KUKE Kuke Music Holding Limited

 

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 January 2024

 

Commission File Number: 001-39859

 

Kuke Music Holding Limited

 

Room 303
Beijing Broadcasting Tower,

No. Jia 14, Jianwaidajie
Chaoyang District, Beijing
People’s Republic of China
+86-010-6561 0392

(Address of principal executive office)

 

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 ☐

 

 

 

Securities Purchase Agreement

 

On January 25, 2024, Kuke Music Holding Limited (the “Company”) entered into a Securities Purchase Agreement (the “Purchase Agreement”) with certain investors (the “Purchasers”). Pursuant to the Purchase Agreement, the Company agreed to issue and sell to the Purchasers an aggregate of 5,000,000 American Depositary Shares (“ADSs”), representing 5,000,000 Class A ordinary shares, at a purchase price of $1.00 per ADS, in a registered direct offering (the “Offering”). The gross proceeds to the Company from the Offering are expected to be approximately $5 million, before deducting estimated offering expenses. The Offering is expected to close on or about January 26, 2024, subject to the satisfaction of customary closing conditions.

 

The Offering was made pursuant to the Company’s effective shelf registration statement on Form F-3 (File No. 333-267655), which was declared effective by the U.S. Securities and Exchange Commission on March 6, 2023.

 

In the Purchase Agreement, the Company makes customary representations, warranties and covenants. The foregoing is only a brief description of the terms of the Purchase Agreement, does not purport to be a complete description of the rights and obligations of the parties thereunder, and is qualified in its entirety by reference to the form of purchase agreement that is filed as Exhibit 4.1 to this Form 6-K and incorporated by reference herein. The legal opinion of Conyers Dill & Pearman relating to the ordinary shares is filed as Exhibit 5.1 to this Form 6-K and incorporated by reference herein.

 

The information contained in this Form 6-K, including Exhibits 4.1 and 5.1 hereto, is hereby incorporated by reference into the Company’s Registration Statement on Form F-3 (Registration No. 333-267655) and the Company’s Registration Statement on Form S-8 (Registration No. 333-256982).

 

Cautionary Note Regarding Forward-Looking Statements

 

Statements in this report about future expectations, plans and prospects, as well as any other statements regarding matters that are not historical facts, constitute “forward-looking statements” within the meaning of The Private Securities Litigation Reform Act of 1995. These statements include, but are not limited to, statements relating to the closing of the Offering. The words “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “intend,” “may,” “plan,” “potential,” “predict,” “project,” “should,” “target,” “will,” “would” and similar expressions are intended to identify forward-looking statements, although not all forward-looking statements contain these identifying words. Actual results may differ materially from those indicated by such forward-looking statements as a result of various important factors including: uncertainties related to market conditions and the completion of the Offering (which may cause the Offering to not be completed on the anticipated terms or at all), the actual amount of the Company’s expenses, and other factors discussed in the “Risk Factors” section of the Company’s Annual Report on Form 20-F for the year ended December 31, 2022 filed with the SEC on March 30, 2023, as well as in the Company’s other filings with the SEC. Should one or more of these risks or uncertainties materialize, or should underlying assumptions prove incorrect, actual results may vary materially from those described in this report as anticipated, believed, estimated or expected. The Company specifically disclaims any obligation to update any forward-looking statement, whether as a result of new information, future events or otherwise.

 

 

EXHIBIT LIST

 

Exhibit		Description
4.1		Form of Securities Purchase Agreement
5.1		Opinion of Conyers Dill & Pearman
23.1		Consent of Conyers Dill & Pearman (included in Exhibit 5.1)

 

 

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.

 

	Kuke Music Holding Limited
Date: January 26, 2024	By:	/s/ He Yu
		Name	He Yu
		Title:	Chief Executive Officer

 

 

 

3

 

Exhibit 4.1

 

SECURITIES PURCHASE AGREEMENT

 

This Securities Purchase Agreement (this “Agreement”) is dated as of January 25, 2024 between Kuke Music Holding Limited, a Cayman Islands exempted company (the “Company”), and each of the purchasers identified on Schedule A attached hereto (including such purchasers’ successors and assigns, each a “Purchaser” and, collectively, the “Purchasers”). The terms “party” and “parties” shall refer to each of the Company and each Purchaser, as the context requires.

