SECURITIES AND EXCHANGE
COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Amendment
No. 2
(Rule 13d-101)
INFORMATION TO BE INCLUDED
IN STATEMENTS FILED PURSUANT TO RULE 13D-1(a) AND
AMENDMENTS THERETO FILED PURSUANT TO RULE 13D-2(a)
BIMI Holdings Inc.
(Name of Issuer)
Common Stock
(Title of Class of Securities)
05552Q202
(CUSIP Number)
Fnu Oudom
725 5th Avenue, 15th Floor, Suite 15-01,
New York NY, United States
(+1) 212 542 0028
(Name, Address and Telephone Number of Person
Authorized
to Receive Notices and Communications)
December 28, 2023
(Date of Event which Requires
Filing of this Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rules 13d-1(e), 13d-1(f)
or 13d-1(g), check the following box. ☐
Note: Schedules filed in paper format shall include a signed
original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.
| * | The remainder of this cover page shall be filled out for a reporting
person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing
information which would alter disclosures provided in a prior cover page. |
The information required on the remainder of this cover page shall
not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise
subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
| 1) |
NAME
OF REPORTING PERSON
Fnu Oudom |
| 2) |
CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
☐
(b)
☐ |
| 3) |
SEC
Use Only
|
| 4) |
SOURCE
OF FUNDS
PF
|
5) |
CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) ☐
|
| 6) |
CITIZENSHIP
OR PLACE OF ORGANIZATION
Vanuatu |
NUMBER
OF
SHARES
BENEFICIALLY
OWNED
BY
EACH
REPORTING
PERSON
WITH |
7) |
SOLE
VOTING POWER
10,264,044 |
| 8) |
SHARED
VOTING POWER
-0-
|
| 9) |
SOLE
DISPOSITIVE POWER
10,264,044 |
| 10) |
SHARED
DISPOSITIVE POWER
-0- |
| 11) |
AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
10,264,044 |
| 12) |
CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES ☐
|
| 13) |
PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
73.30%(1) |
| 14) |
TYPE OF REPORTING PERSON
IN |
| (1) |
Calculated based on 14,003,613 shares
of Common Stock issued and outstanding as of January 2, 2024. |
Explanatory Note
This Amendment No. 2 to Schedule 13D (this “Amendment No.2”)
amends and supplements the Schedule 13D originally filed on August 8, 2022, as amended by Amendment No. 1 thereto filed on December 19,
2023 (the “Statement”). Except as amended and supplemented herein, the information set forth in the Statement remains unchanged.
Unless otherwise indicated, all capitalized terms used but not defined herein shall have the same meaning ascribed to them in the Statement.
ITEM 1. Security and Issuer.
This Amendment No. 2 relates to the Common Stock, par value $.001 per
share (the “Common Stock”), of BIMI Holdings Inc., a Delaware Corporation (the “Issuer”).
All numbers in this Amendment reflect the 1-for-10 reverse split of
the Common Stock effective December 9, 2022.
The Issuer’s principal executive offices are located at 725 Fifth
Avenue, 15-01, New York, New York 10022.
This Amendment No. 2 is being filed by the
Reporting Person to report purchases of the Reporting Person.
The purchases have increased in the aggregate, the number of shares
of Common Stock actually held and beneficially owned by the Reporting Person relative to the number reported in greater than 1% of the
outstanding shares of Common Stock.
Except as modified by the information provided in this Item 1, the
information set forth in Item 1 of the Statement, is incorporated by reference herein in response to the disclosure requirements of Item
1 of Schedule 13D.
ITEM 2. Identity and Background.
This Amendment No. 2 is being filed by Mr. Fnu Oudom (the “Reporting
Person”).
The information set forth in the Statement in response to paragraphs
(a) to (f) is in each case incorporated by reference herein in response to the disclosures required by the corresponding paragraphs of
this Amendment No. 2.
ITEM 3. Source and Amount of Funds or Other Consideration.
Item 3 of the Statement is hereby supplemented
to include the following:
On November
27, 2023, Mr. Fnu Oudom entered into a share purchase agreement (the “CVI Share Purchase Agreement”) with
CVI Investments, Inc. (“CVI”), whereby CVI agreed to sell 214,044 shares of Common Stock of the Issuer to Mr.
Oudom at an aggregate price of $256,852.8. The transaction closed on December 28, 2023, when 214,044 shares Common Stock were issued to
Mr. Oudom.
On November 27, 2023, Mr. Fnu Oudom entered into a share purchase agreement
(the “Hudson Bay Share Purchase Agreement”) with Hudson Bay Master Fund Ltd. (“Hudson Bay”), whereby
Hudson Bay agreed to sell 200,000 shares of Common Stock of the Issuer to Mr. Oudom at an aggregate price of $240,000. The transaction
closed on December 28, 2023, when 200,000 shares Common Stock were issued to Mr. Oudom.
