UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO SECTION 13a-16 OR 15d-16
OF THE SECURITIES EXCHANGE ACT OF 1934
For the month of July 2024
Commission File Number: 001-41678
VCI Global Limited
(Translation of registrant’s name into English)
B03-C-8 Menara 3A
KL, Eco City, No.3 Jalan Bangsar
59200 Kuala Lumpur
(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual
reports under cover of Form 20-F or Form 40-F:
Form 20-F ☒
Form 40-F ☐
On July 25, 2024, VCI Global Limited (the “Company”)
entered into two securities purchase agreements (the “Purchase Agreements”) with certain accredited investors (the “Purchasers”),
pursuant to which the Company agreed to issue and sell to the Purchasers an aggregate of 3,568,035 ordinary shares (the “Shares”),
no par value per share, in a registered direct offering (the “Offering”). The Shares were sold at a purchase price of $0.40
per ordinary share.
The Offering closed on July 26, 2024, and the
Company received gross proceeds of $1,427,214 before deducting the offering expenses payable by the Company. The proceeds from the Offering
are intended to be used for working capital and general corporate purposes.
The Offering was made directly to the investors,
without a placement agent or underwriter.
The representations, warranties and covenants
contained in the Purchase Agreements were made only for the purpose of such agreement and as of specific dates, were solely for the benefit
of the parties to the Purchase Agreements and may be subject to limitations agreed upon by the contracting parties. The foregoing summary
of the Purchase Agreements is qualified in its entirety by the full text of the Form of Purchase Agreement, which is filed herewith
as Exhibit 99.1 incorporated herein by reference.
The Offering was made pursuant to the Company’s
existing shelf registration statement on Form F-3 (File No. 333-279521), filed with the Securities and Exchange Commission (the
“Commission”) on May 17, 2024, and declared effective by the Commission on May 28, 2024 (the “Registration Statement”).
A prospectus supplement to the Registration Statement was filed with the Commission on July 25, 2024.
The legal opinion, including the related consent,
of Carey Olsen (BVI) L.P. relating to the issuance and sale of the Shares is filed as Exhibit 5.1 hereto.
This Report on Form 6-K does not constitute an
offer to sell, or the solicitation of an offer to buy, nor shall there be any sale of these securities in any state or jurisdiction in
which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such
state or jurisdiction.
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: July 26, 2024 |
VCI Global Limited |
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By: |
/s/ Victor Hoo |
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Name: |
Victor Hoo |
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Title: |
Chairman and Chief Executive Officer |
Exhibit Index
3
Exhibit 5.1
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Rodus Building PO Box 3093 Road Town Tortola VG1110 British Virgin Islands
T +1 284 394 4030 F +1 284 494 4155 E bvi@careyolsen.com |
26 July 2024
VCI Global Limited
B03-C-8 Menara 3A
KL Eco City, No. 3 Jalan Bangsar
59200 Kuala Lumpur
Dear Sir / Madam
Re: VCI Global Limited (the "Company")
We are lawyers qualified to practise in the
British Virgin Islands and have acted as British Virgin Islands legal counsel to the Company. We have been asked to issue this legal
opinion in connection with a prospectus supplement dated 25 July 2024 (the "Prospectus Supplement" and together
with the base prospectus included in the Registration Statement (as defined below), the "Prospectus") forming part
of the registration statement on Form F-3 (file number 333-279521) filed with the U.S. Securities and Exchange Commission (the
"Commission") (the "Registration Statement", under the Securities Act of 1933, as amended (the
“Securities Act”) relating to the offering of the following securities of the Company having an aggregate
offering price of up to $200,000,000 or the equivalent in foreign or composite currencies: (i) ordinary shares of the Company, no
par value (the “Ordinary Shares”) (ii) debt securities, which may be secured or unsecured, in one or more series
(the “Debt Securities”) issuable pursuant to an indenture (the "Indenture"); (ii) warrants to
purchase Shares or Debt Securities (the “Warrants”); and (d) units consisting of two or more securities described
above in any combination (the “Units”). The Ordinary Shares, the Debt Securities, the Warrants, and the Units are
collectively referred to herein as the “Securities”.
The Prospectus Supplement relates to the
offering and take-down of 3,568,035 Ordinary Shares (the "Take-Down Shares") pursuant to the Securities Purchase
Agreement.
We hereby consent to the filing of
this opinion letter as an exhibit to the Registration Statement and to the references to our firm under the heading “Legal Matters”
in the Prospectus. In providing our consent, we do not thereby admit that we are in the category of persons whose consent is required
under Section 7 of the Securities Act or the Rules and Regulations of the Commission thereunder.
Capitalised terms used in this Opinion shall have the meanings
ascribed to them in this Opinion and/or the Schedules.
This Opinion is given only on the laws
of the British Virgin Islands in force at the date hereof and is based solely on matters of fact known to us at the date hereof. We have
not investigated the laws or regulations of any jurisdiction other than the British Virgin Islands (collectively, "Foreign Laws").
We express no opinion as to matters of fact or, unless expressly stated otherwise, the veracity of any representations or warranties given
in or in connection with any of the documents set out in Schedule 1.
2. | DOCUMENTS REVIEWED AND ENQUIRIES MADE |
In giving this Opinion, we have undertaken
the Searches and reviewed originals, copies, drafts, conformed copies, certified copies or notarised copies of the documents set out in
Schedule 1.
3. | ASSUMPTIONS AND QUALIFICATIONS |
This Opinion is given on the basis
that the assumptions set out in Schedule 2 (which we have not independently investigated or verified) are true, complete and accurate
in all respects. In addition, this Opinion is subject to the qualifications set out in Schedule 3.
Having regard to such legal considerations
as we deem relevant, we are of the opinion that:
4.1 | Due incorporation, existence and status |
| (a) | The Company has been duly incorporated as a BVI business company, limited by shares, under the BVI Business
Companies Act 2004 (as amended) (the “Act”), is validly existing and was in good standing with the Registrar of Corporate
Affairs in the British Virgin Islands at the date of the Certificate of Good Standing (the "Registrar"). |
| (b) | Each of the following subsidiaries of the Company is a company duly incorporated and in good standing
under the laws of country of incorporation, as noted: |
| (i) | V Capital Consulting Limited; and |
| (ii) | VCI Global Brands Limited (together, the "BVI Subsidiaries"). |
The Company has full power (including
both capacity and authority) under its Memorandum and Articles to enter into, deliver and perform its obligations under the Documents
and to offer the Take-Down Shares under the Securities Purchase Agreement.
The execution and delivery of the Documents
by the Company and the performance of its obligations thereunder do not contravene:
| (a) | any law to which the Company is currently subject in the British Virgin Islands; or |
| (b) | any provision of the Memorandum and Articles. |
| (a) | Based solely on the Memorandum and Articles, the Company is authorised to issue an unlimited number of
Ordinary Shares, no par value per share. |
| (b) | The Take-Down Shares, to be issued and sold by the Company pursuant to the terms of the Securities Purchase
Agreements, have been duly authorised for issuance and when: (a) the board of directors of the Company has taken all necessary corporate
action to approve the issue thereof, the terms of the offering thereof and related matters; (b) the issue of such Take-Down Shares have
been recorded in the Company’s register of members; and (c) the subscription price of such Take-Down Shares have been fully paid
in cash or other consideration approved by the board of directors of the Company, the Take-Down Shares will be duly authorised, validly
issued, fully-paid and non-assessable, and free of any pre- emptive or similar rights. As a matter of British Virgin Islands law, a share
is only issued when it has been entered in the register of members. |
| (c) | With respect to the Ordinary Shares, when: (a) the board of directors of the Company has taken all necessary
corporate action to approve the issue thereof, the terms of the offering thereof and related matters; (b) the issue of such Ordinary Shares
have been recorded in the Company’s register of members; and (c) the
subscription price of such Ordinary Shares have been fully paid in cash or other consideration approved by the board of directors of
the Company, the Ordinary Shares will be duly authorised, validly issued, fully-paid and non- assessable. Non-assessable in this
opinion means when used herein, that a shareholder shall not, solely by virtue of its status as a shareholder, be liable for
additional assessments or calls on the Shares by the Company or its creditors except in exceptional circumstances, such as involving
fraud, the establishment of an agency relationship or an illegal or improper purpose or other circumstances in which a court may be
prepared to pierce or lift the corporate veil). As a matter of British Virgin Islands law, a share is only issued when it has been
entered in the register of members. |
| (d) | With respect to the Warrants, when: (a) the board of directors of the Company has taken all necessary
corporate action to approve the creation and terms of the Warrants and to approve the issue thereof, the terms of the offering thereof
and related matters; (b) if applicable, a warrant agreement relating to the Warrants shall have been duly authorised and validly executed
and delivered by the Company and the financial institution designated as warrant agent thereunder; and (c) the warrant certificates have
been duly executed, countersigned, registered and delivered in accordance with the Warrant Agreement, if applicable, relating to the Warrants
and the applicable definitive purchase, underwriting or similar agreement approved by the board of directors of the Company upon payment
of the consideration therefor provided therein, the Warrants will be duly authorised, legal and binding obligations of the Company. |
| (e) | With respect to each issue of Debt Securities pursuant to the relevant Indenture Document, when (a) the
board of directors of the Company has taken all necessary corporate action to approve the issue thereof, the terms of the offering thereof
and related matters; and (b) such Debt Securities issued thereunder have been duly executed and delivered on behalf of the Company and
authenticated in the manner set forth in the relevant Indenture Document relating to such issue of Debt Securities and delivered against
due payment therefor pursuant to, and in accordance with, the terms of the Registration Statement and any relevant prospectus supplement,
such Debt Securities issued pursuant to the relevant Indenture Document will have been duly executed, issued and delivered. |
| (f) | With respect to the Units, when: (a) the board of directors of the Company has taken all necessary corporate
action to approve the creation and terms of the Units and to approve the issue thereof, the terms of the offering thereof and related
matters; (b) a unit agreement relating to the Units shall have been duly authorised and validly executed and delivered by the Company
and the financial institution designated as unit agent thereunder; and (c) the Units Certificates have been duly executed, countersigned,
registered and delivered in accordance with the unit agreement relating to the Units and the applicable definitive purchase, underwriting
or similar agreement approved by the board of directors of the Company upon payment of the consideration therefor provided therein, the
Units will be duly authorised, legal and binding obligations of the Company. |
| (g) | The description of the Ordinary Shares in the Registration Statement and Prospectus is correct in all
material aspects. |
The execution and delivery of the Securities
Purchase Agreement and the performance by the Company of its obligations thereunder have been authorised by the Company and, the Securities
Purchase Agreement has been duly executed on behalf of the Company constitutes the legal, valid and binding obligations of the Company
enforceable in accordance with its terms.
