UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER PURSUANT TO
RULE 13a-16
OR 15d-16 UNDER THE SECURITIES EXCHANGE ACT
OF 1934
For the month of July 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 15, 2024, VCI Global Limited. (the “Company”)
entered into a securities purchase agreement (the “Purchase Agreement”) with certain accredited investors (the “Purchasers”),
pursuant to which the Company agreed to issue and sell to the Purchasers an aggregate of 2,700,000 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 $0.37
per ordinary share.
The Offering closed on July 17, 2024 and the Company
received gross proceeds of $999,000 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 Agreement 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 Agreement and may be subject to limitations agreed upon by the contracting
parties. The foregoing summary of the Purchase Agreement is qualified in its entirety by the full text of the Purchase Agreement, which
is filed herewith as Exhibit 99.1 and 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 or around January 17, 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 99.2 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 17, 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 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$________, 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 |
|
Address for Notice: |
| |
|
BO3-C-8 & 10, Menara 3A, KL Eco City,
No.3 Jalan Bangsar, 59200,
Kuala Lumpur, Malaysia |
| By: |
|
|
|
| |
Name: |
Victor Hoo |
|
E-Mail: datovictor@v-capital.co |
| |
Title: |
Chairman and Chief Executive Officer |
|
|
With a copy to (which shall not constitute notice):
Ross D. Carmel, Esq.
Jeffrey P. Wofford, Esq.
Sichenzia Ross Ference Carmel LLP
[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: US$_________________
Shares: _________________
EIN Number: _______________________
Exhibit A
Wiring Instructions
19
Exhibit 99.2
 |
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 |
17 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 16 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 2,700,000 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 |
|
| |
|
 |
|
| Carey Olsen |
|
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. | A copy of the securities purchase agreement dated 15 July 2024 (the “Securities Purchase Agreement”),
pursuant to which the Company agreed to sell 2,700,000 Ordinary Shares to an accredited investor at a purchase price of $0.37 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). |
VCI Global (NASDAQ:VCIG)
過去 株価チャート
から 6 2024 まで 7 2024
VCI Global (NASDAQ:VCIG)
過去 株価チャート
から 7 2023 まで 7 2024