On February
27, 2023, the Issuer entered into a stock purchase Agreement (the “Stock Purchase Agreement”) with Mr. Fnu Oudom, whereby
the Issuer agreed to sell 2,000,000 shares of its Common Stock to Mr. Oudom for $3,000,000 in cash, based on a purchase price of $1.50
per share, subject to shareholder approval of the issuance of such shares. Such issuance was approved by the shareholders of the Issuer
on April 13, 2023. The transaction closed effective January 2, 2024 when 2,000,000 shares of Common Stock were issued to Mr. Oudom upon
the full payment of $3,000,000.
ITEM 4. Purpose of Transaction.
The information set forth in the corresponding
paragraph of the Statement with respect to the Reporting Person is incorporated by reference herein.
The Reporting Person reserves the right at
any time to change its present intention with respect to any or all of the matters referred to in this Item 4, or to dispose of any or
all of the securities of the Issuer purchased by him.
Except as set forth in Item 4 of the Statement, the Reporting Person
has no current plans or proposals which relate to or would result in any of the actions specified in clauses (a) through (j) of Item 4
of Schedule 13D, although the Reporting Person does not rule out the possibility of effecting or seeking to effect any such actions in
the future.
ITEM 5. Interest in Securities
of the Issuer
Item 5 of the Statement is hereby amended and replaced as follows:
(a) The responses to Items 11 and 13 of the cover pages to this Amendment
are incorporated herein.
(b) The responses to Items 7 through 10 of the cover pages to this
Amendment are incorporated herein.
(c) Except as described in this Amendment,
the Reporting Person has not effected any transactions in securities of the Issuer in the last 60 days.
(d) Other than the Reporting Person, no other person is known to have
the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the Issuer’s shares
of Common Stock covered by this Schedule 13D.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS UNDERSTANDINGS OR RELATIONSHIPS
WITH RESPECT TO SECURITIES OF THE ISSUER.
Item 6 of the Statement is hereby supplemented
to include the following:
Except as described above under Item 3 and under Item 6 of the Statement,
there are no contracts, arrangements, understandings or relationships (legal or otherwise) among the Reporting Persons and any other person
with respect to any securities of the Company, including but not limited to transfer or voting of any of the securities, finders fees,
joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding
of proxies.
The foregoing descriptions
under Item 3 of the CVI Share Purchase Agreement, the Hudson Bay Share Purchase Agreement, and the Stock Purchase Agreement do not purport
to be complete and are qualified in their entirety by references to the CVI Share Purchase Agreement, the Hudson Bay Share Purchase Agreement,
and the Stock Purchase Agreement , which are filed as Exhibit 4.1, 4.2 and 4.3 hereto.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
SIGNATURE
After reasonable inquiry and to the best of my
knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
| Dated as of: January 11, 2024 |
|
| |
|
| |
/s/ Fnu Oudom |
| |
Fnu Oudom |
5
Exhibit 4.1
Execution Version
SHARE PURCHASE AGREEMENT
This Share Purchase
Agreement (the “Agreement”), dated as of November 27, 2023 is by and between CVI Investments, Inc. (the “Seller”)
and Mr. Fnu Oudom (the “Buyer”).
W I T N E S S E T H:
WHEREAS,
the Seller owns 214,044 shares of restricted common stock of BIMI International Medical Inc. (the “Company”) (the “Restricted
Shares”) issued pursuant to alternate cashless exercises of various warrants to purchase shares of common stock of the Company
(the “Warrants”) previously issued to Seller;
WHEREAS,
the parties hereto desire that the Seller sells, transfers, conveys and assigns to Buyer, and Buyer purchases and acquires from the Seller,
the Restricted Shares and any and all rights and benefits incident to the ownership thereof (including, without limitation, any registration
rights pertaining to the Restricted Shares);
NOW, THEREFORE,
in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Sale and Purchase
of Restricted Shares; Settlement.
1.1 Sale and Purchase.
(a)
Subject to the terms and conditions of this Agreement, on the Closing Date (as defined below), the Seller shall sell, convey, assign
and deliver to Buyer, and Buyer shall purchase from the Seller, the Restricted Shares and any and all rights and benefits incident to
the ownership thereof (including, without limitation, any registration rights pertaining to the Restricted Shares).
(b)
The Buyer agrees to pay US$1.20 per Restricted Share, or an aggregate of US$256,852.8 (the “Purchase Price”).
(c)
Within two (2) Business Days after the date hereof (such date being the “Closing Date”) the Buyer will pay the
Purchase Price in full to the Seller by wire transfer of immediately available funds to an account or accounts designated by the Seller
in written wire instructions.
1.2
Further Assurances. Each party shall use its best efforts to do and perform, or cause to be done and performed, all such
further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as the Company
or any other party may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation
of the transactions contemplated hereby.
