EXHIBIT 4.1
THIS WARRANT AND THE WARRANT STOCK ISSUABLE UPON EXERCISE HEREUNDER, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR ANY
STATE SECURITIES LAWS, AND MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR UNLESS SUCH TRANSFER IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
WARRANT TO PURCHASE COMMON STOCK
Date of Issuance: October 18, 2024
Number of Shares: 6,000,000
THIS CERTIFIES THAT, for value received,
Blue Planet New Energy Technology Limited or its registered assigns (the “Holder”), is entitled, subject to the terms and conditions of this Warrant, at any time or from time
to time before the Expiration Time (as defined below) to purchase from Allied Gaming & Entertainment, Inc., a Delaware corporation (the “Company”), up to 6,000,000 shares of Warrant Stock (as defined below) at a price per share of $1.80 per share (the “Exercise
Price”).
1. CERTAIN DEFINITIONS. As used in this Warrant the following terms shall have the following respective
meanings:
“Affiliate” shall mean 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.
“Commission” shall mean the U.S. Securities and
Exchange Commission.
“Common Stock Equivalents” shall mean any securities
of the Company or its wholly owned subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, 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, Common Stock.
“Exchange Act” shall mean the Securities Exchange Act
of 1934, as amended.
“Expiration Time” shall mean the five (5) years from
the date of issuance of this Warrant.
“Person” shall mean any individual, sole
proprietorship, partnership, limited liability company, corporation, joint venture, trust, incorporated organization or government or department or agency thereof.
“Principal Market” shall mean the Nasdaq Capital
Market.
“Securities Act” shall mean the Securities Act of
1933, as amended.
“Warrant” shall include this Warrant and any warrant
delivered in substitution or exchange for this Warrant as provided herein.
“Warrant Stock” shall mean the common stock, $0.0001
par value per share, of the Company, provided, however, that the Warrant Stock shall mean, in the case of a reclassification, recapitalization or other similar capital reorganization, the securities of the Company issued in exchange for, in lieu of
or otherwise for the outstanding Common Stock upon such reclassification, recapitalization or reorganization.
2. EXERCISE OF WARRANT
2.1. Number of Shares; Exercise. The Holder shall have the right to exercise the Warrant, subject to the terms and
conditions of this Warrant, with respect to up to 6,000,000 shares of Warrant Stock as of the date of issuance of this Warrant. The Company will take all actions reasonably requested by the Holder to effectuate the exercise pursuant to this Section 2.1, including but not limited to the issuance of shares of Warrant Stock on a certificated or non-certificated basis and update of the Company’s stock records to
reflect the issuance of the Warrant Stock.
2.2 Exercise Mechanics; Payment. Subject to compliance with the terms and conditions of this Warrant and applicable
securities laws, this Warrant may be exercised, in whole or in part at any time or from time to time, in accordance with Section 2.1, on or before the Expiration Time by
the delivery of a notice of exercise in substantially the form attached hereto as Exhibit A
(the “Notice of Exercise”), duly executed by the Holder, at the principal executive office of the Company, and as soon as practicable after such date, surrendering:
(a) this Warrant and
(b) payment in cash (by check) or by wire transfer of an amount equal to the product obtained by multiplying the number of shares of Warrant Stock being purchased upon such exercise by the
Exercise Price.
2.3 Partial Exercise; Effective Date of Exercise; No Fractional Shares. This Warrant shall be deemed to have been
exercised immediately prior to the close of business on the date of the Company’s receipt of a Notice of Exercise and the Holder shall be treated for all purposes as the holder of record of such shares as of the close of business on such date (the
“Exercise Date”). In case of any partial exercise of this Warrant, the Company shall cancel this Warrant upon surrender hereof (or in the event that this Warrant is lost,
stolen or destroyed, upon the Company’s receipt of an indemnity agreement) and shall execute and deliver a new Warrant having the same terms as this Warrant for the balance of the shares of Warrant Stock purchasable hereunder as soon as practicable
and in any event not more than fifteen (15) days after exercise of this Warrant. Notwithstanding any provision contained in this Agreement to the contrary, the Company shall not issue fractional shares of Warrant Stock upon the exercise of
Warrants. If, by reason of any adjustment made pursuant to Section 2.6, the Holder of any Warrant would be entitled, upon the exercise of such Warrant, to receive a
fractional interest in a share of Common Stock, the Company shall, upon such exercise, round down to the nearest whole number the number of shares of Common Stock to be issued to such Holder.
