As filed with the Securities and Exchange Commission
on February 1, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AgileThought,
Inc.
(Exact name of registrant as specified in its charter)
| Delaware |
|
87-2302509 |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. Employer
Identification Number) |
222 W. Las Colinas Blvd. Suite 1650E
Irving, Texas 75039
(971) 501-1140
(Address, including zip code, and telephone
number, including area code, of registrant’s principal executive offices)
Manuel Senderos Fernández
Chief Executive Officer
AgileThought, Inc.
222 W. Las Colinas Blvd. Suite 1650E
Irving, Texas 75039
(971) 501-1440
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
Jennifer Carlson
Mayer Brown LLP
3000 El Camino Real
Palo Alto, CA 94306
Tel: (650) 331-2000
Approximate date of commencement
of proposed sale to the public: from time to time after this Registration Statement becomes effective.
If the only securities being registered
on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: ☐
If any of the securities being registered
on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment plans, check the following box: ☒
If this Form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment
filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number
of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement
pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment
to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the
registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth
company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company”
and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer |
☐ |
|
Accelerated filer |
☒ |
| Non-accelerated filer |
☐ |
|
Smaller reporting company |
☒ |
| |
|
|
Emerging growth company |
☒ |
If an emerging growth company, indicate
by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act. ☒
_______________
The Registrant hereby amends this registration
statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment that
specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities
Act of 1933, or until this registration statement shall become effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
The information contained
in this prospectus is not complete and may be changed. These securities may not be sold until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting an offer
to buy these securities in any jurisdiction where the offer or sale is not permitted.
Subject
to Completion, Dated February 1, 2023
PROSPECTUS
$100,000,000
Class A Common Stock
Preferred Stock
Debt Securities
Depositary Shares
Warrants
Purchase Contracts
Units
Subscription Rights
From time to time, in one
or more series, we may offer to sell the securities identified above. This prospectus describes some of the general terms that may apply
to these securities and the general manner in which they may be offered. The specific terms of any securities to be offered, and the specific
manner in which they may be offered, will be described in the applicable prospectus supplement to this prospectus. A prospectus supplement
may also add, update or change information contained in this prospectus. The aggregate offering price of the securities we sell pursuant
to this prospectus will not exceed $100,000,000. This prospectus may not be used to offer or sell securities unless accompanied by the
applicable prospectus supplement describing the method and terms of the applicable offering.
Our Class A Common Stock is
listed on the Nasdaq Capital Market under the symbol “AGIL.” On January 27, 2023, the Company had 48,402,534 shares issued
and outstanding, and the last reported sale price of our Class A Common Stock was $4.20 per share.
We may offer and sell
the securities directly, through agents, dealers or underwriters as designated from time to time, or through a combination of these methods.
See “Plan of Distribution.”
Investing in our securities
involves a high degree of risk. You should review carefully the risks and uncertainties described under the heading “Risk Factors”
on page 3 of this prospectus and under similar headings in the applicable prospectus supplement, any free writing prospectuses we have
authorized for use in connection with a specific offering and in the documents incorporated by reference herein and therein.
Neither the Securities
and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus
is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this
prospectus is , 2023
ABOUT THIS PROSPECTUS
This prospectus is part of
a registration statement on Form S-3 that we filed with the Securities and Exchange Commission, or SEC, using the “shelf”
registration process. Under this process, we may, from time to time, in one or more offerings, sell any combination of the securities
described in this prospectus up to a total aggregate offering price of $100,000,000 (or the equivalent thereof in any other currency).
This prospectus provides you with a general description of the securities we may offer.
We
have not authorized anyone to provide you with any information or to make any representations other than those contained in this prospectus
or any applicable prospectus supplement or any free writing prospectuses prepared by or on behalf of us or to which we have referred you.
We do not take responsibility for, or provide any assurance as to the reliability of, any other information that others may give you.
We will not make an offer to sell these securities in any jurisdiction where the offer or sale is not permitted.
The information contained
in this prospectus, any applicable prospectus supplement, any related free writing prospectus, and the documents incorporated by reference
herein and therein, are accurate only as of their respective dates, regardless of the time of delivery of this prospectus, any applicable
prospectus supplement or any related free writing prospectus, or any sale of a security. We urge you to read carefully this prospectus
(as supplemented and amended), together with the information incorporated herein by reference as described under the heading “Incorporation
of Certain Information by Reference” before deciding whether to invest in any of the securities being offered.
This prospectus contains summaries
of certain provisions contained in some of the documents described herein, but reference is made to the actual documents for complete
information. All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to
herein have been filed, will be filed or will be incorporated by reference as exhibits to the registration statement of which this prospectus
is a part, and you may obtain copies of those documents as described below under the section entitled “Where You Can Find More
Information.”
Unless
the context indicates otherwise, references in this prospectus to the “Company,” “AgileThought,” “we,”
“us,” “our” and similar terms refer to AgileThought, Inc., a Delaware corporation.
agilethought, inc.
Business Overview
Our mission is to fundamentally
change the way people and organizations view, approach and achieve digital transformation. We help our clients transform their businesses
by innovating, building, continually improving and running new technology solutions at scale. Our services enable our clients to more
effectively leverage technology, optimize cost, grow, and compete.
We combine our agile-first
approach with expertise in next-generation technologies to help our clients overcome the challenges of digital transformation to innovate,
build, run and continually improve solutions at scale using DevOps tools and methodologies. We offer client-centric, onshore and nearshore
digital transformation services that include consulting, design and user experience, custom enterprise application development, DevOps,
cloud computing, mobile, data management, advanced analytics and automation expertise. Our professionals have direct industry operating
expertise that allows them to understand the business context and the technology pain points that enterprises encounter. We leverage this
expertise to create customized frameworks and solutions throughout clients’ digital transformation journeys. We invest in understanding
the specific needs and requirements of our clients and tailor our services for them. We believe our personalized, hands-on approach allows
us to demonstrate our differentiated capabilities and build trust and confidence with new clients and strengthen relationships with current
ones, which enables a trusted client advisor relationship. By leveraging our AgileThought Scaled Framework and our industry expertise,
we rapidly and predictably deliver enterprise-level software solutions at scale. Our deep expertise in next-generation technologies facilitates
our ability to provide enterprise-class capabilities in key areas of digital transformation.
History of the Company
We offer client-centric, onshore
and nearshore agile-first digital transformation services that help our clients transform by building, improving and running new solutions
at scale. Our services enable our clients to leverage technology more effectively to focus on better business outcomes. From consulting
to application development and cloud services to data management and automation, we strive to create a transparent, collaborative, and
responsive experience for our clients.
Prior to our incorporation
in Delaware, we were a variable stock corporation organized under the laws of Mexico. We filed a Certificate of Domestication and a Certificate
of Incorporation to become a Delaware corporation in February 2019 and changed our name to AN Global Inc. On October 23, 2019, we filed
a Certificate of Amendment to our Certificate of Incorporation to change our name to AgileThought, Inc.
Since our inception, we have
added a variety of services, acquired several businesses and expanded our operations throughout North America:
| ● | 2000:
Founded in Mexico. |
| | | |
| ● | 2015
– 2016: Partnered with Nexxus, completed five acquisitions and established capabilities
in digital transformation, cloud solutions, advanced analytics and digital marketing. Also
launched digital transformation services. |
| | | |
| ● | 2017:
Partnered with Credit Suisse, completed three acquisitions and established capabilities in
ecommerce. |
| | | |
| ● | 2018:
Acquired 4th Source, expanded U.S. footprint and enhanced presence with clients from the
healthcare industry. |
| | | |
| ● | 2019:
Acquired AgileThought, LLC, expanded U.S. footprint, enhanced delivery capabilities and presence
with large clients within the professional services industry, relocated global headquarters
to Dallas, Texas and changed name to AgileThought, Inc. |
On August 23, 2021 (“Closing
Date”), LIV Capital Acquisition Corp. (“LIVK”), a special purpose acquisition company, and AgileThought, Inc. (“Legacy
AgileThought”) consummated the transactions contemplated by the definitive agreement and plan of merger (“Merger Agreement”),
dated May 9, 2021 (“Business Combination”). Pursuant to the terms of the Merger Agreement, Legacy AgileThought merged with
and into LIVK, whereupon the separate corporate existence of Legacy AgileThought ceased, with LIVK surviving such merger (the “Surviving
Company”). On the Closing Date, the Surviving Company changed its name to AgileThought, Inc., under which we operate today.
Emerging Growth Company Status
We are an “emerging
growth company,” as defined in the Jumpstart Our Business Startups Act of 2012 (“JOBS Act”). As an emerging growth company,
we are exempt from certain requirements related to executive compensation, including the requirements to hold a nonbinding advisory vote
on executive compensation, to provide information relating to the ratio of total compensation of our Chief Executive Officer to the median
of the annual total compensation of all of our employees and to disclose information reflecting
the relationship between executive compensation actually paid by us and our financial performance, each as required by the Investor
Protection and Securities Reform Act of 2010, which is part of the Dodd-Frank Wall Street Reform and Consumer Protection Act.
Section 102(b)(1) of
the JOBS Act exempts emerging growth companies from being required to comply with new or revised financial accounting standards until
private companies are required to comply with the new or revised financial accounting standards. The JOBS Act provides that a company
can choose not to take advantage of the extended transition period and comply with the requirements that apply to non-emerging growth
companies, and any such election to not take advantage of the extended transition period is irrevocable.
Our
predecessor elected to avail itself of the extended transition period, and following the consummation of the Business Combination,
we remain an emerging growth company and are taking advantage of the benefits of the extended transition period that emerging growth company
status permits. During the extended transition period, it may be difficult or impossible to compare our financial results with the financial
results of another public company that complies with public company effective dates for accounting standard updates because of the potential
differences in accounting standards used.
