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 June 2024
MICROALGO
INC.
(Registrant’s
Name)
Unit
507, Building C, Taoyuan Street,
Long
Jing High and New Technology Jingu Pioneer Park,
Nanshan
District, Shenzhen, People’s Republic of China
(Address
of principal executive office)
Indicate
by check mark whether the registrant files or will file annual reports under cover Form 20-F or Form 40-F.
Form
20-F ☒ Form 40-F ☐
EXPLANATORY
NOTE
Convertible
Note Transaction with Certain Investors
On
June 5, 2024, the Company entered into Convertible Note Purchase Agreements (“Purchase Agreements”) with certain investors
(the “Investors”). On June 6, 2024, the Company issued to each Investor an Unsecured Convertible Promissory Note (the “Notes”)
pursuant to the relevant Purchase Agreements. The aggregate original principal amount of the Notes is $30,000,000.
The
Note has a term of 360 days commencing on June 6, 2024. The Notes carry an aggregate original issue discount of $2,400,000. The Company
bore the costs and other transaction expenses incurred in connection with the purchase and sale of the Notes.
Each
Investor has the right to elect to convert all or a portion of the outstanding balance under the Note into ordinary shares of US$0.001
each in the capital of the Company (the “ordinary shares”) pursuant to the following formula: conversion shares equals amount
being converted divided by the conversion price, which is calculated as (A) the lowest market closing price of the Company’s
ordinary shares in the 60 trading days preceding the date of conversion request (B) multiplied by 70% and (C) rounded
down to the nearest 2 decimal places. The conversion is subject to adjustment in the event of a share subdivision, share dividend, recapitalization,
or similar transaction.
Ownership
Limitation: The Company may at it option decline to effect any conversion of the outstanding balance under the Note to the extent that
after giving effect to such conversion would cause the Investors (on an individual basis) to beneficially own a number of shares exceeding
9.99% of the number of ordinary shares outstanding on such date
Upon
occurrence of an Event of Default (as defined in the Note), the interest rate shall accrue on the outstanding balance at the rate equal
to 10% per annum. In the event of a default, Investors will continue to have the right to make conversions until such time the outstanding
balance is paid in full.
The
Registrant will use the net proceeds from the offering of the Note for working capital and general corporate purposes.
The
foregoing descriptions of the Purchase Agreements and the Notes are summaries of the material terms of such agreements, do not purport
to be complete and are qualified in their entirety by reference to the Purchase Agreements, and the Notes, which are attached hereto
as Exhibits 99.1, and 99.2. The prospectus supplement relating to the Offering is filed on the SEC’s web site at http://www.sec.gov.
This
current report on Form 6-K, including the exhibit hereto, is incorporated by reference into the registration statement on Form F-3 of
the Company (File No. 333-276098) and shall be a part thereof from the date on which this current report is furnished,
to the extent not superseded by documents or reports subsequently filed or furnished.
EXHIBIT
INDEX
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, thereunto duly authorized.
Date:
June 6, 2024
| |
MicroAlgo
Inc. |
| |
|
| |
/s/
Min Shu |
| |
Min
Shu |
| |
Chief
Executive Officer |
Exhibit 5.1
| Our ref | VSL/815090-000001/29581986v2 |
| Direct tel | +852 3690 7513 |
| Email | vivian.lee@maples.com |
MicroAlgo Inc.
Unit 507, Building C, Taoyuan Street
Long Jing High and New Technology Jingu Pioneer
Park
Nanshan District, Shenzhen
People’s Republic of China
6 June 2024
MicroAlgo Inc.
We have acted as Cayman Islands legal advisers
to MicroAlgo Inc. (the “Company”) in connection with the Company’s registration statement on Form F-3, including
all amendments or supplements thereto (the “Registration Statement”), initially filed on 18 December 2023 with the
Securities and Exchange Commission under the U.S. Securities Act of 1933, as amended to date relating to securities to be issued and
sold by the Company from time to time, and the prospectus supplement dated 6 June 2024 (the “Prospectus Supplement”)
relating to the sale of (i) US$30,000,000 aggregate principal amount of unsecured convertible promissory notes due 2025 (the “Convertible
Promissory Notes”) convertible into ordinary shares of the Company of a par value of US$0.01 each (the “Shares”),
and (ii) the Shares underlying the Convertible Promissory Notes, in accordance with the various Convertible Notes Purchase Agreements,
each dated 5 June 2024 entered into between the Company and the relevant Purchaser named therein (together, the “Convertible
Notes Purchase Agreements”).
We are furnishing this opinion and consent as
Exhibit 5.1 to the Company’s current report on Form 6-K which will be incorporated by reference into the Registration Statement and the
Prospectus Supplement (the “Form 6-K”).