No authorisation, approval, consent,
registration, licence, exemption or filing order is required from any court or governmental, regulatory, judicial or public body or authority
in the British Virgin Islands is required in connection with:
| (a) | the execution and delivery by the Company of the Documents; |
| (b) | the performance of the Company's obligations under the Documents, including the issuance of the Take-Down Shares; |
| (c) | any payments made by the Company, pursuant to the Documents; and/or |
| (d) | the enforcement of the Documents against the Company (including the admissibility of the Documents in evidence). |
Companies incorporated or registered
under the Act are currently exempt from income and corporate tax. In addition, the British Virgin Islands currently does not levy capital
gains tax on companies incorporated or registered under the Act. The Company will not be required by any laws of the British Virgin Islands
to make any deduction or withholding (including stamp duty tax) from any payment it may make under the Documents. No shareholder, by virtue
of holding Take-Down Shares, will be subject to any taxation in the BVI.
In connection with the execution and
delivery by the Company of the Documents, the performance of its obligations thereunder, including the issuance of the Take-Down Shares,
any payments made by it pursuant to the Documents and/or the enforcement of the Documents against the Company (including the admissibility
of the Documents in evidence):
| (a) | with the exception of: (i) filing fees charged by the Registrar in respect of any optional filings made
at the Registrar; and/or (ii) court fees in the event of litigation before the British Virgin Islands' courts, no taxes, fees or charges
(including stamp duty) are payable (either by direct assessment or withholding) to the government or other taxing authority in the British
Virgin Islands under the laws of the British Virgin Islands; and |
| (b) | subject to any filings which may be necessary in connection with legal proceedings, no Document is required
to be notarised, legalised, apostilled, consularised, filed, recorded, registered or enrolled with any court or governmental, regulatory,
judicial or public body or authority in the British Virgin Islands. |
| (a) | The choice of law of the State of New York in the United States of America as the governing law of the
Securities Purchase Agreement (the "Governing Law") is a valid choice of law and will be recognised and upheld by the
courts of the British Virgin Islands. |
| (b) | The British Virgin Islands courts of competent jurisdiction would regard the express submission of the
Company to the exclusive jurisdiction of the New York Supreme Court, County of New York, or the United States District Court for the Southern
District of New York pursuant to the Securities Purchase Agreement as a valid submission to their jurisdiction over proceedings within
the scope of the relevant submission, upon valid service of the proceedings. |
| (c) | A final judgment of the New York Supreme Court, County of New York, or the United States District Court
for the Southern District of New York (each a “Foreign Court” and a “Foreign Judgment”) in relation
to the obligations of the Company under the Securities Purchase Agreement should be capable of indirect enforcement by action in the British
Virgin Islands courts without retrial or re- examination of the matters thereby adjudicated. |
On the basis of the Company Searches,
no charge created by the Company or the BVI Subsidiaries has been registered with the Registrar, pursuant to section 163 of the Act (the
"Public Register of Charges").
| (a) | Based solely on the High Court Searches, there are no actions
or petitions pending against the Company or the BVI Subsidiaries in the High Court of the British Virgin Islands. |
| (b) | Enforceability of civil liabilities in the Registration Statement, in so far as such statements purports
to summarize matters of British Virgin Islands law, is correct in all material respects. |
Based solely on the Searches, no currently
valid order or resolution for the winding-up of the Company or BVI subsidiaries and no current notice of appointment of a receiver over
the Company or BVI subsidiaries, or any of its assets, appears on the records maintained in respect of the Company or BVI subsidiaries.
The Company is subject to the jurisdiction
of the courts of the British Virgin Islands and is not entitled to claim any immunity from suit or execution of any judgment on the grounds
of sovereignty or otherwise.
The parties to the Securities Purchase
Agreement and the Documents will not be deemed to be resident, domiciled or carrying on business in, or subject to, the laws of the British
Virgin Islands by reason only of the execution, delivery, performance or enforcement of the Securities Purchase Agreement.
It is not necessary to be licensed,
qualified or otherwise entitled to carry on business in, or otherwise registered with, any governmental or other authority of or in the
British Virgin Islands in order to claim and enforce in the British Virgin Islands any right under the Documents.
The obligations of the Company under
the Securities Purchase Agreement and the Documents, to the extent that the same are unsecured, rank at least pari passu with all other
present or future unsecured and unsubordinated indebtedness of the Company (other than those creditors preferred under applicable laws).
There is no applicable statutory usury
or interest limitation law in the British Virgin Islands which would restrict the recovery of payments or the performance by the Company
of its obligations under the Documents.
There are no foreign exchange controls
or foreign exchange regulations under the current laws of the British Virgin Islands.
| 5.1 | Except as specifically referred to in this Opinion we have not examined, and give no opinion on, any contracts,
instruments or other documents (whether or not referred to in, or contemplated by, the Documents). We do not give any opinion on the commercial
merits of any transaction contemplated or entered into under or pursuant to the Documents. |
| 5.2 | This Opinion (and any obligations arising out of or in connection with it) is given on the basis that
it shall be governed by and construed in accordance with the laws of the British Virgin Islands. By relying on the opinions set out in
this Opinion the addressee(s) hereby irrevocably agree(s) that the courts of the British Virgin Islands are to have exclusive jurisdiction
to settle any disputes which may arise in connection with this Opinion. |
| 5.3 | We assume no responsibility to advise any person entitled to rely on this Opinion, or to undertake any
investigations, as to any change in British Virgin Islands law (or its application) or factual matters arising after the date of this
Opinion, which might affect the opinions set out herein. |
| 5.4 | This opinion deals only with the specified legal issues expressly addressed herein, and you should not
infer any opinion that is not explicitly stated herein from any matter addressed in this opinion. |
| 5.5 | This opinion is issued solely in connection with the Registration Statement and Prospectus and the offering
of the Take-Down Shares by the Company and is not to be relied upon in respect of any other matter. |
Yours faithfully |
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Carey Olsen |
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Schedule 1
DOCUMENTS REVIEWED
AND ENQUIRIES MADE
For the purpose of this Opinion, we have reviewed originals,
copies, drafts or conformed copies of the following documents:
| 1. | The certificate of incorporation of the Company obtained by us pursuant to the Company Searches. |
| 2. | The memorandum and articles of association of the Company (the “Memorandum and Articles”)
obtained by us pursuant to the Company Searches. |
| 3. | The list of directors of the Company issued by the Registrar, dated 17 May 2024. |
| 4. | A certificate of good standing relating to the Company issued by the Registrar, dated 23 May 2024 (the
“Certificate of Good Standing”). |
| 5. | A certificate of good standing relating to V Capital Consulting Limited issued by the Registrar, dated
27 May 2024. |
| 6. | A certificate of good standing relating to VCI Global Brands Limited issued by the Registrar, dated 27
May 2024. |
| 7. | A registered agent’s certificate dated 31 May 2024 (the “Certificate”) issued by the
Registered Agent. |
| 8. | A signed copy of the written resolutions of the directors of the Company, approving inter alia the Company’s
entry into and execution of the Documents, dated 17 May 2024 (the “Resolutions”). |
| 1. | The information revealed by our search of the Company’s public records on file and available for public
inspection from the Registrar at the time of our search on 16 July 2024 (the “Company Search 1”), including all relevant
forms and charges (if any) created by the Company and filed with the Registrar pursuant to section 163 of the BVI Business Companies Act
(the “Act”). |
| 2. | The
information revealed by our search of the Subsidiaries’ public records on file and
available for public inspection from the Registrar at the time of our search on 27 May 2024
(the “Company Search 2” together with Company Search 1, the “Company Searches”),
including all relevant forms and charges (if any) created by the Company and filed with the
Registrar pursuant to section 163 of the BVI Business Companies Act (the “Act”). |
| 3. | The public information revealed by our search of the Company on the
electronic records of the Civil Division and the Commercial Division of the Registry of the High Court and the Court of Appeal (Virgin
Islands) Register, each from 1 January 2000, as maintained on the Judicial Enforcement Management System by the Registry of the High Court
of the Virgin Islands, conducted on 16 July 2024 (the “High Court Search 1”). |
| 4. | The public information revealed by our search of the Subsidiaries on
the electronic records of the Civil Division and the Commercial Division of the Registry of the High Court and the Court of Appeal (Virgin
Islands) Register, each from 1 January 2000, as maintained on the Judicial Enforcement Management System by the Registry of the High Court
of the Virgin Islands, conducted on 27 May 2024 (the “High Court Search 2” together with High Court Search 1, the
“High Court Searches”; the High Court Search together with the Company Searches, the “Searches”). |
| 1. | A final copy of the Prospectus Supplement, the Prospectus and the Registration Statement. |
| 2. | Copies of the securities purchase agreements dated 25 July 2024 (the “Securities Purchase Agreement”),
pursuant to which the Company agreed to sell 3,568,035Ordinary Shares to an accredited investor at a purchase price of $0.40 per share. |
The documents listed in paragraph C
of this Schedule are together, the “Documents”.