We will remain an emerging
growth company under the JOBS Act until the earliest of (a) December 31, 2024, (b) the last date of our fiscal year in which
we have a total annual gross revenue of at least $1.07 billion, (c) the date on which we are deemed to be a “large accelerated
filer” under the rules of the SEC with at least $700.0 million of outstanding securities held by non-affiliates or
(d) the date on which we have issued more than $1.0 billion in non-convertible debt securities during the previous
three years.
Risks Associated with our Business
Our business is subject to
numerous risks, as described under the heading “Risk Factors” and under similar headings in the applicable prospectus
supplement, any related free writing prospectus and the documents incorporated by reference herein and therein.
Corporate Information
Our
principal executive offices are located at 222 W. Las Colinas Blvd. Suite 1650E, Irving, Texas 75039, and our telephone number is
(971) 501-1440. Our corporate website address is www.agilethought.com. Information contained on or accessible through
our website is not a part of this prospectus, and the inclusion of our website address in this prospectus is an inactive textual reference
only.
“AgileThought”
and our other registered and common law trade names, trademarks and service marks are property of AgileThought, Inc. This prospectus contains,
and any applicable prospectus supplement, any related free writing prospectus and the documents incorporated by reference herein and therein
may contain, additional trade names, trademarks and service marks of others, which are the property of their respective owners. Solely
for convenience, trademarks and trade names referred to in this prospectus may appear without the ® or ™ symbols.
RISK FACTORS
Investment in our securities
involves risks. Before deciding whether to invest in our securities, you should carefully consider the risks and uncertainties described
in the applicable prospectus supplement, any related free writing prospectus and the documents incorporated by reference therein (including
our most recent Annual Report on Form 10-K and our Quarterly Reports on Form 10-Q, as well as any amendments thereto reflected in subsequent
filings with the SEC), together with other information contained and incorporated by reference in the foregoing. The
risks and uncertainties described in these documents are not the only ones we face. Additional risks and uncertainties not presently
known to us or that we currently believe to be immaterial may also adversely affect our business. If any of the events or developments
described in these documents were to occur, our business, prospects, operating results and financial condition could suffer materially,
the trading price of our securities could decline, and you could lose all or part of your investment. Please also read carefully
the section below entitled “Cautionary Note Regarding Forward-Looking Statements.”
CAUTIONARY NOTE
REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus, the applicable prospectus supplement and any free writing prospectus, including the documents we incorporate by reference
herein and therein, contain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended
(the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
We have based these forward-looking statements on our current expectations and projections about future events. All
statements, other than statements of present or historical fact included in this prospectus, our future financial performance, strategy,
future operations, future operating results, estimated revenues, losses, projected costs, prospects, plans and objectives of management
are forward-looking statements. Any statements that refer to projections, forecasts or other characterizations of future events or
circumstances, including any underlying assumptions, are forward-looking statements. In some cases, you can identify forward-looking statements
by terminology such as “anticipate,” “believe,” “continue,” “could,” “estimate,”
“expect,” “intends,” “may,” “might,” “plan,” “possible,” “potential,”
“predict,” “project,” “should,” “will,” “would” or the negative of such terms
or other similar expressions. These forward-looking statements are subject to known and unknown risks, uncertainties and assumptions
about us that may cause our actual results, levels of activity, performance or achievements to be materially different from any future
results, levels of activity, performance or achievements expressed or implied by such forward-looking statements.. We caution you
that these forward-looking statements are subject to numerous risks and uncertainties, most of which are difficult to predict and
many of which are beyond our control.
Forward-looking
statements contained in this prospectus, the applicable prospectus supplement and any free writing prospectus, including the documents
we incorporate by reference herein and therein include, but are not limited to, statements regarding:
| ● | the
financial and business performance of the Company; |
| | | |
| ● | our
ability to repay and/or continue to service our indebtedness; |
| | | |
| ● | our
future capital requirements and sources and uses of cash; |
| | | |
| ● | our
ability to obtain funding for our future operations; |
| | | |
| ● | our
business, expansion plans and opportunities; |
| | | |
| ● | changes
in our strategy, future operations, financial position, estimated revenues and losses, projected
costs, prospects and plans; |
| | | |
| ● | our
ability to develop, maintain and expand client relationships, including relationships with
our largest clients; |
| | | |
| ● | changes
in domestic and foreign business, market, financial, political, regulatory and legal conditions; |
| | | |
| ● | our
ability to recognize the anticipated benefits of the business combination, which may be affected
by, among other things, competition and our ability to grow and manage growth profitably; |
| | | |
| ● | costs
related to the business combination; |
| ● | our
ability to successfully identify and integrate any future acquisitions; |
| | | |
| ● | our
ability to attract and retain highly skilled information technology professionals; |
| | | |
| ● | our
ability to maintain favorable pricing, utilization rates and productivity levels for our
information technology professionals and their services; |
| | | |
| ● | our
ability to innovate successfully and maintain our relationships with key vendors; |
| | | |
| ● | our
ability to provide our services without security breaches and comply with changing regulatory,
legislative and industry standard developments regarding privacy and data security matters; |
| | | |
| ● | our
ability to operate effectively in multiple jurisdictions in Latin America and in the United
States in the different business, market, financial, political, legal and regulatory conditions
in the different markets; |
| | | |
| ● | developments
and projections relating to our competitors and industry; |
| | | |
| ● | the
impact of health epidemics, including the COVID-19 pandemic, on our business and the actions
we may take in response thereto; |
| | | |
| ● | expectations
regarding the time during which we will be an emerging growth company under the Jumpstart
Our Business Startups Act of 2012, as amended; |
| | | |
| ● | changes
in applicable laws or regulations; |
| | | |
| ● | the
outcome of any known and unknown litigation or legal proceedings and regulatory proceedings
involving us; and |
| | | |
| ● | our
ability to maintain the listing of our securities. |
We caution you that the foregoing
list may not contain all of the forward-looking statements made in this prospectus, the applicable prospectus supplement and any free
writing prospectus, including the documents we incorporate by reference herein and therein. The forward-looking statements made in these
documents relate only to events as of the date on which the statements are made. We may not actually achieve the plans, intentions or
expectations disclosed in our forward-looking statements and you should not place undue reliance on our forward-looking statements. We
do not assume any obligation to update any forward-looking statements, whether as a result of new information, future events or otherwise,
except as required by law.
USE
OF PROCEEDS
Unless we specify otherwise in an accompanying
prospectus supplement, we will use the net proceeds from the sale of the securities offered by this prospectus for general corporate purposes,
including for working capital and capital expenditures.
DESCRIPTION OF
Securities
The descriptions of the
securities contained in this prospectus, together with any applicable prospectus supplement or any related free writing prospectus, summarize
all of the material terms and provisions of the various types of securities that we may offer. The following description of our securities
and certain provisions of our amended and restated certificate of incorporation (the “charter”) and bylaws (the “bylaws”),
are summaries and are qualified in their entirety by reference to the full text of the charter and bylaws, copies of which have been filed
with the SEC, and applicable provisions of the General Corporation Law of the State of Delaware (the “DGCL”).
We will describe in any
applicable prospectus supplement, or any related free writing prospectus relating to any securities the particular terms of the securities
offered by that prospectus supplement or free writing prospectus. The terms of the securities offered by any applicable prospectus supplement
or related free writing prospectus may differ from the terms we have summarized below. We may also include in the applicable prospectus
supplement or related free writing prospectus information about material United States Federal income tax considerations relating to the
securities and the securities exchange, if any, on which the securities will be listed.
DESCRIPTION OF
CAPITAL STOCK
Our charter authorizes the
issuance of 220,000,000 shares of capital stock, consisting of (x) 210,000,000 shares of Class A Common Stock, par value $0.0001 per share
and (y) 10,000,000 shares of our preferred stock, par value $0.0001 per share.
As of January 27, 2023, there
were 48,402,534 shares of our Class A Common Stock outstanding and no shares of preferred stock outstanding.
Class A Common Stock
Listing
Our Class A Common Stock is
listed on The Nasdaq Capital Market under the symbol “AGIL.”
Voting Rights
Each holder of the shares
of Class A Common Stock is entitled to one vote for each share of Class A Common Stock held of record by such holder on all matters properly
submitted to the stockholders for their vote; provided, however, that except as otherwise required by applicable law, holders of Class
A Common Stock shall not be entitled to vote on any amendment to the proposed charter that relates solely to the terms of one or more
outstanding series of preferred stock if the holders of such affected series are entitled, either separately or together as a class with
the holders of one or more other such series, to vote thereon pursuant to applicable law or the proposed charter (including any certificate
of designation filed with respect to any one or more series of preferred stock). The holders of the shares of Class A Common Stock do
not have cumulative voting rights in the election of directors. Generally, all matters to be voted on by stockholders must be approved
by a majority (or, in the case of election of directors, by a plurality) of the votes entitled to be cast by all stockholders present
in person or represented by proxy, voting together as a single class.
Dividend Rights
Subject to preferences that
may be applicable to any outstanding preferred stock, the holders of shares of Class A Common Stock are entitled to receive ratably such
dividends, if any, as may be declared from time to time by our board of directors of out of funds legally available therefor.
We have not paid any cash
dividends on our Class A Common Stock to date. The payment of cash dividends in the future will be dependent upon our revenues and earnings,
if any, capital requirements and general financial condition. The payment of any cash dividends is within the discretion of our board
of directors. In addition, our board of directors is not currently contemplating and does not anticipate declaring any share dividends
in the foreseeable future.