We have reviewed originals, copies, drafts or conformed copies of the
following documents:
| 1.1 | The certificate of incorporation of the Company dated 14 May 2018 and the certificate
of incorporation on change of name of the Company dated 9 December 2022 issued by the Registrar of Companies in the Cayman Islands. |
| 1.2 | The amended and restated memorandum and articles of association of the Company as
adopted by a special resolution passed on 21 October 2022 with effect from 9 December 2022 (the “Memorandum and Articles”). |
| 1.3 | The written resolutions of the board of directors of the Company dated 5 June
2024 (the “Resolutions”) |
| 1.4 | A certificate from a director of the Company, a copy of which is attached hereto (the “Director’s
Certificate”). |
| 1.5 | A certificate of good standing with respect to the Company issued by the Registrar of Companies dated
27 February 2024 (the “Certificate of Good Standing”). |
| 1.6 | The Registration Statement and the Form 6-K. |
| 1.7 | The Prospectus Supplement. |
| 1.8 | The Convertible Promissory Notes. |
The following opinions are given only as to, and
based on, circumstances and matters of fact existing and known to us on the date of this opinion letter. These opinions only relate to
the laws of the Cayman Islands which are in force on the date of this opinion letter. In giving the following opinions, we have relied
(without further verification) upon the completeness and accuracy of the Director’s Certificate and the Certificate of Good Standing.
We have also relied upon the following assumptions, which we have not independently verified:
| 2.1 | Copies of documents, conformed copies or drafts of documents provided to us are true and complete copies
of, or in the final forms of, the originals. |
| 2.2 | All signatures, initials and seals are genuine. |
| 2.3 | There is nothing under any law (other than the law of the Cayman Islands), which would or might affect
the opinions set out below. |
Based upon, and subject to, the foregoing assumptions and the qualifications
set out below, and having regard to such legal considerations as we deem relevant, we are of the opinion that:
| 3.1 | The Company has been duly incorporated as an exempted company with limited liability and is validly existing
and in good standing with the Registrar of Companies under the laws of the Cayman Islands. |
| 3.2 | The authorised share capital of the Company is US$2,000,000 divided into 200,000,000 ordinary shares of a par value of US$0.01 each. |
| 3.3 | The issue and allotment of the Shares have been duly authorised and when allotted, issued and paid for
as contemplated in the Registration Statement, the Prospectus Supplement and the relevant Convertible Notes Purchase Agreements, the Shares
will be legally issued and allotted, fully paid and non-assessable. As a matter of Cayman Islands law, a share is only issued when it
has been entered in the register of members (shareholders). |
| 3.4 | The statements under the caption “Taxation” in the Prospectus Supplement forming part of the
Registration Statement, to the extent that they constitute statements of Cayman Islands law, are accurate in all material respects and
that such statements constitute our opinion. |
The opinions expressed above are subject to the following qualifications:
| 4.1 | To maintain the Company in good standing under the laws of the Cayman Islands, annual
filing fees must be paid and returns made to the Registrar of Companies within the time frame prescribed by law. |
| 4.2 | In this opinion the phrase “non-assessable” means, with respect to the Shares in the Company,
that a shareholder shall not, solely by virtue of its status as a shareholder, and in absence of a contractual arrangement, or an obligation
pursuant to the memorandum and articles of association, to the contrary, 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). |
Except as specifically stated herein, we make
no comment with respect to any representations and warranties which may be made by or with respect to the Company in any of the documents
or instruments cited in this opinion or otherwise with respect to the commercial terms of the transactions, which are the subject of this
opinion.
We hereby consent to the filing of this
opinion as an exhibit to the Form 6-K, and to the reference to our name under the headings “Enforcement of Civil Liabilities”
and “Legal Matters” and elsewhere in the prospectus included in the Registration Statement and the Prospectus Supplement. In
giving such consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of
the U.S. Securities Act of 1933, as amended, or the Rules and Regulations of the Commission thereunder.
Yours faithfully
Maples and Calder (Hong Kong) LLP
Exhibit 99.1
Convertible Note Purchase Agreement
This Convertible Note Purchase Agreement (this “Agreement”), dated as of [ ], 2024 is entered into by and between MicroAlgo Inc., a Cayman Islands exempted company (the “Company”), and the purchaser identified on the signature page hereto (including its successors
and assigns, the “Purchaser”).
A. The Company and the Purchaser are executing and delivering this Agreement in reliance
upon an exemption from securities registration afforded by the Securities Act of 1933,
as amended (the “1933 Act”), and the rules and regulations promulgated thereunder by the United States Securities
and Exchange Commission.