SECTION 2. Representations and Warranties
of Buyer. Buyer represents and warrants to the Seller, as of the date hereof and as of the Closing, as follows:
2.1 Authority. Buyer
has the authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out his
obligations hereunder. This Agreement, when executed and delivered by the Buyer, will constitute a valid and legally binding
obligation of the Buyer, enforceable against Buyer in accordance with its terms, except (a) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, and any other laws of general application affecting enforcement of
creditors’ rights generally, (b) as limited by laws relating to the availability of specific performance, injunctive relief,
or other equitable remedies, or (c) to the extent the indemnification provisions contained herein may be limited by federal or state
securities laws.
2.2
No Conflicts. Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated
thereby, does or will violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge or other
restriction of any government, governmental agency, or court to which the Buyer is subject, or conflict with, violate or constitute a
default under any agreement, credit facility, debt or other instrument or understanding to which the Buyer is a party.
2.3
Advice. (i) The Buyer is not relying (for purposes of making any investment decision or otherwise) upon any advice, counsel
or representations (whether written or oral) of the Seller or any of the Seller’s directors, officers, employees, agents, representatives
or advisers, (ii) neither Seller nor any of the Seller’s directors, officers, employees, agents, representatives or advisers has
given to the Buyer (directly or indirectly through any other person) any assurance, guarantee or representation whatsoever as to the expected
or projected success, profitability, return, performance, result, effect, consequence or benefit (including legal, regulatory, tax, financial,
accounting or otherwise) as to the purchase by the Buyer of the Restricted Shares, (iii) the Buyer has reviewed all information that he
believes is necessary or appropriate in connection with his purchase of the Restricted Shares and has consulted with his own legal, regulatory,
tax, business, investment, financial and accounting advisers to the extent he has deemed necessary, and he has made his own investment
decision based upon his own judgment and upon any advice from such advisers as he has deemed necessary and not upon any view expressed
by the Seller or any of the Seller’s directors, officers, employees, agents, representatives or advisers, and (iv) the Buyer has
such knowledge and experience in financial, business and international investment matters that he is capable of evaluating the merits
and risks of purchasing the Restricted Shares and properly understands the risks associated with his entry into this Agreement, and the
Buyer can bear the potential losses that may result from his purchase of the Restricted Shares.
2.4
No Litigation. There is no action, suit, proceeding, judgment, claim or investigation pending, or to the knowledge of the
Buyer, threatened against the Buyer which could reasonably be expected in any manner to challenge or seek to prevent, enjoin, alter or
materially delay any of the transactions contemplated by this Agreement.
2.5
Buyer Status. At the time the Buyer was offered the Restricted Shares, he was, at the date hereof he is, and on the Closing
Date he will be, an “accredited investor” as defined in Rule 501(a) under the Securities Act.
2.6
Consents. No authorization, consent, approval or other order of, or declaration to or filing with, any governmental agency
or body or other person is required for the valid authorization, execution, delivery and performance by the Buyer of this Agreement and
the consummation of the transactions contemplated hereby.
SECTION 3. Representations and Warranties
of the Seller. Seller represents and warrants to Buyer, as of the date hereof and as of the Closing, as follows:
3.1
Authorization of Agreement. Seller is an entity duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization with full right, corporate, partnership or other applicable power and authority to enter into and
to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder, and the execution,
delivery and performance by the Seller of the transactions contemplated by this Agreement have been duly authorized by all necessary corporate
or similar action on the part of such Seller. This Agreement, when executed and delivered by the Seller, will constitute a valid and legally
binding obligation of the Seller, enforceable against Seller in accordance with its terms, except (a) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, and any other laws of general application affecting enforcement of creditors’
rights generally, (b) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies,
or (c) to the extent the indemnification provisions contained herein may be limited by federal or state securities laws.
3.2 Title to the
Restricted Shares. Seller is the lawful owner of the Restricted Shares with good and marketable title thereto, and the Seller
has the absolute right to sell, assign, convey, transfer and deliver the Restricted Shares and any and all rights and benefits
incident to the ownership thereof (including, without limitation, any registration rights pertaining to the Restricted Shares), all
of which rights and benefits are transferable by the Seller to Buyer pursuant to this Agreement, free and clear of all the following
(collectively called “Claims”) of any nature whatsoever: security interests, liens, pledges, claims (pending or
threatened), charges, escrows, encumbrances, lock-up arrangements, options, rights of first offer or refusal, community property
rights, mortgages, indentures, security agreements or other agreements, arrangements, contracts, commitments, understandings or
obligations, whether written or oral and whether or not relating in any way to credit or the borrowing of money. Delivery to Buyer
of the Restricted Shares will (i) pass good and marketable title to the Restricted Shares to Buyer, free and clear of all Claims
(assuming that the Buyer is a bona fide purchaser within the meaning of Section 8-302 of the New York Uniform Commercial Code), and
(ii) convey, free and clear of all Claims, any and all rights and benefits incident to the ownership of such Restricted Shares
(including, without limitation, any registration rights pertaining to the Restricted Shares).