 

Whereas, subject to the terms and conditions set forth in this Agreement and pursuant to an effective registration statement under the U.S. Securities Act of 1933, as amended (the “Securities Act”), 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:

 

1. Sale and Purchase.

 

1.1 Sale and Purchase of ADSs. Subject to the terms and conditions set forth herein, the Company hereby agrees to sell, and each Purchaser, severally and not jointly, agrees to purchase, that number of American Depositary Shares of the Company (“ADSs”), each representing one (1) Class A ordinary share, par value US$0.001 per share, of the Company (“Ordinary Shares”), at a purchase price of US$1.00 per ADS. The number of ADSs to be purchased by each Purchaser and the corresponding purchase price owed by such Purchaser (the “Purchase Price” and, with the Purchase Price owed by all Purchasers collectively, the “Aggregate Purchase Price”) are as specified on the Schedule of Purchasers attached hereto as Schedule A.

 

1.2 Closing. The consummation of the sale and purchase of the ADSs hereunder (the “Closing”, and the date of the Closing, the “Closing Date”) shall take place on January 26, 2024 and be held remotely via electronic exchange of documents, or at such other location and date as may be agreed upon in writing by the Company and the Purchasers. The Closing shall take place on the terms and subject to the satisfaction or, to the extent permissible, waiver by the party entitled to the benefit of the conditions set forth in Section 1.4 (other than conditions that by their nature are to be satisfied at that Closing, but subject to the satisfaction or, to the extent permissible, waiver of those conditions).

 

1.3 Payment for and Issuance of ADSs. On the Closing Date, upon the terms and subject to the conditions set forth herein, the Company agrees to sell, and each Purchaser agrees to purchase, the number of ADSs as specified on the Schedule of Purchasers attached hereto as Schedule A. The Company shall deposit the Ordinary Shares and instruct Deutsche Bank Trust Company Americas (the “Depositary”) to deliver the number of ADSs as specified on the Schedule of Purchasers attached hereto as Schedule A to the Purchasers.

 

Each of the Company and each Purchaser shall use commercially reasonable efforts to provide the Depositary with all reasonably requested documentation, assistance, and support in connection with Closing. The Company shall designate the bank account to be credited with the Purchase Price in writing to the Purchasers at least two (2) business days prior to the Closing Date. All wire transfer fees shall be borne by the Purchaser, such that each wire transfer received by the Company is for the full and complete satisfaction of the respective Purchase Price identified on Schedule A hereto. The ADSs shall not bear any restrictive or other legends (electronic or otherwise).

 

1.4 Closing Conditions.

 

(a) The obligations of the Company hereunder in connection with the Closing are subject to the satisfaction or waiver of the following conditions:

 

(i) the accuracy of the representations and warranties of each Purchaser contained herein (unless as of a specific date therein in which case they shall be accurate as of such date) in all material respects on the Closing Date;

 

 

(ii) all obligations, covenants and agreements of each Purchaser required to be performed on or prior to the Closing Date shall have been performed;

 

(iii) the delivery by each Purchaser of this Agreement duly executed by the Purchaser; and

 

(iv) the receipt by the Company of the Aggregate Purchase Price.

 

(b) The obligations of each Purchaser hereunder in connection with the Closing are subject to the satisfaction or waiver (solely as to such Purchaser) of the following conditions:

 

(i) the accuracy of the representations and warranties of the Company contained herein (unless as of a specific date therein) in all material respects when made and on the Closing Date;

 

(ii) all obligations, covenants and agreements of the Company required to be performed on or prior to the Closing Date shall have been performed;

 

(iii) the delivery by the Company of this Agreement duly executed by the Company;

 

(iv) a copy of the irrevocable instructions to the Depositary dated the Closing Date instructing the Depositary to deliver to each Purchaser via DRS to the broker-dealer account or accounts specified on Schedule A the number of ADSs as set forth on Schedule A;

 

(v) the ADSs shall not have been suspended by the U.S. Securities and Exchange Commission (the “SEC”) or the New York Stock Exchange (“NYSE”) or from trading on NYSE, and no such suspension by the SEC or NYSE has been threatened;

 