B. The Purchaser desires to purchase and the Company desires to Issue and sell, upon
the terms and conditions set forth in this Agreement, that certain Convertible Promissory
Note in the form attached hereto as Exhibit A, in the original principal amount of US$[ ] (the “Note”). The Note shall be convertible into ordinary shares of par value US$0.01 each
of the Company (“Shares”), upon the terms and subject to the limitations and conditions set forth in the
Note.
C. This Agreement, the Note, and all other certificates, documents, agreements, resolutions
and instruments delivered to any party under or in connection with this Agreement,
as the same may be amended from time to time, are collectively referred to herein
as the “Transaction Documents”.
D. For purposes of this Agreement: “Conversion Shares” means all Shares issuable upon conversion of all or any portion of the Note; and
“Securities” means the Note and the Conversion Shares.
NOW, THEREFORE, in consideration of the above recitals and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Company and the
Purchaser hereby agree as follows:
1. Purchase and Sale of Securities.
1.1. Purchase of Securities. The Company shall issue and sell to Purchaser and each Purchaser shall purchase
from the Company the Note. In consideration thereof, the Purchaser shall pay the purchase
price in an amount equal to [ ]% of the original principal amount of the Note (the
“Purchase Price”) to the Company.
1.2. Form of Payment. On the Closing Date (as defined below), the Purchaser shall pay the Purchase Price
to the Company via wire transfer of immediately available funds against delivery of
the Note.
1.3. Closing Date.
Subject to the satisfaction (or written waiver) of the conditions set forth in Section 5 and Section 6 below, the date of
the issuance and sale of the Note pursuant to this Agreement (the “Closing Date”) shall be within 30 days after
the date of this Agreement, or another mutually agreed upon date. The closing of the transactions contemplated by this Agreement
(the “Closing”) shall occur on the Closing Date by means of the exchange by email of signed. pdf documents, but
shall be deemed for all purposes to have occurred at the Company’s principal executive offices in Shenzhen, People’s
Republic of China.
2. Purchaser’s Representations and Warranties. The Purchaser represents and warrants to the Company that as of the date hereof
and as of the Closing Date as follows (unless as of a specific date therein, in which
case they shall be accurate as of such date):
(a) Organization; Authority. The 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 this Agreement and otherwise to
carry out its obligations hereunder and thereunder. The execution and delivery of
this Agreement and performance by the Purchaser of the transactions contemplated by
this Agreement have been duly authorized by all necessary corporate, partnership,
limited liability company or similar action, as applicable, on the part of the Purchaser.
Each Transaction Document to which it is a party has been duly executed by the Purchaser,
and when delivered by the Purchaser in accordance with the terms hereof, will constitute
the valid and legally binding obligation of the 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) Purchaser Status. At the time the Purchaser was offered the Securities, it was, and as of the date
hereof it is, and on the Closing Date, it will be either an “accredited investor”
as defined in Rule 501(a) under the 1933 Act, the Purchaser (i) acknowledges that the certificate(s) representing
or evidencing the Conversion Shares shall contain a customary restrictive legend restricting
the offer, sale or transfer of any Conversion Shares except in accordance with the
provisions of Regulation S, pursuant to registration under the 1933 Act, or pursuant
to an available exemption from registration, (ii) agrees that all offers and sales
by the Purchaser of the Conversion Shares shall be made pursuant to an effective registration
statement under the 1933 Act or pursuant to an exemption from, or a transaction not
subject to the registration requirements of, the 1933 Act, (iii) represents that the
offer to purchase the Securities was made to the Purchaser outside of the United States,
and the Purchaser was, at the time of the offer and will be, at the time of the sale
and is now, outside the United States, (iv) has not engaged in or directed any unsolicited
offers to purchase Securities in the United States, (v) is not a Distributor (as such
terms are defined in Rule 902(k) and 902(d), respectively, of Regulation S), (vi) has purchased the Securities
for its own account and not for the account or benefit of any U.S. Person, (vii) is
the sole beneficial owner of the Securities and has not pre-arranged any sale with
the Purchaser in the United States, and (viii) is familiar with and understands the
terms and conditions and requirements contained in Regulation S, specifically, without
limitation, the Purchaser understands that the statutory basis for the exemption claimed
for the sale of the Securities would not be present if the sale, although in technical
compliance with Regulation S, is part of a plan or scheme to evade the registration
provisions of the 1933 Act.
(c) Experience of Purchaser. The 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 Securities,
and has so evaluated the merits and risks of such investment. The Purchaser is able
to bear the economic risk of an investment in the Securities and, at the present time,
is able to afford a complete loss of such investment.
(d) Restricted Securities. The Purchaser acknowledges that absent an effective registration under the 1933
Act, the Securities may only be offered, sold or otherwise transferred (i) to the
Company, or (ii) pursuant to an exemption from registration under the 1933 Act.