3.3 No Conflicts;
Advice. Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated thereby,
does or will violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge or other
restriction of any government, governmental agency, or court to which the Seller is subject or any provision of its organizational
documents or other similar governing instruments, or conflict with, violate or constitute a default under any agreement, credit
facility, debt or other instrument or understanding to which the Seller is a party. Seller has consulted such legal, tax and
investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its sale of the Restricted
Shares.
3.4
No Litigation. There is no action, suit, proceeding, judgment, claim or investigation pending, or to the knowledge of the
Seller, threatened against the Seller which could reasonably be expected in any manner to challenge or seek to prevent, enjoin, alter
or materially delay any of the transactions contemplated by this Agreement.
3.5
Consents. No authorization, consent, approval or other order of, or declaration to or filing with, any governmental agency
or body or other person is required for the valid authorization, execution, delivery and performance by the Seller of this Agreement and
the consummation of the transactions contemplated thereby.
3.6
Bankruptcy. Seller is not under the jurisdiction of a court in a Title 11 or similar case (within the meaning of Bankruptcy
Code Section 368(a)(3)(A) (or related provisions)) or involved in any insolvency proceeding or reorganization.
SECTION 4. Survival
of Representations and Warranties; Etc. All representations and warranties of Buyer and the Seller shall survive the Closing Date.
Seller may rely upon this Agreement for the purpose of assuring its compliance with applicable law.
SECTION 5. Indemnification.
Each party hereto
shall indemnify, defend and hold harmless, the other party (and its respective affiliates, directors, officers, employees, successors
and assigns) from and against any and all losses, claims, damages, liabilities and expenses based upon, arising out of or otherwise in
respect of, any inaccuracy in, or any breach of, the representations or warranties of such party and the covenants or agreements made
by such party in this Agreement.
SECTION 6. Notices.
Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon delivery, when delivered personally
or by overnight courier or sent by fax (upon confirmation of receipt), or 72 hours after being deposited in the U.S. mail, as certified
or registered mail, with postage prepaid, addressed to the party to be notified at such party’s address as set forth below.
Buyer
Fnu Oudom
40 Wall Street, 60th Floor
fnu.oudom@gmail.com
Seller
CVI Investments, Inc.
c/o Heights Capital Management, Inc.
101 California
Street, Suite 3250
San Francisco, CA 94111
Email: Email: winer@sig.com
and kobinger@sig.com
SECTION 7. Successors
and Assigns. This Agreement shall be binding on and inure to the benefit of the parties hereto and their respective successors,
heirs, personal representatives, and permitted assigns.
SECTION 8. Counterparts.
This Agreement may be executed via facsimile in one or more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
SECTION 9. Severability.
If any provision of this Agreement is held to be invalid or unenforceable in any respect, the validity and enforceability of the remaining
terms and provisions of this Agreement shall not in any way be affected or impaired thereby and the parties will attempt to agree upon
a valid and enforceable provision that is a reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision
in this Agreement.
SECTION 10. Entire
Agreement. This Agreement represents the entire agreement of the parties hereto and thereto with respect to the matters contemplated
hereby and thereby, and there are no written or oral representations, warranties, understandings or agreements with respect thereto except
as expressly set forth herein and therein.
SECTION 11. Amendments;
Waivers. No provision of this Agreement may be waived or amended except in a written instrument signed, in the case of an amendment,
by each party or, in the case of a waiver, by the party against whom enforcement of any such waiver is sought.
SECTION 12. [Intentionally Omitted].
SECTION 13. Further
Assurances. Each of the Buyer and the Seller hereby agrees and provides further assurances that it will, in the future, execute
and deliver any and all further agreements, certificates, instruments and documents and do and perform or cause to be done and performed,
all acts and things as may be necessary or appropriate to carry out the intent and accomplish the purpose of this Agreement.
SECTION 14. Governing
Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York without
regard to the conflicts of laws principles thereof. The parties hereto hereby irrevocably agree that any suit or proceeding arising
directly and/or indirectly pursuant to or under this Agreement, shall be brought solely in a federal or state court located in the
City, County and State of New York. By its execution hereof, the parties hereby covenant and irrevocably submit to the in personam
jurisdiction of the federal and state courts located in the City, County and State of New York and agree that any process in any
such action may be served upon any of them personally, or by certified mail or registered mail upon them or their agent, return
receipt requested, with the same full force and effect as if personally served upon them in New York City. The parties hereto waive
any claim that any such jurisdiction is not a convenient forum for any such suit or proceeding and any defense or lack of in
personam jurisdiction with respect thereto. Nothing contained in this Section 14 is intended to limit the applicability of Section
15.
SECTION 15. Dispute Resolution.