(vi) the Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, required as a precondition for the sale of the ADSs;

 

(vii) no statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by this Agreement;

 

(viii) since the date of execution of this Agreement, no event or series of events shall have occurred that reasonably would have or result in a Material Adverse Effect (as defined below);

 

(ix) (A) the Shelf Registration Statement (as defined below) shall remain effective at all times up to and including the Closing Date and the issuance of the ADSs to the Purchasers may be made thereunder; (B) neither the Company nor any of the Purchasers shall have received notice that the SEC has issued or intends to issue a stop order with respect to the Shelf Registration Statement or that the SEC otherwise has suspended or withdrawn the effectiveness of the Shelf Registration Statement either, temporarily or permanently, or intends or has threatened to do so; and (C) no other suspension of the use or withdrawal of the effectiveness of the Shelf Registration Statement or Prospectus (as defined below) shall exist; and

 

(x) the Company shall have delivered to Purchasers the Prospectus and Prospectus Supplement (as defined below), which may be delivered in accordance with Rule 172 under the Securities Act.

 

 

2. Representations and Warranties of the Company. Except as set forth in the base prospectus that forms a part of the Shelf Registration Statement (the “Prospectus”), the SEC Documents (as defined below), or the supplement to the Prospectus in relation to the sale and purchase of the ADSs hereunder complying with Rule 424(b) of the Securities Act (the “Prospectus Supplement”), including the Exchange Act (as defined below) filings incorporated by reference therein, the Company hereby makes the following representations and warranties to each 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 this Agreement and any other documents or agreements executed in connection with the transactions contemplated hereunder (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 ADSs, 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 each 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 ADSs; Registration. The ADSs 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. Upon issuance in accordance with the terms of this Agreement, the ADSs will be freely tradable on NYSE without restriction. The Company has prepared and filed with the SEC a Registration Statement on Form F-3 (File No. 333-267655) (the “Shelf Registration Statement”) in conformity with the requirements of the Securities Act which registers the sale of the Ordinary Shares represented by the ADSs, which was declared effective by the SEC on March 6, 2023, including the Prospectus, and such amendments and supplements thereto as may have been required to the date of this Agreement. The Company and the Depositary have prepared and filed with the SEC a registration statement relating to ADSs on Form F-6 (File No. 333-251918) for registration under the Securities Act (the “ADS Registration Statement”). The Shelf Registration Statement and ADS Registration Statement are effective under the Securities Act and no stop order preventing or suspending the effectiveness of the Shelf Registration Statement or suspending or preventing the use of the Prospectus has been issued by the SEC and no proceedings for that purpose have been instituted or, to the knowledge of the Company, are threatened by the SEC. The Company was at the time of the filing of the Shelf 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. At the time the Shelf Registration Statement and any amendments thereto became effective, at the date of this Agreement and at the Closing Date, the Shelf 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 Prospectus Supplement (and any amendments or supplements thereto), at the time the Prospectus, Prospectus Supplement 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 any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.

 

(d) Capitalization. The authorized share capital of the Company is US$50,000 divided into 50,000,000 shares of a par value of US$0.001 each, comprising of 41,718,902 Class A ordinary shares and 8,281,098 Class B ordinary shares. The Company has not issued any capital stock since its most recently filed periodic report under the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”). All of the Company’s issued and outstanding ordinary shares are fully paid.

 

 

(e) No Conflicts. The execution, delivery and performance by the Company of the Transaction Documents, including the issuance of the ADSs, will not (i) result in a violation of the Second Amended and Restated Memorandum and Articles of Association of the Company in effect as of the date of this Agreement, (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 or 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: (i) the filing with the SEC of the Prospectus Supplement, and (ii) such other required filing or notification under applicable securities laws and/or listing rules of NYSE regarding the issuance of the securities.

 

(g) NYSE Listing. The ADSs are registered pursuant to Section 12(b) of the Exchange Act and the ADSs are listed on NYSE. The issuance and sale of the ADSs under this Agreement and the transactions contemplated hereby do not contravene the rules and regulations of NYSE.

 

(h) SEC Documents; Financial Statements. Since the date of the Company’s most recent audited or reviewed financial statements contained in the Company’s Annual Report on Form 20-F for the year ended December 31, 2022 (“Form 20-F”), the Company has timely filed all reports, schedules, forms, statements and other documents required to be filed by it with the SEC pursuant to the reporting requirements of the Exchange Act (all of the foregoing filed prior to the date hereof and all exhibits included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein being referred to herein as the “SEC Documents”). As of their respective dates, the SEC Documents complied in all material respects with the requirements of the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with the SEC, 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. As of their respective dates, the financial statements of the Company included in the SEC Documents complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto as in effect as of the time of filing. Such financial statements have been prepared in accordance with International Financial Reporting Standard (the “IFRS”) as issued by the International Accounting Standards Board, consistently applied, during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments which will not be material, either individually or in the aggregate).

 

(i) Absence of Certain Changes. Since the date of the Company’s most recent audited or reviewed financial statements contained in the Form 20-F, except as disclosed in subsequent SEC Documents filed prior to the date hereof, there has been no event, circumstance, development, change or effect that, individually or in the aggregate, has or would reasonably be expected to have a material adverse effect on the business, assets, liabilities, properties, operations (including results thereof), condition (financial or otherwise) or prospects of the Company or any of its subsidiaries, taken as a whole (a “Material Adverse Effect”) provided, that a Material Adverse Effect shall not include any effect or impact arising out of or attributable to (a) conditions or effects that generally affect the industry in which the Company operates (including legal and regulatory changes), (b) general economic conditions, (c) effects resulting from changes affecting equity or debt market conditions (including in each of clauses (a), (b) and (c) above, any effects or conditions resulting from an outbreak or escalation of hostilities, acts of terrorism, political instability or other national or international calamity, crisis or emergency, or any governmental or other response to any of the foregoing, in each case whether or not involving the United States or any other country), (d) acts of God (including earthquakes, storms, fires, floods and natural catastrophes), (e) effects arising from changes or proposed changes in law or IFRS, (f) the failure to meet any projections or forecasts, (g) acts or omissions constituting breaches of Purchasers’ obligations under this Agreement, and/or (h) changes in the Company’s stock price; provided, in respect of the events described in foregoing clauses (a), (b), (c), (d) and (e), that effects or impacts related thereto do not affect the Company or any of its subsidiaries, taken as a whole, in a materially disproportionate manner relative to other participants in the same industry as them.

 

 

(j) 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 each Purchaser in accordance with the terms thereof.

 

3. Representations and Warranties of Each Purchaser. Each Purchaser hereby represents and warrants, severally and not jointly, 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. Each 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 each 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 such Purchaser. Each Transaction Document to which such Purchaser is a party has been duly executed by such Purchaser, and when delivered by such Purchaser in accordance with the terms hereof, and, assuming due authorization, execution and delivery by the Company and each other party thereto, will constitute a legal, valid and 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. Each Purchaser is acquiring the ADSs 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 ADSs (this representation and warranty not limiting such Purchasers’ rights to sell the ADSs pursuant to the Shelf Registration Statement or otherwise in compliance with applicable federal and state securities laws). Each Purchaser is acquiring the ADSs hereunder in the ordinary course of its business.

 

(c) Experience of the Purchaser. Each 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 ADSs, and has so evaluated the merits and risks of such investment. Each Purchaser is able to bear the economic risk of an investment in the ADSs and, at the present time, is able to afford a complete loss of such investment.

 

(d) Access to Information. Each 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 Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, including the exhibits thereto and documents incorporated by reference therein, together with the Prospectus and the Prospectus Supplement and, subject to the Company’s need to comply with Regulation FD, 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 ADSs and the merits and risks of investing in the ADSs; (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.

 

(e) General Solicitation. No Purchaser is purchasing the ADSs as a result of any advertisement, article, notice or other communication regarding the ADSs 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.

 

 

(f) Adequacy of Funds. Each Purchaser has, and on the Closing Date each Purchaser shall have, adequate, unencumbered, freely-transferable cash held in United States dollars to pay its respective Purchase Price pursuant to Section 1.3.

 

4. Intentionally Omitted

 

5. Confidentiality

 

(a) Each Purchaser, severally and not jointly, agrees 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 6.16, each Purchaser will maintain the confidentiality of the existence and terms of this transaction (the “Confidential Information”), provided, however, that each party and its respective representatives may disclose such information to their respective affiliates, permitted assignees, financing sources, partners, shareholders, senior management, employees, professional advisors, agents in each case only where such persons are bound by appropriate non-disclosure obligations and have agreed to maintain the confidentiality of such information. Notwithstanding the foregoing, and notwithstanding anything contained in this Agreement to the contrary, (i) the Company expressly acknowledges that 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 publicly announced as described in Section 6.16, (ii) each Purchaser shall not be in violation of this Section 5 if such Purchaser is required to disclose Confidential Information in response to a valid order by a court or other governmental body or regulatory body, provided that (A) to the extent practicable and unless prohibited by law, such party provides the Company with prior written notice of such disclosure, (B) such Purchaser reasonably cooperates with the Company in Company’s seeking of confidential treatment, a protective order or other appropriate remedy regarding the Confidential Information and (C) such Purchaser discloses only that portion of such Confidential Information that they are required to disclose, all at Company’s written direction an entirely at Company’s expense, and (iii) each Purchaser’s disclosure obligations under this Agreement with respect to the Confidential Information shall not apply to the extent such information was permitted to be disclosed by written authorization of the Company.

 

6. Miscellaneous.

 

6.1 Further Assurances: Each Purchaser and the Company shall use its reasonable best efforts to fulfill or obtain the fulfillment of the conditions precedent to the consummation of the transactions contemplated by this Agreement on a timely basis, including ensuring the Company’s receipt of the Aggregate Purchase Price, the execution and delivery of any documents, certificates, instruments or other papers that are reasonably required for the consummation of such transactions, and will cooperate and consult with the other and use its reasonable best efforts to prepare and file all necessary documentation, to effect all necessary applications, notices, petitions, filings and other documents, and to obtain all necessary permits of, or any exemption by, all governmental authorities, necessary or advisable to consummate the transactions contemplated by this Agreement. During the period from the date of this Agreement through the Closing Date, except as required by applicable law or with the prior written consent of the other party, each of the Purchasers and the Company will use reasonable best effort to avoid taking any action which, or failing to take any action the failure of which to be taken, would, or would reasonably be expected to (a) result in any of the representations and warranties set forth herein on the part of the party taking or failing to take such action being or becoming untrue in any respect, (b) result in any conditions set forth in herein not to be satisfied, or (c) result in any material violation of any provision of this Agreement. After the Closing Date, each party shall use commercially reasonable efforts to provide such information, and to execute and deliver such further certificates, agreements and other documents and take such other actions as the other party may reasonably request to consummate or implement such transactions or to evidence such events or matters, provided that the Company agrees to keep any such information provided by any Purchaser confidential, except as required by the federal securities laws, rules or regulations, or as requested by the staff of the SEC or other regulatory authority, or to the extent such disclosure is required by other laws, rules or regulations, or any order of a governmental authority.

 

6.2 Termination. This Agreement may be terminated by the Company or 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 within ten (10) calendar days from the date hereof, provided, however, that the right to terminate this Agreement pursuant to this Section 6.2 shall not be available to a party if such party’s breach of a representation, warranty, covenant or agreement under this Agreement has been the cause of the failure of the Closing to occur on or before such date.

 

 

6.3 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 fees and expenses of the Depositary and its agent, as applicable, in connection with the issuance of the ADSs, including without limitation, any fee charged in connection with the settlement of the ADSs.

 

6.4 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.

 

6.5 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 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 at or prior to 5:00 p.m. (New York City time) on a business day (provided no rejection notice is received), (b) the next business 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 business day or later than 5:30 p.m. (New York City time) on any business day, (c) the second (2nd) business 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.

 

6.6 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 each Purchaser or, in the case of a waiver, by the party against whom enforcement of any such waived provision is sought.

 

6.7 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.

 

6.8 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). Each Purchaser may assign any or all of its rights under this Agreement to any person to whom such Purchaser assigns or transfers any ADSs, provided that such transferee agrees in writing to be bound, with respect to the transferred ADSs, by the provisions of the Transaction Documents that apply to each Purchaser.

 

6.9 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.

 

6.10 Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to principles of conflict of laws thereunder.

 

6.11 Dispute Resolution. Any dispute, controversy, difference or claim arising out of or relating to 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 shall be referred to and finally resolved by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), in effect on the date of this Agreement. The seat of arbitration shall be New York City, New York. The number of arbitrators shall be three. The arbitrators shall be neutral and shall be appointed in accordance with the Commercial Arbitration Rules of the AAA. The arbitration proceedings shall be conducted in English. Except as may be required by law, neither a party nor the arbitrators may disclose the existence, content, or results of any arbitration without the prior written consent of the Company and the relevant Purchaser, unless to protect or pursue a legal right. If more than one arbitration is commenced under this Agreement and any party contends that two or more arbitrations are substantially related and that the issues should be heard in one proceeding, the arbitrators selected in the first-filed proceeding shall determine whether, in the interests of justice and efficiency, the proceedings should be consolidated before those arbitrators.

 

 

6.12 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 email 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 was an original thereof.

 

6.13 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.

 

6.14 Remedies. The parties hereto acknowledge and agree that irreparable harm would occur for which money damages would not be an adequate remedy if any provision of this Agreement was not performed in accordance with its specific terms or was otherwise breached. It is accordingly agreed that, in addition to any other remedies at law or in equity, each party hereto shall be entitled to injunctions to prevent breaches or threatened breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement without posting any bond or other undertaking.

 

6.15 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, ADSs 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 ADSs and Ordinary Shares that occur after the date of this Agreement.

 

6.16 Disclosure of Transactions and Other Material Information. The Company shall, on or before 8:30 a.m., New York time, on the first (1st) business day after the date of this Agreement, issue a press release (the “Press Release”) disclosing all the material terms of the transactions contemplated hereby. Subject to the foregoing, and except for the filing of a Report of Foreign Private Issuer on Form 6-K and the filing of the Prospectus Supplement, none of the Company, its subsidiaries, or any Purchaser shall issue any press releases or any other public statements with respect to the transactions contemplated hereby without the consent of the other parties hereto; provided, however, that the Company may make public disclosure with respect to such transactions as is required by applicable law and regulations. Without the prior written consent of any applicable Purchaser, the Company shall not (and shall cause each of its subsidiaries and affiliates to not) disclose the name of such Purchaser in any filing, announcement, release or otherwise, except (a) as required by federal securities law in connection with the filing of final Transaction Documents (including signature pages thereto) with the SEC and (b) to the extent such disclosure is required by law or NYSE regulations.

 

6.17 Independent Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser hereunder are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance of the obligations of any other Purchaser under this Agreement. Nothing contained herein, and no action taken by any Purchaser pursuant hereto, shall be deemed to constitute the Purchasers as, and the Company acknowledges that the Purchasers do not so constitute, a partnership, an association, a joint venture or any other kind of group or entity, or create a presumption that the Purchasers are in any way acting in concert or as a group or entity with respect to such obligations or the transactions contemplated by this Agreement or any matters, and the Company acknowledges that the Purchasers are not acting in concert or as a group, and the Company shall not assert any such claim, with respect to such obligations or the transactions contemplated by this Agreement. The decision of each Purchaser to purchase the ADSs pursuant to this Agreement has been made by such Purchaser independently of any other Purchaser. Each Purchaser acknowledges that no other Purchaser has acted as agent for such Purchaser in connection with such Purchaser making its investment hereunder and that no other Purchaser will be acting as agent of such Purchaser in connection with monitoring such Purchaser’s investment in the ADSs or enforcing its rights under this Agreement. Each Purchaser shall be entitled to independently protect and enforce its rights, including, without limitation, the rights arising out of this Agreement, and it shall not be necessary for any other Purchaser to be joined as an additional party in any proceeding for such purpose. 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.

 

[Remainder of Page Intentionally Left Blank; Signature Page Follows]

 

 

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.

THE COMPANY:
KUKE MUSIC HOLDING LIMITED
By:
Name:	He Yu
Title:	Chief Executive Officer
Address for Notice:
Building 96, 4 San Jian Fang South Block Chaoyang District Beijing, 100024 The People’s Republic of China (+86-10) 6561-0392 Attention: Steve Li
Email: steve.li@kuke.com

 

[signature page to securities purchase agreement]

 

 

Each of the purchasers set forth in schedule a hereto, severally and not jointly

By:
Name:
Title:
Address for Notice for each Purchaser:
c/o
Email:

 

[Signature Page to Securities Purchase Agreement]

 

 

10

Exhibit 5.1

 

	CONYERS DILL & PEARMAN
	29th Floor
	One Exchange Square
	8 Connaught Place
	Central
	Hong Kong
	T +852 2524 7106  |  F +852 2845 9268
	conyers.com

 

26 January 2024

 

Matter No.:838131

Doc Ref: 109682302
852 2842 9521 / 2842 9566
Flora.Wong@conyers.com

Rita.Leung@conyers.com

 

Kuke Music Holding Limited

Room 303 Beijing Broadcasting Tower

No. Jia 14, Jianwaidajie Chaoyang District

Beijing

People’s Republic of China

 

Dear Sir/Madam,

 

Re: Kuke Music Holding Limited (the “Company”)

 

We have acted as special Cayman Islands legal counsel to the Company in connection with a registration statement on Form F-3 (File No. 333-267655), including all amendments or supplements thereto (the “Registration Statement”), filed with and declared effective by the U.S. Securities and Exchange Commission (the “Commission”) under the U.S. Securities Act of 1933, as amended, (the “Securities Act”) relating to securities to be issued and sold by the Company from time to time, and the prospectus supplement to the Registration Statement dated 25 January 2024 (the “Prospectus Supplement”, together with the prospectus included in the Registration Statement, the “Prospectus”) through which the Company may offer up to a total aggregate amount of US$5,000,000, consisting of class A ordinary shares of a par value US$0.001 each in the Company (“Sale Shares”), to be represented by American depositary shares (the “Sale ADSs”).

 

1.

DOCUMENTS REVIEWED

 

For the purposes of giving this opinion, we have examined the following document(s):

 

1.1.

the Registration Statement;

 

1.2.

the Prospectus; and

 

1.3.

a securities purchase agreement made between (1) the Company, and (2) the purchasers stated therein relating to the issue and subscription of the Sale ADSs dated 25 January 2024 (the “Purchase Agreement”).

 

The documents listed in items 1.1 through 1.3 above are herein sometimes collectively referred to as the “Documents” (which term does not include any other instrument or agreement whether or not specifically referred to therein or attached as an exhibit or schedule thereto).

 

 

We have also reviewed:

 

1.4.

a copy of the second amended and restated memorandum and articles of association of the Company, each certified by a director of the Company on 22 January 2024 (the “Constitutional Documents”);

 

1.5.

a copy of minutes of a meeting of its directors held on 16 January 2024 (the “Resolutions”);

 

1.6.

a copy of a Certificate of Good Standing issued by the Registrar of Companies in relation to the Company on 19 January 2024 (the “Certificate Date”); and

 

1.7.

such other documents and made such enquiries as to questions of law as we have deemed necessary in order to render the opinion set forth below.

 

2.

ASSUMPTIONS

 

We have assumed:

 

2.1.

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;

 

2.2.

that where a document has been examined by us in draft form, it will be or has been executed 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;

 

2.3.

the capacity, power and authority of each of all parties, other than the Company, to enter into and perform its respective obligations under the Purchase Agreement and the due execution and delivery thereof by each party thereto;

 

2.4.

the accuracy and completeness of all factual representations made in the Documents and other documents reviewed by us;

 

2.5.

that the Resolutions were passed at one or more duly convened, constituted and quorate meetings or by unanimous written resolutions, remain in full force and effect and have not been rescinded or amended;

 

2.6.

that the Company will issue the Sale ADSs and the Sale Shares (the “Securities”) in furtherance of its objects as set out in its memorandum of association;

 

2.7.

that the Constitutional Documents will not be amended in any manner that would affect the opinions expressed herein;

 

2.8.

that Company’s incurrence and performance of its obligations under the Purchase Agreement in accordance with the terms thereof will not violate the Constitutional Documents nor any applicable law, regulation, order or decree in the Cayman Islands;

 

2.9.

that the Company will have sufficient authorised but unissued class A ordinary shares of the Company at the time of issuance and allotment of the class A ordinary shares;

 

2.10.

that the issuance and sale of and payment for the Securities will be in accordance with the Purchase Agreement, the Registration Statement and the Prospectus;

 

 

2.11.

that, upon the issue of any of the Sale Shares, the Company will receive consideration for the final issue price thereof which shall be equal to at least the par value thereof;

 

2.12.

that there is no provision of the law of any jurisdiction, other than the Cayman Islands, which would have any implication in relation to the opinions expressed herein;

 

2.13.

the validity and binding effect under the laws of the State of New York, United States of America (the “Foreign Laws”) of the Documents which are expressed to be governed by such Foreign Laws in accordance with their respective terms, and the Registration Statement and the Prospectus will be duly filed with the Commission; and

 

2.14.

that on the date of entering into the Document(s) and issuance of the Securities, the Company is and after entering into the Documents and any such issuance by the Company, is and will be able to pay its liabilities as they become due.

 

3.

QUALIFICATIONS

 

3.1.

The obligations of the Company under the Documents and any Securities:

 

(a)

will be subject to the laws from time to time in effect relating to bankruptcy, insolvency, liquidation, possessory liens, rights of set off, reorganisation, amalgamation, merger, consolidation, moratorium, bribery, corruption, money laundering, terrorist financing, proliferation financing or any other laws or legal procedures, whether of a similar nature or otherwise, generally affecting the rights of creditors as well as applicable international sanctions;

 

(b)

will be subject to statutory limitation of the time within which proceedings may be brought;

 

(c)

will be subject to general principles of equity and, as such, specific performance and injunctive relief, being equitable remedies, may not be available;

 

(d)

may not be given effect to by a Cayman Islands court, whether or not it was applying the Foreign Laws, if and to the extent they constitute the payment of an amount which is in the nature of a penalty; and

 

(e)

may not be given effect by a Cayman Islands court to the extent that they are to be performed in a jurisdiction outside the Cayman Islands and such performance would be illegal under the laws of that jurisdiction. Notwithstanding any contractual submission to the exclusive or non-exclusive jurisdiction of specific courts, a Cayman Islands court has inherent discretion to stay or allow proceedings in the Cayman Islands against the Company under the Documents and any Securities if there are other proceedings in respect of the Documents and any Securities simultaneously underway against the Company in another jurisdiction.

 

3.2.

We express no opinion as to the enforceability of any provision of the Documents which provides for the payment of a specified rate of interest on the amount of a judgment after the date of judgment or which purports to fetter the statutory powers of the Company.

 

3.3.

We have made no investigation of and express no opinion in relation to the laws of any jurisdiction other than the Cayman Islands. This opinion is to be governed by and construed in accordance with the laws of the Cayman Islands and is limited to and is given on the basis of the current law and practice in the Cayman Islands. This opinion is issued solely for your benefit and use in connection with the matter described herein and is not to be relied upon by any other person, firm or entity or in respect of any other matter.

 

 

4.

OPINION

 

On the basis of and subject to the foregoing, we are of the opinion that:

 

4.1.

The Company is duly incorporated and existing under the laws of the Cayman Islands and, based on the Certificate of Good Standing, is in good standing as at the Certificate Date. Pursuant to the Companies Act (“Act”), a company is deemed to be in good standing if all fees and penalties under the Act have been paid and the Registrar of Companies has no knowledge that the company is in default under the Act.

 

4.2.

Based solely on our review of the memorandum of association of the Company, the Company has an authorised share capital of US$50,000 divided into 50,000,000 shares of a nominal or par value of US$0.001 each, comprising of (i) 41,718,902 class A ordinary shares of a par value of US$ 0.001 each, and (ii) 8,281,098 class B ordinary shares of a par value of US$0.001 each.

 

4.3.

When allotted, issued and paid for in accordance with the Documents, the Sale Shares will be validly issued, fully paid and non-assessable (which term when used herein means that no further sums are required to be paid by the holders thereof in connection with the issue of such shares).

 

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the references to our firm under the caption “Legal Matters” in the Prospectus forming a part of the Registration Statement. In giving this consent, we do not hereby admit that we are experts within the meaning of Section 11 of the Securities Act or that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations of the Commission promulgated thereunder.

 

Yours faithfully,

 

/s/ Conyers Dill & Pearman

 

Conyers Dill & Pearman

 

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