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As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 4/16/24 Captivision Inc. 6-K 4/15/24 3:392K Donnelley … Solutions/FA |
Document/Exhibit Description Pages Size
1: 6-K Current, Quarterly or Annual Report by a Foreign HTML 27K
Issuer
2: EX-4.1 Instrument Defining the Rights of Security Holders HTML 37K
3: EX-10.1 Material Contract HTML 327K
| EX-4.1 |
Exhibit 4.1
THIS CONVERTIBLE PROMISSORY NOTE (“NOTE”) AND THE SECURITIES ISSUABLE UPON THE CONVERSION HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). THIS NOTE HAS BEEN ACQUIRED FOR INVESTMENT ONLY AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF REGISTRATION OF THE RESALE THEREOF UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY IN FORM, SCOPE AND SUBSTANCE TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
FORM OF CONVERTIBLE PROMISSORY NOTE
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Principal Amount: $[•]
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Captivision Inc., a Cayman Islands exempted company (the “Company”), promises to pay to the order of [SUBSCRIBER’S NAME], or its registered assigns or successors in interest (the “Subscriber”), the principal sum of $[•] in lawful money of the United States of America, on the terms and conditions described below. All payments on this Note shall be made by check or wire transfer of immediately available funds or as otherwise determined by the Company to such account as the Subscriber may from time to time designate by written notice in accordance with the provisions of this Note.
This Convertible Promissory Note (this “Note”) is issued by the Company pursuant to that certain Subscription Agreement dated the date set forth above, entered into by and between the Company and the Subscriber (the “Subscription Agreement”), and capitalized terms not defined herein will have the meanings set forth in the Subscription Agreement.
1. Principal. Unless converted into Shares in accordance with Section 3 herein, the outstanding principal shall be due and payable in a single balloon payment by the Company to the Subscriber on April ____, 2025 (the “Maturity Date”).
2. Interest. No interest shall accrue on the unpaid principal balance of this Note.
3. Conversion of the Notes. This Note and any amounts due hereunder shall automatically convert into a number of Shares, equal to the principal amount of this Note divided by the Conversion Price (rounded up to the nearest whole share), upon the effectiveness of the securities registration statement (“SRS”) submitted to the Financial Supervisory Services of Korea in accordance with applicable Korean law in connection with the issuance of the Shares. The “Conversion Price” shall be $5.03.
4. Amendments and Waivers; Resolutions of Dispute; Notice. The amendment or waiver of any term of this Note, the resolution of any controversy or claim arising out of or relating to this Note and the provision of notice among the Company and the Subscriber will be governed by the terms of the Subscription Agreement.
5. Events of Default. Each of the following shall constitute an event of default (“Event of Default”):
(a) Failure to Make Required Payments. Failure by Company to pay the principal amount due pursuant to this Note within five (5) business days of the Maturity Date.
(b) Voluntary Bankruptcy, Etc. The commencement by the Company of a voluntary case under any applicable bankruptcy, insolvency, reorganization, rehabilitation or other similar law, or the consent by it to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of the Company or for any substantial part of its property, or the making by it of any assignment for the benefit of creditors, or the failure of the Company generally to pay its debts as such debts become due, or the taking of corporate action by the Company in furtherance of any of the foregoing.
(c) Involuntary Bankruptcy, Etc. The entry of a decree or order for relief by a court having jurisdiction in the premises in respect of the Company in an involuntary case under any applicable bankruptcy, insolvency or other similar law, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company or for any substantial part of its property, or ordering the winding-up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days.
6. Remedies.
(a) Upon the occurrence of an Event of Default specified in Section 5(a) hereof, Subscriber may, by written notice to the Company, declare this Note to be due immediately and payable, whereupon the unpaid principal of this Note shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, anything contained herein or in the documents evidencing the same to the contrary notwithstanding.
(b) Upon the occurrence of an Event of Default specified in Sections 5(b) and 5(c), the unpaid principal balance of this Note, and all other sums payable with regard to this Note, shall automatically and immediately become due and payable, in all cases without any action on the part of Subscriber.
7. Unconditional Liability. The Company hereby waives all notices in connection with the delivery, acceptance, performance, default, or enforcement of the payment of this Note, and agrees that its liability shall be unconditional, without regard to the liability of any other party, and shall not be affected in any manner by any indulgence, extension of time, renewal, waiver or modification granted or consented to by Subscriber, and consents to any and all extensions of time, renewals, waivers, or modifications that may be granted by Subscriber with respect to the payment or other provisions of this Note, and agrees that additional makers, endorsers, guarantors, or sureties may become parties hereto without notice to Subscriber or affecting the Company’s liability hereunder.
8. Notices. All notices, statements or other documents which are required or contemplated by this Note shall be: (i) in writing and delivered personally or sent by first class registered or certified mail, overnight courier service or facsimile or electronic transmission to the address designated in writing, (ii) by facsimile to the number most recently provided to such party or such other address or fax number as may be designated in writing by such party or (iii) by electronic mail, to the electronic mail address most recently provided to such party or such other electronic mail address as may be designated in writing by such party. Any notice or other communication so transmitted shall be deemed to have been given on the day of delivery, if delivered personally, on the business day following receipt of written confirmation, if sent by facsimile or electronic transmission, one (1) business day after delivery to an overnight courier service or five (5) days after mailing if sent by mail.
9. Construction. THIS NOTE SHALL BE GOVERNED AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS THEREOF.
10. Severability. Any provision contained in this Note which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
11. Amendment; Waiver. Any amendment hereto or waiver of any provision hereof may be made with, and only with, the written consent of the Company and the Subscriber.
12. Assignment. No assignment or transfer of this Note or any rights or obligations hereunder may be made by any party hereto (by operation of law or otherwise) without the prior written consent of the other party hereto and any attempted assignment without the required consent shall be void.
[Signature page follows]
IN WITNESS WHEREOF, the Company, intending to be legally bound hereby, has caused this Note to be duly executed by the undersigned as of the day and year first above written.
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Captivision, Inc. a Cayman Islands exempted company |
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By: |
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Name: |
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Anthony R. Page |
Title: |
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Chief Financial Officer |
[Signature Page to Convertible Promissory Note]
As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 5/08/24 Captivision Inc. F-1/A 4:4.8M Donnelley … Solutions/FA 4/30/24 Captivision Inc. 20-F 12/31/23 9:6.4M Donnelley … Solutions/FA |