The documents listed in this Schedule
are the only documents and/or records we have examined and the only searches and enquiries we have carried out for the purposes of this
Opinion.
SCHEDULE
2
ASSUMPTIONS
We have assumed:
| (a) | the genuineness and authenticity of all signatures and the conformity to the originals of all copies (whether
or not certified) examined by us and the authenticity and completeness of the originals from which such copies were taken; |
| (b) | that where a document has been examined by us in draft form, it will be or has been executed and/or filed
in the form of that draft, and where a number of drafts of a document have been examined by us all changes thereto have been marked or
otherwise drawn to our attention; |
| (c) | the accuracy and completeness of all factual representations made in the Registration Statement and the
Documents reviewed by us; |
| (d) | that the public records of the Company and/or the BVI Subsidiaries we have examined are accurate and that
the information disclosed by the Searches is true and complete. |
| (e) | that the Resolutions were signed by all or a majority of the directors, as the case may be, in the manner
prescribed in the Company’s articles of association, remain in full force and effect and have not been rescinded or amended; |
| (f) | that there is no provision of the law of any jurisdiction, other than the British Virgin Islands, which
would have any implication in relation to the opinions expressed herein; |
| (g) | that upon issue of any shares to be sold by the Company, the Company will receive consideration for the
full issue price thereof which shall be equal to at least the par value thereof; |
| (h) | the Company’s issuance of any Ordinary Shares is or will be in compliance with its Memorandum and Articles; |
| (i) | that Memorandum and Articles will not be amended in any manner that would affect the opinions set forth
herein; |
| (j) | that the Registration Statement has been declared effective by the Commission prior to, or concurrent
with, the sale of the Take-Down Shares pursuant to the Registration Statement; |
| (k) | the Registration Statement and the transactions contemplated thereunder complies with the requirements
of the applicable rules of the Nasdaq Capital Market and the Securities Act; |
| (l) | the capacity, power and authority of each of the parties to the Documents, as the case may be, other than
the Company, to enter into and perform its respective obligations thereunder; |
| (m) | the due execution and delivery of the Documents by each of the parties thereto, other than the Company,
and the physical delivery thereof by the Company with an intention to be bound thereby; |
| (n) | the validity and binding effect under the laws of such jurisdiction (the “Foreign Laws”) of the Documents in accordance with its terms; |
| (o) | the validity and binding effect under the Documents of the submission by the Company to the exclusive
jurisdiction of the relevant state and federal courts of the United States of America (the “Foreign Courts”); |
| (p) | no invitation has been or will be made by or on behalf of the Company to the public in the British Virgin
Islands to subscribe for any shares of the Company; |
| (q) | that on the date of entering into the Documents the Company is, and after entering into the Documents
the Company is and will be able to, pay its liabilities as they become due; and |
| (r) | none of the parties to the Documents is carrying on unauthorised financial services business for the purposes
of the Financial Services Commission Act of the British Virgin Islands, and |
| (s) | that the contents of the Registered Agent’s Certificate are true and correct as of the date hereof. |
SCHEDULE 3
QUALIFICATIONS
| 1. | The obligations under the Documents will not necessarily be legal, valid, binding or enforceable in all circumstances and
this Opinion is not to be taken to imply that each obligation would necessarily be capable of enforcement or be enforced in all circumstances
in accordance with its terms. In particular, but without limitation: |
| (a) | the binding effect, validity and enforceability of obligations may be limited by laws relating to bankruptcy,
insolvency, moratorium, liquidation, dissolution, re- organisation and other laws of general application relating to, or affecting the
rights of, creditors; |
| (b) | enforcement may be limited by general principles of equity (for example, equitable remedies such as specific
performance or the issuing of an injunction are available only at the discretion of the court and may not be available where damages are
considered to be an adequate alternative and we therefore express no opinion on whether such remedies will be granted if sought); |
| (c) | claims may be or become barred under the laws relating to the prescription and limitation of actions or
may become subject to the general doctrine of estoppel or waiver in relation to representations, acts or omissions of any relevant party
or may become subject to defences of set-off or counterclaim; |
| (d) | where obligations are to be performed in a jurisdiction outside the British Virgin Islands, they may not
be enforceable in the British Virgin Islands to the extent that performance would be illegal under the laws of that jurisdiction; |
| (e) | the courts of the British Virgin Islands have jurisdiction to give judgment in the currency of the relevant
obligation; |
| (f) | obligations to make payments that may be regarded as penalties will not be enforceable; |
| (g) | a company cannot, by agreement or in its articles of association, restrict the exercise of a statutory
power; |
| (h) | there exists doubt as to enforceability of any provision whereby the Company covenants not to exercise
powers specifically given to its Members by the Act; |
| (i) | the enforcement of contractual obligations may be limited by the provisions of British Virgin Islands
law applicable to agreements or contracts held to have been frustrated by events happening after the relevant agreement
or contract was entered into; |
| (j) | the enforcement of obligations may be invalidated or vitiated by reason of fraud, duress, undue influence,
mistake, illegality or misrepresentation; |
| (k) | the courts of the British Virgin Islands may: |
| (i) | refuse to enforce a provision that amounts to an indemnity in respect of the costs of enforcement or of
unsuccessful proceedings brought in the British Virgin Islands where such courts have already made an order to that effect; |
| (ii) | decline to exercise jurisdiction in relation to substantive proceedings brought under or in relation to
the Documents in matters where they determine that such proceedings may be tried in a more appropriate forum; and/or |
| (iii) | find that a hybrid dispute resolution clause, though generally recognised under British Virgin Islands
law, is unenforceable on the grounds, amongst others, that it confers concurrent jurisdiction on an arbitral tribunal and the courts of
the British Virgin Islands; |
| (l) | provisions that purport to require parties to reach agreement in the future may be unenforceable for lack
of certainty; |
| (m) | an agreement made by a person in the course of carrying on unauthorised financial services business is
unenforceable against the other party to the agreement under section 50F of the Financial Services Commission Act, 2001; |
| (n) | where the courts of the British Virgin Islands determine that a contractual term may be interpreted in
more than one manner the courts may employ the one that is deemed to be most consistent with business and common sense; |
| (o) | it is possible that a judgment (in the British Virgin Islands or elsewhere) relating to a particular agreement
or instrument would be held to supersede the terms of such agreement or instrument with the effect that, notwithstanding any express term
to the contrary in such agreement or instrument, such terms would cease to be binding; and |
| (p) | there is a presumption that the courts of the British Virgin Islands will give effect to an exclusive
jurisdiction clause in an agreement and upon application, may stay proceedings brought in the British Virgin Islands or grant an anti-suit
injunction against a party that commences proceedings elsewhere where such proceedings are in breach of the exclusive jurisdiction
clause, unless a party can satisfy the courts of the British Virgin Islands that it would be just and equitable to depart from that presumption
(for example, not to do so would deprive one party of access to justice). |
| 2. | To maintain the Company in good standing under the laws of the British Virgin Islands, the Company must
inter alia pay annual filing fees to the Registrar, comply with its economic substance requirements and obligations under the Virgin Islands
Economic Substance (Companies and Limited Partnerships) Act, 2018 and file a copy of its register of directors with the Registrar. |
| 3. | We make no comment on references to any Foreign Laws or to any representations or warranties made in any
agreement or document. |
| 4. | We express no view as to the commercial terms of the Documents or whether such terms represent the intentions
of the parties and make no comment with regard to the representations that may be made by the Company. |
| 5. | We offer no opinion as to whether the acceptance of, or the execution or performance of, the Company’s
obligations under the Documents will or may result in the breach or infringement of any other deed, contract or document entered into
by, or binding upon, the Company (other than the Memorandum and Articles). |
Exhibit 99.1
SECURITIES PURCHASE AGREEMENT
This Securities
Purchase Agreement (this “Agreement”) is dated as of _______, 2024, between VCI Global Limited, a British Virgin Islands company (the “Company”), and each purchaser identified
on the signature pages hereto (each, including its successors and assigns, a “Purchaser” and collectively the “Purchasers”).
WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant to an effective registration statement under the Securities
Act of 1933, as amended (the “Securities Act”) as to the Shares (as defined below), the Company desires to issue and
sell to each Purchaser, and each Purchaser, severally and not jointly, desires to purchase from the Company, securities of the Company
as more fully described in this Agreement.
NOW, THEREFORE,
IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt and
adequacy of which are hereby acknowledged, the Company and each Purchaser agree as follows:
ARTICLE I.
DEFINITIONS
1.1 Definitions. In addition to the terms defined elsewhere
in this Agreement, for all purposes of this Agreement, the following terms have the meanings set forth in this Section 1.1:
“Action” shall have the meaning ascribed
to such term in Section 3.1(j).
“Affiliate” means
any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with
a Person as such terms are used in and construed under Rule 405 under the Securities Act.
“Board of Directors”
means the board of directors of the Company.
“Business Day”
means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which banking
institutions in the State of New York are authorized or required by law or other governmental action to close.
“BVI Counsel”
means Carey Olsen (BVI) L.P., with offices located at Rodus Building, PO Box 3093, Road Town, Tortola VG1110 British Virgin Islands.
“Closing” means the
closing of the purchase and sale of the Shares pursuant to Section 2.1.
“Closing Date” means
the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable parties thereto, and all
conditions precedent to (i) the Purchasers’ obligations to pay the Subscription Amount and (ii) the Company’s obligations
to deliver the Shares, in each case, have been satisfied or waived.
“Commission” means
the United States Securities and Exchange Commission.
“Company Counsel” means Sichenzia Ross Ference
LLP, with offices located at 1185 Avenue of the Americas, 31st Floor New York, NY 10036.
“Disclosure Schedules” means the Disclosure
Schedules of the Company delivered concurrently herewith.
“Evaluation Date” shall have the meaning
ascribed to such term in Section 3.1(s).
“Exchange Act” means the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“FCPA” means the Foreign Corrupt Practices
Act of 1977, as amended.
“IFRS” shall have the meaning ascribed to
such term in Section 3.1(h).
“Indebtedness” shall have the meaning ascribed
to such term in Section 3.1(aa).
“Intellectual Property Rights” shall have
the meaning ascribed to such term in Section 3.1(p).
“Liens” means a lien, charge, pledge,
security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Material Adverse Effect” shall have the
meaning assigned to such term in Section 3.1(b).
“Material Permits” shall have the meaning
ascribed to such term in Section 3.1(n).
“Ordinary Shares”
means the ordinary shares of the Company, no par value per share, and any other class of securities into which such securities may hereafter
be reclassified or
“Ordinary Share Equivalents”
means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Ordinary Shares,
including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into
or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Ordinary Shares
“Per Share Purchase Price”
equals US$0.40, subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions
of the Ordinary Shares that occur after the date of this Agreement.
“Person” means
an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company,
joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Proceeding” means
an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding, such
as a deposition), whether commenced or threatened.
“Prospectus” means
the final prospectus filed for the Registration Statement.
“Prospectus Supplement” means the supplement
to the Prospectus complying with Rule 424(b) of the Securities Act that is filed with the Commission and delivered by the Company to each
Purchaser at the Closing.
“Purchaser Party” shall have the meaning
ascribed to such term in Section 4.8.
“Registration Statement” means the effective
registration statement with Commission file No. 333-279521 which registers the sale of the Shares to the Purchasers.
“Required Approvals” shall have the meaning
ascribed to such term in Section 3.1(e).
“Rule 144” means
Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time, or
any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“Rule 424” means
Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time, or
any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“SEC Reports” shall
have the meaning ascribed to such term in Section 3.1(h).
“Securities Act” means the Securities Act
of 1933, as amended, and the rules and regulations promulgated thereunder.
“Shares” means the Ordinary Shares issued
or issuable to each Purchaser pursuant to this Agreement.
“Short Sales” means
all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include locating
and/or borrowing Ordinary Shares).
“Subscription Amount”
means, as to each Purchaser, the aggregate amount to be paid for Shares purchased hereunder as specified below such Purchaser’s
name on the signature page of this Agreement and next to the heading “Subscription Amount,” in United States dollars and in
immediately available funds.
“Subsidiary” means
any subsidiary of the Company and shall, where applicable, also include any direct or indirect subsidiary of the Company formed or acquired
after the date hereof.
“Trading Day” means
a day on which the principal Trading Market is open for trading.
“Trading Market”
means any of the following markets or exchanges on which the Ordinary Shares are listed or quoted for trading on the date in question:
the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange (or
any successors to any of the foregoing).
“Transaction Documents”
means this Agreement, all exhibits and schedules thereto and hereto and any other documents or agreements executed in connection with
the transactions contemplated hereunder.
“Transfer Agent”
means VStock Transfer, the current transfer agent of the Company, with a mailing address of 18 Lafayette Place, Woodmere, New York 11598,
and any successor transfer agent of the Company.
ARTICLE
II.
PURCHASE AND SALE
2.1 Closing. On the Closing
Date, upon the terms and subject to the conditions set forth herein, the Company agrees to sell, and the Purchasers, severally and not
jointly, agree to purchase, up to an aggregate of approximately US$ _________of Shares (at the Per Share Purchase Price). Each Purchaser’s
Subscription Amount as set forth on the signature page hereto executed by such Purchaser shall be made available to the Company via wire
transfer pursuant to wiring instructions in Exhibit A. The Company and each Purchaser shall deliver the other items set forth in
Section 2.2 deliverable at the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Closing
shall occur at the offices of the Company Counsel or such other location as the parties shall mutually agree. Settlement of the Shares
shall occur after (i) receipt of such Subscription Amount by the Company and (ii) upon filing of the Prospectus Supplement. The Company
shall issue the Shares registered in the Purchasers’ names and addresses and released by the Transfer Agent directly to the account(s)
of each Purchaser). Notwithstanding anything to the contrary hereunder, to the extent that a Purchaser determines, in its sole discretion,
that such Purchaser (together with such Purchaser’s Affiliates, and any Person acting as a group together with such purchaser or
any of such Holder’s Affiliates) would beneficially own in excess of 9.99% of the number of Ordinary Shares outstanding immediately
prior to giving effect to the issuance of the Shares on the Closing Date (“Beneficial Ownership Maximum”), such Purchaser
may elect to receive only the Beneficial Ownership Maximum at the Closing with the balance of any share purchased hereunder, if any, held
in abeyance for such Purchaser and issued immediately following the Closing provided in no event shall such Purchaser’s beneficial
ownership ever exceed the Beneficial Ownership Maximum.
2.2 Deliveries.
(a)
On or prior to the Closing Date, the Company shall deliver or cause to be delivered to each Purchaser the following. Other than
with respect to item 2.2 (a)(v) below, these deliverables shall be reasonably acceptable to each Purchaser:
(i) this Agreement duly executed by the Company;
(ii)
subject to the last sentence of Section 2.1, a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer
Agent to deliver on an expedited basis via The Depository Trust Company Deposit or Withdrawal at Custodian system (“DWAC”)
Shares equal to such Purchaser’s Subscription Amount divided by the Per Share Purchase Price, registered in the name of such Purchaser;
and
(iii)
the Prospectus and Prospectus Supplement (which may be delivered in accordance with Rule 172 under the Securities Act).
(b) Prior to the Closing Date, each Purchaser shall deliver or cause to be delivered to the Company the following:
(i) this Agreement duly executed by such Purchaser; and
(ii)
such Purchaser’s Subscription Amount, which shall be made available by wire transfer to the Company or its designee.
2.3 Closing Conditions.
(a)
The obligations of the Company hereunder in connection with the Closing are subject to the following conditions being met:
(i)
the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material
Adverse Effect, in all respects) on the Closing Date of the representations and warranties of the Purchasers contained herein (unless
as of a specific date therein in which case they shall be accurate as of such date);
(ii)
all obligations, covenants and agreements of each Purchaser required to be performed at or prior to the Closing Date shall have
been performed; and
(iii) the delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement.