(a)
All disputes or claims arising under or in any way relating to this Agreement shall be settled by arbitration before a panel of
three arbitrators (with one designated by the Buyer and one designated by the Seller, and the third arbitrator designated by the first
two) pursuant to the rules of the American Arbitration Association. Any arbitrator designated by the Buyer or the Seller must be an “Independent
Person.” For the purposes of this Section 15, an “Independent Person” shall be an individual who is not and
has not been (i) a director, officer, employee, agent or shareholder of either party hereto, (ii) a consultant to either party hereto,
(iii) a person with a direct or indirect financial interest in any contract with either party hereto, (iv) a director, officer or key
employee of a company at a time when such company was party to a contract with either party hereto, or (v) a relative of any person referred
to in clauses (i), (ii), (iii) or (iv) above. As used in the immediately preceding sentence, the term “either party hereto”
shall be deemed to include any affiliates of the parties hereto. Any such arbitration shall take place in New York City. Arbitration may
be commenced at any time by either party hereto giving written notice to the other party hereto that such dispute has been referred to
arbitration under this Section 15. The third arbitrator shall be selected as prescribed above, but if the first two arbitrators do not
so agree within 30 days after the date of the notice referred to above, the selection shall be made pursuant to the rules of the American
Arbitration Association from the Commercial Arbitration Panel maintained by such Association. Any award rendered by the arbitrators shall
be conclusive and binding upon the parties hereto; provided, however, that any such award shall be accompanied by a written
opinion of the arbitrators giving the reasons for the award. In making such award, the arbitrators shall be authorized to award interest
on any amount awarded. This provision for arbitration shall be specifically enforceable by the Seller and the Buyer and the decision of
the arbitrators in accordance herewith shall be final and binding and there shall be no right of appeal therefrom. Each of the Seller
and the Buyer shall pay its own expenses of arbitration and the expenses of the arbitrators shall be equally shared; provided,
however, that if in the opinion of the arbitrators any claim or any defense or objection thereto was frivolous or in bad faith,
the arbitrators may assess, as part of the award, all or any part of the arbitration expenses of the other party (including reasonable
attorneys’ fees) and of the arbitrators against the party raising such unreasonable claim, defense or objection.
(b)
The parties hereto acknowledge that a breach of this Section 15 would result in irreparable injury to the non-breaching party,
and the non-breaching party will be entitled to seek equitable relief, including specific performance, to enforce the provisions of this
Section 15.
SECTION 16. Expenses. Each party
hereto shall pay the fees and expenses of any broker engaged by such party and of such party’s advisers, counsel, accountants
and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution,
delivery and performance of this Agreement, and shall hold the other party hereto harmless against any liability, loss or expense
(including, without limitation, reasonable attorneys’ fees and out-of-pocket expenses) arising in connection with any claim
for such fees and expenses; provided, however, that the Buyer shall pay for (i) any processing fees or legal opinion required by the
Company’s transfer agent to process the transactions contemplated hereby and (ii) any transfer, stamp or similar taxes, if
any, that are payable in connection with his execution and delivery of this Agreement and the consummation of the transactions
contemplated hereby relating to him or the Restricted Shares.
[Remainder of page intentionally
left blank]
IN WITNESS WHEREOF, the
parties hereto have duly executed this Agreement as of the date first above-written.
Seller
CVI Investments, Inc.
By: Heights Capital Management,
Inc., its authorized agent
| By: |
/s/ Martin Kobinger |
|
| Name: |
Martin Kobinger |
|
| Title: |
President |
|
Wire instructions:
Agent Name: Bank of America, N.A. NY
Bank Address: One Bryant Park, New York, NY 10036
Agent
BIC: BOFAUS3N
Account Name: BofA Securities, Inc.
Account Number:
6550-2-13525
ABA: 026009593
*Reference:
Buyer
Fnu Oudom
| By: |
/s/ Fnu Oudom |
|
| Name: |
Fnu Oudom |
|
Exhibit 4.2
Execution Version
SHARE PURCHASE AGREEMENT
This Share Purchase
Agreement (the “Agreement”), dated as of November 27, 2023 is by and between Hudson Bay Master Fund Ltd. (the “Seller”)
and Mr. Fnu Oudom (the “Buyer”).
W I T N E S S E T H:
WHEREAS, the
Seller owns 200,000 shares of restricted common stock of BIMI International Medical Inc. (the “Company”) (the “Restricted
Shares”) issued pursuant to alternate cashless exercises of various warrants to purchase shares of common stock of the Company (the
“Warrants”) previously issued to Seller;
WHEREAS, the
parties hereto desire that the Seller sells, transfers, conveys and assigns to Buyer, and Buyer purchases and acquires from the Seller,
the Restricted Shares and any and all rights and benefits incident to the ownership thereof (including, without limitation, any registration
rights pertaining to the Restricted Shares);
NOW, THEREFORE,
in consideration of the premises and the mutual covenants contained herein, and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Sale
and Purchase of Restricted Shares; Settlement.
1.1 Sale and Purchase.
(a) Subject
to the terms and conditions of this Agreement, on the Closing Date (as defined below), the Seller shall sell, convey, assign and deliver
to Buyer, and Buyer shall purchase from the Seller, the Restricted Shares and any and all rights and benefits incident to the ownership
thereof (including, without limitation, any registration rights pertaining to the Restricted Shares).