2.4 Number of Shares of Warrant Stock. This Warrant shall be exercisable for up to the aggregate number of shares of
Warrant Stock set forth on the cover page of this Warrant.
2.5 Exercise Limitations.
(a) Beneficial Ownership. The Company shall not effect any exercise of this Warrant, and the Holder shall not have the
right to exercise any portion of this Warrant, pursuant to this Section 2 or otherwise, to the extent that after giving effect to such issuance after exercise as set forth
on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other Persons acting as a
group together with the Holder or any of the Holder’s Affiliates), would beneficially own in excess of the Beneficial Ownership Limitation (as
defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates shall include the number of shares of Common Stock issuable upon exercise of this Warrant with respect to
which such determination is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant beneficially owned by the Holder or any of its Affiliates,
and (ii) exercise or conversion of the unexercised or nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject to a limitation on conversion or exercise analogous to the
limitation contained herein beneficially owned by the Holder or any of its Affiliates. Except as set forth in the preceding sentence, for purposes of this Section 2.5,
beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged by the Holder that the Company is not representing to the Holder that such
calculation is in compliance with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the limitation contained in this Section 2.5 applies, the determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates) and of which portion of this Warrant is
exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder
together with any Affiliates) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination. In
addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 2.5, in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent
periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Company, or (C) a more recent written notice from the Company or the Transfer Agent setting forth the number of shares of Common
Stock outstanding. Upon the written request of the Holder, the Company shall within three (3) trading days confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding
shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates since the date as of which such number of outstanding shares of Common
Stock was reported. The “Beneficial Ownership Limitation” shall be 19.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the applicable issuance of shares of Common Stock issuable upon exercise of this
Warrant, provided that the Holder may decrease such Beneficial Ownership Limitation upon written notice to the Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms
of this Section 2.5 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein
contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant.
(b) Principal Market Regulation. The Company shall
not issue any shares of Common Stock upon the exercise of this Warrant if the issuance of such shares of Common Stock would exceed the aggregate number of shares of Common Stock which the Company may issue upon exercise or otherwise pursuant to the
terms of the Warrant without breaching the Company’s obligations under the rules or regulations of the Principal Market (the number of shares which may be issued without violating such rules and regulations, the “Exchange Cap”), except that such limitation shall not apply in the event that the Company (A) obtains the approval of its stockholders as required by the applicable rules of the Principal Market for
issuances of shares of Common Stock in excess of such amount or (B) obtains a written opinion
from outside counsel to the Company that such approval is not required, which opinion shall be reasonably satisfactory to the Holder.
2.6. Certain Adjustments. The Exercise Price and number of Warrant Shares issuable upon exercise of this Warrant are
subject to adjustment from time to time as set forth in this Section 2.6.
(a) Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend
or otherwise makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock
issued by the Company upon exercise of this Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse stock split) outstanding shares of Common Stock into a smaller
number of shares, or (iv) issues by reclassification of shares of the Common Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which the numerator shall be the number of
shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the number of shares
issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant shall remain unchanged. Any adjustment made pursuant to this Section 2.6(a) shall become effective immediately after the
record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or reclassification.
(b) Record Date. If the Company shall take a record of the holder of its Common Stock for the purpose of entitling them
(i) to receive a dividend or other distribution payable in Common Stock or (ii) to subscribe for or purpose Common Stock, then such record date shall be deemed to be the date of the issue or sale of the shares of Common Stock deemed to have been
issued or sold upon the declaration of such dividend of subscription or purpose, as the case may be.
(c) Number of Warrant Shares. Simultaneously with any adjustment to the Exercise Price pursuant to this Section 2.6, the
number of Warrant Shares that may be purchased upon exercise of this Warrant shall be increased or decreased proportionally, so that after such adjustment the aggregate Exercise Price payable hereunder for the adjusted number of Warrant Shares
shall be the same as the aggregate Exercise Price in effect immediately prior to such adjustment.