(e) Access to Information. The Purchaser acknowledges that it has had the opportunity to review the Transaction
Documents (including all exhibits and schedules thereto) and all reports, schedules,
forms, statements and other documents filed by the Company under the 1933 Act and
Securities Exchange Act of 1934, as amended (the “1934 Act”), including pursuant to Section 13(a) or 15(d) thereof, including the exhibits thereto and documents incorporated by
reference therein 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 Securities and
the merits and risks of investing in the Securities; (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.
(f) General Solicitation. The Purchaser is not purchasing the Securities as a result of any advertisement,
article, notice or other communication regarding the Securities published in any newspaper,
magazine or similar media or broadcast over television or radio or presented at any
seminar or, to our knowledge, any other general solicitation or general advertisement.
3. Company’s Representations and Warranties. The Company represents and warrants to the Purchaser that as of the Closing Date:
(a) Organization and Qualification. The Company is an exempted company with limited liability duly incorporated, validly
existing and in good standing under the laws of the Cayman Islands, and each subsidiary
of the Company is duly incorporated or organized, validly existing and in good standing
(with respect to jurisdictions that recognize the concept of good standing) under
the laws of its jurisdiction of organization. Each of the Company and its subsidiaries
has the requisite power and authority to own, lease and operate its properties and
to carry on its business as currently being conducted, and is duly qualified or licensed
to do business in all material respects in each jurisdiction in which the property
owned, leased or operated by it or the nature of the business conducted by it makes
such qualification or licensing necessary.
(b) Authorization; Enforcement; Validity. The Company has the requisite corporate power and authority to execute and deliver
the Transaction Documents and to perform its obligations thereunder. The execution,
delivery and performance by the Company of the Transaction Documents, including the
issuance of the Note and the Conversion Shares, have been duly authorized by all necessary
corporate action on the part of the Company. Each Transaction Document to which the
Company is a party has been or will be duly executed and delivered by the Company,
and, assuming the due authorization, execution and delivery by the Purchaser and the
other parties thereto, constitutes a legal, valid and binding obligation of the Company,
enforceable against it in accordance with its terms, except as limited by general
equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium
and other laws of general application affecting enforcement of creditors’ rights generally.
(c) Issuance of the Conversion Shares. The Conversion 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.
(d) Capitalization. All issued and outstanding ordinary shares have been duly authorized and validly
issued and are fully paid and non-assessable, were issued in compliance with applicable
U.S. and other applicable securities laws and were not issued in violation of any
preemptive right, resale right or right of first refusal.
(e) No Conflicts. The execution, delivery and performance by the Company of the Transaction Documents,
including the issuance of the Note and the Conversion Shares, will not (i) result
in a violation of the Memorandum and Articles, (ii) conflict with, or constitute a
default (or an event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or cancellation
of, any agreement to which the Company is a party, or (iii) result in a violation
of any law applicable to the Company or by which any property or asset thereof is
bound, except in the case of clauses (ii) and (iii) above, for such conflicts, defaults,
rights or violations which would not, individually or in the aggregate, reasonably
be expected to have a material adverse effect on the ability of the Company to perform
its obligations under the Transaction Documents to which it is a party.
(f) 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 such filings as are required to be made under applicable federal securities
laws and the laws of the PRC.
(g) No Additional Representations. The Company makes no representations or warranties as to any matter whatsoever except
as expressly set forth in the Transaction Documents or in any certificate delivered
by the Company to the Purchaser in accordance with the terms thereof.
4. Company Covenants. Until all of Company’s obligations under the Note are paid and performed in full, or within the timeframes
otherwise specifically set forth below, so long as Purchaser beneficially owns Company’s securities, Company will at all times comply with the following covenants: (i) Company
will timely file on the applicable deadline all reports required to be filed with
the SEC pursuant to Sections 13 or 15(d) of the 1934 Act, and will take all reasonable action under its control
to ensure that adequate current public information with respect to Company, as required
in accordance with Rule 144 of the 1933 Act, is publicly available, and will not terminate its status as an
issuer required to file reports under the 1934 Act even if the 1934 Act or the rules
and regulations thereunder would permit such termination; (ii) the Ordinary shares
shall be listed or quoted for trading on NYSE or NASDAQ; and (iii) trading in Company’s Ordinary shares will not be suspended, halted, chilled, frozen, reach zero bid or
otherwise cease trading on Company’s principal trading market; (iv) while Company may raise any capital it deems necessary
for its operations, Company shall not enter into any agreement or otherwise agree
to any covenant, condition, or obligation that locks up, restricts in any way or otherwise
prohibits Company: (a) from entering into a variable rate transaction with Purchaser
or any affiliate of Purchaser, or (b) from issuing Ordinary shares, preferred stock,
warrants, convertible notes, other debt securities, or any other Company securities
to Purchaser or any affiliate of Purchaser; and (v) on or before [ ], Company will file a Form 424B prospectus supplement to its registration statement
on Form F-3 (No. 333-276098) for the registration of up to $[ ] in Conversion Shares (as defined in the Note) (or an amount agreed to between Company
and Purchaser) for any conversion by Purchaser under the Note.
