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UNITEDSTATES
SECURITIES AND EXCHANGECOMMISSION
Washington, D.C. 20549
Form
8-K
Current Report
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
April 25, 2024
Date of Report (Date ofearliest event reported)
AGBA GROUP HOLDING LIMITED
(Exact Name of Registrantas Specified in its Charter)
British Virgin Islands 001-38909 N/A
(State or other jurisdiction (Commission File Number) (I.R.S. Employer
of incorporation) Identification No.)
AGBA Tower N/A
68 Johnston Road
Wan Chai
,
Hong Kong
SAR
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephonenumber, including area code:
+
852
3601 8363
N/A
(Former name or formeraddress, if changed since last report)
Check the appropriatebox below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of
the followingprovisions:
Writtencommunications pursuant to Rule 425 under the Securities Act
Solicitingmaterial pursuant to Rule 14a-12 under the Exchange Act
Pre-commencementcommunications pursuant to Rule 14d-2(b) under the Exchange Act
Pre-commencementcommunications pursuant to Rule 13e-4(c) under the Exchange Act
Securities registered pursuant to Section12(b) of the Act:
Title of each class Trading Symbol(s) Name of each exchange
on which registered
Ordinary Shares, AGBA NASDAQ
$0.001 par value Capital Market
Warrants, each warrant exercisable for one-half AGBAW NASDAQ
of one Ordinary Share for $11.50 per full share Capital Market
Indicate by check markwhether the registrant is an emerging growth company as
defined in Rule 405 of the Securities Act of 1933 (17 CFR (s)230.405) or
Rule12b-2 of the Securities Exchange Act of 1934 (17 CFR (s)240.12b-2).
Emerging growth company
If an emerging growthcompany, indicate by check mark if the registrant has
elected not to use the extended transition period for complying with any new
orrevised financial accounting standards provided pursuant to Section 13(a) of
the Exchange Act.
Item1.01 Entry into a Material Definitive Agreement.
As previously disclosed, onApril 16, 2024, AGBA Group Holding Limited, a
British Virgin Islands business company ("
AGBA
"), entered into that certainAgreement and Plan of Merger (the "
Merger Agreement
"), by and between AGBA, its wholly owned subsidiary AGBA SocialInc. ("
Merger Sub
"), Triller Corp., a Delaware corporation ("
Triller
") and Bobby Sarnevesht, solelyas representative of the Triller stockholders.
On April 25, 2024, AGBA enteredinto the Amended and Restated Standby Equity
Purchase Agreement ("
A&R SEPA
") with YA II PN, LTD,a Cayman Islands exempt limited partnership ("
Yorkville
"), and Triller. The A&R SEPA amended and restated certainStandby Equity
Purchase Agreement entered by Yorkville and Triller dated October 23, 2023.
Pursuant to the A&R SEPA, Triller, or AGBAafter the transactions contemplated
by the Merger Agreement (the "
Merger
") are closed (Triller before the closing ofthe Merger, and AGBA after the
closing of the Merger, are referred to as the "
Company
"), has the right to sell to Yorkville upto $500 million of ordinary shares,
par value $0.001 per share, of the Company, ("
Common Shares
"), subject to certainlimitations and conditions set forth in the SEPA, from
time to time during the term of the SEPA. Sales of the shares of Common
Sharesto Yorkville under the SEPA, and the timing of any such sales, are at
the Company's option, and the Company is under noobligation to sell any shares
of Common Shares to Yorkville under the SEPA except in connection with notices
that may be submittedby Yorkville, in certain circumstances as described below.
Upon the satisfaction of theconditions to Yorkville's purchase obligation set
forth in the SEPA, including having a registration statement registering the
resaleof the Common Shares issuable under the SEPA declared effective by the
Securities and Exchange Commission after the Merger is closed,the Company will
have the right, but not the obligation, from time to time at its discretion
until the SEPA is terminated to direct Yorkville topurchase a specified number
of Common Shares ("
Advance
") by delivering written notice to Yorkville ("
AdvanceNotice
"). While there is no mandatory minimum amount for any Advance, it may not
exceed the greater of the aggregate daily tradedamount over the three trading
days immediately preceding an Advance Notice.
The Common Shares purchasedpursuant to an Advance delivered by the Company
will be purchased at a price equal to (a) 95% of the lowest daily VWAP of the
Common Sharesduring the period of the delivery date of the Advance Notice (the
"
Advance Notice Date
") commencing (i) if submittedprior to the open of trading, the open of
trading on such day, or (ii) if submitted after the open of trading, upon
receipt by confirmedby the Company, ending at 4:00 pm ET on the Advance Notice
Date; or (b) 97% of the lowest daily VWAP of the Common Shares on the
threeconsecutive trading days commencing on the date of the Advance Notice
Date, other than the daily VWAP on a day in which the daily VWAPis less than a
minimum acceptable price as stated by the Company in the Advance Notice or
there is no VWAP on the subject trading day.The Company may establish a
minimum acceptable price in each Advance Notice below which the Company will
not be obligated to make anysales to Yorkville. "
VWAP
" is defined as the daily volume weighted average price of the shares of
common stockfor such trading day on the Nasdaq Stock Market during regular
trading hours as reported by Bloomberg L.P.
In connection with the SEPA,and subject to the conditions set forth therein,
Yorkville has agreed to advance to the Company in the form of convertible
promissory notes(the "
Convertible Notes
") an aggregate principal amount of up to $8.51 million (the "
Pre-Paid Advance
").The purchase price for the Pre-Paid Advance is 94.0% of the principal
amount of the Pre-Paid Advance. Interest shall accrue on the outstandingbalance
of any Pre-Paid Advance at an annual rate equal to 5%, subject to an increase
to 18% upon an event of default as described inthe Convertible Notes. The
maturity date of the Convertible Note issue in connection with each Pre-Paid
Advance will be 12 months afterthe issuance date of such Convertible Note.
Yorkville may convert the Convertible Notes into shares of the Common Shares
atany time after the Merger at a fixed conversion price (the "
Conversion Price
") equal to (i) the principal mount andinterests, divided by (ii) the
determination of the lower of (a) 100% of the VWAP during the ten trading days
preceding the closing dateof the Merger (the "
Fixed Price
"), or (b) 92.5% of the lowest daily VWAP during the 10 consecutive trading
days immediatelypreceding the conversion date or other date of determination
(the "
Variable Price
"), provided that the Variable Priceshall not be lower than the Floor Price.
The "
Floor Price
", solely with respect to the Variable Price, shall be equalto (i) a price
equal to 20% of the average of the daily VWAPs during the ten (10) trading
days immediately preceding the closing dateof the Merger, and (ii) from and
after the date of effectiveness of the initial registration statement, 20% of
the VWAP of the tradingday immediately prior to the date of effectiveness of
the initial registration statement, if such price is lower than the price in
part(i) of this sentence. Notwithstanding the foregoing, the Company may
reduce the Floor Price to any amounts set forth in a written noticeto the
holder; provided that such reduction shall be irrevocable and shall not be
subject to increase thereafter.
1
Beginning on the seventh (7th)day after a Trigger Event occurs, the Company
shall repay a portion of the outstanding balance of the Pre-Paid Advance in an
amount equalto (i) $1,750,000 (the "
Triggered Principal Amount
"), plus (ii) the a payment premium of 7.5% of such Triggered PrincipalAmount,
and (iii) accrued and unpaid interest hereunder as of each payment date. At
any time or times on or after the Merger, Yorkvilleshall be entitled to
convert any portion of any due and unpaid outstanding amount under the
Convertible Note at the Conversion Price.In addition, upon the occurrence and
during the continuation of an event of default, the Convertible Notes shall
become immediately dueand payable. In no event shall Yorkville be allowed to
effect a conversion if such conversion, along with all other Common
Sharesbeneficially owned by Yorkville and its affiliates would exceed 4.99% of
the outstanding shares of the common stock of the Company."
Trigger Event
" shall mean (i) from and after the consummation of the Merger, if and when
the daily VWAP is less thanthe Floor Price for any five (5) of seven (7)
consecutive trading days, (ii) unless the Company has obtained the approval
from its shareholdersin accordance with the rules of Nasdaq for the issuance
of Common Shares pursuant to the transactions contemplated in Convertible
Notesand the A&R SEPA in excess of the 20% of the issued and outstanding
Common Shares(the "
Exchange Cap
"), the Companyhas issued in excess of 99% of the Common Shares available
under the Exchange Cap (an "
Exchange Cap Trigger
"), or (iii)the Company is in material breach of the Registration Rights
Agreement, and such breach remains uncured for a period of 20 trading days,or
the occurrence of a registration event as set forth in the Registration Rights
Agreement (the last such day of each such occurrence,a "
Trigger Date
").
Yorkville, in its sole discretionand providing that there is a balance
remaining outstanding under the Convertible Notes, may deliver a notice under
the A&R SEPA requiringthe issuance and sale of Common Shares to Yorkville at
the Conversion Price in consideration of an offset of the ConvertibleNotes ("
Yorkville Advance
"). Yorkville, in its sole discretion, may select the amount of any Yorkville
Advance,provided that the number of shares issued does not cause Yorkville to
exceed the 4.99% ownership limitation, does not exceedthe Exchange Cap or the
amount of shares of common stock that are registered. As a result of a
Yorkville Advance, the amountspayable under the Convertible Notes will be
offset by such amount subject to each Yorkville Advance.
Under the applicable Nasdaqrules, in no event may the Company issue to
Yorkville under the Purchase Agreement more than 14,870,832 CommonShares,
which number of shares is equal to 19.99% of the Common Shares outstanding
immediately prior to the execution of the Purchase Agreement (the"
Exchange Cap
"), unless (i) the Company obtains stockholder approval to issue Common Shares
in excess of the ExchangeCap in accordance with applicable Nasdaq rules, or
(ii) the average price per share paid by Yorkville for all of the CommonShares
that the Company directs Yorkville to purchase from the Company pursuant to
the Purchase Agreement, if any,equals or exceeds the lower of (a) the official
closing price of the Common Shares on Nasdaq immediately preceding the
execution of the Purchase Agreement and(b) the average official closing price
of the Common Shares on Nasdaq for the five consecutive trading days
immediately preceding theexecution of the Purchase Agreement, adjusted as
required by Nasdaq so that the Exchange Cap limitation will not apply to
issuancesand sales of Common Shares pursuant to the A&R SEPA. Moreover, the
Company may not issue or sell any Common Shares to Yorkville underthe A&R SEPA
which, when aggregated with all other Common Shares then beneficially owned by
Yorkville and its affiliates(as calculated pursuant to Section 13(d) of the
Securities Exchange Act of 1934, as amended (the "
Exchange Act
"), andRule 13d-3 thereunder), would result in Yorkville beneficially owning
more than 4.99% of the outstanding shares of Common Shares.
The SEPA will automaticallyterminate on the earliest to occur of (i) the
36-month anniversary of the date of the SEPA or (ii) the date on which the
Company shallhave made full payment of Advances pursuant to the A&R SEPA. The
Company has the right to terminate the SEPA at no cost or penaltyupon five (5)
trading days' prior written notice to Yorkville, provided that there are no
outstanding Advance Notices for whichshares of common stock need to be issued
and the Company has paid all amounts owed to Yorkville pursuant to the
ConvertibleNotes. The Company and Yorkville may also agree to terminate the
SEPA by mutual written consent. Neither the Company nor Yorkville mayassign or
transfer our respective rights and obligations under the SEPA, and no
provision of the SEPA may be modified or waived by usor Yorkville other than
by an instrument in writing signed by both parties.
2
As consideration forYorkville's commitment to purchase the shares of common
stock pursuant to the A&R SEPA, Triller has paid Yorkville, (i)structuring fee
in the amount of $25,000 and shall pay (ii) a commitment fee equal to 0.35% of
$500 million of Common Shares to bepaid by Triller on the six month
anniversary of the date of the A&R SEPA in cash, or (ii) if earlier, by the
Company by thefifth trading day following the Merger by the issuance to
Yorkville of such number of Common Shares that is equal to $500 million
ofCommon Shares divided by the average of the daily VWAP of the Common Shares
for the first three trading days immediately followingthe consummation of the
Merger (collectively, the "
Commitment Shares
").
Pursuant to the A&R SEPA,at the Merger, AGBA shall also issue a warrant (the "
Common Warrant
") to Yorkville to purchase up to a number of sharesof Class A common stock,
par value $0.0001 per share of Triller Corp. equal to 25% of the principal
amount of the Pre-Paid Advance dividedby a price equal to the Fixed Price,
each such Common Warrant with an exercise price equal to the Fixed Price
(subject to adjust therein).
The A&R SEPA containscustomary representations, warranties, conditions and
indemnification obligations of the parties. The representations, warranties
andcovenants contained in such agreements were made only for purposes of such
agreements and as of specific dates, were solely for the benefitof the parties
to such agreements and may be subject to limitations agreed upon by the
contracting parties.
The parties to the A&RSEPA also entered into a registration rights agreement
(the "
RRA
") to file with the Securities and Exchange Commissiona registration statement
covering the resale of all of the registrable securities under the RRA.
Triller Hold Co LLC executeda Guarantee and a Pledge Agreement, each dated
April 25, 2024, regarding the obligations of the Company under the A&R SEPA.
This Current Report on Form8-K shall not constitute an offer to sell or a
solicitation of an offer to buy any shares of Common Shares, nor shall there
be any saleof shares of common stock in any state or jurisdiction in which
such an offer, solicitation or sale would be unlawful prior to registrationor
qualification under the securities laws of any such state or other
jurisdiction.
Item 2.03 Creation of aDirect Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement of a Registrant.
The information set forthin Item 1.01 of this Current Report on Form 8-K is
incorporated herein by reference.
Item 3.02 UnregisteredSales of Equity Securities
The information set forthin Item 1.01 of this Current Report on Form 8-K is
incorporated herein by reference.
In the A&R SEPA, Yorkville representedto the Triller and AGBA, among other
things, that it is an "accredited investor" (as such term is defined in Rule
501(a) of RegulationD under the Securities Act). The securities referred to in
this Current Report on Form 8-K are being issued and sold by theCompany to
Yorkville in reliance upon the exemption from the registration requirements of
the Securities Act affordedby Section 4(a)(2) of the Securities Act.
Item 9.01. FinancialStatements and Exhibits.
(d)
Exhibits.
Exhibit No. Description
10.1 Amended and Restated Standby Equity Purchase Agreement, dated April 25, 2024,
by and among AGBA Group Holding Limited, YA II PN, LTD, and Triller Corp.
10.2 Form of Convertible Promissory
Notes issued to YA II PN, Ltd.
10.3 Form of Common Warrant to be issued by AGBA
Group Holding Limited to YA II PN, LTD
10.4 Global Guaranty Agreement, dated April 25, 2024,
by and among YA II PN, LTD and Triller Hold Co LLC
10.5 Pledge Agreement, dated April 25, 2024, by and
among YA II PN, LTD and Triller Hold Co LLC.
10.6 Registration Rights Agreement, dated April 25, 2024, by and among
AGBA Group Holding Limited, YA II PN, LTD, and Triller Corp.
104 Cover Page Interactive Data File (embedded
within the Inline XBRL document)
3
SIGNATURE
Pursuant to the requirementsof the Securities and Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereuntoduly authorized.
AGBA GROUP HOLDING LIMITED
By: /s/ Shu Pei Huang, Desmond
Name: Shu Pei Huang, Desmond
Title: Acting Group Chief Financial Officer
Dated: April 30, 2024
4
Exhibit 10.1
AMENDED AND RESTATED STANDBY EQUITY PURCHASEAGREEMENT
THIS AMENDED AND RESTATEDSTANDBY EQUITY PURCHASE AGREEMENT
(this "
Agreement
") dated as of April 25, 2024, is made by and between
YA IIPN, LTD.
, a Cayman Islands exempted company (the "
Investor
"),
AGBA GROUP HOLDING LIMITED,
a British VirginIslands business company ("
AGBA Group
" or the "
Parent
"), and
TRILLER CORP.,
a company incorporatedunder the laws of the State of Delaware ("
Triller Corp.
" or the "
Company
", and together with theInvestor and the Parent, the "parties" or separately
each a "party").
WHEREAS
, on April 16,2024, Parent entered into that certain Agreement and Plan of
Merger (as may be amended, supplemented or otherwise modified from time
totime, the "
Merger Agreement
"), by and between Parent, its wholly owned subsidiary AGBA Social Inc. ("
MergerSub
"), the Company and Bobby Sarnevesht, solely as representative of the Company
stockholders. Pursuant to the Merger Agreement,(a) the Company was to complete
its reorganization (the "
Triller Reorganization
") with Triller Hold Co LLC ("
TrillerLLC
"), such that Triller LLC will reorganize into the Company as a Delaware
Corporation, (b) Parent would domesticate to theUnited States as a Delaware
corporation (the "
AGBA Domestication
"), pursuant to which, among other things, all Parent'sordinary shares, par
value $0.001 per share ("
AGBA Ordinary Shares
") would automatically convert into the same numberof shares of common stock,
par value $0.001 per share of the Parent (the "
Common Shares
") and (c) after giving effectto the Triller Reorganization and the AGBA
Domestication, Merger Sub will be merged into the Company (the "
Merger
), withthe Company surviving the Merger and becoming a wholly owned subsidiary
of Parent.
WHEREAS
, on April 18,2024, the Triller Reorganization was completed.
WHEREAS
, the Investorand the Company entered into that certain Standby Equity
Purchase Agreement on October 23, 2023 (the "
Original SEPA Agreement
"),pursuant to which the Company shall have the right to issue and sell to the
Investor, from time to time as provided herein, and the Investorshall purchase
from the Company, up to $500 million of the Company's Common Shares;
WHEREAS
, the Partiesdesire to amend and restate the Original SEPA Agreement on the
terms set forth herein to, among other things, modify the Original
SEPAAgreement (i) to take into consideration the Triller Reorganization and
the Merger (A) by adding the Parent as a party for the periodfrom the
Effective Date until immediately prior to the consummation of the Merger (the "
Merger Time
") as specificallyprovided herein only, and (B) by acknowledging that as of
the Merger Time, and except as otherwise provided herein, the rights and
obligationsof the Company set forth in this Agreement shall become the rights
and obligations of the Parent; and (ii) to provide to the Company financingin
the amount of $8.51 million in the form of a Pre-Paid Advance, which shall be
funded to the Company concurrently with the executionand delivery of this
Agreement;
WHEREAS
, the partiesare concurrently entering into an Amended and Restated
Registration Rights Agreement in the form attached as
Exhibit D
hereto (the"
Registration Rights Agreement
"), pursuant to which the Company shall register the resale of the Registrable
Securities(as defined in the Registration Rights Agreement), upon the terms
and subject to the conditions set forth therein;
WHEREAS
, certain Subsidiariesof the Company are concurrently entering into a Guaranty
Agreement in the form attached as
Exhibit E
hereto (the "
GuarantyAgreement
"), pursuant to which the Subsidiaries party thereto shall guaranty all of the
Company's obligations under theAgreement, the Promissory Note issued
hereunder, and all other instruments, agreements or other items executed or
delivered;
WHEREAS
, the Companyand certain Subsidiaries of the Company are concurrently entering
into a Pledge Agreement in the form attached as
Exhibit F
hereto(the "
Pledge Agreement
"), pursuant to which the Company and certain Subsidiaries party thereto shall
grant a securityinterest over certain equity interests of the Company or
certain Subsidiaries in connection with the Company's obligations underthe
Agreement, the Promissory Notes issued hereunder, and the Guaranty Agreement.
WHEREAS
, the AGBA OrdinaryShares are listed for trading on the Nasdaq Stock Market
under the symbol "AGBA;"
WHEREAS
, the offerand sale of the Common Shares issuable hereunder will be made in
reliance upon Section 4(a)(2) under the Securities Act of 1933, as amended,and
the rules and regulations promulgated thereunder (the "
Securities Act
"), or upon such other exemption from theregistration requirements of the
Securities Act as may be available with respect to any or all of the
transactions to be made hereunder;and
WHEREAS
, for the purposesof this Agreement, all references herein to the "Company"
shall, prior to the Merger Time refer to Triller Corp., and effectiveas of the
Merger Time, to AGBA Group, unless the context specifically indicates
otherwise.
NOW
,
THEREFORE
in consideration of the representations, warranties, covenants and agreements
contained herein and for other good and valuable consideration,the receipt and
sufficiency of which is hereby acknowledged, intending to be legally bound
hereby, the parties, hereby agree as follows:
Article I. Certain Definitions
"
Additional Shares
"shall have the meaning set forth in Section 3.01(e)(ii).
"
Adjusted AdvanceAmount
" shall have the meaning set forth in Section 3.01(e)(i).
"
Advance
"shall mean any issuance and sale of Advance Shares by the Company to the
Investor pursuant to Article II hereof.
"
Advance Date
"shall mean the first Trading Day after expiration of the applicable Pricing
Period for each Advance.
-
2
-
"
Advance Notice
"shall mean a written notice in the form of Exhibit A attached hereto to the
Investor executed by an officer of the Company and settingforth the number of
Advance Shares that the Company desires to issue and sell to the Investor.
"
Advance Notice Date
"shall mean each date the Company is deemed to have delivered (in accordance
with Section 3.01(c) of this Agreement) an Advance Noticeto the Investor,
subject to the terms of this Agreement.
"
Advance Shares
"shall mean the Common Shares that the Company shall issue and sell to the
Investor pursuant to the terms of this Agreement.
"
Affiliate
"shall have the meaning set forth in Section 4.09.
"
Agreement
"shall have the meaning set forth in the preamble of this Agreement.
"
Allrem PromissoryNote
" shall mean that certain promissory note, dated as of October 9, 2023, by and
between Allrem BK Investors, LLC and BareKnuckle Fighting Championships, Inc.
"
Applicable Laws
"shall mean all applicable laws, statutes, rules, regulations, orders,
executive orders, directives, policies, guidelines and codes havingthe force
of law, whether local, national, or international, as amended from time to
time, including without limitation (i) all applicablelaws that relate to money
laundering, terrorist financing, financial record keeping and reporting, (ii)
all applicable laws that relateto anti-bribery, anti-corruption, books and
records and internal controls, including the United States Foreign Corrupt
Practices Act of1977, and (iii) any Sanctions laws.
"
Average Price
"shall mean a price per Share equal to the quotient obtained by dividing (i)
the aggregate gross purchase price paid by the Investor forall Shares
purchased pursuant to this Agreement, by (ii) the aggregate number of Shares
issued pursuant to this Agreement.
"
BKFC PromissoryNote
" shall mean that certain promissory note, dated as of August 3, 2023, by and
between Manole Fintech and Bare Knuckle FightingChampionships, Inc.
"
Black Out Period
"shall have the meaning set forth in Section 7.03.
"
Closing
"shall have the meaning set forth in Section 2.02.
"
Commitment Amount
"shall mean $500.0 million of Common Shares.
"
Commitment Fee
"shall have the meaning set forth in Section 13.04.
"
Commitment Period
"shall mean the period commencing on the Effective Date and expiring upon the
date of termination of this Agreement in accordance withSection 11.01.
"
Commitment Shares
"shall have the meaning set forth in Section 13.04.
"
Common Share Equivalents
"shall mean any securities of the Company or its Subsidiaries which entitle
the holder thereof to acquire at any time shares of its stock,including,
without limitation, any debt, preferred stock, rights, options, warrants or
other instrument that is at any time convertibleinto or exercisable or
exchangeable for, or otherwise entitles the holder thereof to receive, shares
of its stock.
-
3
-
"
Common Shares
"shall have the meaning set forth in the recitals of this Agreement.
"
Common Warrants
"means the warrants to purchase Common Shares delivered to the Investor at the
Pre-Advance Closing in accordance with Section 2.2 hereof,which Common
Warrants shall be in the form of
Exhibit I
attached hereto.
"
Common Warrant Shares
"means the Common Shares issuable upon exercise of Common Warrants.
"
Company
"shall have the meaning set forth in the preamble of this Agreement.
"
Company Indemnitees
"shall have the meaning set forth in Section 6.02.
"
Condition SatisfactionDate
" shall have the meaning set forth in Section 8.01.
"
Current Report
"shall have the meaning set forth in Section 7.14.
"
Daily Traded Amount
"shall mean the daily trading volume of the Company's Common Shares on the
Principal Market during regular trading hours as reportedby Bloomberg L.P.
"
Effective Date
"shall mean the date hereof.
"
Environmental Laws
"shall have the meaning set forth in Section 5.13.
"
Exchange Act
"shall mean the U.S. Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
"
Exchange Cap
"shall have the meaning set forth in Section 3.01(d)(iii).
"
Excluded Day
"shall have the meaning set forth in Section 3.01(e)(i).
"
Equitization Event
"shall mean the date when Total Formation, Inc. and Verzuz LLC have (i)
converted the entirety of their respective debt obligations currentlyheld
against the Company (and/or its Subsidiaries) into Common Shares and (ii)
irrevocably released and discharged any and all securityinterests, liens,
charges, or encumbrances (the "
Existing Security Interests
") they hold in, on, or against the assetsof the Company, any Subsidiary and
any Guarantors, including for the avoidance of doubt, the Original SEPA
Agreement.
"
GAAP
"shall have the meaning set forth in Section 5.06.
"
Guaranty Agreement
"shall have the meaning set forth in the preamble of this Agreement.
"
Guarantor
"shall have the meaning set forth in the Guaranty Agreement.
-
4
-
"
Hazardous Materials
"shall have the meaning set forth in Section 5.13.
"
Indemnified Liabilities
"shall have the meaning set forth in Section 6.01.
"
Investor
"shall have the meaning set forth in the preamble of this Agreement.
"
Investor Indemnitees
"shall have the meaning set forth in Section 6.01.
"
Investor Notice
"shall mean a written notice to the Company in the form set forth herein as
Exhibit C attached hereto.
"
Market Price
"shall mean an Option 1 Market Price or Option 2 Market Price, as applicable.
"
Material AdverseEffect
" shall mean any event, occurrence or condition that has had or would
reasonably be expected to have (i) a material adverseeffect on the legality,
validity or enforceability of this Agreement or the transactions contemplated
herein, (ii) a material adverseeffect on the results of operations, assets,
business or condition (financial or otherwise) of the Company and its
Subsidiaries, takenas a whole, or (iii) a material adverse effect on the
Company's ability to perform in any material respect on a timely basis
itsobligations under this Agreement.
"
Material OutsideEvent
" shall have the meaning set forth in Section 7.10.
"
Maximum AdvanceAmount
" in respect of each Advance Notice means an amount equal to the aggregate
Daily Traded Amount over the three (3) TradingDays immediately preceding an
Advance Notice.
"
Minimum AcceptablePrice
" or "
MAP
" shall mean the minimum price notified by the Company to the Investor in each
Advance Notice,if applicable.
"
OFAC
"shall have the meaning set forth in Section 5.31.
"
Option 1 MarketPrice
" shall mean the VWAP of the Common Shares during the Option 1 Pricing Period.
"
Option 2 MarketPrice
" shall mean the lowest daily VWAP of the Common Shares during the Option 2
Pricing Period.
"
Option 1 PricingPeriod
" shall mean the period on the applicable Advance Notice Date with respect to
an Advance Notice selecting an Option 1Pricing Period commencing (i) if
submitted to Investor prior to 9:00 a.m. Eastern Time on a Trading Day, the
open of trading on such dayor (ii) if submitted to Investor after 9:00 a.m.
Eastern Time on a Trading Day, upon receipt by the Company of written
confirmation (whichmay be by e-mail) of acceptance of such Advance Notice by
the Investor (or the open of regular trading hours, if later), and which
confirmationshall specify such commencement time, and, in either case, ending
on 4:00 p.m. New York City time on the applicable Advance Notice Date.
"
Option 2 PricingPeriod
" shall mean the three consecutive Trading Days commencing on the Advance
Notice Date.
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"
Ownership Limitation
"shall have the meaning set forth in Section 3.01(d)(i).
"
Person
"shall mean an individual, a corporation, a partnership, a limited liability
company, a trust or other entity or organization, includinga government or
political subdivision or an agency or instrumentality thereof.
"
Plan of Distribution
"shall mean the section of a Registration Statement disclosing the plan of
distribution of the Shares.
"
Pricing Period
"shall mean the Option 1 Pricing Period or Option 2 Pricing Period, as
applicable.
"
Principal Market
"shall mean the Nasdaq Stock Market; provided however, that in the event the
Common Shares are ever listed or traded on the New York StockExchange, or the
NYSE American, then the "Principal Market" shall mean such other market or
exchange on which the Common Sharesare then listed or traded to the extent
such other market or exchange is the principal trading market or exchange for
the Common Shares.
"
Prospectus
"shall mean any prospectus (including, without limitation, all amendments and
supplements thereto) used by the Company in connection witha Registration
Statement.
"
Prospectus Supplement
"shall mean any prospectus supplement to a Prospectus filed with the SEC from
time to time pursuant to Rule 424(b) under the SecuritiesAct, including the
documents incorporated by reference therein.
"
Purchase Price
"shall mean the price per Advance Share obtained by multiplying the Market
Price by (i) 95% in respect of an Advance Notice with an Option1 Pricing
Period, and (ii) 97% in respect of an Advance Notice with an Option 2 Pricing
Period.
"
Registration RightsAgreement
" shall have the meaning set forth in the preamble of this Agreement.
"
Registrable Securities
"shall have the meaning set forth in the Registration Rights Agreement.
"
Registration Limitation
"shall have the meaning set forth in Section 3.01(d)(ii).
"
Registration Statement
"shall mean a registration statement on Form S-1 or Form S-3 or on such other
form promulgated by the SEC for which the Parent then qualifiesand which
counsel for the Company shall deem appropriate, and which form shall be
available for the registration of the resale by theInvestor of the Registrable
Securities under the Securities Act, which registration statement provides for
the resale from time to timeof the Shares as provided herein.
"
Regulation D
"shall mean the provisions of Regulation D promulgated under the Securities Act.
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"
Sanctions
"shall have the meaning set forth in Section 5.31.
"
Sanctioned Countries
"shall have the meaning set forth in Section 5.31.
"
SEC
" shallmean the U.S. Securities and Exchange Commission.
"
SEC Documents
"shall mean (1) any registration statement filed by the Company with the SEC,
including the financial statements, schedules, exhibits andall other documents
filed as a part thereof or incorporated therein and all information deemed to
be a part thereof as of the effectivedate of such registration statement under
the Securities Act, (2) any proxy statement or prospectus filed by the Company
with the SEC,including all documents incorporated or deemed incorporated
therein by reference, whether or not included in a registration statementon
Form S-4, in the form in which such proxy statement or prospectus has most
recently been filed with the SEC pursuant to Rule 424(b)under the Securities
Act, (3) all reports, schedules, registrations, forms, statements, information
and other documents filed with orfurnished to the SEC by the Company pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act during the two years
prior to thedate hereof, including, without limitation, the Current Report,
(4) each Registration Statement, as the same may be amended from timeto time,
the Prospectus contained therein and each Prospectus Supplement thereto and
(5) all information contained in such filings andall documents and disclosures
that have been and heretofore shall be incorporated by reference therein.
"
Securities Act
"shall have the meaning set forth in the recitals of this Agreement.
"
Settlement Document
"shall have the meaning set forth in Section 3.02(a).
"
Shares
"shall mean the Commitment Shares, Common Warrant Shares and the Common Shares
to be issued from time to time hereunder pursuant to anAdvance.
"
Solvent
"shall mean, as to any Person as of any date of determination, that on such
date (a) the fair value of the property of such Person is greaterthan the
total amount of liabilities, including contingent liabilities, of such Person,
(b) the present fair saleable value of such Personis not less than the amount
that will be required to pay the probable liability of such Person on its
debts as they become absolute andmatured, (c) such Person does not intend to,
and does not believe that it will, incur debts or liabilities beyond such
Person'sability to pay such debts and liabilities as they mature and (d) such
Person is not engaged in a business or a transaction, and is notabout to
engage in a business or a transaction, for which such Person's property would
constitute an unreasonably small capital.The amount of any contingent
liability at any time shall be computed as the amount that, in light of all of
the facts and circumstancesexisting at such time, represents the amount that
can reasonably be expected to become an actual or matured liability.
"
Subsidiaries
"shall mean any Person in which the Company, directly or indirectly, (x) owns
a majority of the outstanding capital stock or holds a majorityof the equity
or similar interest of such Person or (y) controls or operates all or
substantially all of the business, operations or administrationof such Person,
and the foregoing are collectively referred to herein as "
Subsidiaries
."
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"
Trading Day
"shall mean any day during which the Principal Market shall be open for
business.
"
Transaction Documents
"shall have the meaning set forth in Section 5.02.
"
Trigger Event
"shall have the meaning set forth in in the Promissory Note.
"Triller
Reorganization
"shall have the meaning set forth in the preamble of this Agreement.
"
Variable Rate Transaction
"shall mean a transaction in which the Company (i) issues or sells any shares
of stock of the Company or Common Share Equivalents thatare convertible into,
exchangeable or exercisable for, or include the right to receive additional
shares of stock of the Company either(A) at a conversion price, exercise
price, exchange rate or other price that is based upon and/or varies with the
trading prices of orquotations for the shares at any time after the initial
issuance of the shares or Common Share Equivalents, or (B) with a
conversion,exercise or exchange price that is subject to being reset at some
future date after the initial issuance of such equity or debt securityor upon
the occurrence of specified or contingent events directly or indirectly
related to the business of the Company or the market forthe shares (including,
without limitation, any "full ratchet," "share ratchet," "price 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), (ii) enters into, or
effects a transaction under, anyagreement, including but not limited to an
"equity line of credit" or other continuous offering or similar offering of
sharesor Common Share Equivalents, (iii) or (iii) enters into or effects any
forward purchase agreement, equity pre-paid forward transactionor other
similar offering of securities where the purchaser of securities of the
Company receives an upfront or periodic payment of all,or a portion of, the
value of the securities so purchased, and the Company receives proceeds from
such purchaser based on a price or valuethat varies with the trading prices of
the shares.
"
Volume Threshold
"shall mean a number of Common Shares equal to the quotient of (a) the number
of Advance Shares requested by the Company in an AdvanceNotice divided by (b)
0.30.
"
VWAP
"
shall mean, for a specified period, the volume weighted average price of
theCommon Shares on the Principal Market, for such period as reported by
Bloomberg L.P. through its "AQR" function
.
Article II. Pre-Paid Advances
Section 2.01
Pre-PaidAdvance
. Subject to the satisfaction of the conditions set forth in Annex I attached
hereto, the Investor shall advance to the Companythe principal amount of
$8,510,000 (less any deductions set forth herein) of the Commitment Amount
hereunder (the "
Pre-Paid Advance
"),which shall be evidenced by a secured convertible promissory note in the
form attached hereto as
Exhibit G
(the "
PromissoryNote
"). The Pre-Paid Advance shall be advanced on the date of execution of this
Agreement (the "
Pre-Paid Advance Closing
").At the Pre-Paid Advance Closing, the Company shall sell, and the Investor
agrees to purchase, a corresponding number of warrants as determinedpursuant
to Section 2.02.
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Section 2.02
Pre-PaidAdvance Closing
. The Pre-Paid Advance Closing shall occur remotely by conference call and
electronic delivery of documentation onthe date hereof (or such other date as
mutually agreed upon by the Parties hereto), provided that the conditions set
forth on Annex Ihave been satisfied. At the Pre-Advance Closing, (i) the
Investor shall advance to the Company the principal amount of the Pre-Paid
Advance,less a discount in the amount equal to 6% of the principal amount of
the Pre-Paid Advance
structuredas an original issue discount (the "
Original Issue Discount
")
, in immediately available funds to an accountdesignated by the Company in
writing, and the Company shall deliver the Promissory Note with a principal
amount equal to the full amountof the applicable Pre-Paid Advance, duly
executed on behalf of the Company, and (ii) the Company shall commit to issue
to the Investorat the Merger Time, Common Warrants registered in the name of
the Investor to purchase up to a number of shares of Class A common stock,par
value $0.0001 per share of Triller Corp. equal to 25% of the principal amount
of the Pre-Paid Advance divided by a price equal tothe Fixed Price (as defined
in the Promissory Note), each such Common Warrant with an exercise price equal
to the Fixed Price (subjectto adjust therein). The Company acknowledges that
the Original Issue Discount shall not be funded but shall be deemed to be
fully earnedon the closing of each Pre-Paid Advance and shall not reduce the
principal outstanding under the Pre-Paid Advance.
Article III. Advances
Section 3.01
Advances;Mechanics
. Upon the terms and subject to the conditions of this Agreement, during the
Commitment Period, (i) the Company, at its solediscretion, shall have the
right, but not the obligation, to issue and sell to the Investor, and the
Investor shall subscribe for andpurchase from the Company, Advance Shares by
the delivery to the Investor of Advance Notices, provided (x) no balance is
outstanding undera Promissory Note, or, (y) if there is a balance outstanding
under a Promissory Note, a Trigger Event has occurred in accordance
withSection 3.01(a)(iii) hereof, and (ii) for so long as there is a balance
outstanding under the Promissory Note, the Investor, at its solediscretion
shall have the right, but not the obligation, by the delivery to the Company
of Investor Notices, to cause an Advance Noticeto be deemed delivered to the
Investor and the issuance and sale of Common Shares to the Investor pursuant
to an Advance as set out inSection 3.01(b), on the below terms; provided,
however, that any Advance Notice or Investor Notice, as applicable, will
require the effectivenessof a Registration Statement registering with the SEC
the Registrable Securities:
(a) Advance Notice
. At any time during the Commitment Period, the Company may require the
Investorto purchase Shares by delivering an Advance Notice to the Investor,
subject to the satisfaction or waiver by the Investor of the conditionsset
forth in Section 7.01, and in accordance with the following provisions:
(i) The Company shall, in its sole discretion, select the number of Advance
Shares, not to exceed the MaximumAdvance Amount, it desires to issue
and sell to the Investor in each Advance Notice and the time it desires
to deliver each Advance Noticeand the Pricing Period to be used.
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(ii) There shall be no mandatory minimum Advances and there shall be no
non-usages fee for not utilizing theCommitment Amount or any part thereof.
(iii) For so long as any amount remains outstanding under a Promissory Note, without the prior written consentof the Investor, (A)
the Company may only (other than with respect to a deemed Advance Notice pursuant to an Investor Notice) submit anAdvance
Notice if a Trigger Event has occurred and the obligation of the Company to make monthly prepayments under the Promissory
Notehas not ceased, and (B) the Investor shall pay the aggregate purchase price owed to the Company from such Advances ("
AdvanceProceeds
") by offsetting the amount of the Advance Proceeds against an equal amount
outstanding under the Promissory Note (firsttowards accrued and unpaid interest, and
then towards outstanding principal and the corresponding payment premium (as set
forth in thePromissory Note) in respect of such principal amount, if applicable).
(iv) For so long as any amount remains outstanding under the Commitment Fee,
without the prior written consentof the Investor, the Investor shall
reduce by half any Advance Proceeds due to the Company by offsetting
such amount against the currentoutstanding amount of the Commitment Fee.
(b) Investor Notice
. At any time during the Commitment Period, provided that there is an outstandingbalance
under a Promissory Note, the Investor may, by delivering an Investor Notice to the Company,
cause an Advance Notice to be deemeddelivered to the Investor and the issuance and sale of
Shares to the Investor pursuant to an Advance, in accordance with the followingprovisions:
(i) The Investor shall, in its sole discretion, select the amount of the Advance up to
the Maximum AdvanceAmount, and the time it desires to deliver each Investor Notice;
provided,
that the amount of the Advance selected shall not exceedthe balance owed under
all Promissory Notes outstanding on the date of delivery of the Investor Notice.
(ii) The Purchase Price of the Shares in respect of any Advance Notice deemed
delivered pursuant to an InvestorNotice shall be equal to the Conversion
Price (as defined in the Promissory Note) in effect on the date of
delivery of the Investor Notice.The Investor shall pay the Purchase
Price for the Shares to be issued pursuant to the Investor Notice by
offsetting the amount of thePurchase Price to be paid by the Investor
against an equal amount outstanding under a Promissory Note (first
towards accrued and unpaidinterest, if any, then towards principal).
(iii) Each Investor Notice shall set forth the amount of the Advance requested, the Purchase Price (which
shallbe equal to the Conversions Price) along with a report by Bloomberg, L.P. indicating the
relevant VWAP used in calculating the ConversionPrice, the number of Shares to be issued by the
Company and purchased by the Investor, the aggregate amount of accrued and unpaid interestof
the Promissory Note (if any) that shall be offset by the issuance of Shares, the aggregate amount
of principal of the Promissory Notethat shall be offset by the issuance of Shares, and the
total amount of the Promissory Note that shall be outstanding following the closingof the Advance,
and each Investor Notice shall serve as the Settlement Document in respect of such Advance.
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(iv) Upon the delivery of an Investor Notice, a corresponding Advance Notice shall simultaneously and
automaticallybe deemed to have been delivered by the Company to the Investor requesting the amount of the
Advance set forth in the Investor Notice,and any conditions precedent to such Advance Notice under the
terms of this Agreement that have not been satisfied shall be deemed tohave been waived by the Investor.
(c) Date of Delivery of Advance Notice
. Advance Notices shall be
delivered in accordance
with the instructionsset
forth on the bottom of
Exhibit A
attached hereto. An Advance Notice selecting an Option 1 Pricing
Period shall only be deliveredon a Trading Day and shall be deemed
delivered on the day such notice is received by e-mail. An Advance
Notice selecting an Option 2 PricingPeriod shall be deemed delivered on
(i) the day it is received by the Investor if such notice is received
by e-mail at or before 9:00a.m. New York City time (or at such
later time if agreed to by the Investor in its sole discretion), or
(ii) the immediately succeedingday if it is received by e-mail after
9:00 a.m. New York City time, unless such parties agree by e-mail
otherwise. Upon receipt of anAdvance Notice from the Company, the
Investor shall promptly (and, with respect to an Advance Notice selecting
an Option 1 Pricing Period,in no event more than one-half hour
after receipt) provide written confirmation (which may be by e-mail)
of receipt of such Advance Notice,and which confirmation, in the
case of an Advance Notice selecting an Option 1 Pricing Period,
shall specify the commencement time ofthe Option 1 Pricing Period.
(d) Advance Limitations
. Regardless of the number of Advance Shares requested by the Company in theAdvance
Notice, including an Advance Notice deemed delivered pursuant to an Investor Notice,
the final number of Shares to be issued andsold pursuant to an Advance Notice shall
be reduced (if at all) in accordance with each of the following limitations:
(i) Ownership Limitation; Commitment Amount
. At the request of the Company, the Investor shall informthe Company of the number of Common Shares the Investor
beneficially owned as of the date of such request. At the request of the Investor,the Company shall inform the
Investor in writing of the number of Common Shares then outstanding. Notwithstanding anything to the contrarycontained
in this Agreement, the Investor shall not be obligated to purchase or acquire, and shall not purchase
or acquire, any CommonShares under this Agreement which, when aggregated with all other Common Shares beneficially
owned by the Investor and its affiliates(as calculated pursuant to Section 13(d) of the Exchange Act and
Rule 13d-3 promulgated thereunder), would result in the beneficial ownershipby the Investor and its affiliates
(on an aggregated basis) to exceed 4.99% of the then outstanding voting power or number of Common Shares(the "
Ownership Limitation
"). In connection with each Advance Notice delivered by the Company, any portion
of an Advancethat would (i) cause the Investor to exceed the Ownership Limitation
or (ii) cause the aggregate number of Shares issued and sold to theInvestor
hereunder to exceed the Commitment Amount shall automatically be withdrawn with
no further action required by the Company, andsuch Advance Notice shall be deemed
automatically modified to reduce the Advance by an amount equal to such withdrawn
portion; providedthat in the event of any such automatic withdrawal and automatic
modification, the Investor will promptly notify the Company of such event.
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(ii) Registration Limitation
. In no event shall an Advance exceed the
amount of Common Shares
registeredin respect of
the transactions contemplated
hereby 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
bewithdrawn with no further action required by the Company and such
Advance Notice shall be deemed automatically modified to reduce
theaggregate amount of the requested Advance by an amount equal to
such withdrawn portion in respect of each Advance Notice; provided
thatin the event of any such automatic withdrawal and automatic
modification, the Investor will promptly notify the Company of such event.
(iii) Compliance with Rules of Principal Market
. Notwithstanding anything to the contrary herein, theCompany shall not effect any sales under this
Agreement and the Investor shall not have the obligation to purchase Common Shares underthis Agreement
to the extent (but only to the extent) that after giving effect to such purchase and sale the
aggregate number of CommonShares issued under this Agreement would exceed 19.99% of the aggregate
number of Common Shares issued and outstanding as of the EffectiveDate, which number shall be reduced,
on a share-for-share basis, by the number of Common Shares issued or issuable pursuant to any
transactionor series of transactions that may be aggregated with the transactions contemplated by this
Agreement under the applicable rules of thePrincipal Market (such maximum number of shares, the "
Exchange Cap
");
provided that,
the Exchange Cap will notapply if (a) the Company's
stockholders have approved issuances in excess of
the Exchange Cap in accordance with the rules of
thePrincipal Market, or (b) the Average Price of all
applicable sales of Common Shares hereunder (including
any sales covered by an AdvanceNotice that has been
delivered prior to the determination of whether this
clause (b) applies) equals or exceed the lower of
(i)the Official Closing
Price (on the Nasdaq Stock
Market) immediately preceding
the Effective Date; or
(ii) the average Official
ClosingPrice for the five
Trading Days immediately
preceding the Effective Date
. In connection with each Advance Notice, any portion ofan
Advance that would exceed the Exchange Cap, without stockholder
approval of issuances in excess of the Exchange Cap having
been obtainedprior, shall automatically be withdrawn with
no further action required by the Company and such Advance
Notice shall be deemed automaticallymodified to reduce the
aggregate amount of the requested Advance by an amount equal
to such withdrawn portion in respect of each AdvanceNotice.
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(iv) Volume Threshold
. In connection with an Advance Notice, if the total number of Common Shares
tradedon the Principal Market during the applicable Pricing Period is
less than the Volume Threshold, then the number of Advance Shares issuedand
sold pursuant to such Advance Notice shall be reduced to the greater
of (a) 30% of the trading volume of the Common Shares on thePrincipal
Market during such Pricing Period as reported by Bloomberg L.P.; or (b) the
number of Common Shares sold by the Investor duringsuch Pricing Period, but
in each case not to exceed the amount requested in the Advance Notice.
(e) Minimum Acceptable Price
.
(i) With respect to each Advance Notice selecting an Option 2 Pricing
Period, the Company may notify the Investorof the MAP with respect to
such Advance by indicating a MAP on such Advance Notice. If no MAP
is specified in an Advance Notice, thenno MAP shall be in effect in
connection with such Advance. Each Trading Day during an Option 2 Pricing
Period for which (A) with respectto each Advance Notice with a MAP,
the VWAP of the Common Shares is below the MAP in effect with respect
to such Advance Notice, or (B)there is no VWAP (each such day, an "
Excluded Day
") shall result in an automatic reduction
to the number of AdvanceShares set forth in
such Advance Notice by one-third (the
resulting amount of each Advance being the "
Adjusted Advance Amount
"),and each Excluded Day shall
be excluded from the Option 2
Pricing Period for purposes of
determining the Market Price.
(ii) The total Advance Shares in
respect of each Advance with
any Excluded Day(s) (after
reductions have beenmade
to arrive at the Adjusted
Advance Amount) shall be
increased by such number
of Common Shares (the "
Additional Shares
")equal to the greater of (a) the number of Common Shares sold by
the Investor on such Excluded Day(s), if any, or (b) such number
of CommonShares elected to be subscribed for by the Investor,
and the price paid per share for each Additional Share shall be
equal to the MAPin effect with respect to such Advance Notice
multiplied by 97%, provided that this increase shall not cause the
total Advance Sharesto exceed the amount set forth in the original
Advance Notice or any limitations set forth in Section 3.01(d).
(f) Unconditional Contract
. Notwithstanding any other provision in this Agreement, the Company
andthe Investor acknowledge and agree that upon the Investor's
receipt of a valid Advance Notice from the Company the parties shallbe
deemed to have entered into an unconditional contract binding on
both parties for the purchase and sale of Advance Shares pursuantto
such Advance Notice in accordance with the terms of this Agreement
and (i) subject to Applicable Laws and (ii) subject to Section4.10,
the Investor may sell Common Shares during the Pricing Period.
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Section 3.02
Closings
.The closing of each Advance and each sale and purchase of Advance Shares
(whether pursuant to an Advance Notice delivered by the Companyor in
connection with an Advance Notice deemed delivered by the Company in
connection with an Investor Notice, each, a "
Closing
")shall take place as soon as practicable on or after each Advance Date in
accordance with the procedures set forth below. The parties acknowledgethat,
other than in connection with an Investor Notice, the Purchase Price is not
known at the time the Advance Notice is delivered (atwhich time the Investor
is irrevocably bound) but shall be determined on each Closing based on the
daily prices of the Common Shares thatare the inputs to the determination of
the Purchase Price as set forth further below. In connection with each
Closing, the Company andthe Investor shall fulfill each of its obligations as
set forth below:
(a) On or prior to each Advance Date, the
Investor shall deliver to the Company
a written document in theform attached
hereto as Exhibit B (each a "
Settlement Document
"), setting forth the final number
of Shares to be purchasedby
the Investor (taking into account
any adjustments pursuant to
Section 3.01
), the Market Price, the Purchase Price, the aggregateproceeds to be paid by the Investor to the
Company, and a report by Bloomberg, L.P. indicating the VWAP for each of the Trading Days duringthe
Pricing Period (or, if not reported on Bloomberg, L.P., another reporting service reasonably agreed
to by the parties), in each casein accordance with the terms and conditions of this Agreement.
(b) Promptly after receipt of the Settlement Document with respect to each
Advance (and, in any event, notlater than one Trading Day after such
receipt), the Company will, or will cause its transfer agent to,
electronically transfer such numberof Advance Shares to be purchased by the
Investor (as set forth in the Settlement Document) by crediting the
Investor's accountor its designee's account at the Depository Trust Company
through its Deposit Withdrawal at Custodian System or by such other
meansof delivery as may be mutually agreed upon by the parties hereto,
and transmit notification to the Investor that such share transfer
hasbeen requested. Promptly upon receipt of such Advance Shares, the
Investor shall pay to the Company the aggregate purchase price of theShares
(as set forth in the Settlement Document) in United States Dollars
either (i) in the case of an Advance Notice submitted otherthan after
the occurrence of a Trigger Event, in cash in immediately available
funds to an account designated by the Company in writingand transmit
notification to the Company that such funds transfer has been requested,
or (ii) in the case of an Investor Notice or anAdvance Notice submitted
after the occurrence of a Trigger Event, as an offset of amounts
owed under the Promissory Note as describedin 3.01. No fractional shares
shall be issued, and any fractional amounts shall be rounded to the
next higher whole number of shares.Such payment shall be made to the
Company not later than 5:00 pm New York City time on the Trading Day
immediately following the applicablereceipt of such Advance Shares. To
facilitate the transfer of the Common Shares by the Investor, the Common
Shares will not bear any restrictivelegends so long as there is an
effective Registration Statement covering the resale of such Common Shares
(it being understood and agreedby the Investor that notwithstanding the
lack of restrictive legends, the Investor may only sell such Common
Shares pursuant to the Planof Distribution set forth in the Prospectus
included in the Registration Statement and otherwise in compliance with
the requirements ofthe Securities Act (including any applicable
prospectus delivery requirements) or pursuant to an available exemption).
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(c) On or prior to the Advance Date, each of the Company and the Investor shall
deliver to the other all documents,instruments and writings expressly
required to be delivered by either of them pursuant to this Agreement
in order to implement and effectthe transactions contemplated herein.
(d) Notwithstanding anything to the contrary in this Agreement, other than in respect of
Advance Notices deemedto be given pursuant to Investor Notices, if on any day during the
Pricing Period (i) the Company notifies Investor that a Material OutsideEvent has
occurred, or (ii) the Company notifies the Investor of a Black Out Period, the parties
agree that any pending Advance shallend and the final number of Advance Shares to
be purchased by the Investor at the Closing for such Advance shall be equal to the
numberof Common Shares sold by the Investor during the applicable Pricing Period prior
to the notification from the Company of a Material OutsideEvent or Black Out Period.
Section 3.03
Hardship
.
(a) In the event the Investor sells Common Shares after receipt, or
deemed receipt, of an Advance Notice andthe Company fails to perform
its obligations as mandated in Section 3.02, the Company agrees that
in addition to and in no way limitingthe rights and obligations
set forth in Article VI hereto and in addition to any other remedy
to which the Investor is entitled at lawor in equity, including,
without limitation, specific performance, it will hold the Investor
harmless against any loss, claim, damage,or expense (including
reasonable legal fees and expenses), as incurred, arising out of
or in connection with such default by the Companyand acknowledges
that irreparable damage may occur in the event of any such default.
It is accordingly agreed that the Investor shallbe entitled to
an injunction or injunctions to prevent such breaches of this
Agreement and to specifically enforce (subject to ApplicableLaws and
the rules of the Principal Market), without the posting of a bond
or other security, the terms and provisions of this Agreement.