(d) Calculations. All calculations under this Section 2.6 shall be made to the nearest cent or the nearest 1/100th of a
share, as applicable. The number of shares of Common Stock outstanding at any given time shall not include treasury shares or shares owned or held by or for the account of the Company, and the disposition of any such shares shall be considered as
issue or sale of Common Stock.
(e) Notice of Adjustment. Upon the occurrence of each adjustment pursuant to this Section 2.6, the Company at its
expense will promptly compute such adjustment in accordance with the terms of this Warrant and prepare a certificate setting forth such adjustment, including a statement of the adjusted Exercise Price and adjusted number or type of Warrant Shares
or other securities issuable upon exercise of this Warrant (as applicable), describing the transactions giving rise to such adjustments and showing in detail the facts upon which adjustment is based. Upon written request, the Company will promptly
deliver a copy of each such certificate to the Holder.
3. LOSS OR MUTILATION. Upon receipt of evidence reasonably satisfactory to the Company of the loss,
theft, destruction or mutilation of this Warrant and, in the case of any such loss, theft or destruction, receipt of an indemnity agreement or, in the case of mutilation, upon surrender and cancellation of this
Warrant, the Company will execute and deliver in lieu thereof a new Warrant having the same terms as contained in the lost, stolen, destroyed or
mutilated Warrant.
4. RESERVATION OF WARRANT STOCK. The Company hereby covenants that at all times there shall be reserved
for issuance and delivery upon exercise of this Warrant such number of shares of Warrant Stock or other shares of capital stock of the Company as are from time to time issuable upon exercise of this Warrant and, from time to time, will take all
steps necessary to amend its Certificate of Incorporation to authorize sufficient number of shares of Warrant Stock issuable upon exercise of this Warrant.
5. TRANSFER AND EXCHANGE. The Company shall register the Holder in whose name this Warrant is registered
upon the books and records maintained by the Company. Subject to compliance with all applicable securities laws, and only with the written consent of the Company, this Warrant and all rights hereunder may be transferred by the Holder, in whole or
in part at any time and from time to time, on the books and records of the Company maintained for such purpose at the principal executive office of the Company, in person, or by duly authorized attorney, upon surrender of this Warrant together with
a Form of Assignment in substantially the form attached hereto as Exhibit B duly executed by the Holder and upon payment of any necessary transfer tax or other
governmental charge imposed upon such transfer.
6. RESTRICTIONS ON TRANSFER. By acceptance of this Warrant, the Holder hereby agrees that, absent an
effective registration statement filed under applicable securities laws covering the disposition or sale of this Warrant or the Warrant Stock issued or issuable upon exercise hereof, as the case may be, and registration or qualification under
applicable securities laws, the Holder will not sell, offer for sale, pledge, hypothecate or otherwise transfer this Warrant or any shares of Warrant Stock, as the case may be, unless such transfer is exempt from the registration requirements of
applicable securities laws. The Company may require an opinion of counsel, in form and substance reasonably satisfactory to the Company, to the effect that such registration is not required in connection with such transfer.
7. COMPLIANCE WITH SECURITIES LAWS. By acceptance of this Warrant, the Holder hereby represents, warrants
and covenants that any securities purchased upon exercise of this Warrant or acquired upon conversion thereof shall be acquired for investment only and not with a view to, or for sale in connection with, any distribution thereof; that the Holder
has had such opportunity as the Holder has deemed adequate to obtain from representatives of the Company such information as is necessary to permit the Holder to evaluate the merits and risks of its investment in the Company; that the Holder is
able to bear the economic risk of holding such shares of Warrant Stock for an indefinite period; that the Holder understands that shares Warrant Stock will not be registered under the Securities Act (unless otherwise required pursuant to exercise
by the Holder of registration rights) and will be “restricted securities” within the meaning of Rule 144 promulgated under the Securities Act and that the exemption from registration under Rule 144 will not be available unless adequate information
concerning the Company is then available to the public, and other terms and conditions of Rule 144 are complied with; and that all stock certificates representing shares of Warrant Stock may have affixed thereto a legend substantially in the
following form:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“ACT”) OR ANY STATE SECURITIES LAWS, AND MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR UNLESS SUCH TRANSFER IS EXEMPT FROM THE REGISTRATION REQUIREMENTS
OF THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
8. NO RIGHTS OR LIABILITIES AS STOCKHOLDERS. Prior to exercise, the Holder solely in such Holder’s
capacity as a holder of this Warrant shall not be entitled to any right to vote, give or withhold consent to any corporate action, receive notice of meetings or be deemed a holder of the Warrant Stock issuable upon exercise of this Warrant. In
addition, nothing contained in this Warrant shall be construed as imposing any liabilities on the Holder to purchase any securities (upon exercise of this Warrant or otherwise) or as a stockholder of the Company, whether such liabilities are
asserted by the Company or by its creditors.