5. Conditions to Company’s Obligation to Sell. The obligation of the Company hereunder to issue and sell the Securities to the
Purchaser at the Closing is subject to the satisfaction, on or before the Closing
Date, of each of the following conditions:
5.1. The Purchaser shall have executed this Agreement and delivered the same to the
Company.
5.2. The Purchaser shall have delivered the Purchase Price to the Company in accordance
with Section 1.2 above.
6. Conditions to Purchaser’s Obligation to Purchase. The obligation of the Purchaser hereunder to purchase the Securities at the Closing
is subject to the satisfaction, on or before the Closing Date, of each of the following
conditions, provided that these conditions may be waived by the Purchaser at any time
in its sole discretion:
6.1. The Company shall have executed this Agreement and the Note and delivered the
same to the Purchaser.
6.2. The Company shall have delivered to the Purchaser fully executed copies of all
other Transaction Documents required to be executed by the Company herein or therein.
7. Miscellaneous.
7.1. Termination. This Agreement may be terminated by the Company by written notice to the Purchaser
if the Closing has not been consummated on or before [ ].
7.2. Governing Law; Dispute Resolution. This Agreement shall be governed by and construed exclusively in accordance with
the laws of New York, without giving effect to any choice of law rule that would cause
the application of the laws of any jurisdiction to the rights and duties of the parties
hereunder. The Company and the Purchaser agree to negotiate in good faith to resolve
any dispute, controversy, difference or claim arising out of or relating to or regarding
this Agreement including the existence, validity, interpretation, performance, breach
or termination thereof or any dispute regarding non-contractual obligations arising
out of or relating to it (each, a “Dispute”).
7.3. Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the same
instrument. Counterparts may be delivered via facsimile, electronic mail (including
pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000,
e.g., www.docusign.com) or other transmission method and any counterpart so delivered
shall be deemed to have been duly and validly delivered and be valid and effective
for all purposes.
7.4. Headings. The headings of this Agreement are for convenience of reference only and shall not
form part of, or affect the interpretation of, this Agreement.
7.5. Severability. In the event that any provision of this Agreement is invalid or unenforceable under
any applicable statute or rule of law, then such provision shall be deemed inoperative
to the extent that it may conflict therewith and shall be deemed modified to conform
to such statute or rule of law. Any provision hereof which may prove invalid or unenforceable
under any law shall not affect the validity or enforceability of any other provision
hereof.
7.6. Entire Agreement. This Agreement, together with the other Transaction Documents, contains the entire
understanding of the parties with respect to the matters covered herein and therein
and, except as specifically set forth herein or therein, neither Company nor the Purchaser
makes any representation, warranty, covenant or undertaking with respect to such matters.
For the avoidance of doubt, all prior term sheets or other documents between Company
and the Purchaser, or any affiliate thereof, related to the transactions contemplated
by the Transaction Documents (collectively, “Prior Agreements”), that may have been entered into between Company and the Purchaser, or any affiliate
thereof, are hereby null and void and deemed to be replaced in their entirety by the
Transaction Documents. To the extent there is a conflict between any term set forth
in any Prior Agreement and the term(s) of the Transaction Documents, the Transaction
Documents shall govern.
7.7. Amendments. No provision of this Agreement may be waived or amended other than by an instrument
in writing signed by both parties hereto.
7.8. Notices. Any notice required or permitted hereunder shall be given in writing (unless otherwise
specified herein) and shall be deemed effectively given on the earliest of: (i) the
date delivered, if delivered by personal delivery as against written receipt therefor
or by email to an executive officer named below or such officer’s successor, or by facsimile (with successful transmission confirmation which is kept
by sending party), (ii) the earlier of the date delivered or the third Business Day
after deposit, postage prepaid, in the United States Postal Service by certified mail,
or (iii) the earlier of the date delivered or the third Business Day after mailing
by express courier, with delivery costs and fees prepaid, in each case, addressed
to each of the other parties thereunto (or at such other addresses as such party may
designate by five (5) calendar days’ advance written notice similarly given to each of the other parties hereto). The
address for such notices and communications shall be as set forth on the signature
pages attached hereto. “Business Day” means any day that is not a Saturday, a Sunday or other day on which banks are required
or authorized by applicable laws to be closed in Beijing, Cayman Islands, Hong Kong
or New York.
7.9. Successors and Assigns. This Agreement or any of the severable rights and obligations inuring to the benefit
of or to be performed by the Purchaser hereunder may be assigned by the Purchaser
to a third party, including its affiliates, in whole or in part, without the need
to obtain Company’s consent thereto. Company may not assign its rights or obligations under this Agreement
or delegate its duties hereunder without the prior written consent of the Purchaser.
7.10. Survival. The representations and warranties of Company and the agreements and covenants set
forth in this Agreement shall survive the Closing hereunder notwithstanding any due
diligence investigation conducted by or on behalf of the Purchaser. Company agrees
to indemnify and hold harmless the Purchaser and all its officers, directors, employees,
attorneys, and agents for loss or damage arising as a result of or related to any
breach or alleged breach by Company of any of its representations, warranties and
covenants set forth in this Agreement or any of its covenants and obligations under
this Agreement, including advancement of expenses as they are incurred.
7.11. Further Assurances. Each party shall do and perform, or cause to be done and performed, all such further
acts and things, and shall execute and deliver all such other agreements, certificates,
instruments and documents, as the other party may reasonably request in order to carry
out the intent and accomplish the purposes of this Agreement and the consummation
of the transactions contemplated hereby.
7.12. Purchaser’s Rights and Remedies Cumulative. All rights, remedies, and powers conferred in this Agreement and the Transaction
Documents are cumulative and not exclusive of any other rights or remedies, and shall
be in addition to every other right, power, and remedy that the Purchaser may have,
whether specifically granted in this Agreement or any other Transaction Document,
or existing at law, in equity, or by statute, and any and all such rights and remedies
may be exercised from time to time and as often and in such order as the Purchaser
may deem expedient.
7.13. 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.
7.14. No Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective
successors and permitted assigns and is not for the benefit of, nor may any provision
hereof be enforced by, any other person.
7.15. Waiver. No waiver of any provision of this Agreement shall be effective unless it is in
the form of a writing signed by the party granting the waiver. No waiver of any provision
or consent to any prohibited action shall constitute a waiver of any other provision
or consent to any other prohibited action, whether or not similar. No waiver or consent
shall constitute a continuing waiver or consent or commit a party to provide a waiver
or consent in the future except to the extent specifically set forth in writing.
[Remainder of page intentionally left blank; signature page follows]
IN WITNESS WHEREOF, the undersigned the Purchaser and the Company have caused this
Agreement to be duly executed as of the date first above written.
[signature page to follow]
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PURCHASER: |
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By: |
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Printed Name: |
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Title: |
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COMPANY: |
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By: |
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Printed Name: |
Min Shu |
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Title: |
Director |
[Signature Page to Convertible Note Purchase Agreement]
Exhibit
99.2
CONVERTIBLE
PROMISSORY NOTE
| Effective
Date: [ ] |
U.S.
$[ ] |
FOR
VALUE RECEIVED, MicroAlgo Inc., a Cayman Islands exempted company (“Borrower”), promises to pay to _______,
a __________ company, or its successors or assigns (“Lender”), $[ ]
and any interest, fees, charges, and late fees accrued hereunder on the date (the “Maturity Date”) that is 360
days after the date the Purchase Price for this Note is delivered by Lender to Borrower (the “Purchase Price Date”)
in accordance with the terms set forth herein and to pay interest on the Outstanding Balance (as defined below) at the simple rate
of 0% per annum from the Purchase Price Date until the same is paid in full. All interests hereunder (if applicable) shall be computed
on the basis of a 360-day year comprised of twelve (12) thirty (30) day months, and shall be payable on the Maturity Date.
This
Convertible Promissory Note (this “Note”) is issued and made effective as of [ ],
2024 (the “Effective Date”). This Note is issued pursuant to that certain Convertible Note Purchase Agreement
dated [ ], 2024, as the same may be amended from time to time, by and between Borrower
and Lender (the “Purchase Agreement”). For all purposes of this Note, (a) the “Outstanding Balance”
means, as of any date of determination, the Purchase Price, as reduced or increased, as the case may be, pursuant to the terms
hereof for payment, Conversion (as defined below), offset, or otherwise, plus accrued but unpaid interest, and (b) “Business
Day” means any day that is not a Saturday, a Sunday or other day on which banks are required or authorized by applicable
laws to be closed in Beijing, Cayman Islands, Hong Kong or New York.
The
purchase price for this Note shall be $[ ] (the “Purchase Price”).
The Purchase Price shall be payable by Lender by wire transfer of immediately available funds.
1.
Payment; Prepayment.
1.1.
Payment. All payments owing hereunder shall be in lawful money of the United States of America or Conversion Shares (as
defined below), as provided for herein, and delivered to Lender at the address or bank account furnished to Borrower for that purpose.