(b) In the event the Company provides an Advance Notice and the Investor
fails to perform its obligationsas mandated in Section 3.02,
the Investor agrees that in addition to and in no way limiting
the rights and obligations set forth in ArticleVI hereto and
in addition to any other remedy to which the Company is
entitled at law or in equity, including, without limitation,
specificperformance, it will hold the Company harmless against any
loss, claim, damage, or expense (including reasonable legal fees
and expenses),as incurred, arising out of or in connection with
such default by the Investor and acknowledges that irreparable
damage may occur in theevent of any such default. It is accordingly
agreed that the Company shall be entitled to an injunction
or injunctions to prevent suchbreaches of this Agreement and to
specifically enforce (subject to the Securities Act and other
rules of the Principal Market), withoutthe posting of a bond
or other security, the terms and provisions of this Agreement.
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Section 3.04
Completionof Resale Pursuant to the Registration Statement
. After the Investor has (x) purchased the full Commitment Amount and has
completedthe subsequent resale of the full Commitment Amount pursuant to the
Registration Statement, and (y) the entirety of each Pre-Paid Advancehas been
paid back in full, the Investor will notify the Company in writing (which may
be by e-mail) that all subsequent resales are completedand the Company will be
under no further obligation to maintain the effectiveness of the Registration
Statement.
Article IV. Representationsand Warranties of the Investor
The Investor represents andwarrants to the Company, as of the date hereof, as
of each Advance Notice Date and as of each Advance Date that:
Section 4.01
Organizationand Authorization
. The Investor is duly organized, validly existing and in good standing under
the laws of the Cayman Islands andhas the requisite corporate power and
authority to enter into and perform its obligations under this Agreement and
to purchase or acquireShares in accordance with the terms hereof. The decision
to invest and the execution and delivery of this Agreement by the Investor,
theperformance by the Investor of its obligations hereunder and the
consummation by the Investor of the transactions contemplated herebyhave been
duly authorized and require no other proceedings on the part of the Investor.
The undersigned has the right, power and authorityto execute and deliver this
Agreement and all other instruments on behalf of the Investor or its
shareholders. This Agreement has beenduly executed and delivered by the
Investor and, assuming the execution and delivery hereof and acceptance
thereof by the Company, willconstitute the legal, valid and binding
obligations of the Investor, enforceable against the Investor in accordance
with its terms.
Section 4.02
No Conflicts
.The execution, delivery and performance by the Investor of this Agreement and
the Registration Rights Agreement and the consummation bythe Investor of the
purchase or acquisition of Shares contemplated hereby do not and shall not (i)
result in a violation of such Investor'scertificate of registration, limited
partnership agreement or other applicable organizational instruments, (ii)
conflict with, constitutea default (or an event which, with notice or lapse of
time or both, would become a default) under, or give rise to any rights of
termination,amendment, acceleration or cancellation of, any material
agreement, mortgage, deed of trust, indenture, note, bond, license, lease
agreement,instrument or obligation to which the Investor is a party or is
bound, or (iii) result in a violation of any federal, state, local orforeign
statute, rule, or regulation, or any order, judgment or decree of any court or
governmental agency applicable to the Investoror by which any of its
properties or assets are bound or affected, except, in the case of clauses
(ii) and (iii), for such conflicts,defaults, terminations, amendments,
acceleration, cancellations and violations as would not, individually or in
the aggregate, prohibitor otherwise interfere with, in any material respect,
the ability of the Investor to enter into and perform its obligations under
thisAgreement and to purchase or acquire the Common Shares in accordance with
the terms hereof. The Investor is not required under any applicablefederal,
state or local law, rule or regulation to obtain any consent, authorization or
order of, or make any filing or registration with,any court or governmental
agency in order for it to execute or deliver this Agreement or to purchase or
acquire the Shares in accordancewith the terms hereof, other than as may be
required by FINRA; provided, however, that for purposes of the representation
made in thissentence, the Investor is assuming and relying upon the accuracy
of the relevant representations and warranties of the Company and
thecompliance by the Company with the relevant covenants and agreements of the
Company in the Transaction Documents.
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Section 4.03
Evaluationof Risks
. The Investor has such knowledge and experience in financial, tax and
business matters as to be capable of evaluating themerits and risks of, and
bearing the economic risks entailed by, an investment in the Common Shares of
the Company and of protecting itsinterests in connection with the transactions
contemplated hereby. The Investor acknowledges and agrees that its investment
in the Companyinvolves a high degree of risk, and that the Investor may lose
all or a part of its investment.
Section 4.04
No Legal,Investment or Tax Advice from the Company
. The Investor acknowledges that it had the opportunity to review this
Agreement and thetransactions contemplated by this Agreement with its own
legal counsel and investment and tax advisors. The Investor is relying
solelyon such counsel and advisors and not on any statements or representations
of the Company or any of the Company's representativesor agents for legal,
tax, investment or other advice with respect to the Investor's acquisition of
Common Shares hereunder, thetransactions contemplated by this Agreement or the
laws of any jurisdiction, and the Investor acknowledges that the Investor may
loseall or a part of its investment.
Section 4.05
InvestmentPurpose
. The Investor is acquiring the Common Shares and each Promissory Note for its
own account, for investment purposes and notwith a view towards, or for resale
in connection with, the public sale or distribution thereof, except pursuant
to sales registered underor exempt from the registration requirements of the
Securities Act; provided, however, that by making the representations
herein,the Investor does not agree, or make any representation or warranty, to
hold any of the Shares for any minimum or other specific termand reserves the
right to dispose of the Shares at any time in accordance with, or pursuant to,
a Registration Statement filed pursuantto 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 Shares.
The Investor acknowledgesthat it will be disclosed as an "underwriter" and a
"selling stockholder" in each Registration Statement and inany prospectus
contained therein to the extent required by applicable law and to the extent
the prospectus is related to the resale ofRegistrable Securities
.
Section 4.06
AccreditedInvestor
. The Investor is an "
Accredited Investor
" as that term is defined in Rule 501(a)(3) of Regulation D.
Section 4.07
Relianceon Exemptions
. The Investor understands that the Common Shares are being offered and sold
to it in reliance on specific exemptionsfrom the registration requirements of
U.S. federal and state securities laws and that the Company is relying in part
upon the truth andaccuracy of, and the Investor's compliance with, the
representations and warranties of the Investor set forth herein in order
todetermine the availability of such exemptions and the eligibility of the
Investor to acquire the Shares.
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Section 4.08
Information
.The Investor and its advisors (and its counsel), if any, have been furnished
with all materials relating to the business, finances andoperations of the
Company and information the Investor deemed material to making an informed
investment decision. The Investor and itsadvisors (and its counsel), if any,
have been afforded the opportunity to ask questions of the Company and its
management and have receivedanswers 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'srepresentations and
warranties contained in this Agreement. The Investor acknowledges and agrees
that the Company has not made to theInvestor, and the Investor acknowledges
and agrees it has not relied upon, any representations and warranties of the
Company, its employeesor any third party other than the representations and
warranties of the Company contained in this Agreement. The Investor
understandsthat its investment involves a high degree of risk. The Investor
has sought such accounting, legal and tax advice, as it has considerednecessary
to make an informed investment decision with respect to the transactions
contemplated hereby.
Section 4.09
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 controlledby, or
is under common control with the Company or any "
Affiliate
" of the Company (as that term is defined in Rule405 promulgated under the
Securities Act).
Section 4.10
No PriorShort Sales
. At no time prior to the date of this Agreement has the Investor, its sole
member, any of their respective officers, orany entity managed or controlled
by the Investor or its sole member, engaged in or effected, in any manner
whatsoever, directly or indirectly,for its own principal account, any (i)
"short sale" (as such term is defined in Rule 200 of Regulation SHO of the
ExchangeAct) of the Common Shares or (ii) hedging transaction, in either case
which establishes a net short position with respect to theCommon Shares that
remains in effect as of the date of this Agreement.
Section 4.11
GovernmentalReview
. The Investor understands that no United States federal or state agency or
any other government or governmental agency haspassed on or made any
recommendation or endorsement of the Shares or the fairness or suitability of
the investment in the Common Sharesnor have such authorities passed upon or
endorsed the merits of the offering of the Common Shares.
Section 4.12
General Solicitation
.Neither the Investor, nor any of its affiliates, nor any person acting on its
or their behalf, has engaged or will engage in any formof general solicitation
or general advertising (within the meaning of Regulation D) in connection with
any offer or sale of the CommonShares by the Investor.
Section 4.13
StatutoryUnderwriter Status
. The Investor acknowledges that it will be disclosed as an "underwriter" and
a "selling stockholder"in each Registration Statement and in any Prospectus
contained therein to the extent required by applicable law and to the extent
theProspectus is related to the resale of Common Shares.
Section 4.14
Resales ofShares
. The Investor represents, warrants and covenants that, except with respect to
any Shares that may be sold pursuant to an availableexemption from, or in a
transaction not subject to, the registration requirements of the Securities
Act, it will resell such Common Sharesonly pursuant to the Registration
Statement in which the resale of such Shares is registered under the
Securities Act, in a manner describedunder the caption "Plan of Distribution"
in such Registration Statement, or in a manner in compliance with all
applicableU.S. federal and state securities laws, rules and regulations.
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Article V. Representationsand Warranties of the Company
Except (i) where specificallyset forth below with respect to certain specified
representations and warranties, or (ii) as set forth in the SEC Documents, the
Companyhereby represents and warrants to the Investor as follows:
Section 5.01
Organizationand Qualification
. Except where the failure to be in good standing would not have a Material
Adverse Effect, each of the Company andeach of its Subsidiaries is an entity
duly organized, validly existing and in good standing under the laws of their
respective jurisdictionof organization, 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 of its Subsidiaries is duly qualified
to do business and is in good standing (to the extent applicable) inevery
jurisdiction in which the nature of the business conducted by it makes such
qualification necessary, except to the extent that thefailure to be so
qualified or be in good standing would not have a Material Adverse Effect.
Section 5.02
Authorization,Enforcement, Compliance with Other Instruments.
The Company, its Subsidiaries and each Guarantor has the requisite corporate
powerand authority to enter into and perform its obligations under this
Agreement and the other Transaction Documents and to issue the Sharesin
accordance with the terms hereof and thereof. The execution and delivery by
the Company, its Subsidiaries and each Guarantor of thisAgreement and the
other Transaction Documents, and the consummation by the Company, its
Subsidiaries and each Guarantor of the transactionscontemplated hereby and
thereby (including, without limitation, the issuance of the Common Shares)
have been or (with respect to consummation)will be duly authorized by the
their respective board of directors (or such equivalent) and no further
consent or authorization will berequired by the Company, its Subsidiaries,
each Guarantor or their respective board of directors (or such equivalent) or
its shareholders.This Agreement and the other Transaction Documents to which
the Company, its Subsidiaries and each Guarantor is a party have been (or,when
executed and delivered, will be) duly executed and delivered by the Company,
its Subsidiaries and each Guarantor and, assuming theexecution and delivery
thereof and acceptance by the Investor, constitute (or, when duly executed and
delivered, will be) the legal, validand binding obligations of the Company,
its Subsidiaries and each Guarantor enforceable against the Company, its
Subsidiaries and eachGuarantor (as applicable) in accordance with their
respective terms, except as such enforceability may be limited by general
principlesof 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 belimited by federal or state
securities law. "
Transaction Documents
" means, collectively, this Agreement, the RegistrationRights Agreement, the
Guaranty Agreement, the Pledge Agreement, any Promissory Note issued by the
Company hereunder and each of the otheragreements and instruments entered into
or delivered by any of the parties hereto in connection with the transactions
contemplated herebyand thereby, as may be amended from time to time.
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Section 5.03
Authorizationof the Shares
. The Common Warrants, and the Shares to be issued under this Agreement have
been, or with respect to Shares to be purchasedby the Investor pursuant to an
Advance Notice, will be, when issued and delivered pursuant to the terms
approved by the board of directorsof the Company or a duly authorized
committee thereof, or a duly authorized executive committee, against payment
therefor as providedherein, duly and validly authorized and issued and fully
paid and nonassessable, free and clear of any pledge, lien, encumbrance,
securityinterest or other claim, including any statutory or contractual
preemptive rights, resale rights, rights of first refusal or other
similarrights, and will be registered pursuant to Section 12 of the Exchange
Act. The Shares, when issued, will conform to the description thereofset forth
in or incorporated into the Prospectus. As of the date of the Pre-Paid Advance
Closing, and at all times thereafter, the Companyshall have reserved from its
duly authorized capital stock not less than the number of Common Shares
issuable upon conversion of the CommonWarrants and the Promissory Note
(assuming for purposes hereof that (x) such Promissory Note is convertible at
a Conversion Price (asdefined in the Promissory Note) equal to the Floor Price
(as defined in the Promissory Note) as of the date of determination, and
(y)any such conversion shall not take into account any limitations on the
conversion of the Promissory Note set forth therein).
Section 5.04
No Conflict
.The execution, delivery and performance of the Transaction Documents by the
Company, its Subsidiaries and each Guarantor and the consummationby the
Company of the transactions contemplated hereby and thereby (including,
without limitation, the issuance of the Common Shares)will not (i) result in a
violation of the articles of incorporation or other organizational documents
of the Company, any Guarantor ora Subsidiary (with respect to consummation, as
the same may be amended prior to the date on which any of the transactions
contemplatedhereby are consummated), (ii) conflict with, or constitute a
default (or an event which with notice or lapse of time or both would becomea
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, any agreement, indenture orinstrument to
which the Company, a Guarantor or a Subsidiary is a party, or (iii) 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,
a Guarantor or a Subsidiaryor by which any property or asset of the Company, a
Guarantor or a Subsidiaries is bound or affected except, in the case of clause
(ii)or (iii) above, to the extent such violations that would not reasonably be
expected to have a Material Adverse Effect.
Section 5.05
SEC Documents;Financial Statements
. As of the date of the filing of the Company's Registration Statement on Form
S-1, as last amended (filenumber 333-273623) (the "
Initial S-1
"), the Company had complied in all material respects with the requirements
ofthe Exchange Act or the Securities Act, as applicable, and the rules and
regulations of the SEC promulgated thereunder applicable to theSEC Documents,
and did not contain any untrue statement of a material fact or omitted to
state a material fact required to be stated thereinor necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading.
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Section 5.06
FinancialStatements
. The consolidated financial statements of the Company included or
incorporated by reference in the SEC Documents, togetherwith the related notes
and schedules, present fairly, in all material respects, the consolidated
financial position of the Company andthe Subsidiaries as of the dates
indicated and the consolidated results of operations, cash flows and changes
in stockholders' equityof the Company for the periods specified and have been
prepared in compliance with the requirements of the Securities Act and
ExchangeAct and in conformity with generally accepted accounting principles in
the United States ("
GAAP
") applied on a consistentbasis (except for (i) such adjustments to accounting
standards and practices as are noted therein, (ii) in the case of unaudited
interimfinancial statements, to the extent such financial statements may not
include footnotes required by GAAP or may be condensed or summarystatements
and (iii) such adjustments which are not material, either individually or in
the aggregate) during the periods involved; theother financial and statistical
data with respect to the Company and the Subsidiaries contained or
incorporated by reference in the SECDocuments are accurately and fairly
presented and prepared on a basis consistent with the financial statements and
books and records ofthe Company; there are no financial statements (historical
or pro forma) that are required to be included or incorporated by referencein
the SEC Documents that are not included or incorporated by reference as
required; the Company and the Subsidiaries do not have anymaterial liabilities
or obligations, direct or contingent (including any off-balance sheet
obligations), not described in the SEC Documents(excluding the exhibits
thereto); and all disclosures contained or incorporated by reference in the
SEC Documents regarding "non-GAAPfinancial measures" (as such term is defined
by the rules and regulations of the Commission) comply in all material
respects withRegulation G of the Exchange Act and Item 10 of Regulation S-K
under the Securities Act, to the extent applicable. The interactive datain
eXtensible Business Reporting Language included or incorporated by reference
in the SEC Documents fairly presents the information calledfor in all material
respects and has been prepared in accordance with the SEC's rules and
guidelines applicable thereto.
Section 5.07
RegistrationStatement and Prospectus
. Each Registration Statement and the offer and sale of Shares as contemplated
hereby, if and when filed,will meet the requirements of Rule 415 under the
Securities Act and comply in all material respects with said Rule. Any
statutes,regulations, contracts or other documents that are required to be
described in a Registration Statement or a Prospectus, or any amendmentor
supplement thereto, or to be filed as exhibits to a Registration Statement
have been so described or filed. Copies of each RegistrationStatement, any
Prospectus, and any such amendments or supplements thereto and all documents
incorporated by reference therein that werefiled with the Commission on or
prior to the date of this Agreement have been delivered, or are available
through EDGAR, to the Investorand its counsel. The Company has not distributed
and, prior to the later to occur of each Advance Date and completion of the
distributionof the Shares, will not distribute any offering material in
connection with the offering or sale of the Shares other than a RegistrationStat
ement, Prospectus contained therein, and each other prospectus supplement.
Section 5.08
No Misstatementor Omission
. Each Registration Statement, when it became or becomes effective, and any
Prospectus, on the date of such Prospectusor any amendment or supplement
thereto, 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 withthe requirements of the Securities Act. Each
Registration Statement, when it became or becomes effective, did not, and will
not, containan untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statementstherein
not misleading. Each Prospectus did not, or will not, include an untrue
statement of a material fact or omit to state a materialfact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading. The documentsincorporated by reference in a Prospectus
or any Prospectus Supplement did not, and any further documents filed and
incorporated by referencetherein will not, when filed with the SEC, contain an
untrue statement of a material fact or omit to state a material fact required
tobe 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 conformitywith, information
furnished to the Company by the Investor specifically for use in the
preparation thereof.
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Section 5.09
Conformitywith Securities Act and Exchange Act
. Each Registration Statement, each Prospectus, or any amendment or supplement
thereto, and thedocuments incorporated by reference in each Registration
Statement, Prospectus or any amendment or supplement thereto, when such
documentswere or are filed with the SEC under the Securities Act or the
Exchange Act or became or become effective under the Securities Act, asthe
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 5.10
Equity Capitalization
.
(a) Authorized and Outstanding Capital Stock
. The authorized capital stock of the Company as of thedate of this
Agreement's execution consists of 1,000,000,000 shares, consisting of (i)
900,000,000 shares of common stock, $0.0001par value per share, of which
(a) 850,000,000 shares are designated as Series A common stock and (b)
50,000,000 shares are designatedas Series B common stock, and (ii)
100,000,000 shares of preferred stock, $0.0001 par value per share, of which
(a) 50,000,000 are undesignated.The number of issued and outstanding
shares of common stock and preferred stock of the Company are set forth
in Section 5.10(a)0 of theCompany Disclosure Schedules. All outstanding
shares of capital stock of the Company are duly authorized and have
been validly issuedand are fully paid and nonassessable. Section 5.10(a)
of the Company Disclosure Schedules sets forth a complete and accurate
capitalizationtable of Bare Knuckle Fighting Championships, Inc., including
the names and corresponding percentage ownership of such entity. With
respectto AGBA Group, the Company represents and warrants that the
authorized capitalization is set forth in the SEC Documents of AGBA Group.
(b) Existing Securities~ Obligations
. Except as disclosed in in Section 5.10(b) of the CompanyDisclosure Schedules: (A) none of the Company's or any
Subsidiary's shares, interests or capital stock is subject to preemptiverights or any other similar rights or liens suffered
or permitted by the Company or any Subsidiary~ (B) there are no outstandingoptions, warrants, scrip, rights to subscribe
to, calls or commitments of any character whatsoever relating to, or securities or rightsconvertible into, or
exercisable or exchangeable for, any shares, interests or capital stock of the Company or any of its Subsidiaries,or
contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become
bound to issueadditional shares, interests or capital stock of the Company or any of its Subsidiaries or options, warrants,
scrip, rights to subscribeto, calls or commitments of any character whatsoever relating to, or securities or rights
convertible into, or exercisable or exchangeablefor, any shares, interests or capital stock of the Company or any of its
Subsidiaries~ (C) there are no agreements or arrangementsunder which the Company or any of its Subsidiaries is obligated
to register the sale of any of their securities under the Securities Act(except pursuant to this Agreement)~ (D) there
are no outstanding securities or instruments of the Company or any of its Subsidiarieswhich contain any redemption
or similar provisions, and there are no contracts, commitments, understandings or arrangements by which theCompany or
any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries~ (E)
thereare no securities or instruments containing anti-dilution or similar provisions that will be triggered by the
issuance of the Shares~and (G) neither the Company nor any Subsidiary has entered into any Variable Rate Transaction.
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Section 5.11
IntellectualProperty Rights
. Except as disclosed in the SEC Documents, (A) the Company and its
Subsidiaries own or possess adequate rights orlicenses 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 theirrespective businesses as now conducted, except as would not cause
a Material Adverse Effect; (B) the Company and its Subsidiaries havenot
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; and (C) to the knowledgeof the Company, there is no claim,
action or proceeding being made or brought against, or to the Company's
knowledge, being threatenedagainst the Company or its Subsidiaries regarding
trademark, trade name, patents, patent rights, invention, copyright, license,
servicenames, service marks, service mark registrations, trade secret or other
infringement; and, except as would not cause a Material AdverseEffect, the
Company is not aware of any facts or circumstances which might give rise to
any of the foregoing.
Section 5.12
EmployeeRelations
. Neither the Company nor any of its Subsidiaries is involved in any labor
dispute nor, to the knowledge of the Company orany of its Subsidiaries, has
any such dispute threatened, in each case which is reasonably likely to cause
a Material Adverse Effect.
Section 5.13
EnvironmentalLaws
. The Company and its Subsidiaries (i) have not received written notice
alleging any failure to comply in all material respectswith all Environmental
Laws (as defined below), (ii) have received all permits, licenses or other
approvals required of them under applicableEnvironmental Laws to conduct their
respective businesses and (iii) have not received written notice alleging any
failure to comply withall terms and conditions of any such permit, license or
approval where, in each of the foregoing clauses (i), (ii) and (iii), the
failureto so comply would be reasonably expected to have, individually or in
the aggregate, a Material Adverse Effect. The term "
EnvironmentalLaws
" means 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
hazardoussubstances 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 regulationsissued, entered, promulgated or approved
thereunder.
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Section 5.14
Title
.Except as would not cause a Material Adverse Effect or as disclosed in the
SEC Documents, the Company (or its Subsidiaries) has indefeasiblefee 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 facilitiesheld under lease by the Company and its
Subsidiaries are held by them under valid, subsisting and enforceable leases
with such exceptionsas 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
itsSubsidiaries.
Section 5.15
Insurance
.The Company and each of its Subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risksand in such
amounts as management of the Company believes to be prudent and customary in
the businesses in which the Company and its Subsidiariesare engaged. The
Company has no reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverageexpires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not havea Material Adverse Effect.
Section 5.16
RegulatoryPermits
. 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 respectivebusinesses, and neither the Company nor any
such Subsidiary has received any written notice of proceedings relating to the
revocationor modification of any such certificate, authorization or permits.
Section 5.17
InternalAccounting Controls
. The Company maintains a system of internal accounting controls sufficient to
provide reasonable assurance that(i) transactions are executed in accordance
with management's general or specific authorizations, (ii) transactions are
recordedas necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintainasset
accountability, (iii) access to assets is permitted only in accordance with
management's general or specific authorizationand (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action istaken with respect to any differences, and
management is not aware of any material weaknesses that were not disclosed in
the SEC Documents.
Section 5.18
Absence ofLitigation
. Except as disclosed in the SEC Documents or as otherwise disclosed in
Schedule 5.18 of the Company's disclosureschedules, there is no action, suit,
proceeding, inquiry or investigation before or by any court, public board,
government agency, self-regulatoryorganization or body pending against or
affecting the Company, the Common Shares or any of the Company's Subsidiaries,
wherein,to the Company's knowledge, an unfavorable decision, ruling or finding
would have a Material Adverse Effect.
Section 5.19
Absence ofCertain Changes
. Since the date of the Company's most recent audited financial statements
contained in the Initial S-1, therehas been no Material Adverse Effect, nor
any event or occurrence specifically affecting the Company or its Subsidiaries
that would bereasonably expected to result in a Material Adverse Effect. Since
the date of the Company's most recent audited financial statementscontained in
a Form S-1 or Form 10-K, neither the Company nor any of its Subsidiaries has
(i) declared or paid any dividends, (ii) soldany material assets, individually
or in the aggregate, outside of the ordinary course of business, or (iii) made
any material capitalexpenditures, individually or in the aggregate, outside of
the ordinary course of business. Neither the Company nor any of its
Subsidiarieshas taken any steps to seek protection pursuant to any law or
statute relating to bankruptcy, insolvency, reorganization, receivership,liquida
tion or winding up, nor does the Company or any Subsidiary have any knowledge
or reason to believe that any of their respectivecreditors intend to initiate
involuntary bankruptcy proceedings. The Company is Solvent.
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Section 5.20
Subsidiaries
.Other than as set forth in the SEC Documents, the Company does not own or
control, directly or indirectly, any interest in any other corporation,partnersh
ip, association or other business entity.
Section 5.21
Tax Status
.Each of the Company and its Subsidiaries (i) 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, (ii) has
timely paid all taxes and other governmental assessmentsand charges that are
material in amount, shown or determined to be due on such returns, reports and
declarations, except those being contestedin good faith and (iii) has set
aside on its books provision reasonably adequate for the payment of all taxes
for periods subsequent tothe periods to which such returns, reports or
declarations apply. The Company has not received written notification of any
unpaid taxesin any material amount claimed to be due by the taxing authority
of any jurisdiction, and the officers of the Company and its Subsidiariesknow
of no basis for any such claim where failure to pay would cause a Material
Adverse Effect.
Section 5.22
Certain Transactions
.Except as not required to be disclosed pursuant to Applicable Laws, none of
the officers or directors of the Company is presently a partyto any
transaction with the Company (other than for services as employees, officers
and directors), including any contract, agreementor 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 5.23
Rights ofFirst Refusal
. The Company is not obligated to offer the Common Shares offered hereunder on
a right of first refusal basis to anythird parties including, but not limited
to, current or former shareholders of the Company, underwriters, brokers,
agents or other thirdparties.
Section 5.24
Dilution
.The Company is aware and acknowledges that issuance of Common Shares
hereunder could cause dilution to existing shareholders and couldsignificantly
increase the outstanding number of Common Shares.
Section 5.25
AcknowledgmentRegarding Investor's Purchase of Shares
. The Company acknowledges and agrees that the Investor is acting solely in
the capacityof an arm's length investor with respect to this Agreement and the
transactions contemplated hereunder. The Company further acknowledgesthat the
Investor is not acting as a financial advisor or fiduciary of the Company (or
in any similar capacity) with respect to this Agreementand the transactions
contemplated hereunder and any advice given by the Investor or any of its
representatives or agents in connectionwith this Agreement and the
transactions contemplated hereunder is merely incidental to the Investor's
purchase of the Shares hereunderor the Promissory Note. The Company is aware
and acknowledges that it shall not be able to request Advances under this
Agreement if athe Registration Statement is not effective or if any issuances
of Common Shares pursuant to any Advances would violate any rules of
thePrincipal 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.
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Section 5.26
Finder'sFees
. Neither the Company nor any of the Subsidiaries has incurred any liability
for any finder's fees, brokerage commissionsor similar payments in connection
with the transactions herein contemplated.
Section 5.27
Relationshipof the Parties
. Neither the Company, nor any of its Subsidiaries, affiliates, nor any person
acting on its or their behalf is a clientor 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'srelationship to Company is solely as investor as provided for in the
Transaction Documents.
Section 5.28
Operations
.The operations of the Company and its Subsidiaries are and have been
conducted at all times in compliance in all material respects withApplicable
Laws and neither the Company nor the Subsidiaries, nor any director, officer,
or employee of the Company or any Subsidiarynor, to the Company's knowledge,
any agent, affiliate or other person acting on behalf of the Company or any
Subsidiary has, notcomplied with Applicable Law in any manner that would
reasonably be expected to result in a Material Adverse Effect; and no action,
suitor proceeding by or before any governmental authority involving the
Company or any of its Subsidiaries with respect to Applicable Lawsis pending
or, to the knowledge of the Company, threatened.
Section 5.29
Forward-LookingStatements
. No forward-looking statement (within the meaning of Section 27A of the
Securities Act and Section 21E of the ExchangeAct) contained in the
Registration Statement or a Prospectus prepared pursuant to the terms of this
Agreement will be made or reaffirmedwithout a reasonable basis or has been
disclosed other than in good faith.
Section 5.30
Compliancewith Laws
. The Company and each of its Subsidiaries are in compliance in all material
respects with Applicable Laws; the Company hasnot received a notice of
non-compliance, nor knows of, nor has reasonable grounds to know of, any facts
that any director, officer, oremployee of the Company or any Subsidiary nor,
to the Company's knowledge, any agent, affiliate or other person acting on
behalfof the Company or any Subsidiary has, has not complied with Applicable
Laws, or could give rise to a notice of non-compliance with ApplicableLaws,
and is not aware of any pending change or contemplated change to any
applicable law or regulation or governmental position; in eachcase that would
have a Material Adverse Effect.
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Section 5.31
SanctionsMatters
. Neither the Company nor any of its Subsidiaries or, to the knowledge of the
Company, any director, officer or controlledaffiliate of the Company or any
director or officer of any Subsidiary, is a Person that is, or is owned or
controlled by a Person thatis (i) the subject of any sanctions administered or
enforced by the U.S. Department of Treasury's Office of Foreign Asset Control("
OFAC
"), the United Nations Security Council, the European Union, His Majesty's
Treasury, or other relevantsanctions authorities, including, without
limitation, designation on OFAC's Specially Designated Nationals and Blocked
Persons Listor OFAC's Foreign Sanctions Evaders List or other relevant
sanctions authority (collectively, "
Sanctions
"), or(ii) located, organized or resident in a country or territory that is
the subject of Sanctions that broadly prohibit dealings withthat country or
territory (including, without limitation, the Crimea, Zaporizhzhia and Kherson
regions, the Donetsk People's Republicand Luhansk People's Republic in
Ukraine, Cuba, Iran, North Korea, Russia, Sudan and Syria (the "
Sanctioned Countries
")).Neither the Company nor any of its Subsidiaries will, directly or
indirectly, use the proceeds from the sale of Advance Shares or theany
Pre-Paid Advance, or lend, contribute or otherwise make available such
proceeds to any subsidiary, joint venture partner or otherPerson (a) for the
purpose of funding or facilitating any activities or business of or with any
Person or in any country or territorythat, at the time of such funding or
facilitation, is the subject of Sanctions or is a Sanctioned Country, or (b)
in any other mannerthat will result in a violation of Sanctions or Applicable
Laws by any Person (including any Person participating in the transactionscontem
plated by this Agreement, whether as underwriter, advisor, investor or
otherwise). For the past five years, neither the Companynor any of its
Subsidiaries has engaged in, and is now not engaged in, any dealings or
transactions with any Person, or in any countryor territory, that at the time
of the dealing or transaction is or was the subject of Sanctions or was a
Sanctioned Country. Neither theCompany nor any of its Subsidiaries nor any
director, officer or controlled affiliate of the Company or any of its
Subsidiaries, has everhad funds blocked by a United States bank or financial
institution, temporarily or otherwise, as a result of OFAC concerns.
Section 5.32 The Companyunderstands and acknowledges that the number of Common
Shares issuable upon conversion of a Promissory Note will increase in certain
circumstances.The Company further acknowledges its obligation to issue the
Common Shares upon conversion of the Promissory Note in accordance with
theterms thereof or upon delivery of an Advance Notice (including upon receipt
of an Investor Notice) is absolute and unconditional regardlessof the dilutive
effect that such issuance may have on the ownership interests of other
stockholders of the Company.
Article VI. Indemnification
The Investor and the Companyrepresent to the other the following with respect
to itself:
Section 6.01
Indemnificationby the Company
. In consideration of the Investor's execution and delivery of this Agreement
and acquiring the Shares hereunder,and in addition to all of the Company's
other obligations under this Agreement, the Company shall defend, protect,
indemnify andhold harmless the Investor and its investment manager, Yorkville
Advisors Global, LP, and each of their respective officers, directors,managers,
members, partners, employees and agents (including, without limitation, those
retained in connection with the transactions contemplatedby this Agreement)
and each person who controls the Investor within the meaning of Section 15 of
the Securities Act or Section 20 of theExchange 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 (irrespectiveof whether any such
Investor Indemnitee is a party to the action for which indemnification
hereunder is sought), and including reasonableattorneys' fees and
disbursements (the "
Indemnified Liabilities
"), incurred by the Investor Indemnitees or anyof them as a result of, or
arising out of, or relating to (a) any untrue statement or alleged untrue
statement of a material fact containedin the Registration Statement for the
registration of the Shares 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
thereina 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 isbased upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and inconformity with written information
furnished to the Company by or on behalf of the Investor specifically for
inclusion therein; (b) anymaterial misrepresentation or breach of any material
representation or material warranty made by the Company in this Agreement or
anyother certificate, instrument or document contemplated hereby or thereby;
or (c) any material breach of any material covenant, materialagreement or
material obligation of the Company contained in this Agreement or any other
certificate, instrument or document contemplatedhereby or thereby. To the
extent that the foregoing undertaking by the Company may be unenforceable
under Applicable Law, the Companyshall make the maximum contribution to the
payment and satisfaction of each of the Indemnified Liabilities, which is
permissible underApplicable Law. With respect to the foregoing, the Company
shall not be responsible for any liabilities or expenses of the Investor
thathave been determined in a final judgment or order to have resulted
directly and primarily from the Investor's bad faith, willfulmisconduct or
gross negligence.
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Section 6.02
Indemnificationby the Investor
. In consideration of the Company's execution and delivery of this Agreement,
and in addition to all of the Investor'sother obligations under this
Agreement, the Investor shall defend, protect, indemnify and hold harmless the
Company, its Subsidiaries,and all of its and their officers, directors,
shareholders, employees and agents (including, without limitation, those
retained in connectionwith the transactions contemplated by this Agreement)
and each person who controls the Company within the meaning of Section 15 of
theSecurities Act or Section 20 of the Exchange Act (collectively, the "
Company Indemnitees
") from and against any andall Indemnified Liabilities incurred by the Company
Indemnitees or any of them as a result of, or arising out of, or relating to
(a) anyuntrue statement or alleged untrue statement of a material fact
contained in the Registration Statement for the registration of the Sharesas
originally filed or in any amendment thereof, or in any related prospectus, or
in any amendment thereof or supplement thereto, or ariseout of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessaryto make the statements therein not
misleading;
provided
,
however
, that the Investor will only be liable for written informationrelating to the
Investor furnished to the Company by or on behalf of the Investor specifically
for inclusion in the documents referredto in the foregoing indemnity, and will
not be liable in any such case to the extent that any such loss, claim, damage
or liability arisesout of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
relianceupon 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 documentcontemplated hereby or
thereby executed by the Investor; or (c) any breach of any covenant, agreement
or obligation of the Investor containedin this Agreement or any other
certificate, instrument or document contemplated hereby or thereby executed by
the Investor. To the extentthat the foregoing undertaking by the Investor may
be unenforceable under Applicable Laws, the Investor shall make the maximum
contributionto the payment and satisfaction of each of the Indemnified
Liabilities, which is permissible under Applicable Laws. With respect to
theforegoing, the Investor shall not be responsible for any liabilities or
expenses of the Company that have been determined in a final judgmentor order
to have resulted directly and primarily from the Company's bad faith, willful
misconduct or gross negligence.
Section 6.03
Notice ofClaim
. 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 thisArticle VI, deliver to the indemnifying party a
written notice of the commencement thereof; but the failure to so notify the
indemnifyingparty will not relieve it of liability under this Article VI
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 anyother indemnifying party
similarly noticed, to assume control of the defense thereof with counsel
mutually reasonably satisfactory tothe indemnifying party and the Investor
Indemnitee or Company Indemnitee, as the case may be; provided, however, that
an Investor Indemniteeor Company Indemnitee shall have the right to retain its
own counsel with the actual and reasonable third party fees and expenses of
notmore than one counsel for such Investor Indemnitee or Company Indemnitee to
be paid by the indemnifying party, if, in the reasonable opinionof counsel
retained by the indemnifying party, the representation by such counsel of the
Investor Indemnitee or Company Indemnitee andthe indemnifying party would be
inappropriate due to actual or potential differing interests between such
Investor Indemnitee or CompanyIndemnitee and any other party represented by
such counsel in such proceeding. The Investor Indemnitee or Company Indemnitee
shall cooperatefully with the indemnifying party in connection with any
negotiation or defense of any such action or claim by the indemnifying
partyand shall furnish to the indemnifying party all information reasonably
available to the Investor Indemnitee or Company Indemnitee whichrelates to
such action or claim. The indemnifying party shall keep the Investor
Indemnitee or Company Indemnitee reasonably apprised asto the status of the
defense or any settlement negotiations with respect thereto. No indemnifying
party shall be liable for any settlementof any action, claim or proceeding
effected without its prior written consent, provided, however, that the
indemnifying party shall notunreasonably withhold, delay or condition its
consent. No indemnifying party shall, without the prior written consent of the
InvestorIndemnitee or Company Indemnitee, consent to entry of any judgment or
enter into any settlement or other compromise which does not includeas an
unconditional term thereof the giving by the claimant or plaintiff to such
Investor Indemnitee or Company Indemnitee of a releasefrom all liability in
respect to such claim or litigation. Following indemnification as provided for
hereunder, the indemnifying partyshall be subrogated to all rights of the
Investor Indemnitee or Company Indemnitee with respect to all third parties,
firms or corporationsrelating to the matter for which indemnification has been
made. The indemnification required by this Article VI shall be made by
periodicpayments of the amount thereof during the course of the investigation
or defense, as and when bills are received and payment thereforis due.
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Section 6.04
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 indemnifiedperson at
law or equity. The obligations of the parties to indemnify or make
contribution under this Article VI shall survive expirationor termination of
this Agreement.
Section 6.05
Limitationof liability
. Notwithstanding the foregoing, no party shall be seek, nor shall any be
entitled to recover from the other party beliable for special, incidental,
indirect, consequential, punitive or exemplary damages.
Article VII.
Covenants
The Company covenants with theInvestor, 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 7.01
EffectiveRegistration Statement
. From the Merger Time, the Company will use its reasonable efforts to
maintain the continuous effectivenessof each Registration Statement filed with
the SEC under the Securities Act pursuant to and in accordance with this
Agreement.
Section 7.02
Registrationand Listing
. From the Merger Time, the Company will use its reasonable efforts to cause
the Common Shares to continue to be registeredas a class of securities under
Section 12(b) of the Exchange Act, and to comply with its reporting and filing
obligations under the ExchangeAct, and shall not take any action or file any
document (whether or not permitted by the Securities Act or the Exchange Act)
to terminateor suspend such registration or to terminate or suspend its
reporting and filing obligations under the Exchange Act or Securities
Act,except as permitted herein. The Company shall continue the listing and
trading of its Common Shares and the listing of the Shares purchasedby the
Investor hereunder on the Principal Market and to comply with the Company's
reporting, filing and other obligations underthe rules and regulations of the
Principal Market. If the Company receives any final and non-appealable notice
that the listing or quotationof the Common Shares on the Principal Market
shall be terminated on a date certain, the Company shall promptly (and in any
case within24 hours) notify the Investor of such fact in writing and shall use
its commercially reasonable efforts to cause the Common Shares tobe listed or
quoted on another Principal Market.
Section 7.03
Blue Sky
.The Company shall take such action, if any, as is necessary by the Company in
order to obtain an exemption for or to qualify the Sharesfor sale by the
Company to the Investor pursuant to the Transaction Documents, and at the
request of the Investor, the subsequent resaleof Registrable Securities by the
Investor, in each case, under applicable state securities or "Blue Sky" laws
and shall provideevidence of any such action so taken to the Investor from
time to time during the Commitment Period;
provided
,
however
,that the Company shall not be required in connection therewith or as a
condition thereto to (x) qualify to do business in any jurisdictionwhere it
would not otherwise be required to qualify, (y) subject itself to general
taxation in any such jurisdiction, or (z) file a generalconsent to service of
process in any such jurisdiction.
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Section 7.04
Suspensionof Registration Statement
.
(a) Establishment of a Black Out Period
. From and after the effectiveness of a Registration Statement,the Company from time to time may suspend the
use of such Registration Statement by written notice to the Investor in the event that theCompany determines
in its sole discretion in good faith that such suspension is necessary to (A) delay the disclosure of
material nonpublicinformation concerning the Company, the disclosure of which at the time is not, in the good
faith opinion of the Company, in the bestinterests of the Company or (B) amend or supplement the Registration
Statement or Prospectus so that such Registration Statement or Prospectusshall not include an untrue
statement of a material fact or omit to state a material fact required to be stated therein or necessary
tomake the statements therein, in light of the circumstances under which they were made, not misleading (a "
Black Out Period
").
(b) No Sales by Investor During
the Black Out Period
. During such Black Out Period, the Investor agreesnot to sell any
Common Shares of the Company pursuant to such Registration Statement,
but may sell shares pursuant to an exemption fromregistration, if
available, subject to the Investor's compliance with Applicable Laws.
(c) Limitations on the Black Out Period
. The Company shall not impose any Black Out Period (a) thatis longer than 20 days unless
otherwise required by applicable laws; or (b) in a manner that is more restrictive (including,
without limitation,as to duration) than the comparable restrictions that the Company may
impose on transfers of the Company's equity securities byits directors and senior executive
officers. In addition, the Company shall not deliver any Advance Notice during any Black Out
Period.If the public announcement of such material, nonpublic information is made during a Black
Out Period, the Black Out Period shall terminateimmediately after such announcement, and the
Company shall immediately notify the Investor of the termination of the Black Out Period.
Section 7.05
Listing ofCommon Shares
. As of each Advance Notice Date, the Shares to be issued and sold by the
Company from time to time hereunder will havebeen registered under Section
12(b) of the Exchange Act and approved for listing on the Principal Market,
subject to official notice ofissuance.
Section 7.06
Opinion ofCounsel
. Prior to the date of the delivery by the Company of the first Advance
Notice, the Investor shall have received an opinionletter from counsel to the
Company in form and substance reasonably satisfactory to the Investor.
Section 7.07
ExchangeAct Registration
. From and after the Merger Time, the Company will file in a timely manner all
reports and other documents requiredof it as a reporting company under the
Exchange Act and, during the Commitment Period, will not take any action or
file any document (whetheror not permitted by Exchange Act or the rules
thereunder) to terminate or suspend its reporting and filing obligations under
the ExchangeAct.
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Section 7.08
TransferAgent Instructions
. For any time while there is a Registration Statement in effect for this
transaction, the Company shall (if requiredby the transfer agent for the
Common Shares) deliver to the transfer agent for the Common Shares (with a
copy to the Investor) instructionsto issue Common Shares to the Investor free
of restrictive legends upon each Advance if the delivery of such instructions
are consistentwith Applicable Law, in each case supported as needed by an
opinion from legal counsel for the Company or as otherwise may be supportedby
a legal opinion provided by counsel to Investor acceptable to Company.
Section 7.09
CorporateExistence
. The Company will use commercially reasonable efforts to preserve and
continue the corporate existence of the Company duringthe Commitment Period.
Section 7.10
Notice ofCertain Events Affecting Registration; Suspension of Right to Make an
Advance
. Subsequent to the Merger Time, the Company will promptlynotify the Investor,
and confirm in writing, upon its becoming aware of the occurrence of any of
the following events in respect of aRegistration Statement or related
Prospectus: (i) except for requests made in connection with SEC investigations
disclosed in the SECDocuments, receipt of any request for additional
information by the SEC or any other Federal or state governmental authority
during theperiod of effectiveness of the Registration Statement or any request
for amendments or supplements to the Registration Statement or relatedProspectus
; (ii) the issuance by the SEC or any other Federal governmental authority of
any stop order suspending the effectiveness ofthe Registration Statement or
the initiation of any proceedings for that purpose; (iii) receipt of any
notification with respect to thesuspension of the qualification or exemption
from qualification of any of the Common Shares for sale in any jurisdiction or
the initiationor written threat of any proceeding for such purpose; (iv) the
happening of any event that makes any statement made in the RegistrationStatemen
t or related Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any materialrespect or that
requires the making of any changes in the Registration Statement, related
Prospectus or documents so that, in the caseof the Registration Statement, it
will not contain any untrue statement of a material fact or omit to state any
material fact requiredto be stated therein or necessary to make the statements
therein not misleading, and that in the case of the related Prospectus, it
willnot contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to makethe statements
therein, in the light of the circumstances under which they were made, not
misleading, or of the necessity to amend theRegistration Statement or
supplement a related Prospectus to comply with the Securities Act or any other
law (and the Company will promptlymake available to the Investor any such
supplement or amendment to the related Prospectus). The Company shall not
deliver to the Investorany Advance Notice, and the Company shall not sell any
Shares pursuant to any pending Advance Notice (other than as required
pursuantto Section 2.02(d)), during the continuation of any of the foregoing
events (each of the events described in the immediately precedingclauses (i)
through (iv), inclusive, a "
Material Outside Event
").
Section 7.11
Consolidation
.If an Advance Notice has been delivered to the Investor, then, except in
connection with the closing of the Merger, the Company shallnot effect any
consolidation of the Company with or into, or a transfer of all or
substantially all the assets of the Company to anotherentity before the
transaction contemplated in such Advance Notice has been closed in accordance
with Section 2.02 hereof, and all Sharesin connection with such Advance have
been received by the Investor.
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Section 7.12
Issuanceof the Company's Common Shares.
The issuance and sale of the Common Shares to the Investor hereunder shall be
made in accordancewith the provisions and requirements of Section 4(a)(2) of
the Securities Act and any applicable state securities law.
Section 7.13
Expenses
.The Company, whether or not the transactions contemplated hereunder are
consummated or this Agreement is terminated, will pay all expensesincident to
the performance of its obligations hereunder, including but not limited to (i)
the preparation, printing and filing of theRegistration Statement and each
amendment and supplement thereto, of each Prospectus and of each amendment and
supplement thereto; (ii)the preparation, issuance and delivery of any Shares
issued pursuant to this Agreement, (iii) all fees and disbursements of the
Company'scounsel, accountants and other advisors (but not, for the avoidance
doubt, the fees and disbursements of Investor's counsel, accountantsand other
advisors), (iv) the qualification of the Shares under securities laws in
accordance with the provisions of this Agreement, includingfiling fees in
connection therewith, (v) the printing and delivery of copies of any
Prospectus and any amendments or supplements theretorequested by the Investor,
(vi) the fees and expenses incurred in connection with the listing or
qualification of the Shares for tradingon the Principal Market, or (vii)
filing fees of the SEC and the Principal Market.
Section 7.14
Current Report.
The Parent shall, not later than 9:00 a.m., New York City time, on the fourth
business day after the date of this Agreement, file withthe SEC a current
report on Form 8-K describing all the material terms of the transactions
contemplated by the Transaction Documentsin the form required by the Exchange
Act and attaching all the material Transaction Documents (including any
exhibits thereto, the "
CurrentReport
"). The Parent shall provide the Investor and its legal counsel a reasonable
opportunity to comment on a draft of theCurrent Report prior to filing the
Current Report with the SEC and shall give due consideration to all such
comments. Notwithstandinganything contained in this Agreement to the contrary,
the Parent expressly agrees that from and after the filing of the Current
Reportwith the SEC, the Parent shall have publicly disclosed all material,
nonpublic information provided to the Investor (or the Investor'srepresentatives
or agents) by the Parent or any of its Subsidiaries, or any of their
respective officers, directors, employees, agentsor representatives in
connection with the transactions contemplated by the Transaction Documents. In
addition, effective upon thefiling of the Current Report, the Parent
acknowledges and agrees that any and all confidentiality or similar
obligations, whether writtenor oral, between the Parent, any of its
Subsidiaries or any of their respective officers, directors, affiliates,
employees or agents,on the one hand, and Investor or any of its respective
officers, directors, affiliates, employees or agents, on the other hand shall
terminate.The Parent shall not, and the Parent shall cause each of its
Subsidiaries and each of its and their respective officers, directors,
employeesand agents not to, provide the Investor with any material, non-public
information regarding the Parent or any of its Subsidiaries withoutthe express
prior written consent of the Investor (which may be granted or withheld in the
Investor's sole discretion). To the extentthat the Parent has provided the
Investor with material non-public information, the Parent shall, upon the
Investor's request, filewith the SEC such disclosure as may be necessary (in
the Investor's sole opinion) to cleanse the Investor of any and all
materialnon-public information. The Parent understands and confirms that the
Investor will rely on the foregoing representations in effectingresales of
Shares.
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Section 7.15
Advance NoticeLimitation
. The Company shall not deliver an Advance Notice if a shareholder meeting or
corporate action date, or the record datefor any shareholder meeting or any
corporate action, would fall during the period beginning two Trading Days
prior to the date of deliveryof such Advance Notice and ending two Trading
Days following the Closing of such Advance.
Section 7.16
Use of Proceeds
.The proceeds from the funding of the Pre-Paid Advance or the sale of the
Shares by the Company to Investor shall be used by the Companyin the manner as
will be set forth in the Prospectus included in any Registration Statement
(and any post-effective amendment thereto)and any Prospectus Supplement
thereto filed pursuant to this Agreement. Neither the Company nor any
Subsidiary will, directly or indirectly,use the proceeds of the transactions
contemplated herein (including any proceeds from the funding of the Pre-Paid
Advance) to repay anyadvances or loans to any executives, directors, or
employees of the Company or any Subsidiary or to make any payments in respect
of anyrelated party obligations, including without limitation any payables or
notes payable to related parties of the Company or any Subsidiarywhether or
not such amounts are described on the balance sheets of the Company in any SEC
Documents and any Subsidiary or described inany "Related Party Transactions"
section of any SEC Documents
Section 7.17
Compliancewith Laws
. The Company shall comply in all material respects with all Applicable Laws.
Section 7.18
Market Activities
.Neither the Company, nor any Subsidiary, nor any of their respective
officers, directors or controlling persons will, directly or indirectly,(i)
take any action designed to cause or result in, or that constitutes or might
reasonably be expected to constitute or result,in the stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of Common Shares or(ii) sell, bid for, or purchase Common
Shares in violation of Regulation M, or pay anyone any compensation for
soliciting purchasesof the Shares.
Section 7.19
Trading Information
.Subsquent to the Merger Time and during the Commitment Period, on each
Trading Day during a Pricing Period or on which the Investor hassold any
Advance Shares, and otherwise upon the Company's reasonable request, the
Investor agrees to provide the Company with tradingreports setting forth the
number and average sales prices of shares of Common Shares sold by the
Investor during such Trading Day.
Section 7.20
Selling Restrictions
.(i) Except as expressly set forth below, the Investor covenants that from and
after the date hereof through and including the TradingDay next following the
expiration or termination of this Agreement as provided in Section 11.01 (the "
Restricted Period
"),none of the Investor any of its officers, or any entity managed or
controlled by the Investor (collectively, the "
RestrictedPersons
" and each of the foregoing is referred to herein as a "
Restricted Person
") shall, directly or indirectly,engage in any "short sale" (as such term is
defined in Rule 200 of Regulation SHO of the Exchange Act) of the Common
Shares,either for its own principal account or for the principal account of
any other Restricted Person. Notwithstanding the foregoing, it isexpressly
understood and agreed that nothing contained herein shall (without implication
that the contrary would otherwise be true) prohibitany Restricted Person
during the Restricted Period from: (1) selling "long" (as defined under Rule
200 promulgated underRegulation SHO) the Shares; or (2) selling a number of
Common Shares equal to the number of Advance Shares that such Restricted
Personis unconditionally obligated to purchase under a pending Advance Notice
but has not yet received from the Company or the transfer agentpursuant to
this Agreement.
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Section 7.21
Assignment
.Neither this Agreement nor any rights or obligations of the parties hereto
may be assigned to any other Person (except that as contemplatedherein with
respect to Parent)
Section 7.22
No Frustration
.The Company shall not enter into, announce or recommend to its stockholders
any agreement, plan, arrangement or transaction in or of whichthe terms
thereof would restrict, materially delay, conflict with or impair the ability
or right of the Company to perform its obligationsunder the Transaction
Documents to which it is a party, including, without limitation, the
obligation of the Company to deliver the Sharesto the Investor in respect of
an Advance Notice.
Section 7.23
VariableRate Transaction; Related Party Payments
. From the date hereof until the Promissory Note to be issued hereunder has
been repaid infull in respect of AGBA Group, (A) Triller Corp shall not, and
after the Merger Time, AGBA Group shall not, repay any loans to any
executivesor employees of the Company or any of its Subsidiaries or to make
any payments in respect of any related party debt, and (B) Triller Corpshall
not, and after the Merger Time AGBA Group shall not, effect or enter into an
agreement to effect any issuance by the Company orany of its Subsidiaries of
shares of stock of the Company or any security which entitles the holder to
acquire shares of stock of theCompany (or a combination of units thereof)
involving a Variable Rate Transaction, other than involving a Variable Rate
Transaction withthe Investor. The Investor shall be entitled to seek
injunctive relief against the Company and its Subsidiaries to preclude any
such issuance,which remedy shall be in addition to any right to collect
damages, without the necessity of showing economic loss and without any bondor
other security being required.
Section 7.24
Merger Agreement
.Notwithstanding anything to the contrary contained in the Merger Agreement,
AGBA Group hereby consents to the entry into this Agreementby Triller Corp and
the consummation of the transactions contemplated hereby, including, without
limitation, the closing of the Pre-PaidAdvance, the issuance and sale of the
Promissory Note, the issuance of the Common Warrants and the issuance of any
Common Shares to beissued hereunder.
Section 7.25 The form ofNotice of Exercise included in the Common Warrants
sets forth the totality of the procedures required of the Investor in order to
exercisethe Common Warrants. No additional legal opinion, other information or
instructions shall be required of the Investor to exercise theirCommon
Warrants. Without limiting the preceding sentences, no ink-original Notice of
Exercise shall be required, nor shall any medallionguarantee (or other type of
guarantee or notarization) of any Notice of Exercise form be required in order
to exercise the Common Warrants.The Company shall honor exercises of the
Warrants and shall deliver Common Warrant Shares in accordance with the terms,
conditions andtime periods set forth in the Transaction Documents.
Section 7.26
Warrant Adjustments
.In the event of an adjustment(s) to the Exercise Price (as defined in the
Common Warrant) of the Common Warrant following a Dilutive Issuance(as defined
in the Warrant), then the Company shall issue to the Investor an additional
warrant (the "
Additional Warrant
")in substantially the same form as the Common Warrant to purchase such number
of Common Shares of the Company so that the aggregate exerciseprice payable
under the Common Warrant and the Additional Warrant, after taking into account
the decrease in the Exercise Price (as definedin the Warrant), shall be equal
to the aggregate Exercise Price under the Common Warrant immediately prior to
the date of such DilutiveIssuance.
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Section 7.27
AdditionalIssuance Exemption
. Subject to Section 7.23, nothing herein shall prevent Company from executing
and entering a transaction involvingthe sale of its securities in a private
investment in public company ("
PIPE
") offering at any time, provided that ifany such PIPE offering contains any
terms and provisions that are more favorable than the terms and provisions
contained in the TransactionDocument (including, without limitation, an
issuance price or conversion price more favorable than the Fixed Price or
Variable Price asset forth in the Promissory Note), the Company shall, at the
request of the Investor, enter into amendments to the Transactions
Documentswith the Investor to provide for the same or more favorable terms and
provisions. The Company shall provide written notice of any suchPIPE offering
no more than 3 days in advance of same.
Article VIII.
Conditions for Delivery of Advance Notice
Section 8.01
ConditionsPrecedent to the Right of the Company to Deliver an Advance Notice
. The right of the Company to deliver an Advance Notice and theobligations of
the Investor hereunder with respect to an Advance are subject to the
satisfaction or waiver, on each Advance Notice Date(a "
Condition Satisfaction Date
"), of each of the following conditions:
(a) Accuracy of the Company's
Representations and Warranties
. The representations and warrantiesof the Company in this Agreement shall be
true and correct in all material respects as of the Advance Notice Date (other
than representationsand warranties which address matters only as of a certain
date, which shall be true and correct as written as of such certain date.
(b) Issuance of Commitment Shares
.
The Company shall have paid the Commitment Fee accordancewith
Section 13.04, which Commitment Fee shall be fully earned and
non-refundable, regardless of whether any Advance Notices are madeor
settled hereunder or any subsequent termination of this Agreement.
(c) Registration of the Common
Shares with the SEC
. There is an effective Registration Statement pursuantto which the Investor is permitted to utilize the prospectus
thereunder to resell all of the Common Shares issuable pursuant to such AdvanceNotice. The Company shall have filed
with the SEC in a timely manner all reports, notices and other documents required under the ExchangeAct and applicable
SEC regulations during the twelve-month period immediately preceding the applicable Condition Satisfaction Date.
(d) Authority
. The Company shall have obtained all permits and qualifications required by any applicablestate
for the offer and sale of all the Common Shares issuable pursuant to such Advance Notice,
or shall have the availability of exemptionstherefrom. The sale and issuance of such Common
Shares shall be legally permitted by all laws and regulations to which the Company issubject.
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(e) No Material Outside Event
. No Material Outside Event shall have occurred and be continuing.
(f) Board
. The board of directors of the Company has approved the transactions contemplated by theTransaction
Documents; said approval has not been amended, rescinded or modified and remains in full
force and effect as of the MergerTime, and a true, correct and complete copy of such resolutions
duly adopted by the board of directors of the Company shall have beenprovided to the Investor.
(g) Performance by the Company
. The Company shall have performed, satisfied and complied in all
materialrespects with all covenants, agreements and conditions required
by this Agreement to be performed, satisfied or complied with by
the Companyat or prior the applicable Condition Satisfaction Date.
(h) No Injunction
. No statute, rule, regulation, executive order, decree, ruling or injunction
shallhave been enacted, entered, promulgated or endorsed by any court or governmental
authority of competent jurisdiction that prohibits ordirectly, materially and
adversely affects any of the transactions contemplated by this Agreement.
(i) No Suspension of Trading in
or Delisting of Common Shares
. Trading in the Common Shares shall nothave been suspended by the SEC,
the Principal Market or FINRA, the Company shall not have received
any final and non-appealable noticethat the listing or quotation of
the Common Shares on the Principal Market shall be terminated on
a date certain (unless, prior to suchdate certain, the Common Shares
are listed or quoted on any subsequent Principal Market), nor shall
there have been imposed any suspensionof, or restriction on, accepting
additional deposits of the Common Shares, electronic trading
or book-entry services by DTC with respectto the Common Shares that
is continuing, the Company shall not have received any notice from
DTC to the effect that a suspension of, orrestriction on, accepting
additional deposits of the Common Shares, electronic trading or
book-entry services by DTC with respect to theCommon Shares is being
imposed or is contemplated (unless, prior to such suspension or
restriction, DTC shall have notified the Companyin writing that DTC
has determined not to impose any such suspension or restriction).
(j) Authorized
. There shall be a sufficient number of authorized but unissued and otherwise unreservedCommon
Shares for the issuance of all of the Shares issuable pursuant to such Advance Notice.
(k) Executed Advance Notice
. The representations contained in the applicable Advance Notice shall betrue and
correct in all material respects as of the applicable Condition Satisfaction Date.
(l) Consecutive Advance Notices
. Except with respect to the first Advance Notice, the Company shallhave delivered all Shares relating to all prior Advances.
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(m) Consummation of the Merger
. The Merger shall have been consummated.
(n) Listing
. The Company's Common Shares shall be listed on a Principal Market.
Article IX.
Non Exclusive Agreement
This Agreement and the rightsawarded 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
toacquire shares or other securities and/or other facilities which may be
converted into or replaced by Common Shares or other securitiesof the Company,
and to extend, renew and/or recycle any bonds and/or debentures, and/or grant
any rights with respect to its existingand/or future share capital.
Article X.
Choice of Law/Jurisdiction
This Agreement, and any andall claims, proceedings or causes of action
relating to this Agreement or arising from this Agreement or the transactions
contemplatedherein, including, without limitation, tort claims, statutory
claims and contract claims, shall be interpreted, construed, governed
andenforced under and solely in accordance with the substantive and procedural
laws of the State of New York, in each case as in effect fromtime to time and
as the same may be amended from time to time, and as applied to agreements
performed wholly within the State of New York.The Parties further agree that
any action between them shall be heard in New York County, New York, and
expressly consent to the jurisdictionand venue of the Supreme Court of New
York, sitting in New York County, New York and the United States District
Court of the SouthernDistrict of New York, sitting in New York, New York, for
the adjudication of any civil action asserted pursuant to this Agreement.
EACH PARTY HERETO HEREBY WAIVES,TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY
OR INDIRECTLYARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREIN, THE PERFORMANCE THEREOF OR THE FINANCINGS CONTEMPLATEDHEREB
Y (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEYOF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCETHE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTY HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONGOTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
PARAGRAPH.
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Article XI. Termination
Section 11.01
Termination
.
(a) Unless earlier terminated as provided hereunder, this Agreement shall
terminate automatically on the earliestof (i) the first day of the month
next following the 36-month anniversary of the Effective Date, provided
that if a Promissory Noteis then outstanding, such termination shall
be delayed until such date that such outstanding Promissory Note has been
repaid or (ii) thedate on which the Investor shall have made payment
of Advances pursuant to this Agreement for Common Shares equal to the
Commitment Amount,or (iii) the termination of the Reorganization.
(b) The Company may terminate this Agreement effective upon five (5) Trading
Days' prior written noticeto the Investor; provided that (i) there
are no outstanding Advance Notices, the Common Shares under which have
yet to be issued, (ii)there is not an outstanding Promissory Note, and
(iii) the Company has paid all amounts owed to the Investor pursuant
to this 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 writtenconsent unless otherwise provided in such written consent.
(c) Nothing in this Section 11.01 shall be deemed to release the Company or the Investor from any
liabilityfor any breach under this Agreement, or to impair the rights of the Company and the
Investor to compel specific performance by the otherparty of its obligations under this Agreement.
The indemnification provisions contained in Article VI shall survive termination hereunder.
Article XII. Notices
Other than with respect toAdvance Notices, which must be in writing delivered
in accordance with Section 3.01(b) and will be deemed delivered on the day set
forthin Section 3.01(b), any notices, consents, waivers, or other
communications required or permitted to be given under the terms of
thisAgreement must be in writing and will be deemed to have been delivered (i)
upon receipt, when delivered personally; (ii) upon receipt,when sent by e-mail
if sent on a Trading Day, or, if not sent on a Trading Day, on the immediately
following Trading Day; (iii) 5 daysafter being sent by U.S. certified mail,
return receipt requested, (iv) 1 day after deposit with a nationally
recognized overnight deliveryservice, in each case properly addressed to the
party to receive the same. The addresses for such communications (except for
Advance Noticeswhich shall be delivered in accordance with Exhibit A hereof)
shall be:
If to the Company, to: Triller Corp.
7119 West Sunset Blvd, Suite 782
Los Angeles, CA 90046
Attention: Prem Parameswaran
Chief Financial Officer
Telephone: (310) 893-6090
Email: prem@triller.co
If To AGBA Group: AGBA Group Holding Limited
AGBA Tower
68 Johnston Road
Wan Chai, Hong Kong SAR
Attn: Win-Fai Ng, CEO
Telephone:
Email: wingfai.ng@agba.com
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If to the Investor(s): YA II PN, Ltd.
1012 Springfield Avenue
Mountainside, NJ 07092
Attention: Mark Angelo
Portfolio Manager
Telephone: (201) 985-8300
Email: mangelo@yorkvilleadvisors.com
With a Copy (which shall not constitute notice or delivery of process) to: David Fine, Esq.
1012 Springfield Avenue
Mountainside, NJ 07092
Telephone: (201) 985-8300
Email: legal@yorkvilleadvisors.com
or at such other address and/or e-mail and/orto the attention of such other
person as the recipient party has specified by written notice given to each
other party three BusinessDays prior to the effectiveness of such change.
Written confirmation of receipt (i) given by the recipient of such notice,
consent, waiveror other communication, (ii) electronically generated by the
sender's email service provider containing the time, date, recipientemail
address or (iii) provided by a nationally recognized overnight delivery
service shall be rebuttable evidence of personal servicein accordance with
clause (i), (ii) or (iii) above, respectively.
Article XIII. Miscellaneous
Section 13.01
Counterparts
.This Agreement may be executed in identical counterparts, both which shall be
considered one and the same agreement and shall become effectivewhen
counterparts have been signed by each party and delivered to the other party.
Facsimile or other electronically scanned and deliveredsignatures (including
any electronic signature covered by the U.S. federal ESIGN Act of 2000,
Uniform Electronic Transactions Act, theElectronic Signatures and Records Act
or other applicable law,
e.g.
, www.docusign.com), including by e-mail attachment, shall bedeemed to have
been duly and validly delivered and be valid and effective for all purposes of
this Agreement.
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Section 13.02
Entire Agreement;Amendments
. This Agreement supersedes all other prior oral or written agreements between
the Investor, the Company, their respectiveaffiliates and persons acting on
their behalf with respect to the matters discussed herein, and this Agreement
contains the entire understandingof the parties with respect to the matters
covered herein and, except as specifically set forth herein, neither the
Company nor the Investormakes any representation, warranty, covenant or
undertaking with respect to such matters. No provision of this Agreement may
be waivedor amended other than by an instrument in writing signed by the
parties to this Agreement.
Section 13.03
ReportingEntity for Common Shares
. The reporting entity relied upon for the determination of the trading price
or trading volume of the CommonShares on any given Trading Day for the
purposes of this Agreement shall be Bloomberg, L.P. or any successor thereto.
The written mutualconsent of the Investor and the Company shall be required to
employ any other reporting entity.
Section 13.04
Commitmentand Structuring 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,
except that (i)the Company has previously paid a structuring fee in the amount
of $25,000 to a designee of the Investor, and the Company shall reimburseany
legal fees and expenses incurred by the Investor in connection with the
transactions contemplated herein, which shall be deductedfrom the gross
proceeds of the Pre-Paid Advance Closing and paid to the Investor. The Company
shall pay a commitment fee in an amountequal to 0.35% of the Commitment Amount
(the "
Commitment Fee
") which shall be earned as of the date hereof and shallbe paid by the Company
on the six month anniversary of the date hereof in cash, or (ii) if earlier,
by AGBA Group by the fifth TradingDay following the Merger Time by the
issuance to the Investor of such number of Common Shares that is equal to the
Commitment Fee dividedby the average of the daily VWAP of the Common Shares
for the first three Trading Days immediately following the consummation of the
Merger(collectively, the "
Commitment Shares
"). The Commitment Shares issuable hereunder shall be (i) in reliance upon
Section4(a)(2) under the Securities Act; and (ii) included on the initial
Registration Statement.
Section 13.05
Brokerage
.Each of the parties hereto represents that it has had no dealings in
connection with this transaction with any finder or broker who willdemand
payment of any fee or commission from the other party. The Company on the one
hand, and the Investor, on the other hand, agreeto indemnify the other against
and hold the other harmless from any and all liabilities to any person
claiming brokerage commissions orfinder's fees on account of services
purported to have been rendered on behalf of the indemnifying party in
connection with thisAgreement or the transactions contemplated hereby.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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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, asof the date first
set forth above.
Triller Corp.
By:
Name: Bobby Sarnevesht
Title: Executive Chairman
AGBA Group Holding Limited
By:
Name: Wing-Fai Ng
Title: Chief Executive Officer
YA II PN, Ltd.
By: Yorkville Advisors Global, LP
Its: Investment Manager
By: Yorkville Advisors Global II, LLC
Its: General Partner
By:
Name:
Title:
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ANNEX I TO THE
AMENDED AND RESTATED
STANDBY EQUITY PURCHASE AGREEMENT
CONDITIONS PRECEDENT TO THE INVESTOR'SOBLIGATION TO FUND A PRE-PAID ADVANCE
The obligation of the Investorto advance to the Company the Pre-Paid Advance
hereunder the Pre-Advance Closing is subject to the satisfaction, as of the
date of thePre-Advance Closing, of each of the following conditions, provided
that these conditions are for the Investor's sole benefit andmay be waived by
the Investor at any time in its sole discretion by providing the Company with
prior written notice thereof:
(a) The Company shall have duly executed and delivered to the Investor each of the
Transaction Documents towhich it is a party and the Company shall have duly executed
and delivered to the Investor a Promissory Note with a principal amount correspondingto
the amount of the Pre-Paid Advance (before any deductions made thereto).
(b) The Company shall have delivered to the Investor a compliancecertificate executed by the chief
executive officer of the Company certifying that the Company has complied with all of the
conditionsprecedent to the Pre-Advance Closing set forth herein and which may be relied upon by the
Investor as evidence of satisfaction of suchconditions without any obligation to independently verify.
(c) The Investor shall have received a closing statement in aform to be agreed by the parties,
duly executed by an officer of the Company, setting forth wire transfer instructions
of the Companyfor the payment of the amount of the Pre-Paid Advance, the amount to
be paid by the Investor, and any other deductions that may be agreedby the parties.
(d) The Company shall have delivered to the Investor copies ofits and each Subsidiaries copies of its charter, as well as
any shareholder or operating agreements by or among the shareholders or membersof any of the Company's Subsidiaries.
(e) The Company shall have delivered to the Investor a certificateevidencing the incorporation and
good standing of the Company as of a date within twenty (20) days of the Pre-Advance Closing Date.
(f) The board of directors of the Company has approved the transactionscontemplated by the Transaction
Documents; said approval has not been amended, rescinded or modified and remains in full
force and effectas of the date hereof, and a true, correct and complete copy of such resolutions
duly adopted by the board of directors of the Companyshall have been provided to the Investor.
(g) Each and every representation and warranty of the Companyshall be true and correct in all material
respects (other than representations and warranties qualified by materiality, which shall
betrue and correct in all respects) as of the date hereof and as of the date of the Pre-Advance
Closing as though originally made at thattime (except for representations and warranties
that speak as of a specific date, which shall be true and correct as of such specificdate)
and the Company shall have performed, satisfied and complied in all respects with the
covenants, agreements and conditions setforth in each Transaction Document required to be
performed, satisfied or complied with by the Company at or prior to the Pre-AdvanceClosing date.
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(h) The Company shall have obtained all governmental, regulatoryor third party
consents and approvals, if any, necessary for the grant of the Promissory Notes.
(i) No statute, rule, regulation, executive order, decree, rulingor injunction
shall have been enacted, entered, promulgated or endorsed by any court or
governmental entity of competent jurisdictionthat prohibits the consummation
of any of the transactions contemplated by the Transaction Documents.
(j) As of the Pre-Advance Closing Date, no event or series ofevents shall have occurred that has resulted
in or would reasonably be expected to result in a Material Adverse Effect, or an Event ofDefault.
(k) No material breach of this Agreement or any Transaction Documentshall have occurred (with the passage of time or
the giving of notice, or both, would constitute a material breach of this Agreementor any Transaction Document).
(l) The Company and its Subsidiaries shall have delivered tothe Investor such other documents, instruments or certificates
relating to the transactions contemplated by this Agreement as the Investoror its counsel may reasonably request.
(m) Verzuz LLC, shall have converted the entirety of their respectivedebt
obligations currently held against the Company (and/or its Subsidiaries)
into Common Shares and shall have irrevocably releasedand discharged
any and all security interests, liens, charges, or encumbrances (the "
Existing Security Interests
")they hold in, on, or against the assets of the Company, any Subsidiary and any Guarantors, including for
the avoidance of doubt, theOriginal SEPA Agreement. This conversion of debt and release of Existing Security
Interests shall be documented in a manner satisfactoryto the Investor and evidenced by duly executed written
instruments, copies of which shall be delivered to the Investor prior to the fundingof the first Pre-Paid Advance.
(n) The Triller Reorganization shall have been legally effectuated,the Merger Agreement shall have become effective subject to
closing conditions contained therein and legally binding pursuant to itsterms and conditions, the Merger Agreement remains
in full force and effect and without the consent of the Investor (which shall notbe unreasonably denied, withheld or
conditioned), the Merger Agreement shall not have been modified, amended, or supplemented in anyway since the date hereof.
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EXHIBIT A
ADVANCE NOTICE
TRILLER CORP.
Dated: ______________ Advance Notice Number: ____
The undersigned, _______________________,hereby certifies, with respect to the
sale of Common Shares of
TRILLER CORP.
(the "
Company
") issuable in connectionwith this Advance Notice, delivered pursuant to that
certain Amended and Restated Standby Equity Purchase Agreement, dated as of
February[•], 2024 (the "
Agreement
"), as follows (with capitalized terms used herein without definition having
the samemeanings as given to them in the Agreement):
1. Theundersigned is the duly elected ______________ of the Company.
2. Thereare no fundamental changes to the information set forth in the
Registration Statement which would require the Company to file a post-effectivea
mendment to the Registration Statement.
3. TheCompany has performed in all material respects all covenants and
agreements to be performed by the Company contained in the Agreementon or
prior to the Advance Notice Date. All conditions to the delivery of this
Advance Notice are satisfied as of the date hereof.
4. Thenumber of Advance Shares the Company is requesting is ____________________
_.
5. ThePricing Period for this Advance shall be an [Option 1 Pricing
Period]/[Option 2 Pricing Period.
6. (Foran Option 1 Pricing Period Add:) The Volume Threshold for this Advance
shall be 30%. (For an Option 2 Pricing Period Add:) The MinimumAcceptable
Price with respect to this Advance Notice is____________ (if left blank then
no Minimum Acceptable Price will be applicableto this Advance).
7. Thenumber of Common Shares of the Company outstanding as of the date hereof
is ___________.
The undersigned has executedthis Advance Notice as of the date first set forth
above.
TRILLER CORP.
By:
Please deliver this Advance Notice by email to:
Email: Trading@yorkvilleadvisors.com
Attention: Trading Departmentand Compliance Officer
Confirmation Telephone Number:(201) 985-8300.
EXHIBIT B
FORM OF SETTLEMENT DOCUMENT
VIA EMAIL
TRILLER CORP.
Attn:
Email:
Below please find the settlement information with respect to the Advance Notice Date of:
1. Number of Common Shares requested in the Advance Notice
1.b. Volume Threshold (Number of Common Shares in (1) divided by 0.30 (if applicable)
1.c. Number of Common Shares traded during Pricing Period (if applicable)
2. Minimum Acceptable Price for this Advance (if any)
3. Number of Excluded Days (if any)
4. Adjusted Advance Amount (if applicable) (including pursuant to Volume Threshold adjustment)
5. Option [1] / [2] Market Price
6. Purchase Price (Market Price x [95%] [97%]) per share
7. Number of Advance Shares due to the Investor
8. Total Purchase Price due to Company (row 6 x row 7)
If there were any ExcludedDays then add the following
9. Number of Additional Shares to be issued to the Investor
10. Additional amount to be paid to the Company by the Investor (Additional Shares in row 9 x Minimum Acceptable Price x 97%)
11. Total Amount to be paid to the Company (Purchase Price in row 8 + additional amount in row 10)
12. Total Advance Shares to be issued to the Investor (Advance Shares due to the Investor in row 7 + Additional Shares in row 9)
EXHIBIT C
INVESTOR NOTICE,
CORRESPONDING ADVANCE NOTICE,
AND SETTLEMENT DOCUMENT
YA II PN, LTD.
Dated: ______________ Investor Notice Number: ____
On behalf of YA II PN, LTD.(the "
Investor
"), the undersigned hereby certifies, with respect to the purchase of Common
Shares of
Triller Corp.
(the "
Company
") issuable in connection with this Investor Notice, delivered pursuant to
that certain Amended andRestated Standby Equity Purchase Agreement, dated as
of February [__], 2024, as amended and supplemented from time to time (the "
Agreement
"),as follows:
1. Advance requested in the Advance Notice
2. Purchase Price (equal to the Conversion Price as defined in the Promissory Note)
3. Number of Shares due to Investor
The aggregate purchase priceof the Shares to be paid by Investor pursuant to
this Investor Notice and corresponding Advance Notice shall be offset against
amountsoutstanding under the Pre-Paid Advance evidenced by the Promissory Note
dated [___________ ] (first towards accrued and unpaid interest,and then
towards outstanding principal) as follows (and this information shall satisfy
the obligations of the Investor to deliver a SettlementDocument pursuant to
the Agreement):
1. Amount offset against accrued and unpaid Interest $[____________]
2. Amount offset against Principal $[____________]
3. Total amount of the Promissory Note outstanding following the Advance $[____________]
Please issue the number ofShares due to the Investor to the account of the
Investor as follows:
Investor'sDTC participant #
:
ACCOUNT NAME
:
ACCOUNT NUMBER
:
ADDRESS
:
CITY
:
The undersigned has executed this Investor Noticeas of the date first set
forth above.
YA II PN, Ltd.
By: Yorkville Advisors Global, LP
Its: Investment Manager
By: Yorkville Advisors Global II, LLC
Its: General Partner
By:
Name:
Please issue the number ofAdvance Shares due to the Investor to the account of
the Investor as follows:
Investor'sDTC participant #
:
ACCOUNT NAME
:
ACCOUNT NUMBER
:
ADDRESS
:
CITY
:
COUNTRY
:
Contactperson
:
Numberand/or email
:
Sincerely,
YA II PN, LTD.
Agreed and approved By TRILLER CORP.:
Name:
Title:
EXHIBIT D
FORM OF REGISTRATION RIGHTS AGREEMENT
EXHIBIT E
FORM OF GUARANTY
EXHIBIT G
FORM OF PLEDGE AGREEMENT
EXHIBIT H
FORM OF PROMISSORY NOTE
EXHIBIT I
FORM OF COMMON WARRANT
Exhibit 10.2
NEITHER THIS SECURED PROMISSORY NOTE NORTHE SECURITIES INTO WHICH THIS SECURED
PROMISSORY NOTE ARE CONVERTIBLE HAVE BEEN REGISTERED WITH THE SECURITIES AND
EXCHANGE COMMISSIONOR THE SECURITIES COMMISSION OF ANY STATE. THESE SECURITIES
HAVE BEEN SOLD IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIESACT OF 1933, AS AMENDED (THE "
SECURITIES ACT
"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO
ANEFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECTTO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS. NOTWITHSTANDING THE FOREGOING,THE SECURITIES MAY BE PLEDGED
IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING
ARRANGEMENT SECURED BY THE SECURITIES.
TRILLERCORP.
SecuredConvertible Promissory Note
Original Principal Amount: $8,510,000
Issuance Date: April 25, 2024
Number: ILLR-1
FOR VALUE RECEIVED, TRILLERCORP.,
an entity organized under the laws of the state of Delaware ("
Triller Corp.
" or the "
Company
"),hereby promises to pay to the order of YA II PN, LTD., or its registered
assigns (the "
Holder
"), the amount set outabove as the Original Principal Amount (as reduced
pursuant to the terms hereof pursuant to repayment, redemption, conversion or
otherwise,the "
Principal
") and Payment Premium or Redemption Premium, as applicable, in each case when
due, and to pay interest("
Interest
") on any outstanding Principal at the applicable Interest Rate (as defined
below) from the date set outabove as the Issuance Date (the "
Issuance Date
") until the same becomes due and payable, whether upon the MaturityDate or
acceleration, conversion, redemption or otherwise (in each case in accordance
with the terms hereof). Certain capitalized termsused herein are defined in
Section (12). The Issuance Date is the date of the first issuance of this
Secured Convertible Promissory Note(the "
Note
") regardless of the number of transfers and regardless of the number of
instruments, which may be issuedto evidence such Note. This Note was issued
with a 6% original issue discount.
This Note is being issued pursuantto Section 2.01 of the Amended and Restated
Standby Equity Purchase Agreement, dated April 25, 2024 (as may be amended,
amended and restated,extended, supplemented or otherwise modified in writing
from time to time, the "
SEPA
"), by and between the TrillerCorp, AGBA Group Holding Limited, a British
Virgin Islands business Company ("
AGBA Group
" or the "
Parent
")and YA II PN, Ltd., as the Investor. Upon the consummation of the Merger (as
defined below), all of the obligations of Triller under theSEPA will
automatically be assumed by AGBA Group.
Pursuant to that certain Agreementand Plan of Merger dated April 16, 2024 (as
may be amended, supplemented or otherwise modified from time to time, the "
MergerAgreement
"), by and between Parent, its wholly owned subsidiary AGBA Social Inc. ("
Merger Sub
"), the Companyand Bobby Sarnevesht, solely as representative of the Company
stockholders, (a) the Triller Corp was to complete its reorganization (the"
Triller Reorganization
") with Triller Hold Co LLC ("
Triller LLC
"), such that Triller LLC will reorganizeinto the Company as a Delaware
Corporation, (b) AGBA Group will domesticate to the United States as a
Delaware corporation (the "
AGBADomestication
"), pursuant to which, among other things, all Parent's ordinary shares, par
value $0.001 per share ("
AGBAOrdinary Shares
") will automatically convert into the same number of shares of common stock,
par value $0.001 per share of AGBAGroup (the "
AGBA Common Shares
") and (c) after giving effect to the Triller Reorganization and the AGBA
Domestication,Merger Sub will be merged into the Company (the "
Merger"
), with the Company surviving the Merger and becoming a whollyowned subsidiary
of AGBA Group. On April 18, 2024, the Triller Reorganization was completed.
Upon the consummation of the Merger all theobligations of Triller Corp. under
this Note shall automatically be assumed by AGBA Group, and upon such
consummation and thereafter,all references herein to the "Company" shall refer
to AGBA Group, and all references to "Common Shares" shallrefer to the AGBA
Common Shares.
This Note may be repaid in accordancewith the terms of the SEPA, including,
without limitation, pursuant to Investor Notices and corresponding Advance
Notices deemed givenby the Company in connection with such Investor Notices.
The Holder also has the option of converting on one or more occasions all
orpart of the then outstanding balance under this Note by delivering to the
Company one or more Conversion Notices in accordance with Section3 of this
Note. All Obligations owed by the Company to the Holder under this Note and
each other Transaction Document are guaranteed bythe Guarantors pursuant to
the Guaranty and secured by the Company and the Guarantors pursuant to the
Security Documents.
(1)
GENERAL TERMS
(a)
Maturity Date
. On the Maturity Date, the Company shall pay to the Holder an amount in cash
representing all outstandingPrincipal, accrued and unpaid Interest, and any
other amounts outstanding pursuant to the terms of this Note. The "
Maturity Date
"shall be April 25, 2025, as may be extended at the option of the Holder.
Other than as specifically permitted by this Note, the Companymay not prepay
or redeem any portion of the outstanding Principal and accrued and unpaid
Interest.
(b)
Interest Rate and Payment of Interest
. Interest shall accrue on the outstanding Principal balance hereof at an
annual rateequal to 5% ("
Interest Rate
"), which Interest Rate shall increase to an annual rate of 18% upon the
occurrence of anEvent of Default (for so long as such event remains uncured).
Interest shall be calculated based on a 365-day year and the actual numberof
days elapsed, to the extent permitted by applicable law.
2
(c)
Monthly Payments
. If, any time after the Issuance Date set forth above, and from time to time
thereafter, a Trigger Eventoccurs, then the Company shall make monthly
payments beginning on the 7th Trading Day after the Trigger Date and
continuing on the sameday of each successive Calendar Month. Each monthly
payment shall be in an amount equal to the sum of (i) $1,750,000 of Principal
withrespect to this Note outstanding (or the outstanding Principal of such
Note if less than such amount) (the "
Triggered PrincipalAmount
"), plus (ii) the Payment Premium (as defined below) in respect of such
Triggered Principal Amount, and (iii) accruedand unpaid interest hereunder as
of each payment date. The obligation of the Company to make monthly
prepayments related to a TriggerEvent shall cease (with respect to any payment
that has not yet come due) if any time after the Trigger Date (A) in the event
of a FloorPrice Event, (i) on the date that is the 7
th
consecutive Trading Day that the daily VWAP is greater than 110% of the
FloorPrice then in effect or (ii) the Company provides the Investor a reset
notice (a "
Reset Notice
") setting forth a reducedFloor Price which shall be equal to no more than 85%
of the closing price on the Trading Day immediately prior to such Reset Notice
(andin no event greater than the Floor Price that was then in effect), (B) in
the event of an Exchange Cap Event, the date the Company hasobtained
stockholder approval to increase the number of Common Shares under the
Exchange Cap and/ or the Exchange Cap no longer applies,or (C) in the event of
a Registration Event, the condition or event causing the Registration Event
has been cured or the Holder is ableto resell the Common Shares issuable upon
conversion of this Note in accordance with Rule 144 under the Securities Act,
unless a subsequentAmortization Event occurs.
(d)
Optional Redemption
. The Company at its option shall have the right, but not the obligation, to
redeem ("
OptionalRedemption
") early a portion or all amounts outstanding under this Note as described in
this Section;
provided
that (i)the Company provides the Holder with at least 10 Trading Days' prior
written notice (each a "
Redemption Notice
")of its desire to exercise an Optional Redemption, and (ii) on the date the
Redemption Notice is issued, the VWAP of the Common Stock isless than the
Fixed Price. Each Redemption Notice shall be irrevocable and shall specify the
outstanding balance of the Note to be redeemedand the Redemption Amount. The "
Redemption Amount
" shall be equal to the outstanding Principal balance being redeemedby the
Company, plus the Redemption Premium (as defined below), plus all accrued and
unpaid interest. After receipt of the RedemptionNotice, the Holder shall have
10 Trading Days to elect to convert all or any portion of the Note. On the 11
th
Trading Day afterthe Redemption Notice, the Company shall deliver to the
Holder the Redemption Amount with respect to the Principal amount redeemed
aftergiving effect to conversions or other payments effected during the 10
Trading Day period.
(e)
Payment Dates
. Whenever any payment or other obligation hereunder shall be due on a day
other than a Business Day, suchpayment shall be made on the next succeeding
Business Day.
(2)
EVENTS OF DEFAULT.
(a)
An "
Event of Default
", wherever used herein, means any one of the following events (whatever the
reason andwhether it shall be voluntary or involuntary or effected by
operation of law or pursuant to any judgment, decree or order of any court,or
any order, rule or regulation of any Governmental Authority):
(i) The Company'sor any Guarantor's failure to pay to the Holder any amount of
Principal, Redemption Amount, Payment Premium, Interest, orother amounts when
and as due under this Note or any other Transaction Document;
3
(ii)
TheCompany, any Subsidiary of the Company, or any Guarantor shall commence, or
there shall be commenced against the Company, anySubsidiary of the Company, or
any Guarantor under any applicable bankruptcy or insolvency laws as now or
hereafter in effect or anysuccessor thereto, or the Company, any Subsidiary of
the Company, or any Guarantor commences any other proceeding under
anyreorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar law of anyjurisdiction
whether now or hereafter in effect relating to the Company, any Subsidiary of
the Company, or any Guarantor and anysuch bankruptcy, insolvency or other
proceeding remains undismissed for a period of sixty one (61) days; or the
Company, anySubsidiary of the Company, or any Guarantor is adjudicated
insolvent or bankrupt; or any order of relief or other order approvingany such
case or proceeding is entered; or the Company, any Subsidiary of the Company,
or any Guarantor suffers any appointment ofany custodian, private or court
appointed receiver or the like for it or all or substantially all of its
property which continuesundischarged or unstayed for a period of sixty one
(61) days; or the Company, any Subsidiary of the Company, or any Guarantor
makesa general assignment of all or substantially all of its assets for the
benefit of creditors; or the Company, any Subsidiary of theCompany, or any
Guarantor shall fail to pay, or shall state that it is unable to pay, or shall
be unable to pay, its debts generallyas they become due; or the Company, any
Subsidiary of the Company, or any Guarantor shall call a meeting of its
creditors with aview to arranging a composition, adjustment or restructuring
of its debts; or the Company, any Subsidiary of the Company, or anyGuarantor
shall by any act or failure to act expressly indicate its consent to, approval
of or acquiescence in any of the foregoing;or any corporate or other action is
taken by the Company, any Subsidiary of the Company, or any Guarantor for the
purpose ofeffecting any of the foregoing;
(iii)
TheCompany or any Subsidiary of the Company, or any Guarantor shall default,
in any of its Obligations under any obligation or anypromissory note,
mortgage, credit agreement or other facility, indenture agreement, factoring
agreement or other instrument underwhich there may be issued, or by which
there may be secured or evidenced any indebtedness for borrowed money or money
due under anylong term leasing or factoring arrangement of the Company, any
Subsidiary of the Company, or any Guarantor in an amount exceeding$600,000,
whether such indebtedness now exists or shall hereafter be created and such
default shall result in such indebtednessbeing declared due and payable and
such default is not thereafter cured within ten (10) Business Days;
(iv)
Afinal judgment or judgments for the payment of money aggregating in excess of
$500,000 are rendered against the Company and/or anyof its Subsidiaries and
which judgments are not, within thirty (30) days after the entry thereof,
bonded, discharged, settled orstayed pending appeal, or are not discharged
within thirty (30) days after the expiration of such stay;
provided
,
however
,that any judgment which is covered by insurance or an indemnity from a credit
worthy party shall not be included in calculating the$500,000 amount set forth
above so long as the Company provides the Holder a written statement from such
insurer or indemnityprovider (which written statement shall be reasonably
satisfactory to the Holder) to the effect that such judgment is covered
byinsurance or an indemnity and the Company or such Subsidiary (as the case
may be) will receive the proceeds of such insurance orindemnity;
4
(v)
At any time after the consummation of the Merger, the Common Shares shall
cease to be quoted or listed for trading, as applicable,on any Primary Market
for a period of ten (10) consecutive Trading Days;
(vi)
TheCompany, any Subsidiary of the Company, or any Guarantor shall be a party
to any Change of Control Transaction (as defined inSection (12)), other than
the Merger, unless in connection with such Change of Control Transaction this
Note is retired;
(vii)
TheCompany's (A) failure to deliver the required number of Common Shares to
the Holder within two (2) Trading Days after theapplicable Share Delivery Date
or (B) notice, written or oral, to any holder of the Note, including by way of
public announcement,at any time, of its intention not to comply with a request
for conversion of any Note into Common Shares that is tendered inaccordance
with the provisions of the Note;
(viii)
TheCompany shall fail for any reason to deliver the payment in cash pursuant
to a Buy-In (as defined herein) within five (5) BusinessDays after such
payment is due;
(ix)
TheCompany's failure to timely file with the Commission any Periodic Report on
or before the due date of such filing asestablished by the Commission, it
being understood, for the avoidance of doubt, that due date includes any
permitted filing deadlineextension under Rule 12b-25 under the Exchange Act;
(x)
Any material representation or warranty made or deemed to be made by or on
behalf of the Company, any Subsidiary of the Company,or any Guarantor in or in
connection with any Transaction Document, or any waiver hereunder or
thereunder, shall prove to have been incorrectin any material respect (or, in
the case of any such representation or warranty already qualified by
materiality, such representationor warranty shall prove to have been
incorrect) when made or deemed made;
(xi)
Anymaterial provision of any Transaction Document, at any time after its
execution and delivery and for any reason other than asexpressly permitted
hereunder or thereunder or satisfaction in full of all Obligations, ceases to
be in full force and effect; orthe Company or any other Person (including a
Guarantor) contests in writing the validity or enforceability of any provision
of anyTransaction Document; or the Company or any Guarantor denies in writing
that it has any or further liability or obligation under anyTransaction
Document, or purports in writing to revoke, terminate (other than in line with
the relevant termination provisions) orrescind any Transaction Document;
(xii)
TheCompany uses the proceeds of the issuance of this Note, whether directly or
indirectly, and whether immediately, incidentally orultimately, to purchase or
carry margin stock (within the meaning of Regulations T, U and X of the
Federal ReserveBoard, as in effect from time to time and all official rulings
and interpretations thereunder or thereof), or to extend credit toothers for
the purpose of purchasing or carrying margin stock or to refund indebtedness
originally incurred for such purpose;
(xiii)
AnyEvent of Default (as defined in any Transaction Document other than this
Note) occurs with respect to any Transaction Document, orany breach of any
material term of any other debenture, note, or instrument held by the Holder
in the Company or any agreementbetween or among the Company and the Holder;
5
(xiv)
AnySecurity Document (including this Note) covering a portion of the
Collateral shall cease to create a valid and perfected lien, withthe priority
required by the Security Documents (including this Note) on and security
interest in any material portion of theCollateral covered thereby;
(xv)
TheMerger Agreement is terminated prior to the consummation of the Merger, the
Merger as contemplated by the Merger Agreement is notconsummated within 120
days of the Issuance Date, or any material change, modification, or amendment
is made to the Merger Agreementwithout the prior consent of the Holder; or
(xvi)
TheCompany or any guarantor shall fail to observe or perform any material
covenant, agreement or warranty contained in, or otherwisecommit any material
breach or default of any provision of this Note (except as may be covered by
Section (2)(a)(i) through Section(2)(a)(xiv) hereof) or any other Transaction
Document, which is not cured or remedied within the time prescribed.
(b)
During the time that any portion of this Note is outstanding, if any Event of
Default has occurred , the full unpaid Principalamount of this Note, together
with interest and other amounts owing in respect thereof and other Obligations
accrued hereunder and underany other Transaction Document, to the date of
acceleration shall become at the Holder's election given by notice pursuant to
Section(6), immediately due and payable in cash; provided that, in the case of
any event with respect to the Company described in Section (2)(a)(ii),the full
unpaid Principal amount of this Note, together with interest and other amounts
owing in respect thereof and other Obligationsaccrued hereunder and under any
other Transaction Document, to the date of acceleration, shall automatically
become due and payable, ineach case without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Company.
Furthermore,in addition to any other remedies, the Holder shall have the right
(but not the obligation) to convert, on one or more occasions all orpart of
the Note in accordance with Section (3) (and subject to the limitations set
out in Section (3)(c)(i) and Section (3)(c)(ii)) atany time after (x) an Event
of Default or (y) the Maturity Date at the Conversion Price. The Holder need
not provide and the Company herebywaives any presentment, demand, protest or
other notice of any kind, (other than required notice of conversion) and the
Holder may immediatelyenforce any and all of its rights and remedies hereunder
and all other remedies available to it under applicable law. Such
declarationmay be rescinded and annulled by the Holder in writing at any time
prior to payment hereunder. No such rescission or annulment shall affectany
subsequent Event of Default or impair any right consequent thereon.
(3)
CONVERSION OF NOTE
. This Note shall be convertible into shares of the Company's Common Shares,
on the terms andconditions set forth in this Section (3).
(a)
Conversion Right
. Subject to the limitations of Section (3)(c), at any time or times on or
after the consummation of theMerger, the Holder shall be entitled to convert
any portion of the outstanding and unpaid Conversion Amount into fully paid
and nonassessableCommon Shares in accordance with Section (3)(b), at the
Conversion Price. The number of Common Shares issuable upon conversion of
anyConversion Amount pursuant to this Section (3)(a) shall be determined by
dividing (x) such Conversion Amount by (y) the Conversion Price.The Company
shall not issue any fraction of a share of Common Shares upon any conversion.
All calculations under this Section (3) shallbe rounded to the nearest
$0.0001. If the issuance would result in the issuance of a fraction of a share
of Common Shares, the Companyshall round such fraction of a share of Common
Shares up to the nearest whole share. The Company shall pay any and all
transfer, stampand similar taxes that may be payable with respect to the
issuance and delivery of Common Shares upon conversion of any Conversion
Amount.
6
(b)
Mechanics of Conversion
.
(i)
OptionalConversion
. To convert any Conversion Amount into Common Shares on any date (a "
Conversion Date
"), the Holdershall (A) transmit by email (or otherwise deliver), for receipt
on or prior to 11:59 p.m., New York Time, on such date, a copy of anexecuted
notice of conversion in the form attached hereto as
Exhibit I
(the "
Conversion Notice
") to theCompany and (B) if required by Section (3)(b)(iii), surrender this
Note to a nationally recognized overnight delivery service fordelivery to the
Company (or an indemnification undertaking reasonably satisfactory to the
Company with respect to this Note in thecase of its loss, theft or
destruction). On or before the third (3
rd
) Trading Day following the date of receipt of aConversion Notice (the "
Share Delivery Date
"), the Company shall (X) if legends are not required to be placed
oncertificates of Common Shares and provided that the Transfer Agent is
participating in the Depository Trust Company's("
DTC
") Fast Automated Securities Transfer Program, credit such aggregate number of
Common Shares to which theHolder shall be entitled to the Holder's or its
designee's balance account with DTC through its Deposit Withdrawal
AgentCommission system or (Y) if the Transfer Agent is not participating in
the DTC Fast Automated Securities Transfer Program, issue anddeliver to the
address as specified in the Conversion Notice, a certificate, registered in
the name of the Holder or its designee,for the number of Common Shares to
which the Holder shall be entitled which certificates shall not bear any
restrictive legendsunless required pursuant to rules and regulations of the
Commission. If this Note is physically surrendered for conversion and
theoutstanding Principal of this Note is greater than the Principal portion of
the Conversion Amount being converted, then the Companyshall as soon as
practicable and in no event later than three (3) Business Days after receipt
of this Note and at its own expense,issue and deliver to the holder a new Note
representing the outstanding Principal not converted. The Person or Persons
entitled toreceive the Common Shares issuable upon a conversion of this Note
shall be treated for all purposes as the record holder or holdersof such
Common Shares upon the transmission of a Conversion Notice.
(ii)
Company'sFailure to Timely Convert
. If within three (3) Trading Days after the Company's receipt of an email
copy of a ConversionNotice the Company shall fail to issue and deliver a
certificate to the Holder or credit the Holder's balance account with DTCfor
the number of Common Shares to which the Holder is entitled upon such holder's
conversion of any Conversion Amount (a"
Conversion Failure
"), and if on or after such Trading Day the Holder purchases (in an open
market transaction orotherwise) Common Shares to deliver in satisfaction of a
sale by the Holder of Common Shares issuable upon such conversion that
theHolder anticipated receiving from the Company (a "
Buy-In
"), then the Company shall, within three (3) BusinessDays after the Holder's
request and in the Holder's discretion, either (i) pay cash to the Holder in
an amount equal tothe Holder's total purchase price (including brokerage
commissions and other out of pocket expenses, if any) for the CommonShares so
purchased (the "
Buy-In Price
"), at which point the Company's obligation to deliver suchcertificate (and to
issue such Common Shares) shall terminate, or (ii) promptly honor its
obligation to deliver to the Holder acertificate or certificates representing
such Common Shares and pay cash to the Holder in an amount equal to the excess
(if any) ofthe Buy-In Price over the product of (A) such number of Common
Shares, times (B) the Closing Price on the Conversion Date.
7
(iii)
Book-Entry
.Notwithstanding anything to the contrary set forth herein, upon conversion of
any portion of this Note in accordance with the termshereof, the Holder shall
not be required to physically surrender this Note to the Company unless (A)
the full Conversion Amountrepresented by this Note is being converted or (B)
the Holder has provided the Company with prior written notice (which notice
maybe included in a Conversion Notice) requesting reissuance of this Note upon
physical surrender of this Note. The Holder and theCompany shall maintain
records showing the Principal and Interest converted and the dates of such
conversions or shall use suchother method, reasonably satisfactory to the
Holder and the Company, so as not to require physical surrender of this Note
uponconversion.
(c)
Limitationson Conversions
.
(i)
BeneficialOwnership
. The Holder shall not have the right to convert any portion of this Note to
the extent that after giving effect tosuch conversion, the Holder, together
with any affiliate thereof, would beneficially own (as determined in
accordance with Section13(d) of the Exchange Act and the rules promulgated
thereunder) in excess of 4.99% of the number of Common Shares outstandingimmedia
tely after giving effect to such conversion or receipt of shares as payment of
interest. Since the Holder will not beobligated to report to the Company the
number of Common Shares it may hold at the time of a conversion hereunder,
unless theconversion at issue would result in the issuance of Common Shares in
excess of 4.99% of the then outstanding Common Shares withoutregard to any
other shares which may be beneficially owned by the Holder or an affiliate
thereof, the Holder shall have theauthority and obligation to determine
whether the restriction contained in this Section will limit any particular
conversionhereunder and to the extent that the Holder determines that the
limitation contained in this Section applies, the determination ofwhich
portion of the Principal amount of this Note is convertible shall be the
responsibility and obligation of the Holder. If theHolder has delivered a
Conversion Notice for a Principal amount of this Note that, without regard to
any other shares that theHolder or its affiliates may beneficially own, would
result in the issuance in excess of the permitted amount hereunder, the
Companyshall notify the Holder of this fact and shall honor the conversion for
the maximum Principal amount permitted to be converted onsuch Conversion Date
in accordance with Section (3)(a) and, any Principal amount tendered for
conversion in excess of the permittedamount hereunder shall remain outstanding
under this Note. The provisions of this Section may be waived by a Holder (but
only as toitself and not to any other Holder) upon not less than 65 days prior
notice to the Company. Other Holders shall be unaffected by anysuch waiver.
(ii)
PrincipalMarket Limitation
. Notwithstanding anything in this Note to the contrary, the Company shall not
issue any Common Shares uponconversion of this Note, or otherwise, if the
issuance of such Common Shares, together with any Common Shares issued in
connectionthe SEPA and with any other related transactions that may be
considered part of the same series of transactions, would exceed theaggregate
number Common Shares that the Company may issue in a transaction in compliance
with the Company's obligations underthe rules or regulations of Principal
Market and shall be referred to as the "
Exchange Cap,
" except that suchlimitation shall not apply if (i) the Company's stockholders
have approved such issuances on such terms in excess of theExchange Cap in
accordance with the rules of the Principal Market. From and after the
consummation of the Merger, the Company willcontinuously maintain the listing
and trading of its Common Shares on the Principal Market and shall comply in
all respects with theCompany's reporting, filing and other obligations under
the bylaws or rules of the Principal Market.
8
(d)
Other Provisions
.
(i) All calculationsunder this Section (3) shall be rounded to the nearest
$0.0001 or whole share.
(ii)
Solong as this Note remains outstanding, the Company shall have reserved from
its duly authorized share capital, and shall haveinstructed its transfer agent
to irrevocably reserve, the maximum number of Common Shares issuable upon
conversion of this Note(assuming for purposes hereof that (x) this Note and is
convertible at the Floor Price as of the date of determination, (y) any
suchconversion shall not take into account any limitations on the conversion
of the Note set forth herein (the "
RequiredReserve Amount
"), provided that at no time shall the number of Common Shares reserved
pursuant to this Section (3)(d)(ii)be reduced other than proportionally with
respect to all Common Shares in connection with any conversion (other than
pursuant to theconversion of this Note in accordance with their terms) and/or
cancellation, or reverse stock split. If at any time the number ofCommon
Shares authorized but unissued and not otherwise reserved for issuance
(including (i) in relation to equity or debtsecurities convertible into or
exchangeable or exercisable for or that can be settled in Common Shares (other
than the Note) and(ii) Common Shares remaining available for issuance under
the Company's equity incentive plans) is not sufficient to meet theRequired
Reserve Amount, the Company will promptly take all corporate action necessary
to propose to its general meeting ofshareholders an increase of its authorized
share capital necessary to meet the Company's Obligations pursuant to this
Note,recommending that shareholders vote in favor of such an increase. If at
any time the number of Common Shares that remain availablefor issuance under
the Exchange Cap is less than 100% of the maximum number of shares issuable
upon conversion of all amountoutstanding under this Note (assuming for
purposes hereof that (x) the Note is convertible at the Conversion Price then
in effect,and (y) any such conversion shall not take into account any
limitations on the conversion of the Note, other than the Floor Pricethen in
effect but solely with respect to the Variable Price), the Company will use
reasonable best efforts to promptly call andhold a shareholder meeting for the
purpose of seeking the approval of its shareholders as required by the
applicable rules of thePrincipal Market, for issuances of shares in excess of
the Exchange Cap. The Company covenants that, upon issuance in accordancewith
conversion of this Note in accordance with its terms, the Common Shares, when
issued, will be validly issued, fully paid andnonassessable.
(iii)
Neitherthe Company, nor any of its Subsidiaries, nor any Guarantor will,
directly or indirectly, use the proceeds of the issuance of thisNote to repay
any loans to any executives or employees of the Company or to make any
payments in respect of any debt (whetherrelated party or not). Neither the
Company nor any of its Subsidiaries will, directly or indirectly, use the
proceeds from thetransactions contemplated herein, or lend, contribute or
otherwise make available such proceeds to any Subsidiary, joint venturepartner
or other person for the purpose of funding or facilitating any activities or
business of or with any person or in anycountry or territory that, at the time
of such funding or facilitation, is the subject of sanctions or is a
sanctioned country.
9
(iv)
Fromthe date hereof until this Note have been repaid, unless the Holder shall
have given prior written consent, the Company shall not,and shall not permit
any of its Subsidiaries (whether or not a Subsidiary on the date hereof) to,
directly or indirectly (i) amendits charter documents, including, without
limitation, its Certificate of Incorporation (or similar governing document),
in anymanner that materially and adversely affects any rights of the Holder,
(ii) increase the nominal value of its Common Shares, or(iii) enter into,
agree to enter into, or effect, any Variable Rate Transaction other than with
the Holder. "
Variable RateTransaction
" shall mean a transaction in which the Company (i) issues or sells any equity
or debt securities that areconvertible into, exchangeable or exercisable for,
or include the right to receive additional shares of Common Shares either (A)
ata conversion price, exercise price, exchange rate or other price that is
based upon and/or varies with the trading prices of orquotations for the
Common Shares at any time after the initial issuance of such equity or debt
securities, or (B) with a conversion,exercise or exchange price that is
subject to being reset at some future date after the initial issuance of such
equity or debtsecurity or upon the occurrence of specified or contingent
events directly or indirectly related to the business of the Company orthe
market for the Ordinary Shares (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-cashdividend, stock split or other similar transaction), or (ii) enters
into any agreement, including but not limited to an"equity line of credit," or
other continuous offering or similar offering of Common Shares.
(v)
Nothing herein shall limit a Holder's right to pursue actual damages or
declare an Event of Default pursuant to Section (2)herein for the Company's
failure to deliver certificates representing Common Shares upon conversion
within the period specifiedherein and such Holder shall have the right to
pursue all remedies available to it at law or in equity including, without
limitation,a decree of specific performance and/or injunctive relief, in each
case without the need to post a bond or provide other security. Theexercise of
any such rights shall not prohibit the Holder from seeking to enforce damages
pursuant to any other Section hereof or underapplicable law.
(vi)
LegalOpinions
. The Company is obligated to cause its legal counsel to deliver legal
opinions to the Company's transfer agent inconnection with any legend removal
upon the expiration of any holding period or other requirement for which the
Underlying Sharesmay bear legends restricting the transfer thereof. To the
extent that a legal opinion is not provided (either timely or at all),then, in
addition to being an Event of Default hereunder, the Company agrees to
reimburse the Holder for all reasonable costsincurred by the Holder in
connection with any legal opinions paid for by the Holder in connection with
sale or transfer ofUnderlying Common Shares. The Holder shall notify the
Company of any such costs and expenses it incurs that are referred to in
thissection from time to time and all amounts owed hereunder shall be paid by
the Company with reasonable promptness.
10
(e)
Adjustmentof Conversion Price upon Subdivision or Combination of Common Shares
. If the Company, at any time while this Note isoutstanding, shall (a) pay a
stock dividend or otherwise make a distribution or distributions on shares of
its Common Shares orany other equity or equity equivalent securities payable
in Common Shares, (b) subdivide outstanding Common Shares into a largernumber
of shares, (c) combine (including by way of reverse stock split) outstanding
Common Shares into a smaller number of shares,or (d) issue by reclassification
of Common Shares any shares of capital stock of the Company, then each of the
Fixed Price and theFloor Price shall be multiplied by a fraction of which the
numerator shall be the number of Common Shares (excluding treasuryshares, if
any) outstanding before such event and of which the denominator shall be the
number of Common Shares outstanding aftersuch event. Any adjustment made
pursuant to this Section shall become effective immediately after the record
date for thedetermination of stockholders entitled to receive such dividend or
distribution and shall become effective immediately after theeffective date in
the case of a subdivision, combination or re-classification.
(f)
Adjustment ofConversion Price upon Issuance of Common Stock
. Except as in connection with the Triller Reorganization, the Merger or
issuanceof an Exempt Issuance, if the Company, at any time while this Note is
outstanding, issues or sells any Common Shares or ConvertibleSecurities, for a
consideration per share (the "
New Issuance Price
") less than a price equal to the Fixed Pricein effect immediately prior to
such issue or sale (such price the "
Applicable Price
") (the foregoing a"
Dilutive Issuance
"), then immediately after such Dilutive Issuance the Fixed Price then in
effect shall bereduced to an amount equal to the New Issuance Price. For the
purposes hereof, if the Company in any manner issues or sells anyConvertible
Securities and the lowest price per share for which one Common Share is
issuable upon such conversion or exchange orexercise thereof is less than the
Applicable Price, then such Common Share shall be deemed to be outstanding and
to have been issuedand sold by the Company at the time of the issuance or sale
of such Convertible Securities for such price per share. No furtheradjustment
of the Conversion Price shall be made upon the actual issuance of such Common
Share upon conversion or exchange orexercise of such Convertible Securities;
provided, however,
that a Dilutive Issuance shall not include any issuance of CommonShares
pursuant to either an Advance Notice or Investor Notice (each, as defined in
the SEPA).
(g)
OtherCorporate Events
. In addition to and not in substitution for any other rights hereunder, prior
to the consummation of anyFundamental Transaction pursuant to which holders of
Common Shares are entitled to receive securities or other assets with
respectto or in exchange for Common Shares (a "
Corporate Event
"), the Company shall make appropriate provision to ensurethat the Holder will
thereafter have the right to receive upon a conversion of this Note, at the
Holder's option, (i) inaddition to the Common Shares receivable upon such
conversion, such securities or other assets to which the Holder would have
beenentitled with respect to such Common Shares had such Common Shares been
held by the Holder upon the consummation of such CorporateEvent (without
taking into account any limitations or restrictions on the convertibility of
this Note) or (ii) in lieu of the CommonShares otherwise receivable upon such
conversion, such securities or other assets received by the holders of Common
Shares inconnection with the consummation of such Corporate Event in such
amounts as the Holder would have been entitled to receive had thisNote
initially been issued with conversion rights for the form of such
consideration (as opposed to Common Shares) at a conversionrate for such
consideration commensurate with the Conversion Price. Provision made pursuant
to the preceding sentence shall be in aform and substance satisfactory to the
Required Holders. The provisions of this Section shall apply similarly and
equally tosuccessive Corporate Events and shall be applied without regard to
any limitations on the conversion or redemption of this Note.
11
(h)
Wheneverthe Conversion Price is adjusted pursuant to Section (3) hereof, the
Company shall promptly provide the Holder with a written noticesetting forth
the Conversion Price after such adjustment and setting forth a brief statement
of the facts requiring suchadjustment.
(i)
Uponconsummation of the Merger, AGBA Group shall assume all obligations of the
Company hereunder and the Company shall become aGuarantor and join as a party
to the Guaranty. The Holder may require AGBA Group to issue to the Holder a
replacement convertibleNote with a Principal amount equal to the aggregate
Principal amount of this Note then held by such Holder, plus all accrued
andunpaid interest and other amounts owing thereon, which such newly issued
convertible Note shall have terms identical (including withrespect to
conversion) to the terms of this Note, and shall be entitled to all of the
rights and privileges of the Holder of thisNote set forth herein and the
agreements pursuant to which this Note was issued, in exchange for the
cancellation of this Note.
(j)
Otherthan in connection with the Merger, in case of any (1) merger or
consolidation of the Company or any Subsidiary of the Company withor into
another Person, or (2) sale by the Company or any Subsidiary of the Company of
more than one-half of the assets of theCompany in one or a series of related
transactions, a Holder shall have the right to (A) exercise any rights under
Section(2)(a)(xiii), (B) convert the aggregate amount of this Note then
outstanding into the shares of stock and other securities, cash andproperty
receivable upon or deemed to be held by holders of Common Shares following
such merger, consolidation or sale, and suchHolder shall be entitled upon such
event or series of related events to receive such amount of securities, cash
and property as theCommon Shares into which such aggregate Principal amount of
this Note could have been converted immediately prior to such merger,consolidati
on or sales would have been entitled, or (C) in the case of a merger or
consolidation, require the surviving entity toissue to the Holder a
convertible Note with a Principal amount equal to the aggregate Principal
amount of this Note then held bysuch Holder, plus all accrued and unpaid
interest and other amounts owing thereon, which such newly issued convertible
Note shallhave terms identical (including with respect to conversion) to the
terms of this Note, and shall be entitled to all of the rightsand privileges
of the Holder of this Note set forth herein and the agreements pursuant to
which this Note was issued. In the case ofclause (C), the conversion price
applicable for the newly issued shares of convertible preferred stock or
convertible debenturesshall be based upon the amount of securities, cash and
property that each Common Shares would receive in such transaction and
theConversion Price in effect immediately prior to the effectiveness or
closing date for such transaction. The terms of any suchmerger, sale or
consolidation shall include such terms so as to continue to give the Holder
the right to receive the securities,cash and property set forth in this
Section upon any conversion or redemption following such event. This provision
shall similarlyapply to successive such events.
12
(4)
INDEMNIFICATION
(a)
Withrespect to the Company's obligations under this Note and the other
Transaction Documents, to the fullest extent permitted bylaw, the Company
shall, and hereby does, indemnify, hold harmless and defend the Holder, its
investment manager and their respectivedirectors, officers, partners,
employees, agents, representatives, and successors and assigns of, and each
Person, if any, whocontrols Holder within the meaning of the Securities Act or
the Exchange Act (each, an "
Indemnified Person
"),against any losses, claims, damages, liabilities, judgments, fines,
penalties, charges, costs, reasonable attorneys' fees,amounts paid in
settlement or expenses, joint or several (collectively, "
Claims
") incurred in investigating,preparing or defending any action, claim, suit,
inquiry, proceeding, investigation or appeal taken from the foregoing by or
beforeany court or governmental, administrative or other regulatory agency,
body or the Commission, whether pending or threatened, whetheror not an
Indemnified Person is or may be a party thereto ("
Indemnified Damages
"), to which any of them maybecome subject insofar as such Claims (or actions
or proceedings, whether commenced or threatened, in respect thereof) arise out
ofor are based upon: (i) any untrue statement or alleged untrue statement of a
material fact in any filing made in any public filing(including, without
limitation, any Periodic Reports) made by the Company with the Commission, or
the omission or alleged omissionto state a material fact required to be stated
therein or necessary to make the statements therein not misleading; or (ii)
anyviolation or alleged violation by the Company of the Securities Act, the
Exchange Act, any other law, including, without limitation,any state
securities law (the matters in the foregoing clauses (i) through (iii) being,
collectively,"
Violations
"). The Company shall reimburse the Indemnified Persons and each such
controlling person promptly assuch expenses are incurred and are due and
payable, for any legal fees or disbursements or other reasonable expenses
incurred bythem in connection with investigating or defending any such Claim.
(b)
Promptlyafter receipt by an Indemnified Person under this Section (4) of
notice of the commencement of any action or proceeding (includingany
governmental action or proceeding) involving a Claim, such Indemnified Person
shall, if a Claim in respect thereof is to be madeagainst any indemnifying
party under this Section (4), deliver to the indemnifying party a written
notice of the commencementthereof, and 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 mutuallysatisfactory to the
indemnifying party and the Indemnified Person;
provided
,
however
, that an Indemnified Person shallhave the right to retain its own counsel
with the fees and expenses of not more than one (1) counsel for such
Indemnified Person tobe paid by the indemnifying party, if, in the reasonable
opinion of counsel retained by the indemnifying party, the representationby
such counsel of the Indemnified Person and the indemnifying party would be
inappropriate due to actual or potential differinginterests between such
Indemnified Person and any other party represented by such counsel in such
proceeding. The Indemnified Personshall cooperate fully with the indemnifying
party in connection with any negotiation or defense of any such action or
claim by theindemnifying party and shall furnish to the indemnifying party all
information reasonably available to the Indemnified Person whichrelates to
such action or claim. The indemnifying party shall keep the Indemnified Person
fully apprised at all times as to thestatus of the defense or any settlement
negotiations with respect thereto. No indemnifying party shall be liable for
any settlementof any action, claim or proceeding effected without its prior
written consent;
provided
,
however
, that theindemnifying party shall not unreasonably withhold, delay or
condition its consent. No indemnifying party shall, without the priorwritten
consent of the Indemnified Person, consent to entry of any judgment or enter
into any settlement or other compromise whichdoes not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Person of a releasefrom all liability in respect to such claim or
litigation. Following indemnification as provided for hereunder, the
indemnifyingparty shall be subrogated to all rights of the Indemnified Person
with respect to all third parties, firms or corporations relatingto the matter
for which indemnification has been made. The failure to deliver written notice
to the indemnifying party within areasonable time of the commencement of any
such action shall not relieve such indemnifying party of any liability to the
IndemnifiedPerson under this Section (4), except to the extent that the
indemnifying party is prejudiced in its ability to defend suchaction.
13
(c)
Theindemnification required by this Section (4) shall be made by periodic
payments of the amount thereof during the course of theinvestigation or
defense, as and when bills are received or Indemnified Damages are incurred.
(d)
Theindemnity agreements contained herein shall be in addition to (i) any cause
of action or similar right of the IndemnifiedPerson against the indemnifying
party or others, and (ii) any liabilities the indemnifying party may be
subject to pursuant to thelaw.
(e)
Tothe extent any indemnification by an indemnifying party is prohibited or
limited by law, the indemnifying party agrees to make themaximum contribution
with respect to any amounts for which it would otherwise be liable under
Section (4) to the fullest extentpermitted by law.
(5)
REISSUANCE OF THIS NOTE
.
(a)
Transfer
. If this Note is to be transferred, the Holder shall surrender this Note to
the Company, whereupon the Companywill forthwith issue and deliver upon the
order of the Holder a new Note (in accordance with Section (4)(d)), registered
in the name ofthe registered transferee or assignee, representing the
outstanding Principal being transferred by the Holder (along with any
accruedand unpaid interest thereof) and, if less than the entire outstanding
Principal is being transferred, a new Note (in accordance with Section(4)(d))
to the Holder representing the outstanding Principal not being transferred.
The Holder and any assignee, by acceptance of thisNote, acknowledge and agree
that, by reason of the provisions of Section (3)(b)(iii) following conversion
or redemption of any portionof this Note, the outstanding Principal
represented by this Note may be less than the Principal stated on the face of
this Note.
(b)
Lost, Stolen or Mutilated Note
. Upon receipt by the Company of evidence reasonably satisfactory to the
Company of the loss,theft, destruction or mutilation of this Note, and, in the
case of loss, theft or destruction, of any indemnification undertaking by
theHolder to the Company in customary form and, in the case of mutilation,
upon surrender and cancellation of this Note, the Company shallexecute and
deliver to the Holder a new Note (in accordance with Section (4)(d))
representing the outstanding Principal.
(c)
Note Exchangeable for Different Denominations
. This Note is exchangeable, upon the surrender hereof by the Holder at
theprincipal office of the Company, for a new Note or Notes (in accordance
with Section (4)(d)) representing in the aggregate the outstandingPrincipal of
this Note, and each such new Note will represent such portion of such
outstanding Principal as is designated by the Holderat the time of such
surrender.
(d)
Issuance of New Notes
. Whenever the Company is required to issue a new Note pursuant to the terms
hereof, such new Note(i) shall be of like tenor with this Note, (ii) shall
represent, as indicated on the face of such new Note, the Principal remaining
outstanding(or in the case of a new Note being issued pursuant to Section
5(4)(a) or Section 5(4)(c), the Principal designated by the Holder which,when
added to the Principal represented by the other new Note issued in connection
with such issuance, does not exceed the Principal remainingoutstanding under
this Note immediately prior to such issuance of new Note), (iii) shall have an
issuance date, as indicated on the faceof such new Note, which is the same as
the Issuance Date of this Note, (iv) shall have the same rights and conditions
as this Note, and(v) shall represent accrued and unpaid Interest from the
Issuance Date.
14
(6)
NOTICES
.Any notices, consents, waivers or other communications required or permitted
to be given under the terms hereof must be in writingby letter and email and
will be deemed to have been delivered: upon the later of (A) either (i)
receipt, when delivered personallyor (ii) one (1) Business Day after deposit
with an overnight courier service with next day delivery specified, in each
case,properly addressed to the party to receive the same and (B) receipt, when
sent by electronic mail. The addresses and e-mailaddresses for such
communications shall be:
If to the Company (prior to the Merger), to: Triller Corp.
Triller Corp.
7119 West Sunset Blvd, Suite 782
Los Angeles, CA 90046
Attention: Prem Parameswaran
Chief Financial Officer
Telephone: (310) 893-6090
Email: prem@triller.co
If to the Company (After the Merger), to: AGBA Group Holding Limited
AGBA Tower
68 Johnston Road
Wan Chai, Hong Kong SAR
Attn: Win-Fai Ng, CEO
Telephone:
Email: wingfai.ng@agba.com
with a copy (which shall not constitute notice) to:
E-mail:
If to the Holder: YA II PN, Ltd
c/o Yorkville Advisors Global, LLC
1012 Springfield Avenue
Mountainside, NJ 07092
Attention: Mark Angelo
Telephone: 201-985-8300
Email: Legal@yorkvilleadvisors.com
or at such other address and/oremail and/or to the attention of such other
person as the recipient party has specified by written notice given to each
other party three(3) Business Days prior to the effectiveness of such change.
Written confirmation of receipt (i) given by the recipient of such
notice,consent, waiver or other communication, (ii) electronically generated
by the sender's email service provider containing the time,date, recipient
email address or (iii) provided by a nationally recognized overnight delivery
service, shall be rebuttable evidence ofpersonal service, receipt by facsimile
or receipt from a nationally recognized overnight delivery service in
accordance with clause (i),(ii) or (iii) above, respectively.
(7)
So long as this Note is outstanding, the Company shall not and shall cause
their subsidiaries not to, without the consent of theHolder, (i) amend its
certificate of incorporation, bylaws or other charter documents so as to
adversely affect any rights of the Holder;(ii) repay, repurchase or offer to
repay, repurchase or otherwise acquire shares of its Common Stock or other
equity securities; (iii)enter into any agreement with respect to any of the
foregoing; or (iv) enter into any agreement, arrangement or transaction in or
of whichthe terms thereof would restrict, materially delay, conflict with or
impair the ability of the Company to perform its Obligations underthis Note or
the SEPA, including, without limitation, the obligation of the Company to make
cash payments hereunder. Furthermore, andin addition to the foregoing, the
Company agrees that so long as this Note is outstanding, without the prior
written consent of the Holder,the Company shall not (a) pay a stock dividend
or otherwise make a distribution or distributions on shares of its Common
Stock or anyother equity or equity equivalent securities payable in shares of
Common Stock, or (b) combine (including by way of reverse stock split)outstandin
g shares of Common Stock into a smaller number of shares, or effect any of the
foregoing, whether or not any such action hasbeen previously approved by the
stockholders of the Company.
15
(8)
This Note shall not entitle the Holder to any of the rights of a stockholder
of the Company, including without limitation, theright to vote, to receive
dividends and other distributions, or to receive any notice of, or to attend,
meetings of stockholders or anyother proceedings of the Company, unless and to
the extent converted into Common Shares in accordance with the terms hereof.
(9)
After the Issuance Date, without the Holder's consent, the Company will not
and will not permit any of its Subsidiaries to,directly or indirectly, enter
into, create, incur, assume or suffer to exist any indebtedness or any
security interests or liens of anykind, on or with respect to any of its
property or assets now owned or hereafter acquired or any interest therein or
any income or profitstherefrom;
provided, further, for the avoidance of doubt,
no creditor of the Company, whether secured or unsecured, present orfuture,
shall have any right, legal or equitable, to attach, garnish, levy upon, or
otherwise encumber any of the proceeds received orshares transmitted by the
Company pursuant to the SEPA, including, for the avoidance of doubt, by means
of an Advance Notice. This shallinclude, but shall not be limited to, the
Investor's right of offset, and any setoff, counterclaim, charge, pledge,
security interest,or any other form of encumbrance or claim on such proceeds.
The proceeds or the issuance of shares, as applicable, from the SEPA shallbe
deemed separate and distinct assets of the Company, free from any claim or
interference from any creditor of the Company.
(10)
CHOICEOF LAW; VENUE; WAIVER OF JURY TRIAL
(a)
Governing Law
. This Note and the rights and Obligations of the Parties hereunder shall, in
all respects, be governed by,and construed in accordance with, the laws
(excluding the principles of conflict of laws) of the State of New York (the "
GoverningJurisdiction
") (including Section 5-1401 and Section 5-1402 of the General Obligations Law
of the State of New York), includingall matters of construction, validity and
performance.
(b)
Jurisdiction; Venue; Service.
(i) The Company herebyirrevocably consents to the non-exclusive personal
jurisdiction of the state courts of the Governing Jurisdiction and, if a
basisfor federal jurisdiction exists, the non-exclusive personal jurisdiction
of any United States District Court for the GoverningJurisdiction.
(ii)
TheCompany agrees that venue shall be proper in any court of the Governing
Jurisdiction selected by the Holder or, if a basis forfederal jurisdiction
exists, in any United States District Court in the Governing Jurisdiction. The
Company waives any right toobject to the maintenance of any suit, claim,
action, litigation or proceeding of any kind or description, whether in law or
equity,whether in contract or in tort or otherwise, in any of the state or
federal courts of the Governing Jurisdiction on the basis ofimproper venue or
inconvenience of forum.
16
(iii)
Anysuit, claim, action, litigation or proceeding of any kind or description,
whether in law or equity, whether in contract or tort orotherwise, brought by
the Company against the Holder arising out of or based upon this Note or any
matter relating to this Note, orany other Transaction Document, or any
contemplated transaction, shall be brought in a court only in the Governing
Jurisdiction. TheCompany shall not file any counterclaim against the Holder in
any suit, claim, action, litigation or proceeding brought by theHolder against
the Company in a jurisdiction outside of the Governing Jurisdiction unless
under the rules of the court in which theHolder brought such suit, claim,
action, litigation or proceeding the counterclaim is mandatory, and not
permissive, and would beconsidered waived unless filed as a counterclaim in
the suit, claim, action, litigation or proceeding instituted by the
Holderagainst the Company. The Company agrees that any forum outside the
Governing Jurisdiction is an inconvenient forum and that anysuit, claim,
action, litigation or proceeding brought by the Company against the Holder in
any court outside the GoverningJurisdiction should be dismissed or transferred
to a court located in the Governing Jurisdiction. Furthermore, the
Companyirrevocably and unconditionally agrees that it will not bring or
commence any suit, claim, action, litigation or proceeding of anykind or
description, whether in law or equity, whether in contract or in tort or
otherwise, against the Holder arising out of orbased upon this Note or any
matter relating to this Note, or any other Transaction Document, or any
contemplated transaction, in anyforum other than the courts of the State of
New York sitting in New York County, and the United States District Court of
theSouthern District of New York, and any appellate court from any thereof,
and each of the parties hereto irrevocably andunconditionally submits to the
jurisdiction of such courts and agrees that all claims in respect of any such
suit, claim, action,litigation or proceeding may be heard and determined in
such New York State Court or, to the fullest extent permitted by applicablelaw,
in such federal court. The Company and the Holder agree that a final judgment
in any such suit, claim, action, litigation orproceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or in any
other manner provided bylaw.
(iv)
TheCompany and the Holder irrevocably consent to the service of process out of
any of the aforementioned courts in any such suit,claim, action, litigation or
proceeding by the mailing of copies thereof by registered or certified mail
postage prepaid, to it atthe address provided for notices in this Note, such
service to become effective thirty (30) days after the date of mailing.
(v) Nothing herein shallaffect the right of the Holder to serve process in any
other manner permitted by law or to commence legal proceedings or tootherwise
proceed against the Company or any other Person in the Governing Jurisdiction
or in any other jurisdiction.
(c)
THEPARTIES MUTUALLY WAIVE ALL RIGHT TO TRIAL BY JURY OF ALL CLAIMS OF ANY KIND
ARISING OUT OF OR BASED UPON THIS NOTE OR ANY MATTERRELATING TO THIS NOTE, OR
ANY OTHER TRANSACTION DOCUMENT, OR ANY CONTEMPLATED TRANSACTION. THE PARTIES
ACKNOWLEDGE THAT THIS IS AWAIVER OF A LEGAL RIGHT AND THAT THE PARTIES EACH
MAKE THIS WAIVER VOLUNTARILY AND KNOWINGLY AFTER CONSULTATION WITH COUNSEL
OFTHEIR RESPECTIVE CHOICE. THE PARTIES AGREE THAT ALL SUCH CLAIMS SHALL BE
TRIED BEFORE A JUDGE OF A COURT HAVING JURISDICTION,WITHOUT A JURY.
17
(11)
Ifthe Company fails to strictly comply with the terms of this Note and/or any
other Transaction Document, then the Company shallreimburse the Holder
promptly for all fees, costs and expenses, including, without limitation,
attorneys' fees and expensesincurred by the Holder in any action in connection
with this Note, including, without limitation, those incurred: (i) during
anyworkout, attempted workout, and/or in connection with the rendering of
legal advice as to the Holder's rights, remedies andobligations, (ii)
collecting any sums which become due to the Holder, (iii) defending or
prosecuting any proceeding or anycounterclaim to any proceeding or appeal; or
(iv) the protection, preservation or enforcement of any rights or remedies of
theHolder.
(12)
Anywaiver by the Holder of a breach of any provision of this Note shall not
operate as or be construed to be a waiver of any otherbreach of such provision
or of any breach of any other provision of this Note. The failure of the
Holder to insist upon strictadherence to any term of this Note on one or more
occasions shall not be considered a waiver or deprive that party of the
rightthereafter to insist upon strict adherence to that term or any other term
of this Note. Any waiver must be in writing.
(13)
Ifany provision of this Note is invalid, illegal or unenforceable, the balance
of this Note shall remain in effect, and if anyprovision is inapplicable to
any person or circumstance, it shall nevertheless remain applicable to all
other persons andcircumstances. If it shall be found that any interest or
other amount deemed interest due hereunder shall violate applicable
lawsgoverning usury, the applicable rate of interest due hereunder shall
automatically be lowered to equal the maximum permitted rate ofinterest. The
Company covenants (to the extent that it may lawfully do so) that it shall not
at any time insist upon, plead, or inany manner whatsoever claim or take the
benefit or advantage of, any stay, extension or usury law or other law which
would prohibitor forgive the Company from paying all or any portion of the
Principal of or interest on this Note as contemplated herein, whereverenacted,
now or at any time hereafter in force, or which may affect the covenants or
the performance of this indenture, and theCompany (to the extent it may
lawfully do so) hereby expressly waives all benefits or advantage of any such
law, and covenants thatit will not, by resort to any such law, hinder, delay
or impeded the execution of any power herein granted to the Holder, but
willsuffer and permit the execution of every such as though no such law has
been enacted.
(14)
CERTAINDEFINITIONS.
For purposes of this Note, the following terms shall have the following
meanings:
(a)
"
Amortization Principal Amount
" shall have the meaning set forth in Section (1)(c).
(b)
"
Applicable Price
" shall have the meaning set forth in Section (3)(f).
(c)
"
Bloomberg
" means Bloomberg Financial Markets.
18
(d)
"
Business Day
" means any day except Saturday, Sunday and any day which shall be a federal
legal holiday in theUnited States or a day on which banking institutions are
authorized or required by law or other government action to close.
(e)
"
Buy-In
" shall have the meaning set forth in Section (3)(b)(ii).
(f)
"
Buy-In Price
" shall have the meaning set forth in Section (3)(b)(ii).
(g)
"
Calendar Month
" means one of the months as named in the calendar.
(h)
"
Change of Control Transaction
" means the occurrence of (a) an acquisition after the date hereof by an
individualor legal entity or "group" (as described in Rule 13d-5(b)(1)
promulgated under the Exchange Act) of effective control (whetherthrough legal
or beneficial ownership of capital stock of the Company, by contract or
otherwise) of in excess of fifty percent (50%) ofthe voting power of the
Company (except that the acquisition of voting securities by the Holder or any
other current holder of convertiblesecurities of the Company shall not
constitute a Change of Control Transaction for purposes hereof), (b) a
replacement at one time orover time of more than one-half of the members of
the board of directors of the Company (other than as due to the death or
disabilityof a member of the board of directors) which is not approved by a
majority of those individuals who are members of the board of directorson the
date hereof (or by those individuals who are serving as members of the board
of directors on any date whose nomination to the boardof directors was
approved by a majority of the members of the board of directors who are
members on the date hereof), (c) the merger,consolidation or sale of fifty
percent (50%) or more of the assets of the Company or any Subsidiary of the
Company in one or a seriesof related transactions with or into another entity,
or (d) the execution by the Company of an agreement to which the Company is a
partyor by which it is bound, providing for any of the events set forth above
in (a), (b) or (c). No transfer to a wholly-owned Subsidiaryshall be deemed a
Change of Control Transaction under this provision.
(i) "
ClosingPrice
" means the price per share in the last reported trade of the Common Shares on
a Primary Market or on the exchangewhich the Common Shares are then listed as
quoted by Bloomberg.
(j)"
Collateral
" has the meaning given to such term in the Security Agreement and the Pledge
Agreement.
(k)
"
Commission
" means the Securities and Exchange Commission.
(l) "
CommonShares
" means, prior to the consummation of the Merger, the shares of Series A
common stock, par value $0.0001, of TrillerCorp., and after the consummation
of the Merger, the AGBA Common Shares, and in each case stock of any other
class into which suchshares may hereafter be changed or reclassified.
(m)
"
ConversionAmount
" means the portion of the Principal, Interest, or other amounts outstanding
under this Note to be converted,redeemed or otherwise with respect to which
this determination is being made.
19
(n)
"
Conversion Date
" shall have the meaning set forth in Section (3)(b)(i).
(o)
"
Conversion Failure
" shall have the meaning set forth in Section (3)(b)(ii).
(p)
"
Conversion Notice
" shall have the meaning set forth in Section (3)(b)(i).
(q)
"
Conversion Price
" means, as of any Conversion Date or other date of determination the lower of
(i) a priceper Common Share equal to 100% of the average of the daily VWAPs
during the ten (10) Trading Days immediately preceding the closing dateof the
Merger (the "
Fixed Price
"), or (ii) 92.5% of the lowest daily VWAP during the ten (10) consecutive
Trading Daysimmediately preceding the Conversion Date or other date of
determination (the "
Variable Price
"), but which VariablePrice shall not be lower than the Floor Price then in
effect. The Conversion Price shall be adjusted from time to time pursuant to
theother terms and conditions of this Note.
(r) "
ConvertibleSecurities
" means any stock or securities directly or indirectly convertible into or
exercisable or exchangeable forCommon Shares.
(s)
"
Dilutive Issuance
" shall have the meaning set forth in Section (3)(f).
(t) "
ExchangeAct
" means the Securities Exchange Act of 1934, as amended.
(u)
"
ExemptIssuance
" means the issuance of (a) shares of Common Stock or options to employees,
officers or directors of the Companypursuant to any stock or option plan duly
adopted for such purpose, by a majority of the non-employee members of the
Board ofDirectors or a majority of the members of a committee of non-employee
directors established for such purpose for services renderedto the Company,
(b) securities upon the exercise or exchange of or conversion of securities
exercisable or exchangeable for orconvertible into shares of Common Stock
issued and outstanding on the date of this Agreement, provided that such
securities have notbeen amended since the date of this Agreement to increase
the number of such securities or to decrease the exercise price, exchangeprice
or conversion price of such securities (other than in connection with stock
splits or combinations) or to extend the term ofsuch securities, (c)
securities issued pursuant to acquisitions or strategic transactions approved
by a majority of thedisinterested directors of the Company, provided that such
securities (i) are issued as "restricted securities" (asdefined in Rule 144)
and carry no registration rights that require or permit the filing of any
registration statement in connectiontherewith or (ii) are subject to a written
lock-up agreement satisfactory to the Purchasers, and provided that any such
issuanceshall only be to a Person (or to the equity holders of a Person) which
is, itself or through its subsidiaries, an operating companyor an owner of an
asset in a business synergistic with the business of the Company, but shall
not include a transaction in which theCompany is issuing securities primarily
for the purpose of raising capital or to an entity whose primary business is
investing insecurities, and (d) shares of Common Stock pursuant to the SEPA.
20
(v)
"
Floor Price
" solely with respect to the Variable Price, shall be equal to (i) a price
equal to 20% of the averageof the daily VWAPs during the ten (10) Trading Days
immediately preceding the closing date of the Merger, and (ii) from and after
thedate of effectiveness of the initial Registration Statement, 20% of the
VWAP of the Trading Day immediately prior to the date of effectivenessof the
initial Registration Statement, if such price is lower than the price in part
(i) of this section. Notwithstanding the foregoing,the Company may reduce the
Floor Price to any amounts set forth in a written notice to the Holder;
provided that such reduction shallbe irrevocable and shall not be subject to
increase thereafter.
(w)
"
FundamentalTransaction
"
means any of the following: (1) the Company effects any merger or
consolidation of the Company with orinto another Person and the Company is the
non-surviving company (other than a merger or consolidation with a wholly
ownedSubsidiary of the Company for the purpose of redomiciling the Company),
(2) the Company effects any sale of all or substantially allof its assets in
one or a series of related transactions, (3) any tender offer or exchange
offer (whether by the Company or anotherPerson) is completed pursuant to which
holders of Common Shares are permitted to tender or exchange their shares for
othersecurities, cash or property, or (4) the Company effects any
reclassification of the Common Shares or any compulsory share exchangepursuant
to which the Common Shares is effectively converted into or exchanged for
other securities, cash or property.
(x)
"
Governmental Authority
" means the government of the United States of America or any other nation, or
of anypolitical subdivision thereof, whether state, district, territory,
county, municipal, local or otherwise, and any agency, authority,
instrumentality,regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrativepowers or functions of or pertaining to government (including
any supra-national bodies), and including the Persons holding or exercisingthe
powers, privileges, discretions, titles, offices or authorities of any of the
foregoing.
(y)
"
Guarantor(s)
" means each of the guarantors from time to time party to the Guaranty.
(z)
"
Guaranty
" means that certain Guaranty Agreement, dated on or about the Issuance Date,
made by each of the Guarantorsparty thereto from time to time in favor of the
Holder, as may be amended, restated, supplemented or otherwise modified from
time to time.
(aa)
"
NewIssuance Price
" shall have the meaning set forth in Section (3)(f).
(bb)
"
Obligations
"means all of the Company's and each Guarantor's now existing and hereafter
created or arising obligations, indebtednessand liabilities of any kind
(whether primary or secondary, conditional or unconditional, contingent or
noncontingent, joint orseveral) owed to the Holder, whether existing, created,
incurred or arising in the Company's or such Guarantor'scapacity as a
borrower, guarantor, indemnitor, customer, purchaser, lessee, licensee,
applicant, counterparty, debtor or otherobligor, including (a) any loan
amount, principal, interest (including interest accruing during the pendency
of any bankruptcy,insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding), fee,
charge,indemnification obligation, reimbursement obligation, royalty, premium,
cost, expense, price, rent or other amount owed by theCompany or such
Guarantor to the Holder at any time, including future advances, protective
advances and other financialaccommodations, (b) any obligations, indebtedness
or liabilities of the Company and the Guarantors to the Holder under
anyTransaction Document at any time, and (c) any of the foregoing that may
have been, or that may be, acquired by the Holder from anythird party, the
Company or any Guarantor at any time.
21
(cc)
"
PaymentPremium
" means 7.5% of the Principal amount being paid.
(dd)
"
PeriodicReports
" shall mean all of the Company's reports required to be filed by the Company
with the Commission underapplicable laws and regulations (including, without
limitation, Regulation S-K), including annual reports (on Form 10-K),
quarterlyreports (on Form 10-Q) and current reports (on Form 8-K), for so long
as any amounts are outstanding under this Note or any OtherNote;
provided
that all such Periodic Reports shall include, when filed, all information,
financial statements, audit reports(when applicable) and other information
required to be included in such Periodic Reports in compliance with all
applicable laws andregulations.
(ee)
"
Person
"means a corporation, an association, a partnership, organization, a business,
an individual, a government or political subdivisionthereof or a governmental
agency.
(ff)
"
Pledge Agreement
" means that certain Pledge Agreement, dated as of the Issuance Date, by the
Company and theGuarantors from time to time party thereto in favor of the
Holder, as may be amended, restated, supplemented or otherwise modified
fromtime to time.
(gg)
"
PrimaryMarket
" means any of The New York Stock Exchange, the NYSE American, the Nasdaq
Capital Market, the Nasdaq Global Marketor the Nasdaq Global Select Market,
and any successor to any of the foregoing markets or exchanges.
(hh)
"
RedemptionPremium
" means ten percent (10%) of the Principal amount being redeemed or paid.
(ii)
"
Registration Rights Agreement
" means the registration rights agreement entered into between the Company
andthe Holder on the date hereof.
(jj)
"
Registration Statement
" means a registration statement meeting the requirements set forth in the
RegistrationRights Agreement, covering among other things the resale of the
Underlying Shares and naming the Holder as a "selling stockholder"thereunder.
(kk)
"
SecuritiesAct
" means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
(ll)
"Security Agreement
" means collectively that certain Security Agreement and the Patent Security
Agreement, eachdated as of the Issuance Date, by the Company and the
Guarantors from time to time party thereto in favor of the Holder, as may be
amended,restated, supplemented or otherwise modified from time to time.
22
(mm)
"Security Documents
"means, collectively, the Security Agreement, the Pledge Agreement, and any
other security agreements, pledge agreements or other similaragreements
delivered to the Holder, the Guaranty and each of the other agreements,
instruments or documents that creates a lien or guarantyin favor of the Holder.
(nn)
"
ShareDelivery" Date
" shall have the meaning set forth in Section (3)(b)(i).
(oo)
"
Subsidiary
"means, with respect to any Person, any corporation, association, partnership
or other business entity of which more than 50% of thetotal voting power of
shares of capital stock or other interests (including partnership interests)
entitled (without regard to theoccurrence of any contingency) to vote in the
election of directors, managers, general partners or trustees thereof is at
the timeowned or controlled, directly or indirectly, by (i) such Person; (ii)
such Person and one or more Subsidiaries of such Person; or(iii) one or more
Subsidiaries of such Person.
(pp)
"
TradingDay
" means a day on which the Common Shares are quoted or traded on a Primary
Market on which the Common Shares are thenquoted or listed; provided, that in
the event that the Common Shares are not listed or quoted, then Trading Day
shall mean aBusiness Day.
(qq)
"
TransactionDocument
" means, each of the SEPA, the Registration Rights Agreement, the Security
Documents and any and all documents,agreements, instruments or other items
executed or delivered in connection with any of the foregoing.
(rr)
"
Trigger Event
" shall mean (i) from and after the consummation of the Merger, the daily VWAP
is less than theFloor Price for any five (5) of seven (7) consecutive Trading
Days (a "
Floor Price Event
"), (ii) unless the Companyhas obtained the approval from its stockholders in
accordance with the rules of the Principal Market for the issuance of Shares
pursuantto the transactions contemplated in this Note and the SEPA in excess
of the Exchange Cap, the Company has issued in excess of 99% of theCommon
Shares available under the Exchange Cap (an "
Exchange Cap Trigger
"), or (iii) the Company is in material breachof the Registration Rights
Agreement, and such breach remains uncured for a period of 20 Trading Days, or
the occurrence of an Event (asdefined in the Registration Rights Agreement) (a
"
Registration Event
") (the last such day of each such occurrence,a "
Trigger Date
").
(ss)
"
UnderlyingShares
" means the Common Shares issuable upon conversion of this Note or as payment
of interest in accordance with theterms hereof.
(tt)
"
VWAP
" means, for any security as of any date, the daily dollar volume-weighted
average price for such securityon the Primary Market during regular trading
hours as reported by Bloomberg through its "Historical Prices - Px Table
withAverage Daily Volume" functions.
[Signature Page Follows]
23
IN WITNESS WHEREOF
,the Company has caused this Secured Convertible Promissory Note to be duly
executed by a duly authorized officer as of the date set forthabove.
TRILLER CORP.
By:
Name:/
Title:
AGBA GROUP HOLDING LIMITED.
By:
Name:/
Title:
EXHIBIT I
CONVERSION NOTICE
(To be executed by the Holder in order toConvert the Note)
TO: [TRILLER CORP.][AGBA GROUP HOLDING LIMITED]
Via Email:
The undersigned hereby irrevocablyelects to convert a portion of the
outstanding and unpaid Conversion Amount of Note No.
ILLR-1
into Common Shares of [
TRILLERCORP.] [
AGBA GROUP HOLDING LIMITED]
, according to the conditions stated therein, as of the ConversionDate written
below.
Conversion Date:
Principal Amount to be Converted:
Accrued Interest to be Converted:
Total Conversion Amount to be converted:
Fixed Price:
Variable Price:
Applicable Conversion Price:
Number of Common Shares to be issued:
Please issue the Common Shares in the following name and deliver them to the following account:
Issue to:
Broker DTC Participant Code:
Account Number:
Authorized Signature:
Name:
Title:
Exhibit 10.3
WARRANT
THE SECURITIES REPRESENTED BY THIS WARRANT HAVENOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE
SECURITIES HAVE BEEN ACQUIREDFOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE,
SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FORTHE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL IN A FORM
REASONABLYSATISFACTORY TO THE ISSUER THAT REGISTRATION IS NOT REQUIRED UNDER
SAID ACT OR APPLICABLE STATE SECURITIES LAWS OR UNLESS SOLD PURSUANTTO RULE
144 UNDER SAID ACT.
AGBA GROUP HOLDING
Warrant To Purchase Common Stock
Warrant No.: AGBA/YAII-1 Number of Shares: [________]
Warrant Exercise Price: $[__]
Expiration Date: [__________] 1
Date of Issuance: [__________], 202_
AGBA GROUP HOLDING
, a Delaware corporation(the "
Company
"), hereby certifies that, for good and valuable consideration, the receipt
and sufficiency of which arehereby acknowledged,
YA II PN, LTD.
(the "
Holder
"), the registered holder hereof or its permitted assigns, isentitled, subject
to the terms set forth below, to purchase from the Company upon surrender of
this Warrant, at any time or times on orafter the date hereof, but not after
11:59 P.M. Eastern Time on the Expiration Date (as defined herein) up to
[_____] fully paidand nonassessable shares of Common Stock (as defined herein)
of the Company (the "
Warrant Shares
") at the exerciseprice per share provided in Section 1(b) below or as
subsequently adjusted; provided, however, that in no event shall the holderbe
entitled to exercise this Warrant for a number of Warrant Shares in excess of
that number of Warrant Shares which, upon giving effectto such exercise, would
cause the aggregate number of shares of Common Stock beneficially owned by the
holder and its affiliates to exceed4.99% of the outstanding shares of the
Common Stock following such exercise, (however, such restriction may be waived
by Holder (but onlyas to itself and not to any other holder) upon not less
than 65 days prior notice to the Company). For purposes of the foregoing
proviso,the aggregate number of shares of Common Stock beneficially owned by
the holder and its affiliates shall include the number of sharesof Common
Stock issuable upon exercise of this Warrant with respect to which the
determination of such proviso is being made, but shallexclude shares of Common
Stock which would be issuable upon (i) exercise of the remaining, unexercised
Warrants beneficially ownedby the holder and its affiliates and (ii) exercise
or conversion of the unexercised or unconverted portion of any other
securitiesof the Company beneficially owned by the holder and its affiliates
(including, without limitation, pursuant to the Purchase Agreement)subject to
a limitation on conversion or exercise analogous to the limitation contained
herein. Except as set forth in the preceding sentence,for purposes of this
paragraph, beneficial ownership shall be calculated in accordance with Section
13(d) of the Securities Exchange Actof 1934, as amended. For purposes of this
Warrant, in determining the number of outstanding shares of Common Stock a
holder may rely onthe number of outstanding shares of Common Stock as
reflected in (1) the Company's most recent Form 10-Q or Form 10-K, as the
casemay be, (2) a more recent public announcement by the Company or (3) any
other notice by the Company or its transfer agent setting forththe number of
shares of Common Stock outstanding. Upon the written request of any holder,
the Company shall promptly, but in no eventlater than 1 Business Day following
the receipt of such notice, confirm in writing to any such holder the number
of shares of Common Stockthen outstanding. In any case, the number of
outstanding shares of Common Stock shall be determined after giving effect to
the exerciseof Warrants (as defined below) by such holder and its affiliates
since the date as of which such number of outstanding shares of CommonStock
was reported.
1 Five years from Date of Issuance.
.
Section 1.
(a) ThisWarrant is issued pursuant to the Amended and Restated Standby Equity
Purchase Agreement ("
Purchase Agreement
") ofdated April __, 2024 by and between Triller Corp., the Company and the
Holder or issued in exchange or substitution thereafter or replacementthereof.
Each Capitalized term used, and not otherwise defined herein, shall have the
meaning ascribed thereto in the Purchase Agreement.
(b)
Definitions
.The following words and terms as used in this Warrant shall have the
following meanings:
(i) "
ApprovedStock Plan
" means a stock option plan that has been approved by the Board of Directors
of the Company, pursuant to which theCompany's securities may be issued only
to any employee, officer, director or third-party service providers in the
normal courseof business, for services provided to the Company.
(ii)"
Business Day
" means any day other than Saturday, Sunday or other day on which commercial
banks in the City of NewYork are authorized or required by law to remain
closed.
(iii) "
ClosingBid Price
" means the closing bid price of Common Stock as quoted on the Principal
Market (as reported by Bloomberg, LP ("
Bloomberg
")through its "Volume at Price" function).
(iv) "
CommonStock
" means (i) the Company's common stock, par value $[___] per share, and (ii)
any capital stock into whichsuch Common Stock shall have been changed or any
capital stock resulting from a reclassification of such Common Stock.
(v) "
CommonStock Deemed Outstanding
" means, at any given time, the number of shares of Common Stock actually
outstanding at such time.
(vi) "
Eventof Default
" means an event of default under the promissory note issued pursuant to the
Purchase Agreement.
(vii) "
ExcludedSecurities
" means, (a) shares issued or deemed to have been issued by the Company
pursuant to an Approved Stock Plan, (b) sharesof Common Stock issued or deemed
to be issued by the Company upon the conversion, exchange or exercise of any
right, option, obligationor security outstanding on the date prior to date of
the Purchase Agreement, provided that the terms of such right, option,
obligationor security are not amended or otherwise modified on or after the
date of the Purchase Agreement, and provided that the conversion price,exchange
price, exercise price or other purchase price is not reduced, adjusted or
otherwise modified and the number of shares of CommonStock issued or issuable
is not increased (whether by operation of, or in accordance with, the relevant
governing documents or otherwise)on or after the date of the Purchase
Agreement, and (c) the shares of Common Stock issued by the Company pursuant
to the PurchaseAgreement or any securities issued in connection therewith, and
(d) Shares issued to employees, officers, directors, or service providersconsist
ent with past practices in the normal course of business.
2
(viii) "
ExpirationDate
" means the date set forth on the first page of this Warrant.
(ix) "
IssuanceDate
" means the date hereof.
(x) "
Options
"means any rights, warrants or options to subscribe for or purchase Common
Stock or convertible securities.
(xi)"
Person
" means an individual, a limited liability company, a partnership, a joint
venture, a corporation, a trust,an unincorporated organization and a
government or any department or agency thereof.
(xii) "
PrimaryMarket
" means the Nasdaq Stock Market.
(xiii) "
SecuritiesAct
" means the Securities Act of 1933, as amended.
(xiv) "
Warrant
"means this Warrant and all Warrants issued in exchange, transfer or
replacement thereof.
(xv) "
Warrant ExercisePrice
" shall be $[___]
2
or as subsequently adjusted as provided in Section 8hereof.
(c) OtherDefinitional Provisions.
(i) Exceptas otherwise specified herein, all references herein (A) to the
Company shall be deemed to include the Company's successorsand (B) to any
applicable law defined or referred to herein shall be deemed references to
such applicable law as the same may havebeen or may be amended or supplemented
from time to time.
2 Warrant Exercise Price shall be set equal to the Fixed Priceof the promissory note.
.
3
(ii) Whenused in this Warrant, the words "
herein
", "
hereof
", and "
hereunder
"
andwords of similar import, shall refer to this Warrant as a whole and not to
any provision of this Warrant, and the words "
Section
","
Schedule
", and "
Exhibit
" shall refer to Sections of, and Schedules and Exhibits to, this
Warrantunless otherwise specified.
(iii) Wheneverthe context so requires, the neuter gender includes the
masculine or feminine, and the singular number includes the plural, and vice
versa.
Section 2.
Exerciseof Warrant
.
(a) Subjectto the terms and conditions hereof, this Warrant may be exercised
by the holder hereof then registered on the books of the Company, prorata as
hereinafter provided, at any time on any Business Day on or after the opening
of business on such Business Day, (i) commencingwith the first day after the
date hereof, and prior to 11:59 P.M. Eastern Time on the Expiration Date, by
delivery of a written notice,in the form of the subscription notice attached as
Exhibit A
hereto (the "
Exercise Notice
"), of such holder'selection to exercise this Warrant, which notice shall
specify the number of Warrant Shares to be purchased, payment to the Companyof
an amount equal to the Warrant Exercise Price(s) applicable to the Warrant
Shares being purchased, multiplied by the number of WarrantShares (at the
applicable Warrant Exercise Price) as to which this Warrant is being exercised
(plus any applicable issue ortransfer taxes) (the "
Aggregate Exercise Price
") in cash or wire transfer of immediately available funds and the surrenderof
this Warrant (or an indemnification undertaking with respect to this Warrant
in the case of its loss, theft or destruction) to a commoncarrier for
overnight delivery to the Company as soon as practicable following such date ("
Cash Basis
") or (ii) commencingwith the 6-month anniversary of the issuance of this
Warrant, and prior to 11:59 P.M. Eastern Time on the Expiration Date, if atthe
time of exercise, the Warrant Shares are not subject to an effective
registration statement or if an Event of Default has occurred,by delivering an
Exercise Notice and in lieu of making payment of the Aggregate Exercise Price
in cash or wire transfer, elect insteadto receive upon such exercise the "Net
Number" of shares of Common Stock determined according to the following
formula (the"
Cashless Exercise
"):
Net Number =
(A x B) - (A xC)
B
For purposes ofthe foregoing formula:
A = the total number of Warrant Shareswith respect to which this Warrant is
then being exercised.
B = the Closing Bid Price of the CommonStock on the date of exercise of the
Warrant.
C = the Warrant Exercise Price then ineffect for the applicable Warrant Shares
at the time of such exercise.
4
In the event of any exerciseof the rights represented by this Warrant in
compliance with this Section 2, the Company shall on or before the 3
rd
BusinessDay following the date of receipt of the Exercise Notice, the
Aggregate Exercise Price and this Warrant (or an indemnification undertakingwith
respect to this Warrant in the case of its loss, theft or destruction) and
the receipt of the representations of the holder specifiedin Section 6 hereof,
if requested by the Company (the "
Exercise Delivery Documents
"), and if the Common Stock is DTCeligible, credit such aggregate number of
shares of Common Stock to which the holder shall be entitled to the holder's
or its designee'sbalance account with The Depository Trust Company; provided,
however, if the holder who submitted the Exercise Notice requested
physicaldelivery of any or all of the Warrant Shares, or, if the Common Stock
is not DTC eligible then the Company shall, on or before the 3
rd
Business Day following receipt of the Exercise Delivery Documents, issue and
surrender to a common carrier for overnight delivery to theaddress specified
in the Exercise Notice, a certificate, registered in the name of the holder,
for the number of shares of Common Stockto which the holder shall be entitled
pursuant to such request. Upon delivery of the Exercise Notice and Aggregate
Exercise Price referredto in clause (i) or (ii) above the holder of this
Warrant shall be deemed for all corporate purposes to have become the holder
ofrecord of the Warrant Shares with respect to which this Warrant has been
exercised. In the case of a dispute as to the determination ofthe Warrant
Exercise Price, the Closing Bid Price or the arithmetic calculation of the
Warrant Shares, the Company shall promptly issueto the holder the number of
Warrant Shares that is not disputed and shall submit the disputed
determinations or arithmetic calculationsto the holder via facsimile within 1
Business Day of receipt of the holder's Exercise Notice.
(b) Ifthe holder and the Company are unable to agree upon the determination of
the Warrant Exercise Price or arithmetic calculation of the WarrantShares
within 1 day of such disputed determination or arithmetic calculation being
submitted to the holder, then the Company shall immediatelysubmit via
electronic mail (i) the disputed determination of the Warrant Exercise Price
or the Closing Bid Price to an independent, reputableinvestment banking firm
or (ii) the disputed arithmetic calculation of the Warrant Shares to its
independent, outside accountant. TheCompany shall cause the investment banking
firm or the accountant, as the case may be, to perform the determinations or
calculations andnotify the Company and the holder of the results no later than
48 hours from the time it receives the disputed determinations or
calculations.Such investment banking firm's or accountant's determination or
calculation, as the case may be, shall be deemed conclusiveabsent manifest
error.
(c) Unlessthe rights represented by this Warrant shall have expired or shall
have been fully exercised, the Company shall, as soon as practicableand in no
event later than 5 Business Days after any exercise and at its own expense,
issue a new Warrant identical in all respects tothis Warrant exercised except
it shall represent rights to purchase the number of Warrant Shares purchasable
immediately prior to suchexercise under this Warrant exercised, less the
number of Warrant Shares with respect to which such Warrant is exercised.
(d) Nofractional Warrant Shares are to be issued upon any pro rata exercise of
this Warrant, but rather the number of Warrant Shares issuedupon such exercise
of this Warrant shall be rounded up or down to the nearest whole number.
(e) Ifthe Company or its Transfer Agent shall fail for any reason or for no
reason to issue to the holder within 5 days of receipt of the ExerciseDelivery
Documents, a certificate for the number of Warrant Shares to which the holder
is entitled or to credit the holder's balanceaccount with The Depository Trust
Company for such number of Warrant Shares to which the holder is entitled upon
the holder's exerciseof this Warrant, the Company shall, in addition to any
other remedies under this Warrant or otherwise available to such holder, pay
asadditional damages in cash to such holder on each day the issuance of such
certificate for Warrant Shares is not timely effected an amountequal to 0.025%
of the product of (A) the sum of the number of Warrant Shares not issued to
the holder on a timely basis and to whichthe holder is entitled, and (B) the
Closing Bid Price of the Common Stock for the trading day immediately
preceding the last possibledate which the Company could have issued such
Common Stock to the holder without violating this Section 2.
5
(f) Ifwithin 5 days after the Company's receipt of the Exercise Delivery
Documents, the Company fails to deliver a new Warrant to theholder for the
number of Warrant Shares to which such holder is entitled pursuant to Section
2 hereof, then, in addition to any otheravailable remedies under this Warrant,
or otherwise available to such holder, the Company shall pay as additional
damages in cash to suchholder on each day after such 5
th
day that such delivery of such new Warrant is not timely effected in an amount
equal to 0.25%of the product of (A) the number of Warrant Shares represented
by the portion of this Warrant which is not being exercised and (B) theClosing
Bid Price of the Common Stock for the trading day immediately preceding the
last possible date which the Company could have issuedsuch Warrant to the
holder without violating this Section 2.
Section 3.
Covenantsas to Common Stock
. The Company hereby covenants and agrees as follows:
(a) ThisWarrant is, and any Warrants issued in substitution for or replacement
of this Warrant will upon issuance be, duly authorized and validlyissued.
(b) AllWarrant Shares which may be issued upon the exercise of the rights
represented by this Warrant will, upon issuance, be validly issued,fully paid
and nonassessable and free from all taxes, liens and charges with respect to
the issue thereof.
(c) Duringthe period within which the rights represented by this Warrant may
be exercised, the Company will at all times have authorized and reservedat
least 100% of the number of shares of Common Stock needed to provide for the
exercise of the rights then represented by this Warrantand the par value of
said shares will at all times be less than or equal to the applicable Warrant
Exercise Price. If at any time theCompany does not have a sufficient number of
shares of Common Stock authorized and available, then the Company shall call
and hold a specialmeeting of its stockholders within 60 days of that time for
the sole purpose of increasing the number of authorized shares of Common Stock.
(d) Ifat any time after the date hereof the Company shall file a registration
statement, the Company shall include the Warrant Shares issuableto the holder,
pursuant to the terms of this Warrant and shall maintain, so long as any other
shares of Common Stock shall be so listed,such listing of all Warrant Shares
from time to time issuable upon the exercise of this Warrant; and the Company
shall so list on eachnational securities exchange or automated quotation
system, as the case may be, and shall maintain such listing of, any other
shares ofcapital stock of the Company issuable upon the exercise of this
Warrant if and so long as any shares of the same class shall be listedon such
national securities exchange or automated quotation system.
6
(e) TheCompany will not, by amendment of its Articles of Incorporation or
through any reorganization, transfer of assets, consolidation, merger,dissolutio
n, issue or sale of securities, or any other voluntary action, avoid or seek
to avoid the observance or performance of any ofthe terms to be observed or
performed by it hereunder, but will at all times in good faith assist in the
carrying out of all the provisionsof this Warrant and in the taking of all
such action as may reasonably be requested by the holder of this Warrant in
order to protectthe exercise privilege of the holder of this Warrant against
dilution or other impairment, consistent with the tenor and purpose of
thisWarrant. The Company will not increase the par value of any shares of
Common Stock receivable upon the exercise of this Warrant abovethe Warrant
Exercise Price then in effect, and (ii) will take all such actions as may be
necessary or appropriate in order that theCompany may validly and legally
issue fully paid and nonassessable shares of Common Stock upon the exercise of
this Warrant.
(f) ThisWarrant will be binding upon any entity succeeding to the Company by
merger, consolidation or acquisition of all or substantially allof the
Company's assets.
Section 4.
Taxes
.The Company shall pay any and all taxes, except any applicable withholding,
which may be payable with respect to the issuance and deliveryof Warrant
Shares upon exercise of this Warrant.
Section 5.
Warrant HolderNot Deemed a Stockholder
. Except as otherwise specifically provided herein, no holder, as such, of
this Warrant shall be entitledto vote or receive dividends or be deemed the
holder of shares of capital stock of the Company for any purpose, nor shall
anything containedin this Warrant be construed to confer upon the holder
hereof, as such, any of the rights of a stockholder of the Company or any
rightto vote, give or withhold consent to any corporate action (whether any
reorganization, issue of stock, reclassification of stock, consolidation,merger,
conveyance or otherwise), receive notice of meetings, receive dividends or
subscription rights, or otherwise, prior to the issuanceto the holder of this
Warrant of the Warrant Shares which he or she is then entitled to receive upon
the due exercise of this Warrant.In addition, nothing contained in this
Warrant shall be construed as imposing any liabilities on such holder to
purchase any securities(upon exercise of this Warrant or otherwise) or as a
stockholder of the Company, whether such liabilities are asserted by the
Companyor by creditors of the Company. Notwithstanding this Section 5, the
Company will provide the holder of this Warrant with copies of thesame notices
and other information given to the stockholders of the Company generally,
contemporaneously with the giving thereof to thestockholders.
Section 6.
Representationsof Holder
. The holder of this Warrant, by the acceptance hereof, represents that it is
acquiring this Warrant and the Warrant Sharesfor its own account for
investment only and not with a view towards, or for resale in connection with,
the public sale or distributionof this Warrant or the Warrant Shares, except
pursuant to sales registered or exempted under the Securities Act; provided,
however, thatby making the representations herein, the holder does not agree
to hold this Warrant or any of the Warrant Shares for any minimum or
otherspecific term and reserves the right to dispose of this Warrant and the
Warrant Shares at any time in accordance with or pursuant to aregistration
statement or an exemption under the Securities Act. The holder of this Warrant
further represents, by acceptance hereof,that, as of this date, such holder is
an "accredited investor" as such term is defined in Rule 501(a)(1) of
RegulationD promulgated by the Securities and Exchange Commission under the
Securities Act (an "
Accredited Investor
"). Upon exerciseof this Warrant the holder shall, if requested by the
Company, confirm in writing, in a form satisfactory to the Company, that the
WarrantShares so purchased are being acquired solely for the holder's own
account and not as a nominee for any other party, for investment,and not with
a view toward distribution or resale and that such holder is an Accredited
Investor. If such holder cannot make such representationsbecause they would be
factually incorrect, it shall be a condition to such holder's exercise of this
Warrant that the Company receivesuch other representations as the Company
considers reasonably necessary to assure the Company that the issuance of its
securities uponexercise of this Warrant shall not violate any United States or
state securities laws.
7
Section 7.
Ownershipand Transfer
.
(a) TheCompany shall maintain at its principal executive offices (or such
other office or agency of the Company as it may designate by noticeto the
holder hereof), a register for this Warrant, in which the Company shall record
the name and address of the person in whose namethis Warrant has been issued,
as well as the name and address of each transferee. The Company may treat the
person in whose name any Warrantis registered on the register as the owner and
holder thereof for all purposes, notwithstanding any notice to the contrary,
but in allevents recognizing any transfers made in accordance with the terms
of this Warrant.
Section 8.
Adjustmentof Warrant Exercise Price
. The Warrant Exercise Price of this Warrant shall be adjusted from time to
time as follows:
(a)
Adjustmentof Warrant Exercise Price and Number of Shares upon Issuance of
Common Stock
. If and whenever on or after the Issuance Date of thisWarrant, the Company
issues or sells, or is deemed to have issued or sold, any shares of Common
Stock (other than Excluded Securities)for a consideration per share less than
a price (the "
Applicable Price
") equal to the Warrant Exercise Price in effectimmediately prior to such
issuance or sale, then immediately after such issue or sale the Warrant
Exercise Price then in effect shallbe reduced to an amount equal to such
consideration per share.
(b)
Effecton Warrant Exercise Price of Certain Events
. For purposes of determining the adjusted Warrant Exercise Price under
Section 8(a) above,the following shall be applicable:
(i)
Issuanceof Options
. If after the date hereof, the Company in any manner grants any Options and
the lowest price per share for which one shareof Common Stock is issuable upon
the exercise of any such Option or upon conversion or exchange of any
convertible securities issuableupon exercise of any such Option is less than
the Applicable Price, then such share of Common Stock shall be deemed to be
outstandingand to have been issued and sold by the Company at the time of the
granting or sale of such Option for such price per share. For purposesof this
Section 8(b)(i), the lowest price per share for which one share of Common
Stock is issuable upon exercise of such Options or uponconversion or exchange
of such convertible securities shall be equal to the sum of the lowest amounts
of consideration (if any) receivedor receivable by the Company with respect to
any one share of Common Stock upon the granting or sale of the Option, upon
exercise of theOption or upon conversion or exchange of any convertible
security issuable upon exercise of such Option. No further adjustment of
theWarrant Exercise Price shall be made upon the actual issuance of such
Common Stock or of such convertible securities upon the exerciseof such
Options or upon the actual issuance of such Common Stock upon conversion or
exchange of such convertible securities.
8
(ii)
Issuanceof Convertible Securities
. If the Company in any manner issues or sells any convertible securities and
the lowest price per sharefor which one share of Common Stock is issuable upon
the conversion or exchange thereof is less than the Applicable Price, then
such shareof Common Stock shall be deemed to be outstanding and to have been
issued and sold by the Company at the time of the issuance or saleof such
convertible securities for such price per share. For the purposes of this
Section 8(b)(ii), the lowest price per share forwhich one share of Common
Stock is issuable upon such conversion or exchange shall be equal to the sum
of the lowest amounts of consideration(if any) received or receivable by the
Company with respect to one share of Common Stock upon the issuance or sale of
the convertiblesecurity and upon conversion or exchange of such convertible
security. No further adjustment of the Warrant Exercise Price shall be
madeupon the actual issuance of such Common Stock upon conversion or exchange
of such convertible securities, and if any such issue or saleof such
convertible securities is made upon exercise of any Options for which
adjustment of the Warrant Exercise Price had been or areto be made pursuant to
other provisions of this Section 8(b), no further adjustment of the Warrant
Exercise Price shall be made by reasonof such issue or sale.
(iii)
Changein Option Price or Rate of Conversion.
If the purchase price provided for in any Options, the additional
consideration, if any, payableupon the issue, conversion or exchange of any
convertible securities, or the rate at which any convertible securities are
convertibleinto or exchangeable for Common Stock changes at any time, the
Warrant Exercise Price in effect at the time of such change shall be
adjustedto the Warrant Exercise Price which would have been in effect at such
time had such Options or convertible securities provided for suchchanged
purchase price, additional consideration or changed conversion rate, as the
case may be, at the time initially granted, issuedor sold and the number of
Warrant Shares issuable upon exercise of this Warrant shall be correspondingly
readjusted. For purposes of thisSection 8(b)(iii), if the terms of any Option
or convertible security that was outstanding as of the Issuance Date of this
Warrant arechanged in the manner described in the immediately preceding
sentence, then such Option or convertible security and the Common Stock
deemedissuable upon exercise, conversion or exchange thereof shall be deemed
to have been issued as of the date of such change. No adjustmentpursuant to
this Section 8(b) shall be made if such adjustment would result in an increase
of the Warrant Exercise Price then ineffect.
(iv)
Calculationof Consideration Received
. If any Common Stock, Options or convertible securities are issued or sold or
deemed to have been issuedor sold for cash, the consideration received
therefore will be deemed to be the net amount received by the Company
therefore. If any CommonStock, Options or convertible securities are issued or
sold for a consideration other than cash, the amount of such consideration
receivedby the Company will be the fair value of such consideration, except
where such consideration consists of marketable securities, in whichcase the
amount of consideration received by the Company will be the market price of
such securities on the date of receipt of such securities.If any Common Stock,
Options or convertible securities are issued to the owners of the
non-surviving entity in connection with any mergerin which the Company is the
surviving entity, the amount of consideration therefore will be deemed to be
the fair value of such portionof the net assets and business of the
non-surviving entity as is attributable to such Common Stock, Options or
convertible securities,as the case may be. The fair value of any consideration
other than cash or securities will be determined jointly by the Company and
theholders of Warrants representing at least two-thirds (b) of the Warrant
Shares issuable upon exercise of the Warrants then outstanding.If such parties
are unable to reach agreement within ten (10) days after the occurrence of an
event requiring valuation (the "
ValuationEvent
"), the fair value of such consideration will be determined within five (5)
Business Days after the tenth (10
th
)day following the Valuation Event by an independent, reputable appraiser
jointly selected by the Company and the holders of Warrants representingat
least two-thirds (b) of the Warrant Shares issuable upon exercise of the
Warrants then outstanding. The determination of such appraisershall be final
and binding upon all parties and the fees and expenses of such appraiser shall
be borne jointly by the Company and theholders of Warrants.
9
(v)
IntegratedTransactions
. In case any Option is issued in connection with the issue or sale of other
securities of the Company, together comprisingone integrated transaction in
which no specific consideration is allocated to such Options by the parties
thereto, the Options will bedeemed to have been issued for a consideration of
$.01.
(vi)
TreasuryShares
. The number of shares of Common Stock outstanding at any given time does not
include shares owned or held by or for the accountof the Company, and the
disposition of any shares so owned or held will be considered an issue or sale
of Common Stock.
(vii)
RecordDate
. If the Company takes a record of the holders of Common Stock for the purpose
of entitling them (1) to receive a dividendor other distribution payable in
Common Stock, Options or in convertible securities or (2) to subscribe for or
purchase Common Stock,Options or convertible securities, then such record date
will be deemed to be the date of the issue or sale of the shares of Common
Stockdeemed to have been issued or sold upon the declaration of such dividend
or the making of such other distribution or the date of the grantingof such
right of subscription or purchase, as the case may be.
(c)
Adjustmentof Warrant Exercise Price upon Subdivision or Combination of Common
Stock
. If the Company at any time after the date of issuance ofthis Warrant
subdivides (by any stock split, stock dividend, recapitalization or otherwise)
one or more classes of its outstanding sharesof Common Stock into a greater
number of shares, any Warrant Exercise Price in effect immediately prior to
such subdivision will be proportionatelyreduced and the number of shares of
Common Stock obtainable upon exercise of this Warrant will be proportionately
increased. If the Companyat any time after the date of issuance of this
Warrant combines (by combination, reverse stock split or otherwise) one or
more classesof its outstanding shares of Common Stock into a smaller number of
shares, any Warrant Exercise Price in effect immediately prior to
suchcombination will be proportionately increased and the number of Warrant
Shares issuable upon exercise of this Warrant will be proportionatelydecreased.
Any adjustment under this Section 8(c) shall become effective at the close of
business on the date the subdivision orcombination becomes effective.
10
(d)
Distributionof Assets
. If the Company shall declare or make any dividend or other distribution of
its assets (or rights to acquire its assets)to holders of Common Stock, by way
of return of capital or otherwise (including, without limitation, any
distribution of cash, stock orother securities, property or options by way of
a dividend, spin off, reclassification, corporate rearrangement or other
similar transaction)(a "
Distribution
"), at any time after the issuance of this Warrant, then, in each such case:
(i) anyWarrant Exercise Price in effect immediately prior to the close of
business on the record date fixed for the determination of holdersof Common
Stock entitled to receive the Distribution shall be reduced, effective as of
the close of business on such record date, to aprice determined by multiplying
such Warrant Exercise Price by a fraction of which (A) the numerator shall be
the Closing Sale Price ofthe Common Stock on the trading day immediately
preceding such record date minus the value of the Distribution (as determined
in goodfaith by the Company's Board of Directors) applicable to one share of
Common Stock, and (B) the denominator shall be the ClosingSale Price of the
Common Stock on the trading day immediately preceding such record date; and
(ii) either(A) the number of Warrant Shares obtainable upon exercise of this
Warrant shall be increased to a number of shares equal to the numberof shares
of Common Stock obtainable immediately prior to the close of business on the
record date fixed for the determination of holdersof Common Stock entitled to
receive the Distribution multiplied by the reciprocal of the fraction set
forth in the immediately precedingclause (i), or (B) in the event that the
Distribution is of common stock of a company whose common stock is traded on a
national securitiesexchange or a national automated quotation system, then the
holder of this Warrant shall receive an additional warrant to purchase
CommonStock, the terms of which shall be identical to those of this Warrant,
except that such warrant shall be exercisable into the amount ofthe assets
that would have been payable to the holder of this Warrant pursuant to the
Distribution had the holder exercised this Warrantimmediately prior to such
record date and with an exercise price equal to the amount by which the
exercise price of this Warrant was decreasedwith respect to the Distribution
pursuant to the terms of the immediately preceding clause (i).
(e)
VoluntaryAdjustments By Company
. The Company may at any time during the term of this Warrant reduce the then
current Exercise Price to anyamount and for any period of time deemed
appropriate by the Board of Directors of the Company.
(f)
Notices
.
(i) Immediatelyupon any adjustment of the Warrant Exercise Price, the Company
will give written notice thereof to the holder of this Warrant, settingforth
in reasonable detail, and certifying, the calculation of such adjustment.
11
(ii) TheCompany will give written notice to the holder of this Warrant at
least ten (10) days prior to the date on which the Company closes itsbooks or
takes a record (A) with respect to any dividend or distribution upon the
Common Stock, (B) with respect to any prorata subscription offer to holders of
Common Stock or (C) for determining rights to vote with respect to any Organic
Change (as definedbelow), dissolution or liquidation, provided that such
information shall be made known to the public prior to or in conjunction with
suchnotice being provided to such holder.
(iii) TheCompany will also give written notice to the holder of this Warrant
at least 10 days prior to the date on which any Organic Change, dissolutionor
liquidation will take place, provided that such information shall be made
known to the public prior to or in conjunction with suchnotice being provided
to such holder.
Section 9.
PurchaseRights; Reorganization, Reclassification, Consolidation, Merger or Sale
.
(a) Inaddition to any adjustments pursuant to Section 8 above, if at any time
the Company grants, issues or sells any Options, convertible securitiesor
rights to purchase stock, warrants, securities or other property pro rata to
the record holders of any class of Common Stock (the "
PurchaseRights
"), then the holder of this Warrant will be entitled to acquire, upon the
terms applicable to such Purchase Rights, theaggregate Purchase Rights which
such holder could have acquired if such holder had held the number of shares
of Common Stock acquirableupon complete exercise of this Warrant immediately
before the date on which a record is taken for the grant, issuance or sale of
suchPurchase Rights, or, if no such record is taken, the date as of which the
record holders of Common Stock are to be determined for thegrant, issue or
sale of such Purchase Rights.
(b) Anyrecapitalization, reorganization, reclassification, consolidation,
merger, sale of all or substantially all of the Company's assetsto another
Person or other transaction in each case which is effected in such a way that
holders of Common Stock are entitled to receive(either directly or upon
subsequent liquidation) stock, securities or assets with respect to or in
exchange for Common Stock is referredto herein as an "
Organic Change
." Prior to the consummation of any (i) sale of all or substantially all of
the Company'sassets to an acquiring Person or (ii) other Organic Change
following which the Company is not a surviving entity, the Company will
securefrom the Person purchasing such assets or the successor resulting from
such Organic Change (in each case, the "
Acquiring Entity
")a written agreement (in form and substance satisfactory to the holders of
Warrants representing at least two-thirds (iii) of theWarrant Shares issuable
upon exercise of the Warrants then outstanding) to deliver to each holder of
Warrants in exchange for such Warrants,a security of the Acquiring Entity
evidenced by a written instrument substantially similar in form and substance
to this Warrant and satisfactoryto the holders of the Warrants (including an
adjusted warrant exercise price equal to the value for the Common Stock
reflected by theterms of such consolidation, merger or sale, and exercisable
for a corresponding number of shares of Common Stock acquirable and
receivableupon exercise of the Warrants without regard to any limitations on
exercise, if the value so reflected is less than any Applicable WarrantExercise
Price immediately prior to such consolidation, merger or sale). Prior to the
consummation of any other Organic Change, the Companyshall make appropriate
provision (in form and substance satisfactory to the holders of Warrants
representing a majority of the WarrantShares issuable upon exercise of the
Warrants then outstanding) to insure that each of the holders of the Warrants
will thereafter havethe right to acquire and receive in lieu of or in addition
to (as the case may be) the Warrant Shares immediately theretofore issuableand
receivable upon the exercise of such holder's Warrants (without regard to any
limitations on exercise), such shares ofstock, securities or assets that would
have been issued or payable in such Organic Change with respect to or in
exchange for the numberof Warrant Shares which would have been issuable and
receivable upon the exercise of such holder's Warrant as of the date of
suchOrganic Change (without taking into account any limitations or
restrictions on the exercisability of this Warrant).
12
Section 10.
Lost, Stolen,Mutilated or Destroyed Warrant
. If this Warrant is lost, stolen, mutilated or destroyed, the Company shall
promptly, on receipt ofan indemnification undertaking (or, in the case of a
mutilated Warrant, the Warrant), issue a new Warrant of like denomination and
tenoras this Warrant so lost, stolen, mutilated or destroyed.
Section 11.
Notice
.Any notices, consents, waivers or other communications required or permitted
to be given under the terms of this Agreement must be inwriting and will be
deemed to have been delivered upon: (i) receipt, when delivered personally,
(ii) 1 Business Day after deposit withan overnight courier service with next
day delivery specified, in each case, properly addressed to the party to
receive the same, or (iii)receipt, when sent by electronic mail (provided that
the electronic mail transmission is not returned in error or the sender is not
otherwisenotified of any error in transmission. The addresses and e-mail
addresses for such communications shall be:
If to Holder: YAII PN, Ltd.
c/o Yorkville Advisors Global, LP
1012 Springfield Avenue
Mountainside, NJ 07092
Attention: Mark A. Angelo
Telephone: (201) 536-5114
Email: mangelo@yorkvilleadvisors.com
With Copy to: Troy J. Rillo, Esq.
1012 Springfield Avenue
Mountainside, NJ 07092
Telephone: (201) 536-5109
Email: legal@yorkvilleadvisors.com
13
If to the Company, to: AGBA Group Holding
Telephone:
Attention:
E-Mail:
With a copy to:
Attention:
Telephone:
Email:
or at such other address and/or electronic emailaddress and/or to the
attention of such other person as the recipient party has specified by written
notice given to each other party3 Business Days prior to the effectiveness of
such change. Written confirmation of receipt (i) given by the recipient of
such notice,consent, waiver or other communication, (ii) mechanically or
electronically generated by the sender's computer containing the time,date,
recipient's electronic mail address and the text of such electronic mail or
(iii) provided by a nationally recognized overnightdelivery service, shall be
rebuttable evidence of personal service, receipt by electronic mail or receipt
from a nationally recognizedovernight delivery service in accordance with
clause (i), (ii) or (iii) above, respectively.
Section 12.
Date
.The date of this Warrant is set forth on page 1 hereof. This Warrant, in all
events, shall be wholly void and of no effect afterthe close of business on
the Expiration Date.
Section 13.
Amendmentand Waiver
. Except as otherwise provided herein, the provisions of the Warrant may be
amended and the Company may take any actionherein prohibited, or omit to
perform any act herein required to be performed by it, only if the Company has
obtained the written consentof the holders of Warrants representing at least
2/3rds of the Warrant Shares issuable upon exercise of the Warrants then
outstanding;provided that, except for Section 8(c), no such action may
increase the Warrant Exercise Price or decrease the number of shares or
classof stock obtainable upon exercise of any Warrant without the written
consent of the holder of such Warrant.
Section 14.
Governing Law
.This Warrant and the rights and obligations of the parties hereunder shall,
in all respects, be governed by, and construed in accordancewith, the laws
(excluding the principles of conflict of laws) of the State of New York (the "
Governing Jurisdiction
")(including Section 5-1401 and Section 5-1402 of the General Obligations Law
of the State of New York), including all matters of construction,validity and
performance.
14
Section 15.
Remedies, OtherObligations, Breaches and Injunctive Relief
. The remedies provided in this Warrant shall be cumulative and in addition to
all otherremedies available under this Warrant, in any other agreement between
the Company and the Holder, at law or in equity (including a decreeof specific
performance and/or other injunctive relief), and nothing herein shall limit
the right of the Holder to pursue actual damagesfor any failure by the Company
to comply with the terms of this Warrant. The Company acknowledges that a
breach by it of its obligationshereunder will cause irreparable harm to the
Holder and that the remedy at law for any such breach may be inadequate. The
Company thereforeagrees that, in the event of any such breach or threatened
breach, the holder of this Warrant shall be entitled, in addition to all
otheravailable remedies, to an injunction restraining any breach, without the
necessity of showing economic loss and without any bond or othersecurity being
required.
Section 16.
Waiverof Jury Trial
.
AS A MATERIAL INDUCEMENT FOR EACH PARTY HERETO TO ENTER INTO THIS WARRANT, THE
PARTIES HERETO HEREBY WAIVE ANY RIGHTTO TRIAL BY JURY IN ANY LEGAL PROCEEDING
RELATED IN ANY WAY TO THIS WARRANT AND/OR ANY AND ALL OF THE OTHER DOCUMENTS
ASSOCIATED WITHTHIS TRANSACTION.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
15
IN WITNESS WHEREOF
,the Company has caused this Warrant to be signed as of the date first set
forth above.
AGBA Group Holding
By:
Name:
Title:
16
EXHIBIT A TO WARRANT
EXERCISE NOTICE
TO BE EXECUTED
BY THE REGISTERED HOLDER TO EXERCISE THIS WARRANT
AGBA GROUP HOLDING
The undersigned holder herebyexercises the right to purchase ______________ of
the shares of Common Stock ("
Warrant Shares
") of AGBA GROUP HOLDING(the "
Company
"), evidenced by the attached Warrant (the "
Warrant
"). Capitalized terms used hereinand not otherwise defined shall have the
respective meanings set forth in the Warrant.
Specify Method of exercise bycheck mark:
1. ___ Cash Exercise
(a)
Payment ofWarrant Exercise Price
. The holder shall pay the Aggregate Exercise Price of $______________ to the
Company in accordance with theterms of the Warrant.
(b)
Deliveryof Warrant Shares
. The Company shall deliver to the holder _________ Warrant Shares in
accordance with the terms of the Warrant.
2. ___ Cashless Exercise
(a)
Payment ofWarrant Exercise Price
. In lieu of making payment of the Aggregate Exercise Price, the holder elects
to receive upon such exercisethe Net Number of shares of Common Stock
determined in accordance with the terms of the Warrant.
(b)
Deliveryof Warrant Shares
. The Company shall deliver to the holder _________ Warrant Shares in
accordance with the terms of the Warrant.
Date: _______________ __, ______
Name of Registered Holder
By:
Name:
Title:
A-
1
EXHIBIT B TO WARRANT
FORM OF WARRANT POWER
FOR VALUE RECEIVED,
the undersigned does hereby assign and transfer to ________________, Federal
Identification No. __________, a warrant to purchase____________ shares of the
capital stock of AGBA Group Holding represented by warrant certificate no.
_____, standing in the nameof the undersigned on the books of said
corporation. The undersigned does hereby irrevocably constitute and appoint
______________, attorneyto transfer the warrants of said corporation, with
full power of substitution in the premises.
Dated:
By:
Name:
Title:
B-1
Exhibit
10.4
GUARANTY agreement
THIS GUARANTY AGREEMENT
(this "
Guaranty
") is made as of April 25, 2024, by the parties identified as guarantors on
the signature pageshereto from time to time (each a "
Guarantor
," and collectively, the "
Guarantors
," which terms shallinclude their respective successors and assigns), with and
for the benefit of
YA II PN, Ltd.
(the "
Beneficiary
,"which term shall include the Beneficiary's successors and assigns). The
Guarantors and the Beneficiary are sometimes referred toherein individually as
a "
Party
" and collectively as the "
Parties
."
RECITALS
A.
ABGA Group Holding Limited, a British Virgin Island business company, (the "
Parent
") and Triller Corp., a Delawarecorporation (the "
Borrower
"), have entered into that certain Amended and Restated Standby Equity
Purchase Agreement,dated as of April 25, 2024 (as amended, restated,
supplemented or otherwise modified from time to time, the "
SEPA
"),pursuant to which the Beneficiary has agreed to advance to the Borrower a
Pre-Paid Advance (the "
Pre-Paid Advance
")in the original principal amount of $8.51 million and certain additional
Advances (which, together with the Pre-Paid Advance, are collectivelyreferred
to as the "
Advances
") on the terms, and subject to the conditions, of the SEPA.
B. On April 16, 2024,Parent entered into that certain Agreement and Plan of
Merger (as may be amended, supplemented or otherwise modified from time
totime, the "
Merger Agreement
"), by and between Parent, its wholly owned subsidiary AGBA Social Inc.("
Merger Sub
"), the Borrower and Bobby Sarnevesht, solely as representative of the Company
stockholders. Pursuantto the Merger Agreement, (a) the Borrower will complete
a reorganization (the "
Triller Reorganization
") withTriller Hold Co LLC ("
Triller LLC
"), such that Triller LLC will reorganize into the Borrower as a DelawareCorpora
tion, (b) Parent will domesticate to the United States as a Delaware
corporation (the "
AGBADomestication
"), pursuant to which, among other things, all Parent's ordinary shares, par
value $0.001 per share("
AGBA Ordinary Shares
") will automatically convert into the same number of shares of common stock,
par value$0.001 per share of the Parent (the "
Common Shares
") and (c) after giving effect to the Triller Reorganizationand the AGBA
Domestication, Merger Sub will be merged into the Borrower (the "
Merger
"), with the Borrowersurviving the Merger and becoming a wholly owned
subsidiary of Parent.
C. On April 18, 2024,the Triller Reorganization was consummated.
D.
On the date hereof, Parent, Borrower and Beneficiary are entering into the
SEPA pursuant to which, among other things the Parentshall automatically
assume, on a joint and several basis with the Borrower, all of the Borrower's
obligations under the SEPA asa condition of and concurrently with the
consummation of the Merger, including, without limitation, the Advances.
E.
It is a condition to the Beneficiary's entering into the SEPA that each
Guarantor enter into this Guaranty, and each Guarantorhas agreed to make this
Guaranty, for the benefit and security of the Beneficiary, to guarantee the
payment and performance all of theBorrower's and the Parent's obligations,
indebtedness and liabilities to the Beneficiary, whether now existing or
hereaftercreated or arising.
NOW, THEREFORE
, inconsideration of the foregoing, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged,the Guarantors
make the following covenants, agreements, representations and warranties with
and for the benefit and security of the Beneficiary:
ArticleI
CONSTRUCTION AND DEFINED TERMS
Section 1.01.
Recitals
. The Parties acknowledge and agree that the recitals to this Guaranty are a
material and substantive part of thisGuaranty. The recitals are incorporated
herein and made part of this Guaranty.
Section 1.02.
Defined Terms
. Capitalized terms used in this Guaranty that are not defined in this
Guaranty but are defined in the SEPA,the Advances, or the Pledge Agreement (as
defined below), shall have the meanings given to such terms in the SEPA, the
Advances or thePledge Agreement, as the case may be. As used in this Guaranty,
the following terms have the following meanings:
"
Bankruptcy Eventof Default
" Any of the following events or circumstances: (a) if the Parent, the
Borrower, any Guarantor or any other Obligorshall (i) commence a voluntary
case or other proceeding seeking (A) liquidation, reorganization, or other
relief with respect to itselfor its debts under any bankruptcy, insolvency, or
similar law now or hereafter in effect or (B) the appointment of a trustee,
receiver,liquidator, custodian, or other similar official of it or any
substantial part of its assets, or shall consent to any such relief or tothe
appointment of or taking possession by any such official in an involuntary
case or other proceeding commenced against it, (ii) makea general assignment
for the benefit of creditors, (iii) fail generally to pay its debts as they
become due, or (iv) take any action toauthorize any of the foregoing; or (b)
if (i) an involuntary case or other proceeding shall be commenced against the
Parent, the Borrower,any Guarantor, or any other Obligor seeking (A)
liquidation, reorganization or other relief with respect to it or its debts
under anybankruptcy, insolvency or similar law now or hereafter in effect or
(B) the appointment of a trustee, receiver, liquidator, custodianor other
similar official of it or any substantial part of its assets, and such
involuntary case or other proceeding shall remain undismissedand unstayed for
a period of forty-five (45) days, or (ii) an order for relief shall be entered
against the Parent, the Borrower, anyGuarantor, or any other Obligor under the
federal bankruptcy laws as now or hereafter in effect.
"
Beneficiary
"As defined in the recitals to this Guaranty.
"
Borrower
"As defined in the recitals to this Guaranty.
"
Change of Control
"With respect to any Person, and other than any change that may occur at or as
a result of the Merger, any change in the power to director cause the
direction of the management or policies of such Person, whether through
ownership of voting securities, by agreement or otherwise,including any of the
following: (i) a change in the legal or beneficial ownership of twenty percent
(20%) or more of the voting securities(or other voting ownership interests) of
such Person, or if such Person is a limited partnership, of any general
partner of such Person,(ii) during the period of twenty-four (24) consecutive
months, a majority of the members of the board of directors or other
equivalentgoverning body of such Person cease to be to be composed of
individuals (A) who were members of that board or other equivalent
governingbody on the first day of such twenty-four (24) consecutive month
period, (B) whose election or nomination to that board or equivalentgoverning
body was approved by individuals referred to in preceding clause (A)
constituting at the time of such election or nominationat least a majority of
that board or equivalent governing body, or (C) whose election or nomination
to that board or equivalent governingbody was approved by individuals referred
to in preceding clauses (A) and (B) constituting at the time of such election
or nominationat least a majority of that board or equivalent governing body,
or (iii) the replacement of a managing general partner of a partnershipor a
managing member of a limited liability company.
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"
Collection Costs
"The Beneficiary's actual costs and expenses (including the Beneficiary's
reasonable attorneys' fees, paralegal feesand other legal expenses and the
fees and expenses of the Beneficiary's experts and other service providers,
including consultants,accountants, search firms, appraisers, surveyors,
receivers, trustees and auctioneers) incurred for the purpose collecting the
Obligationsor any other amounts owed to the Beneficiary under this Guaranty or
any other Transaction Document, or for the purpose of enforcing, defendingor
protecting the Beneficiary's rights with respect to the Obligations or the
Collateral, including any such costs and expensesincurred for or in connection
with (a) exercising or defending the Beneficiary's rights and remedies under
this Guaranty or anyother Transaction Document or under any Law, as against
any Guarantor or any other Obligor or with respect to any Collateral, (b)
anylitigation, arbitration, or mediation of disputes or claims related to this
Guaranty or any other Transaction Document, or related toany Obligations or
any Collateral, (c) obtaining and enforcing any judgment or award against any
Guarantor or any other Obligor or otherPerson related to this Guaranty or any
other Transaction Document, or any Obligations, or any Collateral, or in
connection with any appealof any such judgment or award, (d) enforcing and
defending the Beneficiary's security interests in and other liens on any
Collateraland the priority of such security interests and liens, (e)
collecting, repossessing, transporting, holding, storing, inspecting,
assessing,repairing, insuring, advertising, or marketing any Collateral, (f)
any sale or other disposition of any Collateral, (g) UCC financingstatement
searches, other lien searches and other public records searches relating to
the Guarantor or any other Obligor or any Collateral,and (h) any transfer tax,
recordation tax, documentary stamp tax, sales tax or other tax, assessment,
charge or fee imposed or incurredin connection with the creation, filing,
recording, registering or perfection of the Beneficiary's security interests
in or otherliens on any Collateral or relating to any sale or other
disposition of Collateral.
"
Default
"An event, occurrence, circumstance, act or failure to act which (a) itself
constitutes an Event of Default or (b) with the giving of noticeand/or the
passage of time would become an Event of Default.
"
Event of Default
"As defined in Section 5.01 of this Guaranty.
"
Governing Jurisdiction
"As defined in Section 8.20 of this Guaranty.
"
Governmental Authority
"The government of the United States of America or any other nation, or of any
political subdivision thereof, whether state, district,territory, county,
municipal, local or otherwise, and any agency, authority, instrumentality,
regulatory body, court, central bank orother entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining togovernment (including any supra-national bodies
such as the European Union or the European Central Bank), and including the
Persons holdingor exercising the powers, privileges, discretions, titles,
offices or authorities of any of the foregoing.
"
Material AdverseEffect
" A material adverse effect on (a) any Collateral, (b) the Guarantor's
business, properties, operations, condition(financial or otherwise), assets,
liabilities or capitalization, (c) the Guarantor's ability to pay or perform
its obligations underthis Guaranty or any other Transaction Document, (d) the
validity or enforceability of this Guaranty or any other Transaction
Document,or (e) any rights or remedies of the Beneficiary under this Guaranty
or any other Transaction Document.
"
Obligor
"The Parent (as of the consummation of the Merger), the Borrower, each
Guarantor and each other Person that is obligated to pay or perform,or has
provided Collateral or other security for, any of the Obligations, whether as
a borrower, guarantor, customer, purchaser, lessee,licensee, applicant,
counterparty, debtor or other obligor.
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3
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"
Parent
"As defined in the recitals to this Guaranty.
"
Pledge Agreement
"That certain Pledge Agreement, dated as of April [_], 2024, by the Guarantor
and the other pledgors from time to time party thereto infavor of the
Beneficiary, as may be amended, restated, supplemented or otherwise modified
from time to time.
"
Solvent
"and "
Solvency
" mean, with respect to any Person on any date of determination, that on such
date (a) the fair valueof the property of such Person is greater than the
total amount of liabilities, including contingent liabilities, of such Person,
(b) thepresent fair saleable value of the assets of such Person is not less
than the amount that will be required to pay the probable liabilityof such
Person on its debts as they become absolute and matured, (c) such Person does
not intend to, and does not believe that itwill, incur debts or liabilities
beyond such Person's ability to pay such debts and liabilities as they mature,
(d) such Personis not engaged in business or a transaction, and is not about
to engage in business or a transaction, for which such Person's propertywould
constitute an unreasonably small capital, and (e) such Person is able to pay
its debts and liabilities, contingent obligationsand other commitments as they
mature in the ordinary course of business. The amount of contingent
liabilities at any time shall be computedas the amount that, in the light of
all the facts and circumstances existing at such time, represents the amount
that can reasonably beexpected to become an actual or matured liability.
"
State
"Any of (a) a state of the United States of America, or (b) the District of
Columbia.
"
Transaction Document
"Collectively, this Guaranty, the SEPA, the Advances, the Other Advances, the
Pledge Agreement and any and all documents, agreements, instrumentsor other
items executed or delivered in connection with any of the foregoing.
"
United States
"The United States of America.
"
Upstream Owners
"Each Person that has a direct or indirect legal or beneficial ownership
interest in the Borrower, any Guarantor, or any other Obligor.
Section 1.03.
Article and Section Headings
. Article and Section headings and captions in this Guaranty are for
convenience only and shallnot affect the construction or interpretation of
this Guaranty. Unless otherwise expressly stated in this Guaranty, references
in thisGuaranty to Sections shall be read as Sections of this Guaranty.
Section 1.04.
Other Terms
. Terms used in this Guaranty shall be applicable to the singular and plural,
and references to gender shallinclude all genders. The terms "
herein
," "
hereof
," "
hereto
," and "
hereunder
"and similar terms refer to this Guaranty as a whole and not to any particular
Article, Section, subsection or clause in this Guaranty.Unless otherwise
expressly limited herein (and except where used in the conjunction of time
periods or where used in the context of "doesnot include," "shall not
include," "not included" or "not including"), the terms "
include
"and "
including
," shall be read to mean "include, without limitation," or "including, without
limitation,"as the case may be.
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ArticleII
GUARANTY
Section 2.01.
Guaranty of Payment and Performance
. Each Guarantor hereby, jointly and severally, guarantees to the Beneficiary
the promptpayment of the Obligations in full when due (whether as scheduled,
at stated maturity, as a mandatory prepayment, on demand, by accelerationor
otherwise) strictly in accordance with the terms of the Obligations and the
Transaction Documents. Each Guarantor further agrees thatif any Obligations
are not paid in full when due (whether as scheduled, at stated maturity, as a
mandatory prepayment, on demand, by accelerationor otherwise), the Guarantors
will, jointly and severally, promptly pay the same, without any demand or
notice whatsoever, and that inthe case of any extension of time for payment or
renewal of any of the Obligations, each Guarantor guarantees to the
Beneficiary thatthe same will be promptly paid in full when due (whether as
scheduled, at stated maturity, as a mandatory prepayment, on demand, by
accelerationor otherwise) in accordance with the terms of such extension or
renewal. This Guaranty is irrevocable, absolute and unconditional.
ThisGuaranty is a guaranty of payment of all of the Obligations, and not a
guaranty of collection. Each Guarantor further guarantees the performanceof,
and agrees to perform, at the time and in the manner set forth in the
Transaction Documents, all of the terms, covenants and conditionstherein
required to be kept, observed or performed by the Parent and the Borrower.
Each Guarantor shall pay all of its payment obligationsunder this Guaranty to
the Beneficiary in full when due, and each Guarantor shall perform fully its
performance obligations under thisGuaranty, in each instance without
asserting, interposing or exercising any right of setoff, recoupment, or
counterclaim, or any defense,and without any abatement, diminution, deduction,
or other reduction of any kind. Any modification, limitation or discharge of
any ofthe obligations, indebtedness or liabilities of the Parent and the
Borrower arising out of, or by virtue of, any bankruptcy, insolvencyor similar
proceedings for relief of debtors initiated by or against the Parent and the
Borrower under any law shall not modify, limit,reduce, impair, discharge, or
otherwise affect the liability of any Guarantor under this Guaranty in any
manner whatsoever, and this Guarantyshall continue in full force and effect,
notwithstanding any such proceeding. Any modification, limitation or discharge
of any of theobligations, indebtedness or liabilities of any Guarantor arising
out of, or by virtue of, any bankruptcy, insolvency or similar proceedingsfor
relief of debtors initiated by or against such Guarantor under any law shall
not modify, limit, reduce, impair, discharge, or otherwiseaffect the liability
of any other Guarantor under this Guaranty in any manner whatsoever, and this
Guaranty shall continue in full forceand effect, notwithstanding any such
proceeding. If any Obligation guaranteed by any Guarantor is or becomes
unenforceable, invalid orillegal, each Guarantor will, as an independent and
primary obligation, indemnify the Beneficiary immediately on demand against
any cost,loss or liability that the Beneficiary incurs as a result of the
Parent or the Borrower not paying any amount which would, but for
suchunenforceability, invalidity or illegality, have been payable by the
Parent or the Borrower under any Transaction Document on the datewhen it would
have been due (whether as scheduled, at stated maturity, as a mandatory
prepayment, on demand, by acceleration or otherwise).The amount payable by the
Guarantors to the Beneficiary under this indemnity will not exceed the amount
the Guarantors would have hadto pay under this Section if the amount claimed
had been recoverable on the basis of a guarantee.
Section 2.02.
Continuing Guaranty
. This Guaranty is a continuing guaranty and shall apply to all Obligations
whenever arising.
Section 2.03.
Obligations Unconditional
. The obligations of the Guarantors under this Guaranty are joint and several,
absolute and unconditional,irrespective of the value, genuineness, validity,
regularity or enforceability of any of the Transaction Documents, or any other
agreementor instrument referred to herein or therein, or any substitution,
release or exchange of any other guarantee of or Collateral or othersecurity
for any of the Obligations, and, to the fullest extent permitted by applicable
law, irrespective of any other circumstance whatsoeverwhich might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Guarantythat the obligations of the Guarantors
shall be absolute and unconditional under any and all circumstances. Without
limiting the generalityof the foregoing, it is agreed that, to the fullest
extent permitted by applicable law, the occurrence of any one or more of the
followingshall not alter or impair the liability of the Guarantors hereunder
which shall remain absolute and unconditional as described above:
(a)
at any time or from time to time, with or without notice to the Guarantors,
the time for any performance of or compliance withany Obligations shall be
extended, or such performance or compliance shall be waived;
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5
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(b)
any of the acts mentioned in any of the provisions of any of the Transaction
Documents or any other agreement or instrument referredto therein shall be
done or not done;
(c)
the maturity of the Obligations shall be accelerated;
(d)
any Obligations or Transaction Documents shall be amended, restated, modified,
or supplemented in any respect, or any right underany of the Transaction
Documents or any other agreement or instrument referred to herein or therein
shall be waived;
(e)
the Parent or the Borrower or any other Obligor requests the consent of the
Beneficiary for any purpose and such consent is grantedor such consent is
delayed, conditioned, or withheld;
(f)
any Person fails or refuses to guarantee the payment or performance of the
Obligations;
(g)
any guarantee of any of the Obligations by any Person, or any Collateral or
other security given for such guarantee or for anyof the Obligations, shall be
released or exchanged in whole or in part or otherwise dealt with;
(h)
any Obligations shall be determined to be void or voidable (including for the
benefit of any creditor of any Obligor) or shallbe subordinated to the claims
of any Person (including any creditor of any Obligor);
(i)
any Property is not provided as Collateral for any of the Obligations or any
other form of security is not provided for any ofthe Obligations;
(j)
any lien or security interest is not granted as security for any of the
Obligations;
(k)
any lien or security interest that is granted as security for any of the
Obligations shall fail to attach or to be perfected, orshall fail to have
priority;
(l)
the full or partial release or exchange of any Collateral or other security;
(m) the full or partialrelease or exchange of any lien or security interest; or
(n)
the full or partial release of liability of any Obligor.
Section 2.04.
Maximum Guarantor Liability
.
Except as provided in this Section 2.04, there is no limit on the amount of
any Guarantor'sliability under this Guaranty. In any action or proceeding
involving any state law or any other laws applicable to any Guarantor
becauseof the form of such Guarantor's organization, such as corporate law,
limited liability company law, partnership law or trust law,or any state or
federal bankruptcy, insolvency, reorganization or other law affecting the
rights of creditors generally, if the obligationsof such Guarantor under this
Guaranty would otherwise be held or determined to be void, invalid or
unenforceable, or subordinated to theclaims of any other creditors, on account
of the amount of such Guarantor's liability under this Guaranty, then,
notwithstandingany other provision hereof to the contrary, the amount of such
Guarantor's liability under this Guaranty shall, without any furtheraction by
such Guarantor, the Beneficiary or any other Person, be automatically limited
and reduced to the highest amount that is validand enforceable and not
subordinated to the claims of other creditors in such action or proceeding.
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Section 2.05.
Waiver of Subrogation
.
Each Guarantor agrees that it shall have no right of subrogation,
reimbursement or indemnitywhatsoever, nor any right of recourse to security,
if any, for the Obligations, so long as any amounts payable to the Beneficiary
in respectof the Obligations shall remain outstanding. Each Guarantor further
agrees that it shall have no right of contribution nor any other recourseagainst
the Parent or the Borrower or any other Obligor so long as any amount payable
to the Beneficiary in respect of the Obligationsshall remain outstanding.
Section 2.06.
Other Waivers
.
(a)
Waiver of Notice of Acceptance
. Each Guarantor waives (i) notice of acceptance of this Guaranty, (ii) notice
of any actiontaken or omitted by the Beneficiary in reliance on this Guaranty,
and (iii) any requirement that the Beneficiary be diligent or promptin making
demands under this Guaranty, giving notice of any default by the Parent or the
Borrower or asserting any other rights of theBeneficiary under this Guaranty.
(b)
Waiver of Defenses
. Each Guarantor waives any defense based upon or arising by reason of (i) any
disability or otherdefense of the Parent or the Borrower or any other Person;
(ii) any defect in the formation of the Parent or the Borrower; (iii) any
lackof authority of any officer, director, member, manager, partner, agent or
any other Person acting or purporting to act on behalf of theParent or the
Borrower; (iv) the application by the Parent or the Borrower of the proceeds
of any Obligations for purposes other thanthe purposes represented by the
Parent or the Borrower to the Beneficiary or to any Guarantor or intended or
understood by the Beneficiaryor any Guarantor; (v) any act or omission by the
Beneficiary which directly or indirectly results in or aids the discharge of
the Parentor the Borrower or any Obligations by operation of law or otherwise;
(vi) the cessation or limitation of the Obligations from any causewhatsoever,
other than the final and irrevocable payment in full, in cash, of the
Obligations to the Beneficiary; (vii) diligence or lackthereof; or (viii) any
modification of the Obligations, in any form whatsoever, including, without
limitation, any modification made aftereffective termination, and including,
without limitation, the renewal, extension, acceleration or other change in
time for payment ofthe Obligations, or other change in the terms of any
Obligations, including, without limitation, any increase or decrease of the
interestrate applicable to any of the Obligations.
(c)
Waiver of Impairment Defenses
. Each Guarantor understands and acknowledges that if the Beneficiary
forecloses, either byjudicial foreclosure or by exercise of power of sale, any
deed of trust or mortgage securing the Obligations, that foreclosure could
impairor destroy any ability the Guarantors may have to seek payment,
reimbursement, contribution or indemnification from the Parent or theBorrower
or others based on any right the Guarantors may have of subrogation,
reimbursement, contribution, or indemnification for anyamounts paid by the
Guarantors under this Guaranty, and each Guarantor waives any defense based on
any such impairment or destruction.
(d)
Waiver of Statutory Rights
. Each Guarantor waives the benefit of any statute of limitations or other
statutory provisionsaffecting its liability hereunder.
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7
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(e)
Waiver of Other Suretyship Defenses
. Each Guarantor waives each and every defense and setoff of any nature which,
underprinciples of suretyship, guaranty or otherwise, would operate to impair
or diminish in any way the obligation of any Guarantor underthis Guaranty, and
acknowledges that each such waiver is by this reference incorporated into each
security agreement, collateral assignment,pledge and/or other document from
any Guarantor now or later securing this Guaranty and/or the Obligations, and
acknowledges that as ofthe date of this Guaranty no such defense or setoff
exists. Each Guarantor acknowledges that the effectiveness of this Guaranty is
subjectto no conditions of any kind. Each Guarantor acknowledges and agrees
that this is a knowing and informed waiver of such Guarantor'srights as
discussed above and that the Beneficiary is relying on this waiver in
extending credit to the Parent or the Borrower.
(f)
Waivers Made Knowingly and Voluntarily
. Each Guarantor represents, warrants and agrees that the waivers made by the
Guarantorsin this Guaranty are made with each Guarantor's full knowledge of
their significance and consequences, and that under the circumstances,the
waivers are reasonable and not contrary to public policy or law. If any of
these waivers are determined to be contrary to anyapplicable law or public
policy, the waivers made by the Guarantors in this Guaranty shall be effective
only to the extent permitted bylaw.
Section 2.07.
Subordination
.
Each Guarantor hereby subordinates the payment and the time of payment of all
indebtedness, liabilitiesand other obligations of the Parent or the Borrower,
and of each other Obligor, to such Guarantor of every kind and nature
whatsoeverwhether now in existence or hereafter entered into or created (the "
Subordinated Indebtedness
") to the payment of allof the Obligations. Until all of the Obligations have
been paid in full, the Guarantors shall not receive any payment or
distributionon account of, or accept any collateral or security for, or bring
any action to collect, any Subordinated Indebtedness. The Guarantorsshall not
assign, transfer, exchange, convert, pledge, forgive, or dispose of, the
Subordinated Indebtedness while this Guaranty is ineffect, other than the
assignment, pledge and security interest created under this Guaranty in favor
of the Beneficiary. In the eventthat any Guarantor is entitled to receive any
payment or distribution in respect of Subordinated Indebtedness, whether
voluntary or involuntary,and whether or not under any bankruptcy, insolvency
or similar proceedings under any law, then such Guarantor agrees and directs
thatany such payment or distribution shall be paid or delivered directly to
the Beneficiary, and when received by the Beneficiary, and inthe Beneficiary's
discretion, either held by the Beneficiary as Collateral for the Obligations
or applied to the Obligations, whetherdue or not and in such order and manner
as the Beneficiary may elect. If any such payment or distribution in respect
of Subordinated Indebtednessis received by any Guarantor, such Guarantor shall
deliver the same to the Beneficiary (with any necessary indorsement), and
until sodelivered to the Beneficiary, the same shall be held in trust by such
Guarantor as property of the Beneficiary. Each Guarantor herebyirrevocably
authorizes and empowers the Beneficiary to demand, sue for, collect and
receive every payment or distribution on account ofthe Subordinated
Indebtedness and to file claims and take such other proceedings in the name of
the Beneficiary or in the name of anyGuarantor as the Beneficiary may deem
necessary or advisable to carry out the provisions of this Guaranty. As
further assurance of theauthorization herein given, each Guarantor agrees to
execute and deliver to the Beneficiary any power of attorney, assignment,
indorsement,or other instrument as may be requested by the Beneficiary to
enable the Beneficiary to enforce any claims upon the Subordinated
Indebtednessand to collect and receive any payment or distribution with
respect to the Subordinated Indebtedness. To secure each Guarantor'sobligations
under this Guaranty, each Guarantor assigns, pledges and grants to the
Beneficiary a security interest in, and lien on, theSubordinated Indebtedness,
all proceeds thereof and all and any security and collateral therefor. Upon
the request of the Beneficiary,each Guarantor shall indorse, assign and
deliver to the Beneficiary all notes, certificates, bonds, debentures,
instruments, guarantiesand agreements evidencing, securing, guaranteeing, or
made in connection with, the Subordinated Indebtedness, and any collateral
thereforin the Guarantor's possession or control. If the Beneficiary has
possession of an instrument or chattel paper that evidences orconstitutes
Subordinated Indebtedness, then as to any such instrument or chattel paper,
the Beneficiary shall not be obligated to takeany necessary steps to preserve
rights against prior parties. The Beneficiary shall have the rights and
remedies of a secured party underthe Uniform Commercial Code in effect in the
Governing Jurisdiction with respect to the Subordinated Indebtedness and all
proceeds thereofand any security and collateral therefor.
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ArticleIII
REPRESENTATIONS AND WARRANTIES
Each Guarantor makes the followingrepresentations and warranties to the
Beneficiary as of the date of this Guaranty and of each Funding Date:
Section 3.01.
Organization, Power and Authority
. Each Guarantor (a) is a corporation, limited liability company, limited
partnership orstatutory trust duly formed, organized, created or incorporated,
and validly existing and in good standing, under the laws of the ApplicableJuris
diction set forth on
Schedule 3.01
and (b) has the corporate, limited liability company, limited partnership or
trustpower and authority to execute, deliver, and perform its obligations
under, this Guaranty.
Section 3.02.
Execution, Delivery and Enforceability
. The execution and delivery of this Guaranty by the Guarantors have been duly
authorizedby all requisite corporate, limited liability company, limited
partnership or trust action, as applicable. This Guaranty has been dulyand
validly executed and delivered by each Guarantor. This Guaranty constitutes
each Guarantor's legal, valid and binding obligation,enforceable against each
Guarantor in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratoriumor other laws affecting the rights of
creditors generally and the exercise of judicial discretion in accordance with
general principlesof equity.
Section 3.03.
Consents and Approvals
. The execution, delivery and performance of this Guaranty by the Guarantors
do not require the consentor approval of any Person (other than any such
irrevocable and unconditional consent or approval that the Guarantor has
obtained in writingprior to the execution of this Guaranty) and will not (a)
contravene any provision of law, or any order of any court or other agency
ofgovernment binding upon any Guarantor or such Guarantor's Property, (b)
contravene, be in conflict with or result in the breachor default of (with due
notice or lapse of time or both) the charter, bylaws, operating agreement,
partnership agreement or other OrganizationalDocuments of any Guarantor, (c)
contravene, be in conflict with, result in the breach or default of (with due
notice or lapse of timeor both) any indenture, agreement or other instrument
binding upon any of the Guarantors or their Property, or (d) result in the
creationor imposition of any lien, security interest or restriction upon any
Property of any of the Guarantors other than those created or imposedin favor
of the Beneficiary under this Guaranty.
Section 3.04.
Investment Company Act
. None of the Guarantors is an "investment company," or a company
"controlled"by an "investment company," within the meaning of the Investment
Company Act of 1940, as amended.
Section 3.05.
Compliance with Legal Requirements
. Each Guarantor is in compliance with all Legal Requirements applicable to
such Guarantoror its Property, business or other activities, except where the
failure to comply would not, individually or in the aggregate, have aMaterial
Adverse Effect.
Section 3.06.
Compliance with Anti-Corruption Requirements
. None of the Guarantors have taken, directly or indirectly, and to the
knowledgeof the Guarantors, no director, officer, employee, agent or other
Person acting on behalf of any Guarantor has taken, directly or indirectly,any
action that would result in a violation by such Person of the Foreign Corrupt
Practices Act of 1977, as amended, and the rules andregulations thereunder, or
any other applicable anticorruption law, and the Guarantors have instituted
and maintain policies and proceduresdesigned to ensure continued compliance
therewith.
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Section 3.07.
Compliance with OFAC
. None of the Guarantors is, and to the knowledge of the Guarantors, no
director, officer, employee,agent or other Person acting on behalf of any
Guarantor is, an individual or entity that is, or that is owned or controlled
by Personsthat are: (i) the subject or target of any sanctions administered or
enforced by the U.S. Department of the Treasury's Office ofForeign Assets
Control ("
OFAC
"), the U.S. Department of State, the United Nations Security Council, the
European Union,His Majesty's Treasury of the United Kingdom, or other relevant
sanctions authority (collectively, "
Sanctions
");or (ii) located, organized or resident in a country or territory that is,
or whose government is, the subject of Sanctions including,without limitation,
Cuba, Iran, North Korea, Sudan, Syria, and the Crimea Region of the Ukraine.
Section 3.08.
Compliance with USA PATRIOT Act
. None of the Guarantors is a Person (i) described or designated in the
Specially DesignatedNationals and Blocked Persons List of the Office of
Foreign Assets Control or in Section 1 of Executive Order 13224 signed on
September23, 2001, as amended, or (ii) that engages in any dealings or
transactions with any such Person. The Guarantor is in compliance withthe USA
PATRIOT Act.
Section 3.09.
Adversarial Proceedings
. No litigation, arbitration, investigation or administrative proceeding, or
other adversarial proceeding,of or before any court, arbitrator or
Governmental Authority, bureau or agency is currently pending or has been
threatened by any Person,(a) with respect to this Guaranty or any transaction,
indebtedness, obligation, liability, or other matter contemplated by this
Guarantyor any other Transaction Document; or (b) against or affecting any
Guarantor or any business or Property of any Guarantor.
Section 3.10.
Guarantor Benefit
. Each Guarantor is a direct or indirect, as applicable, subsidiary of the
Borrower (and upon consummationof the Merger, the Parent) and has determined,
based on such Guarantor's independent review, that it has received, or will
receive,substantial direct or indirect benefit from the loan or loans made, or
other credits extended, by the Beneficiary to or for the accountof the
Borrower and Parent under the Transaction Documents, and that it is in each
such Guarantor's best interest to provide thisGuaranty, as requested by the
Borrower, for the benefit and security of the Beneficiary, regardless of
whether any Guarantor has received,or receives, directly or indirectly, any
proceeds of such loans or credits.
Section 3.11.
Access to Information Regarding Obligors
. Each Guarantor acknowledges, represents and warrants to the Beneficiary that
theGuarantors have adequate means to obtain from the Borrower (and upon
consummation of the Merger, the Parent) and from each other Obligor,on a
continuing basis, information concerning the financial and operating condition
of the Borrower, the Parent and each other Obligor,and their compliance with
the terms and conditions of the Transaction Documents and the Obligations, and
the Guarantors are not relyingon the Beneficiary to provide such information
either now or in the future. The Beneficiary shall have no present or future
duty or obligation,and the Guarantors waive any right to claim or assert any
such duty or obligation, to discover or to disclose to the Guarantors any
information,financial or otherwise, concerning the Parent, the Borrower or any
other Obligor. Furthermore, the Beneficiary shall have no present orfuture
duty to notify any Guarantor of any Default or Event of Default by the Parent,
the Borrower or any other Obligor, and the factthat the Beneficiary may not
have notified the Guarantors of one or more Defaults or Events of Default
shall not diminish or otherwiseaffect any Guarantor's liability to the
Beneficiary under this Guaranty. Each Guarantor acknowledges and agrees that
its liabilityto the Beneficiary under this Guaranty shall continue regardless
of whether the Obligations are guaranteed by any other Person.
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Section 3.12.
Access to Information Regarding Collateral
. Each Guarantor acknowledges, represents and warrants to the Beneficiary
thatthe Guarantors have adequate means to obtain from the Parent, the Borrower
and from each other Obligor, on a continuing basis, informationconcerning the
existence and value of any Collateral. The Beneficiary shall have no present
or future duty or obligation, and each Guarantorwaives any right to claim or
assert any such duty or obligation, to discover or to disclose to the
Guarantors any information, financialor otherwise, concerning any Collateral.
The Guarantors acknowledge and agree that each Guarantor's liability to the
Beneficiaryunder this Guaranty shall continue regardless of whether the
Obligations are secured or unsecured, regardless of the existence of
anyCollateral or any lien or security interest on or in any Collateral for the
Obligations, and regardless of the value of any Collateral.
Section 3.13.
Solvency
. On the date of this Guaranty and on each Funding Date, and after giving
effect to this Guaranty and the obligationsunder this Guaranty, each Guarantor
is Solvent. The payment and performance of the obligations of the Guarantors
hereunder will not causeany Guarantor to exceed its ability to pay its debts
as they mature, and this Guaranty is made without any intent to hinder, delay
ordefraud either present or future creditors, purchasers or other interested
Persons.
Section 3.14.
Upstream Owners
. On the date of this Guaranty, the Upstream Owners of the Borrower and the
Guarantors, and their respectivedirect and indirect ownership interests in the
Borrower, are as set forth on
Schedule 3.14
.
ArticleIV
COVENANTS
Each Guarantor covenantsand agrees as follows for the benefit and security of
the Beneficiary:
Section 4.01.
Existence
.The Guarantors shall do all things necessary to preserve, renew and keep in
full force and effect each Guarantor's legalexistence in its Applicable
Jurisdiction. Each Guarantor shall maintain its legal status and qualification
to do business in eachjurisdiction where it is required to register or qualify
to do business, except where the failure to do so would not, individuallyor in
the aggregate, have a Material Adverse Effect.
Section 4.02.
TaxReports
. Each Guarantor shall furnish to the Beneficiary, within fifteen (15) days
after such Guarantor's federal andstate income tax returns or information
returns are filed, true, accurate and complete copies of such Guarantor's
filedfederal and state income tax returns, including all schedules thereto,
each of which shall be signed and certified by the ChiefFinancial Officer (or
equivalent) of such Guarantor to be true and complete copies of such returns.
In the event that anextension is filed for any tax return or information
return for any Guarantor, such Guarantor shall furnish to the Beneficiary
acopy of the filed extension within fifteen (15) days after filing for such
extension.
Section 4.03.
OtherReports
. Promptly upon each Guarantor's transmission thereof, each Guarantor shall
furnish the Beneficiary with copies ofall financial statements, proxy
statements, notices and reports that such Guarantor sends to its shareholders,
members, partners,beneficiaries or other equity holders, or to holders of any
indebtedness of such Guarantor in their capacities as holders of suchindebtednes
s.
Section 4.04.
Recordsand Access
. Each Guarantor shall maintain its financial books and records in accordance
with GAAP. The Beneficiary shall bepermitted access to all of the financial
books and records of each Guarantor at such Guarantor's place or places of
businessduring normal business hours and shall be permitted to make and keep
copies, at each Guarantor's expense, of such books andrecords as the
Beneficiary may request.
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Section 4.05.
Ownershipand Management Information
. Promptly upon the Beneficiary's written (e-mail being sufficient) requests
from time to time, eachGuarantor shall provide to the Beneficiary such
information as the Beneficiary may request regarding (i) the Upstream Owners
of the Borrowerand such Guarantor, (ii) the Borrower's and such Guarantor's
directors, managers, general partners and other Persons withpositions
comparable to those of a director of a corporation, or a manager of a limited
liability company, or a general partner of apartnership, as the case may be,
and (iii) the Borrower's and such Guarantor's officers and any other Persons
with positionscomparable to those of an officer of a corporation.
Section 4.06.
Other Information
. Promptly upon the Beneficiary's written requests (e-mail being sufficient)
from time to time, eachGuarantor shall furnish to the Beneficiary information
as the Beneficiary may request regarding (i) such Guarantor and such
Guarantor'sProperty, including, for example, such Guarantor's deposit
accounts, securities accounts, commodity accounts, and other financialassets,
and (ii) any of such Guarantor's subsidiaries.
Section 4.07.
Taxes
.Each Guarantor shall file, or cause to be filed, when due all tax returns and
reports which are required to be filed by such Guarantor.Each Guarantor shall
pay and discharge promptly, on or before the date due, all taxes, assessments,
charges, and other impositions imposedby any Governmental Authority on such
Guarantor or on any Property of such Guarantor; provided that the Guarantors
shall not be requiredto pay such taxes, assessments, charges or other
impositions by any Governmental Authority that are being contested by one or
more Guarantorsin good faith by appropriate proceedings if (i) each such
Guarantor shall have set aside on their books adequate reserves as requiredby
GAAP with respect to each such tax, assessment, charge or imposition being so
contested, (ii) the nonpayment of such taxes, assessments,charges or
impositions does not create or result in a lien on, or impair the value of,
any Collateral, and (iii) no Default or Eventof Default shall have occurred
and be continuing.
Section 4.08.
TransactionDocument Compliance
. To the extent that any affirmative covenant, negative covenant or other
provision in any Transaction Documentapplies by its terms to any Guarantor due
to such Guarantor being an Obligor or an owner, subsidiary, affiliate or
creditor of an Obligor,or by virtue of such Guarantor being a guarantor of the
Obligations, each such Guarantor covenants and agrees that it is bound by,
andshall comply with such affirmative covenants, negative covenants and other
provisions, even if such Guarantor is not a party to the TransactionDocument
and is not specifically referred to by name in such affirmative covenants,
negative covenants or other provisions, and eventhough such affirmative
covenants, negative covenants or other provisions are not set forth in this
Guaranty.
Section 4.09.
Compliancewith Legal Requirements
. Each Guarantor shall comply with all Legal Requirements applicable to such
Guarantor or its Property, businessor other activities, except where the
failure to comply would not, individually or in the aggregate, have a Material
Adverse Effect.
Section 4.10.
Notice of Default or Event of Default
. Within three (3) Business Days after the occurrence of any Default or Event
of Defaultthe Guarantors shall give the Beneficiary written notice thereof.
Section 4.11.
Collection Costs
. Within ten (10) days after the Beneficiary's written request from time to
time, the Guarantors shallpay (or provide the Beneficiary with sufficient
funds for the payment of), or reimburse the Beneficiary for payment of, all
CollectionCosts identified by the Beneficiary with each request. In the event
that the Beneficiary shall obtain a judgment against any Guarantorbased on
this Guaranty, the obligation of the Guarantors to pay Collection Costs shall
not be merged into such judgment but each Guarantor'sobligation to pay
Collection Costs shall continue and shall apply to any Collection Costs
incurred by the Beneficiary in defending, enforcingand collecting such
judgment and any Collection Costs incurred in connection with any appeal of
all or any portion of such judgment.
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ArticleV
EVENTS OF DEFAULT
Section 5.01.
Events of Default
. Each of the following events, occurrences or circumstances shall be an "
Event of Default
"under this Guaranty:
(a) ifany payment of principal or interest of the Obligations, or if any
payment of any fee, charge, royalty, premium, cost, expense, price,rent or
other amount of the Obligations, is not made when due; provided that (i) if a
Transaction Document expressly provides for theBeneficiary to give the Parent,
the Borrower or any Guarantor notice of such nonpayment, such notice shall
have been given and (ii) ifa Transaction Document expressly provides for a
grace or cure period for such nonpayment, such nonpayment shall have continued
uncuredbeyond the grace or cure period expressly provided in such Transaction
Document;
(b) theoccurrence of a breach, default or event of default, or other failure
to perform, by the Parent, the Borrower, any Guarantor or any otherObligor,
not within the scope of preceding clause (a), under any Transaction Document;
provided that (i) if such Transaction Documentexpressly provides for the
Beneficiary to give the Parent, the Borrower or any Guarantor notice of such
breach, default, event of defaultor failure, such notice shall have been
given, and (ii) if such Transaction Document expressly provides for a grace or
cure period forsuch breach, default, event of default or failure, such breach,
default, event of default or failure shall have continued uncured beyondthe
grace or cure period expressly provided in such Transaction Document;
(c) ifany confirmation, representation or warranty made by any Guarantor in
this Guaranty, or made by any Guarantor or any other Obligor inany other
Transaction Document, is breached in any material respect or is false or
misleading;
(d) ifany written statement (including any financial statement or tax return)
of any Guarantor or any other Obligor, or any other report, certificate,or
information, provided to the Beneficiary by or on behalf of any Guarantor or
any other Obligor (i) as a part of any request or applicationfor a loan or
other credit, (ii) as a condition or requirement of or under any Transaction
Document or any Obligations, or (iii) to inducethe Beneficiary to take or
refrain from taking any action, is incomplete in any material respect or is
false or misleading;
(e) ifany Guarantor shall breach, default under, or fail to comply with, (i)
any of its payment obligations, performance obligations, or otherobligations
under Article II of this Guaranty or (ii) any representation, warranty,
covenant, agreement or other provision of this Guaranty;
(f) ifany Guarantor fails to pay when due any obligation, indebtedness or
liability (other than the Obligations) owed to any Person, or breaches,defaults
or fails to comply with any other term, representation, warranty, covenant,
condition or other provision applicable to such obligations,indebtedness or
liability, and (i) such obligation, indebtedness or liability shall have
matured or (ii) the occurrence of any such failure,breach, or default would
entitle the holder of such obligation, indebtedness or liability to accelerate
such obligation, indebtednessor liability or exercise any remedy with respect
thereto;
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(h) thecommencement of any proceeding against, or the occurrence of any
seizure, repossession, or other taking possession of, any Guarantor'sProperty
or any rights therein by any Person by any action or means, including
condemnation, forfeiture, seizure, levy, distraint, replevinor self-help;
(i) theoccurrence or commencement of any Lien Proceedings, or any other
event, circumstance or proceeding that impairs, or may impair, the valueof the
Collateral, or the Beneficiary's security interest in the Collateral, or the
perfection of the Beneficiary's securityinterest in the Collateral, or the
first priority of the Beneficiary's security interest in the Collateral, or
the enforceabilityof any Transaction Document against any Guarantor or any
other Obligor or any other Person, as determined by the Beneficiary in the
Beneficiary'sdiscretion;
(j) theoccurrence of a Bankruptcy Event of Default with respect to any
Guarantor or any other Obligor;
(k) theoccurrence of a material adverse change in the financial or operating
condition of the Parent, the Borrower, any Guarantor or any otherObligor after
the date of this Guaranty, as determined by the Beneficiary in the
Beneficiary's discretion;
(l) theoccurrence, directly or indirectly, voluntarily or involuntarily, by
operation of law or otherwise, of any Change of Control of any Guarantor;or
(m) theoccurrence of an Event of Default (as defined in any Transaction
Document other than this Guaranty).
ArticleVI
ACCELERATION OF OBLIGATIONS
Section 6.01.
Acceleration
. Upon the occurrence of any Event of Default, the Beneficiary may, at the
Beneficiary's option and inthe Beneficiary's discretion, and without prior
notice to or demand upon any Guarantor, accelerate some or all of the
Obligations,and upon such acceleration, all such Obligations as shall have
been accelerated shall be immediately due and payable. Notwithstandingthe
foregoing, immediately upon any Bankruptcy Event of Default, and without
notice to or demand upon any Guarantor or any action by theBeneficiary, the
Obligations shall be accelerated and all of the Obligations shall be
immediately due and payable. Nothing in this Guarantyshall be construed as
modifying or limiting, or as prohibiting or restricting the Beneficiary from
exercising, any right to demand immediatepayment of any Obligations then due
and payable or payable on demand.
ArticleVII
REMEDIES
Section 7.01.
Remedies
. Upon and after the occurrence of any Event of Default, the Beneficiary shall
have all of the rights and remediesavailable under this Guaranty and the other
Transaction Documents, and such rights and remedies as may be available to the
Beneficiaryat law and in equity.
Section 7.02.
Remedies Cumulative
. The Beneficiary's rights and remedies under this Guaranty are cumulative and
not exclusive ofany rights or remedies as the Beneficiary would otherwise have
and may be exercised simultaneously. No failure or delay on the part ofthe
Beneficiary in exercising any right, power or privilege under this Guaranty or
under any other Transaction Document, and no courseof dealing between any
Guarantor or any other Obligor or other Person and the Beneficiary, shall
operate as a waiver of any of the Beneficiary'srights, powers or privileges
under this Guaranty or under any other Transaction Document; nor shall any
single or partial exercise ofany right, power or privilege under this Guaranty
or any other Transaction Document preclude any other or further exercise
thereof orthe exercise of any other right, power or privilege hereunder or
thereunder. No notice or demand on any Guarantor in any circumstanceshall
entitle any Guarantor or any other Obligor or any other Person to any other or
further notice or demand in similar or other circumstancesor constitute a
waiver of the rights of the Beneficiary to any other or further action in any
circumstances without notice or demand.
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ArticleVIII
GENERAL PROVISIONS
Section 8.01.
Notices
.Any notices, consents, waivers or other communications required or permitted
to be given under the terms hereof must be in writingand will be deemed to
have been delivered: upon the later of (A) either (i) receipt, when delivered
personally or (ii) one (1)Business Day after deposit with an overnight courier
service with next day delivery specified, in each case, properly addressed
tothe party to receive the same and (B) receipt, when sent by e-mail. The
addresses and e-mail addresses for such communications shallbe:
If to any Guarantor, to: Triller Hold Co LLC
7119 West Sunset Blvd, Suite 782
Los Angeles, CA 90046
Attention: Prem Parameswaran
Chief Financial Officer
Telephone: (310) 893-6090
Email: prem@triller.co
If to the Beneficiary: YA II PN, Ltd.
c/o Yorkville Advisors Global, LLC
1012 Springfield Avenue
Mountainside, NJ 07092
Attention: Mark Angelo
Telephone: 201-985-8300
Email: Legal@yorkvilleadvisors.com
or at such other address and/ore-mail address and/or to the attention of such
other person as the recipient party has specified by written notice given to
each otherparty three (3) Business Days prior to the effectiveness of such
change. Written confirmation of receipt (i) given by the recipient ofsuch
notice, consent, waiver or other communication, (ii) electronically generated
upon sending the e-mail or (iii) provided by a nationallyrecognized overnight
delivery service, shall be rebuttable evidence of personal service, receipt by
e-mail or receipt from a nationallyrecognized overnight delivery service in
accordance with clause (i), (ii) or (iii) above, respectively. Notwithstanding
the aforesaidprocedures, any notice, request or demand upon the Guarantors in
fact received by any Guarantor shall be sufficient notice or demand asto the
Guarantors.
Section 8.02.
Term
. This Guaranty may not be cancelled, terminated, repudiated or rescinded by
any Guarantor for any reason. This Guarantyshall commence with the date of
this Guaranty and shall continue in full force and effect and be binding upon
the Guarantors until allObligations guaranteed under this Guaranty shall have
been fully paid and satisfied (such that there are no outstanding
Obligations),and there is no commitment on the part of the Beneficiary to make
advances, incur obligations or otherwise give value to the Parent, theBorrower
or the Guarantors, and the Beneficiary shall have given the Guarantors written
notice of the termination of this Guaranty (excludingprovisions that by their
terms survive termination of this Guaranty). The Beneficiary shall not be
obligated to give the Guarantors writtennotice of the termination of this
Guaranty until all of the Obligations have been fully paid and satisfied (such
that there are no outstandingObligations), there is no commitment on the part
of the Beneficiary to make an advance, incur an obligation or otherwise give
value, tothe Parent, the Borrower or the Guarantors, and the Guarantors shall
have given the Beneficiary a written demand requesting terminationof this
Guaranty.
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Section 8.03.
Reinstatement
. Notwithstanding anything to the contrary in this Guaranty or any other
Transaction Document, if any amountreceived by the Beneficiary from the
Parent, the Borrower or any other Obligor or other Person and applied to the
Obligations, or appliedto any indebtedness, obligations or liabilities of the
Parent, the Borrower or any other Obligor under the Transaction Documents, is
atany time annulled, avoided, set aside, rescinded, invalidated, declared to
be fraudulent or preferential or otherwise required to be refundedor repaid,
or if any proceeds of any Collateral or of any other security are required to
be returned by the Beneficiary to any Obligor,its estate, trustee, receiver,
or any other party, under any bankruptcy law, state or federal law, common law
or in equity, then to theextent of such payment, repayment, refund, or return,
this Guaranty shall remain in full force and effect, as fully as if such
paymenthad never been made or, if prior to such payment, repayment, refund or
return this Guaranty shall have been released or terminated, thisGuaranty
shall be reinstated in full force and effect, and such prior release or
termination shall not diminish, release, discharge, impairor otherwise affect
this Guaranty in respect of the amount of such payment, repayment, refund or
return.
Section 8.04.
Beneficiary's Right to Release Obligors
. The Beneficiary from time to time may take or release other security,
mayrelease any party primarily or secondarily liable for any Obligations or
other indebtedness to the Beneficiary, may grant waivers, extensions,renewals
or indulgences with respect to such Obligations or other indebtedness and may
apply any other security therefor held by the Beneficiaryto the satisfaction
of such Obligations or other indebtedness, all without any obligation to give
the Guarantors notice of any thereof,and all without prejudice to any of the
Beneficiary's rights under this Guaranty. Furthermore, the Beneficiary from
time to timemay enter into amendments of Transaction Documents with any party
or parties primarily or secondarily liable for the Obligations, withoutany
obligation to give the Guarantors notice thereof, and without prejudice to any
of the Beneficiary's rights under this Guarantyregardless of whether any
Guarantor is a party to or consents to such amendments.
Section 8.05.
Marshaling
. The Beneficiary shall not be required to marshal any present or future
collateral security for, or other assurancesof payment of, the Obligations or
any of them or to resort to such collateral security or other assurances of
payment in any particularorder. To the extent that it lawfully may, each
Guarantor hereby agrees that it will not invoke any law relating to the
marshaling ofcollateral which might cause delay in or impede the enforcement
of the Beneficiary's rights under this Guaranty or under any otheragreement,
document or instrument creating, evidencing, guarantying, or securing any of
the Obligations or under which any of the Obligationsis outstanding or by
which any of the Obligations is secured or payment thereof is otherwise
assured, and, to the extent that it lawfullymay, each Guarantor hereby waives
the benefit of all such laws.
Section 8.06.
Amendments
. This Guaranty shall not be amended, modified, changed, waived, discharged or
terminated, nor shall any consentbe given under this Guaranty, unless such
amendment, modification, change, waiver, discharge, termination or consent is
in writing andsigned by the Beneficiary.
Section 8.07.
Successors and Assigns
. This Guaranty shall be binding upon the Guarantors and their successors and
assigns, and shall inure,together with the rights and remedies of the
Beneficiary hereunder, to the benefit of the Beneficiary and the Beneficiary's
successors,transferees and assigns. This Guaranty may not be assigned by any
Guarantor without the prior written consent of the Beneficiary.
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Section 8.08.
Additional Assignors
. It is understood and agreed that any Guarantor that desires to become an
assignor hereunder, or isrequired to execute a counterpart of this Guaranty
after the date hereof pursuant to the respective Transaction Documents, shall
becomean assignor hereunder by executing a counterpart hereof and delivering
same to the Beneficiary, or by executing a joinder to this Guaranty,and (y)
taking all actions as specified in this Guaranty as would have been taken by
such assignor had it been an original party to thisGuaranty, in each case with
all documents required above to be delivered to the Beneficiary and with all
documents and actions requiredabove to be taken to the reasonable satisfaction
of the Beneficiary.
Section 8.09.
Severability
. Any provision of this Guaranty that is prohibited by, or unenforceable
under, the laws of any jurisdictionshall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability, without
invalidating the remainingprovisions of this Guaranty, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceablesuch provision in any other jurisdiction. To the extent
permitted by law, each Guarantor hereby waives any provision of law which
rendersany provision of this Guaranty prohibited or unenforceable in any
respect.
Section 8.10.
Counterparts
. This Guaranty may be executed in counterparts (and by different parties
hereto in different counterparts),each of which shall constitute an original,
but all of which when taken together shall constitute a single contract.
Delivery of an executedcounterpart of a signature page of this Guaranty by
facsimile or in electronic (for example, ".pdf" or "tif")format by email or
other electronic transmission shall be effective as delivery of a manually
executed counterpart of this Guaranty. Signaturepages may be detached from
separate counterparts and attached to a single counterpart so that all
signature pages are attached to thesame document. In making proof of this
Guaranty, it shall not be necessary to produce more than one counterpart of
this executed Guaranty.
Section 8.11.
Electronic Signatures
. The words "execution," "signed," "signature," and words of likeimport in
this Guaranty shall be deemed to include electronic signatures or electronic
records, each of which shall be of the same legaleffect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case maybe, to the extent and as provided for in
any applicable Law, including the Federal Electronic Signatures in Global and
National CommerceAct, the New York State Electronic Signatures and Records
Act, or any other similar state laws based on the Uniform Electronic
TransactionsAct.
Section 8.12.
Entire Agreement
. This Guaranty, the other Transaction Documents, and any other document
executed and delivered by the Partieswith this Guaranty or the other
Transaction Documents are a complete and exclusive expression of all the terms
of the matters expressedtherein, and all prior agreements, statements, and
representations, whether written or oral, which relate thereto in any way are
herebysuperseded and shall be given no force and effect.
Section 8.13.
No Third Party Benefit
. The terms and provisions of this Guaranty are for the benefit of the
Beneficiary, and its successorsand assigns, and no third party shall have any
right or cause of action on account hereof.
Section 8.14.
Waiver of Special and Punitive Damages
. Each Guarantor hereby waives to the fullest extent permitted by law all
claims tospecial, indirect, consequential, exemplary and punitive damages in
any lawsuit or other legal action brought by any Guarantor againstthe
Beneficiary, or any of its or their shareholders, members, partners,
directors, managers, trustees, officers, employees, agents oradvisors, in
respect of any claim arising under this Guaranty, the other Transaction
Documents, or any other agreement between the Beneficiaryand the Guarantors at
any time, including any such agreements, whether written or oral, made or
alleged to have been made at any timeprior to the date hereof, and all
agreements made hereafter or otherwise, or in respect of any claims arising
under common law or underany statute of any state or the United States,
whether any such claims be now existing or hereafter arising, now known or
unknown. Inmaking this waiver, the Guarantors acknowledge and agree that they
shall not make any claim for special, indirect, consequential, exemplaryor
punitive damages against the Beneficiary or any of its shareholders, members,
partners, directors, managers, trustees, officers, employees,agents or
advisors.
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Section 8.15.
No Strict Construction
. The parties hereto have participated jointly in the negotiation and drafting
of this Guaranty. Inthe event of any ambiguity or question of intent or
interpretation arises, this Guaranty shall be construed as if drafted jointly
by theparties hereto and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of anyprovisions
of this Guaranty.
Section 8.16.
No Conditions Precedent
. Each Guarantor acknowledges that no unsatisfied conditions precedent to the
effectiveness and enforceabilityof this Guaranty exist as of the date of the
execution of this Guaranty and that the effectiveness and enforceability of
this Guarantyis not in any way conditioned or contingent upon any event,
occurrence, or happening, or upon any condition existing or coming into
existenceeither before or after the execution of this Guaranty, including, but
not limited to, the guaranty of the Parent's or the Borrower'sobligations by
any other Person.
Section 8.17.
Waiver of Subrogation
. Each Guarantor agrees that the Guarantors shall have no right of
subrogation, reimbursement or indemnitywhatsoever, nor any right of recourse
to security, if any, for the Obligations, so long as any amounts payable to
the Beneficiary in respectof the Obligations shall remain outstanding. Each
Guarantor further agrees that the Guarantors shall have no right of
contribution norany other recourse against any other Obligor so long as any
amount payable to the Beneficiary in respect of the Obligations shall
remainoutstanding.
Section 8.18.
Further Assurances
. Each Guarantor shall execute and deliver to the Beneficiary such further
assurances and take such otherfurther actions as the Beneficiary may from time
to time request to further the intent and purpose of this Guaranty and the
other TransactionDocuments and to maintain and protect the rights and remedies
intended to be created in favor of the Beneficiary under this Guaranty andthe
other Transaction Documents.
Section 8.19.
Multiple Guarantors
. If there is more than one Guarantor, (a) each Guarantor shall be jointly and
severally liable for theobligations of the Guarantors under this Guaranty, (b)
the term "Guarantor" whenever used herein shall include each Guarantor,jointly
and severally, with all other Guarantors, and (c) the Beneficiary may (without
notice to or consent of any other Guarantor andwith or without consideration)
release, compromise, settle with, and proceed against any Guarantor and any
security and Collateral givenby such Guarantor without affecting, impairing,
lessening or releasing the obligations of any other Guarantor. Any one or more
successiveor concurrent actions or proceedings may be brought against any or
all of the Guarantors, either in the same action, if any, brought againstthe
Parent, any Borrower or in separate actions or proceedings, as often as the
Beneficiary may deem advisable.
Section 8.20.
Representation by Counsel
. The Guarantors acknowledge that they are and have been represented by
counsel of their choicein connection with the negotiation, preparation,
review, authorization, execution and delivery of this Guaranty and any other
instruments,agreements or matters relating to this Guaranty.
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Section 8.21.
Choice of Law, Venue, Jury Trial Waiver and Judicial Reference
.
(a)
GoverningLaw
. This Guaranty and the rights and obligations of the parties hereunder shall,
in all respects, be governed by, and construed inaccordance with, the laws
(excluding the principles of conflict of laws) of the State of New York (the "
Governing Jurisdiction
")(including Section 5-1401 and Section 5-1402 of the General Obligations Law
of the State of New York), including all matters of construction,validity and
performance.
(b)
Jurisdiction;Venue; Service
.
(i) EachGuarantor hereby irrevocably consents to the non-exclusive personal
jurisdiction of the state courts of the Governing Jurisdiction and,if a basis
for federal jurisdiction exists, the non-exclusive personal jurisdiction of
any United States District Court for the GoverningJurisdiction.
(ii) EachGuarantor agrees that venue shall be proper in any court of the
Governing Jurisdiction selected by the Beneficiary or, if a basis forfederal
jurisdiction exists, in any United States District Court in the Governing
Jurisdiction. Each Guarantor waives any right to objectto the maintenance of
any suit, claim, action, litigation or proceeding of any kind or description,
whether in law or equity, whetherin contract or in tort or otherwise, in any
of the state or federal courts of the Governing Jurisdiction on the basis of
improper venueor inconvenience of forum.
(iii) Anysuit, claim, action, litigation or proceeding of any kind or
description, whether in law or equity, whether in contract or tort or
otherwise,brought by any Guarantor against the Beneficiary arising out of or
based upon this Guaranty or any matter relating to this Guaranty, orany other
Transaction Document, or any Obligations, or any contemplated transaction,
shall be brought in a court only in the GoverningJurisdiction. The Guarantors
shall not file any counterclaim against the Beneficiary in any suit, claim,
action, litigation or proceedingbrought by the Beneficiary against any
Guarantor in a jurisdiction outside of the Governing Jurisdiction unless under
the rules of thecourt in which the Beneficiary brought such suit, claim,
action, litigation or proceeding the counterclaim is mandatory, and not
permissive,and would be considered waived unless filed as a counterclaim in
the suit, claim, action, litigation or proceeding instituted by the
Beneficiaryagainst such Guarantor. Each Guarantor agrees that any forum
outside the Governing Jurisdiction is an inconvenient forum and that anysuit,
claim, action, litigation or proceeding brought by any Guarantor against the
Beneficiary in any court outside the Governing Jurisdictionshould be dismissed
or transferred to a court located in the Governing Jurisdiction. Furthermore,
each Guarantor irrevocably and unconditionallyagrees that it will not bring or
commence any suit, claim, action, litigation or proceeding of any kind or
description, whether in lawor equity, whether in contract or in tort or
otherwise, against the Beneficiary arising out of or based upon this Guaranty
or any matterrelating to this Guaranty, or any other Transaction Document, or
any Obligations, or any contemplated transaction, in any forum otherthan the
courts of the State of New York sitting in New York County, and the United
States District Court of the Southern District ofNew York, and any appellate
court from any thereof, and each of the parties hereto irrevocably and
unconditionally submits to the jurisdictionof such courts and agrees that all
claims in respect of any such suit, claim, action, litigation or proceeding
may be heard and determinedin such New York State Court or, to the fullest
extent permitted by applicable law, in such federal court. Each Guarantor and
the Beneficiaryagree that a final judgment in any such suit, claim, action,
litigation or proceeding shall be conclusive and may be enforced in
otherjurisdictions by suit on the judgment or in any other manner provided by
law.
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(iv) EachGuarantor and the Beneficiary irrevocably consent to the service of
process out of any of the aforementioned courts in any such suit,claim,
action, litigation or proceeding by the mailing of copies thereof by
registered or certified mail postage prepaid, to it at theaddress provided for
notices in this Guaranty, such service to become effective thirty (30) days
after the date of mailing.
(v) Nothingherein shall affect the right of the Beneficiary to serve process
in any other manner permitted by law or to commence legal proceedingsor to
otherwise proceed against any Guarantor or any other Person in the Governing
Jurisdiction or in any other jurisdiction.
(c)
Waiverof Jury Trial
. The Guarantors and the Beneficiary mutually waive all right to trial by jury
of all claims of any kind arising outof or based upon this Guaranty or any
matter relating to this Guaranty, or any other Transaction Document, or any
Obligations, or anycontemplated transaction. The Guarantors and the
Beneficiary acknowledge that this is a waiver of a legal right and that the
Guarantorsand the Beneficiary each make this waiver voluntarily and knowingly
after consultation with counsel of their respective choice. The Guarantorsand
the Beneficiary agree that all such claims shall be tried before a judge of a
court having jurisdiction, without a jury.
[The signature page follows. The remainder of thispage is blank.]
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IN WITNESS WHEREOF
,and intending to be legally bound hereby, the undersigned Guarantors and the
Beneficiary execute this Guaranty as of the date first abovewritten.
GUARANTORS
:
TRILLER HOLD CO LLC
By: /s/ Bobby Sarnevesht
Name: Bobby Sarnevesht
Title: Chief Executive Officer
[
Signature Page to Guaranty Agreement
]
BENEFICIARY
:
YA II PN, LTD.
By: Yorkville Advisors Global, LP
Its: Investment Manger
By: Yorkville Advisors Global II, LLC
Its: General Partner
By: /s/ Troy Rillo, Esq.
Name: Troy Rillo, Esq.
Title: Partner
[
Signature Page to Guaranty Agreement
]
Schedule 3.01
Organization
Guarantor Type of Entity Jurisdiction of Organization
Triller Hold Co LLC Limited liability company Delaware
Schedule 3.14
Upstream Owners
[___]
Exhibit 10.5
Pledge agreement
THIS PLEDGE AGREEMENT
(this "
Agreement
") is made as of April 25, 2024, the parties identified as pledgors on the
signature pages hereto fromtime to time, (each a "
Pledgor
," and collectively, the "
Pledgors
," which terms shall include theirsuccessors and assigns), with and for the
benefit and security of YA II PN, Ltd. (the "
Secured Party
," which term shallinclude its successors and assigns), having a mailing
address at 1012 Springfield Avenue, Mountainside, NJ 07092. The Pledgors and
theSecured Party are sometimes referred to herein individually as a "
Party
" and collectively as the "
Parties
."
RECITALS
A. ABGAGroup Holding Limited, a British Virgin Island business company, (the "
Parent
") and Triller Corp., a Delaware corporation(the "
Borrower
"), have entered into that certain Amended and Restated Standby Equity
Purchase Agreement, dated as ofApril 25, 2024 (as amended, restated,
supplemented or otherwise modified from time to time, the "
SEPA
"), pursuant towhich the Secured Party has agreed to advance to the Borrower a
Pre-Paid Advance (the "
Pre-Paid Advance
") in the originalprincipal amount of $8.51 million and certain additional
Advances (which, together with the Pre-Paid Advance, are collectively
referredto as the "
Advances
") on the terms, and subject to the conditions, of the SEPA.
B. OnApril 16, 2024, Parent entered into that certain Agreement and Plan of
Merger (as may be amended, supplemented or otherwise modified fromtime to
time, the "
Merger Agreement
"), by and between Parent, its wholly owned subsidiary AGBA Social Inc. ("
MergerSub
"), the Borrower and Bobby Sarnevesht, solely as representative of the
Borrower's stockholders. Pursuant to the MergerAgreement, (a) the Borrower
will complete a reorganization (the "
Triller Reorganization
") with Triller Hold Co LLC("
Triller LLC
"), such that Triller LLC will reorganize into the Borrower as a Delaware
Corporation, (b) Parent willdomesticate to the United States as a Delaware
corporation (the "
AGBA Domestication
"), pursuant to which, among otherthings, all Parent's ordinary shares, par
value $0.001 per share ("
AGBA Ordinary Shares
") will automaticallyconvert into the same number of shares of common stock,
par value $0.001 per share of the Parent (the "
Common Shares
")and (c) after giving effect to the Triller Reorganization and the AGBA
Domestication, Merger Sub will be merged into the Borrower (the"
Merger
"), with the Borrower surviving the Merger and becoming a wholly owned
subsidiary of Parent.
C. OnApril 18, 2024, the Triller Reorganization was consummated.
D. Onthe date hereof, Parent, Borrower and Secured Party are entering into the
SEPA pursuant to which, among other things the Parent shallautomatically
assume, on a joint and several basis with the Borrower, all of the Borrower's
obligations under the SEPA as a conditionof and concurrently with the
consummation of the Merger, including, without limitation, the Advances.
E. Itis a condition to the Secured Party's entering into the SEPA that the
Pledgors (including, without limitation, the Borrower) enterinto this
Agreement, and each Pledgor has agreed to make this Agreement, for the benefit
of the Secured Party, to secure each Pledgor'sobligations, indebtedness and
liabilities to the Secured Party, whether now existing or hereafter created,
arising or acquired.
NOW, THEREFORE
, inconsideration of the foregoing, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged,the Pledgors
hereby make the following covenants, agreements, representations and
warranties with and for the benefit and security ofthe Secured Party:
ArticleI
CONSTRUCTION AND DEFINED TERMS
Section 1.01.
Recitals
.The recitals to this Agreement are a material and substantive part of this
Agreement. The recitals are incorporated herein and made partof this Agreement.
Section 1.02.
DefinedTerms
. Capitalized terms used in this Agreement that are not defined in this
Agreement but are defined in Article 8 of the UCC orArticle 9 of the UCC,
shall have the meanings given to such terms in Article 8 of the UCC or Article
9 of the UCC, as the case may be.Capitalized terms used in this Agreement that
are not defined in this Agreement but are defined in the SEPA or the Advances,
shall havethe meanings given to such terms in the SEPA or the Advances, as the
case may be. As used in this Agreement, the following terms havethe following
meanings:
"
Account
"As defined in Article 9.
"
Account Debtor
"As defined in Article 9.
"
Applicable Jurisdiction
"For any Organization, the State or other jurisdiction under the laws of which
such Organization is formed, organized, created or incorporated,as the case
may be.
"
Article 8
"Article 8 (or Chapter 8, Division 8 or Title 8, as the case may be) of the
UCC, also known and cited as Uniform Commercial Code -Investment Securities,
as adopted and in effect in the Governing Jurisdiction, or in any Applicable
Jurisdiction, from time to time.
"
Article 8 Matter
"Any proposal, action, decision, determination, resolution, consideration,
debate, election or other matter by an Issuer or its equityholders to cause,
or that causes or results in, its limited liability company, partnership or
other equity interests, as applicable, orany of them, be, or cease to be, a
"security" as defined in and governed by Article 8 in the Issuer's Applicable
Jurisdiction,and all other matters related to any such proposal, action,
decision, determination, resolution, consideration, debate, election or
othermatter, or the contemplation of any thereof.
"
Article 8 Opt-InSecurity
" An interest in a partnership or a limited liability company the terms of
which expressly provide that it is a securitygoverned by Article 8 (or Chapter
8, Division 8 or Title 8, as the case may be) of the Uniform Commercial Code
of the Applicable Jurisdictionof such partnership or limited liability company.
"
Article 9
"Article 9 (or Chapter 9, Division 9 or Title 9, as the case may be) of the
UCC, also known and cited as Uniform Commercial Code -Secured Transactions, as
adopted and in effect in the Governing Jurisdiction from time to time.
"
Bank
"As defined in Article 9.
"
Certificated OwnershipDocumentation
" As to any Issuer, any certificate (including any security certificate, stock
certificate or unit certificate),instrument, note (including any promissory
note, bond, debenture or other instrument), warrant, document, or other
tangible record thatrepresents or evidences any Ownership Interest (or that is
convertible into any Ownership Interest) in or with respect to such Issuer.
"
Collateral
"Any Property in which the Secured Party has a security interest or other lien
that secures any of the Obligations, including the PledgedCollateral and any
other Property that constitutes collateral under any other Transaction
Document.
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"
Collateral Account
"A Deposit Account that is either (a) maintained with the Secured Party, if
the Secured Party is a Bank, (b) subject to a written depositaccount control
agreement by and among a Pledgor, the Secured Party and the Bank with which
the Deposit Account is maintained, which depositaccount control agreement
shall contain such provisions as the Secured Party may deem necessary or
appropriate for the perfection of theSecured Party's first priority security
interest in the Collateral Account by control and for the protection of the
Secured Party'srights to the Collateral, or (c) a Deposit Account with respect
to which the Secured Party is the Bank's customer.
"
Collateral Records
"Books and records relating to the Pledged Collateral or any portion of the
Pledged Collateral.
"
Default
"An event, occurrence, circumstance, act or failure to act which (a)
constitutes an Event of Default or (b) with the giving of notice and/orthe
passage of time would become an Event of Default.
"
Dividends
"Any monies or other Property paid (in the form of a dividend, distribution or
otherwise), distributed or loaned by an Issuer to any Personin respect of any
Ownership Interest that such Person holds in such Issuer.
"
Event of Default
"As defined in Section 7.01 of this Agreement.
"
Guaranty
"That certain Guaranty Agreement, dated as of April [_], 2024, made by the
party thereto from time to time in favor of the Secured Party,as may be
amended, restated, supplemented or otherwise modified from time to time,
including pursuant to joinders thereto.
"
General Intangible
"As defined in Article 9.
"
Governing Jurisdiction
"As defined in Section 10.20 of this Agreement.
"
Instrument
"As defined in Article 9.
"
Investment Property
"As defined in Article 9.
"
Issuer
"Each Organization that is identified as an Issuer on
Schedule 1
.
"
Lien Proceedings
"Any action taken (including self-help) or proceeding (judicial or otherwise)
commenced by any Person other than the Secured Party forthe purpose of
enforcing or protecting any actual or alleged security interest in, or other
lien on, any of the Pledged Collateral, andincluding any foreclosure,
repossession, attachment, execution or other process regarding any of the
Pledged Collateral.
"
Material AdverseEffect
" A material adverse effect on (a) any Pledgor's, or any other Obligor's, or
any Issuer's, Property,(b) any Pledgor's, or any other Obligor's, or any
Issuer's, business, operations, condition (financial or otherwise),prospects,
assets, liabilities or capitalization, (c) any Pledgor's ability to pay or
perform its obligations under this Agreement,or any Pledgor's or any other
Obligor's ability to pay or perform its obligations under any other
Transaction Document, (d)the validity or enforceability of this Agreement or
any other Transaction Document, or (e) any rights or remedies of the Secured
Partyunder this Agreement or any other Transaction Document.
"
Obligor
"Each Pledgor and each other Person that is obligated for any of the
Obligations, whether as a borrower, guarantor, customer, purchaser,lessee,
licensee, applicant, counterparty, debtor or other obligor.
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"
Organization
"A corporation, an association, a limited liability company, a partnership, a
joint venture, an organization, a business, a joint-stockcompany, a trust, an
unincorporated organization or any other entity.
"
Organizational Documents
"means (i) the articles or certificate of incorporation and the bylaws of a
corporation, (ii) the partnership agreement and any statementof partnership of
a general partnership, (iii) the limited partnership agreement and the
certificate of limited partnership of a limitedpartnership, (iv) the limited
liability company agreement and the articles or certificate of formation of a
limited liability company,(v) any charter or similar document adopted or filed
in connection with the creation, formation or organization of a Person and
(vi) anyamendment to any of the foregoing.
"
Other Lien Law
"Any statute or other law of any jurisdiction, whether federal, state, local
or foreign, other than the UCC, that may govern or apply tothe creation,
existence, perfection, priority, preservation, registration, filing,
recording, publication or enforcement of a securityinterest or lien in or on
any of the Pledged Collateral or to the assignment or payment of any monies
due thereunder or other proceedsthereof.
"
Ownership Documentation
"As applicable to any Pledgor's Ownership Interests in any Issuer, any
Certificated Ownership Documentation or Uncertificated OwnershipDocumentation.
"
Ownership Interest
"Any of the following rights, benefits and interests in, to, or issued by, any
Issuer at any time:
(a) anyEquity Interest;
(b) any"equity security" (as such term is defined in Rule 3a11-1 of the
General Rules and Regulations promulgated by the Securitiesand Exchange
Commission under the Securities Exchange Act of 1934);
(c) anystockholder interests, shareholder interests, shares of common stock,
shares of preferred stock, shares of special stock, general partnerpartnership
interests, limited partner partnership interests, limited liability company
interests, membership interests, economic interests,transferable interests,
distributional interests, unit interests, percentage interests, profits
interests or beneficial interests, andany rights and benefits associated with
or related to any of the foregoing;
(d) any(i) rights to share in the profits and losses of any Issuer, (ii)
rights to any payments, distributions and/or dividends byany Issuer of its
income or assets from whatever source, (iii) rights to receive allocations of
income, gain, loss, deduction, creditor other items, (iv) rights to manage or
control or participate in the management or control of any Issuer, and any
other rightswith respect to any Issuer that are held or may be held, by
agreement or operation of law, by the owners of such Issuer, including
withoutlimitation the right to exercise any or all voting, consensual and
other powers of ownership pertaining thereto, (v) redemption rights,and (vi)
conversion rights;
(e) anygovernance rights, inspection rights, rights to receive or demand
access to information concerning any Issuer or its books and records,rights to
receive notice of, vote on, or consent to matters involving the internal
affairs of any Issuer, rights to receive notice ofand participate in meetings,
and other noneconomic rights, benefits and interests;
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(f) anyAccount, General Intangible, Instrument, Investment Property or other
Property that may be convertible into or exchangeable for any OwnershipInterests
described in preceding clauses (a), (b), (c), (d) and (e); and
(g) withrespect to the Ownership Interests described in preceding clauses (a),
(b), (c), (d), (e) and (f), including, without limitation, anyand all thereof
whether voting or nonvoting, certificated or uncertificated, tangible or
intangible, of any class or series, or evidencedby any certificate,
instrument, agreement, document or other record, and whether constituting
Accounts, General Intangibles, Instrumentsor Investment Property or any other
type of Property.
"
Person
"means an individual, partnership, corporation, business trust, limited
liability company, limited liability partnership, joint stock company,trust,
unincorporated association, joint venture or other entity.
"
Pledged Collateral
"As defined in Section 2.01.
"
Pledged OwnershipInterests
" As defined in Section 2.01.
"
Proceeds
"As defined in Article 9.
"
Promissory Note
"As defined in Article 9.
"
Property
"Any property of any kind whatsoever, whether real, personal, or mixed, and
whether tangible or intangible, and any right, title or interestin or to
property of any kind whatsoever, whether real, personal, or mixed, and whether
tangible or intangible.
"
Registered Organization
"As defined in Article 9.
"
State
"Any of the following: (a) a state of the United States of America, or (b) the
District of Columbia.
"
Succeeding Person
"With respect to any Person, any other Person that is a successor to such
Person at any time, whether by (or pursuant to or in accordancewith) any
merger, combination, consolidation, amalgamation, reincorporation,
reorganization, divestiture, spin-off, agreement, operationof law, order of
any governmental authority, or otherwise.
"
Supporting Obligations
"As defined in Article 9.
"
UCC
" TheUniform Commercial Code, as adopted and in effect in the Governing
Jurisdiction, as it may be revised from time to time; provided thatif, and to
the extent that, the Uniform Commercial Code of another jurisdiction governs
the perfection, the effect of perfection or non-perfection,or the priority of
a security interest created under this Agreement, then the term "UCC" shall
refer to the Uniform CommercialCode of such other jurisdiction to the extent
applicable to the perfection, the effect of perfection or non-perfection, or
the priorityof such security interest.
"
Uncertificated OwnershipDocumentation
" As to any Issuer, any book entry or other record in any medium that
represents or evidences any Ownership Interest(or that is convertible into any
Ownership Interest) in or with respect to such Issuer and does not constitute
Certificated OwnershipDocumentation.
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Section 1.03.
Articleand Section Headings
. Article and Section headings and captions in this Agreement are for
convenience only and shall not affect theconstruction or interpretation of
this Agreement.
Section 1.04.
Schedulesand Exhibits
. Unless a Schedule or Exhibit is referred to in this Agreement as being a
Schedule or Exhibit to another TransactionDocument, the references in this
Agreement to specific Schedules and Exhibits shall be read as references to
such specific Schedules orExhibits attached, or intended to be attached, to
this Agreement and any counterpart of this Agreement and regardless of whether
theyare in fact attached to this Agreement, and including any amendments,
supplements and replacements to such Schedules or Exhibits fromtime to time.
Section 1.05.
OtherTerms
. Terms used in this Agreement shall be applicable to the singular and plural,
and references to gender shall include all genders.The terms "
herein
," "
hereof
," "
hereto
," and "
hereunder
" andsimilar terms refer to this Agreement as a whole and not to any
particular Article, Section, subsection or clause in this Agreement.
Unlessotherwise expressly limited herein (and except where used in the
conjunction of time periods or where used in the context of "doesnot include,"
"shall not include," "not included" or "not including"), the terms "
include
"and "
including
," shall be read to mean "include, without limitation," or "including, without
limitation,"as the case may be.
ArticleII
SECURITY INTEREST
Section 2.01.
Grantof Security Interest
. To secure the full and timely payment, performance and satisfaction of the
Obligations, including the obligations,indebtedness and liabilities of the
Pledgors to the Secured Party under the Transaction Documents, each Pledgor
hereby pledges to theSecured Party, and grants to the Secured Party a security
interest in, all of each Pledgor's now owned and hereafter acquired, createdor
arising Property described as follows (all of which Property being referred to
herein as the "
Pledged Collateral
"):
(a)
allof each Pledgor's Ownership Interests in each Issuer and in each Succeeding
Person thereto (the "
Pledged Ownership Interests
"),including (A) the Ownership Interests listed on
Schedule 1
(the "
Scheduled Ownership Interests
") andany other Ownership Interests in any Issuer or Succeeding Person that
are acquired by any Pledgor in any manner at any time, (B) any InvestmentPropert
y that constitutes, represents or evidences the Pledged Ownership Interests at
any time, (C) any Accounts, General Intangiblesor Instruments that constitute,
represent or evidence the Pledged Ownership Interests at any time, and (D) any
Supporting Obligationsfor the Pledged Ownership Interests, and all agreements,
instruments or other documents relating to such Supporting Obligations, at
anytime;
(b)
allof each Pledgor's Ownership Documentation, including any thereof listed on
any Schedule to this Agreement, that evidences, representsor otherwise relates
to the Pledged Ownership Interests at any time;
(c)
allof each Pledgor's rights, benefits and interests associated with or related
to the Pledged Ownership Interests under each Issuer'sOrganizational Documents
and the law under which each Issuer is incorporated, organized or formed;
(d)
allDividends, interest payments, cash and other Property from time to time
received, receivable or otherwise distributed in respect of, orin exchange
for, or in respect of the conversion of, any or all of the forgoing Pledged
Collateral at any time;
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(e)
allclaims of any kind which the Pledgor now has or may in the future acquire
against any Issuer or any Succeeding Person thereto in the Pledgor'scapacity
as a shareholder, member, partner, beneficiary or other equity holder in such
Issuer or Succeeding Person;
(f)
allCollateral Accounts;
(g)
allCollateral Records; and
(h)
allProceeds and products of the foregoing Pledged Collateral.
Section 2.02.
Rightsas Secured Party
.
The Secured Party shall have all of the rights and remedies of a secured party
under the UCC, under any OtherLien Laws, and under other applicable law and in
equity, with respect to the Pledged Collateral.
Section 2.03.
No Assumptionof Liability
.
The Secured Party has not assumed, and the Secured Party shall not have any
liability to any Issuer or any otherPerson for, any indebtedness or other
obligation or liability that any Pledgor has or may have to any Issuer or any
other Person withrespect to any of the Pledged Collateral, whether arising
under Ownership Documentation, Organizational Documents, or otherwise.
Nothingin this Agreement shall relieve the Pledgor, nor shall the exercise of
the Secured Party's rights and remedies under this Agreementrelieve the
Pledgor, from any of the Pledgor's indebtedness or other obligations or
liabilities, whether for payment or performance,in respect of any of the
Pledged Collateral.
Section 2.04.
Perfectionof Security Interests
.
(a)
UCCFinancing Statements
. The Secured Party is authorized and shall be entitled to prepare and file
one or more UCC financing statements,identifying the Secured Party as the
secured party, and identifying the Pledgors as the debtors, in such place or
places as the SecuredParty may deem necessary or advisable in order to perfect
the Secured Party's security interests in the Pledged Collateral. AnyUCC
financing statement filed to perfect the Secured Party's security interests in
the Pledged Collateral may, at the Secured Party'soption, describe or indicate
the Pledged Collateral in the manner that the Pledged Collateral is described
in this Agreement, or as "allassets" of the Pledgors, or as "all personal
property" of the Pledgors, or by any other description or indication ofthe
Pledged Collateral that may be sufficient for a financing statement under the
UCC.
(b)
CertificatedSecurities
. All of the Certificated Ownership Documentation representing or evidencing
the Pledged Collateral shall promptly be deliveredby the Pledgors to the
Secured Party (or the Pledgors shall cause such Certificated Ownership
Documentation to be delivered to the SecuredParty) in suitable form for
transfer by delivery, or accompanied by duly executed, but undated, stock
powers or other instruments of transferor assignment, in blank, all in form
and substance satisfactory to the Secured Party, to be held by the Secured
Party under this Agreement.Without limiting the generality of the preceding
sentence, if any Pledgor receives or is entitled to receive any Certificated
OwnershipDocumentation issued by any Issuer at any time (including, for
example, any thereof issued in connection with any interest in a limitedpartners
hip or a limited liability company becoming an Article 8 Opt-In Security), the
Pledgors shall promptly notify the Secured Partythereof and deliver such
Certificated Ownership Documentation to the Secured Party in suitable form for
transfer by delivery, or accompaniedby duly executed, but undated, stock
powers or other instruments of transfer or assignment, in blank, all in form
and substance satisfactoryto the Secured Party, to be held by the Secured
Party as part of the Pledged Collateral under this Agreement.
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(c)
UncertificatedSecurities
. Promptly upon the Secured Party's request from time to time, the Pledgors
shall execute and deliver to the SecuredParty, and shall cause any Issuer of
an Uncertificated Security, and any other appropriate party, to execute and
deliver to the SecuredParty, such control agreements as the Secured Party may
request relating to any Pledged Collateral that is an Uncertificated
Securityfor purposes of perfecting the Secured Party's security interest
therein by control, which control agreements shall contain suchprovisions as
the Secured Party may deem necessary or appropriate for the protection of the
Secured Party's rights to such PledgedCollateral. The Secured Party shall have
the right to exercise exclusive control of each such Uncertificated Security
and to notify theIssuer thereof upon and after the occurrence of a Default or
an Event of Default.
(d)
Notificationof Pledge and Right to Exchange
. The Secured Party shall have the right, at any time in the Secured Party's
discretion and withoutnotice to any Pledgor, to notify any Person of the
pledge of the Pledged Collateral to the Secured Party, and to transfer to or
registerin the name of the Secured Party, or any of the Secured Party's
nominees, any or all of the Pledged Collateral, subject only tothe Pledgor's
revocable rights specified in Section 4.01(a). In addition, the Secured Party
shall have the right at any time toexchange certificates or instruments
representing or evidencing Pledged Collateral for certificates or instruments
of smaller or largerdenominations.
(e)
CertainPayments
. Upon the occurrence, and during the continuance, of any Event of Default,
the Secured Party shall have the right to instructthe Issuers to pay
Dividends, as may be lawfully allowed and paid, and make other distributions
with respect to the Pledged Collateraldirectly to the Secured Party. Upon
receipt of any such Dividends or other distributions the Secured Party shall
be entitled to hold andapply such amounts as part of the Pledged Collateral
under this Agreement.
Section 2.05.
Possessionof Collateral
. The Secured Party's sole duty with respect to the custody, safekeeping and
preservation of any Pledged Collateralin its possession shall be to deal with
such Pledged Collateral in the same manner as the Secured Party deals with
similar Property forits own account. If the Secured Party has possession of
any of the Pledged Collateral the Secured Party shall not be obligated
ascertainor take any action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relative to the Pledged Collateralor to
take any necessary steps to preserve rights against prior parties.
Section 2.06.
Powerof Attorney
. Each Pledgor hereby appoints the Secured Party as such Pledgor's
attorney-in-fact, with power of substitution,which appointment is irrevocable
and coupled with an interest, to do each of the following in the name of such
Pledgor or in the nameof the Secured Party or otherwise, for the use and
benefit of the Secured Party, but at the cost and expense of the Pledgors, and
withoutnotice to the Pledgors: (i) notify the Issuers and other Persons
obligated to make payments in respect of any of the Pledged Collateralto make
payments of Dividends, distributions, principal, interest, or other amounts in
respect of the Pledged Collateral directly to theSecured Party; (ii) take
control of the cash and non-cash Proceeds of any of the Pledged Collateral;
(iii) renew, extend or compromiseany of the Pledged Collateral or deal with
the same as the Secured Party may deem advisable; (iv) release, exchange,
convert, substitute,or surrender all or any part of the Pledged Collateral;
(v) remove from any Pledgor's places of business any or all of such
Pledgor'sbooks and records relating to the Pledged Collateral without cost or
expense to the Secured Party; (vi) make such use of any Pledgor'splaces of
business as may be reasonably necessary to administer, control and collect the
Pledged Collateral; (vii) demand, collect, givereceipt for, and give renewals,
extensions, discharges and releases of any of the Pledged Collateral; (viii)
institute and prosecute legaland equitable proceedings to enforce collection
of, or realize upon, any of the Pledged Collateral; (ix) settle, renew,
extend, compromise,compound, exchange or adjust claims with respect to any of
the Pledged Collateral or any legal proceedings brought with respect
thereto;(x) indorse the name of any Pledgor upon any bank check or other item
of payment relating to the Pledged Collateral or any Dividend, distribution,prin
cipal, interest, or other amount, or upon any proof of claim in bankruptcy
against any Account Debtor or any Person obligated to paya Promissory Note or
other Instrument; and (xi) receive and open all mail addressed to any Pledgor
and notify the postal authorities tochange the address for the delivery of
mail to any Pledgor to such address as the Secured Party may designate. The
Secured Party agreesthat it shall not exercise any power or authority granted
under this power of attorney unless a Default has occurred and then only
duringthe pendency of such Default thereafter. The power of attorney given to
the Secured Party in this Section is in addition to any otherpower of attorney
that may be granted to the Secured Party under this Agreement or any other
Transaction Document. Neither the SecuredParty nor any of the Secured Party's
affiliates, owners, directors, managers, officers, employees, agents or
representatives shallbe responsible or liable to any Pledgor for any act or
failure to act under any power of attorney or otherwise, except in respect of
damagesattributable solely to its or their own gross negligence or willful
misconduct as finally determined by a court of competent jurisdiction,nor
shall they be responsible or liable for any indirect, special, consequential,
exemplary or punitive damages of any kind.
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Section 2.07.
Powersfor Secured Party's Benefit
. The powers conferred on the Secured Party under this Agreement are solely to
protect the SecuredParty's interest in the Pledged Collateral and shall not
impose any duty upon the Secured Party to exercise such powers. The
SecuredParty has no obligation to preserve rights to the Pledged Collateral
against any other Persons.
Section 2.08.
OtherLien Laws
.
Without limiting the legal operation and effect of any other provision of this
Agreement or any other TransactionDocument, if (a) any of the Pledged
Collateral is a type of Property as to which the creation, existence,
perfection, priority, preservation,registration, filing, recording,
publication or enforcement of a security interest or other lien therein or
thereon, or the Secured Party'sright to receive monies or other proceeds
thereof or therefrom, is or may be subject to or governed by any Other Lien
Law, whether inaddition to the UCC or other than the UCC, or (b) any of the
Pledged Collateral is or may be deemed to be subject to any Other Lien
Lawbased on (i) the location of such Pledged Collateral, (ii) the law
governing the creation or existence of such Pledged Collateral, (iii)the
identity or location of any Pledgor or the jurisdiction where any Pledgor is
incorporated, organized or formed, (iv) the identityor location of any Issuer
or the jurisdiction where any Issuer is incorporated, organized or formed, or
(v) any other facts or circumstances,then promptly upon the Secured Party's
request, and at the Pledgor's cost and expense, the Pledgors shall execute and
deliverto the Secured Party such collateral documents, and other further
assurances, and take such other further actions, as the Secured Partymay from
time to time request to effect and confirm the creation, existence,
perfection, priority, preservation, registration, filing,recording and
enforceability of the Secured Party's security interest and lien in and on
such Pledged Collateral, and the SecuredParty's right to receive monies and
other proceeds thereof or therefrom, in accordance with such Other Lien Law.
ArticleIII
REPRESENTATIONS AND WARRANTIES
Each Pledgor makes the followingrepresentations and warranties to the Secured
Party as of the date of this Agreement:
Section 3.01.
Identity
.Each Pledgor (a) is (i) a corporation, limited liability company, limited
partnership or statutory trust duly organized or formed, andvalidly existing
and in good standing under the Laws of the jurisdictions set forth on
Annex I
and (ii) a Registered Organizationand (b) has the corporate, limited liability
company, limited partnership or trust power and authority to execute, deliver,
and performits obligations under, this Agreement. Each Pledgor's chief
executive office is located at the addresses set forth on
AnnexI
.
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Section 3.02.
Execution,Delivery and Enforceability
. The execution and delivery of this Agreement by the Pledgors have been duly
authorized by all requisitecorporate, limited liability company, limited
partnership or trust action, as applicable. This Agreement has been duly and
validly executedand delivered by each Pledgor. This Agreement constitutes each
Pledgor's legal, valid and binding obligation, enforceable againsteach Pledgor
in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other Laws affectingthe rights of creditors
generally and the exercise of judicial discretion in accordance with general
principles of equity.
Section 3.03.
Consentsand Approvals
. Other than any consents or approvals received by the date of execution
hereof, the execution, delivery and performanceof this Agreement by the
Pledgors do not require the consent or approval of any Issuer or any other
Person and will not (a) contraveneany provision of law, or any order of any
court or other agency of government binding upon any Pledgor or any Pledgor's
Property,(b) contravene, be in conflict with or result in the breach or
default of (with due notice or lapse of time or both) the charter,
bylaws,operating agreement, partnership agreement or other Organizational
Documents of any Pledgor, (c) contravene, be in conflict with, resultin the
breach or default of (with due notice or lapse of time or both) any indenture,
agreement or other instrument binding upon the Pledgorsor their Property, or
(d) result in the creation or imposition of any lien or security interest upon
any Property of the Pledgors, otherthan any lien or security interest in favor
of the Secured Party under this Agreement.
Section 3.04.
Ownershipof Property; Priority of Security Interest
. Each Pledgor is the sole and exclusive owner of, and has good and
merchantable title to,the entire and unencumbered right, title and interest in
the Pledged Collateral pledged by such Pledgor under this Agreement, free
fromany lien, security interest, adverse claim or encumbrance other than those
created under this Agreement in favor of the Secured Party.Each Pledgor has
the right, power and authority to pledge and assign the Pledged Collateral,
and grant a security interest in the PledgedCollateral, to the Secured Party
in the manner done under this Agreement. This Agreement creates for the
Secured Party a valid and enforceablesecurity interest in the Pledged
Collateral, securing the full and timely payment, performance and satisfaction
of the Obligations, andeach Pledgor's indebtedness, obligations and
liabilities under the Transaction Documents, which security interest, when
perfected,shall constitute a first priority perfected security interest in
favor of the Secured Party. Each Pledgor hereby warrants and shall defendthe
title to the Pledged Collateral, whether now owned or hereafter acquired, unto
and for the benefit of the Secured Party and the SecuredParty's successors and
assigns, against all liens, security interests, adverse claims, encumbrances
and demands of any Person whatsoever.
Section 3.05.
Issuers
.The correct and complete legal name of each Issuer, and the Applicable
Jurisdiction of each Issuer, is set forth on
Schedule 1
.Except as otherwise stated on
Schedule 1
, each Issuer has issued to the Pledgors the Ownership Interests that are
shownon
Schedule 1
with respect to such Issuer and each certificate or other instrument described
on
Schedule 1
as having been issued by such Issuer.
Section 3.06.
OwnershipInterests
. Each Pledged Ownership Interest has been duly authorized and validly issued
by the Issuer thereof and is fully paid andnonassessable. With respect to each
Pledged Ownership Interest as to which a Pledgor is the initial holder, such
Pledgor has on or beforethe date of this Agreement made all of the Pledgor's
required contributions to each Issuer, or otherwise fully paid each Issuer,for
the Pledgor's Ownership Interests in such Issuer, which contributions or
payments were made in cash or property or in servicesperformed on or before
the date of this Agreement, excepting any of the Pledgor's obligations that
are outstanding on the date ofthis Agreement in the form of promissory notes,
or other commitments or obligations to contribute cash or property or to
perform services,that are specifically described on
Schedule 2
. With respect to any Pledged Ownership Interest as to which a Personother
than any Pledgor was the initial holder, neither the Pledgors nor any other
Person is obligated to make any contribution or paymentin respect of such
Pledged Ownership Interest to the Issuer of such Pledged Ownership Interest,
excepting any obligations that are outstandingon the date of this Agreement in
the form of promissory notes, or other commitments or obligations to
contribute cash or property or toperform services, that are specifically
described on
Schedule 2
.
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Section 3.07.
IssuerOrganizational Documents
. Attached hereto as
Schedule 3
is a complete list of the Organizational Documents, includingany amendments
thereto, of each Issuer. The Pledgors have delivered to the Secured Party
true, accurate and complete copies of the OrganizationalDocuments listed on
Schedule 3
. The Organizational Documents for each Issuer are the valid and legally
binding obligationsof the parties thereto and are enforceable in accordance
with their terms. There is no agreement diminishing or impairing the
obligationof any party under the Organizational Documents of any Issuer to
perform fully its obligations in strict accordance with the terms
andprovisions of such Organizational Documents.
Section 3.08.
InvestmentCompany Securities and Traded Securities
. With respect to any Issuers that are limited liability companies or
partnerships, none ofthe Pledged Ownership Interests in such Issuers are dealt
in or traded on securities exchanges or in securities markets and none of
thePledged Ownership Interests in such Issuers are investment company
securities.
ArticleIV
VOTING; DIVIDENDS
Section 4.01.
Voting;Dividends
.
(a)
Solong as no Event of Default shall have occurred and be continuing, and
except as may be otherwise provided in this Agreement or in anyother
Transaction Document:
(i)
exceptas provided in Section 4.01(e), the Pledgors shall be entitled to
exercise any and all voting rights and other consensual rights pertainingto
the Pledged Collateral or any part thereof for any purpose not inconsistent
with the terms of this Agreement and the other TransactionDocuments; provided
that (A) the Pledgors shall give the Secured Party at least ten (10) days'
prior written notice of the mannerin which any Pledgor intends to exercise, or
the reasons for refraining from exercising, any such voting right or other
consensual rightand (B) the Pledgors shall not exercise or refrain from
exercising any such voting right or other consensual right if, in the
SecuredParty's judgment, such action or inaction would have a material adverse
effect on the value of the Pledged Collateral or any partthereof and the
Secured Party so notifies the Pledgors within ten (10) days after having
received such written notice from the Pledgors;
(ii)
thePledgors shall be entitled to receive and retain cash Dividends paid in
respect of Pledged Collateral to the extent, and only to the extent,that the
Pledgor's receipt and retention of such cash Dividends are expressly permitted
by, and otherwise paid in accordance with,the terms and conditions of the
Transaction Documents, or are otherwise expressly consented to by the Secured
Party in writing, provided,however, that any and all (A) Dividends paid or
payable other than in cash in respect of any Pledged Collateral, (B)
instruments and otherproperty received, receivable or otherwise distributed in
respect of, or in exchange for, any Pledged Collateral, (C) Dividends paid
orpayable in cash in respect of any Pledged Collateral in connection with a
partial or total liquidation or dissolution or in connectionwith a reduction
of capital, capital surplus or paid-in-surplus, (D) cash paid, payable or
otherwise distributed in respect of principalof, or in redemption of, or in
exchange for, any Pledged Collateral, and (E) Dividends paid or payable in
violation of any Pledgor'sor any Issuer's agreement with the Secured Party
that such Dividends not be paid, shall forthwith be delivered to the Secured
Partyto hold as Pledged Collateral and shall, if received by any Pledgor, be
received in trust for the benefit of the Secured Party, be segregatedfrom the
other property or funds of the Pledgors, and be forthwith delivered to the
Secured Party as Pledged Collateral in the same formas so received with any
necessary indorsement; and
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(iii)
theSecured Party shall execute and deliver (or cause to be executed and
delivered) to the Pledgors all such proxies and other instrumentsas the
Pledgors may reasonably request for the purpose of enabling the Pledgors to
exercise the voting rights and other consensual rightswhich they are entitled
to exercise pursuant to clause (i) of this Section 4.01(a) and to receive any
Dividend that they are authorizedto receive and retain pursuant to clause (ii)
of this Section 4.01(a).
(b)
Uponthe occurrence, and during the continuance, of any Event of Default:
(i)
allrights of the Pledgors to exercise the voting rights and other consensual
rights which they would otherwise be entitled to exercise pursuantto Section
4.01(a)(i) and to receive such Dividends as the Pledgors would otherwise be
authorized to receive and retain pursuant to Section4.01(a)(ii) shall cease,
and all such voting rights and other consensual rights shall thereupon become
vested in the Secured Party whoshall thereupon have the sole right to exercise
such voting rights and other consensual rights and to receive and hold as
Pledged Collateralsuch Dividends; and
(ii)
allDividends which are received by any Pledgor contrary to the provisions of
clause (i) of this Section 4.01(b) or contrary to any otheragreement with the
Secured Party shall be received in trust for the benefit of the Secured Party,
shall be segregated from other fundsof the Pledgors, and shall be forthwith
paid over to the Secured Party as Pledged Collateral in the same form as so
received with anynecessary indorsement.
(c)
TheSecured Party shall be entitled to deposit any Dividends and other payments
received by the Secured Party pursuant to this Agreement intoany Collateral
Account, and upon the occurrence, and during the continuance, of any Event of
Default, the Secured Party shall be entitledto apply the collected balances in
each Collateral Account, or any portion thereof, at any time and from time to
time, against the outstandingbalance of any Obligations or other indebtedness,
liabilities or obligations secured by this Agreement in such order as the
Secured Partymay determine in the Secured Party's discretion.
(d)
Inthe event that any Dividend, distribution, principal, interest, or other
amount is paid to any Pledgor in respect of any Pledged Collateral,the
Pledgors shall give the Secured Party written notice of the payment of such
Dividend, distribution, principal, interest, or otheramount within two (2)
Business Days after the payment thereof to any Pledgor.
(e)
ThePledgors shall not exercise any voting right or other consensual right with
respect to any Article 8 Matter at any time without the SecuredParty's prior
written consent. If a vote or any other action on any Article 8 Matter is
proposed or requested by an Issuer or anyother Person, the Pledgors shall give
the Secured Party prompt written notice of such proposal or request.
Furthermore, if the SecuredParty shall request any Pledgor to exercise any
voting right or other consensual right with respect to any Article 8 Matter,
such Pledgorshall exercise such voting right or such other consensual right
with respect to such Article 8 Matter in accordance with the Secured
Party'sinstructions.
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ArticleV
AFFIRMATIVE COVENANTS
Section 5.01.
Existence;Qualification
. Each Pledgor shall do all things necessary to maintain its legal existence
in its Applicable Jurisdiction. Each Pledgorshall maintain its legal status
and qualification to do business in each jurisdiction where it is required to
register or qualify to dobusiness, except where the failure to do so would
not, individually or in the aggregate, have a Material Adverse Effect.
Section 5.02.
Compliancewith Laws
. The Pledgors shall comply with all applicable Laws and other legal
requirements applicable to the Pledgors, except wherethe failure to comply
would not, individually or in the aggregate, have a Material Adverse Effect.
Section 5.03.
Taxes,Assessments, Charges and Other Impositions
. The Pledgors shall pay and discharge promptly, on or before the due date
thereof, alltaxes, assessments, charges, and other impositions imposed by any
governmental authority on the Pledgors, or on the Pledged Collateral,including
any thereof relating to the creation, ownership or use of the Pledged
Collateral, or relating to any security interest in orlien on any Pledged
Collateral, or relating to any sale, assignment, transfer or other disposition
of the Pledged Collateral.
Section 5.04.
CollateralRecords
. Each Pledgor, at the cost and expense of the Pledgors, shall keep and
maintain at its chief executive office current, completeand accurate books and
records concerning all of the Pledged Collateral. The Secured Party shall have
unrestricted access to each Pledgor'splaces of business during normal business
hours and after two (2) days' written notice to such Pledgors, or at any time
and withoutnotice to any Pledgor after the occurrence of a Default, for the
purpose of inspecting, copying, verifying and auditing any Pledgor'sbooks and
records concerning the Pledged Collateral.
Section 5.05.
CollateralReports
. Within ten (10) days after the Secured Party's written request from time to
time, the Pledgors shall furnish to theSecured Party, and cause any Issuer to
furnish to the Secured Party, in writing such information regarding the
Pledged Collateral as theSecured Party may request, including such
information, financial statements and other reports regarding the Issuers as
may be in the possessionof, or otherwise available to, the Pledgors.
Section 5.06.
Costsand Expenses
. Within ten (10) days after the Secured Party's request from time to time,
the Pledgors shall pay (or provide theSecured Party with sufficient funds for
the payment of), or reimburse the Secured Party for payment of, the Secured
Party's costsand expenses, including the Secured Party's attorney's fees,
paralegal fees and other legal expenses, incurred for (a) thenegotiation and
preparation of this Agreement, other Transaction Documents and other related
documents, and diligence related thereto,(b) review and negotiation of opinion
letters, reliance letters and the like, (c) public record searches and search
reports and the reviewthereof and review of documents of record, (d) the
closing of loans and other transactions under the Transaction Documents or
otherwiserelated to the Obligations, (e) the perfection of the Secured Party's
security interests in the Collateral, (f) the establishment,maintenance and
defense of the first priority of the Secured Party's security interests in the
Collateral, (g) the enforcement ofthe Secured Party's security interests in
the Collateral, and (h) the enforcement of the Secured Party's rights and
remediesunder this Agreement and the other Transaction Documents, including
collecting the Obligations and collecting, possessing, storing, marketingand
selling Collateral.
Section 5.07.
Noticeof Default
. The Pledgors shall give the Secured Party written notice of any Default or
Event of Default within two (2) Business Daysafter the occurrence of such
Default or Event of Default.
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Section 5.08.
Noticeof Lien Proceedings
. The Pledgors shall give the Secured Party immediate written notice of any
Lien Proceeding relating to the Collateralor any thereof. If any Lien
Proceeding is commenced relating to the Collateral, the Pledgors shall
promptly give the Secured Party suchinformation, and copies of any
documentation, relating to such Lien Proceeding as the Secured Party may
request from time to time.
Section 5.09.
Applications,Approvals and Consents
. The Pledgors shall, at their sole cost and expense, promptly execute and
deliver, or cause the execution anddelivery of, all certificates, instruments,
and other documents and papers that the Secured Party may request in
connection with the obtainingof any consent, approval, registration,
qualification, or authorization of any governmental authority or of any other
Person necessaryor appropriate for the effective exercise of any rights or
remedies under this Agreement and the other Transaction Documents.
Withoutlimiting the generality of the foregoing, the Pledgors agree that in
the event the Secured Party shall exercise the Secured Party'srights to sell,
transfer, or otherwise dispose of or take any other action in connection with
any of the Pledged Collateral pursuant tothis Agreement or any other
Transaction Document, the Pledgors shall execute and deliver all applications,
certificates, and other documentsthat the Secured Party may request, and, if
requested by the Secured Party, the Pledgors shall otherwise promptly, fully
and diligentlycooperate with the Secured Party and any other necessary
Persons, in making any application for the prior consent or approval of any
governmentalauthority or any other Person in connection with the exercise by
the Secured Party of any of such rights relating to all or any part ofthe
Pledged Collateral. The Pledgors agree that the Secured Party's remedy at law
for failure of the Pledgors to comply with theprovisions of this Section would
not be adequately compensable in damages, and the Pledgors agree that the
covenants of this Section maybe specifically enforced.
Section 5.10.
Issuers
.
(a)
ThePledgors shall cause each Issuer to do the following:
(i)
maintainits legal existence in its Applicable Jurisdiction;
(ii)
maintainits legal status and qualification to do business in each jurisdiction
where it is required to register or qualify to do business, exceptwhere the
failure to do so would not, individually or in the aggregate, have a Material
Adverse Effect;
(iii)
complywith all applicable Laws and other legal requirements applicable to the
Issuer, except where the failure to comply would not, individuallyor in the
aggregate, have a Material Adverse Effect;
(iv)
payand perform when due all of the terms, covenants and conditions on the
Issuer's part to be performed under its Organizational Documents;and
(v)
tothe extent that covenants or other provisions of any other Transaction
Document apply to the Issuer, comply with such covenants and provisionseven if
the Issuer is not a party to such other Transaction Document and is not
specifically named or referred to in such covenants orprovisions, and even
though such covenants or provisions are not set forth in this Agreement.
(b)
Promptly,when requested by the Secured Party, and at the sole cost and expense
of the Pledgors, the Pledgors shall take all such actions as maybe requested
by the Secured Party to enforce or secure the performance of any term,
covenant or condition of the Organizational Documentsof any Issuer and to
exercise any rights of the Pledgors under such Organizational Documents.
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(c)
Promptly,when requested by the Secured Party, and at the sole cost and expense
of the Pledgors, the Pledgors shall execute and deliver to the SecuredParty,
and cause any Issuers to exercise and deliver to the Secured Party, an
acknowledgment and consent agreement in form and substancesatisfactory to the
Secured Party, pursuant to which such Issuers shall, among other things,
acknowledge that they consent to the termsof this Agreement and agree to
comply with the terms of this Agreement that relate to Issuers.
ArticleVI
NEGATIVE COVENANTS
Section 6.01.
PledgorMatters
. None of the Pledgors shall, without the Secured Party's prior written
consent, do any of the following: (a) changeits name; (b) change its
Applicable Jurisdiction; (c) change or amend its Organizational Documents if
such change or amendment could havean adverse effect on the Secured Party's
rights or remedies under this Agreement or any other Transaction Document or
the SecuredParty's rights or remedies with respect to the Pledged Collateral,
or the existence, perfection or priority of the Secured Party'ssecurity
interest in the Pledged Collateral, or the Secured Party's rights or remedies
with respect to the Pledged Collateral; (d)convert from one form of entity to
another (or, if a limited liability company, create or form any series), or
adopt or approve a planof division, file a certificate of division, or effect
a division; (e) merge, combine or consolidate with any Person; (f) liquidate,
dissolve,wind up, terminate, or cease to exist; or (g) change the location of
its chief executive office or principal place of business.
Section 6.02.
Liensand Dispositions
. The Pledgors shall not, without the Secured Party's prior written consent,
do any of the following: (a) create,incur, assume, or suffer to exist any
security interest or other lien upon any Pledged Collateral other than any
security interest orother lien in favor of the Secured Party; (b) authorize,
prepare or execute, or file or permit to be on file in any public office,
orsuffer to exist, any UCC financing statement or other lien notice applicable
to any Pledged Collateral, or fail to have any such UCC financingstatement or
other lien notice terminated of record and in fact, other than UCC financing
statements or other lien notices that are solelyin favor of the Secured Party;
(c) cause or permit any of the Pledged Collateral to be in the possession or
control of any Person otherthan the Secured Party or the Pledgor that is the
owner of such Pledged Collateral; (d) grant or agree to any reduction,
discount, rebate,refund or adjustment that would reduce the amount that any
Issuer or other Person that is obligated for the payment or performance ofany
Pledged Collateral is obligated to pay to any Pledgor; (e) grant to any Person
an option or right to purchase or otherwise acquireany Pledged Collateral; (f)
make any agreement for the sale, assignment, transfer, exchange, conversion or
other disposition of any PledgedCollateral; or (g) make or engage in any sale,
assignment, transfer, exchange, conversion or other disposition of any Pledged
Collateral.
Section 6.03.
IssuerMatters
. The Pledgors shall not, without the Secured Party's prior written consent,
do any of the following:
(a)
withrespect to any Pledgor's Ownership Interests in any Issuer, make or
consent to any amendment or other change to any Ownership Documentationor
waive any Pledgor's rights thereunder;
(b)
makeor consent to any amendment or other change to the Organizational
Documents of any Issuer, or waive any of any Pledgor's rightsthereunder, if
such amendment or other change or waiver could have an adverse effect on (i)
any Pledgor's rights or remedies undersuch Organizational Documents, (ii) the
Secured Party's rights or remedies under this Agreement or any other
Transaction Document,(iii) the existence, perfection or priority of the
Secured Party's security interest in the Pledged Collateral, or (iv) the
existenceor value of the Pledged Collateral;
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(c)
causeor permit any Issuer to pay any Dividend on, or make any distribution of
assets on account of, or redeem, purchase or otherwise acquirefor value, any
Ownership Interest in such Issuer held by any Person unless, if permitted by
the terms of the Transaction Documents, eachPledgor that has an Ownership
Interest in the Issuer receives a
pro rata
Dividend on such Pledgor's Ownership Interest inthe Issuer, or receives
pro rata
value in respect of a distribution made in respect of such Pledgor's Ownership
Interestin such Issuer or in respect of the redemption, purchase or
acquisition for value of any Ownership Interest in such Issuer from such
Pledgor,which Dividend or value each such Pledgor shall have received and
applied in accordance with Section 4.01;
(d)
causeor permit any Issuer to change its Applicable Jurisdiction;
(e)
causeor permit any Issuer to change its name or capital structure in a manner
that could have an adverse effect on (i) any Pledgor'srights or remedies under
the Organizational Documents, (ii) the Secured Party's rights or remedies
under this Agreement or any otherTransaction Document, (iii) the existence,
perfection or priority of the Secured Party's security interest in the Pledged
Collateral,or (iv) the existence or value of the Pledged Collateral;
(f)
causeor permit any Issuer to convert from one form of entity to another (or,
if the Issuer is a limited liability company, create or form anyseries), or
adopt or approve a plan of division, file a certificate of division, or effect
a division;
(g)
causeor permit any Issuer to merge or consolidate with any other Person,
acquire all or substantially all of the assets of any Person, or formor
acquire any subsidiary in a manner that could have an adverse effect on (i)
any Pledgor's rights or remedies under the OrganizationalDocuments, (ii) the
Secured Party's rights or remedies under this Agreement or any other
Transaction Document, (iii) the existence,perfection or priority of the
Secured Party's security interest in the Pledged Collateral, or (iv) the
existence or value of thePledged Collateral; provided, that, the Pledgors
shall give the Secured Party written notice at least thirty (30) days prior to
the effectivenessthereof;
(h)
causeor permit any Issuer to sell, assign, transfer, convey, exchange, gift or
otherwise dispose of all or substantially all of such Issuer'sassets in one
transaction or a series of transactions, except in connection with the Merger;
(i)
causeor permit any Issuer to liquidate, dissolve, wind up, terminate, or cease
to exist;
(j)
withrespect to any Pledged Collateral that is an interest in a limited
liability company or a partnership and is not an Article 8 Opt-In
Security,cause or permit any Issuer to take any action to cause such interest
to become an Article 8 Opt-In Security; or
(k)
withrespect to any Pledged Collateral that is an Article 8 Opt-In Security,
cause or permit any Issuer to take any action to cause such PledgedCollateral
to cease to be an Article 8 Opt-In Security.
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ArticleVII
EVENTS OF DEFAULT
Section 7.01.
Eventsof Default
. Each of the following events, occurrences or circumstances shall be an "
Event of Default
" under thisAgreement:
(a) ifany payment of principal or interest of the Obligations, or any payment
of any fee, charge, royalty, premium, cost, expense, price, rentor other
amount of the Obligations, is not made when due; provided that (i) if a
Transaction Document expressly provides for the SecuredParty to give any
Pledgor or any other Obligor notice of such nonpayment, such notice shall have
been given and (ii) if a TransactionDocument expressly provides for a grace or
cure period for such nonpayment, such nonpayment shall have continued uncured
beyond the graceor cure period expressly provided in such Transaction Document;
(b) theoccurrence of a breach, default or event of default, or other failure
to perform, by any Pledgor or any other Obligor, not within thescope of
preceding clause (a), under any Transaction Document; provided that (i) if
such Transaction Document expressly provides for theSecured Party to give any
Pledgor or any other Obligor a notice of such breach, default, event of
default or failure, such notice shallhave been given, and (ii) if such
Transaction Document expressly provides for a grace or cure period for such
breach, default, event ofdefault or failure, such breach, default, event of
default or failure shall have continued uncured beyond the grace or cure
period expresslyprovided in such Transaction Document;
(c) ifany confirmation, representation or warranty made by any Pledgor in this
Agreement, or made by any Pledgor or any other Obligor in anyother Transaction
Document, is breached in any material respect or is false or misleading;
(d) ifany written statement (including any financial statement or tax return)
of any Pledgor or any other Obligor, or any other report, certificate,or
information, provided to the Secured Party by or on behalf of any Pledgor or
any other Obligor (i) as a part of any request or applicationfor a loan or
other credit, (ii) as a condition or requirement of or under any Transaction
Document or any Obligations, or (iii) to inducethe Secured Party to take or
refrain from taking any action, is incomplete in any material respect or is
false or misleading;
(e) ifany Pledgor shall breach, default under, or fail to comply with, any
covenant, agreement or other provision of this Agreement;
(f) theoccurrence of any Bankruptcy Event of Default with respect to any
Pledgor;
(g) theoccurrence or commencement of any Lien Proceedings, or any other event,
circumstance or proceeding that impairs, or may impair, the valueof the
Collateral, or the Secured Party's security interest in the Collateral, or the
perfection of the Secured Party's securityinterest in the Collateral, or the
first priority of the Secured Party's security interest in the Collateral, or
the enforceabilityof this Agreement or any other Transaction Document against
any Pledgor or any other Obligor or any other Person, as determined by
theSecured Party in the Secured Party's discretion; or
(h) theoccurrence of a material adverse change in the financial or operating
condition of any Pledgor or any other Obligor after the date ofthis Agreement,
as determined by the Secured Party in the Secured Party's discretion; or
(i) theoccurrence of an Event of Default (as defined in any Transaction
Document other than this Agreement).
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ArticleVIII
ACCELERATION OF OBLIGATIONS
Section 8.01.
Acceleration
.Upon the occurrence of any Event of Default, the Secured Party may, at the
Secured Party's option and in the Secured Party'sdiscretion, and without prior
notice to or demand upon any Pledgor, accelerate some or all of the
Obligations, and upon such acceleration,all such Obligations as shall have
been accelerated shall be immediately due and payable by the Pledgors to the
Secured Party. Notwithstandingthe foregoing, immediately upon any Bankruptcy
Event of Default, and without notice to or demand upon any Pledgor or any
action by theSecured Party, the Obligations shall be accelerated and all
Obligations shall be immediately due and payable by the Pledgors to the
SecuredParty. Nothing in this Agreement shall be construed as modifying or
limiting, or as prohibiting or restricting the Secured Party fromexercising,
any right to demand immediate payment of any Obligations then due and payable
or payable on demand.
ArticleIX
REMEDIES
Section 9.01.
GeneralRemedies
. Upon and after the occurrence of any Event of Default, the Secured Party
shall have all of the rights, powers and remediesavailable under this
Agreement and the other Transaction Documents, all of the rights, powers and
remedies available to a secured partyunder the UCC and under any Other Lien
Law, and such other rights, powers and remedies as may be available to the
Secured Party at lawand in equity. The commencement of any action, legal or
equitable, or the rendering of any judgment or decree for deficiency, shall
notaffect the Secured Party's interest in the Pledged Collateral until the
Obligations have been fully paid and satisfied and thisAgreement has been
terminated.
Section 9.02.
RemediesCumulative
. The Secured Party's rights, powers and remedies are cumulative and may be
exercised simultaneously. No failure ordelay on the part of the Secured Party
in exercising any right, power or remedy under this Agreement or under any
other Transaction Document,and no course of dealing between any Pledgor or any
other Person and the Secured Party, shall operate as a waiver of any of the
SecuredParty's rights, powers or remedies under this Agreement or under any
other Transaction Document; nor shall any single or partialexercise of any
right, power or remedy under this Agreement or under any other Transaction
Document preclude any other or further exercisethereof or the exercise of any
other right, power or remedy hereunder or thereunder. No notice to or demand
on any Pledgor in any circumstanceshall entitle any Pledgor or any other
Person to any other or further notice or demand in similar or other
circumstances or constitutea waiver of the rights of the Secured Party to any
other or further action in any circumstances without notice or demand.
Section 9.03.
Sale ofCollateral
. (a) Without limiting the Secured Party's right to pursue other remedies, if
any Pledgor defaults in any provisionof this Agreement, or any other Event of
Default shall have occurred and be continuing, the Secured Party may sell the
Pledged Collateral,or any part thereof, at public or private sale or at any
broker's board or on any securities exchange, for cash, on credit, or
forfuture delivery, as the Secured Party shall deem appropriate. The Secured
Party shall be authorized at any such sale (if the Secured Partydeems it
advisable to do so with respect to any Pledged Collateral) to restrict the
prospective bidders or purchasers to Persons who willrepresent and agree that
they are purchasing the Pledged Collateral for their own account for
investment and not with a view to the distributionor sale thereof, and upon
consummation of any such sale the Secured Party shall have the right to
assign, transfer and deliver to thepurchaser or purchasers thereof the Pledged
Collateral so sold. Each such purchaser at any such sale shall hold the
property sold absolutely,free from any claim or right on the part of the
Pledgors, and each Pledgor hereby waives (to the extent permitted by law) all
rights ofredemption, stay and appraisal which any Pledgor now has or may at
any time in the future have under any rule of law or statute now existingor
hereafter enacted.
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(b) Priorto a sale or other disposition of Pledged Collateral, the Secured
Party shall give the Pledgors, and any other party required under Article9,
notification as required under Article 9. Any such public sale shall be held
at such time or times within ordinary business hours andat such place or
places as the Secured Party may fix and state in the notice of such sale.
(c) TheSecured Party shall not be obligated to make any sale of any Pledged
Collateral if the Secured Party shall determine not to do so, regardlessof the
fact that notice of sale of such Pledged Collateral shall have been given. The
Secured Party may, without notice or publication,adjourn any public or private
sale or cause the same to be adjourned from time to time by announcement at
the time and place fixed forsale, and such sale may, without further notice,
be made at the time and place to which the same was so adjourned.
(d) Atany such sale, the Pledged Collateral, or any portion thereof, to be
sold may be sold in one lot as an entirety or in separate parcels,as the
Secured Party may, in the Secured Party's discretion, determine.
(e) Incase any sale of all or any part of the Pledged Collateral is made on
credit or for future delivery, the Pledged Collateral so sold maybe retained
by the Secured Party until the sale price is paid by the purchaser or
purchasers thereof, but the Secured Party shall notincur any liability in case
any such purchaser or purchasers shall fail to take up and pay for Pledged
Collateral so sold and, in caseof any such failure, such Pledged Collateral
may be sold again upon notification to the Pledgors as set forth in this
Section. At anypublic sale made pursuant to this Section, the Secured Party
may bid for or purchase, free (to the extent permitted by law) from any
rightof redemption, stay or appraisal on the part of any Pledgor (all said
rights being also hereby waived and released to the extent permittedby law),
the Pledged Collateral or any part thereof offered for sale and may make
payment on account thereof by using any claim then dueand payable to the
Secured Party from any Pledgor or any other Obligor in respect of any of the
Obligations as a credit against the purchaseprice, and the Secured Party may,
upon compliance with the terms of sale, hold, retain and dispose of such
property without further accountabilityto any Pledgor therefor. For purposes
of any sale of Pledged Collateral under this Agreement, a written agreement to
purchase the PledgedCollateral or any portion thereof shall be treated as a
sale thereof. The Secured Party shall be free to carry out such sale
pursuantto such agreement, and the Pledgors shall not be entitled to the
return of the Pledged Collateral or any portion thereof subject thereto,notwiths
tanding the fact that after the Secured Party shall have entered into such an
agreement all Events of Default shall have beenremedied and the Obligations
paid in full.
(f) Uponany sale of Pledged Collateral by the Secured Party (including,
without limitation, a sale pursuant to a power of sale granted by statuteor
under a judicial proceeding), the receipt of the Secured Party or of the
officer making the sale shall be a sufficient discharge tothe purchaser or
purchasers of Pledged Collateral being sold, and such purchaser or purchasers
shall not be obligated to see to the applicationof any part of the purchase
money paid over to the Secured Party or such officer or be answerable in any
way for the misapplication thereof.
(g) Thecash Proceeds of a sale or other disposition of Pledged Collateral by
the Secured Party shall be applied in the following order: (i) first,to the
costs and expenses of preparing for and conducting the sale or other
disposition, including the Secured Party's attorneys'fees and other legal
expenses, (ii) second, the remaining amount, if any, to the payment (in
whatever order the Secured Party elects)of the Obligations until all of the
Obligations have been paid in full, (iii) third, after the Obligations have
been paid in full, theremaining amount of such Proceeds, if any, to the
satisfaction of obligations secured by any subordinate security interest in or
othersubordinate lien on the Pledged Collateral if the Secured Party receives
from the holder of the subordinate security interest or otherlien an
authenticated demand for Proceeds before distribution of the Proceeds is
completed, and (iv) fourth, to the Pledgors for any surplus.The Obligors are
liable for any deficiency.
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(h) Asan alternative to exercising the power of sale herein conferred upon the
Secured Party, the Secured Party may proceed by a suit or suitsat law or in
equity to foreclose this Agreement and to sell Pledged Collateral or any
portion thereof pursuant to a judgment or decreeof a court or courts having
competent jurisdiction or pursuant to a proceeding by a court-appointed
receiver.
Section 9.04.
SecuritiesAct, etc
. In view of the position of the Pledgors in relation to Pledged Collateral
owned by the Pledgors, or because of other presentor future circumstances, a
question may arise under the Securities Act of 1933, as now or hereafter in
effect, or any similar statutehereafter enacted analogous in purpose or effect
(such act and all such similar statutes as from time to time in effect being
called the"
Federal Securities Laws
") with respect to any disposition of the Pledged Collateral permitted under
this Agreement.Each Pledgor understands that compliance with the Federal
Securities Laws might very strictly limit the course of conduct of the
SecuredParty if the Secured Party were to attempt to dispose of all or any
part of Pledged Collateral and might also limit the extent to whichor the
manner in which any subsequent transferee of any Pledged Collateral could
dispose of the same. Similarly, there may be other legalrestrictions or
limitations affecting the Secured Party in any attempt to dispose of all or
part of Pledged Collateral under applicableBlue Sky or other state securities
laws or similar laws analogous in purpose or effect. Under applicable law, in
the absence of an agreementto the contrary, the Secured Party might be held to
have certain general duties and obligations to the Pledgors, as pledgors, to
makesome effort toward obtaining a fair price even though the obligations of
the Pledgors may be discharged or reduced by the proceeds ofa sale at a lesser
price. Each Pledgor clearly understand that the Secured Party is not to have
any such general duty or obligation toany Pledgor, and the Pledgors will not
attempt to hold the Secured Party responsible for selling all or any part of
Pledged Collateralat an inadequate price even if the Secured Party shall
accept the first offer received or does not approach more than one possible
purchaser.Without limiting the generality of the foregoing, the provisions of
this Section would apply if, for example, the Secured Party were toplace all
or any part of the Pledged Collateral for private placement by an investment
banking firm, or if such investment banking firmpurchased all or any part of
the Pledged Collateral for its own account, or if the Secured Party placed all
or any part of Pledged Collateralprivately with a purchaser or purchasers. The
provisions of this Section will apply notwithstanding the existence of a
public or privatemarket upon which the quotations or sales prices may exceed
substantially the price at which the Secured Party sells all or any part
ofPledged Collateral.
Section 9.05.
Registration
.Each Pledgor agrees that, upon the occurrence of a default by the Pledgor
under this Agreement, or any Event of Default, if for any reasonthe Secured
Party desires to sell any of Pledged Collateral at a public sale, the Pledgors
shall, at any time and from time to time, uponthe written request of the
Secured Party, use each Pledgor's best efforts to take or to cause the issuer
of such Pledged Collateralto take such action and prepare, distribute and/or
file such documents, as are required or advisable in the opinion of counsel
for theSecured Party to permit the public sale of such Pledged Collateral.
Each Pledgor further agrees to indemnify, defend and hold harmlessthe Secured
Party and any underwriter from and against any and all loss, liability,
expenses, costs, fees and disbursements of counsel(including, without
limitation, a reasonable estimate of the cost to the Secured Party of legal
counsel), and any and all claims (includingthe costs of investigation) which
they may incur insofar as such loss, liability, expense or claim arises out of
or is based upon anyalleged untrue statement of a material fact contained in
any prospectus (or any amendment or supplement thereto) or in any
notificationor offering circular, or arises out of or is based upon any
alleged omission to state a material fact required to be stated therein
ornecessary to make the statements in any respect thereof not misleading,
except insofar as the same may have been caused by any untruestatement or
omission based upon information furnished in writing to the Pledgors or any
issuer of such Pledged Collateral by the SecuredParty or the underwriter
expressly for use therein. Each Pledgor further agrees to use its best efforts
to qualify, file or register,or cause the issuer of such Pledged Collateral to
qualify, file or register, any of Pledged Collateral under the Blue Sky or
other securitieslaws of such states as the Secured Party may specify and to
keep effective, or cause to be kept effective, all such qualifications,
filingsor registrations. The Pledgors will bear all costs and expenses of
carrying out the obligations of the Pledgors obligations under thisSection.
The Pledgors acknowledge that there is no adequate remedy at law for failure
by any Pledgor to comply with the provisions ofthis Section and that such
failure would not be adequately compensable in damages, and therefore agree
that each Pledgor's agreementscontained in this Section may be specifically
enforced.
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ArticleX
GENERAL PROVISIONS
Section 10.01.
Notices
.Any notices, consents, waivers or other communications required or permitted
to be given under the terms hereof must be in writing andwill be deemed to
have been delivered: upon the later of (A) either (i) receipt, when delivered
personally or (ii) one (1) Business Dayafter deposit with an overnight courier
service with next day delivery specified, in each case, properly addressed to
the party to receivethe same and (B) receipt, when sent by e-mail. The
addresses and e-mail addresses for such communications shall be:
If to any Pledgor, to: Triller Hold Co LLC
7119 West Sunset Blvd, Suite 782
Los Angeles, CA 90046
Attention: Prem Parameswaran
Chief Financial Officer
Telephone: (310) 893-6090
Email: prem@triller.co
If to the Secured Party: YA II PN, Ltd.
c/o Yorkville Advisors Global, LLC
1012 Springfield Avenue
Mountainside, NJ 07092
Attention: Mark Angelo
Telephone: 201-985-8300
Email: Legal@yorkvilleadvisors.com
or at such other address and/ore-mail address and/or to the attention of such
other person as the recipient party has specified by written notice given to
each otherparty three (3) Business Days prior to the effectiveness of such
change. Written confirmation of receipt (i) given by the recipient ofsuch
notice, consent, waiver or other communication, (ii) electronically generated
upon sending the e-mail or (iii) provided by a nationallyrecognized overnight
delivery service, shall be rebuttable evidence of personal service, receipt by
e-mail or receipt from a nationallyrecognized overnight delivery service in
accordance with clause (i), (ii) or (iii) above, respectively. Notwithstanding
the aforesaidprocedures, any notice, request or demand upon any Pledgor in
fact received by such Pledgor shall be sufficient notice or demand as tothe
Pledgors.
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Section 10.02.
Term
.This Agreement shall commence with the date of this Agreement and shall
continue in full force and effect and be binding upon the Pledgorsuntil all
Obligations secured by this Agreement shall have been fully paid and satisfied
(such that there is no outstanding secured obligation),there is no commitment
on the part of the Secured Party to make advances, incur obligations or
otherwise give value, and the Secured Partyshall have given the Pledgors
written notice of the termination of this Agreement (excluding provisions that
by their terms survive terminationof this Agreement). The Secured Party shall
not be obligated to give the Pledgors written notice of the termination of
this Agreement,or to terminate any UCC financing statements or other lien
filings, until all of the Obligations have been fully paid and satisfied
(suchthat there is no outstanding secured obligation), there is no commitment
on the part of the Secured Party to make an advance, incur anobligation or
otherwise give value, and the Pledgors shall have given the Secured Party a
written demand requesting termination of thisAgreement and any UCC financing
statements or other lien filings.
Section 10.03.
Reinstatement
.Notwithstanding anything to the contrary in this Agreement or any other
Transaction Document, if at any time any amount received by theSecured Party
from any Obligor or other Person and applied to the Obligations, or applied to
any indebtedness, obligations or liabilitiesof any Obligor under the
Transaction Documents, is annulled, avoided, set aside, rescinded,
invalidated, declared to be fraudulent orpreferential or otherwise required to
be refunded or repaid, or Proceeds of any Pledged Collateral or of any other
Collateral are requiredto be returned by the Secured Party to any Obligor, its
estate, trustee, receiver, or any other party, under any bankruptcy law,
stateor federal law, common law or at equity, then to the extent of such
payment, repayment, refund, or return, all security interests andliens and
Collateral securing the Obligations shall remain in full force and effect, as
fully as if such payment had never been made or,if prior to such payment,
repayment, refund or return any security interest or lien granted under this
Agreement, or any Collateral forthe Obligations shall have been released or
terminated, such security interest, lien or Collateral securing the
Obligations shall be reinstatedin full force and effect, and such prior
release or termination shall not diminish, release, discharge, impair or
otherwise affect anysecurity interest, lien or Collateral securing the
Obligations in respect of the amount of such payment, repayment, refund or
return.
Section 10.04.
SecuredParty's Right to Release Obligors
. The Secured Party from time to time may take or release other security, may
release any partyprimarily or secondarily liable for any Obligations or other
indebtedness to the Secured Party, may grant extensions, renewals or
indulgenceswith respect to such Obligations or other indebtedness and may
apply any other security therefor held by the Secured Party to the
satisfactionof such Obligations or other indebtedness, all without any
obligation to give the Pledgors notice of any thereof, and all without
prejudiceto any of the Secured Party's rights under this Agreement.
Furthermore, the Secured Party from time to time may enter into amendmentsof
Transaction Documents with any party or parties primarily or secondarily
liable for the Obligations, without any obligation to givethe Pledgors notice
thereof, and without prejudice to any of the Secured Party's rights under this
Agreement regardless of whetherany Pledgor is a party to or consents to such
amendments.
Section 10.05.
Marshaling
.The Secured Party shall not be required to marshal any present or future
collateral security for, or other assurances of payment of, theObligations or
any of them or to resort to such collateral security or other assurances of
payment in any particular order. To the extentthat it lawfully may, each
Pledgor hereby agrees that the Pledgors will not invoke any law relating to
the marshaling of collateral whichmight cause delay in or impede the
enforcement of the Secured Party's rights under this Agreement or under any
other TransactionDocument, and, to the extent that it lawfully may, each
Pledgor hereby waives the benefit of all such Laws.
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Section 10.06.
Amendments
.Neither this Agreement nor any other Transaction Document nor any of the
terms hereof or thereof may be amended, modified, changed, waived,discharged
or terminated, nor shall any consent be given, unless such amendment,
modification, change, waiver, discharge, terminationor consent is in writing
and signed by the Secured Party.
Section 10.07.
Successorsand Assigns
. This Agreement shall be binding upon each Pledgor and its successors and
assigns, and shall inure, together with therights and remedies of the Secured
Party hereunder, to the benefit of the Secured Party and the Secured Party's
successors, transfereesand assigns. This Agreement may not be assigned by any
Pledgor without the prior written consent of the Secured Party.
Section 10.08.
AdditionalPledgors
. It is understood and agreed that any Guarantor that desires to become a
pledgor hereunder, or is required to execute a counterpartof this Agreement
after the date hereof pursuant to the respective Transaction Documents, shall
become a pledgor hereunder by executinga counterpart hereof and delivering
same to the Secured Party, or by executing a joinder to this Agreement, (y)
delivering supplementsto the schedules attached hereto as are necessary to
cause such schedules to be complete and accurate with respect to such
additionalpledgor on such date, and (z) taking all actions as specified in
this Agreement as would have been taken by such pledgor had it been anoriginal
party to this Agreement, in each case with all documents required above to be
delivered to the Secured Party and with all documentsand actions required
above to be taken to the reasonable satisfaction of the Secured Party.
Section 10.09.
Severability
.Any provision of this Agreement, or of any other Transaction Document, that
is prohibited by, or unenforceable under, the laws of anyjurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability, without invalidatingthe remaining provisions of this
Agreement, and any such prohibition or unenforceability in any jurisdiction
shall not invalidate or renderunenforceable such provision in any other
jurisdiction. To the extent permitted by law, each Pledgor hereby waives any
provision of lawwhich renders any provision of this Agreement or any other
Transaction Document prohibited or unenforceable in any respect.
Section 10.10.
Counterparts
.This Agreement may be executed in counterparts (and by different parties
hereto in different counterparts), each of which shall constitutean original,
but all of which when taken together shall constitute a single contract.
Delivery of an executed counterpart of a signaturepage of this Agreement by
facsimile or in electronic (for example, ".pdf" or "tif") format by email or
other electronictransmission shall be effective as delivery of a manually
executed counterpart of this Agreement. Signature pages may be detached
fromseparate counterparts and attached to a single counterpart so that all
signature pages are attached to the same document. In making proofof this
Agreement, it shall not be necessary to produce more than one counterpart of
this executed Agreement.
Section 10.11.
ElectronicSignatures
. The words "execution," "signed," "signature," and words of like import in
this Agreementshall be deemed to include electronic signatures or electronic
records, each of which shall be of the same legal effect, validity or
enforceabilityas a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided forin
any applicable Law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State ElectronicSignatures and Records
Act, or any other similar state laws based on the Uniform Electronic
Transactions Act.
Section 10.12.
Filingand Recording
. In addition to the Secured Party's right to file UCC financing statements,
the Secured Party is authorized andentitled to file, record or register this
Agreement (or a photocopy of this Agreement) and other security interest or
lien notices withany governmental authority to give notice of, and to further
the legal operation and effect of, and perfect the interests of the
SecuredParty under, this Agreement. Within ten (10) days after the Secured
Party's request from time to time, the Pledgors shall pay allof the Secured
Party's costs and expenses (including attorney's fees, paralegal fees and
other legal expenses) of preparing,filing, recording or registering this
Agreement or any UCC financing statements or other security interest or lien
notices related tothis Agreement or the Pledged Collateral and any amendments
to or continuations of any thereof.
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Section 10.13.
EntireAgreement
. This Agreement and any Transaction Documents executed and delivered with
this Agreement are a complete and exclusive expressionof all the terms of the
matters expressed therein, and all prior agreements, statements, and
representations, whether written or oral,which relate thereto in any way are
hereby superseded and shall be given no force and effect. No promise,
inducement, or representationhas been made to any Pledgor which relates in any
way to the matters expressed in this Agreement or in any other Transaction
Documentexecuted and delivered with this Agreement, other than what is
expressly stated herein and in such other Transaction Document.
Section 10.14.
No Third-PartyBenefit
. The terms and provisions of this Agreement are for the benefit of the
Secured Party and its successors and assigns, and nothird party shall have any
right or cause of action on account hereof.
Section 10.15.
Waiverof Special and Punitive Damages
. Each Pledgor hereby waives to the fullest extent permitted by law all claims
to special, indirect,consequential, exemplary and punitive damages in any
lawsuit or other legal action brought by any Pledgor against the Secured
Party, orany of its shareholders, members, partners, directors, managers,
trustees, officers, employees, agents or advisors, in respect of anyclaim
arising under this Agreement, the other Transaction Documents, or any other
agreement between the Secured Party and the Pledgorsat any time, including any
such agreements, whether written or oral, made or alleged to have been made at
any time prior to the date hereof,and all agreements made hereafter or
otherwise, or in respect of any claims arising under common law or under any
statute of any stateor the United States, whether any such claims be now
existing or hereafter arising, now known or unknown. In making this waiver,
eachPledgor acknowledge and agree that they shall not make any claim for
special, indirect, consequential, exemplary or punitive damages againstthe
Secured Party or any of its shareholders, members, partners, directors,
managers, trustees, officers, employees, agents or advisors.
Section 10.16.
No StrictConstruction
. The parties hereto have participated jointly in the negotiation and drafting
of this Agreement. In the event of anyambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties heretoand no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any
provisions of thisAgreement.
Section 10.17.
No ConditionsPrecedent
. Each Pledgor acknowledges that no unsatisfied conditions precedent to the
effectiveness and enforceability of this Agreementexist as of the date of the
execution of this Agreement, and that the effectiveness and enforceability of
this Agreement is not in anyway conditioned or contingent upon any event,
occurrence, or happening, or upon any condition existing or coming into
existence eitherbefore or after the execution of this Agreement.
Section 10.18.
SecurityInterest Absolute
. Each Pledgor hereby waives demand, notice, protest, notice of acceptance of
this Agreement, notice of loans made,credit extended, Collateral received or
delivered, or other action taken in reliance on this Agreement, and all other
demands and noticesof any description. All rights of the Secured Party and
liens and security interests under this Agreement, and all obligations of
thePledgors under this Agreement, shall be absolute and unconditional
irrespective of: (a) any illegality or lack of validity or enforceabilityof
any Obligations or Transaction Documents; (b) any change in the time, place or
manner of payment of, or in any other term of, the Obligations,or any
recission, waiver, amendment or modification of any Transaction Document or
any provisions thereof, including any increase in theObligations resulting
from future advances or protective advances or any extension of additional
credit or otherwise; (c) any taking,exchange, substitution, release,
impairment or non-perfection of any Collateral or any other collateral, or any
taking, release, impairment,amendment, waiver or other modification of any
guaranty, for all or any of the Obligations; (d) any manner of sale,
disposition or applicationof proceeds of any Collateral or any other
collateral or other assets to any of the Obligations; (e) any default, failure
or delay, willfulor otherwise, in the performance of the Obligations; (f) any
defense, set-off or counterclaim (other than a defense of payment or
performance)that may at any time be available to, or be asserted by any
Pledgor against the Secured Party; or (g) any other circumstance (including,with
out limitation, any statute of limitations) or manner of administering any
loans or other Obligations or any existence of or relianceon any representation
by the Secured Party that might vary the risk of any Pledgors or otherwise
operate as a defense available to, ora legal or equitable discharge of, any
Pledgor or any other grantor, pledgor, guarantor or surety.
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Section 10.19.
Waiverof Subrogation
. Each Pledgor agrees that the Pledgors shall have no right of subrogation,
reimbursement or indemnity whatsoever, norany right of recourse to security,
if any, for the Obligations, so long as any amounts payable to the Secured
Party in respect of theObligations shall remain outstanding. Each Pledgor
further agrees that the Pledgors shall have no right of contribution nor any
otherrecourse against any other Obligor so long as any amount payable to the
Secured Party in respect of the Obligations shall remain outstanding.
Section 10.20.
FurtherAssurances
. The Pledgors shall execute and deliver to the Secured Party such further
assurances and take such other further actionsas the Secured Party may from
time to time request to further the intent and purpose of this Agreement and
the other Transaction Documentsand to maintain and protect the rights and
remedies intended to be created in favor of the Secured Party under this
Agreement and theother Transaction Documents.
Section 10.21.
Choiceof Law, Venue, Jury Trial Waiver and Judicial Reference
.
(a)
GoverningLaw
. This Agreement and the rights and obligations of the parties hereunder
shall, in all respects, be governed by, and construedin accordance with, the
laws (excluding the principles of conflict of laws) of the State of New York
(the "
Governing Jurisdiction
")(including Section 5-1401 and Section 5-1402 of the General Obligations Law
of the State of New York), including all matters of construction,validity and
performance.
(b)
Jurisdiction;Venue; Service
.
(i) EachPledgor hereby irrevocably consents to the non-exclusive personal
jurisdiction of the state courts of the Governing Jurisdiction and,if a basis
for federal jurisdiction exists, the non-exclusive personal jurisdiction of
any United States District Court for the GoverningJurisdiction.
(ii) EachPledgor agrees that venue shall be proper in any court of the
Governing Jurisdiction selected by the Secured Party or, if a basis forfederal
jurisdiction exists, in any United States District Court in the Governing
Jurisdiction. Each Pledgor waives any right to objectto the maintenance of any
suit, claim, action, litigation or proceeding of any kind or description,
whether in law or equity, whetherin contract or in tort or otherwise, in any
of the state or federal courts of the Governing Jurisdiction on the basis of
improper venueor inconvenience of forum.
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(iii) Anysuit, claim, action, litigation or proceeding of any kind or
description, whether in law or equity, whether in contract or tort or
otherwise,brought by any Pledgor against the Secured Party arising out of or
based upon this Agreement or any matter relating to this Agreement,or any
other Transaction Document, or any Obligations, or any contemplated
transaction, shall be brought in a court only in the GoverningJurisdiction.
The Pledgors shall not file any counterclaim against the Secured Party in any
suit, claim, action, litigation or proceedingbrought by the Secured Party
against any Pledgor in a jurisdiction outside of the Governing Jurisdiction
unless under the rules of thecourt in which the Secured Party brought such
suit, claim, action, litigation or proceeding the counterclaim is mandatory,
and not permissive,and would be considered waived unless filed as a
counterclaim in the suit, claim, action, litigation or proceeding instituted
by the SecuredParty against the Pledgor. Each Pledgor agrees that any forum
outside the Governing Jurisdiction is an inconvenient forum and that anysuit,
claim, action, litigation or proceeding brought by any Pledgor against the
Secured Party in any court outside the Governing Jurisdictionshould be
dismissed or transferred to a court located in the Governing Jurisdiction.
Furthermore, each Pledgor irrevocably and unconditionallyagrees that it will
not bring or commence any suit, claim, action, litigation or proceeding of any
kind or description, whether in lawor equity, whether in contract or in tort
or otherwise, against the Secured Party arising out of or based upon this
Agreement or any matterrelating to this Agreement, or any other Transaction
Document, or any Obligations, or any contemplated transaction, in any forum
otherthan the courts of the State of New York sitting in New York County, and
the United States District Court of the Southern District ofNew York, and any
appellate court from any thereof, and each of the parties hereto irrevocably
and unconditionally submits to the jurisdictionof such courts and agrees that
all claims in respect of any such suit, claim, action, litigation or
proceeding may be heard and determinedin such New York State Court or, to the
fullest extent permitted by applicable law, in such federal court. The
Pledgors and the SecuredParty agree that a final judgment in any such suit,
claim, action, litigation or proceeding shall be conclusive and may be
enforced inother jurisdictions by suit on the judgment or in any other manner
provided by law.
(iv) ThePledgors and the Secured Party irrevocably consent to the service of
process out of any of the aforementioned courts in any such suit,claim,
action, litigation or proceeding by the mailing of copies thereof by
registered or certified mail postage prepaid, to it at theaddress provided for
notices in this Agreement, such service to become effective thirty (30) days
after the date of mailing.
(v) Nothingherein shall affect the right of the Secured Party to serve process
in any other manner permitted by law or to commence legal proceedingsor to
otherwise proceed against any Pledgor or any other Person in the Governing
Jurisdiction or in any other jurisdiction.
(c)
Waiverof Jury Trial
. The Pledgors and the Secured Party mutually waive all right to trial by jury
of all claims of any kind arising outof or based upon this Agreement or any
matter relating to this Agreement, or any other Transaction Document, or any
Obligations, or anycontemplated transaction. The Pledgors and the Secured
Party acknowledge that this is a waiver of a legal right and that the
Pledgorsand the Secured Party each make this waiver voluntarily and knowingly
after consultation with counsel of its choice. The Pledgors andthe Secured
Party agree that all such claims shall be tried before a judge of a court
having jurisdiction, without a jury.
[The signature page follows. The remainder of thispage is blank.]
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IN WITNESS WHEREOF, and intendingto be legally bound hereby, the Pledgors and
the Secured Party execute this Pledge Agreement as of the date first above
written.
P
ledgor:
TRILLER HOLD CO LLC
By: /s/ Bobby Sarnevesht
Name: Bobby Sarnevesht
Title: Chief Executive Officer
[
Signature Page to Pledge Agreement
]
Secured Party:
YA II PN, LTD.
By: Yorkville Advisors Global, LP
Its: Investment Manger
By: Yorkville Advisors Global II, LLC
Its: General Partner
By: /s/ Troy Rillo, Esq.
Name: Troy Rillo, Esq.
Title: Partner
[
Signature Page to Pledge Agreement
]
ANNEX I
TO PLEDGE AGREEMENT
Pledgor Type of Entity Jurisdiction of Organization Principal Place of Business
Triller Hold Co LLC Limited liability company Delaware, United States 7119 W. Sunset Blvd #782
Los Angeles, CA 90046
SCHEDULE 1
TO PLEDGE AGREEMENT
(Scheduled Ownership Interests)
Part 1
: Ownership Interests in corporations
Pledgors Issuers Issuer's Number and Description of share certificates Percentage
Applicable type of shares or uncertificated interests Ownership Interest
Jurisdiction
Triller Hold Co LLC Bare Knuckle Fighting Delaware 3,000,000 shares Book entry / 18.1%
Championships, Inc. of common stock uncertificated
Part 2
: Ownership Interests in limitedliability companies
N/A
Part 3
: Ownership Interests in partnerships
N/A
Part 4
: Ownership Interests in trusts
N/A
SCHEDULE 2
TO PLEDGE AGREEMENT
(Pledgor obligations to Issuers)
Part 1
: Pledgor obligations to corporateIssuers
Pledgors Issuers Pledgor's obligation, if any, to contribute cash, property, or
services to the Issuer, or make loans or advances to the Issuer
Triller Hold Co LLC Bare Knuckle Fighting Championships, Inc. $1,600,000 Event Budget Funding Commitment
Part 2
: Pledgor obligations to limitedliability company Issuers
N/A
Part 3
: Pledgor obligations to partnershipIssuers
N/A
Part 4
: Pledgor obligations to trustIssuers
N/A
SCHEDULE 3
TO PLEDGE AGREEMENT
(Issuer Organizational Documents)
Part 1
: Organizational Documents ofcorporate Issuers
Issuers Issuer's Organizational Documents
Bare Knuckle Fighting Championships Inc. (i) Amended and Restated Certificate of Incorporation filed with the Delaware
Secretary of State on November 15, 2023; Certificate of Designations, Number,
Voting Powers, Preferences and Rights of Series A Convertible Preferred Stock
filed with the Delaware Secretary of State on November 15, 2023; Bylaws
Part 2
: Organizational Documents oflimited liability company Issuers
N/A
Part 3
: Organizational Documents ofpartnership Issuers
N/A
Part 4
: Organizational Documents oftrust Issuers
N/A
Exhibit 10.6
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTSAGREEMENT
(this "
Agreement
") dated as of April 25, 2024 is made by and between
YA II PN, LTD
., a CaymanIslands exempted company (the "
Investor
"),
AGBA GROUP HOLDING LIMITED,
a British Virgin Islands business company("
AGBA Group
" or the "
Parent
"), and
TRILLER CORP.,
a company incorporated under the lawsof the State of Delaware ("
Triller Corp.
" or the "
Company
", and together with the Investor and theParent, the "parties" or separately
each a "party").
WHEREAS
, on April 16,2024, Parent entered into that certain Agreement and Plan of
Merger (as may be amended, supplemented or otherwise modified from time
totime, the "
Merger Agreement
"), by and between Parent, its wholly owned subsidiary AGBA Social Inc. ("
MergerSub
"), the Company and Bobby Sarnevesht, solely as representative of the Company
stockholders. Pursuant to the Merger Agreement,(a) the Company was to complete
its reorganization (the "
Triller Reorganization
") with Triller Hold Co LLC ("
TrillerLLC
"), such that Triller LLC will reorganize into the Company as a Delaware
Corporation, (b) Parent would domesticate to theUnited States as a Delaware
corporation (the "
AGBA Domestication
"), pursuant to which, among other things, all Parent'sordinary shares, par
value $0.001 per share ("
AGBA Ordinary Shares
") would automatically convert into the same numberof shares of common stock,
par value $0.001 per share of the Parent (the "
Common Shares
") and (c) after giving effectto the Triller Reorganization and the AGBA
Domestication, Merger Sub will be merged into the Company (the "
Merger
), withthe Company surviving the Merger and becoming a wholly owned subsidiary
of Parent.
WHEREAS
, on April 18,2024, the Triller Reorganization was completed.
WHEREAS
, the Company,Parent and the Investor have entered into that certain Amended
and Restated Standby Equity Purchase Agreement, dated as of the date
hereof(the "
Purchase Agreement
"), pursuant to which the Company may issue, from time to time, to the
Investor up to $500million of newly issued Common Shares; and
WHEREAS,
pursuant tothe terms of, and in consideration for the Investor entering into,
the Purchase Agreement, and to induce the Investor to execute and deliverthe
Purchase Agreement, the Company and the Parent have agreed to provide the
Investor with certain registration rights under the SecuritiesAct of 1933, as
amended, and the rules and regulations thereunder, or any similar successor
statute (collectively, the "
SecuritiesAct
").
AGREEMENT
NOW, THEREFORE,
inconsideration of the premises and the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiencyof which are
hereby acknowledged, the Company and the Investor hereby agree as follows:
1.
DEFINITIONS
.
Capitalized terms used hereinand not otherwise defined herein shall have the
respective meanings set forth in the Purchase Agreement. As used in this
Agreement, thefollowing terms shall have the following meanings:
(a) "
EffectivenessDeadline
" means, with respect to the initial Registration Statement filed hereunder,
the 60th calendar day following the initialfiling hereof, provided, however,
in the event the Company is notified by the U.S. Securities and Exchange
Commission ("
SEC
")that the Registration Statement will not be reviewed or is no longer subject
to further review and comments, the Effectiveness Deadlineas to such
Registration Statement shall be the fifth business day following the date on
which the Company is so notified if such dateprecedes the date required above.
(b) "
ExchangeAct
" means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
(c) "
FilingDeadline
" means, with respect to the initial Registration Statement required
hereunder, the earler of (i) the 15th calendarday following the date upon
which the Parent has cleared substantially all of the comments from the SEC on
the preliminary proxy statementon Form 14A relating to the approval of the
Merger and (ii) 30th calendar day following the consummation of the Merger.
(d) "
Person
"means a corporation, a limited liability company, an association, a
partnership, an organization, a business, an individual, a governmentalor
political subdivision thereof or a governmental agency.
(e) "
Prospectus
"means the prospectus included in a Registration Statement (including, without
limitation, a prospectus that includes any information previouslyomitted from
a prospectus filed as part of an effective registration statement in reliance
upon Rule 430A promulgated under the SecuritiesAct), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the RegistrableSecurities covered by a Registration
Statement, and all other amendments and supplements to the Prospectus,
including post-effective amendments,and all material incorporated by reference
or deemed to be incorporated by reference in such Prospectus.
(f) "
RegistrableSecurities
" means all of (i) the Shares (as defined in the Purchase Agreement), (ii) the
Common Warrant Shares (as defined inthe Purchase Agreement), (iii) any capital
stock issued or issuable with respect to the Shares or the Common Warrant
Shares, including,without limitation, (1) as a result of any stock split,
stock dividend or other distribution, recapitalization or similar event or
otherwise,and (2) shares of capital stock of the Company into which the Common
Shares are converted or exchanged and shares of capital stock ofa successor
entity into which the Common Shares are converted or exchanged; as to the
initial Registration Statement to be no more thanthe Required Registration
Amount.
(g) "
RegistrationStatement
" means any registration statement of the Company, including the Prospectus,
amendments and supplements to such registrationstatement or Prospectus,
including post-effective amendments, all exhibits thereto, and all material
incorporated by reference or deemedto be incorporated by reference in such
registration statement.
2
(h) "
RequiredRegistration Amount
" means (i) with respect to the initial Registration Statement the maximum
number of Common Shares issuedor to be issued upon pursuant to the Purchase
Agreement (including the Common Warrant Shares and, to the extent issued, the
CommitmentShares) as shall be permitted to be included thereon in accordance
with applicable SEC rules, regulations and interpretations so as topermit the
resale of such Registrable Securities by the Investor under Rule 415 at then
prevailing market prices (and not fixed prices),and (ii) with respect to
subsequent Registration Statements such number of shares of Common Stock as
requested by the Investor not toexceed 300% of the maximum number of shares of
Common Shares issuable upon conversion of all Promissory Notes then
outstanding (assumingfor purposes hereof that (x) such Promissory Notes are
convertible at the Conversion Price (as defined therein) in effect as of the
dateof determination, and (y) any such conversion shall not take into account
any limitations on the conversion of the Promissory Notes setforth therein),
in each case subject to any cutback set forth in Section 2(e).
(i) "
Rule144
" means Rule 144 under the Securities Act or any successor rule thereto.
(j) "
Rule415
" means Rule 415 promulgated by the SEC pursuant to the Securities Act, as
such Rule may be amended from time to time, orany similar rule or regulation
hereafter adopted by the SEC having substantially the same purpose and effect
as such Rule.
(k) "
SEC
"means the Securities and Exchange Commission or any other federal agency
administering the Securities Act and the Exchange Act at thetime.
(l) "
SecuritiesAct
" shall have the meaning set forth in the Recitals above.
2.
REGISTRATION
.
(a) TheCompany's registration obligations set forth in this Section 2
including its obligations to file Registration Statements, obtaineffectiveness
of Registration Statements, and maintain the continuous effectiveness of any
Registration Statement that has been declaredeffective shall begin on the date
hereof and continue until all the earlier of (i) the date on which the
Investor has sold all of theRegistrable Securities and (ii) the date of
termination of the Purchase Agreement if as of such termination date the
Investor holds noRegistrable Securities (the "
Registration Period
").
(b) Subjectto the terms and conditions of this Agreement, the Company shall
(i) as soon as practicable, but in no case later than the Filing Deadline,cause
the Parent to prepare and file with the SEC an initial Registration Statement
on Form S-3 (or, if the Company is not then eligible,on Form S-1) or any
successor form thereto covering the resale by the Investor of the Required
Registration Amount in accordance withapplicable SEC rules, regulations and
interpretations so as to permit the resale of such Registrable Securities by
the Investor underRule 415 at then prevailing market prices (and not fixed
prices). The Registration Statement shall contain "
Selling Stockholders
"and "
Plan of Distribution
" sections. The Company shall cause the Parent to use its reasonable best
efforts to havethe Registration Statement declared effective by the SEC as
soon as practicable, but in no event later than the Effectiveness Deadline.By
9:30 am on the business day following the date of effectiveness, the Company
shall file with the SEC in accordance with Rule 424 underthe 1933 Act the
final Prospectus to be used in connection with sales pursuant to such
Registration Statement. Prior to the filing ofthe Registration Statement with
the SEC, the Company shall furnish a draft of the Registration Statement to
the Investor for their reviewand comment. The Investor shall furnish comments
on the Registration Statement to the Company within 24 hours of the receipt
thereof fromthe Company. If the Merger Time (as defined in the Purchase
Agreement) does not occur on prior to the date that is 120 days from the
datehereof, the Parent may file a withdrawal of the Registration Statement.
3
(c)
SufficientNumber of Shares Registered
. If at any time all Registrable Securities are not covered by a Registration
Statement filed pursuantto Section 2(a) as a result of Section 2(e) or
otherwise, the Company shall use its commercially reasonable efforts to file
with the SECone or more additional Registration Statements so as to cover all
of the Registrable Securities not covered by such initial RegistrationStatement,
in each case as soon as practicable (taking into account any position of the
staff of the SEC with respect to the date on whichthe Staff will permit such
additional Registration Statement(s) to be filed with the SEC and the rules
and regulations of the SEC). TheCompany shall use its commercially reasonable
efforts to cause each such new Registration Statement to become effective as
soon as reasonablypracticable following the filling thereof with the SEC.
(d) Duringthe Registration Period, the Company shall (i) promptly prepare and
file with the SEC such amendments (including post-effective amendments)and
supplements to a Registration Statement and the Prospectus used in connection
with a Registration Statement, which Prospectus is tobe filed pursuant to Rule
424 promulgated under the Securities Act, as may be necessary to keep such
Registration Statement effectiveat all times during the Registration Period,
(ii) prepare and file with the SEC additional Registration Statements in order
to registerfor resale under the Securities Act all of the Registrable
Securities; (iii) cause the related Prospectus to be amended or supplementedby
any required Prospectus supplement (subject to the terms of this Agreement),
and as so supplemented or amended to be filed pursuantto Rule 424; (iv)
respond as promptly as reasonably possible to any comments received from the
SEC with respect to a Registration Statementor any amendment thereto and as
promptly as reasonably possible provide the Investor true and complete copies
of all correspondence fromand to the SEC relating to a Registration Statement
(provided that the Company may excise any information contained therein which
wouldconstitute material non-public information as to any Investor which has
not executed a confidentiality agreement with the Company); and(v) comply with
the provisions of the Securities Act with respect to the disposition of all
Registrable Securities of the Company coveredby such Registration Statement
until such time as all of such Registrable Securities shall have been disposed
of in accordance with theintended methods of disposition by the seller or
sellers thereof as set forth in such Registration Statement. In the case of
amendmentsand supplements to a Registration Statement which are required to be
filed pursuant to this Agreement (including pursuant to this Section2(c)) by
reason of the Company's filing a report on Form 10-K, Form 10-Q, or Form 8-K
or any analogous report under the ExchangeAct, the Company shall incorporate
such report by reference into the Registration Statement, if applicable, or
shall file such amendmentsor supplements with the SEC on the same day on which
the Exchange Act report is filed which created the requirement for the Company
toamend or supplement the Registration Statement.
4
(e)
Reductionof Registrable Securities Included in a Registration Statement
. Notwithstanding anything contained herein, in the event that the SECrequires
the Company to reduce the number of Registrable Securities to be included in a
Registration Statement in order to allow the Companyto rely on Rule 415 with
respect to a Registration Statement, then the Company shall reduce the number
of Registrable Securities to beincluded in such Registration Statement (after
consultation with the Investor as to the specific Registrable Securities to be
removedtherefrom) to the maximum number of securities as is permitted to be
registered by the SEC. In the event of any reduction in RegistrableSecurities
pursuant to this paragraph, the Company shall use its commercially reasonable
efforts to file one or more New RegistrationStatements with the Commission in
accordance with Section 2(c) until such time as all Registrable Securities
have been included in RegistrationStatements that have been declared effective
and the Prospectuses contained therein are available for use by the Investor.
(f)
Failureto File or Obtain Effectiveness of the Registration Statement or Remain
Current
. If: (i) a Registration Statement is not filed onor prior to its Filing Date,
or (ii) a Registration Statement is not declared effective on or prior to the
Effectiveness Deadline, orthe Company fails to file with the SEC a request for
acceleration in accordance with Rule 461 promulgated under the Securities Act,
withinfive business days of the date that the Company is notified (orally or
in writing, whichever is earlier) by the SEC that a RegistrationStatement will
not be "reviewed," or not subject to further review, or (iii) after the
effectiveness, a Registration Statementceases for any reason to remain
continuously effective as to all Registrable Securities for which it is
required to be effective, or (iv)the Investor is not permitted to utilize the
Prospectus therein to resell such Registrable Securities for more than 15
consecutive calendardays or more than an aggregate of 30 calendar days during
any 12-month period (which need not be consecutive calendar days), or (v)
ifafter the date that is six months from the date hereof, the Company does not
have available adequate current public information as setforth in Rule 144(c)
(any such failure or breach being referred to as an "
Event
"), then in addition to any other rightsthe Investor may have hereunder or
under applicable law, the Company shall be in breach of the term and
conditions of this Agreement andsuch Event shall be deemed an event of default
for so long as such Event remains uncured. During the period of the existence
of an uncuredEvent, the Investor shall have no obligation to accept an Advance
Notice or accept or purchase any Advance Shares (other than any AdvanceShares
purchased by the Investor prior to the occurrence of the Event).
(g)
Piggy-BackRegistrations
. If at any time there is not an effective Registration Statement covering all
of the Registrable Securities and theCompany proposes to register the offer
and sale of any Common Shares under the Securities Act (other than a
registration (i) pursuantto a Registration Statement on Form S-8 ((or other
registration solely relating to an offering or sale to employees or directors
of theCompany pursuant to any employee stock plan or other employee benefit
arrangement), (ii) pursuant to a Registration Statement on FormF-4 (or similar
form that relates to a transaction subject to Rule 145 under the Securities
Act or any successor rule thereto), or (iii)in connection with any dividend or
distribution reinvestment or similar plan), whether for its own account or for
the account of one ormore stockholders of the Company and the form of
Registration Statement to be used may be used for any registration of
Registrable Securities,the Company shall give prompt written notice (in any
event no later than five days prior to the filing of such Registration
Statement)to the holders of Registrable Securities of its intention to effect
such a registration and, shall include in such registration all RegistrableSecur
ities with respect to which the Company has received written requests for
inclusion from the holders of Registrable Securities;
provided
,
however
, that, the Company shall not be required to register any Registrable
Securities pursuant to this Section 2(g) that havebeen sold or may permanently
be sold without any restrictions pursuant to Rule 144, as determined by the
counsel to the Company pursuantto a written opinion letter to such effect,
addressed and acceptable to the Company's transfer agent.
5
(h)
NoInclusion of Other Securities
. In no event shall the Company include any securities other than Registrable
Securities on any RegistrationStatement pursuant to Section 2(a) or Section
2(c) without consulting with the Investor prior to filing such Registration
Statement withthe SEC.
3.
RELATEDOBLIGATIONS
.
(a) TheCompany shall, not less than three business days prior to the filing of
each Registration Statement and not less than one business dayprior to the
filing of any related amendments and supplements to all Registration
Statements (except for annual reports on Form 10-K,supplements and amendments
to update the Registration Statement solely for information reflected in the
Company's annual reportson Form 10-K, quarterly reports on Form 10-Q or
current reports on Form 8-K), furnish to each Investor copies of all such
documents proposedto be filed, which documents (other than those incorporated
or deemed to be incorporated by reference) will be subject to the
reasonableand prompt review of such Investor. The Company shall not file a
Registration Statement or any such Prospectus or any amendments or
supplementsthereto to which the Investor shall reasonably object in good faith;
provided
that, the Company is notified of such objection inwriting no later than two
(2) Trading Days after the Investors have been so furnished copies of a
Registration Statement.
(b) TheCompany shall furnish to each Investor whose Registrable Securities are
included in any Registration Statement, without charge (i) atleast one copy
(which may be in electronic form) of such Registration Statement as declared
effective by the SEC and any amendment(s)thereto, including financial
statements and schedules, all documents incorporated therein by reference, all
exhibits and each preliminaryprospectus, (ii) at least one copy (which may be
in electronic form) of the final prospectus included in such Registration
Statement andall amendments and supplements thereto, and (iii) any documents,
which are not publicly available through EDGAR, as such Investor mayreasonably
request from time to time in order to facilitate the disposition of the
Registrable Securities owned by such Investor.
(c) TheCompany shall use its best efforts to (i) register and qualify the
Registrable Securities covered by a Registration Statement under suchother
securities or "blue sky" laws of such jurisdictions in the United States as
any Investor reasonably requests, (ii) prepareand file in those jurisdictions,
such amendments (including post-effective amendments) and supplements to such
registrations and qualificationsas may be necessary to maintain the
effectiveness thereof during the Registration Period, (iii) take such other
actions as may be necessaryto maintain such registrations and qualifications
in effect at all times during the Registration Period, and (iv) take all other
actionsreasonably necessary or advisable to qualify the Registrable Securities
for sale in such jurisdictions; provided, however, that the Companyshall not
be required in connection therewith or as a condition thereto to (w) make any
change to its articles of incorporation or by-laws,(x) qualify to do business
in any jurisdiction where it would not otherwise be required to qualify but
for this Section 3(c), (y) subjectitself to general taxation in any such
jurisdiction, or (z) file a general consent to service of process in any such
jurisdiction. TheCompany shall promptly notify each Investor who holds
Registrable Securities of the receipt by the Company of any notification with
respectto the suspension of the registration or qualification of any of the
Registrable Securities for sale under the securities or "bluesky" laws of any
jurisdiction in the United States or its receipt of actual notice of the
initiation or threat of any proceedingfor such purpose.
6
(d) Aspromptly as practicable after becoming aware of such event or
development, the Company shall notify each Investor in writing of the
happeningof any event as a result of which the Prospectus included in a
Registration Statement, as then in effect, includes an untrue statementof a
material fact or omission to state a material fact required to be stated
therein or necessary to make the statements therein, inlight of the
circumstances under which they were made, not misleading (provided that in no
event shall such notice contain any material,nonpublic information), and
promptly prepare a supplement or amendment to such Registration Statement to
correct such untrue statementor omission and deliver one electronic copy of
such supplement or amendment to the Investor. The Company shall also promptly
notify eachInvestor in writing (i) when a Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and when a
RegistrationStatement or any post-effective amendment has become effective
(notification of such effectiveness shall be delivered to each Investorby
email on the same day of such effectiveness), (ii) of any request by the SEC
for amendments or supplements to a Registration Statementor related prospectus
or related information, and (iii) of the Company's reasonable determination
that a post-effective amendmentto a Registration Statement would be
appropriate. The Company shall respond as promptly as reasonably practicable
to any comments receivedfrom the SEC with respect to a Registration Statement
or any amendment thereto.
(e) TheCompany shall use its best efforts to prevent the issuance of any stop
order or other suspension of effectiveness of a Registration Statement,or the
suspension of the qualification of any of the Registrable Securities for sale
in any jurisdiction within the United States of Americaand, if such an order
or suspension is issued, to obtain the withdrawal of such order or suspension
at the earliest possible moment andto notify each Investor who holds
Registrable Securities being sold of the issuance of such order and the
resolution thereof or its receiptof actual notice of the initiation or threat
of any proceeding for such purpose.
(f) Withoutlimiting any obligation of the Company under the Purchase
Agreement, the Company shall use commercially reasonable efforts either to
causeall of the Registrable Securities covered by each Registration Statement
to be listed on the Principal Market. The Company shall pay allfees and
expenses in connection with satisfying its obligation under this Section 3(f).
(g) TheCompany shall hold in confidence and not make any disclosure of
information concerning the Investor provided to the Company unless
(i)disclosure of such information is necessary to comply with federal or state
securities laws, (ii) the disclosure of such information isnecessary to avoid
or correct a misstatement or omission in any Registration Statement, (iii) the
release of such information is orderedpursuant to a subpoena or other final,
non-appealable order from a court or governmental body of competent
jurisdiction, or (iv) suchinformation has been made generally available to the
public other than by disclosure in violation of this Agreement or any other
agreement.The Company agrees that it shall, upon learning that disclosure of
such information concerning an Investor is sought in or by a courtor
governmental body of competent jurisdiction or through other means, give
prompt written notice to such Investor and allow such Investor,at the
Investor's expense, to undertake appropriate action to prevent disclosure of,
or to obtain a protective order for, such information.
7
(h) TheCompany shall cooperate with the holders of the Registrable Securities
to facilitate the timely preparation and delivery of certificatesrepresenting
the Registrable Securities to be sold pursuant to such Registration Statement
or Rule 144 free of any restrictive legendsand representing such number of
Common Shares and registered in such names as the holders of the Registrable
Securities may reasonablyrequest a reasonable period of time prior to sales of
Registrable Securities pursuant to such Registration Statement or Rule;
provided
,that the Company may satisfy its obligations hereunder without issuing
physical stock certificates through the use of The Depository TrustCompany's
Direct Registration System.
(i) TheCompany shall use its best efforts to cause the Registrable Securities
to be registered with or approved by such other governmental agenciesor
authorities as may be necessary to consummate the disposition of such
Registrable Securities.
(j) TheCompany shall otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC in connection with any
registrationhereunder.
(k) Withintwo business days after a Registration Statement which covers
Registrable Securities is declared effective by the SEC, the Company
shalldeliver, and shall cause legal counsel for the Company to deliver, to the
transfer agent for such Registrable Securities (with copiesto the Investor
whose Registrable Securities are included in such Registration Statement)
confirmation that such Registration Statementhas been declared effective by
the SEC.
(l) TheCompany shall take all other reasonable actions necessary to expedite
and facilitate disposition by each Investor of Registrable Securitiespursuant
to a Registration Statement.
4.
OBLIGATIONSOF THE INVESTOR
.
(a) TheInvestor agrees that, upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 3(d)such Investor
shall as soon as reasonably practicable discontinue disposition of Registrable
Securities pursuant to any Registration Statementcovering such Registrable
Securities until the Investor's receipt of the copies of the supplemented or
amended prospectus contemplatedby Section 3(d) or receipt of notice that no
supplement or amendment is required. Notwithstanding anything to the contrary,
subject tocompliance with the securities laws, the Company shall cause its
transfer agent to deliver unlegended certificates for Common Shares toa
transferee of an Investor in accordance with the terms of the Purchase
Agreement in connection with any sale of Registrable Securitieswith respect to
which an Investor has entered into a contract for sale prior to the Investor's
receipt of a notice from the Companyof the happening of any event of the kind
described in Section 3(d) and for which the Investor has not yet settled.
8
(b) TheInvestor covenants and agrees that it will comply with the prospectus
delivery requirements of the Securities Act as applicable to itor an exemption
therefrom in connection with sales of Registrable Securities pursuant to the
Registration Statement.
(c) TheInvestor, by its acceptance of the Registrable Securities, agrees to
cooperate with the Company as reasonably requested by the Companyin connection
with the preparation and filing of each Registration Statement hereunder,
unless the Investor has notified the Company inwriting of the Investor's
election to exclude all of the Investor's Registrable Securities from such
Registration Statement.
5.
EXPENSESOF REGISTRATION
.
All expenses incurred by theCompany in complying with its obligations pursuant
to this Agreement and in connection with the registration and disposition of
RegistrableSecurities shall be paid by the Company, including, without
limitation, all registration, listing and qualifications fees, printers,
feesand expenses of the Company's counsel and accountants (except legal fees
of Investor's counsel associated with the review of theRegistration Statement).
6.
INDEMNIFICATION
.
With respect to RegistrableSecurities which are included in a Registration
Statement under this Agreement:
(a) Tothe fullest extent permitted by law, the Company will, and hereby does,
indemnify, hold harmless and defend the Investor, the directors,officers,
partners, employees, agents, representatives of, and each Person, if any, who
controls any Investor within the meaning of theSecurities Act or the Exchange
Act (each, an "
Indemnified Person
"), against any losses, claims, damages, liabilities,judgments, fines,
penalties, charges, costs, reasonable attorneys' fees, amounts paid in
settlement or expenses, joint or several(collectively, "
Claims
") incurred in investigating, preparing or defending any action, claim, suit,
inquiry, proceeding,investigation or appeal taken from the foregoing by or
before any court or governmental, administrative or other regulatory agency,
bodyor the SEC, whether pending or threatened, whether or not an indemnified
party is or may be a party thereto ("
Indemnified Damages
"),to which any of them may become subject insofar as such Claims (or actions
or proceedings, whether commenced or threatened, in respectthereof) arise out
of or are based upon: (i) any untrue statement or alleged untrue statement of
a material fact in a Registration Statementor any post-effective amendment
thereto or in any filing made in connection with the qualification of the
offering under the securitiesor other "blue sky" laws of any jurisdiction in
which Registrable Securities are offered ("
Blue Sky Filing
"),or the omission or alleged omission to state a material fact required to be
stated therein or necessary to make the statements thereinnot misleading; (ii)
any untrue statement or alleged untrue statement of a material fact contained
in any final prospectus (as amendedor supplemented, if the Company files any
amendment thereof or supplement thereto with the SEC) or the omission or
alleged omission tostate therein any material fact necessary to make the
statements made therein, in light of the circumstances under which the
statementstherein were made, not misleading; or (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act,any other
law, including, without limitation, any state securities law, or any rule or
regulation there under relating to the offer orsale of the Registrable
Securities pursuant to a Registration Statement (the matters in the foregoing
clauses (i) through (iii) being,collectively, "
Violations
"). The Company shall reimburse the Investors and each such controlling person
promptly assuch expenses are incurred and are due and payable, for any legal
fees or disbursements that are reasonably incurred by them or otherreasonable
expenses incurred by them in connection with investigating or defending any
such Claim. Notwithstanding anything to the contrarycontained herein, the
indemnification agreement contained in this Section 6(a): (x) shall not apply
to a Claim by an Indemnified Personarising out of or based upon a Violation
which occurs in reliance upon and in conformity with information furnished in
writing to theCompany by such Indemnified Person expressly for use in
connection with the preparation of the Registration Statement or any such
amendmentthereof or supplement thereto; (y) shall not be available to the
extent such Claim is based on a failure of the Investor to deliver orto cause
to be delivered the prospectus made available by the Company, if such
prospectus was timely made available by the Company pursuantto Section 3(c);
and (z) shall not apply to amounts paid in settlement of any Claim if such
settlement is effected without the priorwritten consent of the Company, which
consent shall not be unreasonably withheld. Such indemnity shall remain in
full force and effectregardless of any investigation made by or on behalf of
the Indemnified Person.
9
(b) Inconnection with a Registration Statement, the Investor agrees to
indemnify, hold harmless and defend, to the same extent and in the samemanner
as is set forth in Section 6(a), the Company, each of its directors, each of
its officers, employees, representatives, or agentsand each Person, if any,
who controls the Company within the meaning of the Securities Act or the
Exchange Act (each an "
IndemnifiedParty
"), against any Claim or Indemnified Damages to which any of them may become
subject, under the Securities Act, the ExchangeAct or otherwise, insofar as
such Claim or Indemnified Damages arise out of or is based upon any Violation,
in each case to the extent,and only to the extent, that such Violation occurs
(i) in reliance upon and in conformity with written information furnished to
the Companyby such Investor expressly for use in connection with such
Registration Statement or (ii) from the Investor's violation of any
prospecutsdelivery requirements under the Securities Act, the Exchange Act,
any other law, including, without limitation, any state securities law,or any
rule or regulation there under relating to the offer or sale of the
Registrable Securities pursuant to a Registration Statement;and, subject to
Section 6(d), such Investor will reimburse any legal or other expenses
reasonably incurred by them in connectionwith investigating or defending any
such Claim; provided, however, that the indemnity agreement contained in this
Section 6(b) and theagreement with respect to contribution contained in
Section 7 shall not apply to amounts paid in settlement of any Claim if such
settlementis effected without the prior written consent of such Investor,
which consent shall not be unreasonably withheld, conditioned or delayed;provide
d, further, however, that, absent fraud or gross negligence, the Investor
shall be liable under this Section 6(b) for only thatamount of a Claim or
Indemnified Damages as does not exceed the net proceeds to such Investor as a
result of the sale of Registrable Securitiespursuant to such Registration
Statement. Such indemnity shall remain in full force and effect regardless of
any investigation made byor on behalf of such Indemnified Party. Notwithstanding
anything to the contrary contained herein, the indemnification agreement
containedin this Section 6(b) with respect to any prospectus shall not inure
to the benefit of any Indemnified Party if the untrue statement oromission of
material fact contained in the prospectus was corrected and such new
prospectus was delivered to each Investor prior to suchInvestor's use of the
prospectus to which the Claim relates.
10
(c) Promptlyafter receipt by an Indemnified Person or Indemnified Party under
this Section 6 of notice of the commencement of any action or proceeding(includi
ng any governmental action or proceeding) involving a Claim, such Indemnified
Person or Indemnified Party shall, if a Claim inrespect thereof is to be made
against any indemnifying party under this Section 6, deliver to the
indemnifying party a written noticeof the commencement thereof, and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying partyso desires, jointly with any other indemnifying party
similarly noticed, to assume control of the defense thereof with counsel
reasonablymutually satisfactory to the indemnifying party and the Indemnified
Person or the Indemnified Party, as the case may be; provided, however,that an
Indemnified Person or Indemnified Party shall have the right to retain its own
counsel with the fees and expenses of not morethan one (1) counsel for such
Indemnified Person or Indemnified Party to be paid by the indemnifying party,
if, in the reasonable opinionof counsel retained by the indemnifying party,
the representation by such counsel of the Indemnified Person or Indemnified
Party and theindemnifying party would be inappropriate due to actual or
potential differing interests between such Indemnified Person or IndemnifiedPart
y and any other party represented by such counsel in such proceeding. The
Indemnified Party or Indemnified Person shall cooperatefully with the
indemnifying party in connection with any negotiation or defense of any such
action or claim by the indemnifying partyand shall furnish to the indemnifying
party all information reasonably available to the Indemnified Party or
Indemnified Person whichrelates to such action or claim. The indemnifying
party shall keep the Indemnified Party or Indemnified Person fully apprised at
all timesas to the status of the defense or any settlement negotiations with
respect thereto. No indemnifying party shall be liable for any settlementof
any action, claim or proceeding effected without its prior written consent;
provided, however, that the indemnifying party shall notunreasonably withhold,
delay or condition its consent. No indemnifying party shall, without the prior
written consent of the IndemnifiedParty or Indemnified Person, which consent
shall not be unreasonably withheld, conditioned or delayed, consent to entry
of any judgmentor enter into any settlement or other compromise which does not
include as an unconditional term thereof the giving by the claimant
orplaintiff to such Indemnified Party or Indemnified Person of a release from
all liability in respect to such claim or litigation. Followingindemnification
as provided for hereunder, the indemnifying party shall be subrogated to all
rights of the Indemnified Party or IndemnifiedPerson with respect to all third
parties, firms or corporations relating to the matter for which indemnification
has been made. The failureto deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such action shall not
relievesuch indemnifying party of any liability to the Indemnified Person or
Indemnified Party under this Section 6, except to the extent thatthe
indemnifying party is prejudiced in its ability to defend such action.
(d) Theindemnification required by this Section 6 shall be made by periodic
payments of the amount thereof during the course of the investigationor
defense, as and when bills are received or Indemnified Damages are incurred.
(e) Theindemnity agreements contained herein shall be in addition to (i) any
cause of action or similar right of the Indemnified Party orIndemnified Person
against the indemnifying party or others, and (ii) any liabilities the
indemnifying party may be subject to pursuantto the law.
11
7.
CONTRIBUTION
.
To the extent any indemnificationby an indemnifying party is prohibited or
limited by law, the indemnifying party agrees to make the maximum contribution
with respectto any amounts for which it would otherwise be liable under
Section 6 to the fullest extent permitted by law; provided, however, that:(i)
no seller of Registrable Securities guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the SecuritiesAct) shall be entitled
to contribution from any seller of Registrable Securities who was not guilty
of fraudulent misrepresentation; and(ii) contribution by any seller of
Registrable Securities shall be limited in amount to the net amount of
proceeds received by such sellerfrom the sale of such Registrable Securities.
8.
REPORTSUNDER THE EXCHANGE ACT
.
With a view to making availableto the Investor the benefits of Rule 144
promulgated under the Securities Act or any similar rule or regulation of the
SEC that may atany time permit the Investors to sell securities of the Company
to the public without registration, and as a material inducement to
theInvestor's purchase of the Promissory Notes, the Company represents,
warrants, and covenants to the following:
(a) TheCompany is subject to the reporting requirements of section 13 or 15(d)
of the Exchange Act and has filed all required reports under section13 or
15(d) of the Exchange Act during the 12 months prior to the date hereof (or
for such shorter period that the issuer was requiredto file such reports),
other than Form 8-K reports.
(b) Duringthe Registration Period, the Company shall file with the SEC in a
timely manner all required reports under section 13 or 15(d) of theExchange
Act (it being understood that nothing herein shall limit the Company's
obligations under the Purchase Agreement) and suchreports shall conform to the
requirement of the Exchange Act and the SEC for filing thereunder.
(c) TheCompany shall furnish to the Investor so long as such Investor owns
Registrable Securities, promptly upon request, (i) a written statementby the
Company that it has complied with the reporting requirements of Rule 144, (ii)
a copy of the most recent annual or quarterly reportof the Company and such
other reports and documents so filed by the Company, and (iii) such other
information as may be reasonably requestedto permit the Investor to sell such
securities pursuant to Rule 144 without registration.
9.
AMENDMENTOF REGISTRATION RIGHTS
.
Provisions of this Agreementmay be amended and the observance thereof may be
waived (either generally or in a particular instance and either retroactively
or prospectively),only with the written consent of the Company and the
Investor. Any amendment or waiver effected in accordance with this Section
9shall be binding upon each of the Investor and the Company. No such amendment
shall be effective to the extent that it applies to fewerthan all of the
holders of the Registrable Securities. No consideration shall be offered or
paid to any Person to amend or consent toa waiver or modification of any
provision of any of this Agreement unless the same consideration also is
offered to all of the partiesto this Agreement.
12
10.
MISCELLANEOUS
.
(a) APerson is deemed to be a holder of Registrable Securities whenever such
Person owns or is deemed to own of record such Registrable Securitiesor owns
the right to receive the Registrable Securities. If the Company receives
conflicting instructions, notices or elections from twoor more Persons with
respect to the same Registrable Securities, the Company shall act upon the
basis of instructions, notice or electionreceived from the registered owner of
such Registrable Securities.
(b)
NoOther Registrations
. The Company shall not include any other securities on a Registration
Statement which includes Registrable Securitiesunless otherwise agreed by the
Investor.
(c) Anynotices, consents, waivers or other communications required or
permitted to be given under the terms of this Agreement must be in writingand
will be deemed to have been delivered pursuant to the notice provisions of the
Purchase Agreement or to such other address and/orelectronic mail address
and/or to the attention of such other person as the recipient party has
specified by written notice given to eachother party five (5) days prior to
the effectiveness of such change. Written confirmation of receipt (A) given by
the recipient of suchnotice, consent, waiver or other communication, (B)
electronically generated by the sender's email service provider containing
thetime, date, and recipient email or (C) provided by a courier or overnight
courier service shall be rebuttable evidence of personal service,receipt by
email or receipt from a nationally recognized overnight delivery service in
accordance with this section.
(d) Failureof any party to exercise any right or remedy under this Agreement
or otherwise, or delay by a party in exercising such right or remedy,shall not
operate as a waiver thereof.
(e) Thelaws of the State of New York shall govern all issues concerning the
relative rights of the Company and the Investor as its stockholder.All other
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by the internallaws of the State of New
York, without giving effect to any choice of law or conflict of law provision
or rule (whether of the State ofNew York or any other jurisdiction) 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 non-exclusive
jurisdiction of the Supreme Court of the State of New York, sitting in NewYork
County, New York and federal courts for the Southern District of New York
sitting New York, New York, for the adjudication of anydispute hereunder or in
connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives,and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any suchcourt, that such suit, action or proceeding is brought
in an inconvenient forum or that the venue of such suit, action or proceeding
isimproper. Each party hereby irrevocably waives personal service of process
and consents to process being served in any such suit, actionor proceeding by
mailing a copy thereof to such party at the address for such notices to it
under this Agreement and agrees that suchservice shall constitute good and
sufficient service of process and notice thereof. Nothing contained herein
shall be deemed to limitin any way any right to serve process in any manner
permitted by law. If any provision of this Agreement shall be invalid or
unenforceablein any jurisdiction, such invalidity or unenforceability shall
not affect the validity or enforceability of the remainder of this Agreementin
that jurisdiction or the validity or enforceability of any provision of this
Agreement in any other jurisdiction. EACH PARTY HEREBYIRREVOCABLY WAIVES ANY
RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE
ADJUDICATION OF ANY DISPUTE HEREUNDER OR INCONNECTION HEREWITH OR ARISING OUT
OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
13
(f) ThisAgreement shall inure to the benefit of and be binding upon the
permitted successors and assigns of each of the parties hereto.
(g) Theheadings in this Agreement are for convenience of reference only and
shall not limit or otherwise affect the meaning hereof.
(h) ThisAgreement may be executed in identical counterparts, both of which
shall be considered one and the same agreement and shall become effectivewhen
counterparts have been signed by each party and delivered to the other party.
Electronically scanned and delivered signatures (includingany electronic
signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic
Transactions Act, the Electronic Signaturesand Records Act or other applicable
law, e.g., www.docusign.com), including by e-mail attachment, shall be deemed
to have been duly andvalidly delivered and be valid and effective for all
purposes of this Agreement.
(i) Eachparty shall do and perform, or cause to be done and performed, all
such further acts and things, and shall execute and deliver all suchother
agreements, certificates, instruments and documents, as the other party may
reasonably request in order to carry out the intentand accomplish the purposes
of this Agreement and the consummation of the transactions contemplated hereby.
(j) Thelanguage used in this Agreement will be deemed to be the language
chosen by the parties to express their mutual intent and no rules ofstrict
construction will be applied against any party.
(k) ThisAgreement is intended for the benefit of the parties hereto and their
respective permitted successors and assigns, and is not for thebenefit of, nor
may any provision hereof be enforced by, any other Person.
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IN WITNESS WHEREOF,
the Investor and the Company have caused their signature page to this
Registration Rights Agreement to be duly executed as of the datefirst above
written.
Triller Corp.
By: /s/ Bobby Sarnevesht
Name: Bobby Sarnevesht
Title: Executive Chairman
AGBA Group Holding Limited
By:
Name:
Title:
YA II PN, Ltd.
By: Yorkville Advisors Global, LP
Its: Investment Manager
By: Yorkville Advisors Global II, LLC
Its: General Partner
By:
Name:
Title:
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