Rights upon Liquidation, Dissolution and Winding-Up
In the event of any voluntary
or involuntary liquidation, dissolution or winding up of our affairs, the holders of the shares of Class A Common Stock are entitled to
share ratably in all assets remaining after payment of our debts and other liabilities, subject to prior distribution rights of preferred
stock or any class or series of stock having a preference over the shares of Class A Common Stock, then outstanding, if any.
Preemptive or Other Rights
The holders of shares of Class
A Common Stock have no preemptive or conversion rights or other subscription rights. There are no redemption or sinking fund provisions
applicable to the shares of Class A Common Stock.
Transfer Agent
The transfer agent for
Class A Common Stock is Continental Stock Transfer & Trust Company.
Preferred Stock
We may issue shares of our
preferred stock from time to time. Our charter authorizes our board of directors to establish one or more series of preferred stock, and
to fix the number of shares of any such series. Our board of directors is authorized to determine for such series the powers, including
voting powers, full or limited, or no voting powers, and such the designation, preferences and relative, participating, optional or other
rights, any qualifications, limitations or restrictions thereof, all as shall be stated and expressed in the resolution or resolutions
providing for the designation and issue of such shares of preferred stock from time to time adopted by our board of directors providing
for the issuance of such shares and as may be permitted by the DGCL. The number of authorized shares of preferred stock, or any series
thereof, may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders
of a majority of the voting power of all of the outstanding shares of stock of the Company entitled to vote thereon, without a separate
vote of the holders of the preferred stock, or of any series thereof, unless a vote of any such holders is required pursuant to the terms
of any certificate of designation filed with respect to any one or more series of preferred stock.
The issuance of preferred
stock may have the effect of delaying, deferring or preventing a change in control of us without further action by the stockholders. Additionally,
the issuance of preferred stock may adversely affect the holders of the Class A Common Stock of us by restricting dividends on the shares
of Class A Common Stock, diluting the voting power of the shares of Class A Common Stock or subordinating the liquidation rights of the
shares of Class A Common Stock. As a result of these or other factors, the issuance of preferred stock could have an adverse impact on
the market price of the shares of Class A Common Stock.
The particular terms of any
issue of preferred stock will be described in the applicable prospectus supplement and any related free writing prospectus. We urge you
to read the applicable prospectus supplement and any related free writing prospectus, as well as our charter and the certificate of designation
relating to a particular series of preferred stock, which will be incorporated by reference into the registration statement of which this
prospectus is a part.
Certain Anti-Takeover Provisions of
Delaware Law, Our Charter and Our Bylaws
We
are a corporation incorporated under the laws of the State of Delaware, subject to the provisions of Section 203 of the DGCL, which we
refer to as “Section 203,” regulating corporate takeovers.
Section
203 prevents certain Delaware corporations, under certain circumstances, from engaging in a “business combination” with:
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a stockholder who owns fifteen percent or more of our outstanding voting stock (otherwise known as an “interested stockholder”); |
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an affiliate of an interested stockholder; or |
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an associate of an interested stockholder, for three years following the date that the stockholder became an interested stockholder. |
A
“business combination” includes a merger or sale of more than ten percent of our assets.
However,
the above provisions of Section 203 do not apply if:
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our board of directors approves the transaction that made the stockholder an “interested stockholder,” prior to the date of the transaction; |
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after the completion of the transaction that resulted in the stockholder becoming an interested stockholder, that stockholder owned at least 85% of our voting stock outstanding at the time the transaction commenced, other than statutorily excluded shares of common stock; or |
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on or subsequent to the date of the transaction, the business combination is approved by our board of directors and authorized at a meeting of our stockholders, and not by written consent, by an affirmative vote of at least two-thirds of the outstanding voting stock not owned by the interested stockholder. |
Our
charter, our bylaws and the DGCL contain provisions that could have the effect of rendering more difficult, delaying, or preventing an
acquisition deemed undesirable by our board of directors. These provisions could also make it difficult for stockholders to take certain
actions, including electing directors who are not nominated by the members of our board of directors or taking other corporate actions,
including effecting changes in our management. For instance, our charter does not provide for cumulative voting in the election of directors
and provides for a classified board of directors with three-year staggered terms, which could delay the ability of stockholders to change
the membership of a majority of our board of directors. Our board of directors are empowered to elect a director to fill a vacancy created
by the expansion of the board of directors or the resignation, death, or removal of a director in certain circumstances; and our advance
notice provisions in our bylaws require that stockholders must comply with certain procedures in order to nominate candidates to our board
of directors or to propose matters to be acted upon at a stockholders’ meeting.
Our
authorized but unissued Class A Common Stock and preferred stock will be available for future issuances without stockholder approval and
could be utilized for a variety of corporate purposes, including future offerings to raise additional capital, acquisitions and employee
benefit plans. The existence of authorized but unissued and unreserved Class A Common Stock and preferred stock could render more difficult
or discourage an attempt to obtain control of us by means of a proxy contest, tender offer, merger or otherwise.
Charter and Bylaws
Among
other things, our charter and our bylaws:
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not provide for cumulative voting in the election of directors; |
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provides for the exclusive right of the board of directors to elect a director to fill a vacancy created by the expansion of the board of directors or the resignation, death, or removal of a director by stockholders; |
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permits the board of directors to determine whether to issue shares of our preferred stock and to determine the price and other terms of those shares, including preferences and voting rights, without stockholder approval; |
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prohibits stockholder action by written consent; |
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requires that a special meeting of stockholders may be called only by the chairperson of the board of directors, the chief executive officer or the board of directors; |
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limits the liability of, and providing indemnification to, our directors and officers; |
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controls the procedures for the conduct and scheduling of stockholder meetings; |
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provides for a classified board, in which the members of the board of directors are divided into three classes to serve for a period of three years from the date of their respective appointment or election; |
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grants the ability to remove directors with cause by the affirmative vote of 66 ⅔% in voting power of the then outstanding shares of capital stock of the Company entitled to vote at an election of directors; |
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requires the affirmative vote of at least 66 ⅔% of the voting power of the outstanding shares of our capital stock entitled to vote generally in the election of directors, voting together as a single class, to amend the bylaws or Articles V, VI, VII and VIII of the charter; and |
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provides for advance notice procedures that stockholders must comply with in order to nominate candidates to the board of directors or to propose matters to be acted upon at a stockholders’ meeting. |
The
combination of these provisions will make it more difficult for our existing stockholders to replace our board of directors as well as
for another party to obtain control of us by replacing our board of directors. Since our board of directors has the power to retain and
discharge our officers, these provisions could also make it more difficult for existing stockholders or another party to effect a change
in management. In addition, the authorization of undesignated preferred stock makes it possible for our board of directors to issue preferred
stock with voting or other rights or preferences that could impede the success of any attempt to change our control.
These
provisions are intended to enhance the likelihood of continued stability in the composition of our board of directors and its policies
and to discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed to reduce our vulnerability
to hostile takeovers and to discourage certain tactics that may be used in proxy fights. However, such provisions could have the effect
of discouraging others from making tender offers for our shares of Class A Common Stock and may have the effect of delaying changes in
our control or management. As a consequence, these provisions may also inhibit fluctuations in the market price of our Class A Common
Stock.
Our
charter provides that the Court of Chancery of the State of Delaware will be the exclusive forum for actions or proceedings brought under
Delaware statutory or common law: (A) any derivative claim or cause of action brought on behalf of the Company; (B) any claim or cause
of action for breach of a fiduciary duty owed by any current or former director, officer or other employee of the Company, to the Company
or the Company’s stockholders; (C) any claim or cause of action against the Company or any current or former director, officer or
other employee of the Company, arising out of or pursuant to any provision of the DGCL, the charter or the bylaws of the Company (as each
may be amended from time to time); (D) any claim or cause of action seeking to interpret, apply, enforce or determine the validity of
the charter or the bylaws of the Company (as each may be amended from time to time, including any right, obligation, or remedy thereunder);
(E) any claim or cause of action as to which the DGCL confers jurisdiction on the Court of Chancery of the State of Delaware; and (F)
any claim or cause of action against the Company or any current or former director, officer or other employee of the Company, governed
by the internal-affairs doctrine, in all cases to the fullest extent permitted by law and subject to the court having personal jurisdiction
over the indispensable parties named as defendants. Our charter further provides that the federal district courts of the United States
of America will be the exclusive forum for resolving any complaint asserting a cause of action arising under the Securities Act or Exchange
Act.
Section
27 of the Exchange Act creates exclusive federal jurisdiction over all suits brought to enforce any duty or liability created by the Exchange
Act or the rules and regulations thereunder. As a result, the exclusive forum provision of our charter will not apply to suits brought
to enforce any duty or liability created by the Exchange Act or any other claim for which the federal courts have exclusive jurisdiction.
Although
we believe this provision benefits us by providing increased consistency in the application of Delaware law in the types of lawsuits to
which it applies, a court may determine that this provision is unenforceable, and to the extent it is enforceable, the provision may have
the effect of discouraging lawsuits against our directors and officers, although our stockholders will not be deemed to have waived our
compliance with federal securities laws and the rules and regulations thereunder and therefore bring a claim in another appropriate forum.
Additionally, we cannot be certain that a court will decide that this provision is either applicable or enforceable, and if a court were
to find the choice of forum provision contained in our charter to be inapplicable or unenforceable in an action, we may incur additional
costs associated with resolving such action in other jurisdictions, which could harm our business, operating results and financial condition.
Existing Warrants
As of January 27, 2023, there
were 10,861,230 warrants to purchase Class A Common Stock outstanding, consisting of 8,049,980 public warrants and 2,811,250 private
warrants. Each warrant entitles the registered holder to purchase one share of Class A Common Stock at a price of $11.50 per share. The
warrants will expire on August 23, 2026, or earlier upon redemption or liquidation.
Our warrants are listed on
Nasdaq under the symbol “AGILW.”
Public Warrants
Each whole public warrant
entitles the registered holder to purchase one share of Class A Common Stock at a price of $11.50 per share, subject to adjustment as
discussed below, provided that we have an effective registration statement under the Securities Act covering the issuance of the shares
of Class A Common Stock issuable upon exercise of the public warrants and a current prospectus relating to them is available and such
shares are registered, qualified or exempt from registration under the securities, or blue sky laws of the state of residence of the holder
(or we permit holders to exercise their public warrants on a cashless basis under the circumstances specified in the warrant agreement).
A warrant holder may exercise its public warrants only for a whole number of shares of Class A Common Stock. No fractional shares will
be issued upon exercise of the warrants. If, upon exercise of the warrants, a holder would be entitled to receive a fractional interest
in a share, we will, upon exercise, round up to the nearest whole number the number of shares of Class A Common Stock to be issued to
the warrant holder. The public warrants will expire on August 23, 2026, at 5:00 p.m., New York City time, or earlier upon redemption or
liquidation.
We will not be obligated to
deliver any shares of Class A Common Stock pursuant to the exercise of a public warrant and will have no obligation to settle such public
warrant exercise unless a registration statement under the Securities Act covering the issuance of the shares of Class A Common Stock
issuable upon exercise is then effective and a prospectus relating thereto is current, subject to us satisfying our obligations described
below with respect to registration. No public warrant will be exercisable for cash or on a cashless basis, and we will not be obligated
to issue any shares to holders seeking to exercise their public warrants, unless the issuance of the shares upon such exercise is registered
or qualified under the securities laws of the state of the exercising holder, or an exemption is available. In the event that the conditions
in the two immediately preceding sentences are not satisfied with respect to a public warrant, the holder of such public warrant will
not be entitled to exercise such public warrant and such public warrant may have no value and expire worthless.
We have agreed to maintain
the effectiveness of a registration statement covering the issuance, under the Securities Act, of shares of Class A Common Stock issuable
upon exercise of the public warrants, and a current prospectus relating thereto, until the expiration of the public warrants in accordance
with the provisions of the warrant agreement. Notwithstanding the foregoing, during any period when we shall have failed to maintain an
effective registration statement, warrant holders may exercise warrants on a cashless basis pursuant to the exemption provided by Section
3(a)(9) of the Securities Act, provided that such exemption is available. If that exemption, or another exemption, is not available, holders
will not be able to exercise their warrants on a cashless basis. On September 14, 2021, we filed a resale shelf registration statement
covering the resale of all registrable securities, which was declared effective on September 27, 2021, which registration statement was
subsequently amended on May 4, 2022 and declared effective on May 12, 2022.
We may redeem the public warrants:
| ● | in whole and not in part; |
| ● | at a price of $0.01 per public warrant; |
| ● | upon not less than thirty (30) days’ prior written notice of redemption to each public warrant holder; |
| ● | if, and only if, the reported last sales price of the shares of Class A Common Stock equals or exceeds
$18.00 per share (as adjusted for share splits, share dividends, rights issuances, subdivisions, reorganizations, recapitalizations and
the like) for any 20 trading days within a 30-trading day period ending on the third trading day prior to the date we send the notice
of redemption to the public warrant holders; and |
| ● | if, and only if, there is a current registration statement in effect with respect to the shares of Class
A Common Stock underlying such warrants. |
If and when the public warrants
become redeemable by us, we may exercise our redemption right even if we are unable to register or qualify the underlying securities for
sale under all applicable state securities laws.
If the foregoing conditions
are satisfied and we issue a notice of redemption of the public warrants, each public warrant holder will be entitled to exercise his,
her or its public warrant prior to the scheduled redemption date. However, the price of the shares of Class A Common Stock may fall below
the $18.00 redemption trigger price as well as the $11.50 public warrant exercise price after the redemption notice is issued.
If we call the public warrants
for redemption as described above, our management will have the option to require any holder that wishes to exercise his, her or its public
warrant to do so on a “cashless basis.” If our management takes advantage of this option, all holders of public warrants would
pay the exercise price by surrendering their public warrants for that number of shares of Class A Common Stock equal to the quotient obtained
by dividing (x) the product of the number of Class A Common Stock underlying the warrants, multiplied by the difference between the exercise
price of the warrants and the “fair market value” (defined below) by (y) the fair market value. The “fair market value”
will mean the average last reported sale price of the shares of Class A Common Stock for the five (5) trading days ending on the third
trading day prior to the date on which the notice of redemption is sent to the holders of public warrants.
Public warrant holders may
elect to be subject to a restriction on the exercise of their public warrants such that an electing public warrant holder would not be
able to exercise their warrants to the extent that, after giving effect to such exercise, such holder would beneficially own in excess
of 9.8% of the shares of Class A Common Stock outstanding.
The exercise price and number
of Class A Common Stock issuable on exercise of the warrants may be adjusted in certain circumstances including in the event of a stock
dividend, extraordinary dividend or our recapitalization, reorganization, merger or consolidation. However, the warrants will not be adjusted
for issuances of Class A Common Stock at a price below their respective exercise prices.
The public warrants are issued
in registered form under the warrant agreement between Continental Stock Transfer & Trust Company, as warrant agent, and us. You should
review a copy of the warrant agreement, which is incorporated by reference into the registration statement of which this prospectus is
a part, for a complete description of the terms and conditions applicable to the public warrants. The warrant agreement provides that
the terms of the public warrants may be amended without the consent of any holder to cure any ambiguity or correct any defective provision,
but requires the approval by the holders of at least 50% of then outstanding public warrants to make any change that adversely affects
the interests of the registered holders of public warrants.
The public warrants may be
exercised upon surrender of the warrant certificate on or prior to the expiration date at the offices of the warrant agent, with the exercise
form on the reverse side of the warrant certificate completed and executed as indicated, accompanied by full payment of the exercise price
(or on a cashless basis, if applicable), by certified or official bank check payable to the Company, for the number of public warrants
being exercised. The warrant holders do not have the rights or privileges of holders of shares of Class A Common Stock and any voting
rights until they exercise their public warrants and receive shares of Class A Common Stock. After the issuance of the shares of Class
A Common Stock upon exercise of the public warrants, each holder will be entitled to one vote for each share held of record on all matters
to be voted on by holders of shares of Class A Common Stock.
No fractional shares will
be issued upon exercise of the warrants. If, upon exercise of the warrants, a holder would be entitled to receive a fractional interest
in a share, we will, upon exercise, round up to the nearest whole number the number of shares of Class A Common Stock to be issued to
the warrant holder.
Private Warrants
The private warrants (including
the shares of Class A Common Stock issuable upon exercise of the private warrants) will not be redeemable by us so long as they are held
by LIV Capital Acquisition Sponsor, L.P. or its permitted transferees. LIV Capital Acquisition Sponsor, L.P., as well as its permitted
transferees, has the option to exercise the private warrants on a cashless basis and has certain registration rights related to such private
warrants. Otherwise, the private warrants have terms and provisions that are identical to those of the public warrants. If the private
warrants are held by holders other than LIV Capital Acquisition Sponsor, L.P. or its permitted transferees, the private warrants will
be redeemable by us and exercisable by the holders on the same basis as the public warrants.
If holders of the private
warrants elect to exercise them on a cashless basis, they would pay the exercise price by surrendering their public warrants for that
number of shares of Class A Common Stock equal to the quotient obtained by dividing (x) the product of the number of Class A Common Stock
underlying the warrants, multiplied by the difference between the exercise price of the warrants and the “fair market value”
(defined below) by (y) the fair market value. The “fair market value” will mean the average last reported sale price of the
shares of Class A Common Stock for the five (5) trading days ending on the third trading day prior to the date on which the notice of
redemption is sent to the holders of public warrants.
DESCRIPTION OF
WARRANTS
We may issue warrants for
the purchase of shares of our Class A Common Stock or preferred stock or of debt securities. We may issue warrants independently or together
with other securities, and the warrants may be attached to or separate from any offered securities. Each series of warrants will be issued
under a separate warrant agreement to be entered into between us and the investors or a warrant agent. The following summary of material
provisions of the warrants and warrant agreements are subject to, and qualified in their entirety by reference to, all the provisions
of the warrant agreement and warrant certificate applicable to a particular series of warrants, which will be incorporated by reference
into the registration statement of which this prospectus is a part. We urge you to read the applicable prospectus supplement and any related
free writing prospectus, as well as the complete warrant agreements and warrant certificates that contain the terms of the warrants.
The particular terms of any
issue of warrants will be described in the prospectus supplement relating to the issue. Those terms may include:
| ● | the number of shares of Class A Common Stock or preferred stock purchasable upon the exercise of warrants
to purchase such shares and the price at which such number of shares may be purchased upon such exercise; |
| ● | the designation, stated value and terms (including, without limitation, liquidation, dividend, conversion
and voting rights) of the series of preferred stock purchasable upon exercise of warrants to purchase preferred stock; |
| ● | the principal amount of debt securities that may be purchased upon exercise of a debt warrant and the
exercise price for the warrants, which may be payable in cash, securities or other property; |
| ● | the date, if any, on and after which the warrants and the related debt securities, preferred stock or
Class A Common Stock will be separately transferable; |
| ● | the terms of any rights to redeem or call the warrants; |
| ● | the date on which the right to exercise the warrants will commence and the date on which the right will
expire; |
| ● | material United States Federal income tax consequences applicable to the warrants; |
| ● | whether the warrants are to be sold separately or with other securities as part of units; |
| ● | whether the warrants will be issued in definitive or global form or in any combination of these forms,
although, in any case, the form of a warrant included in a unit will correspond to the form of the unit and any security included in that
unit; |
| ● | the identity of the warrant agent for the warrants and of any other depositaries, execution or paying
agents, transfer agents, registrars or other agents; |
| ● | the proposed listing, if any, of the warrants or any securities purchasable upon exercise of the warrants
on any securities exchange; |
| ● | if applicable, the date from and after which any warrants issued as part of a unit and the related debt
securities, preferred stock, depositary shares or Class A Common Stock will be separately transferable; |
| ● | if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; and |
| ● | any additional terms of the warrants, including terms, procedures, and limitations relating to the exchange,
exercise and settlement of the warrants. |
Each warrant will entitle
its holder to purchase the principal amount of debt securities or the number of shares of preferred stock or Class A Common Stock at the
exercise price set forth in, or calculable as set forth in, the applicable prospectus supplement. Unless we otherwise specify in the applicable
prospectus supplement, holders of the warrants may exercise the warrants at any time up to the specified time on the expiration date that
we set forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants will become
void.
A holder of warrant certificates
may exchange them for new warrant certificates of different denominations, present them for registration of transfer and exercise them
at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement. Until any warrants
to purchase debt securities are exercised, the holder of the warrants will not have any rights of holders of the debt securities that
can be purchased upon exercise, including any rights to receive payments of principal, premium or interest on the underlying debt securities
or to enforce covenants in the applicable indenture. Until any warrants to purchase Class A Common Stock or preferred stock are exercised,
the holders of the warrants will not have any rights of holders of the underlying Class A Common Stock or preferred stock, including any
rights to receive dividends or payments upon any liquidation, dissolution or winding up on the Class A Common Stock or preferred stock,
if any.
DESCRIPTION OF
DEBT SECURITIES
We may sell debt securities,
including senior debt securities and subordinated debt securities, which may be senior or subordinated in priority of payment. We will
provide a prospectus supplement or free writing prospectus that describes the ranking, whether senior or subordinated, the level of seniority
or subordination (as applicable), the specific designation, the aggregate principal amount, the purchase price, the maturity, the redemption
terms, the interest rate or manner of calculating the interest rate, the time of payment of interest, if any, the terms for any conversion
or exchange, including the terms relating to the adjustment of any conversion or exchange mechanism, the listing, if any, on a securities
exchange and any other specific terms of any debt securities that we may issue from time to time.
As required by U.S. federal
law for all bonds and notes of companies that are publicly offered, our debt securities will be governed by a document called an indenture.
Senior debt securities will be issued under a senior indenture and subordinated debt securities will be issued under a subordinated indenture,
which will be incorporated by reference into the registration statement of which this prospectus is a part. In each case, the specific
terms and conditions of a series of notes may be set forth in a supplemental indenture or company order.
Unless otherwise stated in
the applicable prospectus supplement or free writing prospectus, the aggregate principal amount of debt securities that may be issued
under the applicable indenture is unlimited. The debt securities may be issued in one or more series as may be authorized from time to
time. The prospectus supplement or free writing prospectus relating to any series of debt securities will describe the specific terms
of such debt securities. Unless otherwise stated in the applicable prospectus supplement or free writing prospectus, we may issue additional
debt securities of a particular series without the consent of the holders of the debt securities of such series or any other series outstanding
at the time of issuance. Any such additional debt securities, together with all other outstanding debt securities of that series, will
constitute a single series of securities under the applicable indenture.
Material United States Federal
income tax consequences and special considerations, if any, applicable to any such series will be described in the applicable prospectus
supplement or free writing prospectus. Unless otherwise stated in the applicable prospectus supplement or free writing prospectus, the
debt securities will not be listed on any securities exchange.
We expect the debt securities
to be issued in fully registered form without coupons. Subject to the limitations provided in the applicable indenture and in the applicable
prospectus supplement or free writing prospectus, debt securities that are issued in registered form may be transferred or exchanged at
the designated corporate trust office of the trustee, without the payment of any service charge, other than any tax or other governmental
charge payable in connection therewith.
Unless otherwise stated in
the applicable prospectus supplement or free writing prospectus, the debt securities of a series may be issued in whole or in part in
the form of one or more global securities that will be deposited with, or on behalf of, a depositary identified in the applicable prospectus
supplement. Global securities will be issued in registered form and in either temporary or definitive form. Unless and until it is exchanged
in whole or in part for the individual debt securities, a global security may not be transferred except as a whole by the depositary for
such global security to a nominee of such depositary or by a nominee of such depositary to such depositary or another nominee of such
depositary or by such depositary or any such nominee to a successor of such depositary or a nominee of such successor. The specific terms
of the depositary arrangement with respect to any debt securities of a series and the rights of and limitations upon owners of beneficial
interests in a global security will be described in the applicable prospectus supplement or free writing prospectus.
The law governing the indenture
and the debt securities will be identified in the prospectus supplement or free writing prospectus relating to the applicable indenture
and debt securities. We urge you to read the applicable prospectus supplement and any related free writing prospectus, as well as the
applicable indenture that contains the terms of the debt securities.
DESCRIPTION OF
DEPOSITARY SHARES
The following description,
together with the additional information we include in any applicable prospectus supplement or free writing prospectus, summarizes the
material terms and provisions of the depositary shares and depositary receipts that we may offer under this prospectus. While the terms
we have summarized below will generally apply to any future depositary shares or depositary receipts we may offer under this prospectus,
we will describe the particular terms of any depositary shares or depositary receipts that we may offer in more detail in the applicable
prospectus supplement or free writing prospectus.
We will incorporate by reference
into the registration statement of which this prospectus is a part the form of deposit agreement that describes the terms of the depositary
shares and depositary receipts we may offer before the issuance thereof. The following summary is subject to, and qualified in its entirety
by reference to, all provisions of the deposit agreement applicable to a particular offering of depositary shares or depositary receipts.
We urge you to read any applicable prospectus supplement or free writing prospectus related to the depositary shares or depositary receipts
that we sell under this prospectus, as well as the complete deposit agreement.
Description of Depositary Shares
We may offer depositary shares
evidenced by depositary receipts. Each depositary share represents a fraction or a multiple of a share of the particular series of preferred
stock issued and deposited with a depositary to be designated by us. The fraction or the multiple of a share of preferred stock which
each depositary share represents will be set forth in the applicable prospectus supplement or free writing prospectus. We will deposit
the preferred shares of any series of preferred stock represented by depositary shares according to the provisions of a deposit agreement
to be entered into between us and a bank or trust company which we will select as our preferred stock depositary. We will name the depositary
in the applicable prospectus supplement or free writing prospectus. Each holder of a depositary share will be entitled to all the rights
and preferences of the underlying preferred stock in proportion to the applicable fraction or multiple of a share of preferred stock represented
by the depositary share. These rights may include dividend, voting, redemption, conversion and liquidation rights. The depositary will
send the holders of depositary shares all reports and communications that we deliver to the depositary and which we are required to furnish
to the holders of depositary shares.
Depositary Receipts
The depositary shares will
be evidenced by depositary receipts issued pursuant to the deposit agreement. Depositary receipts will be distributed to anyone who is
buying the fractional shares of preferred stock in accordance with the terms of the applicable prospectus supplement or free writing prospectus.
While definitive engraved depositary receipts (certificates) are being prepared, we may instruct the depositary to issue temporary depositary
receipts, which will entitle holders to all the rights of the definitive depositary receipts and be substantially in the same form. The
depositary will prepare definitive depositary receipts without unreasonable delay, and we will pay for the exchange of your temporary
depositary receipts for definitive depositary receipts.
Withdrawal of Preferred Stock
Unless the related depositary
shares have previously been called for redemption, a holder of depositary shares may receive the number of whole shares of the related
series of preferred stock and any money or other property represented by the holder’s depositary receipts after surrendering the
depositary receipts at the corporate trust office of the depositary, paying any taxes, charges and fees provided for in the deposit agreement
and complying with any other requirement of the deposit agreement. Partial shares of preferred stock will not be issued. If the surrendered
depositary shares exceed the number of depositary shares that represent the number of whole shares of preferred stock the holder wishes
to withdraw, then the depositary will deliver to the holder at the same time a new depositary receipt evidencing the excess number of
depositary shares. Once the holder has withdrawn the preferred stock, the holder will not be entitled to re-deposit that preferred stock
under the deposit agreement or to receive depositary shares in exchange for such preferred stock. We do not expect that there will be
any public trading market for withdrawn shares of preferred stock.
Dividends and Other Distributions
The depositary will distribute
to record holders of depositary shares any cash dividends or other cash distributions it receives on preferred stock, after deducting
its fees and expenses. Each holder will receive these distributions in proportion to the number of depositary shares owned by the holder.
The depositary will distribute only whole U.S. dollars and cents. The depositary will add any fractional cents not distributed to the
next sum received for distribution to record holders of depositary shares. In the event of a non-cash distribution, the depositary will
distribute property to the record holders of depositary shares, unless the depositary determines that it is not feasible to make such
a distribution. If this occurs, the depositary may, with our approval, sell the property and distribute the net proceeds from the sale
to the holders. The amounts distributed to holders of depositary shares will be reduced by any amounts required to be withheld by the
depositary or by us on account of taxes or other governmental charges.
Redemption of Depositary Shares
If the series of preferred
stock represented by depositary shares is subject to redemption, we will give the necessary proceeds to the depositary. The depositary
will then redeem the depositary shares using the funds they received from us for the preferred stock. The redemption price per depositary
share will be equal to the redemption price payable per share for the applicable series of the preferred stock and any other amounts per
share payable with respect to the preferred stock multiplied by the fraction or multiple of a share of preferred stock represented by
one depositary share. Whenever we redeem shares of preferred stock held by the depositary, the depositary will redeem the depositary shares
representing the shares of preferred stock on the same day, provided we have paid in full to the depositary the redemption price of the
preferred stock to be redeemed and any accrued and unpaid dividends. If fewer than all the depositary shares of a series are to be redeemed,
the depositary shares will be selected by lot or ratably or by any other equitable methods as the depositary will decide. After the date
fixed for redemption, the depositary shares called for redemption will no longer be considered outstanding. Therefore, all rights of holders
of the depositary shares will then cease, except that the holders will still be entitled to receive any cash payable upon the redemption
and any money or other property to which the holder was entitled at the time of redemption. To receive this amount or other property,
the holders must surrender the depositary receipts evidencing their depositary shares to the depositary. Any funds that we deposit with
the depositary for any depositary shares that the holders fail to redeem will be returned to us after a period of one year from the date
we deposit the funds.
Voting the Preferred Stock
Upon receipt of notice of
any meeting at which the holders of preferred stock are entitled to vote, the depositary will notify holders of depositary shares of the
upcoming vote and arrange to deliver our voting materials to the holders. The record date for determining holders of depositary shares
that are entitled to vote will be the same as the record date for the preferred stock. The materials the holders will receive will describe
the matters to be voted on and explain how the holders, on a certain date, may instruct the depositary to vote the shares of preferred
stock underlying the depositary shares. For instructions to be valid, the depositary must receive them on or before the date specified.
To the extent possible, the depositary will vote the shares as instructed by the holder. We agree to take all reasonable actions that
the depositary determines are necessary to enable it to vote as a holder has instructed. If the depositary does not receive specific instructions
from the holders of any depositary shares, it will vote all shares of that series held by it proportionately with instructions received.
Liquidation Preference
If a series of preferred stock
underlying the depositary shares has a liquidation preference, in the event of our voluntary or involuntary liquidation, dissolution or
winding up, holders of depositary shares will be entitled to receive the fraction of the liquidation preference accorded each share of
the applicable series of preferred stock as set forth in the applicable prospectus supplement or free writing prospectus.
Conversion or Exchange
The depositary, with our approval
or at our instruction, will convert or exchange all depositary shares if the preferred stock underlying the depositary shares is converted
or exchanged. In order for the depositary to do so, we will need to deposit the other preferred stock, common stock, or other securities
into which the preferred stock is to be converted or for which it will be exchanged. The exchange or conversion rate per depositary share
will be equal to:
| ● | the exchange or conversion rate per share of preferred stock, multiplied by the fraction or multiple of
a share of preferred stock represented by one depositary share; |
| ● | plus all money and any other property represented by one depositary share; and |
| ● | including all amounts per depositary share paid by us for dividends that have accrued on the preferred
stock on the exchange or conversion date and that have not been paid. |
The depositary shares, as
such, cannot be converted or exchanged into other preferred stock, common stock, securities of another issuer or any other of our securities
or property. Nevertheless, if so specified in the applicable prospectus supplement, a holder of depositary shares may be able to surrender
the depositary receipts to the depositary with written instructions asking the depositary to instruct us to convert or exchange the preferred
stock represented by the depositary shares into other shares of our preferred stock or common stock or to exchange the preferred stock
for any other securities registered pursuant to the registration statement of which this prospectus forms a part. If the depositary shares
carry this right, we would agree that, upon the payment of any applicable fees, we will cause the conversion or exchange of the preferred
stock using the same procedures as we use for the delivery of preferred stock. If a holder is only converting part of the depositary shares
represented by a depositary receipt, new depositary receipts will be issued for any depositary shares that are not converted or exchanged.
Amendment and Termination of the Deposit Agreement
We may agree with the depositary
to amend the deposit agreement and the form of depositary receipt without consent of the holder at any time. However, if the amendment
adds or increases fees or charges, other than any change in the fees of any depositary, registrar or transfer agent, or prejudices an
important right of holders, it will only become effective with the approval of holders of at least a majority of the affected depositary
shares then outstanding. We will make no amendment that impairs the right of any holder of depositary shares to receive shares of preferred
stock and any money or other property represented by those depositary shares, except in order to comply with mandatory provisions of applicable
law. If an amendment becomes effective, holders are deemed to agree to the amendment and to be bound by the amended deposit agreement
if they continue to hold their depositary receipts.
The deposit agreement will
automatically terminate if:
| ● | all outstanding depositary shares have been redeemed or converted or exchanged for any other securities
into which they or the underlying preferred stock are convertible or exchangeable; |
| ● | each share of preferred stock has been converted into or exchanged for common stock; or |
| ● | a final distribution in respect of the preferred stock has been made to the holders of depositary receipts
in connection with our liquidation, dissolution or winding-up. |
We may also terminate the
deposit agreement at any time we wish. If we do so, the depositary will give notice of termination to the record holders not less than
30 days before the termination date. Once depositary receipts are surrendered to the depositary, it will send to each holder the number
of whole or fractional shares of the series of preferred stock underlying that holder’s depositary receipts.
Charges of Depositary and Expenses
We will pay the fees, charges
and expenses of the depositary provided in the deposit agreement to be payable by us. Holders of depositary receipts will pay any taxes
and governmental charges and any charges provided in the deposit agreement to be payable by them. If the depositary incurs fees, charges
or expenses for which it is not otherwise liable at the election of a holder of a depositary receipt or other person, that holder or other
person will be liable for those fees, charges and expenses.
Limitations on Our Obligations and Liability to Holders of Depositary
Receipts
The deposit agreement will
expressly limit our obligations and the obligations of the depositary. It also limits our liability and the liability of the depositary
as follows:
| ● | we and the depositary are only liable to the holders of depositary receipts for negligence or willful
misconduct; |
| ● | we and the depositary have no obligation to become involved in any legal or other proceeding related to
the depositary receipts or the deposit agreement on your behalf or on behalf of any other party, unless you provide us with satisfactory
indemnity; and |
| ● | we and the depositary may rely upon any written advice of counsel or accountants and on any documents
we believe in good faith to be genuine and to have been signed or presented by the proper party. |
Resignation and Removal of Depositary
The depositary may resign
at any time by notifying us of its election to do so. In addition, we may remove the depositary at any time. Within 60 days after the
delivery of a notice of resignation or removal of the depositary, we will appoint a successor depositary.
DESCRIPTION OF
PURCHASE CONTRACTS
We may issue purchase contracts
for the purchase or sale of debt or equity securities issued by us. Each purchase contract will entitle the holder thereof to purchase
or sell, and obligate us to sell or purchase, on specified dates, such securities at a specified purchase price, which may be based on
a formula, all as set forth in the applicable prospectus supplement or free writing prospectus. The purchase contracts may be issued separately
or as a part of units consisting of one or more purchase contracts and beneficial interests in our debt or equity securities or debt obligations
of third parties, including U.S. Treasury securities, any other security described in the applicable prospectus supplement or free writing
prospectus, or any combination of the foregoing, securing the holders’ obligations to purchase the securities under the purchase
contracts. The purchase contracts may require us to make periodic payments to the holders of the units or vice versa, and such payments
may be unsecured or prefunded on some basis. The purchase contracts may require holders to secure their obligations thereunder in a specified
manner. In certain circumstances, we may deliver newly issued prepaid purchase contracts upon release to a holder of any collateral securing
the holder’s obligations under the original purchase contract. The applicable prospectus supplement or free writing prospectus will
also specify the methods by which the holders may purchase or sell such securities and any acceleration, cancellation or termination provisions
or other provisions relating to the settlement of a purchase contract. The description in the prospectus supplement or free writing prospectus
will only be a summary, and you should read the related purchase contracts, which will be incorporated by reference into the registration
statement of which this prospectus is a part.
DESCRIPTION OF
UNITS
We may issue units consisting
of any combination of the other types of securities offered under this prospectus in one or more series. We may evidence each series of
units by unit certificates that we will issue under a separate agreement, which will be incorporated by reference into the registration
statement of which this prospectus is a part. We may enter into unit agreements with a unit agent. Each unit agent will be a bank or trust
company that we select. We will indicate the name and address of the unit agent in the applicable prospectus supplement or free writing
prospectus relating to a particular series of units.
If we offer any units, certain
terms of that series of units will be described in the applicable prospectus supplement or free writing prospectus, including, without
limitation, the following, as applicable:
| ● | the title of the series of units; |
| ● | identification and description of the separate constituent securities comprising the units; |
| ● | the price or prices at which the units will be issued; |
| ● | the date, if any, on and after which the constituent securities comprising the units will be separately transferable; |
| ● | a discussion of material United States Federal income tax considerations applicable to the units; and |
| ● | any other terms of the units and their constituent securities. |
DESCRIPTION OF
SUBSCRIPTION RIGHTS
We may issue subscription
rights to purchase our Class A Common Stock, preferred stock or debt securities. These subscription rights may be offered independently
or together with any other security offered hereby and may or may not be transferable by the stockholder receiving the subscription rights
in such offering. In connection with any offering of subscription rights, we may enter into a standby arrangement with one or more underwriters
or other purchasers pursuant to which the underwriters or other purchasers may be required to purchase any securities remaining unsubscribed
for after such offering.
The applicable prospectus
supplement or free writing prospectus relating to any subscription rights we offer, if any, will, to the extent applicable, include specific
terms relating to the offering, including some or all of the following:
| ● | the price, if any, for the subscription rights; |
| ● | the exercise price payable for our Class A Common Stock, preferred stock or debt securities upon the exercise
of the subscription rights; |
| ● | the number of subscription rights to be issued to each stockholder; |
| ● | the number and terms of our Class A Common Stock, preferred stock or debt securities which may be purchased
per each subscription right; |
| ● | the extent to which the subscription rights are transferable; |
| ● | any other terms of the subscription rights, including the terms, procedures and limitations relating to
the exchange and exercise of the subscription rights; |
| ● | the date on which the right to exercise the subscription rights shall commence, and the date on which
the subscription rights shall expire; |
| ● | the extent to which the subscription rights may include an over-subscription privilege with respect to
unsubscribed securities or an over-allotment privilege to the extent the securities are fully subscribed; and |
| ● | if applicable, the material terms of any standby underwriting or purchase arrangement which we may enter
into in connection with the offering of subscription rights. |
The description in the applicable
prospectus supplement or free writing prospectus of any subscription rights we offer will not necessarily be complete and will be qualified
in its entirety by reference to the applicable subscription rights certificate, which will be incorporated by reference into the registration
statement of which this prospectus is a part. We urge you to read the applicable subscription rights certificate and any applicable prospectus
supplement or free writing prospectus in their entirety.
PLAN OF DISTRIBUTION
We may sell the securities
from time to time pursuant to underwritten public offerings, negotiated transactions, block trades or a combination of these methods or
through underwriters or dealers, through agents and/or directly to one or more purchasers. The securities may be distributed from time
to time in one or more transactions:
| ● | at a fixed price or prices, which may be changed; |
| ● | at market prices prevailing at the time of sale; |
| ● | at prices related to such prevailing market prices; or |
Each
time that we sell securities covered by this prospectus, we will provide a prospectus supplement or related free writing prospectus that
will describe the method of distribution and set forth the terms and conditions of the offering of such securities, including the offering
price of the securities and the proceeds to us, if applicable.
Offers
to purchase the securities being offered by this prospectus may be solicited directly. Agents
may also be designated to solicit offers to purchase the securities from time to time. Any
agent involved in the offer or sale of our securities will be identified in a prospectus supplement.
If
a dealer is utilized in the sale of the securities being offered by this prospectus, the securities will be sold to the dealer, as principal. The
dealer may then resell the securities to the public at varying prices to be determined by the dealer at the time of resale.
If
an underwriter is utilized in the sale of the securities being offered by this prospectus, an underwriting agreement will be executed
with the underwriter at the time of sale and the name of any underwriter will be provided in the prospectus supplement that the underwriter
will use to make resales of the securities to the public. In connection with the sale
of the securities, we or the purchasers of securities for whom the underwriter may act as agent, may compensate the underwriter in the
form of underwriting discounts or commissions. The underwriter may sell the securities
to or through dealers, and those dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters
and/or commissions from the purchasers for which they may act as agent. Unless otherwise
indicated in a prospectus supplement, an agent will be acting on a best efforts basis and a dealer will purchase securities as a principal,
and may then resell the securities at varying prices to be determined by the dealer.
Any
compensation paid to underwriters, dealers or agents in connection with the offering of the securities, and any discounts, concessions
or commissions allowed by underwriters to participating dealers will be provided in the applicable prospectus supplement. Underwriters,
dealers and agents participating in the distribution of the securities may be deemed to be underwriters within the meaning of the Securities
Act, and any discounts and commissions received by them and any profit realized by them on resale of the securities may be deemed to be
underwriting discounts and commissions. We may enter into agreements to indemnify underwriters,
dealers and agents against civil liabilities, including liabilities under the Securities Act, or to contribute to payments they may
be required to make in respect thereof and to reimburse those persons for certain expenses.
Any
Class A Common Stock will be listed on The Nasdaq Capital Market, but any other securities
may or may not be listed on a national securities exchange. To facilitate the offering
of securities, certain persons participating in the offering may engage in transactions that stabilize, maintain or otherwise affect the
price of the securities. This may include over-allotments or short sales of the securities,
which involve the sale by persons participating in the offering of more securities than were sold to them. In
these circumstances, these persons would cover such over-allotments or short positions by making purchases in the open market or by exercising
their over-allotment option, if any. In addition, these persons may stabilize or maintain
the price of the securities by bidding for or purchasing securities in the open market or by imposing penalty bids, whereby selling concessions
allowed to dealers participating in the offering may be reclaimed if securities sold by them are repurchased in connection with stabilization
transactions. The effect of these transactions may be to stabilize or maintain the market
price of the securities at a level above that which might otherwise prevail in the open market. These
transactions may be discontinued at any time.
We
may engage in at the market offerings into an existing trading market in accordance with Rule 415(a)(4) under the Securities
Act. In addition, we may enter into derivative transactions with third parties, or sell
securities not covered by this prospectus to third parties in privately negotiated transactions. If
the applicable prospectus supplement so indicates, in connection with those derivatives, the third parties may sell securities covered
by this prospectus and the applicable prospectus supplement, including in short sale transactions. If
so, the third party may use securities pledged by us or borrowed from us or others to settle those sales or to close out any related open
borrowings of stock, and may use securities received from us in settlement of those derivatives to close out any related open borrowings
of stock. The third party in such sale transactions will be an underwriter and, if not
identified in this prospectus, will be named in the applicable prospectus supplement (or a post-effective amendment). In
addition, we may otherwise loan or pledge securities to a financial institution or other third party that in turn may sell the securities
short using this prospectus and an applicable prospectus supplement. Such financial
institution or other third party may transfer its economic short position to investors in our securities or in connection with a concurrent
offering of other securities.
The
specific terms of any lock-up provisions in respect of any given offering will be described in the applicable prospectus supplement.
The
underwriters, dealers and agents may engage in transactions with us, or perform services for us, in the ordinary course of business for
which they receive compensation.
LEGAL MATTERS
The validity of any securities
offered by this prospectus will be passed upon for us by Mayer Brown LLP. Certain legal matters will be passed upon for any agents or
underwriters by counsel for such agents or underwriters identified in the applicable prospectus supplement.
EXPERTS
The consolidated financial
statements of AgileThought, Inc. as of December 31, 2021 and 2020, and for each of the years then ended, have been incorporated by reference herein and
in the registration statement in reliance upon the report of KPMG LLP, independent registered public accounting firm, incorporated by reference
herein, and upon the authority of said firm as experts in accounting and auditing.
Where You Can Find
More Information
This prospectus is part of
a registration statement we filed with the SEC. This prospectus does not contain all of the information set forth in the registration
statement and the exhibits to the registration statement. For further information with respect to the Company and the securities the Selling
Securityholder is offering under this prospectus, we refer you to the registration statement and the exhibits and schedules filed as a
part of the registration statement. Neither we nor any agent, underwriter or dealer has authorized any person to provide you with different
information. Neither we nor the Selling Securityholder are making an offer of these securities in any state where the offer is not permitted.
You should not assume that the information in this prospectus is accurate as of any date other than the date on the front page of this
prospectus, regardless of the time of delivery of this prospectus or any sale of the securities offered by this prospectus.
We are subject to the information
reporting requirements of the Exchange Act, and we file reports, proxy statements and other information with the SEC. These reports, proxy
statements and other information will be available for review at the SEC’s website at www.sec.gov. We also maintain a website at
www.AgileThought.com, at which you may access these materials free of charge as soon as reasonably practicable after they are electronically
filed with, or furnished to, the SEC. The information contained in, or that can be accessed through, our website is not part of this prospectus.
Incorporation of
Certain Information by Reference
The SEC allows us to “incorporate
by reference” the information we file with it, which means that we can disclose important information to you by referring you to
those documents instead of having to repeat the information in this prospectus. The information incorporated by reference is considered
to be part of this prospectus, and later information that we file with the SEC will automatically update and supersede this information.
We incorporate by reference the documents listed below and any future filings (including those made after the initial filing of the registration
statement of which this prospectus is a part and prior to the effectiveness of such registration statement) we will make with the SEC
under Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act until the termination of the offering of the shares covered by this prospectus
(other than information furnished under Item 2.02 or Item 7.01 of Form 8-K):
| ● | our Annual Report on Form 10-K for the year ended December
31, 2021 filed with the SEC on March 31, 2022; |
| ● | our Current Reports on Form 8-K filed with the SEC on January
11, 2022, March 28, 2022, May
2, 2022, May 23, 2022, June
3, 2022, November 22, 2022, February 1, 2023; and |
| ● | the description of our Class A Common Stock, which is contained
in Exhibit 4.5 to our Annual Report on Form 10-K for the year ended December 31, 2021, filed with the SEC on March 31, 2022. |
You can request a copy of
these filings, at no cost, by writing or telephoning us at the following address or telephone number:
AgileThought, Inc.
222 W. Las Colinas Blvd. Suite
1650E
Irving, Texas 75039
Attn: Diana Abril
Chief Legal Officer
(971) 501-1440
This prospectus is part of
a registration statement we filed with the SEC. That registration statement and the exhibits filed along with the registration statement
contain more information about us and the shares in this offering. Because information about documents referred to in this prospectus
is not always complete, you should read the full documents which are filed as exhibits to the registration statement. You may read and
copy the full registration statement and its exhibits at the SEC’s website.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following sets forth the
estimated costs and expenses, all of which shall be borne by us, in connection with the offering of the securities pursuant to this Registration
Statement:
| SEC Registration Fee | |
$ | 11,020 | |
| Legal Fees and Expenses | |
| * | |
| Accounting Fees | |
| * | |
| Transfer Agent and Registrar Fees and Expenses | |
| * | |
| Trustee Fees and Expenses | |
| * | |
| Printing and Miscellaneous Fees | |
| * | |
| FINRA Filing Fee | |
| * | |
| Total | |
| * | |
| * | Calculated based on the securities offered and the number
of issuances and accordingly cannot be estimated at this time. |
Item 15. Indemnification of Directors and Officers.
Section 145(a) of the DGCL
provides, in general, that a corporation may indemnify any person who was or is a party to or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation), because he or she is or was a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by the person in connection with such action, suit or proceeding, if he or she acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Section 145(b) of the DGCL
provides, in general, that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor because the person is or
was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’
fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if he or she
acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, except
that no indemnification shall be made with respect to any claim, issue or matter as to which he or she shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of Chancery or other adjudicating court determines that, despite
the adjudication of liability but in view of all of the circumstances of the case, he or she is fairly and reasonably entitled to indemnity
for such expenses that the Court of Chancery or other adjudicating court shall deem proper.
Section 145(g) of the DGCL
provides, in general, that a corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred
by such person in any such capacity, or arising out of his or her status as such, whether or not the corporation would have the power
to indemnify the person against such liability under Section 145 of the DGCL.
Additionally, our charter
eliminates our directors’ liability to the fullest extent permitted under the DGCL. The DGCL provides that directors of a corporation
will not be personally liable for monetary damages for breach of their fiduciary duties as directors, except for liability:
| ● | for any transaction from which the director derives an improper personal benefit; |
| ● | or any act or omission not in good faith or that involves intentional misconduct or a knowing violation
of law; |
| ● | for any unlawful payment of dividends or redemption of shares; or |
| ● | for any breach of a director’s duty of loyalty to the corporation or its stockholders. |
If the DGCL is amended to
authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of the Company’s
directors will be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.
In addition, we have entered
into separate indemnification agreements with our directors and officers. These agreements, among other things, require us to indemnify
our directors and officers for certain expenses, including attorneys’ fees, judgments, fines, and settlement amounts incurred by
a director or officer in any action or proceeding arising out of their services as one of our directors or officers or any other company
or enterprise to which the person provides services at our request.
We maintain a directors’
and officers’ insurance policy pursuant to which our directors and officers are insured against liability for actions taken in
their capacities as directors and officers.
Item 16. Exhibits.
| Exhibit No. |
|
Description |
| 1.1† |
|
Form of Underwriting Agreement. |
| 2.1+ |
|
Agreement and Plan of Merger, dated as of May 9, 2021,
by and among LIVK and AT (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed on May 10, 2021). |
| 3.1 |
|
Amended and Restated Certificate of Incorporation of
the Company, (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K filed on August 26, 2021). |
| 3.2 |
|
Bylaws of the Company (incorporated by reference to
Exhibit 3.2 to the Current Report on Form 8-K filed on August 26, 2021). |
| 4.1 |
|
Form of Class A Common Stock Certificate of the Company
(incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K filed on August 26, 2021). |
| 4.2 |
|
Form of Warrant Certificate of the Company (incorporated
by reference to Exhibit 4.2 to the Current Report on Form 8-K filed on August 26, 2021). |
| 4.3 |
|
Warrant Agreement between Continental Stock Transfer
& Trust Company and LIVK (incorporated by reference to Exhibit 4.1 of LIVK’s Current Report on Form 8-K (No. 001-39157),
filed with the SEC on December 13, 2019). |
| 4.4* |
|
Form of Indenture for Debt Securities. |
| 4.5† |
|
Form of Debt Security. |
| 4.6† |
|
Form of Certificate of Designation for Preferred Stock. |
| 4.7† |
|
Form of Deposit Agreement, including form of Depositary
Shares. |
| 4.8† |
|
Form of Warrant Certificate. |
| 4.9† |
|
Form of Warrant Agreement. |
| 4.10† |
|
Form of Purchase Contract Agreement. |
| 4.11† |
|
Form of Unit Certificate Agreement. |
| 4.12† |
|
Form of Subscription Rights Certificate. |
| 5.1* |
|
Opinion of Mayer Brown LLP. |
| 23.1 |
|
Consent of Mayer Brown LLP (included in Exhibit 5.1). |
| 23.2* |
|
Consent of KPMG LLP, independent registered public accounting firm. |
| 24.1 |
|
Power of Attorney (incorporated by reference to the signature page hereto). |
| 107* |
|
Filing Fee Table. |
| † |
To the extent applicable, to be filed by amendment or as an exhibit to a Current Report on Form 8-K and incorporated by reference. |
| * |
Filed herewith. |
| + |
The schedules and exhibits to this agreement have been
omitted pursuant to Item 601(a)(5) of Regulation S-K. A copy of any omitted schedule and/or exhibit will be furnished to the SEC
upon request. |
Item 17. Undertakings
(a) The undersigned registrant hereby undertakes:
| (1) | To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement: |
| (i) | To include any prospectus required by Section 10(a)(3) of
the Securities Act; |
| (ii) | To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration
statement; and |
| (iii) | To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or any material change to such information in the registration
statement; |
provided, however, that paragraphs
(a)(1)(i), (a)(1)(ii), and (a)(1)(iii) above do not apply if the registration statement is on Form S-3 or Form F-3 and the information
required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission
by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement,
or is contained in a form of prospectus filed pursuant to Rule 424(b) that is a part of the registration statement.
| (2) | That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (3) | To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of the offering. |
| (5) | That, for the purpose of determining liability under the Securities
Act to any purchaser: |
| (A) | Each prospectus filed by the registrant pursuant to Rule
424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included
in the registration statement; and |
| (B) | Each prospectus required to be filed pursuant to Rule 424(b)(2),
(b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i),
(vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act shall be deemed to be part
of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness
or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement
made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser
with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. |
| (6) | That, for the purpose of determining liability of the registrant
under the Securities Act to any purchaser in the initial distribution of the securities: |
The undersigned registrant undertakes that in
a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting
method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to
such purchaser:
| (i) | Any preliminary prospectus or prospectus of the undersigned
registrant relating to the offering required to be filed pursuant to Rule 424; |
| (ii) | Any free writing prospectus relating to the offering prepared
by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
| (iii) | The portion of any other free writing prospectus relating
to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned
registrant; and |
| (iv) | Any other communications that is an offer in the offering
made by the undersigned registrant to the purchaser. |
(b) The undersigned registrant hereby undertakes
that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant
to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report
pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
(j) The undersigned registrant hereby undertakes to file an application
for the purpose of determining the eligibility of the trustee to act under subsection (a) of section 310 of the Trust Indenture Act (“Act”)
in accordance with the rules and regulations prescribed by the Commission under section 305(b)(2) of the Act.
SIGNATURES
Pursuant to the requirements
of the Securities Act of 1933 (the “Securities Act”), the registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Irving, Texas, on February 1, 2023.
| |
AgileThought, Inc. |
| |
|
|
| |
By: |
/s/ Manuel Senderos Fernández |
| |
|
Manuel Senderos Fernández |
| |
|
Chief Executive Officer |
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Manuel Senderos Fernández
and Diana Abril, and each of them, as his or her true and lawful agents, proxies and attorneys-in-fact, with full power of substitution
and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to (i) act on, sign and file with
the Securities and Exchange Commission any and all amendments (including post-effective amendments) to this registration statement
together with all schedules and exhibits thereto, (ii) act on, sign and file such certificates, instruments, agreements and other documents
as may be necessary or appropriate in connection therewith, (iii) act on and file any supplement to any prospectus included in this registration
statement or any such amendment or any subsequent registration statement filed pursuant to Rule 462(b) under the Securities Act and (iv) take
any and all actions which may be necessary or appropriate to be done, as fully for all intents and purposes as he or she might or could
do in person, hereby approving, ratifying and confirming all that such agent, proxy and attorney-in-fact or any of his substitutes
may lawfully do or cause to be done by virtue thereof.
Pursuant
to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and
on the dates indicated.
| Signatures |
|
Title |
|
Date |
| |
|
|
|
|
| /s/
Manuel Senderos Fernández |
|
President, Chief Executive Officer and |
|
February 1, 2023 |
| Manuel
Senderos Fernández |
|
Chairman of
the Board of Directors (Principal Executive Officer) |
|
|
| |
|
|
|
|
| /s/
Amit Singh |
|
Chief Financial Officer |
|
February 1, 2023 |
| Amit
Singh |
|
(Principal Financial Officer) |
|
|
| |
|
|
|
|
| /s/
David Santos Molero |
|
Chief Accounting Officer |
|
February 1, 2023 |
| David
Santos Molero |
|
(Principal Accounting Officer) |
|
|
| |
|
|
|
|
| /s/
Gerardo Benítez Peláez |
|
Director |
|
February 1, 2023 |
| Gerardo Benítez Peláez |
|
|
|
|
| |
|
|
|
|
| /s/
Andrés Borrego y Marrón |
|
Director |
|
February 1, 2023 |
| Andrés Borrego y Marrón |
|
|
|
|
| |
|
|
|
|
| /s/
Marina Diaz Ibarra |
|
Director |
|
February 1, 2023 |
| Marina
Diaz Ibarra |
|
|
|
|
| |
|
|
|
|
| /s/Mauricio Garduño
González Elizondo |
|
Director |
|
February 1, 2023 |
| Mauricio Garduño González Elizondo |
|
|
|
|
| |
|
|
|
|
| /s/
Roberto Langenauer Neuman |
|
Director |
|
February 1, 2023 |
| Roberto Langenauer Neuman |
|
|
|
|
| |
|
|
|
|
| /s/
Mauricio Jorge Rioseco Orihuela |
|
Director |
|
February 1, 2023 |
| Mauricio Jorge Rioseco Orihuela |
|
|
|
|
| |
|
|
|
|
| /s/
Alejandro Rojas Domene |
|
Director |
|
February 1, 2023 |
| Alejandro Rojas Domene |
|
|
|
|
| |
|
|
|
|
| /s/
Alexander R. Rossi |
|
Director |
|
February 1, 2023 |
| Alexander R. Rossi |
|
|
|
|
| |
|
|
|
|
| /s/
Arturo José Saval Pérez |
|
Director |
|
February 1, 2023 |
| Arturo José Saval Pérez |
|
|
|
|
| |
|
|
|
|
| /s/
Diego Zavala |
|
Director |
|
February 1, 2023 |
| Diego
Zavala |
|
|
|
|
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