9. NOTICES. Except as may be otherwise provided herein, all notices, including but not limited to Notices
of Exercise, requests, waivers and other communications made pursuant to this Warrant shall be in writing and shall be deemed to have been received (a) when hand delivered to the other party; (b) when sent by facsimile to the party’s attention at
the email address or facsimile number set forth below, provided that the sending party has confirmation of transmission; (c) two (2) days after deposit in the U.S. mail, first class, postage prepaid and certified or registered with return receipt
requested and addressed to the other party as set forth below; or (d) the next business day after deposit with a national overnight delivery service, postage prepaid, addressed to the parties as set forth below with next-business-day delivery
guaranteed, provided that the sending party receives a confirmation of delivery from the delivery service provider. A party may change the addresses given below, or designate additional addresses, for purposes of this section by giving the other
party written notice of the new address in the manner set forth above.
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To the Holder:
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To the Company:
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Room 1216, 12/F, Infinitus Plaza, 199 Des Voeux Road, Sheung Wan HK
Attn: Carlos Oyarbide
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745 Fifth Avenue, Suite 500
New York, NY 10151
Attn: Roy Anderson
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10. TITLE AND HEADINGS. The titles, captions and headings in this Warrant are included for ease of
reference only and will be disregarded in interpreting or construing this Warrant. Unless otherwise specifically stated, all references herein to “sections” and “exhibits” will mean “section and exhibits” to this Warrant.
11. LAW GOVERNING. This Warrant shall be governed in all respects by the laws of the State of Delaware,
without regard to principles of conflict of laws.
12. SEVERABILITY. In the event that any one or more of the provisions contained in this Warrant shall for
any reason be held to be invalid, illegal or unenforceable in any respect, then to the maximum extent permitted by law, such invalidity, illegality or unenforceability shall not affect any other provision of this Warrant.
13. AMENDMENT. This Warrant may not be amended, terminated or waived unless mutually agreed by the Company
and the Holder in a written amendment to this Warrant executed by a duly authorized officer of the Company and the Holder. The provisions of this Warrant and any amendment, termination or waiver effected in accordance with this Section 13 shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto.
14. ENTIRE AGREEMENT. This Warrant constitutes the full and entire understanding and agreement between the
parties with regard to the subject matter hereof and supersedes all prior and contemporaneous agreements, representations, and undertakings of the parties, whether oral or written, with respect to such subject matter.
15. SATURDAYS, SUNDAYS AND HOLIDAYS. If the Expiration Time falls on a Saturday, Sunday or legal holiday,
the Expiration Time shall automatically be extended until 5:00 p.m. Pacific Daylight Time on the next business day.
(Remainder of page intentionally left blank.)
IN WITNESS WHEREOF, the Company has caused
this Warrant to be executed by its duly authorized officer as of the Date of Issuance set forth on the cover page of this Warrant.
COMPANY:
ALLIED GAMING & ENTERTAINMENT, INC.
Signed: /s/ Yinghua Chen
Print Name: Yinghua Chen
Title: Chief Executive Officer
Agreed to and Accepted By:
HOLDER:
BLUE PLANET NEW ENERGY TECHNOLOGY LIMITED
Signed: /s/ Carlos Oyarbide
Print Name: Carlos Oyarbide
Title: Director
Exhibit A
NOTICE OF EXERCISE
(To be executed upon exercise of Warrant)
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To: Allied Gaming & Entertainment, Inc.
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Date:_____________________
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The undersigned hereby irrevocably elects to exercise the right of purchase represented by the Warrant for, and to purchase
thereunder, the securities of Allied Gaming & Entertainment, Inc., as provided for therein, and tenders herewith payment of the exercise price in full in the form of cash or a
certified or official bank check in same-day funds in the amount of $____________ for ___________ shares of Warrant Stock.
Please issue a certificate or certificates for such securities in the name of:
Name:
Address: