damages, costs (including the costs of preparation and reasonable attorneys’ fees) and expenses suffered in respect of any such claimed broker fees.
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IN WITNESS WHEREOF, the parties hereto have caused this Standby Equity Purchase Agreement to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above.
| COMPANY: | ||
| WF Holding Limited | ||
| By: | /s/ Leah Siang Ling | |
| Name: | Leah Siang Ling | |
| Title: | Co-Chief Executive Officer | |
| INVESTOR: | ||
| Javelin Global Investors Limited | ||
| By: | /s/ YANTO, ANTON | |
| Name: | YANTO, ANTON | |
| Title: | Director | |
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EXHIBIT A
ADVANCE NOTICE
TO: Javelin Global Investors Limited
| Dated: ______________ | Advance Notice Number: ____ |
We refer to the Standby Equity Purchase Agreement, dated July 30, 2026 (the “Agreement”), entered into by and between WF Holding Limited and you. Capitalized terms defined in the Agreement shall, unless otherwise defined herein, have the same meaning when used herein.
We hereby:
1. certify that there are no fundamental changes to the information set forth in the Registration Statement which would require the Company to file a post-effective amendment to the Registration Statement;
2. certify that the Company has performed in all material respects all covenants and agreements to be performed by the Company contained in the Agreement on or prior to the Advance Notice Date;
3. give you notice that we require you to purchase ______________ Advance Shares at the Purchase Price per Advance Share of $________;
4. request you to deliver the aggregate purchase price of $______________ in cash in immediately available funds to the account designated by the Company; and
5. certify that the number of Ordinary Shares of the Company outstanding as of the date hereof is ___________.
The undersigned has executed this Advance Notice as of the date first set forth above.
| WF Holding Limited | ||
| By: | ||
| Name: | ||
| Title: | ||
Exhibit 10.2
PLACEMENT AGENCY AGREEMENT
July 30, 2026
Univest Securities, LLC
75 Rockefeller Plaza, Suite 25A
New York, NY 10019
Ladies and Gentlemen:
Subject to the terms and conditions of this agreement (this “Agreement”) and the Transaction Documents (as defined below), WF Holding Limited, an exempted company incorporated in the Cayman Islands (the “Company”), hereby agrees to establish an equity line of credit financing facility (the “ELOC”) pursuant to which the Company may, in its sole discretion from time to time during the commitment period specified in the applicable Transaction Documents (the “Commitment Period”), direct one or more accredited and/or institutional investors (each, an “Investor” and collectively, the “Investors”) to purchase from the Company up to approximately $30,000,000 in the aggregate of ordinary shares, par value $0.00025 per share, of the Company (the “Ordinary Shares”), through Univest Securities, LLC, as exclusive placement agent (the “Placement Agent”). The offer and sale of the Securities (as defined below) will be made pursuant to the Company’s effective shelf registration statement on Form F-3 (File No. 333-296397), including the base prospectus contained therein, and one or more prospectus supplements describing the specific terms of the Offering. Pursuant to the ELOC, the Company may deliver purchase notices from time to time, subject to the applicable Transaction Documents, and the applicable Investor will purchase Ordinary Shares at a purchase price determined under the pricing formula and subject to the terms, conditions and limitations set forth therein.
The Ordinary Shares issued and sold to an Investor pursuant to a purchase notice or other drawdown under the ELOC are referred to herein as the “Purchase Shares.” Any Ordinary Shares issued to an Investor as consideration for its commitment under the ELOC are referred to herein as the “Commitment Shares.” The Purchase Shares and the Commitment Shares are collectively referred to herein as the “Securities.” The registered direct equity line financing contemplated hereby is referred to herein as the “Offering.”
The documents executed and delivered by the Company and the Investors in connection with the Offering, including, without limitation, any equity purchase agreement (the “Equity Purchase Agreement”), subscription agreement, registration rights agreement, if any, commitment letter, purchase notice, pricing confirmation, escrow agreement, transfer agent instructions, investor questionnaire, leak-out or lock-up agreement, legal opinions and any other agreements, instruments or documents entered into in connection therewith, shall be collectively referred to herein as the “Transaction Documents.”
The aggregate commitment amount, Commitment Period, purchase-notice and drawdown mechanics, purchase-price formula (including any applicable discount, valuation period or volume-weighted average price), floor price, volume and share limitations, conditions to purchases, settlement procedures, beneficial ownership limitation, exchange cap, if any, Commitment Shares and all other terms applicable to the ELOC and each purchase shall be set forth in the applicable Transaction Documents and described, to the extent required, in the applicable Prospectus Supplement (as defined below).
Notwithstanding anything herein to the contrary, in the event that the Placement Agent determines that any of the terms provided for hereunder do not comply with a Financial Industry Regulatory Authority (“FINRA”) rule, including but not limited to FINRA Rule 5110, then the Company shall agree to amend this Agreement in writing upon the request of the Placement Agent to comply with any such rules; provided that any such amendments shall not provide for terms that are less favorable to the Company than the terms of this Agreement or terms that are adverse to the Company.
The Company hereby confirms its agreement with the Placement Agent as follows:
Section 1. Agreement to Act as Placement Agent.
(a) On the basis of the representations, warranties and agreements of the Company herein contained, and subject to all the terms and conditions of this Agreement, the Placement Agent shall be the exclusive placement agent in connection with the Offering, with the terms of such Offering to be subject to market conditions and negotiations among the Company, the Placement Agent and the prospective Investors. The Placement Agent will act on a best-efforts basis only, and the Company agrees and acknowledges that there is no guarantee that any Investor will enter into the Equity Purchase Agreement, that the Company will deliver any purchase notice, or that any purchase, drawdown or portion thereof will be consummated. Under no circumstances will the Placement Agent or any of its Affiliates (as defined below) be obligated to purchase any of the Securities for its own account or otherwise provide any financing. The Placement Agent shall act solely as the Company’s placement agent and not as principal. The Placement Agent shall have no authority to bind the Company with respect to any prospective offer to purchase Securities, and the Company shall have the sole right to accept an ELOC commitment and, subject to the Transaction Documents, to determine whether and when to deliver any purchase notice. The execution and delivery of the Transaction Documents may occur at an initial closing (the “Initial Closing”), and payment of the purchase price for, and delivery of, the Purchase Shares may occur at one or more subsequent purchase, funding or drawdown settlements (each, a “Purchase Closing,” and the Initial Closing and each Purchase Closing, a “Closing”; the date of any Closing, a “Closing Date”). As used in this Agreement, “Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms are used in and construed under Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”).
As compensation for services rendered, on each applicable Closing Date and solely with respect to gross cash proceeds then received, the Company shall pay to the Placement Agent the following:
(i) a cash fee equal to five percent (5.0%) of the aggregate gross cash proceeds actually received by the Company from each sale of Purchase Shares under the Equity Purchase Agreement (the “Cash Fee”), payable on the applicable Purchase Closing Date; provided that no Cash Fee shall be payable on the deemed value of any Commitment Shares unless otherwise agreed in writing; and
(ii) reimbursement of the Placement Agent’s reasonable travel and out-of-pocket expenses, including legal counsel fees and disbursements, not to exceed an aggregate of Fifty Thousand Dollars ($50,000), subject to compliance with FINRA Rule 5110(f)(2)(D).
(b) The term of the Placement Agent’s exclusive engagement shall begin on the date hereof and continue until the expiration or termination of the Equity Purchase Agreement (the “Termination Date”). Unless otherwise provided under this Agreement, the provisions concerning the Company’s obligation to pay any fees actually earned pursuant to Section 1(a) hereof and to pay or reimburse the Placement Agent for any expenses and legal fees incurred in accordance with Section 5 hereof, the Company’s obligations contained in the indemnification provisions, and the provisions concerning indemnification and contribution contained herein will survive any expiration or termination of this Agreement for any reason. For the avoidance of doubt, the Cash Fee shall be payable with respect to every purchase funded under the Equity Purchase Agreement during the Commitment Period, whether such purchase occurs before or after the termination of the Placement Agent’s active marketing efforts. All fees and expense payments or reimbursements due to the Placement Agent shall be paid by the Company when earned or owed. Furthermore, the Company agrees that during the Placement Agent’s engagement hereunder, all inquiries from prospective U.S. investors with respect to the Offering will be referred to the Placement Agent. Additionally, the Company represents, warrants and covenants that no brokerage or finder’s fees or commissions are or will be payable by the Company or any Subsidiary (as defined below) to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other third party with respect to the Offering. The Placement Agent agrees not to use any confidential information concerning the Company provided to the Placement Agent by the Company for any purposes other than those contemplated under this Agreement. Starting from the date of this Agreement and ending on the Termination Date, without the Placement Agent’s consent, neither the Company nor any of its agents shall, in any manner, contact, solicit or transact with any Investors that have been contacted by and through the Placement Agent and the Company shall not in any way whatsoever circumvent or attempt to circumvent the Placement Agent and shall not enter into direct or indirect offers, negotiations or transactions with any Investors contacted and revealed by the Placement Agent.
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The services provided by the Placement Agent hereunder are solely for the benefit of the Company and are not intended to confer any rights upon any persons or entities not a party hereto (including, without limitation, security holders, employees or creditors of the Company) as against the Placement Agent or its directors, officers, agents and employees.
Section 2. Representations, Warranties and Covenants of the Company. Each of the representations and warranties and covenants made by the Company to the Investors in the Transaction Documents in connection with the Offering is hereby incorporated herein by reference into this Agreement (as though fully restated herein) and is, as of the date of this Agreement and as of each Closing Date, hereby made to, and in favor of, the Placement Agent. In addition to the foregoing, the Company represents and warrants that:
(a) Registration Statement; Prospectus; Shelf Eligibility. The offer and sale of the Securities will be conducted as a registered direct offering under the Securities Act. The Company has filed with the U.S. Securities and Exchange Commission (the “SEC”) a registration statement on Form F-3 (File No. 333-296397), as amended, which became effective on June 10, 2026, for the registration under the Securities Act of Ordinary Shares, debt securities, warrants, subscription rights and units to be offered and sold by the Company from time to time (such registration statement, including all documents filed as part thereof, all information deemed to be a part thereof at the time of effectiveness pursuant to Rule 430B under the Securities Act, and all documents incorporated or deemed incorporated by reference therein, the “Registration Statement”). The base prospectus included in the Registration Statement is referred to herein as the “Base Prospectus.” The Company will prepare and file with the SEC pursuant to Rule 424(b) under the Securities Act one or more prospectus supplements specifically relating to the Offering (each, a “Prospectus Supplement”). The Base Prospectus, as supplemented by the applicable Prospectus Supplement and any amendment or supplement thereto, is referred to herein as the “Prospectus.” Any reports or other documents filed by the Company pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and incorporated or deemed incorporated by reference in the Registration Statement or the Prospectus are referred to herein as the “Incorporated Documents.” Any issuer free writing prospectus relating to the Offering that is required to be filed with the SEC pursuant to Rule 433 under the Securities Act is referred to herein as an “Issuer Free Writing Prospectus.” The Registration Statement is effective under the Securities Act. No stop order suspending its effectiveness has been issued, and no proceeding for that purpose has been initiated or, to the Company’s knowledge, threatened by the SEC. The Company has complied with each request, if any, from the SEC for additional information. The Company meets the registrant requirements for use of Form F-3 and is eligible to offer and sell the Securities pursuant to the Registration Statement. At each Closing, the aggregate amount of Securities offered and sold in the Offering, together with all other securities sold by the Company under the Registration Statement, will not exceed the amount then registered and remaining available under the Registration Statement or any limitation applicable under General Instruction I.B.5 of Form F-3. As used in this Agreement, “Registered Direct Offering Materials” means the Registration Statement, the Base Prospectus, each Prospectus Supplement, the Prospectus, the Incorporated Documents, any Issuer Free Writing Prospectus, the Transaction Documents, any investor presentation or term sheet authorized by the Company for use in connection with the Offering and any other written materials authorized by the Company and the Placement Agent for use in connection with the Offering. “Trading Market” means The Nasdaq Capital Market or any other national securities exchange on which the Ordinary Shares are then listed. “Person” means an individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization, governmental authority or other entity. “Subsidiary” means any subsidiary of the Company, and “Subsidiaries” shall be construed accordingly. “Proceeding” means any action, suit, inquiry, notice of violation, proceeding or investigation affecting the Company, any Subsidiary or any of their respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign).
(b) Disclosure. As of the applicable effective date of the Registration Statement and any post-effective amendment thereto, the Registration Statement conformed and will conform in all material respects to the requirements of the Securities Act and the rules and regulations of the SEC thereunder (the “Rules and Regulations”) and did not, does not and 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. As of its date and each Closing Date, the Prospectus conformed and will conform in all material respects to the requirements of the Securities Act and the Rules and Regulations and did not, does not and will not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The foregoing representations do not apply to statements in or omissions from the Registration Statement or the Prospectus made in reliance upon and in conformity with written information furnished to the Company by the Placement Agent expressly for use therein. The Incorporated Documents, when filed with the SEC, conformed or will conform in all material respects to the requirements of the Exchange Act and the rules and regulations thereunder. The Company has made available to the Placement Agent and the Investors all information reasonably requested by them in connection with the Offering, and there are no contracts or other documents required to be described in the Registration Statement or the Prospectus or filed as exhibits to the Registration Statement or an Incorporated Document that have not been or will not be so described or filed within the applicable time periods.
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(c) Offering Materials; Free Writing Prospectuses. Neither the Company nor any of its directors, officers, employees, agents or representatives has distributed, and none of them will distribute, any written offer relating to the Securities other than the Base Prospectus, the applicable Prospectus Supplement, the Prospectus, any Issuer Free Writing Prospectus consented to in advance by the Placement Agent, the Transaction Documents or other materials approved in advance by the Placement Agent. Each Issuer Free Writing Prospectus, if any, will comply in all material respects with the Securities Act and the Rules and Regulations and will be timely filed with the SEC to the extent required by Rule 433. Each such Issuer Free Writing Prospectus, when taken together with the Prospectus, will not conflict with the information contained in the Registration Statement or the Prospectus and will not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(d) Subsidiaries. All of the direct and indirect Subsidiaries of the Company and their respective jurisdictions of incorporation are set forth in the SEC Reports (as defined below). The Company owns, directly or indirectly, all of the Company’s portion of the capital stock or other equity interests of each Subsidiary free and clear of any liens, and all of the issued and outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securities.
(e) Organization and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any Subsidiary is in violation nor default of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational or charter documents. Each of the Company and the 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, except where the failure to be so qualified or in good standing, as the case may be, could not have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity or enforceability of any Transaction Document, (ii) a material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole, or (iii) a material adverse effect on the Company’s ability to perform in any material respect on a timely basis its obligations under any Transaction Document (any of (i), (ii) or (iii), a “Material Adverse Effect”) 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.
(f) Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of this Agreement and each of the other Transaction Documents by the Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Company and no further action is required by the Company, the Board of Directors or the Company’s shareholders in connection herewith or therewith other than in connection with the Required Approvals (as defined below). This Agreement and each other Transaction Document to which the Company is a party has been (or upon delivery will have been) duly executed by the Company and, when delivered in accordance with the terms hereof and thereof, will constitute the valid and binding obligations of the Company enforceable against the Company in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, liquidation, possessory liens, rights of set off, merger, consolidation, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally as well as applicable international sanctions, (ii) as limited by laws relating to the statutory limitation of the time within which proceedings may be brought or availability of specific performance, injunctive relief or other equitable remedies, (iii) insofar as indemnification and contribution provisions may be limited by applicable law and (iv) that such obligations (a) may not be given effect to by a Cayman Islands court if and to the extent they constitute the payment of an amount which is in the nature of a penalty and (b) may not be given effect by a Cayman Islands court to the extent that performance would be illegal under the laws of the Cayman Islands.
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(g) No Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to which it is a party, the issuance and sale of the Securities and the consummation by it of the transactions contemplated hereby and thereby do not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the case of clauses (ii) and (iii), such as could not have or reasonably be expected to result in a Material Adverse Effect.
(h) Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, Trading Market or other Person in connection with the execution, delivery and performance by the Company of the Transaction Documents and the offer and sale of the Securities, other than: (i) filing the applicable Prospectus Supplement with the SEC pursuant to Rule 424(b) under the Securities Act; (ii) filing any Issuer Free Writing Prospectus with the SEC to the extent required by Rule 433 under the Securities Act; (iii) filing a Report on Form 6-K or other Exchange Act report disclosing the transactions contemplated by the Transaction Documents and filing the Transaction Documents as exhibits thereto to the extent required; (iv) submitting any application or notification to the Trading Market for the listing of the Purchase Shares and Commitment Shares in the time and manner required thereby; (v) any filings required by FINRA, including pursuant to FINRA Rule 5110, and applicable state securities or blue sky laws; (vi) any applicable filing or reporting requirements in the Cayman Islands or Malaysia; (vii) any other filings required under applicable securities laws or Trading Market rules; and (viii) the written consent of the requisite purchasers required under the Securities Purchase Agreement entered into by the Company on June 10, 2026 (collectively, the “Required Approvals”).
(i) Issuance and Registered Sale of the Securities. The Securities have been duly authorized and, when issued and paid for, or issued as Commitment Shares, in accordance with the applicable Transaction Documents, the Registration Statement and the Prospectus, will be duly and validly issued, fully paid and non-assessable and free and clear of all liens imposed by the Company. The Company has reserved from its duly authorized share capital the maximum number of Purchase Shares and Commitment Shares required under the Transaction Documents. The offer and sale of the Securities have been registered under the Securities Act pursuant to the Registration Statement, and the Securities will be issued without any restrictive legend under the Securities Act, subject to compliance with the Transaction Documents and applicable law.
Any reference herein to the Registration Statement, the Prospectus or the Registered Direct Offering Materials shall be deemed to refer to and include the Incorporated Documents as of the applicable date; and any reference herein to any “amendment” or “supplement” shall be deemed to refer to and include any document subsequently filed with the SEC that is incorporated or deemed incorporated by reference therein.
All references in this Agreement to the Registration Statement, the Base Prospectus, the Prospectus Supplement, the Prospectus, any Issuer Free Writing Prospectus, the Incorporated Documents or any amendments or supplements to any of the foregoing shall be deemed to include the copy thereof filed with the SEC on EDGAR.
(j) Capitalization. The capitalization of the Company as of the date hereof is as set forth in the SEC Reports and the Registered Direct Offering Materials. The number of Ordinary Shares owned beneficially, and of record, by Affiliates of the Company as of the date hereof is set forth in Schedule 2(j). Except in connection with the redesignation of 3,170,664 Ordinary Shares held by Lew Capital Private Limited and 270,000 Ordinary Shares held by LYC Capital Private Limited as class A shares on July 10, 2026, as described in the Prospectus Supplement (the “Redesignation”), the Company has not issued any Ordinary Shares or other shares of capital stock since the filing of its most recently filed periodic report under the Exchange Act, other than as disclosed in the SEC Reports, pursuant to the exercise of employee stock options under the Company’s stock option plans, the issuance of Ordinary Shares to employees pursuant to the Company’s employee stock purchase plans and pursuant to the conversion and/or exercise of Ordinary Share Equivalents outstanding as of the date of the most recently filed periodic report under the Exchange Act. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by the Transaction Documents, except as disclosed in the SEC Reports or waived in connection with the Offering. As used herein, “Ordinary Share Equivalents” means any securities of the Company or any Subsidiary that would entitle the holder thereof to acquire at any time Ordinary Shares.
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(k) SEC Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required to be filed or furnished by the Company under the Securities Act and the Exchange Act for the two years preceding the date hereof, or such shorter period as the Company was required by law or regulation to file or furnish such materials (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, the “SEC Reports”), on a timely basis or has received a valid extension of such time and has filed or furnished each SEC Report prior to the expiration of such extension. As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed or furnished, contained an untrue statement of a material fact or omitted to state 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. Each Incorporated Document filed or furnished after the date hereof will conform in all material respects to the requirements of the Exchange Act and the applicable rules and regulations thereunder and will not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The financial statements of the Company included or incorporated by reference in the Registration Statement and the Prospectus comply in all material respects with applicable accounting requirements and the rules and regulations of the SEC, have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”), except as otherwise disclosed therein, and fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the dates indicated and their consolidated results of operations and cash flows for the periods specified, subject, in the case of unaudited statements, to normal year-end audit adjustments. The other financial and statistical information included or incorporated by reference in the Registration Statement and the Prospectus presents fairly, in all material respects, the information shown therein and has been prepared on a basis consistent with the financial statements and the books and records of the Company. There are no contracts or other documents required to be described in the Registration Statement or the Prospectus or filed as exhibits to the Registration Statement or an Incorporated Document that have not been so described or filed. Each agreement or instrument material to the Company’s business and described or incorporated by reference in the Registration Statement or the Prospectus has been duly authorized and validly executed by the Company, is in full force and effect in all material respects and, to the Company’s knowledge, is enforceable against the parties thereto, subject to customary bankruptcy, insolvency and equitable-principles exceptions. The Company has not been an issuer subject to Rule 144(i) under the Securities Act.
(l) Material Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included within the SEC Reports and the Registered Direct Offering Materials, (i) there has been no event, occurrence or development, including changes generally affecting the Company’s or Subsidiaries’ industries, that has had or that could reasonably be expected to result in a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities not required to be reflected in the Company’s financial statements pursuant to GAAP or disclosed in filings made with the SEC, (iii) the Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution of cash or other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock and (v) the Company has not issued any equity securities to any officer, director or Affiliate, except pursuant to the Redesignation or existing Company stock option plans. The Company does not have pending before the SEC any request for confidential treatment of information. Except for the issuance of the Securities contemplated by this Agreement no event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect to the Company or its Subsidiaries or their respective businesses, prospects, properties, operations, assets or financial condition that would be required to be disclosed by the Company under applicable securities laws at the time this representation is made or deemed made that has not been publicly disclosed at least 1 trading day prior to the date that this representation is made. Other than as set forth in the SEC Reports, the Company has not: (i) issued any securities (except in connection with the Redesignation) or incurred any liability or obligation, direct or contingent, for borrowed money; or (ii) declared or paid any dividend or made any other distribution on or in respect of its capital stock.
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(m) Litigation. Except as set forth in the SEC Reports, the Registered Direct Offering Materials there has not been, and to the knowledge of the Company, there is not pending or contemplated, any action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an “Action”) that adversely affects or challenges the legality, validity or enforceability of any of the Transaction Documents or the Securities, (ii) could, if there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect. Neither the Company nor any Subsidiary, nor any director or officer thereof, is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation by the SEC involving the Company or any current or former director or officer of the Company. The SEC has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary under the Exchange Act or the Securities Act.
(n) Labor Relations. The Company and each of its Subsidiaries is, and has been, in material compliance with all applicable laws respecting labor, employment and employment practices, terms and conditions of employment, wages and hours, including the classification of independent contractors and has not received any notice from any governmental authority in Malaysia or any other country disputing such classification. Except as set forth in the SEC Reports, no labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees of the Company, which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’ employees is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe that their relationships with their employees are good. To the knowledge of the Company, no executive officer of the Company or any Subsidiary, is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third party, and the continued employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability with respect to any of the foregoing matters. The Company and its Subsidiaries are in compliance with all U.S. federal, state, local and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment and wages and hours, except where the failure to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(o) Compliance. Except as set forth in the SEC Reports and the Registered Direct Offering Materials, neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred that has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound (whether or not such default or violation has been waived); (ii) is in violation of any judgment, decree or order of any court, arbitrator or other governmental authority; or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental authority, including without limitation all foreign, federal, state and local laws relating to taxes, environmental protection, occupational health and safety, product quality and safety and employment and labor matters, except in each case as could not have or reasonably be expected to result in a Material Adverse Effect.
(p) Regulatory Permits. The Company and the Subsidiaries possess all certificates, authorizations, approvals, orders, licenses and permits issued by the appropriate federal, state, local or foreign regulatory authorities, or by any foreign, federal, state or local governmental, judicial or regulatory authority necessary to conduct their respective businesses as described in the SEC Reports, the SEC Reports and the Registered Direct Offering Materials (each, a “Material Permit”), to own, lease and operate its properties and conduct their respective businesses as they are now being conducted or, except as disclosed in the SEC Reports and the Registered Direct Offering Materials, proposed to be conducted, in each case as disclosed in the SEC Reports and the Registered Direct Offering Materials, and each such Material Permit is valid, existing, in good standing and in full force and effect, except in each case as would not have a Material Adverse Effect. Neither the Company nor any Subsidiary has received any notice of investigation or proceedings relating to the revocation or modification of any Material Permit. The Company and each Subsidiary are in compliance with the terms and conditions of all such Material Permits, except where the failure to so comply would not, individually or in the aggregate, have a Material Adverse Effect. The disclosures in the SEC Reports concerning the effects of federal, state, local and all foreign regulation on the business of the Company and its Subsidiaries as currently contemplated are correct in all material respects.
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(q) Title to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to or have valid and marketable rights to lease or otherwise use all real property and all personal property owned or used by them that is material to the business of the Company and the Subsidiaries, in each case free and clear of all liens, except for (i) liens as do not materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries and (ii) liens for the payment of federal, state or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP and, the payment of which is neither delinquent nor subject to penalties. Any real property and facilities held under lease by the Company and the Subsidiaries are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance except where the failure to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(r) Intellectual Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks, trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights and similar rights necessary or required for use in connection with their respective businesses as described in the SEC Reports and the Registered Direct Offering Materials and which the failure to so have could have a Material Adverse Effect (collectively, the “Intellectual Property Rights”). Neither the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property Rights has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years from the date of this Agreement. Neither the Company nor any Subsidiary has received, since the date of the latest audited financial statements included within the SEC Reports and the Registered Direct Offering Materials, a written notice of a claim or otherwise has any knowledge that the operation of their respective businesses violate or infringe upon the intellectual property rights of any Person, except as could not have or reasonably be expected to have a Material Adverse Effect. To the knowledge of the Company, all such Intellectual Property Rights are enforceable and there is no existing infringement by another Person of any of the Intellectual Property Rights. The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and value of all of their intellectual properties, except where failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(s) Insurance. Except as set forth in the SEC Reports, the Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged. Neither the Company nor any Subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business without a significant increase in cost.
(t) Transactions With Affiliates and Employees. Except as set forth in the SEC Reports and the Registered Direct Offering Materials, none of the officers or directors of the Company or any Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to any transaction with the Company or any Subsidiary (other than for services as employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee, stockholder, member or partner, in each case in excess of US$120,000 other than for (i) payment of salary bonus or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) other employee benefits, including stock option agreements under any stock option plan of the Company.
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(u) Sarbanes-Oxley; Internal Accounting Controls. The Company and the Subsidiaries are in compliance in all material respects with any and all applicable requirements of the Sarbanes-Oxley Act of 2002, as amended (“SOX”), that are effective as of the date hereof, and any and all applicable rules and regulations promulgated by the SEC thereunder that are effective as of the date hereof and as of the Closing Date. Except as disclosed in the SEC Reports and the Registered Direct Offering Materials, the Company and each of its Subsidiaries maintains internal control over financial reporting (as such term is defined in Rule 13a-l5(f) under the Exchange Act) that is effective to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, including that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset and liability accountability, (iii) access to assets or incurrence of liabilities is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability for assets and liabilities is compared with the existing assets and liabilities at reasonable intervals and appropriate action is taken with respect to any difference. Except as disclosed in the SEC Reports and the Registered Direct Offering Materials, the Company and the Subsidiaries have established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries and designed such disclosure controls and procedures to ensure that information required to be disclosed by the Company in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the SEC’s rules and forms. The Company’s certifying officers have evaluated the effectiveness of the disclosure controls and procedures of the Company and the Subsidiaries as of the end of the period covered by the most recently filed Annual Report on Form 20-F under the Exchange Act (such date, the “Evaluation Date”). The Company presented in its most recently filed Annual Report on Form 20-F under the Exchange Act and disclosed in the SEC Reports and the Registered Direct Offering Materials, the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation Date, there have been no changes in the internal control over financial reporting (as such term is defined in the Exchange Act) of the Company and its Subsidiaries that have materially affected, or is reasonably likely to materially affect, the internal control over financial reporting of the Company and its Subsidiaries.
(v) Certain Fees. Other than the compensation payable to the Placement Agent pursuant to the terms of this Agreement and as disclosed in the Transaction Documents or any applicable SEC Report, no brokerage or finder’s fees or commissions are or will be payable by the Company or any Subsidiary or Affiliate of the Company to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated by the Transaction Documents. The Investors shall have no obligation with respect to any such fees or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section that may be due in connection with the transactions contemplated by the Transaction Documents.
(w) Investment Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Securities, will not be or be an Affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940, as amended. The Company shall conduct its business in a manner so that it will not become an “investment company” subject to registration under the Investment Company Act of 1940, as amended.
(x) Registration Rights. Except as set forth herein and in the SEC Reports, no Person has any right to cause the Company or any Subsidiary to effect the registration under the Securities Act of any securities of the Company or any Subsidiary.
(y) Listing and Maintenance Requirements. The Ordinary Shares are registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and the Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the Ordinary Shares under the Exchange Act nor has the Company received any notification that the SEC is contemplating terminating such registration. Except as set forth in the SEC Reports and the Registered Direct Offering Materials, the Company has not, in the 12 months preceding the date hereof, received notice from any Trading Market on which the Ordinary Shares are or have been listed or quoted to the effect that the Company is not in compliance with the listing or maintenance requirements of such Trading Market. Except as disclosed in the SEC Reports and the Registered Direct Offering Materials, the Company has no reason to believe that it will not in the foreseeable future continue to be in compliance with all such listing and maintenance requirements of such Trading Market. The Ordinary Shares are currently eligible for electronic transfer through the Depository Trust Company or another established clearing corporation and the Company is current in payment of the fees to the Depository Trust Company (or such other established clearing corporation) in connection with such electronic transfer.
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(z) Application of Takeover Protections. The Company and the Board of Directors have taken all necessary action, if any, in order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents) or the laws of its jurisdiction of incorporation that is or could become applicable to the purchasers as a result of the purchasers and the Company fulfilling their obligations or exercising their rights under the Transaction Documents, including without limitation as a result of the Company’s issuance of the Securities and the purchasers’ ownership of the Securities.
(aa) Disclosure. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company confirms that neither it nor any other Person acting on its behalf has provided any Investor or its agents or counsel with any information that it believes constitutes material, non-public information unless such information is subject to an appropriate confidentiality agreement or will be publicly disclosed in accordance with the Transaction Documents. The Company understands and confirms that the Investors will rely on the foregoing representation in effecting transactions in securities of the Company. All of the disclosure furnished by or on behalf of the Company to the Placement Agent and the Investors regarding the Company and its Subsidiaries, their respective businesses and the transactions contemplated hereby, including any disclosure schedules, is true and correct in all material respects and does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(bb) No Integrated Offering. Neither the Company nor any of its Affiliates, nor any Person acting on its or their behalf, has made any offer or sale of any security or solicited any offer to buy any security under circumstances that would require the registration under the Securities Act of any securities offered or sold in connection with the Offering that are not registered pursuant to the Registration Statement, cause the Offering to fail to comply with the Securities Act and the Rules and Regulations, or cause the Offering to be integrated with any prior offering by the Company for purposes of any applicable shareholder approval provision of the Trading Market.
(cc) Solvency. Except as disclosed in the Registered Direct Offering Materials, based on the consolidated financial condition of the Company as of the Closing Date, after giving effect to the receipt by the Company of the proceeds from the sale of the Securities hereunder, (i) the fair saleable value of the Company’s assets exceeds the amount that will be required to be paid on or in respect of the Company’s existing debts and other liabilities (including known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital to carry on its business as now conducted and as proposed to be conducted including its capital needs taking into account the particular capital requirements of the business conducted by the Company, consolidated and projected capital requirements and capital availability thereof, and (iii) the current cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate all of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of its liabilities when such amounts are required to be paid. The Company does not intend to incur debts beyond its ability to pay such debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its debt). Except as disclosed in the Registered Direct Offering Materials, the Company has no knowledge of any facts or circumstances which lead it to believe that it will file for reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction within one (1) year from the Closing Date. The Registered Direct Offering Materials sets forth as of the date of this Agreement and as of the Closing Date, respectively, all outstanding secured and unsecured Indebtedness of the Company or any Subsidiary, or for which the Company or any Subsidiary has commitments. For the purposes of this Agreement, “Indebtedness” means (x) any liabilities for borrowed money or amounts owed in excess of One Hundred and Fifty Thousand Dollars ($150,000) (other than trade accounts payable incurred in the ordinary course of business), (y) all guaranties, endorsements and other contingent obligations in respect of indebtedness of others, whether or not the same are or should be reflected in the Company’s consolidated balance sheet (or the notes thereto), except guaranties by endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; and (z) the present value of any lease payments in excess of One Hundred Thousand Dollars ($100,000) due under leases required to be capitalized in accordance with GAAP. Neither the Company nor any Subsidiary is in default with respect to any Indebtedness.
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(dd) Tax Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect, the Company and its Subsidiaries each (i) has made or filed , or secured all extensions for the filing of, all applicable United States federal, state and local income and all foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports and declarations and (iii) has set aside on its books provision reasonably adequate for the payment of all material taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company or of any Subsidiary know of no basis for any such claim. The provisions for taxes payable, if any, shown on the financial statements filed with or as part of the SEC Reports and the Registered Direct Offering Materials are sufficient for all accrued and unpaid taxes, whether or not disputed, and for all periods to and including the dates of such consolidated financial statements. The term “taxes” mean all federal, state, local, foreign, and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments, or charges of any kind whatsoever, together with any interest and any penalties, additions to tax, or additional amounts with respect thereto. The term “returns” means all returns, declarations, reports, statements, and other documents required to be filed in respect to taxes.
(ee) Foreign Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary, any agent or other person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate funds, (iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person acting on its behalf of which the Company is aware) which is in violation of law, or (iv) violated in any material respect any provision of the Foreign Corrupt Practices Act of 1977. The Company has taken commercially reasonable steps to ensure that its accounting controls and procedures are designed to cause the Company to comply in all material respects with the Foreign Corrupt Practices Act of 1977.
(ff) Accountants. The Company’s independent registered public accounting firms are set forth in the SEC Reports and the Registered Direct Offering Materials. To the knowledge of the Company, each such accounting firm (i) is a registered public accounting firm as required by the Exchange Act and (ii) will express its opinion with respect to the financial statements to be included in the Company’s Annual Report for the fiscal year ending on December 31, 2026.
(gg) Regulation M Compliance. The Company has not, and to its knowledge no one acting on its behalf (other than the Placement Agent, as to which no representation is made) has, (i) taken, directly or indirectly, any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of any of the Securities, (ii) sold, bid for, purchased, or, paid any compensation for soliciting purchases of, any of the Securities, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities of the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the Placement Agent in connection with the placement of the Securities.
(hh) Office of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s knowledge, any director, officer, agent, employee or Affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department, the United Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”), nor located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, the Russian Federation, Burma/Myanmar, Cuba, Iran, Libya, North Korea, Sudan and Syria). The Company will not, directly or indirectly, use the proceeds of the Offering, or lend, contribute or otherwise make available such proceeds to any Subsidiary or affiliated entity, joint venture partner or other Person to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the Offering, whether as placement agent, advisor, investor or otherwise).
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(ii) U.S. Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within the meaning of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon the Placement Agent’s request.
(jj) Bank Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company Act of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the “Federal Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates owns or controls, directly or indirectly, five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent (25%) or more of the total equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its Subsidiaries or Affiliates exercises a controlling influence over the management or policies of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve.
(kk) Money Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, applicable United States federal and state and foreign money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering Laws”), and no Proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any Subsidiary, threatened.
(ll) Certificates. Any certificate signed by an officer of the Company and delivered to the Placement Agent shall be deemed to be a representation and warranty by the Company to the Placement Agent as to the matters set forth therein.
(mm) Reliance. The Company acknowledges that the Placement Agent will rely upon the accuracy and truthfulness of the foregoing representations and warranties and hereby consents to such reliance.
(nn) Forward-Looking Statements. No forward-looking statements (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) contained in the Registered Direct Offering Materials have been made or reaffirmed without a reasonable basis or have been disclosed other than in good faith.
(oo) Statistical or Market-Related Data. Any statistical, industry-related and market-related data included or incorporated by reference in the Registered Direct Offering Materials are based on or derived from sources that the Company reasonably and in good faith believes to be reliable and accurate, and such data agree with the sources from which they are derived.
(pp) FINRA Affiliations. There are no affiliations with any firm that is a member of the FINRA participating in the Offering among the Company’s officers, directors or, to the knowledge of the Company, any 5% or greater shareholder of the Company.
(qq) Board of Directors. The Company’s Board of Directors is comprised of the persons identified as directors of the Company in the SEC Reports or in the Registered Direct Offering Materials. The qualifications of the persons serving as board members and the overall composition of the Board of Directors comply with the Sarbanes-Oxley Act of 2002 and the rules promulgated thereunder applicable to the Company and the rules of the Trading Market. At least one member of the Board of Directors qualifies as a “financial expert” as such term is defined under the Sarbanes-Oxley Act of 2002 and the rules promulgated thereunder and the rules of the Trading Market. In addition, at least a majority of the persons serving on the Board of Directors qualify as “independent” as defined under the rules of the Trading Market.
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(rr) Cybersecurity. There has been no security breach or other compromise of or relating to any of the Company’s or any Subsidiary’s information technology and computer systems, networks, hardware, software, data (including the data of its respective customers, employees, suppliers, vendors and any third party data maintained by or on behalf of it), equipment or technology (collectively, “IT Systems and Data”) that would reasonably be expected to result in, individually or in the aggregate, a Material Adverse Effect and (i) the Company and the Subsidiaries have not been notified of, and has no knowledge of any event or condition that would reasonably be expected to result in, any material security breach or other compromise to its IT Systems and Data; (ii) the Company and the Subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification, except as would not, individually or in the aggregate, have a Material Adverse Effect; (iii) the Company and the Subsidiaries have implemented and maintained commercially reasonable safeguards to maintain and protect its material confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and Data; and (iv) the Company and the Subsidiaries have implemented backup and disaster recovery technology consistent with industry standards and practices.
(ss) Compliance with Data Privacy Laws. The Company and the Subsidiaries are, and at all times during the last three (3) years were, in material compliance with all applicable state, federal and foreign data privacy and security laws and regulations (collectively, the “Privacy Laws”). The Company and the Subsidiaries have in place, comply with, and take appropriate steps reasonably designed to ensure compliance with their policies and procedures relating to data privacy and security and the collection, storage, use, disclosure, handling and analysis of Personal Data (as defined below) (the “Policies”). The Company provides accurate notice of its applicable Policies to its customers, employees, third-party vendors and representatives as required by the Privacy Laws. Applicable Policies provide accurate and sufficient notice of the Company’s then-current privacy practices relating to their subject matter, and do not contain any material omissions of the Company’s then-current privacy practices, as required by Privacy Laws. “Personal Data” means any information relating to an identified or identifiable natural person, including personal data as defined under applicable Privacy Laws, including the Personal Data Protection Act 2010 of Malaysia, as amended. None of the disclosures made or contained in any of the Policies have been inaccurate, misleading or deceptive in violation of any Privacy Laws and the execution, delivery and performance of the Transaction Documents will not result in a breach of any Privacy Laws or Policies. Neither the Company nor the Subsidiaries (i) to the knowledge of the Company, has received written notice of any actual or potential liability of the Company or the Subsidiaries under, or actual or potential violation by the Company or the Subsidiaries of, any of the Privacy Laws; (ii) is currently conducting or paying for, in whole or in part, any investigation, remediation or other corrective action pursuant to any regulatory request or demand pursuant to any Privacy Law; or (iii) is a party to any order, decree or agreement by or with any court or arbitrator or governmental or regulatory authority that imposed any obligation or liability under any Privacy Law.
(tt) Environmental Laws. The Company and its Subsidiaries (i) are in compliance with all federal, state, local and foreign laws relating to pollution or protection of human health or the environment (including ambient air, surface water, groundwater, land surface or subsurface strata), including laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, or toxic or hazardous substances or wastes (collectively, the “Hazardous Materials”) into the environment, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, as well as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments, licenses, notices or notice letters, orders, permits, plans or regulations, issued, entered, promulgated or approved thereunder (“Environmental Laws”); (ii) have received all permits licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses; and (iii) are in compliance with all terms and conditions of any such permit, license or approval where in each clause (i), (ii) and (iii), the failure to so comply could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
(uu) Foreign Issuer. The Company is a “foreign private issuer” as defined in Rule 405 under the Securities Act.
(vv) PFIC Status. Based on the past and projected composition of its income and assets, and the valuation of its assets, including goodwill, the Company does not expect to be a “passive foreign investment company” as defined in Section 1297 of the United States Internal Revenue Code of 1986, as amended, for its current taxable year or in the foreseeable future.
(ww) Payments in Foreign Currency. Except as disclosed in the SEC Reports and Registered Direct Offering Materials, under the laws and regulations of the Cayman Islands and Malaysia, (i) subject to solvency and applicable law, none of the Company nor any Subsidiaries is prohibited, directly or indirectly, from (A) paying any dividends or making any other distributions on its share capital, (B) making or repaying any loan or advance to the Company or any Subsidiary or (C) transferring any of its properties or assets to the Company or any Subsidiary; and (ii) dividends and other distributions declared and payable upon the share capital of the Company or any Subsidiaries may be converted into United States dollars and transferred out of such entity’s jurisdiction of incorporation, subject to applicable law and any taxes or governmental approvals disclosed in the SEC Reports and Registered Direct Offering Materials.
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(xx) Critical Accounting Policies. The statements set forth under the heading “Critical Accounting Estimates” contained in Form 20-F incorporated by reference in the SEC Reports and the Registered Direct Offering Materials, accurately and fully describes in all material respects accounting policies which the Company believes are the most important in the portrayal of the financial condition and results of operations of the Company and the Subsidiaries on a consolidated basis and which require management’s most difficult, subjective or complex judgments (the “Critical Accounting Policies”); (B) material judgments and uncertainties affecting the application of Critical Accounting Policies; and (C) explanation of the likelihood that materially different amounts would be reported under different conditions or using different assumptions. Senior management has reviewed and agreed with the selection, application and disclosure of Critical Accounting Policies. The section entitled “Operating Results” contained in or incorporated by reference into the SEC Reports and Registered Direct Offering Materials, accurately and fully describes: (x) all material trends, demands, commitments, events, uncertainties and risks, and the potential effects thereof, that the Company believes would materially affect liquidity and are reasonably likely to occur; and (y) all material off-balance sheet arrangements that have or are reasonably likely to have a current or future effect on the financial condition, changes in financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources of the Company and the Subsidiaries on a consolidated basis. There are no outstanding guarantees or other contingent obligations of the Company or the Subsidiaries that could reasonably be expected to have a Material Adverse Effect.
(yy) Open Source Software. Except as described in the SEC Reports and the Registered Direct Offering Materials, or as would not reasonably be expected to, singly or in the aggregate, have a Material Adverse Effect: (i) the Company and any Subsidiaries use and have used any and all software and other materials distributed under a “free,” “open source,” or similar licensing model (including but not limited to the MIT License, Apache License, GNU General Public License, GNU Lesser General Public License and GNU Affero General Public License) (the “Open Source Software”) in compliance with all license terms applicable to such Open Source Software; and (ii) neither the Company nor any Subsidiaries uses or distributes or has used or distributed any Open Source Software in any manner that requires or has required (A) the Company or any Subsidiaries to permit reverse engineering of any software code or other technology owned by the Company or any Subsidiaries or (B) any software code or other technology owned by the Company or any Subsidiaries to be (1) disclosed or distributed in source code form, (2) licensed for the purpose of making derivative works or (3) redistributed at no charge.
(zz) Cayman Islands Taxes. Except as otherwise disclosed in the Registered Direct Offering Materials, no Cayman Islands stamp, capital, issuance, registration, transfer or withholding taxes or duties are payable to any Cayman Islands taxing authority in connection with the issuance, sale and delivery of the Securities to or for the account of the Investors, provided that the documents relating thereto are executed and remain outside the Cayman Islands. If any such document is brought into or executed in the Cayman Islands, nominal Cayman Islands stamp duty may be payable.
Section 3. Covenants and Agreements of the Company. The Company further covenants and agrees with the Placement Agent as follows:
(a) Registration Statement and Prospectus Matters. The Company will advise the Placement Agent promptly: (i) when the applicable Prospectus Supplement has been filed; (ii) when any amendment to the Registration Statement has become effective; (iii) of any request by the SEC for any amendment to the Registration Statement or amendment or supplement to the Prospectus, any additional information or any review of the Company’s filings under the Exchange Act; (iv) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to the use of the Registration Statement or the institution or threatening of any proceeding for that purpose; and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the institution or threatening of any proceeding for such purpose. The Company will use its reasonable best efforts to prevent the issuance of any such stop order or suspension and, if issued, to obtain the withdrawal thereof as promptly as practicable. The Company will file the applicable Prospectus Supplement pursuant to Rule 424(b) within the time required by the Securities Act and the Rules and Regulations and will maintain the effectiveness of the Registration Statement and sufficient registered and available shelf capacity for each purchase and drawdown under the Transaction Documents.
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(b) Blue Sky Compliance. The Company will cooperate with the Placement Agent and the Investors in endeavoring to qualify, register or obtain exemptions from qualification or registration for the Offering under the securities laws of applicable jurisdictions (United States and foreign) as the Placement Agent and the Investors may reasonably request and will make such applications, file such documents, and furnish such information as may be reasonably required for that purpose; provided that the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction where it is not now so qualified or required to file such a consent. The Company will advise the Placement Agent promptly of the suspension of the qualification, registration or exemption of the Securities for offering or sale in any jurisdiction or any initiation or threat of any Proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, the Company shall use its reasonable best efforts to obtain the withdrawal thereof at the earliest possible moment.
(c) Amendments and Supplements. The Company will comply with the Securities Act, the Exchange Act, applicable state securities laws and the Rules and Regulations so as to permit the completion of the registered direct offering of the Securities as contemplated by this Agreement, the Registration Statement, the Prospectus and the Transaction Documents. During the period in which a prospectus relating to the Securities is required to be delivered under the Securities Act (whether physically or through compliance with Rule 172 under the Securities Act, the “Prospectus Delivery Period”), if any event occurs or condition exists as a result of which the Prospectus would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or if it is otherwise necessary to amend the Registration Statement or amend or supplement the Prospectus to comply with applicable law, the Company will promptly notify the Placement Agent and prepare and file with the SEC, subject to the next sentence, an appropriate amendment or supplement. Before filing any amendment to the Registration Statement or amendment or supplement to the Prospectus in connection with the Offering, the Company will furnish the Placement Agent with a copy of the proposed filing and will not file any such amendment or supplement to which the Placement Agent reasonably objects.
(d) Copies of Offering Documents. The Company will furnish the Placement Agent, without charge, during the Prospectus Delivery Period, as many copies of the Registration Statement, the Base Prospectus, each Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus and any amendments and supplements thereto as the Placement Agent may reasonably request.
(e) Issuer Free Writing Prospectuses. The Company will not, without the prior written consent of the Placement Agent, prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus relating to the Securities. If the Company and the Placement Agent consent to the use of an Issuer Free Writing Prospectus, the Company will comply with Rules 164 and 433 under the Securities Act and will retain copies thereof in accordance with Rule 433. The Company will not take any action that would require the Placement Agent to file an Issuer Free Writing Prospectus prepared by or on behalf of the Placement Agent that the Placement Agent would not otherwise be required to file.
(f) Transfer Agent. The Company will maintain, at its expense, a registrar and transfer agent for the Ordinary Shares.
(g) Shelf Registration; Prospectus Delivery. During the Prospectus Delivery Period and throughout the Commitment Period, and until all Purchase Shares and Commitment Shares required to be issued under the Transaction Documents have been issued and delivered, the Company will use its reasonable best efforts to keep the Registration Statement effective and not subject to any stop order or notice of objection, to keep the Prospectus current, to maintain sufficient securities registered and available under the Registration Statement for the issuance of all Securities contemplated by the Transaction Documents, and to satisfy its obligations under the Securities Act, including through Rule 172, with respect to prospectus delivery. The Company will not deliver a purchase notice or issue any Securities pursuant to the Registration Statement unless the applicable Prospectus is current and the Company has sufficient shelf capacity and is eligible to use Form F-3 for such issuance.
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(h) Periodic Reporting Obligations. The Company will duly file, on a timely basis, with the SEC and the Trading Market all reports and documents required to be filed under the Exchange Act within the time periods and in the manner required by the Exchange Act, except as otherwise disclosed in the SEC Reports.
(i) Additional Documents. The Company will enter into the Equity Purchase Agreement and any other customary agreements as the Placement Agent or the Investors deem necessary or appropriate to consummate the Initial Closing and each purchase under the ELOC, all of which will be in form and substance reasonably acceptable to the Placement Agent and the Investors. The Company agrees that the Placement Agent may rely upon, and is a third-party beneficiary of, the representations, warranties and applicable covenants set forth in the Transaction Documents.
(j) No Manipulation of Price. The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, the stabilization or manipulation of the price of any securities of the Company.
(k) Acknowledgment. The Company acknowledges that any advice given by the Placement Agent to the Company is solely for the benefit and use of the Board of Directors of the Company and may not be used, reproduced, disseminated, quoted or referred to, without the Placement Agent’s prior written consent.
(l) Announcement of Offering. The Company acknowledges and agrees that the Placement Agent may, subsequent to the Initial Closing and any Purchase Closing, make public its involvement with the Offering.
(m) Reliance on Others. The Company confirms that it will rely on its own counsel and accountants for legal and accounting advice.
(n) Research Matters. By entering into this Agreement, the Placement Agent provides no promise, either explicitly or implicitly, of favorable or continued research coverage of the Company and the Company hereby acknowledges and agrees that the Placement Agent’s selection as the placement agent for the Offering was in no way conditioned, explicitly or implicitly, on the Placement Agent’s providing favorable or any research coverage of the Company. In accordance with FINRA Rule 2711(e), the parties acknowledge and agree that the Placement Agent has not directly or indirectly offered favorable research, a specific rating or a specific price target, or threatened to change research, a rating or a price target, to the Company or inducement for the receipt of business or compensation.
(o) Termination for Cause. Notwithstanding anything herein to the contrary, this Agreement may be terminated by the Company for “Cause,” which shall mean a material breach by the Placement Agent of this Agreement or a material failure by the Placement Agent to provide the services as contemplated by this Agreement.
(p) Securities Laws Disclosure; Publicity. The Company shall, at the date and time agreed upon by the Company, the Placement Agent and the Investors, issue a press release and/or furnish a Report on Form 6-K disclosing the material terms of the ELOC and shall include the Transaction Documents as exhibits thereto to the extent required by the Exchange Act. The Company shall also timely file the applicable Prospectus Supplement pursuant to Rule 424(b) under the Securities Act before the first sale of Securities under the ELOC and shall file any further prospectus supplement required in connection with any purchase or drawdown. From and after such public disclosure, the Company represents that it shall have publicly disclosed all material, non-public information delivered by the Company or any of its Subsidiaries, or any of their respective officers, directors, employees, Affiliates or agents, in connection with the transactions contemplated by the Transaction Documents, except for information subject to ongoing confidentiality obligations or information not required to be publicly disclosed under applicable law. The Company and the Placement Agent shall consult with each other in issuing any other press releases with respect to the transactions contemplated hereby.
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Section 4. Conditions of the Obligations of the Placement Agent. The obligations of the Placement Agent hereunder shall be subject to the accuracy of the representations and warranties on the part of the Company set forth in Section 2 hereof, in each case as of the date hereof and as of the Initial Closing and, to the extent applicable or required by the Transaction Documents, each Purchase Closing, to the timely performance by the Company of its covenants and other obligations hereunder, and to each of the following additional conditions:
(a) Registration Statement; Prospectus Filings. The Registration Statement shall be effective under the Securities Act, no stop order suspending its effectiveness and no notice objecting to its use shall have been issued, and no proceeding for any such purpose shall have been initiated or threatened by the SEC. The applicable Prospectus Supplement and each Issuer Free Writing Prospectus required to be filed with the SEC shall have been timely filed pursuant to Rule 424(b) or Rule 433, as applicable, and all other filings required to be made by the Company under the Securities Act, the Exchange Act and applicable Trading Market rules in connection with the Offering shall have been made or shall be ready to be made within the applicable time period.
(b) No Material Misstatement; No Suspension; FINRA. The Placement Agent shall not have discovered and disclosed to the Company on or prior to the applicable Closing Date that the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or any amendment or supplement thereto contains an untrue statement of a fact that, in the reasonable opinion of counsel for the Placement Agent, is material or omits to state a fact that, in the reasonable opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading. No order having the effect of preventing, suspending or ceasing the registered direct Offering or the issuance, sale, delivery or settlement of the Securities under the ELOC shall have been issued by any securities commission, securities regulatory authority or Trading Market, and no proceeding for that purpose shall have been instituted or shall be pending or, to the knowledge of the Company, contemplated. FINRA, to the extent applicable, shall have raised no objection to the fairness and reasonableness of the placement terms and arrangements.
(c) Corporate Proceedings. All corporate proceedings and other legal matters in connection with this Agreement, the Transaction Documents, the registered direct Offering, sale, issuance, delivery or settlement of the Securities under the ELOC, and any required listing of the Purchase Shares and Commitment Shares, shall have been completed or resolved in a manner reasonably satisfactory to the Placement Agent’s counsel, and such counsel shall have been furnished with such papers and information as it may reasonably have requested to enable such counsel to pass upon the matters referred to in this Section 4.
(d) No Material Adverse Change. Subsequent to the execution and delivery of this Agreement and prior to the applicable Closing Date, in the Placement Agent’s reasonable judgment after consultation with the Company, there shall not have occurred any material adverse change or development involving a prospective material adverse change in the condition or the business activities, financial or otherwise, of the Company from the latest dates as of which such condition is set forth in the SEC Reports or the Registered Direct Offering Materials (each, a “Material Adverse Change”).
(e) Opinions of Counsel for the Company. The Placement Agent shall have received at the Initial Closing written opinions of U.S. counsel, Cayman Islands counsel and Malaysian counsel to the Company, dated as of the Initial Closing Date and addressed to the Placement Agent and the Investors, including, without limitation, customary opinions regarding due authorization, valid issuance of the Securities, the effectiveness of the Registration Statement and registration of the offer and sale of the Securities under the Securities Act, and such other matters as the Placement Agent may reasonably request, in form and substance reasonably satisfactory to the Placement Agent.
(f) Officers’ Certificate. The Placement Agent shall have received at the Initial Closing a certificate of the Company, dated as of the Initial Closing Date and which may be relied upon by the Placement Agent, signed by the Chief Executive Officer of the Company, in his or her capacity as Chief Executive Officer only, in a form satisfactory to the Placement Agent, to the effect that:
(i) The representations and warranties of the Company in this Agreement are true and correct in all material respects (except such representations and warranties which are qualified by materiality or by Material Adverse Effect, which shall be true and correct in all respects), as if made on and as of the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) The Registration Statement is effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement and no notice objecting to its use has been issued; no proceedings for any such purpose have been instituted or are pending or, to the Company’s knowledge, threatened by the SEC; no order having the effect of ceasing or suspending the distribution of the Securities or any other securities of the Company has been issued by any securities commission, securities regulatory authority or Trading Market in the United States; and no proceedings for that purpose have been instituted or are pending or, to the Company’s knowledge, contemplated;
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(iii) At the time of sale and at all times subsequent thereto up to the delivery of such certificate, the Registration Statement, the Prospectus, the Incorporated Documents and any Issuer Free Writing Prospectus contained all material information required to be included therein by the Securities Act, the Exchange Act and the applicable rules and regulations of the SEC thereunder, as applicable, and in all material respects conformed to the requirements thereof; and the Registration Statement did not and does 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, and the Prospectus and each Issuer Free Writing Prospectus did not and do not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the foregoing shall not apply to statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by the Placement Agent expressly for use therein; and
(iv) Subsequent to the respective dates as of which information is given in the SEC Reports and the Registered Direct Offering Materials, there has not been: (i) any Material Adverse Change; (ii) any transaction that is material to the Company and the Subsidiaries taken as a whole, except transactions entered into in the ordinary course of business; (iii) any obligation, direct or contingent, that is material to the Company and the Subsidiaries taken as a whole, incurred by the Company or any Subsidiary, except obligations incurred in the ordinary course of business; (iv) any material change in the share capital (except changes thereto resulting from the exercise of outstanding share options or warrants or the issuance, sale or delivery of the Securities under the ELOC) or outstanding indebtedness of the Company or any Subsidiary; (v) any dividend or distribution of any kind declared, paid or made on the share capital of the Company; or (vi) any loss or damage (whether or not insured) to the property of the Company or any Subsidiary which has been sustained or will have been sustained which has a Material Adverse Effect.
(g) Chief Financial Officer’s Certificate. At the Initial Closing the Placement Agent shall have received a certificate of the chief financial officer of the Company, dated as of such date, addressed to the Placement Agent and in form and substance reasonably satisfactory to the Placement Agent, providing customary certification as to such accounting and financial matters included or incorporated by reference in the Registration Statement or the Prospectus as the Placement Agent may reasonably request.
(h) Secretary’s Certificate. The Placement Agent shall have received at the Initial Closing, a certificate of the Company, dated as of the Closing Date and which may be relied upon by the Placement Agent, signed by the secretary or other officer of the Company, certifying, among others, (i) that Company’s second amended and restated memorandum and articles of association, and all amendments thereto, is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) that each of the Company and its Subsidiaries is in good standing under the laws of the jurisdiction of its incorporation or organization; (iv) as to the accuracy and completeness of all correspondence between the Company or its counsel and the SEC; and (v) as to the incumbency of the officers of the Company, in a form reasonably acceptable to the Placement Agent.
(i) Exchange Act Registration and Stock Exchange Listing. The Ordinary Shares and, if required by the Trading Market, the Purchase Shares and Commitment Shares shall be registered under the Exchange Act and listed on the Trading Market, and the Company shall not have taken any action designed to terminate, or likely to have the effect of terminating, the registration of the Ordinary Shares under the Exchange Act or delisting or suspending from trading the Ordinary Shares from the Trading Market, nor shall the Company have received any information suggesting that the SEC or the Trading Market is contemplating terminating such registration or listing.
(j) Due Diligence. The Placement Agent shall have completed its due diligence investigation of the Company and the Offering to the reasonable satisfaction of the Placement Agent and its counsel.
(k) Additional Documents. On or before the Closing Date, the Placement Agent and counsel to the Placement Agent shall have received such information and documents as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Securities as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained.
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If any condition specified in this Section 4 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Placement Agent by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability on the part of any party to any other party, except that Section 1 (Agreement to Act as Placement Agent), Section 5 (Payment of Fees and Expenses), Section 6 (Indemnification and Contribution) and Section 7 (Representations and Indemnities to Survive Delivery) shall at all times be effective and shall survive such termination.
Section 5. Payment of Fees and Expenses. Subject to compliance with FINRA Rule 5110(f)(2)(D), the Company agrees to pay all reasonable costs, fees and expenses incurred by the Company in connection with the performance of its obligations hereunder and the transactions contemplated hereby, including, without limitation: (i) payment to the Placement Agent of its Cash Fee and reimbursement of legal and other out-of-pocket fees, costs and expenses of Fifty Thousand Dollars ($50,000); (ii) all expenses incident to the registration, issuance, delivery and qualification of the Securities; (iii) all fees and expenses of the registrar and transfer agent of the Ordinary Shares; (iv) all necessary issue, transfer and other stamp taxes in connection with the issuance and sale of the Securities; (v) all fees and expenses of the Company’s counsel, registered independent public accounting firm and other advisors; (vi) all costs and expenses incurred in connection with the preparation, negotiation, execution and delivery of this Agreement, the Transaction Documents, the Registration Statement, the Base Prospectus, each Prospectus Supplement, the Prospectus, each Issuer Free Writing Prospectus, any Form 6-K or other Exchange Act report, any blue sky filing and any Trading Market listing application; (vii) all filing fees, reasonable attorneys’ fees and expenses incurred by the Company in connection with registering or qualifying all or any part of the Securities for offer and sale under federal or state securities laws or the securities laws of any other country; (viii) the fees and expenses associated with listing the Purchase Shares and Commitment Shares on the Trading Market; and (ix) all other fees, costs and expenses incident to the transactions contemplated by this Agreement and the Transaction Documents.
Section 6. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the Placement Agent, its Affiliates and each Person controlling the Placement Agent, and the directors, officers, agents and employees of the Placement Agent, their respective affiliates and each such controlling person (the Placement Agent, and each such entity or person, an “Indemnified Person”) to the fullest extent permitted by applicable law from and against any losses, claims, damages, judgments, assessments, costs and other liabilities (collectively, the “Liabilities”), and shall reimburse each Indemnified Person for all fees and expenses (including the reasonable fees and expenses of one counsel for all Indemnified Persons, except as otherwise expressly provided herein) (collectively, the “Expenses”) as they are incurred by an Indemnified Person in investigating, preparing, pursuing or defending any Proceedings, whether or not any Indemnified Person is a party thereto, (i) caused by, arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus, any Incorporated Document or any other Registered Direct Offering Materials, or any amendment or supplement thereto, or by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except to the extent such statement or omission was made in reliance upon and in conformity with written information furnished to the Company by or on behalf of an Indemnified Person expressly for use therein, or (ii) otherwise arising out of or in connection with advice or services rendered or to be rendered by any Indemnified Person pursuant to this Agreement, the transactions contemplated thereby or any Indemnified Person’s actions or inactions in connection with any such advice, services or transactions; provided, however, that, in the case of clause (ii) only, the Company shall not be responsible for any Liabilities or Expenses of any Indemnified Person that are finally judicially determined to have resulted solely from such Indemnified Person’s (x) gross negligence or willful misconduct in connection with any of the advice, actions, inactions or services referred to above or (y) use of any offering materials or information concerning the Company in connection with the offer or sale of the Securities in the Offering that were not authorized for such use by the Company and which use constitutes gross negligence or willful misconduct. The Company also agrees to reimburse each Indemnified Person for all Expenses as they are incurred in connection with enforcing such Indemnified Person’s rights under this Agreement.
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(b) Upon receipt by an Indemnified Person of actual notice of an Proceeding against such Indemnified Person with respect to which indemnity may be sought under this Agreement, such Indemnified Person shall promptly notify the Company in writing; provided that failure by any Indemnified Person so to notify the Company shall not relieve the Company from any liability which the Company may have on account of this indemnity or otherwise to such Indemnified Person, except to the extent the Company shall have been prejudiced by such failure. The Company shall, if requested by the Placement Agent, assume the defense of any such Proceeding including the employment of counsel reasonably satisfactory to the Placement Agent, which counsel may also be counsel to the Company. Any Indemnified Person shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless: (i) the Company has failed promptly to assume the defense and employ counsel or (ii) the named parties to any such Proceeding (including any impeded parties) include such Indemnified Person and the Company, and such Indemnified Person shall have been advised in the reasonable opinion of counsel that there is an actual conflict of interest that prevents the counsel selected by the Company from representing both the Company (or another client of such counsel) and any Indemnified Person; provided that the Company shall not in such event be responsible hereunder for the fees and expenses of more than one firm of separate counsel for all Indemnified Persons in connection with any Proceeding or related Proceedings, in addition to any local counsel. The Company shall not be liable for any settlement of any Proceeding effected without its written consent (which shall not be unreasonably withheld). In addition, the Company shall not, without the prior written consent of the Indemnified Person (which shall not be unreasonably withheld), settle, compromise or consent to the entry of any judgment in or otherwise seek to terminate any pending or threatened Proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not such Indemnified Person is a party thereto) unless such settlement, compromise, consent or termination includes an unconditional release of each Indemnified Person from all Liabilities arising out of such Proceeding for which indemnification or contribution may be sought hereunder. The indemnification required hereby shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as such expense, loss, damage or liability is incurred and is due and payable.
(c) In the event that the foregoing indemnity is unavailable to an Indemnified Person other than in accordance with this Agreement, the Company shall contribute to the Liabilities and Expenses paid or payable by such Indemnified Person in such proportion as is appropriate to reflect (i) the relative benefits to the Company, on the one hand, and to the Placement Agent and any other Indemnified Person, on the other hand, of the matters contemplated by this Agreement or (ii) if the allocation provided by the immediately preceding clause is not permitted by applicable law, not only such relative benefits but also the relative fault of the Company, on the one hand, and the Placement Agent and any other Indemnified Person, on the other hand, in connection with the matters as to which such Liabilities or Expenses relate, as well as any other relevant equitable considerations; provided that in no event shall the Company contribute less than the amount necessary to ensure that all Indemnified Persons, in the aggregate, are not liable for any Liabilities and Expenses in excess of the amount of fees actually received by the Placement Agent pursuant to this Agreement. For purposes of this paragraph, the relative benefits to the Company, on the one hand, and to the Placement Agent on the other hand, of the matters contemplated by this Agreement shall be deemed to be in the same proportion as (a) the total value paid or contemplated to be paid to or received or contemplated to be received by the Company in the transaction or transactions that are within the scope of this Agreement, whether or not any such transaction is consummated, bears to (b) the fees paid to the Placement Agent under this Agreement. Notwithstanding the above, no person guilty of fraudulent misrepresentation within the meaning of Section 11(f) of the Securities Act, as amended, shall be entitled to contribution from a party who was not guilty of fraudulent misrepresentation.
(d) The Company also agrees that no Indemnified Person shall have any liability (whether direct or indirect, in contract or tort or otherwise) to the Company for or in connection with advice or services rendered or to be rendered by any Indemnified Person pursuant to this Agreement, the transactions contemplated thereby or any Indemnified Person’s actions or inactions in connection with any such advice, services or transactions except for Liabilities (and related Expenses) of the Company that are finally judicially determined to have resulted solely from such Indemnified Person’s gross negligence or willful misconduct in connection with any such advice, actions, inactions or services.
(e) The reimbursement, indemnity and contribution obligations of the Company set forth herein shall apply to any modification of this Agreement and shall remain in full force and effect regardless of any termination of, or the completion of any Indemnified Person’s services under or in connection with, this Agreement.
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Section 7. Representations and Indemnities to Survive Delivery. The respective indemnities, agreements, representations, warranties and other statements of the Company or any person controlling the Company, of its officers, and of the Placement Agent set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of the Placement Agent, the Company, or any of its or their partners, officers or directors or any controlling person, as the case may be, and will survive delivery of and payment for the Securities sold hereunder and any termination of this Agreement. A successor to the Placement Agent, or to the Company, its directors or officers or any person controlling the Company, shall be entitled to the benefits of the indemnity, contribution and reimbursement agreements contained in this Agreement.
Section 8. Right of First Refusal. Beginning on the date hereof until the twelve (12)-month anniversary following the date hereof, whether or not this Agreement is terminated, other than termination for Cause (as defined below), the Company grants the Placement Agent the right to provide investment banking services to the Company in all matters for which the following investment banking services are sought by the Company (such right, the “ROFR”). For these purposes, investment banking services shall mean (a) acting as lead manager for any underwritten public offering; (b) acting as placement agent, initial purchaser or financial advisor in connection with any private offering of securities of the Company; and (c) acting as financial advisor in connection with any sale or other transfer by the Company, directly or indirectly, of a majority or controlling portion of its capital stock or assets to another entity, any purchase or other transfer by another entity, directly or indirectly, of a majority or controlling portion of the capital stock or assets of the Company, and any merger or consolidation of the Company with another entity. Within five (5) days after the Company’s decision to enter into any such transaction, the Company shall provide written notice to the Placement Agent, and the Placement Agent shall notify the Company of its intention to exercise the ROFR within five (5) business days following receipt of such written notice from the Company. Any decision by the Placement Agent to act in any such capacity shall be contained in separate agreements, which agreements would contain, among other matters, provisions for customary fees for transactions of similar size and nature, as may be mutually agreed upon by the parties thereto, and indemnification of the Placement Agent which are appropriate to such transaction and shall be subject to general market conditions. If the Placement Agent declines to exercise the ROFR or in the event the terms proposed by the Placement Agent are unsatisfactory to the Company, the Company shall have the right to retain any other person or persons to provide such services on terms and conditions which are not more favorable to such other person or persons than the terms declined by the Placement Agent in the first instance, or than the terms proposed by the Placement Agent in the second instance. The ROFR granted hereunder may be terminated by the Company for “Cause”, which shall mean a material breach by the Placement Agent of this Agreement or a material failure by the Placement Agent to provide the services as contemplated by this Agreement. The services provided by the Placement Agent hereunder are solely for the benefit of the Company and are not intended to confer any rights upon any persons or entities not a party hereto (including, without limitation, securityholders, employees or creditors of the Company) as against the Placement Agent or its directors, officers, agents and employees. For the avoidance of doubt, the foregoing ROFR shall not apply to (i) any financing transaction where the Company deals directly with the lender or investor without using any intermediary, (ii) any employee benefit or compensation-related issuance, or (iii) any acquisition-related issuance of securities of the Company as consideration without the intention of financing.
Section 9. Notices. All communications hereunder shall be in writing and shall be overnight, next business day delivery, hand delivered or e-mailed and confirmed to the parties hereto as follows:
If to the Placement Agent to the address set forth above, attention: Yi (Edric) Guo, Chief Executive Officer, e-mail: yguo@univest.us.
If to the Company:
WF Holding Limited
Lot 3893, Jalan 4D, Kg. Baru Subang
Seksyen U6, 40150 Shah Alam, Selangor, Malaysia Tel: +60 3 7847 1828
Attention: Leah Siang Ling, Co-Chief Executive Officer
Email: ir@wffholding.com
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With a copy (which shall not constitute notice) to:
Bevilacqua PLLC Attention: Kevin (Qixiang) Sun, Esq.
800 Connecticut Avenue, NW, Suite 300 Washington, DC 20006 Tel: (202) 869-0888
Any party hereto may change the address for receipt of communications by giving written notice to the others.
Section 10. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto, and to the benefit of the employees, officers and directors and controlling persons referred to in Section 7 hereof, and to their respective successors, and personal representative, and no other person will have any right or obligation hereunder.
Section 11. Partial Unenforceability. The invalidity or unenforceability of any section, paragraph or provision of this Agreement shall not affect the validity or enforceability of any other section, paragraph or provision hereof. If any section, paragraph or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.
Section 12. Governing Law Provisions; Exclusive Jurisdiction. This Agreement and the transactions contemplated hereby shall be governed as to validity, interpretation, construction, effect and in all other respects by the internal laws of the State of New York, without regard to the conflict of laws principles thereof. Each of the Placement Agent and the Company: (i) agrees that any legal suit, action or Proceeding arising out of or relating to this Agreement and/or the transactions contemplated hereby shall be instituted exclusively in the New York Supreme Court, County of New York, or in the United States District Court for the Southern District of New York, (ii) waives any objection which it may have or hereafter to the venue of any such suit, action or Proceeding, and (iii) irrevocably consents to the jurisdiction of the New York Supreme Court, County of New York, and the United States District Court for the Southern District of New York in any such suit, action or Proceeding. Each of the Placement Agent and the Company further agrees to accept and acknowledge service of any and all process which may be served in any such suit, action or Proceeding in the New York Supreme Court, County of New York, or in the United States District Court for the Southern District of New York and agrees that service of process upon the Company mailed by certified mail to the Company’s address shall be deemed in every respect effective service of process upon the Company, in any such suit, action or Proceeding, and service of process upon the Placement Agent mailed by certified mail to the Placement Agent’s address shall be deemed in every respect effective service process upon the Placement Agent, in any such suit, action or Proceeding. If either party shall commence an action or Proceeding to enforce any provision of this Agreement, then the prevailing party in such action or Proceeding shall be reimbursed by the other party for its reasonable attorney’s fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or Proceeding.
Section 13. General Provisions.
(a) This Agreement and the Transaction Documents together constitute the entire agreement of the parties to this Agreement and supersedes all prior written or oral and all contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof. This Agreement may be executed in two or more counterparts, each one of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement may not be amended or modified unless in writing by all of the parties hereto, and no condition herein (express or implied) may be waived unless waived in writing by each party whom the condition is meant to benefit. Section headings herein are for the convenience of the parties only and shall not affect the construction or interpretation of this Agreement.
(b) The Company acknowledges that in connection with the Offering of the Securities: (i) the Placement Agent has acted at arm’s length, is not an agent of, and owes no fiduciary duties to the Company or any other person, (ii) the Placement Agent owes the Company only those duties and obligations set forth in this Agreement and (iii) the Placement Agent may have interests that differ from those of the Company. The Company waives to the full extent permitted by applicable law any claims it may have against the Placement Agent arising from an alleged breach of fiduciary duty in connection with the Offering of the Securities.
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If the foregoing is in accordance with your understanding of our agreement, please sign below whereupon this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms.
| WF Holding Limited | ||
| By: | /s/ Leah Siang Ling | |
| Name: | Leah Siang Ling | |
| Title: | Co-Chief Executive Officer and Director | |
| Accepted and agreed to as of the date first written above: | ||
| Univest Securities, LLC | ||
| By: | /s/ Yi (Edric) Guo | |
| Name: | Yi (Edric) Guo | |
| Title: | Chief Executive Officer | |
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