(b)
The respective obligations of the Purchasers hereunder in connection with the Closing are subject to the following conditions being
met:
(i)
the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material
Adverse Effect, in all respects) when made and on the Closing Date of the representations and warranties of the Company contained herein
(unless as of a specific date therein in which case they shall be accurate as of such date);
(ii)
all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been
performed;
(iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv)
there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(v)
from the date hereof to the Closing Date, trading in the Ordinary Shares shall not have been suspended by the Commission or the
Company’s principal Trading Market, and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg
L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported
by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State
authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity
of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment
of such Purchaser, makes it impracticable or inadvisable to purchase the Shares at the Closing.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1
Representations and Warranties of the Company. Except as set forth in the Disclosure Schedules, which Disclosure Schedules
shall be deemed a part hereof and shall qualify any representation or otherwise made herein to the extent of the disclosure contained
in the corresponding section of the Disclosure Schedules, the Company hereby makes the following representations and warranties to each
Purchaser:
(a)
Subsidiaries. All of the direct and indirect subsidiaries of the Company and their respective jurisdictions of incorporation
are set forth on Schedule 3.1(a). The Company owns, directly or indirectly, all of the capital stock or other equity interests
of each Subsidiary free and clear of any Liens, and all of the issued and outstanding shares of capital stock of each Subsidiary are validly
issued and are fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securities.
(b)
Organization and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized,
validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power
and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any
Subsidiary is in violation nor default of any of the provisions of its respective certificate or articles of incorporation, bylaws or
other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business and is in good
standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned
by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, could not
have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity or enforceability of any Transaction
Document, (ii) a material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise)
of the Company and the Subsidiaries, taken as a whole, or (iii) a material adverse effect on the Company’s ability to perform in
any material respect on a timely basis its obligations under any Transaction Document (any of (i), (ii) or (iii), a “Material
Adverse Effect”) and no Proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking
to revoke, limit or curtail such power and authority or qualification.
(c)
Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate
the transactions contemplated by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations
hereunder and thereunder. The execution and delivery of this Agreement and each of the other Transaction Documents by the Company and
the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part
of the Company and no further action is required by the Company, the Board of Directors or the Company’s shareholders in connection
herewith or therewith other than in connection with the Required Approvals. This Agreement and each other Transaction Document to which
it is a party has been (or upon delivery will have been) duly executed by the Company and, when delivered in accordance with the terms
hereof and thereof, will constitute the valid and binding obligations of the Company enforceable against the Company in accordance with
its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the
availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution
provisions may be limited by applicable law.
(d) No
Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to which
it is a party, the issuance and sale of the Shares and the consummation by it of the transactions contemplated hereby and thereby do
not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or articles
of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with, or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, result in the creation of any Lien upon any of the
properties or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument
(evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or
by which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject
to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree
or other restriction of any court or governmental authority to which the Company or a Subsidiary is subject (including federal and
state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected;
except in the case of clause (ii), such as could not have or reasonably be expected to result in a Material Adverse Effect.
(e)
Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give
any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or other
Person in connection with the execution, delivery and performance by the Company of the Transaction Documents, other than: (i) the filings
required pursuant to Section 4.4 of this Agreement, and (ii) the filing with the Commission of the Prospectus Supplement, (iii) application(s)
to each applicable Trading Market for the listing of the Shares for trading thereon in the time and manner required thereby.
(f)
Issuance of the Shares; Registration. The Shares are duly authorized and, when issued and paid for in accordance with the
applicable Transaction Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by
the Company. The Company has reserved from its duly authorized unissued shares the maximum number of Ordinary Shares issuable pursuant
to this Agreement. The Company has prepared and filed the Registration Statement in conformity with the requirements of the Securities
Act, which became effective on May 28, 2024 (the “Effective Date”), including the Prospectus, and such amendments and
supplements thereto as may have been required to the date of this Agreement. The Registration Statement is effective under the Securities
Act and no stop order preventing or suspending the effectiveness of the Registration Statement or suspending or preventing the use of
the Prospectus has been issued by the Commission and no proceedings for that purpose have been instituted or, to the knowledge of the
Company, are threatened by the Commission. The Company, if required by the rules and regulations of the Commission, shall file the Prospectus
with the Commission pursuant to Rule 424(b). At the time the Registration Statement and any amendments thereto became effective, at the
date of this Agreement and at the Closing Date, the Registration Statement and any amendments thereto conformed and will conform in all
material respects to the requirements of the Securities Act and did not and will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and the Prospectus
and any amendments or supplements thereto, at the time the Prospectus or any amendment or supplement thereto was issued and at the Closing
Date, conformed and will conform in all material respects to the requirements of the Securities Act and did not and will not contain an
untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The Company was at the time of the filing of the Registration Statement
eligible to use Form F-3. The Company is eligible to use Form F-3 under the Securities Act and it meets the transaction requirements with
respect to the aggregate market value of securities being sold pursuant to this offering and during the twelve (12) months prior to this
offering, as set forth in General Instruction I.B.5 of Form F-3.
(g)
Capitalization. The capitalization of the Company as of the date hereof is as set forth on Schedule 3.1(g), which
Schedule 3.1(g) shall also include the number of Ordinary Shares owned beneficially, and of record, by Affiliates of the Company
as of the date hereof. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate
in the transactions contemplated by the Transaction Documents. The issuance and sale of the Shares will not obligate the Company or any
Subsidiary to issue Ordinary Shares or other securities to any Person (other than the Purchasers) and will not result in a right of any
holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such securities. Except as set forth
on Schedule 3.1(g), there are no outstanding securities or instruments of the Company or any Subsidiary that contain any redemption
or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company is or may become bound
to redeem a security of the Company. The Company does not have any stock appreciation rights or “phantom stock” plans or agreements
or any similar plan or agreement. All of the outstanding shares of the Company are duly authorized, validly issued, fully paid and nonassessable,
have been issued in compliance with all federal and state securities laws, and none of such outstanding shares was issued in violation
of any preemptive rights or similar rights to subscribe for or purchase securities. No further approval or authorization of any shareholder,
the Board of Directors or others is required for the issuance and sale of the Shares.
(h) SEC
Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required to
be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the
two (2) years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such
material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, together with
the Prospectus and the Prospectus Supplement, being collectively referred to herein as the “SEC Reports”) on a
timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of
any such extension. As of their respective dates, the SEC Reports complied in all material respects with the requirements of the
Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading. Additionally, any further documents so filed
and incorporated by reference in the Prospectus and Prospectus Supplement, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Exchange Act and the applicable rules and regulations, as applicable,
and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made not misleading. No post-effective amendment to the Registration
Statement reflecting any facts or events arising after the date thereof which represent, individually or in the aggregate, a
fundamental change in the information set forth therein is required to be filed with the Commission. The Company has never been an
issuer subject to Rule 144(i) under the Securities Act. The financial statements of the Company included in the SEC Reports complied
in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect
thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with United States generally
accepted accounting principles applied on a consistent basis during the periods involved (“IFRS”), except as may
be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not
contain all footnotes required by IFRS, and fairly present in all material respects the financial position of the Company and its
consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended,
subject, in the case of unaudited statements, to normal, immaterial, year- end audit adjustments.
(i) Material Changes; Undisclosed
Events, Liabilities or Developments. Since the date of the latest audited financial statements included within the SEC Reports, except
as set forth in Schedule 3.1(i), (i) there has been no event, occurrence or development that has had or that could reasonably be expected
to result in a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade
payables and accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities not required
to be reflected in the Company’s financial statements pursuant to IFRS or disclosed in filings made with the Commission, (iii) the
Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution of cash or other
property to its shareholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its share capital, and
(v) the Company has not issued any equity securities to any officer, director or Affiliate, except pursuant to existing Company equity
compensation plans. The Company does not have pending before the Commission any request for confidential treatment of information. Except
for the issuance of the Securities contemplated by this Agreement or as set forth in Schedule 3.1(i), no event, liability, fact, circumstance,
occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect to the Company or its Subsidiaries
or their respective businesses, prospects, properties, operations, assets or financial condition that would be required to be disclosed
by the Company under applicable securities laws at the time this representation is made or deemed made that has not been publicly disclosed
at least one (1) Trading Day prior to the date that this representation is made.
(j)
Litigation. Except as set forth in Schedule 3.1(j), there is no action, suit, inquiry, notice of violation, proceeding
or investigation pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their
respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state,
county, local or foreign) (collectively, an “Action”). None of the Actions set forth in Schedule 3.1(j), (i)
adversely affects or challenges the legality, validity or enforceability of any of the Transaction Documents or the Securities, or (ii)
could, if there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect. Neither the Company
nor any Subsidiary, nor any director or officer thereof, is or has been the subject of any Action involving a claim of violation of or
liability under federal or state securities laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the
Company, there is not pending or contemplated, any investigation by the Commission involving the Company or any current or former director
or officer of the Company. The Commission has not issued any stop order or other order suspending the effectiveness of any registration
statement filed by the Company or any Subsidiary under the Exchange Act or the Securities Act.
(k)
Labor Relations. Except as set forth on Schedule 3.1(k), no labor dispute exists or, to the knowledge of the Company,
is imminent with respect to any of the employees of the Company, which could reasonably be expected to result in a Material Adverse Effect.
None of the Company’s employees is a member of a union that relates to such employee’s relationship with the Company, and
neither the Company is a party to a collective bargaining agreement, and the Company believe that their relationships with their employees
are good. To the knowledge of the Company, no executive officer of the Company is, or is now expected to be, in violation of any material
term of any employment contract, confidentiality, disclosure or proprietary information agreement or non-competition agreement, or any
other contract or agreement or any restrictive covenant in favor of any third party, and the continued employment of each such executive
officer does not subject the Company to any liability with respect to any of the foregoing matters. The Company is in compliance with
all U.S. federal, state, local and foreign laws and regulations relating to employment and employment practices, terms and conditions
of employment and wages and hours, except where the failure to be in compliance could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
(l) Compliance.
Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred that has not been
waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor has the
Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture, loan
or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound
(whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree or order of any court,
arbitrator or other governmental authority or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any
governmental authority, including without limitation all foreign, federal, state and local laws relating to taxes, environmental
protection, occupational health and safety, product quality and safety and employment and labor matters, except in each case as
could not have or reasonably be expected to result in a Material Adverse Effect.
(m)
Environmental Laws. The Company and its Subsidiaries (i) are in compliance with all federal, state, local and foreign laws
relating to pollution or protection of human health or the environment (including ambient air, surface water, groundwater, land surface
or subsurface strata), including laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants,
or toxic or hazardous substances or wastes (collectively,” Hazardous Materials”) into the environment, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials,
as well as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments, licenses, notices or notice letters,
orders, permits, plans or regulations, issued, entered, promulgated or approved thereunder (“Environmental Laws”);
(ii) have received all permits licenses or other approvals required of them under applicable Environmental Laws to conduct their respective
businesses; and (iii) are in compliance with all terms and conditions of any such permit, license or approval where in each clause (i),
(ii) and (iii), the failure to so comply could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
(n)
Regulatory Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the
appropriate federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the
SEC Reports, except where the failure to possess such permits could not reasonably be expected to result in a Material Adverse Effect
(“Material Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to
the revocation or modification of any Material Permit.
(o)
Title to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned
by them and good and marketable title in all personal property owned by them that is material to the business of the Company and the Subsidiaries,
in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries and (ii) Liens for the payment
of federal, state or other taxes, for which appropriate reserves have been made therefor in accordance with IFRS and, the payment of which
is neither delinquent nor subject to penalties. Any real property and facilities held under lease by the Company and the Subsidiaries
are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance.
(p)
Intellectual Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks,
trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights
and similar rights necessary or required for use in connection with their respective businesses as described in the SEC Reports and which
the failure to so have could have a Material Adverse Effect (collectively, the “Intellectual Property Rights”). Neither
the Company nor any Subsidiary has received, since the date of the latest audited financial statements included within the SEC Reports,
a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe upon the rights of
any Person, except as could not have or reasonably be expected to not have a Material Adverse Effect. To the knowledge of the Company,
all such Intellectual Property Rights are enforceable and there is no existing infringement by another Person of any of the Intellectual
Property Rights. The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and
value of all of their intellectual properties, except where failure to do so could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(q) [Reserved.]
(r) [Reserved.]
(s) Sarbanes-Oxley;
Internal Accounting Controls. Except as disclosed in the SEC Reports, the Company has established disclosure controls and
procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and designed such disclosure controls and
procedures to ensure that information required to be disclosed by the Company in the reports it files or submits under the Exchange
Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms.
The Company’s certifying officers have evaluated the effectiveness of the disclosure controls and procedures of the Company
and the Subsidiaries as of the end of the period covered by the most recently filed periodic report under the Exchange Act (such
date, the “Evaluation Date”). The Company presented in its most recently filed periodic report under the Exchange
Act the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based on their
evaluations as of the Evaluation Date. Since the Evaluation Date, there have been no changes in the internal control over financial
reporting (as such term is defined in the Exchange Act) of the Company that have materially affected, or is reasonably likely to
materially affect, the internal control over financial reporting of the Company.
(t) [Reserved.]
(u)
Investment Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Shares,
will not be or be an Affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
The Company shall conduct its business in a manner so that it will not become an “investment company” subject to registration
under the Investment Company Act of 1940, as amended.
(v)
Registration Rights. Except as provided in this Agreement, no Person has any right to cause the Company or any Subsidiary
to effect the registration under the Securities Act of any securities of the Company or any Subsidiary.
(w) [Reserved.]
(x)
Application of Takeover Protections. The Company and the Board of Directors have taken all necessary action, if any, in
order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights
agreement) or other similar anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents)
or the laws of its state of incorporation that is or could become applicable to the Purchasers as a result of the Purchasers and the Company
fulfilling their obligations or exercising their rights under the Transaction Documents, including without limitation as a result of the
Company’s issuance of the Shares and the Purchasers’ ownership of the Shares.
(y)
Disclosure. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction
Documents, the Company confirms that neither it nor any other Person acting on its behalf has provided any of the Purchasers or their
agents or counsel with any information that it believes constitutes or might constitute material, non-public information which is not
otherwise disclosed in the Pricing Prospectus or the Prospectus. The Company understands and confirms that the Purchasers will rely on
the foregoing representation in effecting transactions in securities of the Company. All of the disclosure furnished by or on behalf of
the Company to the Purchasers regarding the Company and its Subsidiaries, their respective businesses and the transactions contemplated
hereby, including the Disclosure Schedules to this Agreement, is true and correct and does not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under
which they were made, not misleading. The press releases disseminated by the Company during the twelve months preceding the date of this
Agreement taken as a whole do not contain any untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made and when made,
not misleading. The Company acknowledges and agrees that no Purchaser makes or has made any representations or warranties with respect
to the transactions contemplated hereby other than those specifically set forth in Section 3.2 hereof.
(z)
No Integrated Offering. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section
3.2, neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any
offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the
Shares to be integrated with prior offerings by the Company for purposes of any applicable shareholder approval provisions of any Trading
Market on which any of the securities of the Company are listed or designated.
(aa) Solvency.
Based on the consolidated financial condition of the Company as of the Closing Date, after giving effect to the receipt by the
Company of the proceeds from the sale of the Shares hereunder, (i) the fair saleable value of the Company’s assets exceeds the
amount that will be required to be paid on or in respect of the Company’s existing debts and other liabilities (including
known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital to carry
on its business as now conducted and as proposed to be conducted including its capital needs taking into account the particular
capital requirements of the business conducted by the Company, consolidated and projected capital requirements and capital
availability thereof, and (iii) the current cash flow of the Company, together with the proceeds the Company would receive, were it
to liquidate all of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts
on or in respect of its liabilities when such amounts are required to be paid. The Company does not intend to incur debts beyond its
ability to pay such debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its
debt). The Company has no knowledge of any facts or circumstances which lead it to believe that it will file for reorganization or
liquidation under the bankruptcy or reorganization laws of any jurisdiction within one year from the Closing Date. For the avoidance
of doubt, such reorganization does not include the Company’s mergers, acquisitions or other strategic transactions which are
not for the primary purpose of avoiding bankruptcy.
(bb) Tax
Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a
Material Adverse Effect, the Company and its Subsidiaries each (i) has made or filed all United States federal, state and local
income and all foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which it is
subject, (ii) has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to
be due on such returns, reports and declarations, and (iii) has set aside on its books provision reasonably adequate for the payment
of all material taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There are no
unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company
or of any Subsidiary know of no basis for any such claim.
(cc) Foreign Corrupt Practices.
Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary, any agent or other person acting on behalf
of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful contributions, gifts, entertainment or other
unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic government
officials or employees or to any foreign or domestic political parties or campaigns from corporate funds, (iii) failed to disclose fully
any contribution made by the Company or any Subsidiary (or made by any person acting on its behalf of which the Company is aware) which
is in violation of law, or (iv) violated in any material respect any provision of FCPA.
(dd) Accountants. The Company’s
independent registered public accounting firm is WWC, P.C. located at San Mateo, California. To the knowledge and belief of the Company,
such accounting firm is a registered public accounting firms as required by the Exchange Act.
(ee) Acknowledgment Regarding
Purchasers’ Purchase of Shares. The Company acknowledges and agrees that each of the Purchasers is acting solely in the capacity
of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated thereby. The Company further
acknowledges that no Purchaser is acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect
to the Transaction Documents and the transactions contemplated thereby and any advice given by any Purchaser or any of their respective
representatives or agents in connection with the Transaction Documents and the transactions contemplated thereby is merely incidental
to the Purchasers’ purchase of the Shares. The Company further represents to each Purchaser that the Company’s decision to
enter into this Agreement and the other Transaction Documents has been based solely on the independent evaluation of the transactions
contemplated hereby by the Company and its representatives.
3.2
Representations and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents
and warrants as of the date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein, in which
case they shall be accurate as of such date):
(a) Organization;
Authority. Such Purchaser is either an individual or an entity duly incorporated or formed, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited
liability company or similar power and authority to enter into and to consummate the transactions contemplated by the Transaction
Documents and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of the Transaction
Documents and performance by such Purchaser of the transactions contemplated by the Transaction Documents have been duly authorized
by all necessary corporate, partnership, limited liability company or similar action, as applicable, on the part of such Purchaser.
Each Transaction Document to which it is a party has been duly executed by such Purchaser, and when delivered by such Purchaser in
accordance with the terms hereof, will constitute the valid and legally binding obligation of such Purchaser, enforceable against it
in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as
limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii)
insofar as indemnification and contribution provisions may be limited by applicable law.
(b)
Understandings or Arrangements. Such Purchaser is acquiring the Shares as principal for its own account and has no direct
or indirect arrangement or understandings with any other persons to distribute or regarding the distribution of such Shares (this representation
and warranty not limiting such Purchaser’s right to sell the Shares pursuant to the Registration Statement or otherwise in compliance
with applicable federal and state securities laws). Such Purchaser is acquiring the Shares hereunder in the ordinary course of its business.
(c)
Purchaser Status. At the time such Purchaser was offered the Shares, it was either: (i) an “accredited investor”
as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act or (ii) a “qualified institutional buyer”
as defined in Rule 144A(a) under the Securities Act.
(d)
Experience of Such Purchaser. Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication
and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment
in the Shares, and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic risk of an investment
in the Shares and, at the present time, is able to afford a complete loss of such investment.
(e) Access
to Information. Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including all
exhibits and schedules thereto) and the SEC Reports and has been afforded, (i) the opportunity to ask such questions as it has
deemed necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering
of the Shares and the merits and risks of investing in the Shares; (ii) access to information about the Company and its financial
condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment;
and (iii) the opportunity to obtain such additional information that the Company possesses or can acquire without unreasonable
effort or expense that is necessary to make an informed investment decision with respect to the investment. Such Purchaser
acknowledges and agrees that neither the Company nor any affiliate of the Company has provided such Purchaser with any information
or advice with respect to the Securities nor is such information or advice necessary or desired. Neither the Company nor any
affiliate of the Company has made or makes any representation as to the Company or the quality of the securities and the Company nor
any affiliate of the Company may have acquired non-public information with respect to the Company which such Purchaser agrees need
not be provided to it. In connection with the issuance of the securities to such Purchaser, neither the Company nor any affiliate of
the Company has acted as a financial advisor or fiduciary to such Purchaser.
(f)
Certain Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, such Purchaser
has not, nor has any Person acting on behalf of or pursuant to any understanding with such Purchaser, directly or indirectly executed
any purchases or sales, including Short Sales, of the securities of the Company during the period commencing as of the time that such
Purchaser first received a term sheet (written or oral) from the Company or any other Person representing the Company setting forth the
material pricing terms of the transactions contemplated hereunder and ending immediately prior to the execution hereof. Notwithstanding
the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate
portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the
portfolio managers managing other portions of such Purchaser’s assets, the representation set forth above shall only apply with
respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Shares covered by
this Agreement. Other than to other Persons party to this Agreement or to such Purchaser’s representatives, including, without limitation,
its officers, directors, partners, legal and other advisors, employees, agents and Affiliates, such Purchaser has maintained the confidentiality
of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction).
(g) General
Solicitation. Such Purchaser is not purchasing the Shares as a result of any advertisement, article, notice or other communication
regarding the Shares published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar
or, to the knowledge of such Purchaser, any other general solicitation or general advertisement.
The Company
acknowledges and agrees that the representations contained in this Section 3.2 shall not modify, amend or affect such
Purchaser’s right to rely on the Company’s representations and warranties contained in this Agreement or any
representations and warranties contained in any other Transaction Document or any other document or instrument executed and/or
delivered in connection with this Agreement or the consummation of the transactions contemplated hereby.
ARTICLE IV.
OTHER AGREEMENTS OF THE
PARTIES
4.1 [Intentionally Omitted]
4.2 Furnishing of Information.
(a) Until the earlier of the time
that no Purchaser owns Shares, the Company covenants to file (or obtain extensions in respect thereof and file within the applicable grace
period) all reports required to be filed by the Company after the date hereof pursuant to the Exchange Act even if the Company is not
then subject to the reporting requirements of the Exchange Act.
4.3
Integration. The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any
security (as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Shares in a manner that
would be integrated with the offer or sale of the Shares for purposes of the rules and regulations of any Trading Market such that it
would require shareholder approval prior to the closing of such other transaction unless shareholder approval is obtained before the closing
of such subsequent transaction.
4.4
Securities Laws Disclosure; Publicity. The Company shall (a) issue a press release disclosing the material terms of the
transactions contemplated hereby, and (b) file a Report of Foreign Private Issuer on Form 6-K, including the Transaction Documents as
exhibits thereto, with the Commission within the time required by the Exchange Act. From and after the issuance of such press release,
the Company represents to the Purchasers that it shall have publicly disclosed all material, non-public information delivered to any of
the Purchasers by the Company or any of its Subsidiaries, or any of their respective officers, directors, employees or agents in connection
with the transactions contemplated by the Transaction Documents. In addition, effective upon the issuance of such press release, the Company
acknowledges and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral, between
the Company, any of its Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates on the one hand,
and any of the Purchasers or any of their Affiliates on the other hand, shall terminate. The Company and each Purchaser shall consult
with each other in issuing any other press releases with respect to the transactions contemplated hereby, and neither the Company nor
any Purchaser shall issue any such press release nor otherwise make any such public statement without the prior consent of the Company,
with respect to any press release of any Purchaser, or without the prior consent of each Purchaser, with respect to any press release
of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure is required by law, in which case
the disclosing party shall promptly provide the other party with prior notice of such public statement or communication
4.5
Shareholder Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other
Person, that any Purchaser is an “Acquiring Person” under any control share acquisition, business combination, poison
pill (including any distribution under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted
by the Company, or that any Purchaser could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving
Shares under the Transaction Documents or under any other agreement between the Company and the Purchasers.
4.6 Non-Public
Information. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction
Documents, which shall be disclosed pursuant to Section 4.4, the Company covenants and agrees that neither it, nor any other Person
acting on its behalf will provide any Purchaser or its agents or counsel with any information that constitutes, or the Company
reasonably believes constitutes, material non-public information, unless prior thereto such Purchaser shall have consented to the
receipt of such information and agreed with the Company to keep such information confidential. The Company understands and confirms
that each Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company. To the extent
that the Company delivers any material, non-public information to a Purchaser without such Purchaser’s consent, the Company
hereby covenants and agrees that such Purchaser shall not have any duty of confidentiality to the Company, any of its Subsidiaries,
or any of their respective officers, directors, agents, employees or Affiliates, or a duty to the Company, any of its Subsidiaries
or any of their respective officers, directors, agents, employees or Affiliates not to trade on the basis of, such material,
non-public information, provided that the Purchaser shall remain subject to applicable law. To the extent that any notice provided
pursuant to any Transaction Document constitutes, or contains, material, non-public information regarding the Company or any
Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Report of Foreign Private Issuer
on Form 6-K. The Company understands and confirms that each Purchaser shall be relying on the foregoing covenant in effecting
transactions in securities of the Company.
4.7
Use of Proceeds. Except as set forth on Schedule 4.7 attached hereto, the Company shall use the net proceeds from
the sale of the Shares hereunder for working capital and capital expenditure purposes and shall not use such proceeds: (a) for the satisfaction
of any portion of the Company’s debt (other than payment of trade payables in the ordinary course of the Company’s business
and prior practices), (b) for the redemption of any Ordinary Shares or Ordinary Share Equivalents, (c) for the settlement of any outstanding
litigation or (d) in violation of FCPA or OFAC regulations.
4.8
Listing of Ordinary Shares. The Company hereby agrees to use best efforts to maintain the listing or quotation of the Ordinary
Shares on the Trading Market on which it is currently listed, and concurrently with the Closing, the Company shall have applied to list
or quote all of the Shares on such Trading Market and concurrently with the Closing, the Company shall have not received any information
indicating that the listing of such shares is or will be rejected. The Company further agrees, if the Company applies to have the Ordinary
Shares traded on any other Trading Market, it will then include in such application all of the Share and will take such other action as
is necessary to cause all of the Shares to be listed or quoted on such other Trading Market as promptly as possible. The Company will
then take all action reasonably necessary to continue the listing and trading of its Ordinary Shares on a Trading Market and will comply
in all respects with the Company’s reporting, filing and other obligations under the bylaws or rules of the Trading Market. The
Company agrees to maintain the eligibility of the Ordinary Shares for electronic transfer through the Depository Trust Company or another
established clearing corporation, including, without limitation, by timely payment of fees to the Depository Trust Company or such other
established clearing corporation in connection with such electronic transfer.
4.9
Certain Transactions and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants
that neither it nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales, including
Short Sales of any of the Company’s securities during the period commencing with the execution of this Agreement and ending at such
time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described
in Section 4.4. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions
contemplated by this Agreement are publicly disclosed by the Company pursuant to the initial press release as described in Section 4.4,
such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Disclosure
Schedules. Notwithstanding the foregoing and notwithstanding anything contained in this Agreement to the contrary, the Company expressly
acknowledges and agrees that (i) no Purchaser makes any representation, warranty or covenant hereby that it will not engage in effecting
transactions in any securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced
pursuant to the initial press release as described in Section 4.4, (ii) no Purchaser shall be restricted or prohibited from effecting
any transactions in any securities of the Company in accordance with applicable securities laws from and after the time that the transactions
contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.4 and (iii)
no Purchaser shall have any duty of confidentiality or duty not to trade in the securities of the Company to the Company or its Subsidiaries
after the issuance of the initial press release as described in Section 4.4. Notwithstanding the foregoing, in the case of a Purchaser
that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets
and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions
of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio
manager that made the investment decision to purchase the Shares covered by this Agreement.
ARTICLE V.
MISCELLANEOUS
5.1 Termination.
This Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations hereunder only and without any effect
whatsoever on the obligations between the Company and the other Purchasers, by written notice to the other parties, if the Closing
has not been consummated on or before the tenth (10th) Trading Day following the date hereof; provided, however, that no such
termination will affect the right of any party to sue for any breach by any other party (or parties).
5.2
Fees and Expenses. Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the
fees and expenses of its 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. The Company shall pay all Transfer Agent fees
in connection with the delivery of any Shares to the Purchasers.
5.3
Entire Agreement. The Transaction Documents, together with the exhibits and schedules thereto, the Prospectus and the Prospectus
Supplement, contain the entire understanding of the parties with respect to the subject matter hereof and thereof and supersede all prior
agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such
documents, exhibits and schedules.
5.4
Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall
be in writing and shall be deemed given and effective on the earliest of: (a) the time of transmission, if such notice or communication
is delivered via facsimile at the facsimile number or email attachment at the email address as set forth on the signature pages attached
hereto at or prior to 4:30 p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile number or email attachment at the email address as set forth on the
signature pages attached hereto on a day that is not a Trading Day or later than 4:30 p.m. (New York City time) on any Trading Day, (c)
the second (2nd) Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (d) upon
actual receipt by the party to whom such notice is required to be given. The address for such notices and communications shall be as set
forth on the signature pages attached hereto. To the extent that any notice provided pursuant to any Transaction Document constitutes,
or contains, material, non- public information regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice
with the Commission pursuant to a Report of Foreign Private Issuer on Form 6-K.
5.5
Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written
instrument signed, in the case of an amendment, by the Company and Purchasers which purchased at least 50.1% in interest of the Shares
based on the initial Subscription Amounts hereunder or, in the case of a waiver, by the party against whom enforcement of any such waived
provision is sought, provided that if any amendment, modification or waiver disproportionately and adversely impacts a Purchaser (or group
of Purchasers), the consent of such disproportionately impacted Purchaser (or group of Purchasers) shall also be required. No waiver of
any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the
future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay
or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right. Any proposed amendment or
waiver that disproportionately, materially and adversely affects the rights and obligations of any Purchaser relative to the comparable
rights and obligations of the other Purchasers shall require the prior written consent of such adversely affected Purchaser. Any amendment
effected in accordance with this Section 5.5 shall be binding upon each Purchaser and holder of Shares and the Company.
5.6
Headings. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed
to limit or affect any of the provisions hereof.
5.7
Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors
and permitted assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent
of each Purchaser (other than by merger). Any Purchaser may assign any or all of its rights under this Agreement to any Person to whom
such Purchaser assigns or transfers any Shares, provided that such transferee agrees in writing to be bound, with respect to the transferred
Shares, by the provisions of the Transaction Documents that apply to the “Purchasers.”
5.8 Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be
governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the
principles of conflicts of law thereof. Each party agrees that all legal Proceedings concerning the interpretations, enforcement and
defense of the transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a party
hereto or its respective affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced
exclusively in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication of any
dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect
to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any Action or
Proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such Action or Proceeding is
improper or is an inconvenient venue for such Proceeding. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such Action or Proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and
agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall
be deemed to limit in any way any right to serve process in any other manner permitted by law. If any party shall commence an Action
or Proceeding to enforce any provisions of the Transaction Documents, then, in addition to the obligations of the Company under
Section 4.8, the prevailing party in such Action or Proceeding shall be reimbursed by the non-prevailing party for its reasonable
attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such Action or
Proceeding.
5.9
Survival. The representations and warranties contained herein shall survive the Closing and the delivery of the Shares.
5.10
Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered
one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other party,
it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission
or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party
executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature
page were an original thereof.
5.11
Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction
to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall
remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by
such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would
have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
5.12
Replacement of Shares If any certificate or instrument evidencing any Shares is mutilated, lost, stolen or destroyed, the
Company shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation),
or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to
the Company of such loss, theft or destruction. The applicant for a new certificate or instrument under such circumstances shall also
pay any reasonable third-party costs (including customary indemnity) associated with the issuance of such replacement Shares and provide
such indemnity as may be required and determined under the Company’s policy as set by the Board of Directors.
5.13
Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of
damages, each of the Purchasers and the Company will be entitled to specific performance under the Transaction Documents. The parties
agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations contained in
the Transaction Documents and hereby agree to waive and not to assert in any Action for specific performance of any such obligation the
defense that a remedy at law would be adequate.
5.14 Payment
Set Aside. To the extent that the Company makes a payment or payments to any Purchaser pursuant to any Transaction Document or a
Purchaser enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement or exercise
or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged by
or are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other Person under any law
(including, without limitation, any bankruptcy law, state or federal law, common law or equitable cause of action), then to the
extent of any such restoration the obligation or part thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such enforcement or setoff had not occurred.
5.15
Independent Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction
Document are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the
performance or non-performance of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in
any other Transaction Document, and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute the Purchasers
as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any
way acting in concert or as a group with respect to such obligations or the transactions contemplated by the Transaction Documents. Each
Purchaser shall be entitled to independently protect and enforce its rights including, without limitation, the rights arising out of this
Agreement or out of the other Transaction Documents, and it shall not be necessary for any other Purchaser to be joined as an additional
party in any Proceeding for such purpose. Each Purchaser has been represented by its own separate legal counsel in its review and negotiation
of the Transaction Documents. The Company has elected to provide all Purchasers with the same terms and Transaction Documents for the
convenience of the Company and not because it was required or requested to do so by any of the Purchasers. It is expressly understood
and agreed that each provision contained in this Agreement and in each other Transaction Document is between the Company and a Purchaser,
solely, and not between the Company and the Purchasers collectively and not between and among the Purchasers.
5.16
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right
required or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding
Business Day.
5.17
Construction. The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to
revise the Transaction Documents and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition,
each and every reference to share prices and Ordinary Shares in any Transaction Document shall be subject to adjustment for reverse and
forward stock splits, stock dividends, stock combinations and other similar transactions of the Ordinary Shares that occur after the date
of this Agreement.
5.18
WAIVER OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY,
THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY,
IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
(Signature Pages Follow)
IN WITNESS WHEREOF, the parties hereto have caused this
Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
VCI GLOBAL LIMITED |
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Address for Notice:
BO3-C-8 & 10, Menara 3A, KL Eco City,
No.3 Jalan Bangsar, 59200, Kuala
Lumpur, Malaysia |
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By: |
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E-Mail: datovictor@v-capital.co |
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Name: Victor Hoo |
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Title: Chairman and Chief Executive Officer |
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With a copy to (which shall not constitute notice):
Ross D. Carmel, Esq.
Jeffrey P. Wofford, Esq.
Sichenzia Ross Ference Carmel LLP |
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[SIGNATURE PAGE FOR PURCHASER FOLLOWS]
IN WITNESS WHEREOF, the undersigned have caused this Securities
Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: _____________________________________________
Signature of Authorized Signatory of Purchaser: |
|
Name of Authorized Signatory:
Title of
Authorized Signatory:
Email Address of Authorized Signatory:
Facsimile Number of Authorized Signatory:
Address for Notice to Purchaser:
DWAC for Shares:
Subscription Amount:
Shares: _____________________________________________ 2
EIN Number: _______________
Exhibit A
Wiring Instructions
19
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