All payments shall be applied first to (a) costs of collection, if any, then to (b) fees and charges, if any, then to (c) accrued
and unpaid interest, and thereafter, to (d) principal.
1.2.
Prepayment. Notwithstanding the foregoing, Borrower shall have the right to prepay all or any portion of the Outstanding
Balance (less such portion of the Outstanding Balance for which Borrower has received a Conversion Notice (as defined below) from
Lender where the applicable Conversion Shares have not yet been delivered).
2.
Security. This Note is unsecured.
3.
Lender Optional Conversion.
3.1.
Conversions. Lender has the right at any time after the Purchase Price Date until the Outstanding Balance has been paid
in full, at its election, to convert (“Conversion”) all, or a portion of the Outstanding Balance into ordinary
shares of par value US$0.001 each of Borrower (“Conversion Shares”) as per the following conversion formula:
the number of Conversion Shares equals the amount being converted (the “Conversion Amount”) divided by the Conversion
Price. Conversion notices shall be in the form attached hereto as Exhibit A (each, a “Conversion Notice”)
and may be effectively delivered to Borrower by any method set forth in the “Notices” section of the Purchase Agreement.
Borrower shall take necessary actions to enable the share registrar or transfer agent to deliver the Conversion Shares from any
Conversion to Lender or its Permitted Designee (as defined below) in accordance with Section 7 below. “Permitted
Designee” means any individual, partnership, firm, corporation, association, trust, unincorporated organization or other
entity which directly, legally and beneficially owns any issued and outstanding equity securities of Lender.
3.2.
Conversion Price. Subject to adjustment as set forth in this Note, the price at which Lender has the right to convert all,
and no less than all, of the Outstanding Balance into Conversion Shares is the Conversion Price, which shall be calculated as (A)
the lowest market closing price of the Company’s ordinary shares in the sixty (60) trading days preceding the date of the
Conversion Notice (the “Reference Price”), (B) multiplied by 70%, and (C) rounded down to the nearest
2 decimal places, subject to adjustment in the event of a stock split, stock dividend, recapitalization, or similar transactions.
4.
Trigger Events; Defaults; and Remedies.
4.1.
Trigger Events. The following are trigger events under this Note (each, a “Trigger Event”): (a) Borrower
fails to pay any principal, interest, fees, charges, or any other amount when due and payable hereunder; (b) a receiver, trustee
or other similar official shall be appointed over Borrower or a material part of its assets and such appointment shall remain uncontested
for 60 days or shall not be dismissed or discharged within 60 days; (c) Borrower files a petition for relief under any bankruptcy,
insolvency or similar law (domestic or foreign); (d) an involuntary bankruptcy proceeding is commenced or filed against Borrower.
4.2.
Defaults. At any time following the occurrence of a Trigger Event, Lender may, at its option, send written notice to Borrower
demanding that Borrower cure the Trigger Event within 60 Business Days. If Borrower fails to cure the Trigger Event within the
required 60 Business Day cure period, the Trigger Event will automatically become an event of default hereunder (each, an “Event
of Default”) and the date of the Event of Default shall be the 60th Business Day following the occurrence
of the relevant Trigger Event.
4.3.
Default Remedies. At any time and from time to time following the occurrence of any Event of Default, Lender may accelerate
this Note by written notice to Borrower, with the Outstanding Balance becoming immediately due and payable in cash. At any time
following the occurrence of any Event of Default, upon written notice given by Lender to Borrower to accelerate this Note, interest
shall accrue on the Outstanding Balance beginning on the date the applicable Event of Default occurred at an interest rate equal
to 10% per annum (“Default Interest”) until the Outstanding Balance is paid in full. For the avoidance of doubt,
the foregoing interest rate of 10% per annum shall be the only interest that may accrue on the Outstanding Balance beginning on
the date of the applicable Event of Default, and the original interest rate of 0% per annum shall cease to have effect from the
date of the applicable Event of Default. Lender may continue making Conversions at any time following a Trigger Event or an Event
of Default until such time as the Outstanding Balance is paid in full. Such acceleration may be rescinded and annulled by Lender
at any time prior to payment hereunder and Lender shall have all rights as a holder of the Note until such time, if any, as Lender
receives full payment pursuant to this Section 4.3. No such rescission or annulment shall affect any subsequent Event of Default
or impair any right consequent thereon. Nothing herein shall limit Lender’s right to pursue any other remedies available
to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect
to Borrower’s failure to timely deliver Conversion Shares upon Conversion of the Note as required pursuant to the terms hereof.
5.
Waiver. No waiver of any provision of this Note shall be effective unless it is in the form of a writing signed by the party
granting the waiver. No waiver of any provision or consent to any prohibited action shall constitute a waiver of any other provision
or consent to any other prohibited action, whether or not similar. No waiver or consent shall constitute a continuing waiver or
consent or commit a party to provide a waiver or consent in the future except to the extent specifically set forth in writing.
6.
Adjustment of Conversion Price upon Share Subdivision or Combination. Without limiting any provision hereof, if Borrower
at any time on or after the Effective Date subdivides (by any stock split, stock dividend, recapitalization, ratio change or otherwise)
its outstanding ordinary shares into a greater number of shares, the Conversion Price in effect immediately prior to such subdivision
will be proportionately reduced. Without limiting any provision hereof, if Borrower at any time on or after the Effective Date
combines (by combination, reverse stock split, ratio change or otherwise) its outstanding Class ordinary shares into a smaller
number of shares, the Conversion Price in effect immediately prior to such combination will be proportionately increased. Any adjustment
pursuant to this Section 6 shall become effective immediately after the effective date of such subdivision or combination.
If any event requiring an adjustment under this Section 6 occurs during the period that a Conversion Price is calculated hereunder,
then the calculation of such Conversion Price shall be adjusted appropriately to reflect such event.
7.
Method of Conversion Share Delivery. On or before the close of business on the 10th Business Day following the
date of delivery of a Conversion Notice (the “Delivery Date”), Borrower shall deliver or cause its share registrar
or transfer agent to deliver the applicable Conversion Shares and a certificate representing the number of Conversion Shares to
which Lender shall be entitled, registered in the name of Lender or its Permitted Designee. Moreover, and notwithstanding anything
to the contrary herein or in any other Transaction Document, in the event Borrower or its share registrar or transfer agent refuses
to deliver any Conversion Shares without a restrictive securities legend to Lender on grounds that such issuance is in violation
of Rule 144 under the Securities Act of 1933, as amended (“Rule 144”), Borrower shall deliver or cause
its share registrar or transfer agent to deliver the applicable Conversion Shares to Lender with a restricted securities legend,
but otherwise in accordance with the provisions of this Section 7.
8.
Issuance Fees. Lender will be solely liable for any fees that must be paid by Borrower in order to issue any Conversion
Shares.
9.
Ownership Limitation. Notwithstanding anything to the contrary contained in this Note or the other Transaction Documents,
Borrower may, at its option, decline to effect any conversion of this Note to the extent that after giving effect to such conversion
would cause each of Lender or any Permitted Designee to, on an individual basis, beneficially own a number of shares exceeding
9.99% of the number of shares outstanding on such date (including for such purpose the Conversion Shares issuable upon such issuance)
(the “Maximum Percentage”). For purposes of this section, beneficial ownership of shares will be determined
pursuant to Section 13(d) of the 1934 Act. Borrower and Lender may, by written agreement, increase, decrease or waive the
Maximum Percentage as to Lender.
10.
Opinion of Counsel. In the event that an opinion of counsel is needed for any matter related to this Note, Lender has the
right to have any such opinion provided by its counsel at its own costs.
11.
Governing Law; Dispute Resolution. This Agreement shall be governed by and construed exclusively in accordance with the
laws of New York, without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction
to the rights and duties of the parties hereunder. The Company and the Purchaser agree to negotiate in good faith to resolve any
dispute, controversy, difference or claim arising out of or relating to or regarding this Agreement including the existence, validity,
interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of
or relating to it (each, a “Dispute”).
12.
Cancellation. After repayment or conversion of the entire Outstanding Balance, this Note shall be deemed paid in full, shall
automatically be deemed canceled, and shall not be reissued.
13.
Amendments. The prior written consent of both parties hereto shall be required for any change or amendment to this Note.
14.
Assignments. Borrower may not assign this Note without the prior written consent of Lender. This Note may not be offered,
sold, assigned or transferred by Lender without the consent of Borrower, and Borrower is not obligated to give such consent. For
avoidance of doubt, ADSs issued to Lender upon conversion of Conversion Shares may be offered, sold, assigned or transferred by
Lender without the consent of Borrower.
15.
Notices. Whenever notice is required to be given under this Note, unless otherwise provided herein, such notice shall be
given in accordance with the section of the Purchase Agreement titled “Notices.”
16.
Severability. If any part of this Note is construed to be in violation of any law, such part shall be modified to achieve
the objective of Borrower and Lender to the fullest extent permitted by law and the balance of this Note shall remain in full force
and effect.
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of page intentionally left blank; signature page follows]
IN
WITNESS WHEREOF, Borrower has caused this Note to be duly executed as of the Effective Date.
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BORROWER: |
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By: |
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Name: |
Min
Shu |
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Title: |
Director |
ACKNOWLEDGED,
ACCEPTED AND AGREED:
LENDER:
[Signature
Page to Convertible Promissory Note]
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