(b) The
Buyer agrees to pay US$1.20 per Restricted Shares, or an aggregate of US$240,000 (the “Purchase Price”).
(c) Within
two (2) Business Days after the date hereof (such date being the “Closing Date”) the Buyer will pay the Purchase Price in
full to the Seller by wire transfer of immediately available funds to an account or accounts designated by the Seller in written wire
instructions.
1.2 Further
Assurances. Each party shall use its best efforts to do and perform, or cause to be done and performed, all such further acts and
things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as the Company or any other
party may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
SECTION 2. Representations
and Warranties of Buyer. Buyer represents and warrants to the Seller, as of the date hereof and as of the Closing, as
follows:
2.1 Authority.
Buyer has the authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out
his obligations hereunder. This Agreement, when executed and delivered by the Buyer, will constitute a valid and legally binding
obligation of the Buyer, enforceable against Buyer in accordance with its terms, except (a) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, and any other laws of general application affecting enforcement of
creditors’ rights generally, (b) as limited by laws relating to the availability of specific performance, injunctive relief,
or other equitable remedies, or (c) to the extent the indemnification provisions contained herein may be limited by federal or state
securities laws.
2.2 No
Conflicts. Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated thereby, does
or will violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge or other restriction
of any government, governmental agency, or court to which the Buyer is subject, or conflict with, violate or constitute a default under
any agreement, credit facility, debt or other instrument or understanding to which the Buyer is a party.
2.3 Advice. (i)
The Buyer is not relying (for purposes of making any investment decision or otherwise) upon any advice, counsel or representations (whether
written or oral) of the Seller or any of the Seller’s directors, officers, employees, agents, representatives or advisers, (ii)
neither Seller nor any of the Seller’s directors, officers, employees, agents, representatives or advisers has given to the Buyer
(directly or indirectly through any other person) any assurance, guarantee or representation whatsoever as to the expected or projected
success, profitability, return, performance, result, effect, consequence or benefit (including legal, regulatory, tax, financial, accounting
or otherwise) as to the purchase by the Buyer of the Restricted Shares, (iii) the Buyer has reviewed all information that he believes
is necessary or appropriate in connection with his purchase of the Restricted Shares and has consulted with his own legal, regulatory,
tax, business, investment, financial and accounting advisers to the extent he has deemed necessary, and he has made his own investment
decision based upon his own judgment and upon any advice from such advisers as he has deemed necessary and not upon any view expressed
by the Seller or any of the Seller’s directors, officers, employees, agents, representatives or advisers, and (iv) the Buyer has
such knowledge and experience in financial, business and international investment matters that he is capable of evaluating the merits
and risks of purchasing the Restricted Shares and properly understands the risks associated with his entry into this Agreement, and the
Buyer can bear the potential losses that may result from his purchase of the Restricted Shares.
2.4 No
Litigation. There is no action, suit, proceeding, judgment, claim or investigation pending, or to the knowledge of the Buyer, threatened
against the Buyer which could reasonably be expected in any manner to challenge or seek to prevent, enjoin, alter or materially delay
any of the transactions contemplated by this Agreement.
2.5 Buyer
Status. At the time the Buyer was offered the Restricted Shares, he was, at the date hereof he is, and on the Closing Date he will
be, an “accredited investor” as defined in Rule 501(a) under the Securities Act.
2.6 Consents.
No authorization, consent, approval or other order of, or declaration to or filing with, any governmental agency or body or other
person is required for the valid authorization, execution, delivery and performance by the Buyer of this Agreement and the
consummation of the transactions contemplated hereby.
SECTION 3. Representations and Warranties
of the Seller. Seller represents and warrants to Buyer, as of the date hereof and as of the Closing, as follows:
3.1 Authorization
of Agreement. Seller is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its
organization with full right, corporate, partnership or other applicable power and authority to enter into and to consummate the transactions
contemplated by this Agreement and otherwise to carry out its obligations hereunder, and the execution, delivery and performance by the
Seller of the transactions contemplated by this Agreement have been duly authorized by all necessary corporate or similar action on the
part of such Seller. This Agreement, when executed and delivered by the Seller, will constitute a valid and legally binding obligation
of the Seller, enforceable against Seller in accordance with its terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance, and any other laws of general application affecting enforcement of creditors’ rights generally,
(b) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies, or (c) to
the extent the indemnification provisions contained herein may be limited by federal or state securities laws.
3.2 Title
to the Restricted Shares. Seller is the lawful owner of the Restricted Shares with good and marketable title thereto, and the
Seller has the absolute right to sell, assign, convey, transfer and deliver the Restricted Shares and any and all rights and
benefits incident to the ownership thereof (including, without limitation, any registration rights pertaining to the Restricted
Shares), all of which rights and benefits are transferable by the Seller to Buyer pursuant to this Agreement, free and clear of all
the following (collectively called “Claims”) of any nature whatsoever: security interests, liens, pledges, claims
(pending or threatened), charges, escrows, encumbrances, lock-up arrangements, options, rights of first offer or refusal, community
property rights, mortgages, indentures, security agreements or other agreements, arrangements, contracts, commitments,
understandings or obligations, whether written or oral and whether or not relating in any way to credit or the borrowing of money.
Delivery to Buyer of the Restricted Shares will (i) pass good and marketable title to the Restricted Shares to Buyer, free and clear
of all Claims (assuming that the Buyer is a bona fide purchaser within the meaning of Section 8-302 of the New York Uniform
Commercial Code), and (ii) convey, free and clear of all Claims, any and all rights and benefits incident to the ownership of such
Restricted Shares (including, without limitation, any registration rights pertaining to the Restricted Shares).
3.3 No
Conflicts; Advice. Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated thereby,
does or will violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge or other restriction
of any government, governmental agency, or court to which the Seller is subject or any provision of its organizational documents or other
similar governing instruments, or conflict with, violate or constitute a default under any agreement, credit facility, debt or other instrument
or understanding to which the Seller is a party. Seller has consulted such legal, tax and investment advisors as it, in its sole discretion,
has deemed necessary or appropriate in connection with its sale of the Restricted Shares.
3.4 No
Litigation. There is no action, suit, proceeding, judgment, claim or investigation pending, or to the knowledge of the Seller, threatened
against the Seller which could reasonably be expected in any manner to challenge or seek to prevent, enjoin, alter or materially delay
any of the transactions contemplated by this Agreement.
3.5 Consents.
No authorization, consent, approval or other order of, or declaration to or filing with, any governmental agency or body or other person
is required for the valid authorization, execution, delivery and performance by the Seller of this Agreement and the consummation of the
transactions contemplated thereby.
3.6 Bankruptcy.
Seller is not under the jurisdiction of a court in a Title 11 or similar case (within the meaning of Bankruptcy Code Section 368(a)(3)(A)
(or related provisions)) or involved in any insolvency proceeding or reorganization.
SECTION 4. Survival
of Representations and Warranties; Etc. All representations and warranties of Buyer and the Seller shall survive the Closing Date.
Seller may rely upon this Agreement for the purpose of assuring its compliance with applicable law.
SECTION 5. Indemnification.
Each party hereto shall
indemnify, defend and hold harmless, the other party (and its respective affiliates, directors, officers, employees, successors and assigns)
from and against any and all losses, claims, damages, liabilities and expenses based upon, arising out of or otherwise in respect of,
any inaccuracy in, or any breach of, the representations or warranties of such party and the covenants or agreements made by such party
in this Agreement.
SECTION 6. Notices.
Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon delivery, when delivered personally
or by overnight courier or sent by fax (upon confirmation of receipt), or 72 hours after being deposited in the U.S. mail, as certified
or registered mail, with postage prepaid, addressed to the party to be notified at such party’s address as set forth below.
Buyer
Fnu Oudom
40 Wall Street, 60th Floor
Email: fnu.oudom@gmail.com
Seller
Hudson Bay Master Fund Ltd.
c/o Hudson Bay Capital Management LP
28 Havemeyer Place,
2nd Floor
Greenwich, CT 06830
Email: investments@hudsonbaycapital.com
Attn: Direct Investments Team
SECTION 7. Successors
and Assigns. This Agreement shall be binding on and inure to the benefit of the parties hereto and their respective successors,
heirs, personal representatives, and permitted assigns.
SECTION 8. Counterparts.
This Agreement may be executed via facsimile in one or more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
SECTION 9. Severability.
If any provision of this Agreement is held to be invalid or unenforceable in any respect, the validity and enforceability of the remaining
terms and provisions of this Agreement shall not in any way be affected or impaired thereby and the parties will attempt to agree upon
a valid and enforceable provision that is a reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision
in this Agreement.
SECTION 10. Entire
Agreement. This Agreement represents the entire agreement of the parties hereto and thereto with respect to the matters contemplated
hereby and thereby, and there are no written or oral representations, warranties, understandings or agreements with respect thereto except
as expressly set forth herein and therein.
SECTION 11. Amendments;
Waivers. No provision of this Agreement may be waived or amended except in a written instrument signed, in the case of an amendment,
by each party or, in the case of a waiver, by the party against whom enforcement of any such waiver is sought.
SECTION 12. [Intentionally Omitted].
SECTION 13. Further
Assurances. Each of the Buyer and the Seller hereby agrees and provides further assurances that it will, in the future, execute
and deliver any and all further agreements, certificates, instruments and documents and do and perform or cause to be done and performed,
all acts and things as may be necessary or appropriate to carry out the intent and accomplish the purpose of this Agreement.
SECTION
14. Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of
New York without regard to the conflicts of laws principles thereof. The parties hereto hereby irrevocably agree that any suit or
proceeding arising directly and/or indirectly pursuant to or under this Agreement, shall be brought solely in a federal or state
court located in the City, County and State of New York. By its execution hereof, the parties hereby covenant and irrevocably submit
to the in personam jurisdiction of the federal and state courts located in the City, County and State of New York and agree that any
process in any such action may be served upon any of them personally, or by certified mail or registered mail upon them or their
agent, return receipt requested, with the same full force and effect as if personally served upon them in New York City. The parties
hereto waive any claim that any such jurisdiction is not a convenient forum for any such suit or proceeding and any defense or lack
of in personam jurisdiction with respect thereto. Nothing contained in this Section 14 is intended to limit the applicability of
Section 15.
SECTION 15. Dispute Resolution.
(a) All
disputes or claims arising under or in any way relating to this Agreement shall be settled by arbitration before a panel of three arbitrators
(with one designated by the Buyer and one designated by the Seller, and the third arbitrator designated by the first two) pursuant to
the rules of the American Arbitration Association. Any arbitrator designated by the Buyer or the Seller must be an “Independent
Person.” For the purposes of this Section 15, an “Independent Person” shall be an individual who is not and
has not been (i) a director, officer, employee, agent or shareholder of either party hereto, (ii) a consultant to either party hereto,
(iii) a person with a direct or indirect financial interest in any contract with either party hereto, (iv) a director, officer or key
employee of a company at a time when such company was party to a contract with either party hereto, or (v) a relative of any person referred
to in clauses (i), (ii), (iii) or (iv) above. As used in the immediately preceding sentence, the term “either party hereto”
shall be deemed to include any affiliates of the parties hereto. Any such arbitration shall take place in New York City. Arbitration may
be commenced at any time by either party hereto giving written notice to the other party hereto that such dispute has been referred to
arbitration under this Section 15. The third arbitrator shall be selected as prescribed above, but if the first two arbitrators do not
so agree within 30 days after the date of the notice referred to above, the selection shall be made pursuant to the rules of the American
Arbitration Association from the Commercial Arbitration Panel maintained by such Association. Any award rendered by the arbitrators shall
be conclusive and binding upon the parties hereto; provided, however, that any such award shall be accompanied by a written
opinion of the arbitrators giving the reasons for the award. In making such award, the arbitrators shall be authorized to award interest
on any amount awarded. This provision for arbitration shall be specifically enforceable by the Seller and the Buyer and the decision of
the arbitrators in accordance herewith shall be final and binding and there shall be no right of appeal therefrom. Each of the Seller
and the Buyer shall pay its own expenses of arbitration and the expenses of the arbitrators shall be equally shared; provided,
however, that if in the opinion of the arbitrators any claim or any defense or objection thereto was frivolous or in bad faith,
the arbitrators may assess, as part of the award, all or any part of the arbitration expenses of the other party (including reasonable
attorneys’ fees) and of the arbitrators against the party raising such unreasonable claim, defense or objection.
(b) The
parties hereto acknowledge that a breach of this Section 15 would result in irreparable injury to the non-breaching party, and the non-breaching
party will be entitled to seek equitable relief, including specific performance, to enforce the provisions of this Section 15.
SECTION 16. Expenses.
Each party hereto shall pay the fees and expenses of any broker engaged by such party and of such party’s advisers, counsel,
accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation,
execution, delivery and performance of this Agreement, and shall hold the other party hereto harmless against any liability, loss or
expense (including, without limitation, reasonable attorneys’ fees and out-of-pocket expenses) arising in connection with any
claim for such fees and expenses; provided, however, that the Buyer shall pay for (i) any processing fees or legal opinion required
by the Company’s transfer agent to process the transactions contemplated hereby and (ii) any transfer, stamp or similar taxes,
if any, that are payable in connection with his execution and delivery of this Agreement and the consummation of the transactions
contemplated hereby relating to him or the Restricted Shares.
[Remainder of page intentionally
left blank]
IN WITNESS WHEREOF, the parties
hereto have duly executed this Agreement as of the date first above-written.
| Seller |
|
| |
|
| HUDSON BAY MASTER FUND LTD. |
|
| |
|
| By: HUDSON BAY CAPITAL MANAGEMENT LP |
| |
|
| By: |
/s/ Richard Allison |
|
| Name: |
Richard Allison |
|
| Title: |
Authorized Signatory, Hudson Bay Capital Management LP not individually, but solely as Investment Advisor to Hudson Bay Master Fund Ltd. |
|
| Address: |
c/o Hudson Bay Capital Management LP |
| |
28 Havemeyer Place, 2nd Floor |
| |
Greenwich, CT 06830 |
| Attn: |
Direct Investments Team |
| Email: |
investments@hudsonbaycapital.com |
Wire instructions:
The Bank of New York Mellon
ABA# 021000018
Account Number: 2719628400
Account Name: Hudson Bay Master Fund Ltd
Reference: BIMI
Share Repurchase
BIC: IRVTUS3NAMS
| Buyer |
|
| |
|
|
| Fnu Oudom |
|
| |
|
|
| By: |
/s/ Fnu Oudom |
|
7
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