MoneyHero Ltd 20-F, filed Oct 20, 2023
MoneyHero Ltd (MNY)
About this 20-F
MoneyHero Ltd filed this 20-F on October 20, 2023, covering the fiscal year ended October 12, 2023.
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 20-F
(Mark One)
| ☐ | REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR 12(g) OF THE SECURITIES EXCHANGE ACT OF 1934 |
OR
| ☐ | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended
OR
| ☐ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
OR
| ☒ | SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Date of event requiring this shell company report: October 12, 2023
Commission File Number: 001-41838
MoneyHero Limited
(Exact name of Registrant as specified in its charter)
| Not applicable | Cayman Islands | |
| (Translation of Registrant’s name into English) | (Jurisdiction of incorporation or organization) |
70 Shenton Way
#18-15, EON Shenton, S079118
Singapore
+65 6322 4392
(Name, Telephone, Email and/or Facsimile number and Address of Company Contact Person)
Securities registered or to be registered pursuant to Section 12(b) of the Act:
| Title of each class |
Trading Symbol(s) |
Name of exchange on which registered | ||
| Class A ordinary shares | MNY | Nasdaq Stock Market LLC | ||
| Warrants | MNYWW | Nasdaq Stock Market LLC |
Securities registered or to be registered pursuant to Section 12(g) of the Act:
None
(Title of Class)
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act:
None
(Title of Class)
Indicate the number of outstanding shares of each of the issuer’s classes of capital or common stock as of the close of the period covered by the shell company report: As of October 20, 2023, the issuer has 23,972,068 Class A ordinary shares, 13,254,838 Class B ordinary shares, 4,450,419 preference shares and 46,350,627 warrants to purchase Class A ordinary shares issued and outstanding.
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☐ No ☒
If this report is an annual or transition report, indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934. Yes ☐ No ☐
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ☐ No ☒
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes ☒ No ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or an emerging growth company. See definition of “large accelerated filer,” “accelerated filer,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☐ | Accelerated filer | ☐ | Non-accelerated filer | ☒ | |||||
| Emerging growth company | ☒ | |||||||||
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards† provided pursuant to Section 13(a) of the Exchange Act. ☐
†The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting over Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☐
If securities are registered pursuant to Section 12(b) of the Act, indicate by check mark whether the financial statements of the registrant included in the filing reflect the correction of an error to previously issued financial statements. ☐
Indicate by check mark whether any of those error corrections are restatements that required a recovery analysis of incentive-based compensation received by any of the registrant’s executive officers during the relevant recovery period pursuant to §240.10D-1(b). ☐
Indicate by check mark which basis of accounting the registrant has used to prepare the financial statements included in this filing:
| U.S. GAAP ☐ | International Financial Reporting Standards as issued | Other ☐ | ||||||
| by the International Accounting Standards Board ☒ |
If “Other” has been checked in response to the previous question indicate by check mark which financial statement item the registrant has elected to follow. Item 17 ☐ Item 18 ☐
If this is an annual report, indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No ☐
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| Item 1. Identity of Directors, Senior Management and Advisers |
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| Item 11. Quantitative and Qualitative Disclosures About Market Risk |
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| Item 12. Description of Securities Other Than Equity Securities |
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On October 12, 2023 (the “Closing Date”), MoneyHero Limited, a Cayman Islands exempted company limited by shares (“PubCo”), consummated the previously announced business combination (the “Business Combination”) pursuant to the Business Combination Agreement, dated as of May 25, 2023 (the “Business Combination Agreement”), by and among PubCo, Bridgetown Holdings Limited, a Cayman Islands exempted company limited by shares (“Bridgetown”), Gemini Merger Sub 1 Limited, a Cayman Islands exempted company limited by shares and a direct wholly-owned subsidiary of PubCo (“Merger Sub 1”), Gemini Merger Sub 2 Limited, a Cayman Islands exempted company limited by shares and a direct wholly-owned subsidiary of PubCo (“Merger Sub 2”) and CompareAsia Group Capital Limited, a Cayman Islands exempted company limited by shares (“CGCL”).
As a result of the Business Combination, (i) Bridgetown has merged with and into Merger Sub 1, with Merger Sub 1 being the surviving company and remaining as a wholly-owned subsidiary of PubCo and (ii) Merger Sub 2 has merged with and into CGCL, with CGCL being the surviving entity and becoming a wholly-owned subsidiary of PubCo. On October 13, 2023, PubCo’s Class A ordinary shares and public warrants commenced trading on the Nasdaq Global Market (“Nasdaq”) under the symbols “MNY” and “MNYWW.”
Except as otherwise indicated or required by context, references in this Shell Company Report on Form 20-F (including information incorporated by reference herein, the “Report”) to “we,” “us,” “our,” “MoneyHero Group” or “PubCo” refer to MoneyHero Limited, a Cayman Islands exempted company limited by shares, and its consolidated subsidiaries.
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CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Report and the information incorporated by reference herein include certain “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended (or the “Exchange Act”). These forward-looking statements can generally be identified by the use of forward-looking terminology, including the terms “believes,” “estimates,” “anticipates,” “expects,” “seeks,” “projects,” “intends,” “plans,” “may,” “will” or “should” or, in each case, their negative or other variations or comparable terminology. These forward-looking statements include all matters that are not historical facts. They appear in a number of places throughout this Report and include statements regarding the MoneyHero Group’s intentions, beliefs or current expectations concerning, among other things, information concerning possible or assumed future results of operations of the MoneyHero Group. Such forward-looking statements are based on available current market material and management’s expectations, beliefs and forecasts concerning future events impacting the MoneyHero Group.
Factors that may impact such forward-looking statements include, but are not limited to:
| • | the MoneyHero Group’s ability to grow market share in its existing markets or any new market it may enter; |
| • | the MoneyHero Group’s ability to execute its growth strategy, manage growth and maintain its corporate culture as it grows; |
| • | the MoneyHero Group’s ability to successfully execute on acquisitions, integrate acquired businesses and realize efficiencies or meet growth aspirations inherent in the decision to make a specific acquisition; |
| • | the MoneyHero Group’s ability to retain existing commercial partners or attract new commercial partners, or maintain favorable fee arrangements with its commercial partners; |
| • | the MoneyHero Group’s ability to cost-effectively attract new, and retain existing, users and maintain and enhance user engagement; |
| • | the MoneyHero Group’s ability to continue to diversify and optimize its offerings, offer high-quality content and provide strong customer support; |
| • | the global economic environment and general market and economic conditions in the jurisdictions in which the MoneyHero Group operates; |
| • | changes in the consumer lending and insurance markets; |
| • | changes in interest rates or rates of inflation; |
| • | ongoing geopolitical uncertainties and conflicts; |
| • | various risks inherent in operating and investing in Greater Southeast Asia; |
| • | the regulatory environment and changes in laws, regulations or policies in the jurisdictions in which the MoneyHero Group operates; |
| • | increased competition in the MoneyHero Group’s industry; |
| • | anticipated technology trends and developments and the MoneyHero Group’s ability to address those trends and developments with its products and offerings; |
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| • | the MoneyHero Group’s ability to protect information technology systems and platforms against security breaches (which includes physical and/or cybersecurity breaches either by external actors or rogue employees) or otherwise protect the confidential information or personally identifiable information of its users and business partners; |
| • | developments related to COVID-19 and other pandemics, epidemics or public health threats; |
| • | man-made or natural disasters, including war, acts of international or domestic terrorism, civil disturbances, occurrences of catastrophic events and acts of God such as floods, earthquakes, wildfires, typhoons and other adverse weather and natural conditions that affect the MoneyHero Group’s business or assets; |
| • | the loss of key personnel and the inability to replace such personnel on a timely basis or on acceptable terms; |
| • | exchange rate fluctuations; |
| • | legal, regulatory and other proceedings; |
| • | changes in tax laws and the interpretation and application thereof by tax authorities in the jurisdictions where the MoneyHero Group operates; |
| • | PubCo’s ability to maintain the listing of its securities on Nasdaq following the Business Combination; and |
| • | other factors discussed under the section titled “Risk Factors” in the proxy statement and prospectus (the “Proxy Statement/Prospectus”) that is part of PubCo’s Registration Statement on Form F-4, as amended (File No. 333- 274454) (the “Form F-4”), which section is incorporated herein by reference. |
The forward-looking statements contained in this Report are based on the MoneyHero Group’s current expectations and beliefs concerning future developments and their potential effects on PubCo. There can be no assurance that future developments affecting the MoneyHero Group will be those that the MoneyHero Group has anticipated. These forward-looking statements involve a number of risks, uncertainties (some of which are beyond the MoneyHero Group’s control) or other assumptions that may cause actual results or performance to be materially different from those expressed or implied by these forward-looking statements. Should one or more of these risks or uncertainties materialize, or should any of the assumptions prove incorrect, actual results may vary in material respects from those projected in these forward-looking statements. The MoneyHero Group will not undertake any obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as may be required under applicable securities laws.
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| ITEM 1. | IDENTITY OF DIRECTORS, SENIOR MANAGEMENT AND ADVISERS |
A. Directors and Senior Management
The directors and executive officers of PubCo are set forth under Item 6.A of this Report, which is incorporated herein by reference. The business address for each of the directors and executive officers of PubCo, other than Mr. Marc Syz, is 70 Shenton Way, #18-15, EON Shenton, S079118, Singapore. Mr. Syz’s business address is Dreikonigstrasse 12, 8027 Zurich.
B. Advisers
Kirkland & Ellis LLP, 26th Floor, Gloucester Tower, The Landmark, 15 Queen’s Road Central, Hong Kong, acted as counsel for PubCo as to matters of U.S. law, and will act as counsel to PubCo upon and following the consummation of the Business Combination as to matters of U.S. law.
Walkers (Singapore) Limited Liability Partnership, 3 Church Street, #16-02 Samsung Hub, Singapore 049483, acted as Cayman Islands counsel for PubCo, and will act as Cayman Islands counsel to PubCo upon and following the consummation of the Business Combination.
C. Auditors
Ernst & Young acted as the independent registered public accounting firm for the consolidated financial statements of CGCL as of December 31, 2022 and 2021 and for the years then ended, as well as the consolidated financial statements of PubCo as of March 31, 2023 and for the period from March 21, 2023 (date of incorporation) to March 31, 2023. The registered address of Ernst & Young is 27/F, One Taikoo Place, 979 King’s Road, Quarry Bay, Hong Kong.
| ITEM 2. | OFFER STATISTICS AND EXPECTED TIMETABLE |
Not applicable.
| ITEM 3. | KEY INFORMATION |
A. [Reserved]
B. Capitalization and Indebtedness
The following table sets forth the capitalization of PubCo on an unaudited pro forma combined basis as of June 30, 2023, after giving effect to the Business Combination.
| As of June 30, 2023 |
||||
| Cash and cash equivalents |
115,923,927 | |||
| Interest-bearing borrowings |
(17,282,655 | ) | ||
| Warrants liabilities (current and non-current) |
(18,587,036 | ) | ||
| Shareholders’ equity |
||||
| Issued capital |
4,168 | |||
| Reserves |
87,132,480 | |||
| Total shareholders’ equity |
87,136,649 | |||
| Total capitalization(1) |
51,266,958 | |||
Note:
| (1) | Calculated as total shareholders’ equity plus interest-bearing borrowings and warrant liabilities (current and non-current). |
C. Reasons for the Offer and Use of Proceeds
Not applicable.
D. Risk Factors
The risk factors related to the business and operations of the MoneyHero Group are described in the Proxy Statement/Prospectus under the section titled “Risk Factors” and are incorporated herein by reference.
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| ITEM 4. | INFORMATION ON THE COMPANY |
A. History and Development of the Company
MoneyHero Limited, or “PubCo”, is an exempted company limited by shares incorporated under the laws of Cayman Islands on March 21, 2023. PubCo was formed for the sole purpose of entering into and consummating the Business Combination. The principal executive office of PubCo is 70 Shenton Way, #18-15, EON Shenton, S079118, Singapore and the telephone number of PubCo is +65 6238 5971.
See “Explanatory Note” in this Report for additional information regarding PubCo and the Business Combination. Certain additional information about PubCo is included in the Proxy Statement/Prospectus under the section titled “Information Related to PubCo” and is incorporated herein by reference. The material terms of the Business Combination are described in the Proxy Statement/Prospectus under the section titled “The Business Combination Proposal,” which is incorporated herein by reference.
PubCo is subject to certain of the informational filing requirements of the Exchange Act. Since PubCo is a “foreign private issuer,” it is exempt from the rules and regulations under the Exchange Act prescribing the furnishing and content of proxy statements, and the officers, directors and principal shareholders of PubCo are exempt from the reporting and “short-swing” profit recovery provisions contained in Section 16 of the Exchange Act with respect to their purchase and sale of PubCo’s ordinary shares. In addition, PubCo is not required to file reports and financial statements with the SEC as frequently or as promptly as U.S. public companies whose securities are registered under the Exchange Act. However, PubCo is required to file with the SEC an Annual Report on Form 20-F containing financial statements audited by an independent accounting firm. The SEC also maintains a website at www.sec.gov that contains reports and other information that PubCo files with or furnishes electronically to the SEC.
The website address of PubCo is www.moneyherogroup.com. The information contained on the website does not form a part of, and is not incorporated by reference into, this Report.
B. Business Overview
Prior to the Business Combination, PubCo did not conduct any material activities other than those incidental to its formation and the matters contemplated by the Business Combination Agreement, such as the making of certain required securities law filings. Upon the closing of the Business Combination, PubCo became the direct parent of, and conducts its business through, CGCL.
Information regarding our business is included in the Proxy Statement/Prospectus under the sections titled “Information Related to the MoneyHero Group” and “MoneyHero Group’s Management’s Discussion and Analysis of Financial Condition and Results of Operations,” which are incorporated herein by reference.
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C. Organizational Structure
Upon the closing of the Business Combination, CGCL became a direct, wholly-owned subsidiary of PubCo. The following chart illustrates PubCo’s organizational structure and material subsidiaries as of the date of this Report.
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|
D. Property, Plants and Equipment
Information regarding our facilities is included in the Proxy Statement/Prospectus under the section titled “Information Related to the MoneyHero Group— Properties and Facilities” and is incorporated herein by reference.
| ITEM 4A. | UNRESOLVED STAFF COMMENTS |
None.
| ITEM 5. | OPERATING AND FINANCIAL REVIEW AND PROSPECTS |
Following and as a result of the Business Combination, the business of PubCo is conducted through CGCL, its direct, wholly-owned subsidiary.
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The discussion and analysis of our financial condition and results of operations is included in the Proxy Statement/Prospectus under the section titled “MoneyHero Group’s Management’s Discussion and Analysis of Financial Condition and Results of Operations,” which is incorporated herein by reference.
| ITEM 6. | DIRECTORS, SENIOR MANAGEMENT AND EMPLOYEES |
A. Directors and Senior Management
The following table sets forth certain information relating to PubCo’s directors and executive officers.
| Name |
Position/Title | |
| Kenneth Chan | Director | |
| Derek Fong | Director | |
| Prashant Aggarwal | Chief Executive Officer and Director | |
| Shaun Kraft | Chief Financial Officer and Chief Operating Officer | |
| Rohith Murthy | Chief Product Officer | |
| Marc Syz | Director | |
| Susanna Lee | Director | |
| Daniel Wang | Director |
Kenneth Chan is a member of the board of directors of PubCo (the “PubCo Board”). Mr. Chan joined the MoneyHero Group Board in October 2022, served as the company’s interim co-CEO between October 2022 and April 2023 and has been instrumental in the reorganization of the MoneyHero Group into the revitalized consumer financial information leader across five dynamic Asian markets that it is today.
Mr. Chan is a Senior Vice President of Pacific Century. In that capacity, he plays a leadership role in the group’s corporate finance operations in equity and debt raisings, major mergers and acquisitions as well as venture investments. Pacific Century is an entrepreneurial conglomerate headquartered in Hong Kong with a portfolio of well-established and fast growing businesses including PCCW Limited and HKT Limited (both listed on the Hong Kong Stock Exchange), FWD (a pan-Asia life insurer), PineBridge (a global asset manager with approximately US$150 billion assets under management) and bolttech (an international insurtech unicorn
founded by Pacific Century). In addition, Mr. Chan is a director of Ava Quest, a technology venture fund founded by Pacific Century focusing on cryptocurrency and blockchain technologies. Prior to joining Pacific Century, Mr. Chan was a fund manager at RAB Capital and Sofaer Capital, where he managed Asian long/short equity strategies. Mr. Chan came into finance from a management consulting background. As a management consultant at The Boston Consulting Group, he advised the boards and senior management of global corporations on key strategic and operational issues.
Mr. Chan holds a master’s degree in business administration with distinction from Melbourne Business School where he was awarded a full scholarship to pursue his studies as Murdoch Fellow. He also holds a bachelor’s degree in electrical engineering from the University of New South Wales.
Derek Fong is a member of the PubCo Board. Mr. Fong joined the MoneyHero Group Board in October 2022 and served as the company’s interim co-CEO between October 2022 and April 2023. Mr. Fong is currently the MoneyHero Group’s Chief Innovation Officer, responsible for driving and managing the development of innovative strategies, technology initiatives and new business models for the company. Mr. Fong is a Senior Vice President of Pacific Century. In that capacity, Mr. Fong is a member of the team responsible for structuring and executing the group’s corporate finance transactions across both equity and debt capital markets, venture investments and major mergers and acquisitions, including at FWD and bolttech. In addition, Mr. Fong is a founding member of the Ava Quest investment team, focused on blockchain and crypto-related technologies, and oversees Ava Quest’s investment in CMCC Global. Mr. Fong is also General Counsel, Asia-Pacific of Pacific Century and serves as a board observer of several key private operating companies within the group. Prior to joining Pacific Century, Mr. Fong was a Vice President at Morgan Stanley in Hong Kong, with legal coverage responsibility for investment banking and global capital markets in the Asia Pacific region. Prior to that, Mr. Fong was a corporate finance lawyer at Herbert Smith Freehills, specializing in initial public offerings and secondary offerings, and advised multinational corporates, financial institutions and private equity firms on a wide range of M&A transactions, including public takeovers, private investments, cross-border acquisitions and disposals, and joint ventures.
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Mr. Fong holds an MBA from the Kellogg-HKUST Executive MBA Program and a bachelor’s degree in jurisprudence from the University of Oxford. Mr. Fong is a qualified solicitor in Hong Kong and England and Wales.
Prashant Aggarwal is a member of the PubCo Board and PubCo’s Chief Executive Officer. Mr. Aggarwal has served as the Chief Executive Officer of the MoneyHero Group since April 2023 and previously the MoneyHero Group’s President since November 2021 and Chief Commercial Officer since April 2016. In his career span of 25 years, Mr. Aggarwal has held various leadership roles in product management, sales, relationship management, consulting and finance at Visa, American Express and Oracle. Mr. Aggarwal is currently based in Singapore and has worked in various locations such as Sydney, Hong Kong, and Delhi, which gave him global exposure to client needs and skills across various aspects of business.
Mr. Aggarwal is a Chartered Accountant from the Institute of Chartered Accountants of India and holds a bachelor’s degree in commerce from the University of Delhi.
Shaun Kraft is PubCo’s Chief Financial Officer and Chief Operating Officer. Mr. Kraft joined the MoneyHero Group in 2015 as its Chief Financial Officer, a position that he held from March 2015 to May 2018 and again since April 2019. Mr. Kraft has also served as the MoneyHero Group’s Chief Operating Officer since January 2021. In these roles, Mr. Kraft is primarily responsible for the oversight of group-wide finance and accounting, strategic finance, human resources, business operations and investor relations. Previously, Mr. Kraft served as the Chief Financial Officer and Chief Operating Officer at CMCC Global in Hong Kong from June 2018 to April 2019, a Director at Perella Weinberg Partners in New York, where he specialized in M&A and strategic advisory for financial institutions, from March 2011 to February 2015 and an M&A associate at Lazard in Frankfurt from June 2007 to September 2010.
Mr. Kraft holds a Master of Science in Business Administration degree with a concentration on finance and investments from the Rotterdam School of Management and a Bachelor of Science degree in economics from Maastricht University.
Rohith Murthy is PubCo’s Chief Product Officer. Mr. Murthy joined the MoneyHero Group in March 2015 and has served as its Country Manager for Singapore, Group General Manager and Chief Product Officer. In his current capacity as the Chief Product Officer, Mr. Murthy is primarily responsible for shaping the group-wide product vision, strategy, management and delivery. Mr. Murthy also oversees the Seedly and Creatory businesses. With over 20 years of experience in product management, digital banking, innovation sales and operations, Mr. Murthy has held significant leadership roles at Citi, Siam Commercial Bank and Standard Chartered Bank. Currently based in Hong Kong, Mr. Murthy has worked in various locations including Singapore, Thailand, Central and Eastern Europe.
Mr. Murthy holds a bachelor’s degree in Computer Engineering from the National University of Singapore.
Marc Syz, co-founder and Managing Partner of Syz Capital, is a member of the PubCo Board. With over 18 years of investment experience, Mr. Syz leads Syz Capital’s direct investments and is a member of the firm’s executive and investment committees. Prior to that, Mr. Syz was a Managing Director at ACE & Company, a global co-investment group, where he led the Asian, Hong Kong-based expansion for the group and managed several investment portfolios focusing on Europe and Asia. Mr. Syz has also previously worked as the Head of Capital Markets & Equity Sales at Union Bancaire Prive´e in Geneva and as a derivatives trader at Credit Suisse First Boston in the Structured Products division. Mr. Syz has a broad expertise in capital markets, asset management and alternative investments across geographies and holds an Executive MBA from INSEAD.
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Susanna Lee, a seasoned senior regional executive with leadership experience and front-line insight across different business segments in the payment industry, is a member of the PubCo Board. From 2017 to May 2023, Ms. Lee served as the Managing Director (Hong Kong and Taiwan) and the General Manager of Insurance Asia at American Express International, Inc. (“American Express”), where she had held multiple roles since 1987 across different Asia Pacific markets. From February 2014 to April 2023, Ms. Lee was the Chairperson of the Board of Directors of American Express TLS HK Limited, overseeing the operation of Travel & Lifestyle Services in Hong Kong. In her most recent roles at American Express, Ms. Lee was responsible for driving the revenue growth and market share for the company’s consumer and commercial card business in both Hong Kong and Taiwan. Ms. Lee also led the development of American Express’ insurance business in Asia. In her previous capacity, Ms. Lee and played a critical role in the strategic development of the company’s merchant network and relationships in Hong Kong and Taiwan. In addition, Ms. Lee has been actively promoting diversity and inclusion in Hong Kong throughout her career, by participating in internal and external business forums to share best practices on building diversity in the workplace. Ms. Lee was the executive sponsor of the Women’s Interest Network (WIN) of American Express Hong Kong, an employee initiative dedicated to gender equity and improving the work-life balance for working women and working mothers.
Ms. Lee holds a double major degree of Management and Economics from the University of Guelph in Canada.
Daniel Wang, the founder and Chief Investment Officer of Brianna Capital (Asia) Limited (“BCAL”), is a member of the PubCo Board. BCAL is a Hong Kong SFC Type 4 and 9 Licensed Entity and manages, as well as advises on, a number of portfolios for family office investors with a scope of service covering multiple asset classes in order achieve the stated investment objectives. Mr. Wang oversees all investment activities at BCAL, including asset allocation, portfolio management, research and security selection. Prior to founding BCAL in 2014, Mr. Wang was the Chief Investment Officer at Vision Investment Management. During his tenure, Vision Investment Management was one of the top alternative investment managers in Asia with high-caliber institutional clients from the United States, Europe, Middle East and Asia and had won multiple awards. Before entering the field of finance, Mr. Wang worked as a management consultant at McKinsey & Co. and an engineer at Jacobs Engineering Group.
Mr. Wang has a Master of Business Administration degree from Columbia Business School and a Bachelor of Science degree in Civil Engineering from University of Southern California.
B. Compensation
Information regarding the compensation of the directors and executive officers of PubCo, including a summary of the equity incentive plans to be administered by the PubCo board, is included in the Proxy Statement/Prospectus under the section titled “Management of PubCo Following the Business Combination—Compensation of Directors and Executive Officers” is incorporated herein by reference.
In addition, on the Closing Date, PubCo adopted the 2023 Equity Incentive Plan, with an award pool of 13,197,563 PubCo Class A Ordinary Shares reserved for issuance (the “PubCo Equity Plan”). Under the PubCo Equity Plan, PubCo may make equity awards to eligible individuals to be selected by the PubCo Board in its sole discretion and the affiliates of certain of these individuals. Pursuant to the Business Combination Agreement, each option to purchase one Class D ordinary shares of CGCL outstanding immediately prior to the effective time of the merger between CGCL and Gemini Merger Sub 2 Limited, whether vested or unvested, was automatically assumed by PubCo and converted into an option to purchase PubCo Class A Ordinary Shares (each, a “PubCo Option”) under the PubCo Equity Plan.
The following summarizes the material terms of the PubCo Equity Plan:
Plan Administration. The PubCo Board has the power and authority to prescribe, amend and rescind rules and procedures governing the administration of the PubCo Equity Plan, including, among other things, establishing performance and vesting standards and imposing such limitations, restrictions and conditions upon awards granted under the PubCo Equity Plan as it shall deem appropriate.
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Types of Awards. The PubCo Equity Plan permits the grants of options and such other awards (including, without limitation, restricted shares and restricted share units) that are denominated or payable in, valued in whole or in part by reference to, or otherwise based on or related to, PubCo Class A Ordinary Shares (including, without limitation, securities convertible into PubCo Class A Ordinary Shares) as are deemed by the PubCo Board to be consistent with the purposes of the PubCo Equity Plan.
Eligibility. The PubCo Board may, from time to time, select participants who are eligible to participate in the PubCo Equity Plan and the awards to be made to each such participant, which may include present and future employees and non-employee directors of PubCo and consultants, advisors or other service providers of PubCo or a subsidiary of PubCo. The PubCo Board may consider any factors it deems relevant in selecting participants and in making awards to such participants.
Exercise of Awards. All options granted under the PubCo Equity Plan, whether vested or unvested, will generally expire on the 10th anniversary of the date of grant to participants of such options, subject to earlier expiration. Unless determined otherwise in the applicable award agreement, options granted under the PubCo Equity Plan shall have an exercise price equal to or greater than 100% (or, in the case of options held by any person owning, as of the applicable date of determination, shares possessing more than 10% of the total combined voting power of all classes of shares of PubCo, its subsidiaries or parent, 110%) of the fair market value of PubCo Class A Ordinary Shares on the grant date, as determined by the PubCo Board in good faith, taking into account customary relevant factors.
Award Agreements. Awards granted under the PubCo Equity Plan will be evidenced by award agreements confirming the grant of the award. The award agreement will set forth the restrictions, terms and conditions as the PubCo Board determines.
Transferability. The awards and all rights thereunder are exercisable only by the participant and shall not be assignable or transferable, unless otherwise approved by the board of directors.
Termination of Employment. Unless otherwise set forth in an award agreement, all of a participant’s awards that have not fully vested as of the earliest date on which a participant is no longer employed by and no longer provides services to PubCo and its affiliates for any reason will expire at such time. Additionally, if a participant is terminated with cause, then the portion of such participant’s awards that have vested as of such termination date will also expire at such time.
As of the date of this Report, an aggregate of 1,746,771 PubCo Options have been granted to PubCo’s directors and executive officers, which include the following:
| • | 970,429 outstanding PubCo Options held by Prashant Aggarwal, with a per-share exercise price of US$0.0003 and an expiration date of January 1, 2033 (subject to earlier expiration), including (i) 521,606 PubCo Options that are exercisable for an aggregate of 521,606 PubCo Class A Ordinary Shares at the holder’s discretion, and (ii) 448,823 PubCo Options that will become exercisable for an aggregate of 448,823 PubCo Class A Ordinary Shares upon the first anniversary of the Closing Date; |
| • | 582,257 outstanding PubCo Options held by Shaun Kraft, with a per-share exercise price of US$0.0003 and an expiration date of January 1, 2033 (subject to earlier expiration), including (i) 312,963 PubCo Options that are exercisable for an aggregate of 312,963 PubCo Class A Ordinary Shares at the holder’s discretion, and (ii) 269,294 PubCo Options that will become exercisable for an aggregate of 269,294 PubCo Class A Ordinary Shares upon the first anniversary of the Closing Date; and |
| • | 194,085 outstanding PubCo Options held by Rohith Murthy with a per-share exercise price of US$0.0003 and an expiration date of January 1, 2033 (subject to earlier expiration), including (i) 104,321 PubCo Options that are exercisable for an aggregate of 104,321 PubCo Class A Ordinary Shares at the holder’s discretion, and (ii) 89,764 PubCo Options that will become exercisable for an aggregate of 89,764 PubCo Class A Ordinary Shares upon the first anniversary of the Closing Date. |
C. Board Practices
The PubCo Board comprises six directors. Each of Marc Syz, Susanna Lee and Daniel Wang qualifies as “independent” as defined under applicable SEC rules and Nasdaq listing standards.
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Except as provided in the PubCo’s second amended and restated memorandum and articles of association (the “PubCo Articles”), a director may vote in respect of any contract or transaction in which he/she is interested, provided that the nature of the interest of any director in any such contract or transaction is disclosed at or prior to its consideration and any vote thereon, and such director may be counted in the quorum at any meeting of directors at which any such contract or transaction is considered. A director who is interested in a contract or proposed contract with PubCo must declare the nature of his interest at a meeting of the directors. No PubCo non-employee director has a service contract with PubCo that provides for benefits upon termination of service.
Duties of Directors
Under the laws of the Cayman Islands, PubCo directors owe certain fiduciary duties to the company. In certain circumstances, a shareholder may have the right to seek damages if a duty owed by the directors is breached. Under Cayman Islands law, directors owe the following fiduciary duties:
| • | the duty to act in good faith in what the director or officer believes to be in the best interests of the company as a whole; |
| • | the duty to exercise powers solely for the express purposes for which those powers were conferred and not for collateral purposes; |
| • | the duty not to improperly fetter the exercise of future discretion; |
| • | the duty to exercise powers fairly as between different sections of shareholders; |
| • | the duty not to put themselves in a position in which there is a conflict between their duty to the company and their personal interests; and |
| • | the duty to exercise independent judgment. |
In addition to the above, under Cayman Islands law, directors owe a duty of care that is not fiduciary in nature. This duty has been defined as a requirement to act as a reasonably diligent person having both the general knowledge, skill and experience that may reasonably be expected of a person carrying out the same functions as are carried out by that director, in relation to the company and the general knowledge skill and experience of that director.
As stated above, under Cayman Islands law, directors have a duty not to put themselves in a position of conflict, and this includes a duty not to engage in self-dealing, or to otherwise benefit as a result of their position. However, in some instances, what would otherwise be a breach of this duty can be forgiven and/or authorized in advance by the shareholders, provided that there is full disclosure by the directors. This can be done by way of permission granted in the PubCo Articles or alternatively by shareholder approval at general meetings.
Voting
The PubCo Articles provide that its directors may vote on resolutions relating to any contract or proposed contract or arrangement in which he/she is interested (and count as part of the quorum at any meetings where any such contract or proposed contract or arrangement is being considered), provided that the nature of that interest has been disclosed to the other directors in accordance with the terms of the PubCo Articles. This would include, for example, the right to vote on his/her own compensation arrangements (and that of any other director) and any arrangements in respect of such director borrowing money from PubCo. The PubCo Articles also permit the directors to exercise all of the powers of PubCo to borrow money and to mortgage or charge its undertaking, property and uncalled capital or any part thereof, or to otherwise provide for a security interest to be taken in such undertaking, property or uncalled capital, and to issue debentures, debenture stock and other securities whenever money is borrowed or as security for any debt, liability or obligation of PubCo or of any third party.
The above is also subject to the PubCo directors’ ongoing adherence to their fiduciary duties (including to act in the best interests of the company).
Appointment and Removal
Under the PubCo Articles, PubCo’s board may comprise up to nine directors unless otherwise determined by PubCo in a general meeting. The exact number of directors shall be determined from time to time by the PubCo’s board of directors.
Directors may be appointed by ordinary resolution or a resolution of directors. There is no cumulative voting with respect to the appointment of directors. PubCo’s directors do not serve for a fixed term, and there is no requirement for them to retire by rotation or to make themselves eligible for re-election.
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The removal of a director by ordinary resolution may be for any reason and need not be for cause. A director will also cease to be a director if he or she (i) becomes bankrupt or makes any arrangement or composition with his creditors; (ii) dies or is found to be or becomes of unsound mind; (iii) resigns his office by notice in writing; (iv) is removed from office by notice addressed to him at his last known address and signed by all of his co-directors (not being less than two in number); or (v) is removed from office pursuant to any other provision of the PubCo Articles.
The PubCo Articles do not provide a set age requirement regarding the retirement of PubCo’s directors or (subject to any shareholders’ ordinary resolution to the contrary) any shareholding requirement for directors to be appointed.
Directors’ Power to Issue Shares
Subject to applicable law, PubCo’s board of directors is empowered to issue or allot shares or grant options and warrants with or without preferred, deferred, or other rights or restrictions.
Committees of the PubCo Board of Directors
Audit Committee
PubCo’s audit committee consists of Kenneth Chan, Daniel Wang and Susanna Lee. Daniel Wang serves as the chairperson of the audit committee. All members of PubCo’s audit committee meet the requirements for financial literacy under the applicable rules and regulations of the SEC and the corporate governance rules of Nasdaq. The PubCo Board has determined that Daniel Wang is an audit committee financial expert as defined by the SEC rules and that each of Daniel Wang and Susanna Lee is “independent” as such term is defined in Rule 10A-3(b)(1) under the Exchange Act and the corporate governance rules of Nasdaq.
The PubCo Board has adopted an audit committee charter setting forth the responsibilities of the audit committee, which are consistent with Cayman Islands law, the SEC’s rules and the corporate governance rules of Nasdaq and include, among others, the following:
| • | selecting or replacing PubCo’s independent registered public accounting firm and pre-approving all auditing and non-auditing services permitted to be performed by PubCo’s independent registered public accounting firm; |
| • | reviewing with PubCo’s independent registered public accounting firm any audit problems or difficulties and management’s response and approving all proposed related party transactions, as defined in Item 7.B of Form 20-F; |
| • | discussing the annual audited financial statements with PubCo’s management and its independent registered public accounting firm; |
| • | periodically reviewing and reassessing the adequacy of PubCo’s audit committee charter; |
| • | meeting periodically with the PubCo’s management, its internal auditor and its independent registered public accounting firm; |
| • | reporting regularly to the PubCo Board; |
| • | reviewing the adequacy and effectiveness of PubCo’s accounting and integral control policies and procedures and any steps taken to monitor and control major financial risk exposure; and |
| • | handling such other matters that are specifically delegated to PubCo’s audit committee by the PubCo Board from time to time. |
Compensation Committee
Under the corporate governance rules of Nasdaq, PubCo is required to maintain a compensation committee consisting of at least two independent directors. PubCo’s compensation committee consists of Susanna Lee, Daniel Wang and Derek Fong. Susanna Lee serves as chairperson of the committee. Each of Daniel Wang and Susanna Lee is independent under the corporate governance rules of Nasdaq.
The PubCo Board has adopted a compensation committee charter setting forth the responsibilities of the compensation committee, which are consistent with the corporate governance rules of Nasdaq and include, among others, the following:
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| • | reviewing and approving, or recommending to the PubCo Board for its approval, the compensation for PubCo’s executive officers; |
| • | reviewing and recommending to the PubCo Board with respect to the compensation of PubCo’s directors and executive officers; |
| • | reviewing, and making recommendations to the Board regarding, incentive compensation plans and equity-based plans; |
| • | selecting and receiving advice from compensation consultants, legal counsel or other advisors after taking into consideration all factors relevant to that person’s independence from management; and |
| • | reviewing, and making recommendations to the Board regarding, employment agreements and severance arrangements or plans. |
Nominating and Corporate Governance Committee
PubCo’s nominating and corporate governance committee consists of Derek Fong, Daniel Wang and Susanna Lee. Derek Fong serves as chairperson of the committee. Each of Daniel Wang and Susanna Lee is independent under the corporate governance rules of Nasdaq.
The PubCo Board has adopted a nominating and corporate governance committee charter setting forth the responsibilities of the nominating and corporate governance committee, which are consistent with the corporate governance rules of Nasdaq and include, among others, the following:
| • | identifying and recommending nominees for election or reelection to the PubCo Board or for appointment to fill any vacancy; |
| • | annually reviewing with the PubCo Board its current composition in light of the characteristics of independence, age, skills, experience and availability of service; |
| • | reviewing emerging corporate governance trends, best practices and regulations applicable to the corporate governance of PubCo; and |
| • | renewing, proposing changes to the PubCo Board, or developing, as needed, PubCo’s memorandum and articles of association, code of ethics, corporate governance guidelines, and other corporate governance policies. |
Code of Business Conduct and Ethics
PubCo has adopted a Code of Ethics applicable to its directors, officers and employees. PubCo seeks to conduct business ethically, honestly and in compliance with applicable laws and regulations. PubCo’s Code of Ethics sets out the principles designed to guide PubCo’s business practices with integrity, respect and dedication. The code applies to all directors, officers and employees of PubCo. PubCo expects its business partners to follow the principles set forth in its code when providing goods and services to PubCo or acting on PubCo’s behalf.
D. Employees
Following and as a result of the Business Combination, the business of PubCo is conducted through CGCL, its direct, wholly-owned subsidiary.
Information regarding the employees of CGCL is included in the Proxy Statement/Prospectus under the section titled “Information Related to the MoneyHero Group—Employees” and is incorporated herein by reference.
E. Share Ownership
Information regarding the ownership of PubCo’s shares by PubCo’s directors and executive officers is set forth in Item 7.A of this Report.
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| ITEM 7. | MAJOR SHAREHOLDERS AND RELATED PARTY TRANSACTIONS |
A. Major Shareholders
The following table sets forth information relating to the beneficial ownership of PubCo’s shares as of the date of this Report by:
| • | each person, or group of affiliated persons, known by us to beneficially own more than 5% of outstanding ordinary shares; |
| • | each of our directors; |
| • | each of our named executive officers; and |
| • | all of our directors and executive officers as a group. |
Beneficial ownership is determined in accordance with the rules of the SEC and includes voting or investment power with respect to, or the power to receive the economic benefit of ownership of, the securities. In computing the number of shares beneficially owned by a person and the percentage ownership of that person, shares that the person has the right to acquire within 60 days are included, including through the exercise of any option or other right or the conversion of any other security. However, these shares are not included in the computation of the percentage ownership of any other person.
The percentage of PubCo’s shares beneficially owned is computed on the basis of 23,972,068 Class A ordinary shares of a nominal or par value of US$0.0001 each (“PubCo Class A Ordinary Shares”), 13,254,838 Class B ordinary shares of a nominal or par value of US$0.0001 each (“PubCo Class B Ordinary Shares”), and 4,450,419 preference shares of a nominal or par value of US$0.0001 each (“PubCo Preference Shares”) issued and outstanding as of the date of this Report. Each PubCo Class B Ordinary Share is convertible into an equal number of PubCo Class A Ordinary Share at any time at the option of the holder thereof (as adjusted for share subdivisions, share consolidations and similar transactions. Each Class B Ordinary Share is entitled to ten votes on all matters subject to a poll vote at general meetings of PubCo. Each PubCo Preference Ordinary Share is convertible into a number of PubCo Class A Ordinary Shares at any time at the option of the holder thereof at a ratio set forth in the PubCo Articles. Each PubCo Preference Share is entitled to a number of votes equal to the number of PubCo Class A Ordinary Shares (rounded down to the nearest whole number) into which such PubCo Preference Share is convertible as of the record date for such vote or, if there is no specified record date, as of the date of such vote.
| Number of PubCo Class A Ordinary Shares Beneficially Owned(1) |
Percentage of PubCo Class A Ordinary Shares Beneficially Owned |
Number of PubCo Class B Ordinary Shares Beneficially Owned |
Percentage of PubCo Class B Ordinary Shares Beneficially Owned |
Number of PubCo Preference Shares Beneficially Owned |
Percentage of PubCo Preference Shares Beneficially Owned |
Percentage of Total Outstanding Shares Beneficially Owned |
Percentage of Total Voting Power |
|||||||||||||||||||||||||
| Principal Holders |
||||||||||||||||||||||||||||||||
| Bridgetown LLC(2) |
6,901,775 | 22.7 | % | 13,254,838 | 100.0 | % | — | — | 41.9 | % | 83.3 | % | ||||||||||||||||||||
| Enterprise Innovation Holdings Limited(3) |
10,446,054 | 38.4 | % | — | — | 1,692,419 | 7.1 | % | 27.0 | % | 7.4 | % | ||||||||||||||||||||
| PCCW Media International Limited(4) |
6,577,459 | 27.4 | % | — | — | — | — | 15.8 | % | 4.1 | % | |||||||||||||||||||||
| Daniel Wong(5) |
1,600,000 | 6.7 | % | — | — | — | — | 3.8 | % | 1.0 | % | |||||||||||||||||||||
| Directors and Officers† |
||||||||||||||||||||||||||||||||
| Kenneth Chan |
— | — | — | — | — | — | — | — | ||||||||||||||||||||||||
| Derek Fong |
— | — | — | — | — | — | — | — | ||||||||||||||||||||||||
| Prashant Aggarwal(6) |
561,711 | 2.3 | % | — | — | — | * | 1.3 | % | * | ||||||||||||||||||||||
| Shaun Kraft(7) |
372,427 | 1.5 | % | — | — | 79,443 | * | 1.1 | % | * | ||||||||||||||||||||||
| Rohith Murthy(8) |
117,464 | * | — | — | — | — | * | * | ||||||||||||||||||||||||
| Marc Syz(9) |
4,010 | — | — | — | — | — | — | — | ||||||||||||||||||||||||
| Susanna Lee |
— | — | — | — | — | — | — | — | ||||||||||||||||||||||||
| Daniel Wang |
— | — | — | — | — | — | — | — | ||||||||||||||||||||||||
| Directors and officers as a group (eight individuals) |
1,055,612 | 4.2 | % | — | — | 79,443 | * | 2.7 | % | * | ||||||||||||||||||||||
| † | Except as indicated otherwise below, the business address of our directors and executive officers is 70 Shenton Way, #18-15, EON Shenton, S079118, Singapore. |
| * | Less than 1%. |
| (1) | Not including any PubCo Class A Ordinary Shares issuable upon the conversion of PubCo Class B Ordinary Shares or PubCo Preference Shares. |
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| (2) | Represents (i) 451,839 PubCo Class A Ordinary Shares and 12,659,892 PubCo Class B Ordinary Shares directly held by Bridgetown LLC (“Sponsor”), (ii) 6,449,936 PubCo Class A Ordinary Shares issuable to Sponsor upon the exercise of warrants to purchase PubCo Class A Ordinary Shares, and (iii) 594,946 PubCo Class B Ordinary Shares that are subject to potential transfer by Steven Teichman to Sponsor for no consideration following the Closing Date. Sponsor is a Cayman Islands limited liability company, the ultimate beneficial owner of which is Mr. Richard Tzar Kai Li (“Mr. Li”). Mr. Li, by virtue of his indirect ownership of Bridgetown LLC, may be deemed to beneficially own the aforementioned ordinary shares and warrants. Mr. Li disclaims beneficial ownership of the aforementioned ordinary shares and warrants other than to the extent of any pecuniary interest in such securities. The business address of Bridgetown LLC is c/o 38/F Champion Tower, 3 Garden Road, Central, Hong Kong. |
| (3) | Represents (i) 7,212,571 PubCo Class A Ordinary Shares and 1,692,419 PubCo Preference Shares directly held by Enterprise Innovation Holdings Limited (“EIHL”) and (ii) 3,233,483 PubCo Class A Ordinary Shares issuable to EIHL upon the exercise of warrants to purchase PubCo Class A Ordinary Shares. EIHL is a member of the FWD group. Mr. Li, by virtue of his indirect majority ownership of the FWD group, may be deemed to beneficially own the aforementioned ordinary shares, preference shares and warrants. Mr. Li disclaims beneficial ownership of the aforementioned ordinary shares, preference shares and warrants other than to the extent of any pecuniary interest in such securities. The business address of EIHL is P.O. Box 31119, Grand Pavilion, Hibiscus Way, 802 West Bay Road, Grand Cayman, KY1-1205, Cayman Island. |
| (4) | Represents 6,577,459 PubCo Class A Ordinary Shares directly held by PCCW Media International Limited (“PMIL”). PMIL is a wholly-owned subsidiary of PCCW Limited, the shares of which are listed in Hong Kong. The board of directors of PCCW Limited has voting and investment power over the aforementioned ordinary shares. Based on the public disclosure of PCCW Limited, Mr. Li is the Chairman and an Executive Director of PCCW Limited. Mr. Li is the founder of certain trusts, including discretionary trusts in which he can influence how the trustees of such trusts exercise discretion. Through other entities that he directly or indirectly owns, and the trusts, Mr. Li has an interest in an aggregate of 2,391,129,358 shares of PCCW Limited (representing approximately 30.89% of PCCW Limited). The board of directors of PCCW Limited consists of Mr. Li, Susanna Hon Hing Hui, Edmund Sze Wing Tse, GBS, Shusen Meng, Fang Wang, David Zhe Wei, Aman Mehta, Frances Waikwun Wong, Bryce Wayne Lee, Lars Eric Nils Rodert, David Christopher Chance and Sharhan Mohamed Muhseen Mohamed. The business address of PMIL is 41st Floor, PCCW Tower, Taikoo Place, 979 King’s Road, Quarry Bay, Hong Kong. |
| (5) | Represents 1,600,000 PubCo Class A Ordinary Shares directly held by Daniel Wong. The business address of Daniel Wong is c/o 38/F Champion Tower, 3 Garden Road, Central, Hong Kong. |
| (6) | Represents (i) 40,105 PubCo Class A Ordinary Shares directly held by Mr. Aggarwal and (ii) 521,606 PubCo Class A Ordinary Shares underlying the same number of PubCo Options, which are exercisable at Mr. Aggarwal’s option. |
| (7) | Represents (i) 42,367 PubCo Class A Ordinary Shares and 79,443 PubCo Preference Shares directly held by Mr. Kraft, (ii) 17,097 PubCo Class A Ordinary Shares issuable to Mr. Kraft upon the exercise of warrants to purchase PubCo Class A Ordinary Shares, and (iii) 312,963 PubCo Class A Ordinary Shares underlying the same number of PubCo Options, which are exercisable at Mr. Kraft’s option. |
| (8) | Represents (i) 1,536 PubCo Class A Ordinary Shares directly held by Mr. Murthy, (ii) 11,607 PubCo Class A Ordinary Shares issuable to Mr. Murthy upon the exercise of warrants to purchase PubCo Class A Ordinary Shares, and (iii) 104,321 PubCo Class A Ordinary Shares underlying the same number of PubCo Options, which are exercisable at Mr. Murthy’s option. |
| (9) | Represents 4,010 PubCo Class A Ordinary Shares directly held by Mr. Syz. Mr. Syz’s business address is Dreikönigstrasse 12, 8027 Zürich. |
B. Related Party Transactions
Information regarding certain related party transactions is included in the Proxy Statement/Prospectus under the section titled “Certain Relationships and Related Person Transactions—MoneyHero Group’s and PubCo’s Relationships and Related Party Transactions” and is incorporated herein by reference.
On the Closing Date, PubCo executed a deed poll constituting up to US$5,000,000 of fixed rate unsecured loan notes, bearing a PIK interest rate of 25% per annum (together with any PIK notes, the “Call Option Notes”) subscribed by PMIL. Immediately after the closing of the Business Combination, PMIL elected to exercise its call option in full pursuant to the call option agreement, dated May 25, 2023, by and between PubCo and PMIL, as a result of which it received 2,005,460 PubCo Class A Ordinary Shares for no consideration and subscribed for 5 million of Call Option Notes in an aggregate principal amount of US$5,000,000 at a price of US$1.00 per Call Option Note.
C. Interests of Experts and Counsel
Not applicable.
| ITEM 8. | FINANCIAL INFORMATION |
A. Consolidated Statements and Other Financial Information
Consolidated Financial Statements
See Item 18 of this Report for consolidated financial statements and other financial information.
Legal and Arbitration Proceedings
Following and as a result of the Business Combination, the business of PubCo is conducted through CGCL, its direct, wholly-owned subsidiary. Information regarding legal proceedings involving CGCL is included in the Proxy Statement/Prospectus under the section titled “Information Related to the MoneyHero Group—Legal Proceedings” and is incorporated herein by reference.
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Dividend Policy
Following and as a result of the Business Combination, the business of PubCo is conducted through CGCL, its direct, wholly-owned subsidiary. Information regarding PubCo’s dividend policy is included in the Proxy Statement/Prospectus under the section titled “Description of PubCo Securities—Dividends” and is incorporated herein by reference.
B. Significant Changes
None.
| ITEM 9. | THE OFFER AND LISTING |
A. Offer and Listing Details
Nasdaq Listing
The PubCo Class A Ordinary Shares and PubCo’s public warrants are listed on Nasdaq under the symbols “MNY” and “MNYWW.” Holders of PubCo ordinary shares should obtain current market quotations for their securities. There can be no assurance that the PubCo ordinary shares will remain listed on Nasdaq. If PubCo fails to comply with the Nasdaq listing requirements, the PubCo Class A Ordinary Shares could be delisted from Nasdaq. A delisting of the PubCo Class A Ordinary Shares will likely affect their liquidity and could inhibit or restrict the ability of PubCo to raise additional financing.
Lock-up Agreements
Pursuant to a company holders support agreement and deed dated May 25, 2023, certain affiliate shareholders of PubCo have agreed not to, without the prior written consent of the PubCo Board, transfer (i) certain of their PubCo Class A Ordinary Shares, PubCo Preference Shares and warrants to purchase PubCo Class A Ordinary Shares, (ii) any PubCo Class A Ordinary Shares received by them upon the exercise of such warrants or (iii) any other equity security of PubCo issued or issuable to them with respect to any securities referenced in sub-clauses (i) and (ii) by way of a share dividend or share split or in connection with a recapitalization, merger, consolidation, spin-off, reorganization or similar transaction for a period commencing on the Closing Date and ending on the earliest of: (i) the date falling six months after the Closing Date; (ii) the date on which the last reported sale price of PubCo Class A Ordinary Shares equals or exceeds US$12.00 per share (subject to an equitable adjustment to reflect the effect of any share subdivisions, share consolidations, share dividends, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change) for any 10 consecutive trading days within any period commencing at least 150 days after the Closing Date; and (iii) the date of the completion of a bona fide amalgamation, merger, scheme of arrangement, business combination, consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up or other similar transaction which results in all of PubCo’s security holders having the right to exchange their PubCo securities for cash, securities or other property (other than solely for equity securities of PubCo) following the Closing Date, subject to certain exceptions.
Pursuant to a sponsor support agreement and deed dated May 25, 2023, Sponsor has agreed to the same lock-up terms described above with respect to its 451,839 PubCo Class A Ordinary Shares, 12,659,892 PubCo Class B Ordinary Shares and 6,449,936 warrants to purchase the same number of PubCo Class A Ordinary Shares. In addition, under the sponsor support agreement, Sponsor has agreed to subject 2,000,000 of its PubCo Class B Ordinary Shares in PubCo (the “Earn-Out Shares”) to potential forfeiture, with such potential forfeiture lapsing, and the Earn-Out Shares vesting in Sponsor, if the 20-day volume weighted average trading price of PubCo Class A Ordinary Shares on the 2nd, 4th, 6th, 8th or 10th anniversary of the Closing Date is equal to or exceeds $10.00 per PubCo Class A Ordinary Share. Furthermore, pursuant to the non-redemption deeds executed by Sponsor on May 25, 2023 (collectively, the “Non-Redemption Deeds”) in favor of each of FWD Life Insurance Public Company and FWD Life Insurance Company, Limited, both of which assigned their rights under the Non-Redemption Deeds to EIHL on October 10, 2023, Sponsor has agreed to a lock-up of its 451,839 PubCo Class A Ordinary Shares and 10,659,892 PubCo Class B Ordinary Shares for a maximum period of five years following the Closing Date in connection with its obligations under the Non-Redemption Deeds, subject to the terms and conditions of the Non-Redemption Deeds.
Mr. Daniel Wong, Bridgetown’s Chief Executive Officer, Chief Financial Officer and director, has also agreed to (i) a lock-up of 1,460,000 of his 1,600,000 PubCo Class A Ordinary Shares for the same period of time as the 451,839 PubCo Class A Ordinary Shares and 10,659,892 PubCo Class B Ordinary Shares of Sponsor are subject to a lock-up under the Non-Redemption Deeds, subject to a maximum period of five years following the Closing Date, and (ii) a lock-up of his 1,600,000 PubCo Class A Ordinary Shares pursuant to a letter agreement dated October 15, 2020, as amended on May 25, 2023 (the “Insider Letter”), pursuant to which he shall not sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or enter into any swap or other arrangement that transfers to another, in whole or in part , any of the economic consequences of ownership of these shares until the earlier of (A) six months after the Closing Date or (B) (x) if the last sale price of PubCo Class A Ordinary Shares equals or exceeds $12.00 per share (as adjusted for share splits, share capitalizations, rights issuances, subdivisions, reorganizations, recapitalizations and the like) for any 20 trading days within any 30-trading day period commencing at least 150 days after the Closing Date or (y) the date on which PubCo completes a liquidation, merger, share exchange, reorganization or other similar transaction that results in all of PubCo’s shareholders having the right to exchange their ordinary shares for cash, securities or other property. Certain other directors and advisors of Bridgetown holding an aggregate of 20,000 PubCo Class A Ordinary Shares and 594,946 PubCo Class B Ordinary Shares have also agreed to the lock-up terms of such Insider Letter. In addition, certain non-affiliate shareholders of PubCo holding an aggregate of 31,813 PubCo Class A Ordinary Shares have agreed not to sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of, or agree to dispose of, directly or indirectly, any of such shares without the prior written consent of the PubCo Board (other than in connection with any sale of such securities to PubCo to cover any applicable taxes due upon the issuance of the PubCo securities thereunder) during the period commencing from the Closing Date and ending on the date falling six months after the Closing Date. All PubCo Class A Ordinary Shares issuable upon the exercise of PubCo Options are also subject to the same lock-up.
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B. Plan of Distribution
Not applicable.
C. Markets
The PubCo Class A Ordinary Shares and PubCo’s public warrants are listed on Nasdaq under the symbols “MNY” and “MNYWW.” There can be no assurance that these securities will remain listed on Nasdaq. If PubCo fails to comply with Nasdaq’s listing requirements, the PubCo’s Class A ordinary shares and/or public warrants could be delisted from Nasdaq. A delisting of the PubCo Class A Ordinary Shares and/or public warrants will likely affect their liquidity and could inhibit or restrict the ability of PubCo to raise additional financing.
D. Selling Shareholders
Not Applicable.
E. Dilution
Not applicable.
F. Expenses of the Issue
Not applicable.
| ITEM 10. | ADDITIONAL INFORMATION |
A. Share Capital
The authorized share capital of PubCo is US$50,000 divided into 440,000,000 PubCo Class A Ordinary Shares, 50,000,000 PubCo Class B Ordinary Shares and 10,000,000 PubCo Preference Shares.
As of the date hereof, subsequent to the closing of the Business Combination, there were 23,972,068 PubCo Class A Ordinary Shares, 13,254,838 PubCo Class B Ordinary Shares and 4,450,419 PubCo Preference Shares issued and outstanding.
Information regarding our share capital is included in the Proxy Statement/Prospectus under the section titled “Description of PubCo Securities” and is incorporated herein by reference.
B. Memorandum and Articles of Association
Information regarding certain material provisions of the articles of association of PubCo is included in the Proxy Statement/Prospectus under the section titled “Description of PubCo Securities” and is incorporated herein by reference.
C. Material Contracts
Information regarding certain material contracts is included in the Proxy Statement/Prospectus under the sections titled “The Business Combination Proposal—The Business Combination Agreement,” “The Business Combination Proposal—Related Agreements,” “Risk Factors—Risks Related to the MoneyHero Group’s Business and Industry,” and “Certain Relationships and Related Person Transactions,” which are incorporated herein by reference.
D. Exchange Controls
There are no governmental laws, decrees, regulations or other legislation in the Cayman Islands that may affect the import or export of capital, including the availability of cash and cash equivalents for use by PubCo, or that may affect the remittance of dividends, interest, or other payments by PubCo to non-resident holders of its ordinary shares. There is no limitation imposed by the laws of Cayman Islands or in PubCo’s articles of association on the right of non-residents to hold or vote shares.
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Information regarding exchange control is included in the Proxy Statement/Prospectus under the section titled “Regulatory Overview” and is incorporated herein by reference.
E. Taxation
Information regarding certain U.S. tax consequences of owning and disposing of PubCo ordinary shares and warrants is included in the Proxy Statement/Prospectus under the section titled “Material Tax Considerations—U.S. Federal Income Tax Considerations” and is incorporated herein by reference.
F. Dividends and Paying Agents
Not applicable.
G. Statement by Experts
The financial statements for Bridgetown Holdings Limited as of and for the years ended December 31, 2022 and 2021, have been incorporated by reference herein in reliance upon the report of Withum, Smith + Brown, PC, an independent registered public accounting firm, incorporated by reference herein, and upon the authority of such firm as an expert in accounting and auditing.
The consolidated financial statements of CompareAsia Group Capital Limited at December 31, 2022 and 2021 and for the years then ended, as well as the financial statements of PubCo as of March 31, 2023 and for the period from March 21, 2023 (date of incorporation) to March 31, 2023 included in the Proxy Statement/Prospectus have been incorporated by reference herein in reliance upon the reports of Ernst & Young, an independent registered public accounting firm, incorporated by reference herein, and upon the authority of such firm as experts in accounting and auditing.
H. Documents on Display
PubCo is subject to certain of the informational filing requirements of the Exchange Act. Since PubCo is a “foreign private issuer,” it is exempt from the rules and regulations under the Exchange Act prescribing the furnishing and content of proxy statements, and the officers, directors and principal shareholders of PubCo are exempt from the reporting and “short-swing” profit recovery provisions contained in Section 16 of the Exchange Act with respect to their purchase and sale of PubCo ordinary shares. In addition, PubCo is not required to file reports and financial statements with the SEC as frequently or as promptly as U.S. public companies whose securities are registered under the Exchange Act. However, PubCo is required to file with the SEC an Annual Report on Form 20-F containing financial statements audited by an independent accounting firm. The SEC also maintains a website at www.sec.gov that contains reports and other information that PubCo files with or furnishes electronically to the SEC. You may read and copy any report or document we file, including the exhibits, at the SEC’s public reference room located at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the public reference room.
The PubCo Class A Ordinary Shares and PubCo’s public warrants are quoted on Nasdaq. Information about PubCo is also available on our website at www.moneyherogroup.com. Our website and the information contained therein or connected thereto will not be deemed to be incorporated into this Report and you should not rely on any such information in making your decision whether to purchase our ordinary shares.
I. Subsidiary Information
Not applicable.
J. Annual Report to Security Holders
Not applicable.
| ITEM 11. | QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK |
Following and as a result of the Business Combination, the business of PubCo is conducted through CGCL, its direct, wholly-owned subsidiary. Information regarding quantitative and qualitative disclosure about market risk is included in the Proxy Statement/Prospectus under the section titled “MoneyHero Group’s Management’s Discussion and Analysis of Financial Condition and Results of Operations—Quantitative and Qualitative Disclosures about Market Risk” and is incorporated herein by reference.
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| ITEM 12. | DESCRIPTION OF SECURITIES OTHER THAN EQUITY SECURITIES |
Information pertaining to PubCo’s warrants is set forth in the Proxy Statement/Prospectus under the sections titled “Description of PubCo’s Securities—Warrants—PubCo Public Warrants and PubCo Sponsor Warrants” and “Description of PubCo’s Securities—Warrants—PubCo Class A Warrants” and is incorporated herein by reference.
Not applicable.
| ITEM 17. | FINANCIAL STATEMENTS |
See Item 18.
| ITEM 18. | FINANCIAL STATEMENTS |
The audited consolidated financial statements of CompareAsia Group Capital Limited as of December 31, 2022 and 2021 and for the years then ended, the unaudited interim condensed consolidated financial statements of CompareAsia Group Capital Limited as of June 30, 2023 and for the six months ended June 30, 2023 and 2022, the audited consolidated financial statements of MoneyHero Limited (formerly known as Hyphen Group Limited) as of March 31, 2023 and for the period from March 21, 2023 (date of incorporation) to March 31, 2023, and the unaudited interim condensed consolidated financial statements of MoneyHero Limited as of June 30, 2023 and for the period from March 21, 2023 (date of incorporation) to June 30, 2023 are incorporated by reference to pages F-2–F-109 in the Form F-4.
The audited consolidated financial statements for Bridgetown Holdings Limited as of and for the years ended December 31, 2022 and 2021 and the unaudited consolidated financial statements for Bridgetown Holdings Limited as of June 30, 2023 and for the three and six months ended June 30, 2023 and 2022 are incorporated by reference to pages F-110–F-160 in the Form F-4.
The unaudited pro forma condensed combined financial statements of PubCo are attached as Exhibit 15.1 to this Report.
| ITEM 19. | EXHIBITS |
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| (*) | Filed herewith |
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SIGNATURES
The registrant hereby certifies that it meets all of the requirements for filing on Form 20-F and that it has duly caused and authorized the undersigned to sign this report on its behalf.
| MONEYHERO LIMITED | ||||||
| Date: October 20, 2023 | By: /s/ Shaun Kraft | |||||
| Name: Shaun Kraft | ||||||
| Title: Chief Financial Officer and Chief Operating Officer | ||||||
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Exhibit 1.1
THE COMPANIES ACT (AS AMENDED)
COMPANY LIMITED BY SHARES
SECOND AMENDED AND RESTATED
MEMORANDUM AND ARTICLES OF ASSOCIATION
OF
MONEYHERO LIMITED
(ADOPTED BY SPECIAL RESOLUTION DATED 12 OCTOBER 2023)
| CERTIFIED TRUE COPY | ||||||||
| ||||||||
| Name: Vivian Chan Date: 12 October 2023 Walkers Corporate Limited 190 Elgin Avenue, George Town Grand Cayman KY1-9008 Cayman Islands | ||||||||
THE COMPANIES ACT (AS AMENDED)
COMPANY LIMITED BY SHARES
SECOND AMENDED AND RESTATED MEMORANDUM OF ASSOCIATION
OF
MONEYHERO LIMITED
(ADOPTED BY SPECIAL RESOLUTION DATED 12 OCTOBER 2023)
| 1. | The name of the company is MoneyHero Limited (the “Company”). |
| 2. | The registered office of the Company will be situated at the offices of Walkers Corporate Limited, 190 Elgin Avenue, George Town, Grand Cayman KY1-9008, Cayman Islands or at such other location as the Directors may from time to time determine. |
| 3. | The objects for which the Company is established are unrestricted and the Company shall have full power and authority to carry out any object not prohibited by any law as provided by Section 7(4) of the Companies Act (as amended) of the Cayman Islands (the “Companies Act”). |
| 4. | The Company shall have and be capable of exercising all the functions of a natural person of full capacity irrespective of any question of corporate benefit as provided by Section 27(2) of the Companies Act. |
| 5. | The Company will not trade in the Cayman Islands with any person, firm or corporation except in furtherance of the business of the Company carried on outside the Cayman Islands; provided that nothing in this section shall be construed as to prevent the Company effecting and concluding contracts in the Cayman Islands, and exercising in the Cayman Islands all of its powers necessary for the carrying on of its business outside the Cayman Islands. |
| 6. | The liability of the shareholders of the Company is limited to the amount, if any, unpaid on the shares respectively held by them. |
| 7. | The authorised share capital of the Company is US$50,000 divided into 440,000,000 Class A ordinary shares of a nominal or par value of US$0.0001 each, 50,000,000 Class B ordinary shares of a nominal or par value of US$0.0001 each and 10,000,000 convertible preference shares of a nominal or par value of US$0.0001 each, provided always that subject to the Companies Act and the Articles of Association the Company shall have power to redeem or purchase any of its shares and to sub-divide or consolidate the said shares or any of them and to issue all or any part of its capital whether original, redeemed, increased or reduced with or without any preference, priority, special privilege or other rights or subject to any postponement of rights or to any conditions or restrictions whatsoever and so that unless the conditions of issue shall otherwise expressly provide every issue of shares whether stated to be ordinary, preference or otherwise shall be subject to the powers on the part of the Company hereinbefore provided. |
| 8. | The Company may exercise the power contained in Section 206 of the Companies Act to deregister in the Cayman Islands and be registered by way of continuation in some other jurisdiction. |
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TABLE OF CONTENTS
| CLAUSE | PAGE | |||
| TABLE A | 1 | |||
| INTERPRETATION | 1 | |||
| PRELIMINARY | 7 | |||
| SHARES | 7 | |||
| RIGHTS AND RESTRICTIONS ATTACHING TO CLASS A SHARES AND CLASS B SHARES | 8 | |||
| CONVERSION OF CLASS B SHARES | 8 | |||
| PREFERENCE SHARES | 10 | |||
| MODIFICATION OF RIGHTS | 13 | |||
| CERTIFICATES | 14 | |||
| FRACTIONAL SHARES | 14 | |||
| LIEN | 15 | |||
| CALLS ON SHARES | 15 | |||
| FORFEITURE OF SHARES | 16 | |||
| TRANSFER OF SHARES | 17 | |||
| TRANSMISSION OF SHARES | 18 | |||
| REGISTRATION OF EMPOWERING INSTRUMENTS | 19 | |||
| ALTERATION OF SHARE CAPITAL | 19 | |||
| REDEMPTION, PURCHASE AND SURRENDER OF SHARES | 19 | |||
| TREASURY SHARES | 20 | |||
| GENERAL MEETINGS | 21 | |||
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| NOTICE OF GENERAL MEETINGS | 21 | |
| PROCEEDINGS AT GENERAL MEETINGS | 22 | |
| VOTES OF SHAREHOLDERS | 23 | |
| DEPOSITARY AND CLEARING HOUSES | 24 | |
| CORPORATIONS ACTING BY REPRESENTATIVES AT MEETINGS | 24 | |
| DIRECTORS | 24 | |
| ALTERNATE DIRECTOR | 26 | |
| POWERS AND DUTIES OF DIRECTORS | 26 | |
| BORROWING POWERS OF DIRECTORS | 29 | |
| THE SEAL | 29 | |
| DISQUALIFICATION OF DIRECTORS | 29 | |
| PROCEEDINGS OF DIRECTORS | 30 | |
| DIVIDENDS | 32 | |
| ACCOUNTS, AUDIT AND ANNUAL RETURN AND DECLARATION | 33 | |
| CAPITALISATION OF RESERVES | 34 | |
| SHARE PREMIUM ACCOUNT | 35 | |
| NOTICES | 35 | |
| INFORMATION | 37 | |
| INDEMNITY | 37 | |
| NON-RECOGNITION OF TRUSTS | 38 | |
| WINDING UP | 38 | |
| AMENDMENT OF ARTICLES OF ASSOCIATION | 39 | |
| CLOSING OF REGISTER OR FIXING RECORD DATE | 39 |
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| REGISTRATION BY WAY OF CONTINUATION |
39 | |||
| MERGERS AND CONSOLIDATION |
40 | |||
| DISCLOSURE |
40 | |||
| EXCLUSIVE FORUM |
40 |
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THE COMPANIES ACT (AS AMENDED)
COMPANY LIMITED BY SHARES
SECOND AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
OF
MONEYHERO LIMITED
(ADOPTED BY SPECIAL RESOLUTION DATED 12 OCTOBER 2023)
TABLE A
The Regulations contained or incorporated in Table ‘A’ in the First Schedule of the Companies Act shall not apply to MoneyHero Limited (the “Company”) and the following Articles shall comprise the Articles of Association of the Company.
INTERPRETATION
| 1. | In these Articles the following defined terms will have the meanings ascribed to them, if not inconsistent with the subject or context: |
Acquisition Closing Date the effective date of the merger of Gemini Merger Sub 2 Limited, a Cayman Islands exempted company limited by shares and a direct wholly-owned subsidiary of the Company and CompareAsia Group Capital Limited, a Cayman Islands exempted company limited by shares pursuant to that certain Business Combination Agreement, dated as of 25 May 2023 by and among the Company, Gemini Merger Sub 2 Limited, CompareAsia Group Capital Limited and other parties named therein.
“Affiliate” means:
(i) in relation to any specified Person that is a natural person, that Person’s relatives (being the spouse and children of such Person and any parent or siblings of such Person or spouse), any trust for the benefit of that Person and/or that Person’s relatives or estate, or any Person which is controlled, directly or indirectly, by that Person and/or that Person’s relatives (acting singly or together), and following the death of such Person, such Person’s estate;
(ii) in relation to any specified Person that is not a natural person, any other Person that directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such specified Person; and
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(iii) in addition, in the case of Mr. Li and his Affiliates, an “Affiliate” shall also include PCCW, any Initial Class B Shareholder and any Person in which more than 30% of the voting or economic rights are held, directly or indirectly, by (or by an Affiliate of) Mr. Li, and Mr. Li and each of his Affiliates shall also be an Affiliate of PCCW, any Initial Class B Shareholder and such specified Person;
provided that the Company and each of its Subsidiaries shall be deemed not to be Affiliates of the Bridgetown Investor. As used in this definition of ‘‘Affiliate’’, the word “control” (including its correlative meanings, “controlled by”, “controlling”and “under common control with”) shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
“Applicable Law” means any legislation, statute, act, decree, rule, order, treaty, directive, regulation, subsidiary or subordinate legislation, code, judgment, order, statutory guidance note, circular, decree, directive, code of practice, notice or announcement or any other law (including common law, securities laws and regulations or listing rules), or any interpretation thereof, which is binding on a party which has been enacted, issued or promulgated by any Governmental Body or any order, judgment or decree of any court with jurisdiction over the relevant party.
“Articles” means these articles of association of the Company, as amended or substituted from time to time.
“Board” means the board of Directors of the Company from time to time.
“Branch Register” means any branch Register of such category or categories of Members as the Company may from time to time determine.
“Bridgetown Investor” means Bridgetown LLC, a Cayman Islands limited liability company.
“Business Day” means a day on which banks are open for ordinary banking business in Hong Kong, Singapore, the Cayman Islands and New York (excluding Saturdays, Sundays and public holidays).
“Chairman” means chairman of the Board, who shall be elected and appointed by a majority of the Directors then in office.
“Class” or “Classes” means any class or classes of Shares as may from time to time be issued by the Company.
“Class A Share” means a Class A ordinary share with a nominal or par value of $0.0001 each in the capital of the Company, including a fraction of such Class A ordinary share.
“Class B Share” means a Class B ordinary share with a nominal or par value of $0.0001 each in the capital of the Company, including a fraction of such Class B ordinary share.
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“Companies Act” means the Companies Act (as amended) of the Cayman Islands.
“Company’s Website” means the main corporate/investor relations website of the Company, the address or domain name of which has been disclosed in any registration statement filed by the Company with the Commission, or which has otherwise been notified to the Shareholders.
“Commission” means the Securities and Exchange Commission of the United States of America or any other federal agency for the time being administering the Securities Act.
“Conversion Price” means, initially, US$8.110360 per Class A Share, as adjusted from and after the Acquisition Closing Date in accordance with Article 23.
“Deemed Subscription Price” means US$8.110360 per Preference Share.
“Designated Stock Exchange” means any national securities exchange or automated quotation system on which the Company’s securities are traded, including but not limited to the New York Stock Exchange and Nasdaq Capital Market.
“Directors” means the directors of the Company for the time being, including any duly appointed alternate, or as the case may be, the directors assembled as a board or as a committee thereof.
“electronic” has the meaning given to it in the Electronic Transactions Act and any amendment thereto or re-enactments thereof for the time being in force and includes every other law incorporated therewith or substituted therefor.
“electronic communication” means electronic posting to the Company’s Website, transmission to any number, address or internet website or other electronic delivery methods as otherwise decided and approved by not less than two-thirds of the vote of the Board.
“electronic record” has the meaning given to it in the Electronic Transactions Act and any amendment thereto or re-enactments thereof for the time being in force and includes every other law incorporated therewith or substituted therefor.
“Electronic Transactions Act” means the Electronic Transactions Act (As Revised) of the Cayman Islands and any statutory amendment or re-enactment thereof.
“Exchange Act” means the Securities Exchange Act of 1934 of the United States of America, as amended, or any similar federal statute and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time.
“Governmental Body" means any foreign, federal, state, provincial, local or other court, governmental authority, tribunal, commission or regulatory body or self-regulatory body (including any securities exchange), or any political or other subdivision, department, agency or branch of any of the foregoing.
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“Initial Class B Shareholders” means Bridgetown Investor, Daniel Wong, Samuel Altman, John R. Hass, In Joon Hwang, Kenneth Ng and Steve Teichman.
“Liquidation” means the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary.
“Memorandum of Association” means the memorandum of association of the Company, as amended or substituted from time to time.
“Mr. Li” means Mr. Li Tzar Kai, Richard.
“Office” means the registered office of the Company as required by the Companies Act.
“Officers” means the officers for the time being and from time to time of the Company.
“Ordinary Resolution” means a resolution:
| (a) | passed by a simple majority of such Shareholders as, being entitled to do so, vote in person or, where proxies are allowed, by proxy at a general meeting of the Company and where a poll is taken regard shall be had in computing a majority to the number of votes to which each Shareholder is entitled; or |
| (b) | approved in writing by all of the Shareholders entitled to vote at a general meeting of the Company in one or more instruments each signed by one or more of the Shareholders and the effective date of the resolution so adopted shall be the date on which the instrument or the last of such instruments, if more than one, is executed. |
“paid up” means paid up as to the par value in respect of the issue of any Shares and includes Shares credited as paid up.
“PCCW” means PCCW Media International Limited.
“Person” means any natural person, firm, company, joint venture, partnership, corporation, association or other entity (whether or not having a separate legal personality) or any of them as the context so requires, other than in respect of a Director or Officer in which circumstances Person shall mean any person or entity permitted to act as such in accordance with the laws of the Cayman Islands.
“Preference Share” means a convertible preference share with a nominal or par value of $0.0001 each in the capital of the Company, including a fraction of such convertible preference share.
“Principal Register”, where the Company has established one or more Branch Registers pursuant to the Companies Act and these Articles, means the Register maintained by the Company pursuant to the Companies Act and these Articles that is not designated by the Directors as a Branch Register.
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“Register” means the register of Members of the Company required to be kept pursuant to the Companies Act and includes any Branch Register(s) established by the Company in accordance with the Companies Act.
“Seal” means the common seal of the Company (if adopted) including any facsimile thereof.
“Secretary” means any Person appointed by the Directors to perform any of the duties of the secretary of the Company.
“Securities Act” means the Securities Act of 1933 of the United States of America, as amended, or any similar federal statute and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time.
“Share” means a share in the capital of the Company. All references to “Shares” herein shall be deemed to be Shares of any or all Classes as the context may require. For the avoidance of doubt in these Articles the expression “Share” shall include a fraction of a Share.
“Shareholder” or “Member” means a Person who is registered as the holder of Shares in the Register and includes each subscriber to the Memorandum of Association pending entry in the Register.
“Share Premium Account” means the share premium account established in accordance with these Articles and the Companies Act.
“signed” means bearing a signature or representation of a signature affixed by mechanical means.
“Special Resolution” means a special resolution of the Company passed in accordance with the Companies Act, being a resolution:
| (a) | passed by a majority of not less than two-thirds (2/3) of such Shareholders as, being entitled to do so, vote in person or, where proxies are allowed, by proxy at a general meeting of the Company of which notice specifying the intention to propose the resolution as a special resolution has been duly given and where a poll is taken regard shall be had in computing a majority to the number of votes to which each Shareholder is entitled; or |
| (b) | approved in writing by all of the Shareholders entitled to vote at a general meeting of the Company in one or more instruments each signed by one or more of the Shareholders and the effective date of the special resolution so adopted shall be the date on which the instrument or the last of such instruments, if more than one, is executed. |
“Subsidiary” means,with respect to any specified Person, any person that is directly or indirectly through one or more intermediaries controlled by such specified person, provided that the Company and each of its Subsidiaries shall be deemed not to be Subsidiaries of the Bridgetown Investor. As used in this definition of “Subsidiary”, the word “control” (including its correctly meaning ), “controlled by” and “controlling” shall mean the possession, directly or indirectly of the power to direct or cause the direction of the management or policies of such person, whether through the ownership of voting securities, by contract or otherwise.
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“Treasury Shares” means Shares that were previously issued but were purchased, redeemed, surrendered or otherwise acquired by the Company and not cancelled.
| 2. | In these Articles, save where the context requires otherwise: |
| (a) | words importing the singular number shall include the plural number and vice versa; |
| (b) | words importing the masculine gender only shall include the feminine gender and any Person as the context may require; |
| (c) | the word “may” shall be construed as permissive and the word “shall” shall be construed as imperative; |
| (d) | reference to USD (or $) and to a US cent or cents is reference to dollars of the United States of America; |
| (e) | reference to a statutory enactment shall include reference to any amendment or re- enactment thereof for the time being in force; |
| (f) | reference to any determination by the Directors shall be construed as a determination by the Directors in their sole and absolute discretion and shall be applicable either generally or in any particular case; |
| (g) | reference to “in writing” shall be construed as written or represented by any means reproducible in writing, including any form of print, lithograph, email, facsimile, photograph or telex or represented by any other substitute or format for storage or transmission for writing including in the form of an electronic record or partly one and partly another; |
| (h) | any requirements as to delivery under the Articles include delivery in the form of an electronic record or an electronic communication; |
| (i) | any requirements as to execution or signature under the Articles, including the execution of the Articles themselves, can be satisfied in the form of an electronic signature as defined in the Electronic Transactions Act; and |
| (j) | Sections 8 and 19(3) of the Electronic Transactions Act shall not apply. |
| 3. | Subject to the preceding Articles, any words defined in the Companies Act shall, if not inconsistent with the subject or context, bear the same meaning in these Articles. |
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PRELIMINARY
| 4. | The business of the Company may be commenced at any time after incorporation. |
| 5. | The Office shall be at such address in the Cayman Islands as the Directors may from time to time determine. The Company may in addition establish and maintain such other offices and places of business and agencies in such places as the Directors may from time to time determine. |
| 6. | The expenses incurred in the formation of the Company and in connection with the offer for subscription and issue of Shares shall be paid by the Company. Such expenses may be amortised over such period as the Directors may determine and the amount so paid shall be charged against income and/or capital in the accounts of the Company as the Directors shall determine. |
| 7. | The Directors shall keep, or cause to be kept, the Register at such place or (subject to compliance with the Companies Act and these Articles) places as the Directors may from time to time determine. In the absence of any such determination, the Register shall be kept at the Office. The Directors may keep, or cause to be kept, one or more Branch Registers as well as the Principal Register in accordance with the Companies Act, provided always that a duplicate of such Branch Register(s) shall be maintained with the Principal Register in accordance with the Companies Act. |
SHARES
| 8. | Subject to these Articles, all Shares for the time being unissued shall be under the control of the Directors who may: |
| (a) | issue, allot and dispose of the same to such Persons, in such manner, on such terms and having such rights and being subject to such restrictions as they may from time to time determine; and |
| (b) | grant options with respect to such Shares and issue warrants or similar instruments with respect thereto; and, for such purposes, the Directors may reserve an appropriate number of Shares for the time being unissued. |
| 9. | The Directors, or the Shareholders by Ordinary Resolution, may authorise the division of Shares into any number of Classes and sub-classes and the different Classes and sub-classes shall be authorised, established and designated (or re-designated as the case may be) and the variations in the relative rights (including, without limitation, voting, dividend and redemption rights), restrictions, preferences, privileges and payment obligations as between the different Classes (if any) may be fixed and determined by the Directors or the Shareholders by Ordinary Resolution. |
| 10. | The Company may insofar as may be permitted by law, pay a commission to any Person in consideration of his subscribing or agreeing to subscribe whether absolutely or conditionally for any Shares. Such commissions may be satisfied by the payment of cash or the lodgement of fully or partly paid-up Shares or partly in one way and partly in the other. The Company may also pay such brokerage as may be lawful on any issue of Shares. |
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| 11. | The Directors may refuse to accept any application for Shares, and may accept any application in whole or in part, for any reason or for no reason. |
RIGHTS AND RESTRICTIONS ATTACHING TO CLASS A SHARES AND CLASS B SHARES
| 12. | Subject to the provisions of Article 17 through Article 24 and except as otherwise provided in these Articles (including Articles 14 to 16 and Article 89), the Class A Shares and Class B Shares have the same rights and powers, and rank pari passu (including as to dividends and distributions, and upon the occurrence of any Liquidation), share ratably and are identical in all respects and as to all matters. |
| 13. | The Class B Shares shall only be held by the Initial Class B Shareholders and their respective Affiliates. |
CONVERSION OF CLASS B SHARES
| 14. | Optional and Automatic Conversion of Class B Shares. |
| (a) | Each Class B Share is convertible into one (1) Class A Share (as adjusted for share subdivisions, share consolidations and similar transactions after the Acquisition Closing Date) at any time at the option of the holder thereof. In no event shall any Class A Shares be convertible into any Class B Shares. |
| (b) | Any number of Class B Shares held by a holder thereof shall be automatically and immediately converted into an equal number of Class A Shares in accordance with these Articles (as adjusted for share subdivisions, consolidations and similar transactions after the Acquisition Closing Date) upon the occurrence of any of the following: |
| (i) | any direct or indirect sale, transfer, assignment, or disposition of such Class B Shares by the holder thereof or the direct or indirect transfer or assignment of the voting power attached to such Class B Shares through voting proxy or otherwise, in each case to another Person that is not an Affiliate of such holder; |
for the avoidance of doubt, (A) the creation of any pledge, charge, encumbrance, or other third party right of whatever description on any of Class B Shares to secure contractual or legal obligations shall not be deemed as a sale, transfer, assignment, or disposition under this Article 14(b)(i) unless and until any such pledge, charge, encumbrance, or other third party right is enforced and results in a third party that is not an Affiliate of such holder holding directly or indirectly legal or beneficial ownership or voting power through voting proxy or otherwise to the related Class B Shares, in which case all the related Class B Shares shall be automatically converted into the same number of Class A Shares; and (B) the assignment of voting power through a single proxy for the purposes of attending and voting at only one meeting (or any adjournment thereof) of the Company shall not result in any conversion of such Class B Shares into an equal number of Class A Shares under this Article 14(b)(i) or Article 14(b)(ii);
8
| (ii) | the direct or indirect sale, transfer, assignment, or disposition of a majority of the issued and outstanding voting securities of, or the direct or indirect transfer or assignment of the voting power attached to such voting securities through voting proxy or otherwise, or the direct or indirect sale, transfer, assignment, or disposition of all or substantially all of the assets of, a holder of Class B Shares that is an entity to any Person that is not an Affiliate of the such holder; |
for the avoidance of doubt, (A) the creation of any pledge, charge, encumbrance, or other third party right of whatever description on the issued and outstanding voting securities or the assets of a holder of Class B Shares to secure contractual or legal obligations shall not be deemed as a sale, transfer, assignment, or disposition under this Article 14(b)(ii) unless and until any such pledge, charge, encumbrance or other third party right is enforced and results in a third party that is not an Affiliate of such holder holding directly or indirectly legal or beneficial ownership or voting power through voting proxy or otherwise to the related issued and outstanding voting securities or the assets; and (B) the assignment of voting power through a single proxy for the purposes of attending and voting at only one meeting (or any adjournment thereof) of a direct or indirect holder of Class B Shares shall not result in any conversion of such voting securities into an equal number of Class A Shares under Article 14(b)(i) or this Article 14(b)(ii).
| (c) | Each Class B Share in issue shall be automatically and immediately converted into one (1) Class A Share (as adjusted for share subdivisions, consolidations and similar transactions after the Acquisition Closing Date) (i) at any time upon the holders of at least two-thirds (2/3) of the issued Class B Shares voting for or consenting to such conversion; or (ii) upon Mr. Li or any of his Affiliates ceasing to be the ultimate direct or indirect beneficial owner of any issued and outstanding Class B Shares. |
| 15. | Any conversion of Class B Shares into Class A Shares pursuant to these Articles shall be effected by means of the automatic acquisition and cancellation by the Company of each relevant Class B Share and the immediate issuance of a Class A Share. Other than in connection with share subdivisions, consolidations or similar transactions, the Company shall not issue any additional Class B Shares. |
| 16. | The Company shall at all times reserve and keep available out of its authorised but unissued Class A Shares, solely for the purpose of effecting the conversion of Class B Shares, such number of its Class A Shares as shall from time to time be sufficient to effect the conversion of all issued and outstanding Class B Shares; and if at any time the number of authorised but unissued Class A Shares shall not be sufficient to effect the conversion of all then-issued and outstanding Class B Shares, the Company will take such corporate action as may, in the opinion of its counsel, be necessary to increase its authorised but unissued Class A Shares by such number as shall be sufficient for such purpose. |
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PREFERENCE SHARES
| 17. | In the event of any Liquidation, the holders of Preference Shares then issued and outstanding shall, with respect to each Preference Share held by such holder, be entitled to receive, prior to any distribution to the holders of the Class A Shares, Class B Shares or any other class or series of Shares, such liquidation preference in an amount equal to the higher of (a) 100% of the Deemed Subscription Price, as adjusted for share dividends, share subdivisions, share consolidations, recapitalizations or similar events and (b) the aggregate value that such holder would have received with respect to such Preference Share had all holders of Preference Shares, immediately prior to such Liquidation, converted all Preference Shares then issued and outstanding into Class A Shares at the applicable Conversion Price then in effect in accordance with provisions of Articles 20, 21 and 23 (the aggregate amount of such liquidation preference with respect to all Preference Shares is referred to as the Preference Amount”). |
| 18. | If upon any Liquidation the remaining assets of the Company available for distribution to the Shareholders shall be insufficient to pay the holders of the Preference Shares the full Preference Amount pursuant to Article 17, (a) the holders of the Preference Shares shall share ratably in any distribution of the remaining assets and funds of the Company in proportion to the respective portion of the full Preference Amount which would otherwise be payable to each holder in respect of such holder’s Preference Shares upon such Liquidation if all amounts payable on or with respect to such Preference Shares were paid in full, and (b) the Company shall not make or agree to make, or set aside for the benefit of the holders of Class A Shares or Class B Shares, any payments to the holders of Class A Shares or Class B Shares. |
| 19. | Each holder of issued and outstanding Preference Shares shall be entitled to vote with holders of issued and outstanding Class A Shares and Class B Shares, voting together as a single class, with respect to any and all matters presented to the Shareholders for their action or consideration (whether at an annual or extraordinary general meeting of the Company, by written action of shareholders in lieu of a meeting or otherwise) pursuant to the provisions of Article 89 through Article 98, except as provided by law. Fractional votes shall not, however, be permitted and any fractional voting rights available on an as-converted basis (after aggregating all Class A Shares into which the Preference Shares held by the applicable holder could be converted) shall be rounded down to the nearest whole number. Each holder of issued and outstanding Preference Shares shall be entitled to notice of all annual or extraordinary general meetings of the Company (or requests for written consent) in accordance with these Articles. |
| 20. | Subject to these Articles (including Article 23), at any time and from time to time after the Acquisition Closing Date, any holder of Preference Shares shall have the right by written election to the Company to convert all or any portion of the issued and outstanding Preference Shares held by such holder into such number of Class A Shares as determined by dividing (a) the product of (x) the number of Preference Shares elected for conversion by such holder multiplied by (y) the Deemed Subscription Price, by (b) the Conversion Price in effect immediately prior to such conversion. |
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| 21. | Any conversion of Preference Shares into Class A Shares pursuant to these Articles shall be effected by means of the automatic acquisition and cancellation by the Company of the relevant Preference Shares and the immediate issuance of the relevant number of Class A Shares calculated in accordance with these Articles on an as-converted basis (after aggregating all Class A Shares into which the Preference Shares held by the applicable holder could be converted), rounded down to the nearest whole number. Other than in connection with share subdivisions, consolidations or similar transactions, the Company shall not issue any additional Preference Shares. |
| 22. | The Company shall at all times reserve and keep available out of its authorised but unissued Class A Shares, solely for the purpose of effecting the conversion of Preference Shares, such number of its Class A Shares as shall from time to time be sufficient to effect the conversion of all issued and outstanding Preference Shares; and if at any time the number of authorised but unissued Class A Shares shall not be sufficient to effect the conversion of all then-issued and outstanding Preference Shares, the Company will take such corporate action as may, in the opinion of its counsel, be necessary to increase its authorised but unissued Class A Shares by such number as shall be sufficient for such purpose. |
| 23. | The Conversion Price and the number of Class A Shares issuable on conversion of the Preference Shares shall be subject to adjustment from time to time as provided in this Article 23. |
| (a) | In case the issued and outstanding Class A Shares shall be subdivided (whether by share subdivision, recapitalization or otherwise) into a greater number of Class A Shares or consolidated (whether by consolidation, reverse share subdivision or otherwise) into a lesser number of Class A Shares, as applicable, then the Conversion Price in effect at the opening of business on the day following the day upon which such subdivision or consolidation becomes effective shall be adjusted to equal the product of the Conversion Price in effect on such date and a fraction, the numerator of which shall be the number of Class A Shares issued and outstanding immediately prior to such subdivision or consolidation and the denominator of which shall be the number of Class A Shares issued and outstanding immediately after such subdivision or consolidation. Such adjustment shall become effective retroactively to the close of business on the day upon which such subdivision or consolidation becomes effective. |
| (b) | In case the Company shall pay or make a dividend or other distribution on Class A Shares payable in Class A Shares (in which case, for the avoidance of doubt, the holders of Preference Shares shall not participate), the Conversion Price in effect at the opening of business on the day following the date fixed for the determination of shareholders entitled to receive such dividend or other distribution shall be reduced by multiplying such Conversion Price by a fraction, the numerator of which shall be the number of Class A Shares issued and outstanding at the close of business on the record date fixed for such determination and the denominator of which shall be the sum of such number of Class A Shares issued and outstanding at the close of business on the record date fixed for such determination and the total number of Class A Shares constituting such dividend or other distribution. Such reduction shall become effective retroactively to a date immediately following the record date for the determination of the holders entitled to such dividends and distributions. |
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| (c) | If there shall occur any reclassification, statutory exchange, reorganization, recapitalization, consolidation or merger involving the Company with or into another Person (excluding a merger solely for the purpose of changing the Company’s jurisdiction of incorporation or domicile) (a “Reorganization Event”), then following any such Reorganization Event, each Preference Share shall remain issued and outstanding and be convertible, at the option of the holder thereof, into the number, kind and amount of securities, cash or other property which a holder of such Preference Share would have received in such Reorganization Event had such holder converted its Preference Shares into the applicable number of Class A Shares immediately prior to the effective date of the Reorganization Event using the Conversion Price applicable immediately prior to the effective time of the Reorganization Event; and, in such case, appropriate adjustment shall be made in the application of the provisions in this Article 23 set forth with respect to the rights and interest thereafter of the holders, as determined on a reasonable basis in good faith by the Board, to the end that the provisions set forth in this Article 23 (including provisions with respect to changes in and other adjustments of the Conversion Price) shall thereafter be applicable, as nearly as reasonably practicable, in relation to any shares or other property thereafter deliverable upon the conversion of the Preference Shares. The Company (or any successor thereof) shall, no less than ten (10) Business Days prior to the occurrence of any Reorganization Event, provide written notice to the holders of Preference Shares of such occurrence of such expected event and of the kind and amount of the cash, securities or other property that each Preference Share will be convertible into under this Article 23(c). Failure to deliver such notice shall not affect the operation of this Article 23(c). |
| (d) | In case any event or circumstance shall occur as to which the provisions of Article 23(a) through Article 23(c) above are not strictly applicable, but the failure to make any adjustment to the Conversion Price would not fairly and equitably in the good faith reasonable determination of the Board protect the conversion rights of the Preference Shares in accordance with the essential intent and principles hereof, then, in each such case, the Board, acting reasonably and in good faith, shall determine the appropriate adjustment to be made, on a basis consistent with the essential intent and principles established in Article 23(a) through Article 23(c) above necessary to preserve, without dilution, the conversion rights of the Preference Shares. |
| (e) | Full effect will be given to the provisions of Article 23(a) to Article 23(d), as and when occasions of their application arise and in such manner that the effects of the successive applications of them are cumulative and without prejudice to each other. |
| (f) | No adjustment in the Conversion Price shall reduce the Conversion Price below the then par value of Class A Shares. |
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| (g) | The Company shall: |
| (i) | as promptly as reasonably practicable following any adjustment of the Conversion Price, furnish to each holder of record of Preference Shares at the address specified for such holder in the Register (or at such other address as may be provided to the Company in writing by such holder) a certificate setting forth in reasonable detail such adjustment, the facts upon which it is based and the calculation thereof; and |
| (ii) | as promptly as reasonably practicable following the receipt by the Company of a written request by any holder of Preference Shares, furnish to such holder a certificate setting forth the Conversion Price then in effect and the number of Conversion Securities or the amount, if any, of other shares, securities or assets then issuable to such holder upon conversion of the Preference Shares held by such holder. |
| 24. | Without prejudice to Articles 17 and 18, if any dividends or other distributions are declared or paid in cash or other assets (except dividends or other distributions payable in Class A Shares) by the Board or the Company on Class A Shares pursuant to these Articles, each holder of Preference Shares shall be entitled to, with respect to all Preference Shares held by such holder, such amount of dividends or other distributions that such holder would receive had such holder converted all its Preference Shares into the applicable number of Class A Shares immediately prior to the record date for the determination of the holders entitled to such dividends or distributions. With respect to any payment of dividends or other distributions of assets pursuant to the foregoing, all of the Preference Shares shall rank pari passu with the Class A Shares and Class B Shares in issue from time to time. |
MODIFICATION OF RIGHTS
| 25. | Whenever the capital of the Company is divided into different Classes (and as otherwise determined by the Directors in accordance with these Articles) the rights attached to any such Class may, subject to any rights or restrictions for the time being attached to any Class only be materially adversely varied or abrogated with the consent in writing of the holders of not less than two-thirds of the issued Shares of the relevant Class, or with the sanction of a resolution passed at a separate meeting of the holders of the Shares of such Class by a majority of two-thirds of the votes cast at such a meeting. To every such separate meeting all the provisions of these Articles relating to general meetings of the Company or to the proceedings thereat shall, mutatis mutandis, apply, except that the necessary quorum shall be one or more Persons at least holding or representing by proxy one-third (1/3) in nominal or par value amount of the issued Shares of the relevant Class (but so that if at any adjourned meeting of such holders a quorum as above defined is not present, those Shareholders who are present shall form a quorum) and that, subject to any rights or restrictions for the time being attached to the Shares of that Class, every Shareholder of the Class shall on a poll have one (1) vote for each Share of the Class held by him. For the purposes of this Article the Directors may treat all the Classes or any two or more Classes as forming one Class if they consider that all such Classes would be affected in the same way by the proposals under consideration, but in any other case shall treat them as separate Classes. The Directors may vary the rights attaching to any Class without the consent or approval of Shareholders provided that the rights will not, in the determination of the Directors, be materially adversely varied or abrogated by such action. |
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| 26. | The rights conferred upon the holders of the Shares of any Class issued with preferred or other rights shall not, subject to any rights or restrictions for the time being attached to the Shares of that Class, be deemed to be materially adversely varied or abrogated by, inter alia, the creation, allotment or issue of further Shares ranking pari passu with or subsequent to them or the redemption or purchase of any Shares of any Class by the Company. |
CERTIFICATES
| 27. | No Person shall be entitled to a certificate for any or all of his Shares, unless the Directors shall determine otherwise. All certificates shall specify the Share or Shares held by that Person, provided that in respect of a Share or Shares held jointly by several Persons the Company shall not be bound to issue more than one certificate, and delivery of a certificate for a Share to one of several joint holders shall be sufficient delivery to all. All certificates for Shares shall be delivered personally or sent through the post addressed to the Member entitled thereto at the Member’s registered address as appearing in the Register. |
| 28. | Every share certificate of the Company shall bear legends required under the Applicable Laws, including the Securities Act. |
| 29. | Any two or more certificates representing Shares of any one Class held by any Member may at the member’s request be cancelled and a single new certificate for such Shares issued in lieu on payment (if the Directors shall so require) of one dollar (US$1.00) or such smaller sum as the Directors shall determine. |
| 30. | If a share certificate shall be damaged or defaced or alleged to have been lost, stolen or destroyed, a new certificate representing the same Shares may be issued to the relevant Member upon request, subject to delivery up of the old certificate or (if alleged to have been lost, stolen or destroyed) compliance with such conditions as to evidence and indemnity and the payment of out- of-pocket expenses of the Company in connection with the request as the Directors may think fit. |
| 31. | In the event that Shares are held jointly by several Persons, any request may be made by any one of the joint holders and if so made shall be binding on all of the joint holders. |
FRACTIONAL SHARES
| 32. | The Directors may issue fractions of a Share and, if so issued, a fraction of a Share shall be subject to and carry the corresponding fraction of liabilities (whether with respect to nominal or par value, premium, contributions, calls or otherwise), limitations, preferences, privileges, qualifications, restrictions, rights (including, without prejudice to the generality of the foregoing, voting and participation rights) and other attributes of a whole Share. If more than one fraction of a Share of the same Class is issued to or acquired by the same Shareholder such fractions shall be accumulated. |
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LIEN
| 33. | The Company has a first and paramount lien on every Share (whether or not fully paid) for all amounts (whether presently payable or not) payable at a fixed time or called in respect of that Share. The Company also has a first and paramount lien on every Share (whether or not fully paid) registered in the name of a Person indebted or under liability to the Company (whether he is the sole registered holder of a Share or one of two or more joint holders) for all amounts owing by him or his estate to the Company (whether or not presently payable). The Directors may at any time declare a Share to be wholly or in part exempt from the provisions of this Article. The Company’s lien on a Share extends to any amount payable in respect of it. |
| 34. | The Company may sell, in such manner as the Directors may determine, any Share on which the Company has a lien, but no sale shall be made unless an amount in respect of which the lien exists is presently payable nor until the expiration of fourteen days after a notice in writing, demanding payment of such part of the amount in respect of which the lien exists as is presently payable, has been given to the registered holder for the time being of the Share, or the Persons entitled thereto by reason of his death or bankruptcy. |
| 35. | For giving effect to any such sale the Directors may authorise some Person to transfer the Shares sold to the purchaser thereof. The purchaser shall be registered as the holder of the Shares comprised in any such transfer and he shall not be bound to see to the application of the purchase money, nor shall his title to the Shares be affected by any irregularity or invalidity in the proceedings in reference to the sale. |
| 36. | The proceeds of the sale after deduction of expenses, fees and commission incurred by the Company shall be received by the Company and applied in payment of such part of the amount in respect of which the lien exists as is presently payable, and the residue shall (subject to a like lien for sums not presently payable as existed upon the Shares prior to the sale) be paid to the Person entitled to the Shares immediately prior to the sale. |
CALLS ON SHARES
| 37. | The Directors may from time to time make calls upon the Shareholders in respect of any moneys unpaid on their Shares, and each Shareholder shall (subject to receiving at least fourteen days’ notice specifying the time or times of payment) pay to the Company at the time or times so specified the amount called on such Shares. A call shall be deemed to have been made at the time when the resolution of the Directors authorizing such call was passed. |
| 38. | The joint holders of a Share shall be jointly and severally liable to pay calls in respect thereof. |
| 39. | If a sum called in respect of a Share is not paid before or on the day appointed for payment thereof, the Person from whom the sum is due shall pay interest upon the sum at the rate of eight percent per annum from the day appointed for the payment thereof to the time of the actual payment, but the Directors shall be at liberty to waive payment of that interest wholly or in part. |
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| 40. | The provisions of these Articles as to the liability of joint holders and as to payment of interest shall apply in the case of non-payment of any sum which, by the terms of issue of a Share, becomes payable at a fixed time, whether on account of the amount of the Share, or by way of premium, as if the same had become payable by virtue of a call duly made and notified. |
| 41. | The Directors may make arrangements on the issue of partly paid Shares for a difference between the Shareholders, or the particular Shares, in the amount of calls to be paid and in the times of payment. |
| 42. | The Directors may, if they think fit, receive from any Shareholder willing to advance the same all or any part of the moneys uncalled and unpaid upon any partly paid Shares held by him, and upon all or any of the moneys so advanced may (until the same would, but for such advance, become presently payable) pay interest at such rate (not exceeding without the sanction of an Ordinary Resolution, eight percent (8%) per annum) as may be agreed upon between the Shareholder paying the sum in advance and the Directors. No such sum paid in advance of calls shall entitle the Member paying such sum to any portion of a dividend declared in respect of any period prior to the date upon which such sum would, but for such payment, become presently payable. |
FORFEITURE OF SHARES
| 43. | If a Shareholder fails to pay any call or instalment of a call in respect of any Shares on the day appointed for payment, the Directors may, at any time thereafter during such time as any part of such call or instalment remains unpaid, serve a notice on him requiring payment of so much of the call or instalment as is unpaid, together with any interest which may have accrued. |
| 44. | The notice shall name a further day (not earlier than the expiration of fourteen days from the date of the notice) on or before which the payment required by the notice is to be made, and shall state that in the event of non-payment at or before the time appointed the Shares in respect of which the call was made will be liable to be forfeited. |
| 45. | If the requirements of any such notice as aforesaid are not complied with, any Share in respect of which the notice has been given may at any time thereafter, before the payment required by notice has been made, be forfeited by a resolution of the Directors to that effect. |
| 46. | A forfeited Share may be sold or otherwise disposed of on such terms and in such manner as the Directors think fit, and at any time before a sale or disposition the forfeiture may be cancelled on such terms as the Directors think fit. |
| 47. | A Person whose Shares have been forfeited shall cease to be a Shareholder in respect of the forfeited Shares, but shall, notwithstanding, remain liable to pay to the Company all moneys which at the date of forfeiture were payable by him to the Company in respect of the Shares forfeited, but his liability shall cease if and when the Company receives payment in full of the amount unpaid on the Shares forfeited. |
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| 48. | A statutory declaration in writing that the declarant is a Director, and that a Share has been duly forfeited on a date stated in the declaration, shall be conclusive evidence of the facts in the declaration as against all Persons claiming to be entitled to the Share. |
| 49. | The Company may receive the consideration, if any, given for a Share on any sale or disposition thereof pursuant to the provisions of these Articles as to forfeiture and may execute a transfer of the Share in favour of the Person to whom the Share is sold or disposed of and that Person shall be registered as the holder of the Share, and shall not be bound to see to the application of the purchase money, if any, nor shall his title to the Shares be affected by any irregularity or invalidity in the proceedings in reference to the disposition or sale. |
| 50. | The provisions of these Articles as to forfeiture shall apply in the case of non-payment of any sum which by the terms of issue of a Share becomes due and payable, whether on account of the amount of the Share, or by way of premium, as if the same had been payable by virtue of a call duly made and notified. |
TRANSFER OF SHARES
| 51. | Subject to these Articles and the rules or regulations of the Designated Stock Exchange or any relevant securities laws, any Member may transfer all or any Shares by an instrument of transfer in the usual or common form or in a form prescribed by the Designated Stock Exchange or in any other form approved by the Directors and may be under hand or, if the transferor or transferee is a clearing house or its nominee(s), by hand or by machine imprinted signature or by such other manner of execution as the Directors may approve from time to time. The instrument of transfer shall and be executed by or on behalf of the transferor and if in respect of a nil or partly paid up Share, or if so required by the Directors, shall also be executed on behalf of the transferee and shall be accompanied by the certificate (if any) of the Shares to which it relates and such other evidence as the Directors may reasonably require to show the right of the transferor to make the transfer. The transferor shall be deemed to remain a Shareholder until the name of the transferee is entered in the Register in respect of the relevant Shares. |
| 52. | The transferor shall be deemed to remain a Shareholder until the name of the transferee is entered in the Register in respect of the relevant Shares. |
| 53. | Subject to the rules of any Designated Stock Exchange on which the Shares in question may be listed and to any rights and restrictions for the time being attached to any Share, the Directors shall not unreasonably decline to register any transfer of Shares, and shall upon making any decision to decline to register any transfer of Shares assign an appropriate reason therefor. If the Directors refuse to register a transfer of any Share the Secretary shall, within two (2) months after the date on which the transfer request was lodged with the Company, send to the transferor and transferee notice of the refusal, including the relevant reason for such refusal. For the avoidance of doubt, it shall not be unreasonable for the Directors to decline to register any transfer of a Share if such transfer would breach or cause a breach of: (i) the rules of any Designated Stock Exchange on which the Shares may be listed; or (ii) applicable law or regulation at such times and for such periods as the Directors may from time to time determine. |
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| 54. | The registration of transfers may, on ten (10) calender days’ notice being given by advertisement in such one or more newspapers, by electronic means or by any other means in accordance with the rules of any Designated Stock Exchange on which the Shares in question may be listed, be suspended and the Register closed at such times and for such periods as the Directors may, in their absolute discretion, from time to time determine, provided always that such registration of transfer shall not be suspended nor the Register closed for more than thirty (30) calendar days in any calendar year. |
| 55. | All instruments of transfer that are registered shall be retained by the Company, but any instrument of transfer that the Directors decline to register shall (except in any case of fraud) be returned to the Person depositing the same. |
| 56. | Notwithstanding any other provision of these Articles, no holder of Preference Shares may, without the prior written consent of the Company, sell, transfer, tender, pledge, assign or otherwise dispose of, directly or indirectly, any of the Preference Shares held by such holder. Any action attempted to be taken in violation of the preceding sentence shall be null and void. The Company may notify its transfer agent or such other Person with the responsibility for maintaining the Register that there is a stop transfer order with respect to any transfer of Preference Shares in violation of this Article 56. |
TRANSMISSION OF SHARES
| 57. | The legal personal representative of a deceased sole holder of a Share shall be the only Person recognised by the Company as having any title to the Share. In the case of a Share registered in the name of two or more holders, the survivors or survivor, or the legal personal representatives of the deceased holder of the Share, shall be the only Person recognised by the Company as having any title to the Share. |
| 58. | Any Person becoming entitled to a Share in consequence of the death or bankruptcy of a Shareholder shall upon such evidence being produced as may from time to time be required by the Directors, have the right either to be registered as a Shareholder in respect of the Share or, instead of being registered himself, to make such transfer of the Share as the deceased or bankrupt Person could have made; but the Directors shall, in either case, have the same right to decline or suspend registration as they would have had in the case of a transfer of the Share by the deceased or bankrupt Person before the death or bankruptcy. |
| 59. | A Person becoming entitled to a Share by reason of the death or bankruptcy of a Shareholder shall be entitled to the same dividends and other advantages to which he would be entitled if he were the registered Shareholder, except that he shall not, before being registered as a Shareholder in respect of the Share, be entitled in respect of it to exercise any right conferred by membership in relation to meetings of the Company, provided however, that the Directors may at any time give notice requiring any such Person to elect either to be registered himself or to transfer the Share, and if the notice is not complied with within ninety (90) calendar days, the Directors may thereafter withhold payment of all dividends, bonuses or other monies payable in respect of the Share until the requirements of the notice have been complied with. |
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REGISTRATION OF EMPOWERING INSTRUMENTS
| 60. | The Company shall be entitled to charge a fee not exceeding one U.S. dollar (US$1.00) on the registration of every probate, letters of administration, certificate of death or marriage, power of attorney, notice in lieu of distringas, or other instrument. |
ALTERATION OF SHARE CAPITAL
| 61. | The Company may from time to time by Ordinary Resolution increase the share capital by such sum, to be divided into Shares of such Classes and amount, as the resolution shall prescribe. |
| 62. | The Company may by Ordinary Resolution: |
| (a) | consolidate and divide all or any of its share capital into Shares of a larger amount than its existing Shares; |
| (b) | convert all or any of its paid up Shares into stock and reconvert that stock into paid up Shares of any denomination; |
| (c) | subdivide its existing Shares, or any of them into Shares of a smaller amount provided that in the subdivision the proportion between the amount paid and the amount, if any, unpaid on each reduced Share shall be the same as it was in case of the Share from which the reduced Share is derived; and |
| (d) | cancel any Shares that, at the date of the passing of the resolution, have not been taken or agreed to be taken by any Person and diminish the amount of its share capital by the amount of the Shares so cancelled. |
| 63. | The Company may by Special Resolution reduce its share capital and any capital redemption reserve in any manner authorised by law. |
REDEMPTION, PURCHASE AND SURRENDER OF SHARES
| 64. | Subject to the Companies Act, the Company may: |
| (a) | issue Shares on terms that they are to be redeemed or are liable to be redeemed at the option of the Company or the Shareholder on such terms and in such manner as the Directors may determine; |
| (b) | purchase its own Shares (including any redeemable Shares) on such terms and in such manner as the Directors may determine and agree with the Shareholder; |
| (c) | make a payment in respect of the redemption or purchase of its own Shares in any manner authorised by the Companies Act, including out of its capital; and |
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| (d) | accept the surrender for no consideration of any paid up Share (including any redeemable Share) on such terms and in such manner as the Directors may determine. |
| 65. | The holder of the Shares being purchased shall be bound to deliver to the Company the certificate(s) (if any) thereof for cancellation and thereupon the Company shall pay to him the purchase or redemption monies or consideration in respect thereof. |
| 66. | Any Share in respect of which notice of redemption has been given shall not be entitled to participate in the profits of the Company in respect of the period after the date specified as the date of redemption in the notice of redemption. |
| 67. | The redemption, purchase or surrender of any Share shall not be deemed to give rise to the redemption, purchase or surrender of any other Share. |
| 68. | The Directors may when making payments in respect of redemption or purchase of Shares, if authorised by the terms of issue of the Shares being redeemed or purchased or with the agreement of the holder of such Shares, make such payment either in cash or in specie including, without limitation, interests in a special purpose vehicle holding assets of the Company or holding entitlement to the proceeds of assets held by the Company or in a liquidating structure. |
TREASURY SHARES
| 69. | Shares that the Company purchases, redeems or acquires (by way of surrender or otherwise) may, at the option of the Company, be cancelled immediately or held as Treasury Shares in accordance with the Companies Act. In the event that the Directors do not specify that the relevant Shares are to be held as Treasury Shares, such Shares shall be cancelled. |
| 70. | No dividend may be declared or paid, and no other distribution (whether in cash or otherwise) of the Company’s assets (including any distribution of assets to members on a winding up) may be declared or paid in respect of a Treasury Share. |
| 71. | The Company shall be entered in the Register as the holder of the Treasury Shares provided that: |
| (a) | the Company shall not be treated as a member for any purpose and shall not exercise any right in respect of the Treasury Shares, and any purported exercise of such a right shall be void; |
| (b) | a Treasury Share shall not be voted, directly or indirectly, at any meeting of the Company and shall not be counted in determining the total number of issued shares at any given time, whether for the purposes of these Articles or the Companies Act, save that an allotment of Shares as fully paid bonus shares in respect of a Treasury Share is permitted and Shares allotted as fully paid bonus shares in respect of a treasury share shall be treated as Treasury Shares. |
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| 72. | Treasury Shares may be disposed of by the Company on such terms and conditions as determined by the Directors. |
GENERAL MEETINGS
| 73. | The Directors may, whenever they think fit, convene a general meeting of the Company. |
| 74. | The Directors may cancel or postpone any duly convened general meeting at any time prior to such meeting, except for general meetings requisitioned by the Shareholders in accordance with these Articles, for any reason or for no reason at any time prior to the time for holding such meeting or, if the meeting is adjourned, the time for holding such adjourned meeting. The Directors shall give Shareholders notice in writing of any cancellation or postponement. A postponement may be for a stated period of any length or indefinitely as the Directors may determine. |
| 75. | General meetings shall also be convened on the requisition in writing of any Shareholder or Shareholders entitled to attend and vote at general meetings of the Company holding at least 7.5 percent of the paid up voting share capital of the Company deposited at the Office specifying the objects of the meeting by notice given no later than twenty-one (21) days from the date of deposit of the requisition signed by the requisitionists, and if the Directors do not convene such meeting for a date not later than forty-five (45) days after the date of such deposit, the requisitionists themselves may convene the general meeting in the same manner, as nearly as possible, as that in which general meetings may be convened by the Directors, and all reasonable expenses incurred by the requisitionists as a result of the failure of the Directors to convene the general meeting shall be reimbursed to them by the Company. |
| 76. | If at any time there are no Directors, any two Shareholders (or if there is only one Shareholder then that Shareholder) entitled to vote at general meetings of the Company may convene a general meeting in the same manner as nearly as possible as that in which general meetings may be convened by the Directors. |
NOTICE OF GENERAL MEETINGS
| 77. | At least fourteen (14) clear days’ notice in writing counting from the date on which service is deemed to take place as provided in these Articles specifying the place, the day and the hour of the meeting and the business to be considered at the meeting, shall be given in the manner hereinafter provided or in such other manner (if any) as may be prescribed by the Company by Ordinary Resolution to such Persons as are, under these Articles, entitled to receive such notices from the Company, but with the consent of all the Shareholders entitled to receive notice of some particular meeting and attend and vote thereat, that meeting may be convened by such shorter notice or without notice and in such manner as those Shareholders may think fit. |
| 78. | The accidental omission to give notice of a meeting to or the non-receipt of a notice of a meeting by any Shareholder shall not invalidate the proceedings at any meeting. |
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PROCEEDINGS AT GENERAL MEETINGS
| 79. | All business carried out at a general meeting shall be deemed special with the exception of sanctioning a dividend, the consideration of the accounts, balance sheets, any report of the Directors or of the Company’s auditors, and the fixing of the remuneration of the Company’s auditors. No special business shall be transacted at any general meeting without the consent of all Shareholders entitled to receive notice of that meeting unless notice of such special business has been given in the notice convening that meeting. |
| 80. | No business shall be transacted at any general meeting unless a quorum of Shareholders is present at the time when the meeting proceeds to business. Save as otherwise provided by these Articles, one or more Shareholders holding at least a majority of the paid up voting share capital of the Company present in person or by proxy and entitled to vote at that meeting shall form a quorum. |
| 81. | If within half an hour from the time appointed for the meeting a quorum is not present, the meeting, shall stand adjourned to a date falling within thirty (30) days of the initial general meeting, at the same time and place, and at least fourteen (14) days’ notice shall be given to all Shareholders in relation to such adjourned meeting, and if at the adjourned meeting a quorum is not present within half an hour from the time appointed for the meeting the meeting shall be dissolved. |
| 82. | If the Directors wish to make this facility available for a specific general meeting or all general meetings of the Company, participation in any general meeting of the Company may be by means of a telephone, videoconference telephone or similar communication equipment by way of which all Persons participating in such meeting can communicate with each other and such participation shall be deemed to constitute presence in person at the meeting. |
| 83. | The Chairman shall preside as chairman at every general meeting of the Company. |
| 84. | If there is no such Chairman, or if at any general meeting he is not present within fifteen minutes after the time appointed for holding the meeting or is unwilling to act as chairman, the Shareholders present in person or by proxy shall by a simple majority vote choose any Person present to be chairman of that meeting. |
| 85. | The chairman may adjourn a meeting from time to time and from place to place either: |
| (a) | with the consent of any general meeting at which a quorum is present (and shall if so directed by the meeting); or |
| (b) | without the consent of such meeting if, in his sole opinion, he considers it necessary to do so to: |
| (i) | secure the orderly conduct or proceedings of the meeting; or |
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| (ii) | give all persons present in person or by proxy and having the right to speak and / or vote at such meeting, the ability to do so, but no business shall be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place. When a meeting, or adjourned meeting, is adjourned for fourteen days or more, notice of the adjourned meeting shall be given in the manner provided for the original meeting. Save as aforesaid, it shall not be necessary to give any notice of an adjournment or of the business to be transacted at an adjourned meeting. |
| 86. | At any general meeting a resolution put to the vote of the meeting shall be decided on a poll. |
| 87. | A poll shall be taken in such manner as the chairman directs, and the result of the poll shall be deemed to be the resolution of the meeting at which the poll was demanded. |
| 88. | In the case of an equality of votes on a poll, the chairman of the meeting shall not be entitled to a second or casting vote. |
VOTES OF SHAREHOLDERS
| 89. | Subject to any rights and restrictions for the time being attached to any Share, on a poll, (a) each Class A Share shall be entitled to one (1) vote on all matters subject to a vote of the Shareholders, (b) each Class B Share shall be entitled to ten (10) votes on all matters subject to a vote of the Shareholders and (c) each Preference Share shall be entitled to a number of votes equal to the number of Class A Shares (rounded down to the nearest whole number) into which such Preference Share is convertible pursuant to Article 20 as of the record date for such vote or written resolutions or, if there is no specified record date, as of the date of such vote or written resolutions. |
| 90. | Subject to Article 25, the Class A Shares, the Class B Shares and the Preference Shares will vote together as a single class on all matters subject to a vote of the Shareholders. |
| 91. | In the case of joint holders the vote of the senior who tenders a vote whether in person or by proxy shall be accepted to the exclusion of the votes of the other joint holders and for this purpose seniority shall be determined by the order in which the names stand in the Register. |
| 92. | A Shareholder of unsound mind, or in respect of whom an order has been made by any court having jurisdiction in lunacy, may vote in respect of Shares carrying the right to vote held by him, by his committee, or other Person in the nature of a committee appointed by that court, and any such committee or other Person, may vote in respect of such Shares by proxy. |
| 93. | No Shareholder shall be entitled to vote at any general meeting of the Company unless all calls, if any, or other sums presently payable by him in respect of Shares carrying the right to vote held by him have been paid. |
| 94. | On a poll votes may be given either personally or by proxy. |
| 95. | The instrument appointing a proxy shall be in writing under the hand of the appointor or of his attorney duly authorised in writing or, if the appointor is a corporation, either under Seal or under the hand of an Officer or attorney duly authorised. A proxy need not be a Shareholder. |
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| 96. | An instrument appointing a proxy may be in any usual or common form or such other form as the Directors may approve. |
| 97. | The instrument appointing a proxy shall be deposited at the Office or at such other place as is specified for that purpose in the notice convening the meeting no later than the time for holding the meeting or, if the meeting is adjourned, the time for holding such adjourned meeting. |
| 98. | An Ordinary Resolution or a Special Resolution in writing signed by all Shareholders for the time being entitled to receive notice of and to attend and vote at general meetings of the Company (or being corporations by their duly authorised representatives) shall be as valid and effective as if the same had been passed at a general meeting of the Company duly convened and held. |
DEPOSITARY AND CLEARING HOUSES
| 99. | If a recognized clearing house (or its nominee(s)) or depositary (or its nominee(s)) is a Member of the Company it may, by resolution of its directors or other governing body or by power of attorney, authorize such Person(s) as it thinks fit to act as its representative(s) at any general meeting of the Company or of any Class of Shareholders provided that, if more than one Person is so authorized, the authorization shall specify the number and Class of Shares in respect of which each such Person is so authorized. A Person so authorized pursuant to this Article shall be entitled to exercise the same powers on behalf of the recognized clearing house (or its nominee(s)) or depositary (or its nominee(s)) which he represents as that recognized clearing house (or its nominee(s)) or depositary (or its nominee(s)) could exercise if it were an individual Member holding the number and Class of Shares specified in such authorization, including the right to vote individually. |
CORPORATIONS ACTING BY REPRESENTATIVES AT MEETINGS
| 100. | Any corporation which is a Shareholder or a Director may by resolution of its directors or other governing body authorise such Person as it thinks fit to act as its representative at any meeting of the Company or of any meeting of holders of a Class or of the Directors or of a committee of Directors, and the Person so authorised shall be entitled to exercise the same powers on behalf of the corporation which he represents as that corporation could exercise if it were an individual Shareholder or Director. |
DIRECTORS
| 101. | Subject to these Articles, the Board shall consist of no more than nine (9) Directors, unless otherwise determined by the Company in general meeting. The exact number of Directors shall be determined from time to time by the Board. |
| 102. | The Board shall have a Chairman elected and appointed by a majority of the Directors then in office. The period for which the Chairman will hold office will also be determined by a majority of all of the Directors then in office. The Chairman shall preside as chairman at every meeting of the Board. To the extent the Chairman is not present at a meeting of the Board within fifteen (15) minutes after the time appointed for holding the same, the attending Directors may choose one of their number to be the chairman of the meeting. |
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| 103. | The following terms shall apply to the appointment and removal of a Director: |
| (a) | The Company may by Ordinary Resolution appoint any Person to be a Director. |
| (b) | The Board may, by the affirmative vote of a simple majority of the Directors present and voting at a Board meeting, appoint any person as a Director, to fill a vacancy on the Board arising from the office of any Director being vacated in any of the circumstances described in Article 124, or as an addition to the existing Board. |
| (c) | An appointment of a Director may be on terms that the Director shall automatically retire from office (unless he has sooner vacated office) at the next or a subsequent annual general meeting or upon any specified event or after any specified period in a written agreement between the Company and the Director, if any; but no such term shall be implied in the absence of express provision. Each Director whose term of office expires shall be eligible for re-election at a meeting of the Shareholders or re-appointment by the Board. |
| 104. | A Director may be removed from office by Ordinary Resolution of the Company, notwithstanding anything in these Articles or in any agreement between the Company and such Director (but without prejudice to any claim for damages under such agreement). A vacancy on the Board created by the removal of a Director under the previous sentence may be filled by Ordinary Resolution or by the affirmative vote of a simple majority of the remaining Directors present and voting at a Board meeting. |
| 105. | The Board may, from time to time, and except as required by Applicable Law or the rules of any Designated Stock Exchange on which the Shares may be listed, adopt, institute, amend, modify or revoke the corporate governance policies or initiatives of the Company and determine on various corporate governance related matters of the Company as the Board shall determine by resolution of Directors from time to time. |
| 106. | The remuneration of the Directors may be determined by the Directors or by Ordinary Resolution. |
| 107. | There shall be no shareholding qualification for Directors unless determined otherwise by Ordinary Resolution. |
| 108. | The Directors shall be entitled to be paid for their travelling, hotel and other expenses properly incurred by them in going to, attending and returning from meetings of the Directors, or any committee of the Directors, or general meetings of the Company, or otherwise in connection with the business of the Company, or to receive such fixed allowance in respect thereof as may be determined by the Directors from time to time, or a combination partly of one such method and partly the other. |
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ALTERNATE DIRECTOR
| 109. | Any Director may in writing from time to time and at any time appoint another Person to be his alternate and, save to the extent provided otherwise in the form of appointment, such alternate shall have authority to sign written resolutions on behalf of the appointing Director, but shall not be authorised to sign such written resolutions where they have been signed by the appointing Director, and to act in such Director’s place at any meeting of the Directors. Every such alternate shall be entitled to attend and vote at meetings of the Directors as the alternate of the Director appointing him and where he is a Director to have a separate vote in addition to his own vote. A Director may at any time in writing revoke the appointment of an alternate appointed by him. Such alternate shall not be an Officer solely as a result of his appointment as an alternate other than in respect of such times as the alternate acts as a Director. The remuneration of such alternate shall be payable out of the remuneration of the Director appointing him and the proportion thereof shall be agreed between them. |
POWERS AND DUTIES OF DIRECTORS
| 110. | Subject to the Companies Act, these Articles and to any resolutions passed in a general meeting, the business of the Company shall be managed by the Directors, who may pay all expenses incurred in setting up and registering the Company and may exercise all powers of the Company. No resolution passed by the Company in general meeting shall invalidate any prior act of the Directors that would have been valid if that resolution had not been passed. |
| 111. | The Directors may from time to time appoint any Person, whether or not a Director to hold such office in the Company as the Directors may think necessary for the administration of the Company, including but not limited to, the office of president, one or more vice-presidents, treasurer, assistant treasurer, manager or controller, and for such term and at such remuneration (whether by way of salary or commission or participation in profits or partly in one way and partly in another), and with such powers and duties as the Directors may think fit. Any Person so appointed by the Directors may be removed by the Directors or by the Company by Ordinary Resolution. The Directors may also appoint one or more of their number to the office of managing director upon like terms, but any such appointment shall ipso facto terminate if any managing director ceases from any cause to be a Director, or if the Company by Ordinary Resolution resolves that his tenure of office be terminated. |
| 112. | The Directors may appoint any Person to be a Secretary (and if needed, an assistant Secretary or assistant Secretaries) who shall hold office for such term, at such remuneration and upon such conditions and with such powers as they think fit. Any Secretary or assistant Secretary so appointed by the Directors may be removed by the Directors or by the Company by Ordinary Resolution. |
| 113. | Committees |
| (a) | Subject to these Articles, the Directors may delegate any of their powers to committees consisting of such number of Directors as they deem fit; any committee so formed shall in the exercise of the powers so delegated conform to any regulations that may be imposed on it by the Directors and when establishing any committee the Board shall approve the terms of reference and scope of authority of such committee. Save as otherwise provided in this Article 113, proceedings of any committee of the Board shall be conducted in the same manner as proceedings of the Board. The Company’s committees shall initially comprise of: |
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| (b) | Audit Committee |
| (i) | An audit committee (the “Audit Committee”) to operate in accordance with the terms of reference of that committee as approved by the Board. |
| (ii) | The Audit Committee shall meet the independence and experience requirements set forth in Rule 10A-3 under the Exchange Act and in the listing standards of the Designated Stock Exchange. |
| (iii) | The Board or any two (2) members of the Audit Committee may from time to time convene a meeting of the Audit Committee. |
| (iv) | The quorum necessary for the transaction of the business of the Audit Committee shall be the presence in person, or by proxy, of at least the majority in number of the members of the Audit Committee. |
| (c) | Nominating and Corporate Governance Committee |
| (i) | A nominating and corporate governance committee (the “Nominating and Corporate Governance Committee”) to operate in accordance with the terms of reference of that committee as approved by the Board. |
| (ii) | From time to time, the Nominating and Corporate Governance Committee can recommend for the Board’s approval policies regarding the appointment, retirement, termination and tenure of Directors and related aspects. |
| (iii) | The Nominating and Corporate Governance Committee shall meet the independence requirements set forth in the listing standards of the Designated Stock Exchange. |
| (iv) | The Board or any two (2) members of the Nominating and Corporate Governance Committee may from time to time convene a meeting of the Nominating and Corporate Governance Committee. |
| (v) | The quorum necessary for the transaction of the business of the Nominating and Corporate Governance Committee shall be the presence in person, or by proxy, of at least the majority in number of the members of the Nominating and Corporate Governance Committee. |
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| (d) | Compensation Committee |
| (i) | A compensation committee (the “Compensation Committee”) to operate in accordance with the terms of reference of that committee. |
| (ii) | The Compensation Committee shall meet the independence requirements set forth in the listing standards of the Designated Stock Exchange. |
| (iii) | The Board or any two (2) members of the Compensation Committee may from time to time convene a meeting of the Compensation Committee. |
| (iv) | The quorum necessary for the transaction of the business of the Compensation Committee shall be the presence in person, or by proxy, of at least the majority in number of the members of the Compensation Committee. |
| 114. | The Directors may from time to time and at any time by power of attorney (whether under Seal or under hand) or otherwise appoint any company, firm or Person or body of Persons, whether nominated directly or indirectly by the Directors, to be the attorney or attorneys or authorised signatory (any such person being an “Attorney” or “Authorised Signatory”, respectively) of the Company for such purposes and with such powers, authorities and discretion (not exceeding those vested in or exercisable by the Directors under these Articles) and for such period and subject to such conditions as they may think fit, and any such power of attorney or other appointment may contain such provisions for the protection and convenience of Persons dealing with any such Attorney or Authorised Signatory as the Directors may think fit, and may also authorise any such Attorney or Authorised Signatory to delegate all or any of the powers, authorities and discretion vested in him. |
| 115. | The Directors may from time to time provide for the management of the affairs of the Company in such manner as they shall think fit and the provisions contained in the three next following Articles shall not limit the general powers conferred by this Article. |
| 116. | Subject to Article 113, the Directors from time to time and at any time may establish any committees, local boards or agencies for managing any of the affairs of the Company and may appoint any Person to be a member of such committees or local boards and may appoint any managers or agents of the Company and may fix the remuneration of any such Person. |
| 117. | Subject to Article 113, the Directors from time to time and at any time may delegate to any such committee, local board, manager or agent any of the powers, authorities and discretions for the time being vested in the Directors and may authorise the members for the time being of any such local board, or any of them to fill any vacancies therein and to act notwithstanding vacancies and any such appointment or delegation may be made on such terms and subject to such conditions as the Directors may think fit and the Directors may at any time remove any Person so appointed and may annul or vary any such delegation, but no Person dealing in good faith and without notice of any such annulment or variation shall be affected thereby. |
| 118. | Any such delegates as aforesaid may be authorised by the Directors to sub-delegate all or any of the powers, authorities, and discretion for the time being vested in them. |
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| 119. | The Directors may agree with a Shareholder to waive or modify the terms applicable to such Shareholder’s subscription for Shares without obtaining the consent of any other Shareholder; provided that such waiver or modification does not amount to a variation or abrogation of the rights attaching to the Shares of such other Shareholders. |
BORROWING POWERS OF DIRECTORS
| 120. | The Directors may exercise all the powers of the Company to borrow money and to mortgage or charge its undertaking, property and uncalled capital or any part thereof, or to otherwise provide for a security interest to be taken in such undertaking, property or uncalled capital, and to issue debentures, debenture stock and other securities whenever money is borrowed or as security for any debt, liability or obligation of the Company or of any third party. |
THE SEAL
| 121. | The Seal shall not be affixed to any instrument except by the authority of a resolution of the Directors provided always that such authority may be given prior to or after the affixing of the Seal and if given after may be in general form confirming a number of affixings of the Seal. The Seal shall be affixed in the presence of a Director or a Secretary (or an assistant Secretary) or in the presence of any one or more Persons as the Directors may appoint for the purpose and every Person as aforesaid shall sign every instrument to which the Seal is so affixed in their presence. |
| 122. | The Company may maintain a facsimile of the Seal in such countries or places as the Directors may appoint and such facsimile Seal shall not be affixed to any instrument except by the authority of a resolution of the Directors provided always that such authority may be given prior to or after the affixing of such facsimile Seal and if given after may be in general form confirming a number of affixings of such facsimile Seal. The facsimile Seal shall be affixed in the presence of such Person or Persons as the Directors shall for this purpose appoint and such Person or Persons as aforesaid shall sign every instrument to which the facsimile Seal is so affixed in their presence and such affixing of the facsimile Seal and signing as aforesaid shall have the same meaning and effect as if the Seal had been affixed in the presence of and the instrument signed by a Director or a Secretary (or an assistant Secretary) or in the presence of any one or more Persons as the Directors may appoint for the purpose. |
| 123. | Notwithstanding the foregoing, a Secretary or any assistant Secretary shall have the authority to affix the Seal, or the facsimile Seal, to any instrument for the purposes of attesting authenticity of the matter contained therein but which does not create any obligation binding on the Company. |
DISQUALIFICATION OF DIRECTORS
| 124. | The office of Director shall be vacated, if the Director: |
| (a) | becomes bankrupt or makes any arrangement or composition with his creditors; |
| (b) | dies or is found to be or becomes of unsound mind; |
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| (c) | resigns his office by notice in writing to the Company; |
| (d) | is removed from office by Ordinary Resolution; |
| (e) | is removed from office by notice addressed to him at his last known address and signed by all of his co-Directors (not being less than two (2) in number); or |
| (f) | is removed from office pursuant to any other provision of these Articles. |
PROCEEDINGS OF DIRECTORS
| 125. | The Directors may meet together (either within or outside the Cayman Islands) for the despatch of business, adjourn, and otherwise regulate their meetings and proceedings as they think fit. Questions arising at any meeting shall be decided by a simple majority vote of the Directors present and voting at the meeting. In case of an equality of votes the Chairman (if any) shall not have a second or casting vote. A Director may, and a Secretary or assistant Secretary on the requisition of a Director shall, at any time summon a meeting of the Directors. |
| 126. | A Director may participate in any meeting of the Directors, or of any committee appointed by the Directors of which such Director is a member, by means of telephone, videconference or similar communication equipment by way of which all Persons participating in such meeting can communicate with each other and such participation shall be deemed to constitute presence in person at the meeting. A meeting conducted by means of a conference telephone or a video conference telephone or similar communications equipment as aforesaid is deemed to be held at the place agreed upon by the Directors attending the meeting, provided that at least one of the Directors present at the meeting was at that place for the duration of the meeting. |
| 127. | Each of the Directors shall be entitled to receive not less than five (5) Business Days’ written notice of all meetings of the Directors (or such shorter period of notice, or without notice, in respect of any particular meeting as may be agreed jointly by all the Directors) specifying the date (which shall be a Business Day), time and place of the meeting and shall be accompanied by a detailed agenda in respect of the business to be transacted thereat, together with any materials required for such meeting. |
| 128. | The quorum necessary for the transaction of the business of the Board may be fixed by the Directors, and unless so fixed, the quorum shall be a majority of Directors then in office. A Director represented by an alternate Director at any meeting shall be deemed to be present for the purposes of determining whether or not a quorum is present. |
| 129. | A Director who is in any way, whether directly or indirectly, interested in a contract or proposed contract with the Company shall declare the nature of his interest at a meeting of the Directors. A general notice given to the Directors by any Director to the effect that he is to be regarded as interested in any contract or other arrangement which may thereafter be made with that company or firm shall be deemed a sufficient declaration of interest in regard to any contract so made. A Director may vote in respect of any contract or proposed contract or arrangement notwithstanding that he may be interested therein and if he does so his vote shall be counted and he may be counted in the quorum at any meeting of the Directors at which any such contract or proposed contract or arrangement shall come before the meeting for consideration. |
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| 130. | Subject to these Articles, a Director may hold any other office or place of profit under the Company (other than the office of auditor) in conjunction with his office of Director for such period and on such terms (as to remuneration and otherwise) as the Directors may determine and no Director or intending Director shall be disqualified by his office from contracting with the Company either with regard to his tenure of any such other office or place of profit or as vendor, purchaser or otherwise, nor shall any such contract or arrangement entered into by or on behalf of the Company in which any Director is in any way interested, be liable to be avoided, nor shall any Director so contracting or being so interested be liable to account to the Company for any profit realised by any such contract or arrangement by reason of such Director holding that office or of the fiduciary relation thereby established. A Director, notwithstanding his interest, may be counted in the quorum present at any meeting of the Directors whereat he or any other Director is appointed to hold any such office or place of profit under the Company or whereat the terms of any such appointment are arranged and he may vote on any such appointment or arrangement. |
| 131. | Any Director may act by himself or his firm in a professional capacity for the Company, and he or his firm shall be entitled to remuneration for professional services as if he were not a Director; provided that nothing herein contained shall authorise a Director or his firm to act as auditor to the Company. |
| 132. | The Directors shall cause minutes to be made in books or loose-leaf folders, or stored in electronic or digital form, for the purpose of recording: |
| (a) | all appointments of Officers made by the Directors; |
| (b) | the names of the Directors present at each meeting of the Directors and of any committee of the Directors; and |
| (c) | all resolutions and proceedings at all meetings of the Company, and of the Directors and of committees of Directors. |
| 133. | When the chairman of a meeting of the Directors signs the minutes of such meeting the same shall be deemed to have been duly held notwithstanding that all the Directors have not actually come together or that there may have been a technical defect in the proceedings. |
| 134. | A resolution in writing signed by all the Directors or all the members of a committee of Directors entitled to receive notice of a meeting of Directors or committee of Directors, as the case may be (an alternate Director, subject as provided otherwise in the terms of appointment of the alternate Director, being entitled to sign such a resolution on behalf of his appointer), shall be as valid and effectual as if it had been passed at a duly called and constituted meeting of Directors or committee of Directors, as the case may be. When signed a resolution may consist of several documents each signed by one or more of the Directors or his duly appointed alternate. |
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| 135. | The continuing Directors may act notwithstanding any vacancy in their body but if and for so long as their number is reduced below the number fixed by or pursuant to these Articles as the necessary quorum of Directors, the continuing Directors may act for the purpose of increasing the number, or of summoning a general meeting of the Company, but for no other purpose. |
| 136. | The Chairman shall preside as chairman at every meeting of the Board, but if no such Chairman is elected, or if at any meeting the Chairman is not present within fifteen minutes after the time appointed for holding the meeting, the Directors present may choose one of their number to be chairman of the meeting. |
| 137. | Subject to any regulations imposed on it by the Directors and these Articles, a committee appointed by the Directors may elect a chairman of its meetings. If no such chairman is elected, or if at any meeting the chairman is not present within fifteen minutes after the time appointed for holding the meeting, the committee members present may choose one of their number to be chairman of the meeting. |
| 138. | A committee appointed by the Directors may meet and adjourn as it thinks proper. Subject to any regulations imposed on it by the Directors, questions arising at any meeting shall be determined by a majority of votes of the committee members present and in case of an equality of votes the chairman shall not have a second or casting vote. |
| 139. | All acts done by any meeting of the Directors or of a committee of Directors, or by any Person acting as a Director, shall notwithstanding that it be afterwards discovered that there was some defect in the appointment of any such Director or Person acting as aforesaid, or that they or any of them were disqualified, be as valid as if every such Person had been duly appointed and was qualified to be a Director. |
DIVIDENDS
| 140. | Subject to any rights and restrictions for the time being attached to any Shares, or as otherwise provided for in the Companies Act and these Articles, the Directors may from time to time declare dividends (including interim dividends) and other distributions on Shares in issue and authorise payment of the same out of the funds of the Company lawfully available therefor. |
| 141. | Without limiting Article 140 and subject to these Articles and any rights and restrictions for the time being attached to any Shares, the Company by Ordinary Resolution may declare dividends, but no dividend shall exceed the amount recommended by the Directors. |
| 142. | The Directors may determine, before recommending or declaring any dividend, to set aside out of the funds legally available for distribution such sums as they think proper as a reserve or reserves which shall be applicable for meeting contingencies, or for equalising dividends or for any other purpose to which those funds may be properly applied and pending such application may, at the determination of the Directors, either be employed in the business of the Company or be invested in such investments as the Directors may from time to time think fit. |
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| 143. | Any dividend may be paid in any manner as the Directors may determine. If paid by cheque it will be sent through the post to the registered address of the Shareholder or Person entitled thereto, or in the case of joint holders, to any one of such joint holders at his registered address or to such Person and such address as the Shareholder or Person entitled, or such joint holders as the case may be, may direct. Every such cheque shall be made payable to the order of the Person to whom it is sent or to the order of such other Person as the Shareholder or Person entitled, or such joint holders as the case may be, may direct. |
| 144. | The Directors when paying dividends to the Shareholders in accordance with the foregoing provisions of these Articles may make such payment either in cash or in specie and may determine the extent to which amounts may be withheld therefrom (including, without limitation, any taxes, fees, expenses or other liabilities for which a Shareholder (or the Company, as a result of any action or inaction of the Shareholder) is liable). |
| 145. | Subject to any rights and restrictions for the time being attached to any Shares, all dividends shall be declared and paid according to the amounts paid up on the Shares, but if and for so long as nothing is paid up on any of the Shares dividends may be declared and paid according to the par value of the Shares. No amount paid on a Share in advance of calls shall, while carrying interest, be treated for the purposes of this Article as paid on the Share. |
| 146. | If several Persons are registered as joint holders of any Share, any of them may give effectual receipts for any dividend or other moneys payable on or in respect of the Share. |
| 147. | No dividend shall bear interest against the Company. |
| 148. | Any dividend unclaimed after a period of six calendar years from the date of declaration of such dividend may be forfeited by the Board of Directors and, if so forfeited, shall revert to the Company. |
ACCOUNTS, AUDIT AND ANNUAL RETURN AND DECLARATION
| 149. | The books of account relating to the Company’s affairs shall be kept in such manner as may be determined from time to time by the Directors. |
| 150. | The books of account shall be kept at the Office, or at such other place or places as the Directors think fit, and shall always be open to the inspection of the Directors. |
| 151. | The Directors may from time to time determine whether and to what extent and at what times and places and under what conditions or regulations the accounts and books of the Company or any of them shall be open to the inspection of Shareholders not being Directors, and no Shareholder (not being a Director) shall have any right of inspecting any account or book or document of the Company except as conferred by law or authorised by the Directors or by Ordinary Resolution. |
| 152. | The accounts relating to the Company’s affairs shall only be audited if the Directors so determine and/or if required by any applicable law, rule, regulation or regulatory authority, in which case the accounting principles will be determined by the Directors. The financial year of the Company shall end on 31 December of each year or such other date as the Directors may determine. |
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| 153. | The Directors may appoint an auditor of the Company who shall hold office until removed from office by a resolution of the Directors and may fix his or their remuneration. |
| 154. | Every auditor of the Company shall have a right of access at all times to the books and accounts and vouchers of the Company and shall be entitled to require from the Directors and officers of the Company such information and explanation as may be necessary for the performance of the duties of the auditors. |
| 155. | The auditors shall, if so required by the Directors, make a report on the accounts of the Company during their tenure of office at the next annual general meeting following their appointment, and at any time during their term of office, upon request of the Directors or any general meeting of the Members. |
| 156. | The Directors in each year shall prepare, or cause to be prepared, an annual return and declaration setting forth the particulars required by the Companies Act and deliver a copy thereof to the Registrar of Companies in the Cayman Islands. |
CAPITALISATION OF RESERVES
| 157. | Subject to the Companies Act and these Articles, the Directors may: |
| (a) | resolve to capitalise an amount standing to the credit of reserves (including a Share Premium Account, capital redemption reserve and profit and loss account), whether or not available for distribution; |
| (b) | appropriate the sum resolved to be capitalised to the Shareholders in proportion to the nominal amount of Shares (whether or not fully paid) held by them respectively and apply that sum on their behalf in or towards: |
| (i) | paying up the amounts (if any) for the time being unpaid on Shares held by them respectively, or |
| (ii) | paying up in full unissued Shares or debentures of a nominal amount equal to that sum, |
and allot the Shares or debentures, credited as fully paid, to the Shareholders (or as they may direct) in those proportions, or partly in one way and partly in the other, but the Share Premium Account, the capital redemption reserve and profits which are not available for distribution may, for the purposes of this Article, only be applied in paying up unissued Shares to be allotted to Shareholders credited as fully paid;
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| (c) | make any arrangements they think fit to resolve a difficulty arising in the distribution of a capitalised reserve and in particular, without limitation, where Shares or debentures become distributable in fractions the Directors may deal with the fractions as they think fit; |
| (d) | authorise a Person to enter (on behalf of all the Shareholders concerned) into an agreement with the Company providing for either: |
| (i) | the allotment to the Shareholders respectively, credited as fully paid, of Shares or debentures to which they may be entitled on the capitalisation, or |
| (ii) | the payment by the Company on behalf of the Shareholders (by the application of their respective proportions of the reserves resolved to be capitalised) of the amounts or part of the amounts remaining unpaid on their existing Shares, |
and any such agreement made under this authority being effective and binding on all those Shareholders; and
| (e) | generally do all acts and things required to give effect to any of the actions contemplated by this Article. |
SHARE PREMIUM ACCOUNT
| 158. | The Directors shall in accordance with the Companies Act establish a Share Premium Account and shall carry to the credit of such account from time to time a sum equal to the amount or value of the premium paid on the issue of any Share. |
| 159. | There shall be debited to any Share Premium Account on the redemption or purchase of a Share the difference between the nominal value of such Share and the redemption or purchase price provided always that at the determination of the Directors such sum may be paid out of the profits of the Company or, if permitted by the Companies Act, out of capital. |
NOTICES
| 160. | Any notice or document may be served by the Company or by the Person entitled to give notice to any Shareholder either personally, or by posting it airmail or air courier service in a prepaid letter addressed to such Shareholder at his address as appearing in the Register, or by electronic mail to any electronic mail address such Shareholder may have specified in writing for the purpose of such service of notices, or by facsimile to any facsimile number such Shareholder may have specified in writing for the purpose of such service of notices, or by placing it on the Company’s Website should the Directors deem it appropriate. In the case of joint holders of a Share, all notices shall be given to that one of the joint holders whose name stands first in the Register in respect of the joint holding, and notice so given shall be sufficient notice to all the joint holders. |
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| 161. | Any Shareholder present, either personally or by proxy, at any meeting of the Company shall for all purposes be deemed to have received due notice of such meeting and, where requisite, of the purposes for which such meeting was convened. |
| 162. | Any notice or other document, if served by: |
| (a) | post, shall be deemed to have been served five clear days after the time when the letter containing the same is posted; |
| (b) | facsimile, shall be deemed to have been served upon production by the transmitting facsimile machine of a report confirming transmission of the facsimile in full to the facsimile number of the recipient; |
| (c) | recognised courier service, shall be deemed to have been served forty-eight (48) hours after the time when the letter containing the same is delivered to the courier service; or |
| (d) | electronic means, shall be deemed to have been served immediately (i) upon the time of the transmission by electronic mail or (ii) upon the time of its placement on the Company’s Website. |
In proving service by post or courier service it shall be sufficient to prove that the letter containing the notice or documents was properly addressed and duly posted or delivered to the courier service.
| 163. | Any notice or document delivered or sent in accordance with the terms of these Articles shall notwithstanding that such Shareholder be then dead or bankrupt, and whether or not the Company has notice of his death or bankruptcy, be deemed to have been duly served in respect of any Share registered in the name of such Shareholder as sole or joint holder, unless his name shall at the time of the service of the notice or document, have been removed from the Register as the holder of the Share, and such service shall for all purposes be deemed a sufficient service of such notice or document on all Persons interested (whether jointly with or as claiming through or under him) in the Share. |
| 164. | Notice of every general meeting of the Company shall be given to: |
| (a) | all Shareholders holding Shares with the right to receive notice and who have supplied to the Company an address for the giving of notices to them; and |
| (b) | every Person entitled to a Share in consequence of the death or bankruptcy of a Shareholder, who but for his death or bankruptcy would be entitled to receive notice of the meeting. |
No other Person shall be entitled to receive notices of general meetings.
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INFORMATION
| 165. | Subject to the relevant laws, rules and regulations applicable to the Company, no Shareholder shall be entitled to required discovery of any information in respect of any detail of the Company’s trading or any information which is or may be in the nature of a trade secret or secret process which may relate to the conduct of the business of the Company and which in the opinion of the Board would not be in the interests of the Shareholders to communicate to the public. |
| 166. | Subject to due compliance with the relevant laws, rules and regulations applicable to the Company, the Board shall be entitled to release or disclose any information in its possession, custody or control regarding the Company or its affairs to any of its Shareholders including, without limitation, information contained in the Register and transfer books of the Company. |
INDEMNITY
| 167. | Every Director (including for the purposes of this Article any alternate Director appointed pursuant to the provisions of these Articles), Secretary, assistant Secretary, or other Officer (but not including the Company’s auditors) and the personal representatives of the same (each an “Indemnified Person”) shall be indemnified and secured harmless out of the assets and funds of the Company against all actions, proceedings, costs, charges, expenses, losses, damages or liabilities incurred or sustained by such Indemnified Person, other than by reason of such Indemnified Person’s own dishonesty, wilful default or fraud as determined by a court of competent jurisdiction, in or about the conduct of the Company’s business or affairs (including as a result of any mistake of judgment) or in the execution or discharge of his duties, powers, authorities or discretions, including without prejudice to the generality of the foregoing, any costs, expenses, losses or liabilities incurred by such Indemnified Person in defending (whether successfully or otherwise) any civil proceedings concerning the Company or its affairs in any court whether in the Cayman Islands or elsewhere. |
| 168. | No Indemnified Person shall be liable (and an Indemnified Person shall be indemnified by the Company as described in Article 167 if any person holds such Indemnified Person liable): |
| (a) | for the acts, receipts, neglects, defaults or omissions of any other Director or Officer or agent of the Company; or |
| (b) | for any loss on account of defect of title to any property of the Company; or |
| (c) | on account of the insufficiency of any security in or upon which any money of the Company shall be invested; or |
| (d) | for any loss incurred through any bank, broker or other similar Person; or |
| (e) | for any loss occasioned by any negligence, default, breach of duty, breach of trust, error of judgement or oversight on such Indemnified Person’s part; or |
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| (f) | for any loss, damage or misfortune whatsoever which may happen in or arise from the execution or discharge of the duties, powers, authorities, or discretions of such Indemnified Person’s office or in relation thereto; |
unless the same shall happen through such Indemnified Person’s own dishonesty, wilful default or fraud as determined by a court of competent jurisdiction.
NON-RECOGNITION OF TRUSTS
| 169. | Subject to the proviso hereto, no Person shall be recognised by the Company as holding any Share upon any trust and the Company shall not, unless required by law, be bound by or be compelled in any way to recognise (even when having notice thereof) any equitable, contingent, future or partial interest in any Share or (except only as otherwise provided by these Articles or as the Companies Act requires) any other right in respect of any Share except an absolute right to the entirety thereof in each Shareholder registered in the Register, provided that, notwithstanding the foregoing, the Company shall be entitled to recognise any such interests as shall be determined by the Directors. |
WINDING UP
| 170. | If the Company shall be wound up the liquidator shall apply the assets of the Company in such manner and order as he thinks fit in satisfaction of creditors’ claims. |
| 171. | Subject to Articles 17 and 18, if the Company shall be wound up, the liquidator may, with the sanction of an Ordinary Resolution divide amongst the Shareholders in specie or kind the whole or any part of the assets of the Company (whether they shall consist of property of the same kind or not) and may, for such purpose set such value as he deems fair upon any property to be divided as aforesaid and may determine how such division shall be carried out as between the Shareholders or different Classes. The liquidator may, with the like sanction, vest the whole or any part of such assets in trustees upon such trusts for the benefit of the Shareholders as the liquidator, with the like sanction shall think fit, but so that no Shareholder shall be compelled to accept any assets whereon there is any liability. |
| 172. | Subject to Articles 17 and 18, if the Company shall be wound up, and the assets available for distribution amongst the Members shall be insufficient to repay the whole of the share capital, such assets shall be distributed so that, as nearly as may be, the losses shall be borne by the Members in proportion to the par value of the Shares held by them. If in a winding up the assets available for distribution amongst the Members shall be more than sufficient to repay the whole of the share capital at the commencement of the winding up, the surplus shall be distributed amongst the Members in proportion to the par value of the Shares (on an as converted to Class A Shares basis) held by them at the commencement of the winding up subject to a deduction from those Shares in respect of which there are monies due, of all monies payable to the Company for unpaid calls or otherwise. This Article is without prejudice to the rights of the holders of Shares issued upon special terms and conditions. |
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AMENDMENT OF ARTICLES OF ASSOCIATION
| 173. | Subject to the Companies Act and the rights attaching to the various Classes, the Company may at any time and from time to time by Special Resolution alter or amend these Articles in whole or in part. |
CLOSING OF REGISTER OR FIXING RECORD DATE
| 174. | For the purpose of determining those Shareholders that are entitled to receive notice of, attend or vote at any meeting of Shareholders or any adjournment thereof, or those Shareholders that are entitled to receive payment of any dividend, or in order to make a determination as to who is a Shareholder for any other purpose, the Directors may provide that the Register shall be closed for transfers for a stated period which shall not exceed in any case 40 days. If the Register shall be so closed for the purpose of determining those Shareholders that are entitled to receive notice of, attend or vote at a meeting of Shareholders the Register shall be so closed for at least ten days immediately preceding such meeting and the record date for such determination shall be the date of the closure of the Register. |
| 175. | In lieu of or apart from closing the Register, the Directors may fix in advance a date as the record date for any such determination of those Shareholders that are entitled to receive notice of, attend or vote at a meeting of the Shareholders and for the purpose of determining those Shareholders that are entitled to receive payment of any dividend the Directors may, at or within 90 days prior to the date of declaration of such dividend, fix a subsequent date as the record date for such determination. |
| 176. | If the Register is not so closed and no record date is fixed for the determination of those Shareholders entitled to receive notice of, attend or vote at a meeting of Shareholders or those Shareholders that are entitled to receive payment of a dividend, the date on which notice of the meeting is posted or the date on which the resolution of the Directors declaring such dividend is adopted, as the case may be, shall be the record date for such determination of Shareholders. When a determination of those Shareholders that are entitled to receive notice of, attend or vote at a meeting of Shareholders has been made as provided in this Article, such determination shall apply to any adjournment thereof. |
REGISTRATION BY WAY OF CONTINUATION
| 177. | The Company may by Special Resolution resolve to be registered by way of continuation in a jurisdiction outside the Cayman Islands or such other jurisdiction in which it is for the time being incorporated, registered or existing. In furtherance of a resolution adopted pursuant to this Article, the Directors may cause an application to be made to the Registrar of Companies to deregister the Company in the Cayman Islands or such other jurisdiction in which it is for the time being incorporated, registered or existing and may cause all such further steps as they consider appropriate to be taken to effect the transfer by way of continuation of the Company. |
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MERGERS AND CONSOLIDATION
| 178. | The Company may merge or consolidate in accordance with the Companies Act. |
| 179. | To the extent required by the Companies Act, the Company may by Special Resolution resolve to merge or consolidate the Company. |
DISCLOSURE
| 180. | The Directors, or any authorised service providers (including the Officers, the Secretary and the registered office agent of the Company), shall be entitled to disclose to any regulatory or judicial authority, or to any stock exchange on which the Shares may from time to time be listed, any information regarding the affairs of the Company including, without limitation, information contained in the Register and books of the Company. |
EXCLUSIVE FORUM
| 181. | Unless the Company consents in writing to the selection of an alternative forum, to the fullest extent permitted by relevant law, the federal district courts of the United States shall be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act or the Exchange Act, regardless of whether such legal suit, action, or proceeding also involves parties other than the Company. |
| 182. | Unless the Company consents in writing to the selection of an alternative forum, the courts of the Cayman Islands shall have exclusive jurisdiction to hear, settle and/or determine any dispute, controversy or claim (including any non-contractual dispute, controversy or claim) whether arising out of or in connection with these Articles or otherwise, including any questions regarding their existence, validity, formation or termination. For the avoidance of doubt and without limiting the jurisdiction of the courts of the Cayman Islands to hear, settle and/or determine disputes related to the Company, the courts of the Cayman Islands shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Company, (ii) any action asserting a claim of breach of a fiduciary duty owed by any Director, officer or other employee of the Company to the pursuant to any provision of the Applicable Laws or these Articles including but not limited to any purchase or acquisition of Shares, securities or guarantee provided in consideration thereof, or (iv) any action asserting a claim against the Company concerning its internal affairs. This Article shall not apply to claims or causes of action brought to enforce a duty or liability created by the Securities Act, or the Exchange Act, as amended, or any other claim based on securities laws for which claim the federal district courts of the United States have exclusive jurisdiction. |
| 183. | Any person or entity purchasing or otherwise acquiring any Share or other securities in the Company, or purchasing or otherwise acquiring depositary shares representing the Company’s shares issued pursuant to relevant deposit agreements, whether such acquisition be by transfer, sale, operation of law or otherwise, shall be deemed to have notice of, irrevocably agreed and consented to the provisions of this Article and Articles 181 and 182 above. Without prejudice to the foregoing, if any part of this Article, Articles 181 or 182 are held to be illegal, invalid or unenforceable under applicable law, the legality, validity or enforceability of the rest of these Articles shall not be affected nor be impaired and this Article, Articles 181 and/or 182 shall be interpreted and construed to the maximum extent possible to apply in the relevant jurisdiction with whatever modification or deletion as may be necessary so as best to give effect to the intention of the Company. |
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Exhibit 2.2
Execution Version
Dated October 12, 2023
WARRANT INSTRUMENT
RELATING TO 20,067,574 WARRANTS TO SUBSCRIBE FOR
CLASS A ORDINARY SHARES IN MONEYHERO LIMITED
TABLE OF CONTENTS
| Page | ||||||
| 1 | Interpretation | 1 | ||||
| 2 | Constitution and Form of Warrants | 5 | ||||
| 3 | Register and Warrant Certificates | 6 | ||||
| 4 | Timing for exercise of Exercise Rights | 6 | ||||
| 5 | Mechanism for Exercising Exercise Rights | 6 | ||||
| 6 | Completion | 6 | ||||
| 7 | Adjustment | 7 | ||||
| 8 | Undertaking of PubCo | 8 | ||||
| 9 | Winding up of PubCo | 8 | ||||
| 10 | Transfer of Warrants | 9 | ||||
| 11 | Variation of Rights | 9 | ||||
| 12 | Replacement of Warrant Certificates | 9 | ||||
| 13 | Notices | 9 | ||||
| 14 | Termination | 9 | ||||
| 15 | Governing Law and Arbitration | 9 | ||||
| Schedule 1 Form of Warrant Certificate | 1 | |||||
| Notice of Exercise | 3 | |||||
| Schedule 2 Register, Transfer and Notices | 4 | |||||
i
THIS INSTRUMENT is entered into by way of deed poll on October 12, 2023 by:
MoneyHero Limited (formerly known as Hyphen Group Limited), an exempted company duly incorporated and existing under the laws of the Cayman Islands with its registered office at Walkers Corporate Limited, 190 Elgin Avenue, George Town, Grand Cayman KY1-9008, Cayman Islands (together with its authorized representatives, where applicable, “PubCo”).
WHEREAS:
| (A) | On May 25, 2023, PubCo, CompareAsia Group Capital Limited, an exempted company duly incorporated and existing under the Laws of the Cayman Islands with its registered office at Walkers Corporate Limited, 190 Elgin Avenue, George Town, Grand Cayman KY1-9008, Cayman Islands (the “Company”), Bridgetown Holdings Limited, a Cayman Islands exempted company limited by shares, Gemini Merger Sub 1 Limited , a Cayman Islands exempted company limited by shares and a direct wholly-owned Subsidiary of PubCo, and Gemini Merger Sub 2 Limited, a Cayman Islands exempted company limited by shares and a direct wholly-owned Subsidiary of PubCo, entered into a business combination agreement (as amended, modified or supplemented from time to time, the “Business Combination Agreement”). |
| (B) | In connection with the transactions contemplated under the Business Combination Agreement, on May 25, 2023, PubCo and the Company, among others, entered into a supplemental deed (as amended, modified or supplemented from time to time, the “Supplemental Deed”) in relation to the warrant instrument relating to warrants to subscribe for class A ordinary shares in the Company, dated October 14, 2022. |
| (C) | Pursuant to the Supplemental Deed, upon the Acquisition Effective Time (as defined in the Business Combination Agreement), PubCo shall create and issue the Warrants (as defined below) to subscribe Class A Ordinary Shares (as defined below) on the terms and subject to the conditions set out in this Instrument. |
| (D) | This Instrument has been executed by PubCo as a deed poll in favour of the Warrantholders (as defined below). |
THIS INSTRUMENT WITNESSES as follows:
| 1 | Interpretation |
| 1.1 | In this Instrument, unless otherwise defined herein, capitalised terms have the meanings ascribed to them in the Business Combination Agreement: |
“Affiliate” means (i) with respect to a Person other than a natural person, any other Person that, directly or indirectly, Controls, is Controlled by or is under common Control with such Person and (ii) in the case of a Person that is a natural person, any other Person that is directly or indirectly Controlled by such Person or is a Relative of such Person or any Person that is directly or indirectly Controlled by such Relative;
“Board” means the board of directors of PubCo;
“Business” means PubCo and its Subsidiaries’ business of operating a web or application-based marketplace, community, brokerage or aggregator service specialized in fintech and financial services and comparing banking, insurance, telecommunication, utility or other personal finance products and/or providing platform- or software-as-a-service solutions;
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“Business Day” means any day except a Saturday, Sunday or other day on which commercial banks in Singapore, Hong Kong, the Cayman Islands or New York City, New York are authorized or required by applicable law to close;
“Class A Ordinary Shares” means the Class A ordinary shares of PubCo, par value US$0.0001 per share;
“Control” means with respect to a Person, (i) direct or indirect ownership or control of more than 50% of the outstanding voting securities of such Person; (ii) the ability to appoint or remove a majority of the directors of the board (or equivalent governing body) of such Person; (iii) the right to control the votes at a meeting of the board of directors (or equivalent governing body) of such Person; or (iv) the ability to direct or cause the direction of the management and policies of such Person (whether by contract or howsoever arising); and the terms “Controls”, “Controlling” and “Controlled” shall be construed accordingly;
“Exercise Period” means, in relation to the Warrants represented by a Warrant Certificate, the period commencing on the Issuance Date of such Warrants and ending on October 14, 2027 (both dates inclusive);
“Exercise Price” means:
| (i) | in relation to the Warrants (Class A-1), US$2.9899 per Warrant, |
| (ii) | in relation to the Warrants (Class A-2), US$5.9798 per Warrant, |
| (iii) | in relation to the Warrants (Class A-3), US$8.9697 per Warrant, |
in each case, for avoidance of doubt, regardless of the number of Class A Ordinary Shares each Warrant is convertible into, upon exercise of the Exercise Rights, as determined by the Exercise Ratio;
“Exercise Ratio” means, initially, at the rate of 0.307212 Class A Ordinary Share for each Warrant, as adjusted from time to time in the circumstances and in the manner referred to in clause 7;
“Exercise Rights” means the rights of Warrantholders to exercise the Warrants for Class A Ordinary Shares at the Exercise Price and at the Exercise Ratio, pursuant to clause 5;
“Government Authority” means any nation or government or any federation, province or state or any other political subdivision thereof; any entity, authority or body exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including any government authority, agency, department, board, commission or instrumentality of Hong Kong, Singapore, the Cayman Islands or any other country, or any political subdivision thereof, any court, tribunal or arbitrator, and any self-regulatory organization;
“Holding Company” has the meaning given in clause 1.4.4;
2
“Issuance Date” means, in relation to the Warrants represented by a Warrant Certificate, the date of issuance of such Warrants as stipulated in the Warrant Certificate;
“Notice of Exercise” means the notice set out in the schedule to the Warrant Certificate;
“Permitted Transferee” means with respect to any Warrantholder, any Person other than (i) PubCo or any of its Subsidiaries or (ii) any Prohibited Transferee (whether or not an Affiliate of the transferring Warrantholder);
“Person” means any individual, corporation, partnership, limited partnership, proprietorship, association, limited liability company, firm, trust, estate or other enterprise or entity;
“Politically Exposed Person” means a current or former senior official in the executive, legislative, administrative, military or judicial branches of a Government Authority (whether elected or not), a current or former senior official of a major political party, or a current or former senior executive of a government-owned commercial enterprise. In addition, a Politically Exposed Person includes any corporation, business or other entity that has been formed by, or for the benefit of, a Politically Exposed Person;
“Prohibited Transferee” means (i) any PubCo Competitor; (ii) any current or potential future provider of PubCo within the insurance, retail banking or telecommunications industry; (iii) any Person whose involvement or investment in the Business is or could reasonably be, as determined by the Board, damaging to the reputation of the Business, and in each case of (i) and (ii), unless otherwise determined by the Board; or (iv) any Person who (a) is named on (1) lists promulgated by the United Nations Security Council or its committees pursuant to resolutions issued under Chapter VII of the United Nations Charter or (2) the World Bank Listing of Ineligible Firms (see www.worldbank.org/debarr); (b) is targeted by or subject to any sanction administered or enforced by the Office of Foreign Assets Control of the US Department of the Treasury, the U.S. Department of State or under a UN Security Council Resolution; or (c) is a Politically Exposed Person; provided, that in respect of any transfer of Warrants by Global Private Opportunities Partners II LP or Global Private Opportunities Partners II Offshore Holdings LP, any Affiliate of Goldman, Sachs & Co. or any Person who is an investor in funds advised by an Affiliate of Goldman, Sachs & Co., shall be deemed not to be a Prohibited Transferee;
“PubCo Bank Account” means the following bank account designated by PubCo (as may be updated by PubCo by notice in writing to the Warrantholders):
Correspondent Bank Name: JP Morgan Chase
Correspondent Bank SWIFT Code: CHASUS33
ABA Routing Number: 021000021
Correspondent Bank Address (or country): 270 Park Avenue, 41st Floor, New York, NY 10017
Beneficiary Account Name: Continental Stock Transfer & Trust Company AAF MoneyHero Limited
Beneficiary Account Number: 557-761189
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“PubCo Competitor” means any marketplace, brokerage or aggregator for financial services, including banking, brokerage and insurance companies, telecommunication companies, utility providers as well as companies that compare banking, brokerage, insurance, telecommunication or utility products, or compare any other products that PubCo or its Subsidiaries are comparing from time to time, unless the Board otherwise determines;
“PubCo Charter” means the amended and restated memorandum and articles of association of PubCo, as amended from time to time;
“Register” means the respective registers of entitlement to the Warrants as maintained by PubCo and amended from time to time, including the original registers and copies thereof;
“Registered Office” means the registered office of PubCo or any other places designated by PubCo from time to time. The Registered Office shall initially be:
Continental Stock Transfer & Trust Company
1 State Street, 30 FL
New York, New York 10004
“Relative” of a natural person shall mean the siblings, spouse and children of such natural person and any parent or siblings of such natural person or spouse;
“Shares” shall mean any shares in the capital of PubCo;
“Subsidiary” has the meaning given in clause 1.4.4;
“Warrant (Class A-1)” means each of the Warrants described as Class A-1 Warrants in the relevant Warrant Certificate with the Exercise Price attributable to such class of Warrants;
“Warrant (Class A-2)” means each of the Warrants described as Class A-2 Warrants in the relevant Warrant Certificate with the Exercise Price attributable to such class of Warrants;
“Warrant (Class A-3)” means each of the Warrants described as Class A-3 Warrants in the relevant Warrant Certificate with the Exercise Price attributable to such class of Warrants;
“Warrant Certificate” means a certificate in the form, or substantially in the form, set out in Schedule 1;
“Warrant Shares” means the Class A Ordinary Shares issuable upon the exercise of the Warrants;
“Warrantholder” means the Person or Persons in whose name(s) a Warrant is approved by the Board to be issued and is registered by the Register as duly held by such Person;
“Warrantholder Consent” means the consent of a majority of the holders of not less than 75 per cent. of the Warrants; and
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“Warrants” means the warrants of PubCo constituted by this Instrument and all rights conferred by it.
| 1.2 | Words and expressions defined in PubCo Charter shall, unless otherwise defined in this Instrument, have the same meaning when used in this Instrument. |
| 1.3 | The headings in this Instrument do not affect its interpretation. |
| 1.4 | In this Instrument a reference to: |
| 1.4.1 | a clause, paragraph or schedule, unless the context otherwise requires, is a reference to a clause or paragraph of, or schedule to, this Instrument; |
| 1.4.2 | references herein to ‘this Instrument’ include, where the context so admits, the Schedules hereto; |
| 1.4.3 | a statutory provision shall be construed as a reference to those provisions and any subordinate legislation made under the statutory provision in force at the date of this Instrument; and |
| 1.4.4 | a company is a “Subsidiary” of another company, its “Holding Company” if that other company: |
| (a) | holds a majority of the voting rights in it; or |
| (b) | is a member of it and has the right to appoint or remove a majority of its board of directors; or |
| (c) | is a member of it and Controls alone, pursuant to an agreement with other shareholders or members, a majority of the voting rights in it; |
or if it is a Subsidiary of a company which itself is a Subsidiary of that other company.
| 2 | Constitution and Form of Warrants |
| 2.1 | PubCo hereby creates and issues, pursuant to the Supplemental Deed, 20,067,574 warrants of PubCo to subscribe for Class A Ordinary Shares on the terms and subject to the conditions of this Instrument. |
| 2.2 | Each Warrantholder shall be entitled, on exercise of the Exercise Rights attaching to its Warrants, and on the terms and subject to the conditions set out in this Instrument, to convert all or part of the Warrants held by it into Class A Ordinary Shares at the Exercise Ratio. The price to be paid by the Warrantholder to PubCo upon exercise of the Exercise Rights is the product of (i) the Exercise Price, multiplied by (ii) the number of exercised Warrants. |
| 2.3 | PubCo undertakes to comply with the terms and conditions of this Instrument and specifically, but without limitation, to give effect to the Exercise Rights in accordance with the terms of this Instrument. |
| 2.4 | The Warrants are issued subject to the PubCo Charter and otherwise on the terms and conditions of this Instrument which are binding on PubCo and each Warrantholder and all Persons claiming through or under them. |
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| 3 | Register and Warrant Certificates |
| 3.1 | PubCo shall maintain the Register in accordance with the provisions of Schedule 2. |
| 3.2 | PubCo shall, on the day of entering the name of a Warrantholder in the Register, issue to the Warrantholder a Warrant Certificate in respect of that number of Warrant Shares to which it is entitled. |
| 4 | Timing for exercise of Exercise Rights |
| 4.1 | During the Exercise Period, the Warrants entitle each Warrantholder to exercise its Exercise Rights at any time. |
| 4.2 | The Warrants shall be in registered form. Each Warrant shall carry the Exercise Right and shall be transferable in accordance with clause 10 and Schedule 2. |
| 5 | Mechanism for Exercising Exercise Rights |
| 5.1 | Subject to clause 4.1, if a Warrantholder decides to exercise its Exercise Rights in whole or in part, such Warrantholder may do so by lodging the following items at the Registered Office: |
| 5.1.1 | the relevant Warrant Certificate, together with the duly completed Notice of Exercise; and |
| 5.1.2 | a bank transfer to the PubCo Bank Account for the aggregate Exercise Price payable for the Warrants in respect of which the Exercise Rights are being exercised. |
| 6 | Completion |
| 6.1 | Subject to clause 6.3, following a valid exercise of Exercise Rights by a Warrantholder, PubCo shall in accordance with clause 6.2: |
| 6.1.1 | allot and issue to the Warrantholder (or to its nominee or trustee, if applicable) the Class A Ordinary Shares to which the Warrantholder is entitled, being a number of Class A Ordinary Shares equal to the product of (x) the number of exercised Warrants, multiplied by (y) the Exercise Ratio; and |
| 6.1.2 | cause such Class A Ordinary Shares to be registered in book entry form and registered in PubCo’s share register or register of members (as applicable) in the Warrantholder’s name (or its nominee’s or trustee’s name, if applicable). |
| 6.2 | The obligations of PubCo under clause 6.1 shall be fulfilled within two (2) Business Days after the Notice of Exercise is lodged at the Registered Office (the date such obligations are being fulfilled, the “Exercise Date”). |
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| 6.3 | Warrant Shares issued pursuant to this Instrument: |
| 6.3.1 | shall be credited as fully paid; |
| 6.3.2 | shall have the rights set out in the PubCo Charter relating to Class A Ordinary Shares; and |
| 6.3.3 | shall rank pari passu in all respects with those Class A Ordinary Shares in issue on the Exercise Date. |
| 6.4 | If a Warrantholder exercises only some of his/her/its Warrants, a new Warrant Certificate in respect of the balance of the Warrants will be issued and delivered to the Warrantholder within five (5) Business Days of the surrender of that Warrant Certificate (for avoidance of doubt, the date of issuance of the balance of such Warrants shall remain the same). |
| 7 | Adjustment |
| 7.1 | Share Dividends and Splits. If after the date hereof, and subject to the provisions of clause 7.6 below, the number of outstanding Class A Ordinary Shares is increased by a share dividend payable in Class A Ordinary Shares, or by a split up of Class A Ordinary Shares, or other similar event, then, on the effective date of such share dividend, split up or similar event, the Exercise Ratio shall be increased in proportion to such increase in issued and outstanding shares of Class A Ordinary Shares. |
| 7.2 | Aggregation of Shares. If after the date hereof, and subject to the provisions of clause 7.6 below, the number of issued and outstanding Class A Ordinary Shares is decreased by a consolidation, combination or reclassification of Class A Ordinary Shares or other similar event, then, on the effective date of such consolidation, combination, reclassification or similar event, the Exercise Ratio shall be decreased in proportion to such decrease in issued and outstanding Class A Ordinary Shares. |
| 7.3 | Adjustments in Exercise Price. Whenever the Exercise Ratio is adjusted, as provided in clauses 7.1 or 7.2 above, the Exercise Price shall be the same as it was prior to the such adjustment. |
| 7.4 | Replacement of Securities upon Reorganization, etc. In case of any reclassification or reorganization of the outstanding Class A Ordinary Shares (other than a change addressed in clauses 7.1 or 7.2 above or that solely affects the par value of such Class A Ordinary Shares), or in the case of any merger or consolidation of PubCo with or into another corporation (other than a consolidation or merger in which PubCo is the continuing corporation and that does not result in any reclassification or reorganization of the outstanding Class A Ordinary Shares), or in the case of any sale or conveyance to another corporation or entity of the assets or other property of PubCo as an entirety or substantially as an entirety in connection with which PubCo is dissolved, the Warrantholders shall thereafter have the right to purchase and receive, upon the basis and upon the terms and conditions specified in the Warrants and in lieu of the Class A Ordinary Shares purchasable and receivable upon the exercise of the rights represented thereby, the kind and amount of shares of stock or other securities or property (including cash) receivable upon such reclassification, reorganization, merger or consolidation, or upon a dissolution following any such sale or transfer, that the Warrantholder would have received if such Warrantholder had exercised his/her/its Warrant(s) immediately prior to such event; and if any reclassification also results in a change in Class A Ordinary Shares addressed in clauses 7.1 or 7.2 above, then such adjustment shall be made pursuant to clauses 7.1, 7.2 and this clause 7.4. The provisions of this clause 7.4 shall similarly apply to successive reclassifications, reorganizations, mergers or consolidations, sales or other transfers. |
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| 7.5 | Notice of Changes in Warrants. PubCo shall send the Warrantholders notice of any adjustments to the Exercise Rights made pursuant to clauses 7.1 to 7.4 as soon as practicable (and within five (5) Business Days) following the relevant resolution of the Board giving effect to or sanctioning the event referred to in clauses 7.1 to 7.4 together with a replacement Warrant Certificate evidencing each Warrantholder’s adjusted Exercise Ratio. |
| 7.6 | No Fractional Shares. No fractions of a Warrant Share shall be issued on the exercise of a Warrant. If, by reason of any provisions in this Instrument, any Warrantholder would otherwise be entitled, upon the exercise of its Exercise Rights, to receive a fractional interest in a Warrant Share (after aggregating all fractional Warrant Shares that otherwise would be received by such Warrantholder), PubCo shall, upon such exercise, round down the number of Warrant Shares to be issued to such Warrantholder to the nearest whole number. |
| 7.7 | Other Events. In case any event shall occur affecting PubCo as to which none of the provisions of preceding subclauses of this clause 7 are strictly applicable, but which would require an adjustment to the terms of the Warrants in order to (a) avoid an adverse impact on the Warrants and (b) effectuate the intent and purpose of this clause 7, then, in each such case, the Board shall appoint a firm of independent public accountants, investment banking or other appraisal firm of recognized national standing, which shall give its opinion as to whether or not any adjustment to the rights represented by the Warrants is necessary to effectuate the intent and purpose of this clause 7 and, if they determine that an adjustment is necessary, the terms of such adjustment. Without prejudice to the foregoing, PubCo shall not take any action which would result in any adjustment to the Exercise Ratio if, after giving effect thereto, the Exercise Ratio would be increased to such an extent that the Class A Ordinary Shares to be issued on exercise of any Warrants could not, under any applicable law then in effect, be legally issued as fully paid. |
| 8 | Undertaking of PubCo |
PubCo undertakes to each Warrantholder that during the Exercise Period (except with Warrantholder Consent or pursuant to clause 7 of this Instrument or as otherwise provided in the PubCo Charter), it will keep available for issue and free from pre-preemptive rights sufficient authorised but unissued share capital to satisfy in full the exercise of all outstanding Warrants.
| 9 | Winding up of PubCo |
If, during the Exercise Period, an order is made or an effective resolution is passed for winding up or dissolution of PubCo (except for the purpose of implementing a reconstruction, amalgamation or scheme of arrangement on terms previously sanctioned by a special resolution) each Warrantholder will be treated as if, immediately before the date of such order or resolution, such Warrantholder had exercised all the Exercise Rights which remain to be exercised by such Warrantholder and shall be entitled to receive out of the assets which would otherwise be available in the liquidation such sum (if any) as such Warrantholder would have received had such Warrantholder been the holder of the Class A Ordinary Shares to which such Warrantholder would have become entitled by virtue of such exercise, after deducting from such sum an amount equal to the Exercise Price which would have been payable upon such exercise.
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| 10 | Transfer of Warrants |
The Warrants are transferable in accordance with the provisions of paragraph 2 of Schedule 2.
| 11 | Variation of Rights |
| 11.1 | All or any of the rights for the time being attached to the Warrants (including the Exercise Rights) may from time to time (whether or not PubCo is being wound up) be altered or abrogated with Warrantholder Consent and shall be effected by an instrument by way of deed poll executed by PubCo and expressed to be supplemental to this Instrument. |
| 11.2 | Modifications to the Instrument which are of a formal, minor or technical nature, or made to correct a manifest error, may be effected by an instrument by way of deed poll executed by PubCo and expressed to be supplemental to this Instrument. |
| 12 | Replacement of Warrant Certificates |
If a Warrant Certificate is mutilated, defaced, lost, stolen or destroyed, it will be replaced by PubCo upon payment by the Warrantholder of PubCo’s reasonable costs in connection with the issue of the replacement. Mutilated or defaced Warrant Certificates in respect of which replacements are being sought must be surrendered before replacements will be issued.
| 13 | Notices |
Any notice to be given to or by the Warrantholders for the purposes of this Instrument shall be given in accordance with the provisions of paragraph 3 of Schedule 2.
| 14 | Termination |
This Instrument shall terminate upon the earlier of (i) the end of the Exercise Period or (ii) the date upon which there ceases to be any unexercised Warrants outstanding.
| 15 | Governing Law and Arbitration |
| 15.1 | This Instrument and any dispute or claim arising out of or in connection with it or its subject matter shall be governed by, and construed in accordance with, the laws of the Cayman Islands, without giving effect to any choice of law or conflict of law rules or provisions (whether of the Cayman Islands or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the Cayman Islands. |
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| 15.2 | Any dispute, controversy, difference or claim arising out of or relating to this Instrument, 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 finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (“HKIAC”) under the HKIAC Administered Arbitration Rules in force when the notice of arbitration is submitted. The law of this arbitration clause shall be that stated in clause 15.1. The seat of this arbitration shall be Hong Kong. The number of arbitrators shall be three (3). The arbitration proceedings shall be conducted in English. |
| 15.3 | Notwithstanding the foregoing, nothing in this clause shall prevent any party seeking any interim or interlocutory relief in aid of any arbitration or in connection with enforcement proceedings from any court of competent jurisdiction. |
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IN WITNESS WHEREOF this Instrument has been executed by PubCo as a deed poll and is intended to be and is hereby delivered on the date first above written.
| Executed as a deed by MoneyHero Limited acting by Shaun Kraft, as authorized signatory, in the presence of: |
|
| ||
|
SIGNATURE OF SHAUN KRAFT | |||
| SIGNATURE OF WITNESS | ||||
| Name: Jia Xu Lee | ||||
| Address: 70 Shenton Way, #18-08, EON Shenton, Singapore 079118 Occupation of Witness: Paralegal |
||||
[Signature Page to Instrument of MoneyHero Limited Class A Acquisition Warrants]
Schedule 1
Form of Warrant Certificate
MONEYHERO LIMITED (“PubCo”)
(Incorporated under the laws of Cayman Islands with registered number 398798)
WARRANT CERTIFICATE
| Certificate No. | ||||
| Date of Issue of Warrant Certificate: | ||||
| Date of Issue of Warrants: | ||||
| Name and Address of Warrantholder: | ||||
| Number of Warrants: | ||||
| Class of Warrants: Warrants (Class [A-1][A-2][A-3]) | ||||
| Exercise Price: US$[•] for each Warrant | ||||
Exercise Ratio: 0.307212 Class A Ordinary Share(s) for each Warrant (as adjusted from time to time pursuant to clause 7 of the Warrant Instrument)
THIS IS TO CERTIFY that the Warrantholder named above is the registered holder of the number of Warrants specified above, each of which entitles the holder (inter alia) to subscribe for [•] Class A Ordinary Shares in PubCo as calculated in accordance with the terms and conditions set out in the instrument entered into by way of deed poll dated [•] (the “Warrant Instrument”) and subject to the PubCo Charter. Terms defined in the Warrant Instrument have the same meaning when used in this Certificate.
This Warrant Certificate has been executed as a deed and is delivered and takes effect on the date of issue stated at the beginning of it.
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| Executed as a deed by MoneyHero Limited | ||
| acting by [NAME OF FIRST DIRECTOR], | ||
| a director and [NAME OF SECOND DIRECTOR OR SECRETARY], | ||
| [a director OR its secretary] | ||
|
| ||
| [SIGNATURE OF FIRST DIRECTOR] | ||
| Director | ||
|
| ||
| [SIGNATURE OF SECOND DIRECTOR OR SECRETARY] | ||
| [Director or Secretary] | ||
| OR | |
| Executed as a deed by MoneyHero Limited | ||
| acting by [[NAME OF DIRECTOR] a director]/[NAME OF AUTHORISED SIGNATORY] as authorised signatory, | ||
| [SIGNATURE OF [DIRECTOR]/[AUTHORISED SIGNATORY]] |
| |
| [Director]/[Authorised Signatory]
in the presence of: | ||
| Witness Signature: | ||
| Name: | ||
| Address: | ||
| Occupation | ||
| Dated: [INSERT DATE] | ||
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Schedule to the Warrant Certificate
Notice of Exercise
| To: | MoneyHero Limited |
[Address]
with a copy to:
Continental Stock Transfer & Trust Company
1 State Street, 30 FL
New York, New York 10004
Attn: Compliance Department
We hereby exercise the Exercise Rights over of the Warrants represented by this Warrant Certificate and enclose a bankers draft for US$ being the aggregate Exercise Price payable in respect thereof.
We direct PubCo to allot the Class A Ordinary Shares in the following numbers and to the following proposed allottees:
| No. of Class A Ordinary Shares |
Name of Proposed Allottee |
Address of Proposed Allottee | ||||
| 1 |
||||||
| 2 |
||||||
| 3 |
||||||
We agree that the Class A Ordinary Shares are issued to us subject to the PubCo Charter.
| Signed by |
||
| [•] |
| |
| For and on behalf of | ||
| [•] Limited | ||
| Director/Secretary |
| Lodged by: (agent to whom share certificate(s) should be sent) |
| Name of Agent: | ||
| Address: | ||
| For the attention of: | ||
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Schedule 2
Register, Transfer and Notices
| 1 | Register |
| 1.1 | PubCo shall keep the Register at the Registered Office and there, entered in the Register: |
| 1.1.1 | the names and addresses of the Warrantholders; |
| 1.1.2 | the number of Warrants held by each Warrantholder; and |
| 1.1.3 | the date on which the name of each Warrantholder is entered in the Register in respect of the Warrants registered in his/its name. |
| 1.2 | Any change in the name or address of any Warrantholder shall be notified as soon as reasonably practicable following such change to PubCo which shall cause the Register to be altered accordingly. The Warrantholders or any of them or any Person authorised by any such Warrantholder shall be at liberty at all reasonable time during office hours upon two (2) Business Days’ notice to inspect the Register and to take copies of or extract from the same or any part thereof. |
| 1.3 | PubCo shall be entitled to treat the Person whose name is shown in the Register as a Warrantholder as the absolute owner of the Warrant and, accordingly, shall not except as ordered by a court of competent jurisdiction or as required by law, be bound to recognise any equitable or other claim to, or interest in, such Warrant on the part of any other Person whether or not it shall have express or other notice thereof. |
| 1.4 | Every Warrantholder shall be recognised by PubCo as entitled to his/her/its Warrants free from any equity, set-off or cross-claim on the part of PubCo, or any original or intermediate holder of such Warrants. |
| 2 | Transfers |
| 2.1 | No Warrantholder shall be entitled to assign or transfer any rights or obligations under any Warrant without the prior written consent of PubCo, except if such Warrants are assigned or transferred to an Affiliate of such Warrantholder that is a Permitted Transferee. |
| 2.2 | The Warrants may not be transferred otherwise than as permitted by paragraph 2.1 above. |
| 2.3 | The provisions of Schedule 2 shall regulate any transfer of a Warrant. |
| 2.4 | Each Warrant will be registered and will be transferable subject to paragraph 2.1 of this Schedule 2 by instrument of transfer in any usual or common form, or in any other form which may be approved by the Board. PubCo may refuse to register any transfer of Warrants unless it is duly stamped and lodged at the Registered Office accompanied by a certificate for the Warrants to be transferred and such other evidence as the Board may reasonably require to show the right of the transferor to make the transfer, but shall register any transfer which is so stamped and lodged, and so accompanied by a certificate or other evidence. Certificates shall be produced by PubCo within two (2) Business Days of a valid transfer lodgement. |
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| 3 | Notices |
| 3.1 | Each Warrantholder shall register with PubCo an address to which notices can be sent and if any Warrantholder shall fail to do so, notice may be given to such Warrantholder by sending the same by any of the methods referred to in paragraph 3.2 of this Schedule to his/her/its last known place of business or residence or, if none, by exhibiting the same for three (3) Business Days at the Registered Office. |
| 3.2 | Notices and other communications to Warrantholders and/or to PubCo shall be in writing and shall be delivered personally, sent by courier or by facsimile process, or if sent to an address, by first class post. In proving service of any notice or other communication sent by post it shall be sufficient to prove that the envelope or wrapper containing the notice or other communication was properly addressed and stamped and was deposited in a post box or at the post office. In proving service of a notice or other communication sent by facsimile process it shall be sufficient to prove that the facsimile message was properly addressed and despatched. |
| 3.3 | A notice or other communication given pursuant to the provisions of paragraph 3.2 of this Schedule must be in writing in the English language and must be given by, delivered at or sent by first class post or other faster service or facsimile transmission or other means of electronic communication to the latest known postal address, relevant facsimile number or electronic communication (email) address of PubCo or the Warrantholder (as applicable). In the absence of evidence of earlier receipt, any notice or document shall be deemed to have been served: (i) if delivered, at the time of delivery; (ii) if posted, at 10.00 a.m. on the seventh (7th) Business Day after it was put into the post; or (iii) if sent by facsimile or email, at the time of completion of transmission. |
| 3.4 | All notices and other communications with respect to Warrants registered in the names of joint registered holders shall be given to whichever of such Persons is named first in the Register and any notice so given shall be sufficient notice to all the joint registered holders of such Warrants. |
| 3.5 | Any Person who, whether by operation of law, transfer or other means whatsoever, becomes entitled to any Warrant shall be bound by every notice properly given to the Person from whom such Person derives his/its title to such Warrant. |
| 3.6 | When a given number of days’ notice is required to be given, the day of service shall be included but the day upon which such notice will expire shall not be included in calculating the number of days. The signature to any notice to be given by PubCo may be written or printed (including electronically). |
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Exhibit 2.3
Execution Version
PUBCO CLASS A WARRANT AGREEMENT
THIS PUBCO CLASS A WARRANT AGREEMENT (this “Agreement”), dated as of October 12, 2023, is entered into by and between MoneyHero Limited, an exempted company duly incorporated and existing under the laws of the Cayman Islands (the “Company”), and Continental Stock Transfer & Trust Company, a New York corporation (the “Warrant Agent”).
WHEREAS, the Company has filed with the Securities and Exchange Commission a Registration Statement on Form F-4, No: 333-274454, for the registration under the Securities Act of 1933, as amended, of, among other securities, the Class A ordinary shares of the Company, par value US$0.0001 per share (the “Class A Ordinary Shares”) issuable upon exercise of the Warrants (as defined below);
WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing to so act, in connection with the issuance, registration, transfer, exchange and exercise of the Warrants;
WHEREAS, the Company desires to provide for the form and provisions of the Warrants, the terms upon which they shall be issued and exercised, and the respective rights, limitation of rights, and immunities of the Company and the holders of the Warrants in accordance with the warrant instrument attached hereto as Exhibit A (the “Warrant Instrument”), the provisions of which are incorporated herein; and
WHEREAS, all acts and things have been done and performed which are necessary to make the Warrants, when executed by the Company as provided herein, the valid, binding and legal obligations of the Company, and to authorize the execution and delivery of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto agree as follows:
1. Appointment of Warrant Agent. The Company hereby appoints the Warrant Agent to act as agent and authorized representative of the Company for the Warrants, and the Warrant Agent hereby accepts such appointment and agrees to perform the same in accordance with the terms and conditions set forth in this Agreement.
2. Warrants.
2.1 Form of Warrant. Each Warrant shall be (a) issued in registered form only, (b) in substantially the form of Schedule 1 to the Warrant Instrument, and (c) signed by, or bear the facsimile signature of, an authorized signatory of the Company. In the event the person whose facsimile signature has been placed upon any Warrant shall have ceased to serve in the capacity in which such person signed the Warrant before such Warrant is issued, it may be issued with the same effect as if he or she had not ceased to be such at the date of issuance.
2.2 Warrant Issuance. The Warrant Agent is hereby authorized to deliver, in accordance with the terms of this Agreement, the Warrants required to be issued pursuant to clause 2.1 of the Warrant Instrument, and the Company shall supply the Warrant Agent with Warrants duly executed on behalf of the Company for such purpose.
2.3 Registration.
2.3.1 Warrant Register. The Warrant Agent shall maintain books (the “Warrant Register”) for the registration of the original issuance and transfers of the Warrants. Upon the initial issuance of the Warrants, the Warrant Agent shall register the Warrants in the names of the respective holders thereof in such denominations and otherwise in accordance with instructions delivered to the Warrant Agent by the Company.
2.3.2 Registered Holder. Prior to due presentment for registration of transfer of any Warrant, the Company and the Warrant Agent may deem and treat the person in whose name such Warrant shall be registered upon the Warrant Register (the “registered holder”), as the absolute owner of such Warrant and of each Warrant represented thereby (notwithstanding any notation of ownership or other writing on the warrant certificate made by anyone other than the Company or the Warrant Agent), for the purpose of any exercise thereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary.
3. Terms and Exercise of Warrants.
3.1 Exercise Price. Each Warrant shall entitle the registered holder thereof, subject to the provisions of such Warrant and of this Agreement, to purchase from the Company 0.307212 Class A Ordinary Shares, subject to the adjustments provided in clause 7 of the Warrant Instrument, at the Exercise Price specified therein. The term “Exercise Price” as used in this Agreement refers to the exercise price per Warrant at which 0.307212 Class A Ordinary Shares, subject to the adjustments provided in clause 7 of the Warrant Instrument, may be purchased at the time a Warrant is exercised.
3.2 Duration of Warrants. A Warrant may be exercised only during the period (“Exercise Period”) commencing on the issuance date of such Warrant and ending on October 14, 2027 (both dates inclusive) (the “Expiration Date”). Each Warrant not exercised on or before the Expiration Date shall become void, and all rights thereunder and all rights in respect thereof under this Agreement shall cease at the end of the Expiration Date.
3.3 Exercise of Warrants. The Warrants shall be exercised in accordance with clauses 2, 4, 5, 6 and 9 of the Warrant Instrument. The Warrant Agent is hereby authorized to perform the Company’s obligations under clauses 6 and 9 of the Warrant Instrument.
4. Adjustments. The Exercise Ratio (as defined in the Warrant Instrument), the Exercise Price and any fractional Class A Ordinary Shares issuable upon exercise of the Warrants shall be adjusted in accordance with clause 7 of the Warrant Instrument. Upon occurrence of any adjustment to the Exercise Rights (as defined in the Warrant Instrument) made pursuant to clauses 7.1 to 7.4 of the Warrant Instrument, the Company shall promptly notify the Warrant Agent of such adjustment in writing, following which, the Warrant Agent shall send the registered holders notice of such adjustment together with a replacement warrant certificate in accordance with clause 7.5 of the Warrant Instrument.
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5. Transfer, Exchange and Replacement of Warrants.
5.1 Registration of Transfer. Subject to clause 2 of Schedule 2 to the Warrant Instrument, the Warrant Agent shall register the transfer, from time to time, of any outstanding Warrant in the Warrant Register, upon surrender of such Warrant for transfer, accompanied by duly stamped instrument of transfer and such other evidence as the board of directors of the Company may reasonably require to show the right of the transferor to make the transfer. Upon any such transfer, a new Warrant representing an equal aggregate number of Warrants shall be issued and the old Warrant shall be cancelled by the Warrant Agent. The Warrants so cancelled may be delivered by the Warrant Agent to the Company from time to time upon request.
5.2 Procedure for Surrender of Warrants. Warrants may be surrendered to the Warrant Agent, together with a written request for exchange or transfer, and thereupon the Warrant Agent shall issue in exchange therefor one or more new Warrants as requested by the registered holder of the Warrants so surrendered, representing an equal aggregate number of Warrants; provided, however, that in the event that the transfer of the Warrant so surrendered is subject to the Company’s prior written consent pursuant to clause 2 of Schedule 2 to the Warrant Instrument, the Warrant Agent shall not cancel such Warrant and issue new Warrants in exchange therefor until the Warrant Agent has received a copy of the Company’s written consent with respect to such transfer.
5.3 Replacement of Warrants. If a Warrant is mutilated, defaced, lost, stolen or destroyed, it will be replaced in accordance with clause 12 of the Warrant Instrument. Mutilated or defaced Warrant in respect of which replacement is being sought must be surrendered to the Warrant Agent before replacement will be issued.
5.4 Fractional Warrants. No fractions of a Class A Ordinary Share shall be issued on the exercise of a Warrant. If, by reason of any provisions in the Warrant Instrument, any registered holder would otherwise be entitled, upon the exercise of its Exercise Rights (as defined in the Warrant Instrument), to receive a fractional interest in a Class A Ordinary Share (after aggregating all fractional Class A Ordinary Shares that otherwise would be received by such registered holder), the Warrant Agent shall, upon such exercise, round down the number of Class A Ordinary Shares to be issued to such warrantholder to the nearest whole number.
5.5 Service Charges. No service charge shall be made for any exchange or registration of transfer of Warrants.
5.6 Warrant Execution. The Warrant Agent is hereby authorized to deliver, in accordance with the terms of this Agreement, the Warrants required to be issued pursuant to the provisions of Section 4 and this Section 5, and the Company, whenever required by the Warrant Agent, will supply the Warrant Agent with Warrants duly executed on behalf of the Company for such purposes.
6. Concerning the Warrant Agent and Other Matters.
6.1 Payment of Taxes. The Company will from time to time promptly pay all taxes and charges that may be imposed upon the Company or the Warrant Agent in respect of the issuance or delivery of Class A Ordinary Shares upon the exercise of Warrants, but the Company shall not be obligated to pay any transfer taxes in respect of the Warrants or such shares.
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6.2 Resignation, Consolidation, or Merger of Warrant Agent.
6.2.1 Appointment of Successor Warrant Agent. The Warrant Agent, or any successor to it hereafter appointed, may resign its duties and be discharged from all further duties and liabilities hereunder after giving sixty (60) days’ notice in writing to the Company. If the office of the Warrant Agent becomes vacant by resignation or incapacity to act or otherwise, the Company shall appoint in writing a successor Warrant Agent in place of the Warrant Agent. After appointment, any successor Warrant Agent shall be vested with all the authority, powers, rights, immunities, duties, and obligations of its predecessor Warrant Agent with like effect as if originally named as Warrant Agent hereunder, without any further act or deed; but if for any reason it becomes necessary or appropriate, the predecessor Warrant Agent shall execute and deliver, at the expense of the Company, an instrument transferring to such successor Warrant Agent all the authority, powers, and rights of such predecessor Warrant Agent hereunder; and upon request of any successor Warrant Agent the Company shall make, execute, acknowledge, and deliver any and all instruments in writing for more fully and effectually vesting in and confirming to such successor Warrant Agent all such authority, powers, rights, immunities, duties, and obligations.
6.2.2 Notice of Successor Warrant Agent. In the event a successor Warrant Agent shall be appointed, the Company shall give notice thereof to the predecessor Warrant Agent and the transfer agent for the Class A Ordinary Shares not later than the effective date of any such appointment.
6.2.3 Merger or Consolidation of Warrant Agent. Any corporation into which the Warrant Agent may be merged or with which it may be consolidated or any corporation resulting from any merger or consolidation to which the Warrant Agent shall be a party shall be the successor Warrant Agent under this Agreement without any further act.
6.3 Fees and Expenses of Warrant Agent.
6.3.1 Remuneration. The Company agrees to pay the Warrant Agent reasonable remuneration for its services as such Warrant Agent hereunder and will reimburse the Warrant Agent upon demand for all expenditures that the Warrant Agent may reasonably incur in the execution of its duties hereunder.
6.3.2 Further Assurances. The Company agrees to perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Agreement.
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6.4 Liability of Warrant Agent.
6.4.1 Reliance on Company Statement. Whenever in the performance of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking or suffering any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a statement signed by an authorized signatory of the Company and delivered to the Warrant Agent. The Warrant Agent may rely upon such statement for any action taken or suffered in good faith by it pursuant to the provisions of this Agreement.
6.4.2 Indemnity. The Warrant Agent shall be liable hereunder only for its own gross negligence, willful misconduct or bad faith. The Company agrees to indemnify the Warrant Agent and save it harmless against any and all liabilities, including judgments, costs and reasonable counsel fees, for anything done or omitted by the Warrant Agent in the execution of this Agreement, except as a result of the Warrant Agent’s gross negligence, willful misconduct or bad faith.
6.4.3 Exclusions. The Warrant Agent shall have no responsibility with respect to the validity of this Agreement or with respect to the validity or execution of any Warrant; nor shall it be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Warrant; nor shall it be responsible to make any adjustments required under clause 7 of the Warrant Instrument or responsible for the manner, method or amount of any such adjustment or the ascertaining of the existence of facts that would require any such adjustment; nor shall it by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of Class A Ordinary Shares to be issued pursuant to this Agreement or any Warrant or as to whether any Class A Ordinary Shares will when issued be valid and fully paid and nonassessable.
6.5 Acceptance of Agency. The Warrant Agent hereby accepts the agency established by this Agreement and agrees to perform the same upon the terms and conditions herein set forth and, among other things, shall account promptly to the Company with respect to Warrants exercised and concurrently account for, and pay to the Company, all moneys received by the Warrant Agent for the purchase of Class A Ordinary Shares through the exercise of Warrants.
7. Miscellaneous Provisions.
7.1 Successors. All the covenants and provisions of this Agreement by or for the benefit of the Company or the Warrant Agent shall bind and inure to the benefit of their respective successors and assigns.
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7.2 Notices.
7.2.1 Any notice, statement or demand authorized by this Agreement to be given or made by the Warrant Agent to or on the Company shall be given by, delivered at or sent by first class post or other faster service or facsimile transmission or other means of electronic communication to the latest known postal address, relevant facsimile number or electronic communication (email) address of the Company (until another address is filed in writing by the Company with the Warrant Agent). The postal address of the Company as of the date of this Agreement is as follows:
MoneyHero Limited
c/o 70 Shenton Way, #18-15, EON Shenton, S079118, Singapore
Attn: Shaun Kraft; Laura Hannon
7.2.2 Any notice, statement or demand authorized by this Agreement to be given or made by the Company to or on the Warrant Agent shall be be given by, delivered at or sent by first class post or other faster service or facsimile transmission or other means of electronic communication to the latest known postal address, relevant facsimile number or electronic communication (email) address of the Warrant Agent (until another address is filed in writing by the Warrant Agent with the Company). The postal address of the Warrant Agent as of the date of this Agreement is as follows:
Continental Stock Transfer & Trust Company
1 State Street, 30 FL
New York, New York 10004
Attn: Compliance Department
7.2.3 Any notice, sent pursuant to this Agreement shall be effective, (i) if delivered, at the time of delivery; (ii) if posted, at 10.00 a.m. on the seventh (7th) business day after it was put into the post; or (iii) if sent by facsimile or email, at the time of completion of transmission.
7.3 Applicable Law. The validity, interpretation and performance of this Agreement shall be governed in all respects by the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. The Company hereby agrees that any action, proceeding or claim against it arising out of or relating in any way to this Agreement shall be brought and enforced in the courts of the State of New York or the United States District Court for the Southern District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum. Any such process or summons to be served upon the Company may be served by transmitting a copy thereof by registered or certified mail, return receipt requested, postage prepaid, addressed to it at the address set forth in Section 7.2 hereof. Such mailing shall be deemed personal service and shall be legal and binding upon the Company in any action, proceeding or claim.
7.4 Persons Having Rights under this Agreement. Nothing in this Agreement expressed and nothing that may be implied from any of the provisions hereof is intended, or shall be construed, to confer upon, or give to, any person or corporation other than the parties hereto and the registered holders of the Warrants, any right, remedy, or claim under or by reason of this Agreement or of any covenant, condition, stipulation, promise, or agreement hereof. All covenants, conditions, stipulations, promises, and agreements contained in this Agreement shall be for the sole and exclusive benefit of the parties hereto and their successors and assigns and of the registered holders of the Warrants.
7.5 Counterparts. This Agreement may be executed in any number of original or facsimile counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
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7.6 Effect of Headings. The section headings herein are for convenience only and are not part of this Agreement and shall not affect the interpretation thereof.
7.7 Amendments. This Agreement may be amended by the parties hereto without the consent of any registered holder for the purpose of curing any ambiguity, or curing, correcting or supplementing any defective provision contained herein or adding or changing any other provisions with respect to matters or questions arising under this Agreement as the parties may deem necessary or desirable and that the parties deem shall not adversely affect the interest of the registered holders. All other modifications or amendments shall require Warrantholder Consent (as defined in the Warrant Instrument). For the avoidance of doubt, (i) all or any of the rights for the time being attached to the warrants (including the Exercise Rights) may from time to time be altered or abrogated with Warrantholder Consent and shall be effected by an instrument by way of deed poll executed by the Company and expressed to be supplemental to the Warrant Instrument; and (ii) modifications to the Warrant Instrument that are of a formal, minor or technical nature, or made to correct a manifest error, may be effected by an instrument by way of deed poll executed by the Company and expressed to be supplemental to the Warrant Instrument.
7.8 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement.
[Signature page follows]
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the day and year first above written.
| MONEYHERO LIMITED | ||
| By: |
| |
| Name: Shaun Kraft | ||
| Title: Authorized Signatory and Chief | ||
| Financial Officer | ||
| CONTINENTAL STOCK TRANSFER & TRUST COMPANY | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to PubCo Class A Warrant Agreement]
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the day and year first above written.
| MONEYHERO LIMITED | ||
| By: | ||
| Name: | ||
| Title: | ||
| CONTINENTAL STOCK TRANSFER & TRUST COMPANY | ||
| By: |
| |
| Name: Stacy Aqui | ||
| Title: Vice President | ||
[Signature Page to PubCo Class A Warrant Agreement]
Exhibit A
Instrument of PubCo Class A Acquisition Warrants
Execution Version
Dated October 12, 2023
WARRANT INSTRUMENT
RELATING TO 20,067,574 WARRANTS TO SUBSCRIBE FOR
CLASS A ORDINARY SHARES IN MONEYHERO LIMITED
TABLE OF CONTENTS
| Page | ||||||
| 1 | Interpretation |
1 | ||||
| 2 | Constitution and Form of Warrants |
5 | ||||
| 3 | Register and Warrant Certificates |
6 | ||||
| 4 | Timing for exercise of Exercise Rights |
6 | ||||
| 5 | Mechanism for Exercising Exercise Rights |
6 | ||||
| 6 | Completion |
6 | ||||
| 7 | Adjustment |
7 | ||||
| 8 | Undertaking of PubCo |
8 | ||||
| 9 | Winding up of PubCo |
8 | ||||
| 10 | Transfer of Warrants |
9 | ||||
| 11 | Variation of Rights |
9 | ||||
| 12 | Replacement of Warrant Certificates |
9 | ||||
| 13 | Notices |
9 | ||||
| 14 | Termination |
9 | ||||
| 15 | Governing Law and Arbitration |
9 | ||||
| Schedule 1 Form of Warrant Certificate |
1 | |||||
| Notice of Exercise | 3 | |||||
| Schedule 2 Register, Transfer and Notices |
4 | |||||
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THIS INSTRUMENT is entered into by way of deed poll on October 12, 2023 by:
MoneyHero Limited (formerly known as Hyphen Group Limited), an exempted company duly incorporated and existing under the laws of the Cayman Islands with its registered office at Walkers Corporate Limited, 190 Elgin Avenue, George Town, Grand Cayman KY1-9008, Cayman Islands (together with its authorized representatives, where applicable, “PubCo”).
WHEREAS:
| (A) | On May 25, 2023, PubCo, CompareAsia Group Capital Limited, an exempted company duly incorporated and existing under the Laws of the Cayman Islands with its registered office at Walkers Corporate Limited, 190 Elgin Avenue, George Town, Grand Cayman KY1-9008, Cayman Islands (the “Company”), Bridgetown Holdings Limited, a Cayman Islands exempted company limited by shares, Gemini Merger Sub 1 Limited , a Cayman Islands exempted company limited by shares and a direct wholly-owned Subsidiary of PubCo, and Gemini Merger Sub 2 Limited, a Cayman Islands exempted company limited by shares and a direct wholly-owned Subsidiary of PubCo, entered into a business combination agreement (as amended, modified or supplemented from time to time, the “Business Combination Agreement”). |
| (B) | In connection with the transactions contemplated under the Business Combination Agreement, on May 25, 2023, PubCo and the Company, among others, entered into a supplemental deed (as amended, modified or supplemented from time to time, the “Supplemental Deed”) in relation to the warrant instrument relating to warrants to subscribe for class A ordinary shares in the Company, dated October 14, 2022. |
| (C) | Pursuant to the Supplemental Deed, upon the Acquisition Effective Time (as defined in the Business Combination Agreement), PubCo shall create and issue the Warrants (as defined below) to subscribe Class A Ordinary Shares (as defined below) on the terms and subject to the conditions set out in this Instrument. |
| (D) | This Instrument has been executed by PubCo as a deed poll in favour of the Warrantholders (as defined below). |
THIS INSTRUMENT WITNESSES as follows:
| 1 | Interpretation |
| 1.1 | In this Instrument, unless otherwise defined herein, capitalised terms have the meanings ascribed to them in the Business Combination Agreement: |
“Affiliate” means (i) with respect to a Person other than a natural person, any other Person that, directly or indirectly, Controls, is Controlled by or is under common Control with such Person and (ii) in the case of a Person that is a natural person, any other Person that is directly or indirectly Controlled by such Person or is a Relative of such Person or any Person that is directly or indirectly Controlled by such Relative;
“Board” means the board of directors of PubCo;
“Business” means PubCo and its Subsidiaries’ business of operating a web or application-based marketplace, community, brokerage or aggregator service specialized in fintech and financial services and comparing banking, insurance, telecommunication, utility or other personal finance products and/or providing platform- or software-as-a-service solutions;
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“Business Day” means any day except a Saturday, Sunday or other day on which commercial banks in Singapore, Hong Kong, the Cayman Islands or New York City, New York are authorized or required by applicable law to close;
“Class A Ordinary Shares” means the Class A ordinary shares of PubCo, par value US$0.0001 per share;
“Control” means with respect to a Person, (i) direct or indirect ownership or control of more than 50% of the outstanding voting securities of such Person; (ii) the ability to appoint or remove a majority of the directors of the board (or equivalent governing body) of such Person; (iii) the right to control the votes at a meeting of the board of directors (or equivalent governing body) of such Person; or (iv) the ability to direct or cause the direction of the management and policies of such Person (whether by contract or howsoever arising); and the terms “Controls”, “Controlling” and “Controlled” shall be construed accordingly;
“Exercise Period” means, in relation to the Warrants represented by a Warrant Certificate, the period commencing on the Issuance Date of such Warrants and ending on October 14, 2027 (both dates inclusive);
“Exercise Price” means:
| (i) | in relation to the Warrants (Class A-1), US$2.9899 per Warrant, |
| (ii) | in relation to the Warrants (Class A-2), US$5.9798 per Warrant, |
| (iii) | in relation to the Warrants (Class A-3), US$8.9697 per Warrant, |
in each case, for avoidance of doubt, regardless of the number of Class A Ordinary Shares each Warrant is convertible into, upon exercise of the Exercise Rights, as determined by the Exercise Ratio;
“Exercise Ratio” means, initially, at the rate of 0.307212 Class A Ordinary Share for each Warrant, as adjusted from time to time in the circumstances and in the manner referred to in clause 7;
“Exercise Rights” means the rights of Warrantholders to exercise the Warrants for Class A Ordinary Shares at the Exercise Price and at the Exercise Ratio, pursuant to clause 5;
“Government Authority” means any nation or government or any federation, province or state or any other political subdivision thereof; any entity, authority or body exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including any government authority, agency, department, board, commission or instrumentality of Hong Kong, Singapore, the Cayman Islands or any other country, or any political subdivision thereof, any court, tribunal or arbitrator, and any self-regulatory organization;
“Holding Company” has the meaning given in clause 1.4.4;
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“Issuance Date” means, in relation to the Warrants represented by a Warrant Certificate, the date of issuance of such Warrants as stipulated in the Warrant Certificate;
“Notice of Exercise” means the notice set out in the schedule to the Warrant Certificate;
“Permitted Transferee” means with respect to any Warrantholder, any Person other than (i) PubCo or any of its Subsidiaries or (ii) any Prohibited Transferee (whether or not an Affiliate of the transferring Warrantholder);
“Person” means any individual, corporation, partnership, limited partnership, proprietorship, association, limited liability company, firm, trust, estate or other enterprise or entity;
“Politically Exposed Person” means a current or former senior official in the executive, legislative, administrative, military or judicial branches of a Government Authority (whether elected or not), a current or former senior official of a major political party, or a current or former senior executive of a government-owned commercial enterprise. In addition, a Politically Exposed Person includes any corporation, business or other entity that has been formed by, or for the benefit of, a Politically Exposed Person;
“Prohibited Transferee” means (i) any PubCo Competitor; (ii) any current or potential future provider of PubCo within the insurance, retail banking or telecommunications industry; (iii) any Person whose involvement or investment in the Business is or could reasonably be, as determined by the Board, damaging to the reputation of the Business, and in each case of (i) and (ii), unless otherwise determined by the Board; or (iv) any Person who (a) is named on (1) lists promulgated by the United Nations Security Council or its committees pursuant to resolutions issued under Chapter VII of the United Nations Charter or (2) the World Bank Listing of Ineligible Firms (see www.worldbank.org/debarr); (b) is targeted by or subject to any sanction administered or enforced by the Office of Foreign Assets Control of the US Department of the Treasury, the U.S. Department of State or under a UN Security Council Resolution; or (c) is a Politically Exposed Person; provided, that in respect of any transfer of Warrants by Global Private Opportunities Partners II LP or Global Private Opportunities Partners II Offshore Holdings LP, any Affiliate of Goldman, Sachs & Co. or any Person who is an investor in funds advised by an Affiliate of Goldman, Sachs & Co., shall be deemed not to be a Prohibited Transferee;
“PubCo Bank Account” means the following bank account designated by PubCo (as may be updated by PubCo by notice in writing to the Warrantholders):
Correspondent Bank Name: JP Morgan Chase
Correspondent Bank SWIFT Code: CHASUS33
ABA Routing Number: 021000021
Correspondent Bank Address (or country): 270 Park Avenue, 41st Floor, New York,
NY 10017
Beneficiary Account Name: Continental Stock Transfer & Trust Company AAF
MoneyHero Limited
Beneficiary Account Number: 557-761189
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“PubCo Competitor” means any marketplace, brokerage or aggregator for financial services, including banking, brokerage and insurance companies, telecommunication companies, utility providers as well as companies that compare banking, brokerage, insurance, telecommunication or utility products, or compare any other products that PubCo or its Subsidiaries are comparing from time to time, unless the Board otherwise determines;
“PubCo Charter” means the amended and restated memorandum and articles of association of PubCo, as amended from time to time;
“Register” means the respective registers of entitlement to the Warrants as maintained by PubCo and amended from time to time, including the original registers and copies thereof;
“Registered Office” means the registered office of PubCo or any other places designated by PubCo from time to time. The Registered Office shall initially be:
Continental Stock Transfer & Trust Company
1 State Street, 30 FL
New York, New York 10004
“Relative” of a natural person shall mean the siblings, spouse and children of such natural person and any parent or siblings of such natural person or spouse;
“Shares” shall mean any shares in the capital of PubCo;
“Subsidiary” has the meaning given in clause 1.4.4;
“Warrant (Class A-1)” means each of the Warrants described as Class A-1 Warrants in the relevant Warrant Certificate with the Exercise Price attributable to such class of Warrants;
“Warrant (Class A-2)” means each of the Warrants described as Class A-2 Warrants in the relevant Warrant Certificate with the Exercise Price attributable to such class of Warrants;
“Warrant (Class A-3)” means each of the Warrants described as Class A-3 Warrants in the relevant Warrant Certificate with the Exercise Price attributable to such class of Warrants;
“Warrant Certificate” means a certificate in the form, or substantially in the form, set out in Schedule 1;
“Warrant Shares” means the Class A Ordinary Shares issuable upon the exercise of the Warrants;
“Warrantholder” means the Person or Persons in whose name(s) a Warrant is approved by the Board to be issued and is registered by the Register as duly held by such Person;
“Warrantholder Consent” means the consent of a majority of the holders of not less than 75 per cent. of the Warrants; and
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“Warrants” means the warrants of PubCo constituted by this Instrument and all rights conferred by it.
| 1.2 | Words and expressions defined in PubCo Charter shall, unless otherwise defined in this Instrument, have the same meaning when used in this Instrument. |
| 1.3 | The headings in this Instrument do not affect its interpretation. |
| 1.4 | In this Instrument a reference to: |
| 1.4.1 | a clause, paragraph or schedule, unless the context otherwise requires, is a reference to a clause or paragraph of, or schedule to, this Instrument; |
| 1.4.2 | references herein to ‘this Instrument’ include, where the context so admits, the Schedules hereto; |
| 1.4.3 | a statutory provision shall be construed as a reference to those provisions and any subordinate legislation made under the statutory provision in force at the date of this Instrument; and |
| 1.4.4 | a company is a “Subsidiary” of another company, its “Holding Company” if that other company: |
| (a) | holds a majority of the voting rights in it; or |
| (b) | is a member of it and has the right to appoint or remove a majority of its board of directors; or |
| (c) | is a member of it and Controls alone, pursuant to an agreement with other shareholders or members, a majority of the voting rights in it; |
or if it is a Subsidiary of a company which itself is a Subsidiary of that other company.
| 2 | Constitution and Form of Warrants |
| 2.1 | PubCo hereby creates and issues, pursuant to the Supplemental Deed, 20,067,574 warrants of PubCo to subscribe for Class A Ordinary Shares on the terms and subject to the conditions of this Instrument. |
| 2.2 | Each Warrantholder shall be entitled, on exercise of the Exercise Rights attaching to its Warrants, and on the terms and subject to the conditions set out in this Instrument, to convert all or part of the Warrants held by it into Class A Ordinary Shares at the Exercise Ratio. The price to be paid by the Warrantholder to PubCo upon exercise of the Exercise Rights is the product of (i) the Exercise Price, multiplied by (ii) the number of exercised Warrants. |
| 2.3 | PubCo undertakes to comply with the terms and conditions of this Instrument and specifically, but without limitation, to give effect to the Exercise Rights in accordance with the terms of this Instrument. |
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| 2.4 | The Warrants are issued subject to the PubCo Charter and otherwise on the terms and conditions of this Instrument which are binding on PubCo and each Warrantholder and all Persons claiming through or under them. |
| 3 | Register and Warrant Certificates |
| 3.1 | PubCo shall maintain the Register in accordance with the provisions of Schedule 2. |
| 3.2 | PubCo shall, on the day of entering the name of a Warrantholder in the Register, issue to the Warrantholder a Warrant Certificate in respect of that number of Warrant Shares to which it is entitled. |
| 4 | Timing for exercise of Exercise Rights |
| 4.1 | During the Exercise Period, the Warrants entitle each Warrantholder to exercise its Exercise Rights at any time. |
| 4.2 | The Warrants shall be in registered form. Each Warrant shall carry the Exercise Right and shall be transferable in accordance with clause 10 and Schedule 2. |
| 5 | Mechanism for Exercising Exercise Rights |
| 5.1 | Subject to clause 4.1, if a Warrantholder decides to exercise its Exercise Rights in whole or in part, such Warrantholder may do so by lodging the following items at the Registered Office: |
| 5.1.1 | the relevant Warrant Certificate, together with the duly completed Notice of Exercise; and |
| 5.1.2 | a bank transfer to the PubCo Bank Account for the aggregate Exercise Price payable for the Warrants in respect of which the Exercise Rights are being exercised. |
| 6 | Completion |
| 6.1 | Subject to clause 6.3, following a valid exercise of Exercise Rights by a Warrantholder, PubCo shall in accordance with clause 6.2: |
| 6.1.1 | allot and issue to the Warrantholder (or to its nominee or trustee, if applicable) the Class A Ordinary Shares to which the Warrantholder is entitled, being a number of Class A Ordinary Shares equal to the product of (x) the number of exercised Warrants, multiplied by (y) the Exercise Ratio; and |
| 6.1.2 | cause such Class A Ordinary Shares to be registered in book entry form and registered in PubCo’s share register or register of members (as applicable) in the Warrantholder’s name (or its nominee’s or trustee’s name, if applicable). |
| 6.2 | The obligations of PubCo under clause 6.1 shall be fulfilled within two (2) Business Days after the Notice of Exercise is lodged at the Registered Office (the date such obligations are being fulfilled, the “Exercise Date”). |
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| 6.3 | Warrant Shares issued pursuant to this Instrument: |
| 6.3.1 | shall be credited as fully paid; |
| 6.3.2 | shall have the rights set out in the PubCo Charter relating to Class A Ordinary Shares; and |
| 6.3.3 | shall rank pari passu in all respects with those Class A Ordinary Shares in issue on the Exercise Date. |
| 6.4 | If a Warrantholder exercises only some of his/her/its Warrants, a new Warrant Certificate in respect of the balance of the Warrants will be issued and delivered to the Warrantholder within five (5) Business Days of the surrender of that Warrant Certificate (for avoidance of doubt, the date of issuance of the balance of such Warrants shall remain the same). |
| 7 | Adjustment |
| 7.1 | Share Dividends and Splits. If after the date hereof, and subject to the provisions of clause 7.6 below, the number of outstanding Class A Ordinary Shares is increased by a share dividend payable in Class A Ordinary Shares, or by a split up of Class A Ordinary Shares, or other similar event, then, on the effective date of such share dividend, split up or similar event, the Exercise Ratio shall be increased in proportion to such increase in issued and outstanding shares of Class A Ordinary Shares. |
| 7.2 | Aggregation of Shares. If after the date hereof, and subject to the provisions of clause 7.6 below, the number of issued and outstanding Class A Ordinary Shares is decreased by a consolidation, combination or reclassification of Class A Ordinary Shares or other similar event, then, on the effective date of such consolidation, combination, reclassification or similar event, the Exercise Ratio shall be decreased in proportion to such decrease in issued and outstanding Class A Ordinary Shares. |
| 7.3 | Adjustments in Exercise Price. Whenever the Exercise Ratio is adjusted, as provided in clauses 7.1 or 7.2 above, the Exercise Price shall be the same as it was prior to the such adjustment. |
| 7.4 | Replacement of Securities upon Reorganization, etc. In case of any reclassification or reorganization of the outstanding Class A Ordinary Shares (other than a change addressed in clauses 7.1 or 7.2 above or that solely affects the par value of such Class A Ordinary Shares), or in the case of any merger or consolidation of PubCo with or into another corporation (other than a consolidation or merger in which PubCo is the continuing corporation and that does not result in any reclassification or reorganization of the outstanding Class A Ordinary Shares), or in the case of any sale or conveyance to another corporation or entity of the assets or other property of PubCo as an entirety or substantially as an entirety in connection with which PubCo is dissolved, the Warrantholders shall thereafter have the right to purchase and receive, upon the basis and upon the terms and conditions specified in the Warrants and in lieu of the Class A Ordinary Shares purchasable and receivable upon the exercise of the rights represented thereby, the kind and amount of shares of stock or other securities or property (including cash) receivable upon such reclassification, reorganization, merger or consolidation, or upon a dissolution following any such sale or transfer, that the Warrantholder would have received if such Warrantholder had exercised his/her/its Warrant(s) immediately prior to such event; and if any reclassification also results in a change in Class A Ordinary Shares addressed in clauses 7.1 or 7.2 above, then such adjustment shall be made pursuant to clauses 7.1, 7.2 and this clause 7.4. The provisions of this clause 7.4 shall similarly apply to successive reclassifications, reorganizations, mergers or consolidations, sales or other transfers. |
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| 7.5 | Notice of Changes in Warrants. PubCo shall send the Warrantholders notice of any adjustments to the Exercise Rights made pursuant to clauses 7.1 to 7.4 as soon as practicable (and within five (5) Business Days) following the relevant resolution of the Board giving effect to or sanctioning the event referred to in clauses 7.1 to 7.4 together with a replacement Warrant Certificate evidencing each Warrantholder’s adjusted Exercise Ratio. |
| 7.6 | No Fractional Shares. No fractions of a Warrant Share shall be issued on the exercise of a Warrant. If, by reason of any provisions in this Instrument, any Warrantholder would otherwise be entitled, upon the exercise of its Exercise Rights, to receive a fractional interest in a Warrant Share (after aggregating all fractional Warrant Shares that otherwise would be received by such Warrantholder), PubCo shall, upon such exercise, round down the number of Warrant Shares to be issued to such Warrantholder to the nearest whole number. |
| 7.7 | Other Events. In case any event shall occur affecting PubCo as to which none of the provisions of preceding subclauses of this clause 7 are strictly applicable, but which would require an adjustment to the terms of the Warrants in order to (a) avoid an adverse impact on the Warrants and (b) effectuate the intent and purpose of this clause 7, then, in each such case, the Board shall appoint a firm of independent public accountants, investment banking or other appraisal firm of recognized national standing, which shall give its opinion as to whether or not any adjustment to the rights represented by the Warrants is necessary to effectuate the intent and purpose of this clause 7 and, if they determine that an adjustment is necessary, the terms of such adjustment. Without prejudice to the foregoing, PubCo shall not take any action which would result in any adjustment to the Exercise Ratio if, after giving effect thereto, the Exercise Ratio would be increased to such an extent that the Class A Ordinary Shares to be issued on exercise of any Warrants could not, under any applicable law then in effect, be legally issued as fully paid. |
| 8 | Undertaking of PubCo |
PubCo undertakes to each Warrantholder that during the Exercise Period (except with Warrantholder Consent or pursuant to clause 7 of this Instrument or as otherwise provided in the PubCo Charter), it will keep available for issue and free from preemptive rights sufficient authorised but unissued share capital to satisfy in full the exercise of all outstanding Warrants.
| 9 | Winding up of PubCo |
If, during the Exercise Period, an order is made or an effective resolution is passed for winding up or dissolution of PubCo (except for the purpose of implementing a reconstruction, amalgamation or scheme of arrangement on terms previously sanctioned by a special resolution) each Warrantholder will be treated as if, immediately before the date of such order or resolution, such Warrantholder had exercised all the Exercise Rights which remain to be exercised by such Warrantholder and shall be entitled to receive out of the assets which would otherwise be available in the liquidation such sum (if any) as such Warrantholder would have received had such Warrantholder been the holder of the Class A Ordinary Shares to which such Warrantholder would have become entitled by virtue of such exercise, after deducting from such sum an amount equal to the Exercise Price which would have been payable upon such exercise.
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| 10 | Transfer of Warrants |
The Warrants are transferable in accordance with the provisions of paragraph 2 of Schedule 2.
| 11 | Variation of Rights |
| 11.1 | All or any of the rights for the time being attached to the Warrants (including the Exercise Rights) may from time to time (whether or not PubCo is being wound up) be altered or abrogated with Warrantholder Consent and shall be effected by an instrument by way of deed poll executed by PubCo and expressed to be supplemental to this Instrument. |
| 11.2 | Modifications to the Instrument which are of a formal, minor or technical nature, or made to correct a manifest error, may be effected by an instrument by way of deed poll executed by PubCo and expressed to be supplemental to this Instrument. |
| 12 | Replacement of Warrant Certificates |
If a Warrant Certificate is mutilated, defaced, lost, stolen or destroyed, it will be replaced by PubCo upon payment by the Warrantholder of PubCo’s reasonable costs in connection with the issue of the replacement. Mutilated or defaced Warrant Certificates in respect of which replacements are being sought must be surrendered before replacements will be issued.
| 13 | Notices |
Any notice to be given to or by the Warrantholders for the purposes of this Instrument shall be given in accordance with the provisions of paragraph 3 of Schedule 2.
| 14 | Termination |
This Instrument shall terminate upon the earlier of (i) the end of the Exercise Period or (ii) the date upon which there ceases to be any unexercised Warrants outstanding.
| 15 | Governing Law and Arbitration |
| 15.1 | This Instrument and any dispute or claim arising out of or in connection with it or its subject matter shall be governed by, and construed in accordance with, the laws of the Cayman Islands, without giving effect to any choice of law or conflict of law rules or provisions (whether of the Cayman Islands or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the Cayman Islands. |
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| 15.2 | Any dispute, controversy, difference or claim arising out of or relating to this Instrument, 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 finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (“HKIAC”) under the HKIAC Administered Arbitration Rules in force when the notice of arbitration is submitted. The law of this arbitration clause shall be that stated in clause 15.1. The seat of this arbitration shall be Hong Kong. The number of arbitrators shall be three (3). The arbitration proceedings shall be conducted in English. |
| 15.3 | Notwithstanding the foregoing, nothing in this clause shall prevent any party seeking any interim or interlocutory relief in aid of any arbitration or in connection with enforcement proceedings from any court of competent jurisdiction. |
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IN WITNESS WHEREOF this Instrument has been executed by PubCo as a deed poll and is intended to be and is hereby delivered on the date first above written.
| Executed as a deed by MoneyHero Limited acting by Shaun Kraft, as authorized signatory, in the presence of: |
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| ||
| SIGNATURE OF SHAUN KRAFT | ||||
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| SIGNATURE OF WITNESS | ||||
| Name: Jia Xu Lee Address: 70 Shenton Way, #18-08, EON Shenton, Singapore 079118 Occupation of Witness: Paralegal |
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[Signature Page to Instrument of MoneyHero Limited Class A Acquisition Warrants]
Schedule 1
Form of Warrant Certificate
MONEYHERO LIMITED (“PubCo”)
(Incorporated under the laws of Cayman Islands with registered number 398798)
WARRANT CERTIFICATE
| Certificate No. |
| Date of Issue of Warrant Certificate: | ||||
| Date of Issue of Warrants: | ||||
| Name and Address of Warrantholder: | ||||
| Number of Warrants: | ||||
| Class of Warrants: Warrants (Class [A-1][A-2][A-3]) | ||||
| Exercise Price: US$[•] for each Warrant | ||||
Exercise Ratio: 0.307212 Class A Ordinary Share(s) for each Warrant (as adjusted from time to time pursuant to clause 7 of the Warrant Instrument)
THIS IS TO CERTIFY that the Warrantholder named above is the registered holder of the number of Warrants specified above, each of which entitles the holder (inter alia) to subscribe for [•] Class A Ordinary Shares in PubCo as calculated in accordance with the terms and conditions set out in the instrument entered into by way of deed poll dated [•] (the “Warrant Instrument”) and subject to the PubCo Charter. Terms defined in the Warrant Instrument have the same meaning when used in this Certificate.
This Warrant Certificate has been executed as a deed and is delivered and takes effect on the date of issue stated at the beginning of it.
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| Executed as a deed by MoneyHero Limited | ||
| acting by [NAME OF FIRST DIRECTOR], | ||
| a director and [NAME OF SECOND DIRECTOR OR SECRETARY], | ||
| [a director OR its secretary] | ||
|
| ||
| [SIGNATURE OF FIRST DIRECTOR] | ||
| Director | ||
|
| ||
| [SIGNATURE OF SECOND DIRECTOR OR SECRETARY] | ||
| [Director or Secretary] | ||
| OR | |
| Executed as a deed by MoneyHero Limited | ||
| acting by [[NAME OF DIRECTOR] a director]/[NAME OF AUTHORISED SIGNATORY] as authorised signatory, | ||
| [SIGNATURE OF [DIRECTOR]/[AUTHORISED SIGNATORY]] |
| |
| [Director]/[Authorised Signatory]
in the presence of: | ||
| Witness Signature: | ||
| Name: | ||
| Address: | ||
| Occupation | ||
| Dated: [INSERT DATE] | ||
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Schedule to the Warrant Certificate
Notice of Exercise
| To: | MoneyHero Limited |
[Address]
with a copy to:
Continental Stock Transfer & Trust Company
1 State Street, 30 FL
New York, New York 10004
Attn: Compliance Department
We hereby exercise the Exercise Rights over of the Warrants represented by this Warrant Certificate and enclose a bankers draft for US$ being the aggregate Exercise Price payable in respect thereof.
We direct PubCo to allot the Class A Ordinary Shares in the following numbers and to the following proposed allottees:
| No. of Class A Ordinary Shares |
Name of Proposed Allottee |
Address of Proposed Allottee | ||||
| 1 |
||||||
| 2 |
||||||
| 3 |
||||||
We agree that the Class A Ordinary Shares are issued to us subject to the PubCo Charter.
| Signed by |
||
| [•] |
| |
| For and on behalf of | ||
| [•] Limited | ||
| Director/Secretary |
| Lodged by: (agent to whom share certificate(s) should be sent) |
| Name of Agent: | ||
| Address: | ||
| For the attention of: | ||
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Schedule 2
Register, Transfer and Notices
| 1 | Register |
| 1.1 | PubCo shall keep the Register at the Registered Office and there, entered in the Register: |
| 1.1.1 | the names and addresses of the Warrantholders; |
| 1.1.2 | the number of Warrants held by each Warrantholder; and |
| 1.1.3 | the date on which the name of each Warrantholder is entered in the Register in respect of the Warrants registered in his/its name. |
| 1.2 | Any change in the name or address of any Warrantholder shall be notified as soon as reasonably practicable following such change to PubCo which shall cause the Register to be altered accordingly. The Warrantholders or any of them or any Person authorised by any such Warrantholder shall be at liberty at all reasonable time during office hours upon two (2) Business Days’ notice to inspect the Register and to take copies of or extract from the same or any part thereof. |
| 1.3 | PubCo shall be entitled to treat the Person whose name is shown in the Register as a Warrantholder as the absolute owner of the Warrant and, accordingly, shall not except as ordered by a court of competent jurisdiction or as required by law, be bound to recognise any equitable or other claim to, or interest in, such Warrant on the part of any other Person whether or not it shall have express or other notice thereof. |
| 1.4 | Every Warrantholder shall be recognised by PubCo as entitled to his/her/its Warrants free from any equity, set-off or cross-claim on the part of PubCo, or any original or intermediate holder of such Warrants. |
| 2 | Transfers |
| 2.1 | No Warrantholder shall be entitled to assign or transfer any rights or obligations under any Warrant without the prior written consent of PubCo, except if such Warrants are assigned or transferred to an Affiliate of such Warrantholder that is a Permitted Transferee. |
| 2.2 | The Warrants may not be transferred otherwise than as permitted by paragraph 2.1 above. |
| 2.3 | The provisions of Schedule 2 shall regulate any transfer of a Warrant. |
| 2.4 | Each Warrant will be registered and will be transferable subject to paragraph 2.1 of this Schedule 2 by instrument of transfer in any usual or common form, or in any other form which may be approved by the Board. PubCo may refuse to register any transfer of Warrants unless it is duly stamped and lodged at the Registered Office accompanied by a certificate for the Warrants to be transferred and such other evidence as the Board may reasonably require to show the right of the transferor to make the transfer, but shall register any transfer which is so stamped and lodged, and so accompanied by a certificate or other evidence. Certificates shall be produced by PubCo within two (2) Business Days of a valid transfer lodgement. |
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| 3 | Notices |
| 3.1 | Each Warrantholder shall register with PubCo an address to which notices can be sent and if any Warrantholder shall fail to do so, notice may be given to such Warrantholder by sending the same by any of the methods referred to in paragraph 3.2 of this Schedule to his/her/its last known place of business or residence or, if none, by exhibiting the same for three (3) Business Days at the Registered Office. |
| 3.2 | Notices and other communications to Warrantholders and/or to PubCo shall be in writing and shall be delivered personally, sent by courier or by facsimile process, or if sent to an address, by first class post. In proving service of any notice or other communication sent by post it shall be sufficient to prove that the envelope or wrapper containing the notice or other communication was properly addressed and stamped and was deposited in a post box or at the post office. In proving service of a notice or other communication sent by facsimile process it shall be sufficient to prove that the facsimile message was properly addressed and despatched. |
| 3.3 | A notice or other communication given pursuant to the provisions of paragraph 3.2 of this Schedule must be in writing in the English language and must be given by, delivered at or sent by first class post or other faster service or facsimile transmission or other means of electronic communication to the latest known postal address, relevant facsimile number or electronic communication (email) address of PubCo or the Warrantholder (as applicable). In the absence of evidence of earlier receipt, any notice or document shall be deemed to have been served: (i) if delivered, at the time of delivery; (ii) if posted, at 10.00 a.m. on the seventh (7th) Business Day after it was put into the post; or (iii) if sent by facsimile or email, at the time of completion of transmission. |
| 3.4 | All notices and other communications with respect to Warrants registered in the names of joint registered holders shall be given to whichever of such Persons is named first in the Register and any notice so given shall be sufficient notice to all the joint registered holders of such Warrants. |
| 3.5 | Any Person who, whether by operation of law, transfer or other means whatsoever, becomes entitled to any Warrant shall be bound by every notice properly given to the Person from whom such Person derives his/its title to such Warrant. |
| 3.6 | When a given number of days’ notice is required to be given, the day of service shall be included but the day upon which such notice will expire shall not be included in calculating the number of days. The signature to any notice to be given by PubCo may be written or printed (including electronically). |
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Exhibit 4.5
MONEYHERO LIMITED
2023 EQUITY INCENTIVE PLAN
ARTICLE I
PURPOSE
The purpose of this MoneyHero Limited 2023 Equity Incentive Plan is to promote the success of the Company’s business for the benefit of its stockholders by enabling the Company to offer Eligible Individuals cash and stock-based incentives in order to attract, retain, and reward such individuals and strengthen the mutuality of interests between such individuals and the Company’s stockholders. The Plan is effective as of the date set forth in Article XV.
ARTICLE II
DEFINITIONS
For purposes of the Plan, the following terms shall have the following meanings:
2.1 “Affiliate” means a corporation or other entity controlled by, controlling, or under control with the Company. The term “control” (including, with correlative meaning, the terms “controlled by” and “under common control with”), as applied to any person, means the possession, directly or indirectly, of the power to direct or cause the direction of management and policies of such person, whether through the ownership of voting or other securities, by contract or otherwise.
2.2 “Applicable Law” means the requirements relating to the administration of equity- based awards and the related shares under U.S. state corporate law, U.S. federal and state securities laws, the rules of any stock exchange or quotation system on which the shares are listed or quoted, and any other applicable laws, including tax laws, of any U.S. or non-U.S. jurisdictions where Awards are, or will be, granted under the Plan.
2.3 “Award” means any award under the Plan of any Stock Option, Stock Appreciation Right, Restricted Stock, Restricted Stock Units, Performance Award, Other Stock-Based Award, or Cash Award. All Awards shall be granted by, confirmed by, and subject to the terms of a written or electronic agreement executed by the Company and the Participant.
2.4 “Award Agreement” means the written or electronic agreement, contract, certificate, or other instrument or document evidencing the terms and conditions of an individual Award, as amended from time to time. Each Award Agreement shall be subject to the terms and conditions of the Plan.
2.5 “Board” means the Board of Directors of the Company.
2.6 “Cash Award” means an Award granted pursuant to Section 10.3 of the Plan and payable in cash at such time or times and subject to such terms and conditions as determined by the Committee in its sole discretion.
2.7 “Cause” means, unless otherwise determined by the Committee in the applicable Award Agreement, with respect to a Participant’s Termination of Service: (a) in the case where there is no employment agreement, offer letter, consulting agreement, change in control agreement, or similar agreement in effect between the Company or an Affiliate and the Participant at the relevant time of determination (or where there is such agreement in effect but it does not define “cause” (or words of like import)), the Participant’s (i) commission of, indictment for, or plea of guilty or no contest to, a felony (or state law equivalent) or a crime involving dishonesty or moral turpitude or the commission of any other act involving willful malfeasance or breach of fiduciary duty with respect to the Company or an Affiliate; (ii) substantial and repeated failure to perform the Participant’s duties or to follow any lawful directive from the Company or any Affiliate; (iii) conduct that brings or is reasonably likely to bring the Company or an Affiliate negative publicity or into public disgrace, embarrassment, or disrepute; (iv) fraud, theft, embezzlement, gross negligence or willful misconduct with respect to the Company or an Affiliate; (v) violation of the Company’s or an Affiliate’s written policies or codes of conduct, including written policies related to discrimination, harassment, retaliation, performance of illegal or unethical activities, or ethical misconduct; or (vi) breach of any agreement with the Company or any Affiliate, including, without limitation, any non-competition, non-solicitation, no-hire, or confidentiality covenant between the Participant and the Company or an Affiliate; or (b) in the case where there is an employment agreement, offer letter, consulting agreement, change in control agreement, or similar agreement in effect between the Company or an Affiliate and the Participant at the time of the grant of the Award that defines “cause” (or words of like import), “cause” as defined under such agreement.
2.8 “Change in Control” means and includes each of the following, unless otherwise determined by the Committee in the applicable Award Agreement or other written agreement with a Participant approved by the Committee:
(a) any “person,” as such term is used in Sections 13(d) and 14(d) of the Exchange Act (other than the Company, any trustee or other fiduciary holding securities under any employee benefit plan of the Company, or any company owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of the Company), becoming the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 50% or more of the combined voting power of the Company’s then outstanding securities, excluding for purposes herein, acquisitions pursuant to a Business Combination (as defined below) that does not constitute a Change in Control as defined in Section 2.8(b);
(b) a merger, reorganization, or consolidation of the Company or in which equity securities of the Company are issued (each, a “Business Combination”), other than a merger, reorganization, or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or its direct or indirect Parent) more than 50% of the combined voting power of the voting securities of the Company or such surviving entity (or, as applicable, a direct or indirect Parent of the Company or such surviving entity) outstanding immediately after such merger or consolidation; provided, however, that a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no person (other than those covered by the exceptions in Section 2.8(a)) acquires more than 50% of the combined voting power of the Company’s then outstanding securities shall not constitute a Change in Control; or a merger or consolidation of the Company with any other entity, other than a merger or consolidation that would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or its direct or indirect Parent) more than 50% of the combined voting power of the voting securities of the Company or such surviving entity (or, as applicable, a direct or indirect Parent of the Company or such surviving entity) outstanding immediately after such merger or consolidation; provided, however, that a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no person (other than those covered by the exceptions in Section 2.8(a)) acquires more than 50% of the combined voting power of the Company’s then outstanding securities shall not constitute a Change in Control;
(c) during the period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new director(s) (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in Section 2.8(a) or 2.8(b)) whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least a majority of the directors then still in office who either were directors at the beginning of the two year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or
(d) a complete liquidation or dissolution of the Company or the consummation of a sale or disposition by the Company of all or substantially all of the Company’s assets other than the sale or disposition of all or substantially all of the assets of the Company to a person or persons who beneficially own, directly or indirectly, 50% or more of the combined voting power of the outstanding voting securities of the Company at the time of the sale.
Notwithstanding the foregoing, with respect to any Award that is characterized as “nonqualified deferred compensation” within the meaning of Section 409A of the Code, an event shall not be considered to be a Change in Control under the Plan for purposes of payment of such Award unless such event is also a “change in ownership,” a “change in effective control,” or a “change in the ownership of a substantial portion of the assets” of the Company within the meaning of Section 409A of the Code.
2.9 “Change in Control Price” means the highest price per Share paid in any transaction related to a Change in Control as determined by the Committee in its discretion.
2.10 “Closing Date” means the date of the closing of the transactions contemplated by the Transaction Agreement.
2.11 “Code” means the U.S. Internal Revenue Code of 1986, as amended from time to time. Any reference to any section of the Code shall also be a reference to any successor provision and any guidance and treasury regulation promulgated thereunder.
2.12 “Committee” means any committee of the Board duly authorized by the Board to administer the Plan; provided, however, that unless otherwise determined by the Board, the Committee shall consist solely of two or more Qualified Members. If no committee is duly authorized by the Board to administer the Plan, the term “Committee” shall be deemed to refer to the Board for all purposes under the Plan. The Board may abolish any Committee or re-vest in itself any previously delegated authority from time to time and will retain the right to exercise the authority of the Committee to the extent consistent with Applicable Law.
2.13 “Common Stock” means the Class A ordinary shares, $0.0001 par value per share, of the Company.
2.14 “Company” means MoneyHero Limited, a Cayman Islands exempted company, and its successors by operation of law.
2.15 “Consultant” means any natural person who is an advisor or consultant or other service provider to the Company or any of its Affiliates.
2.16 “Disability” means, unless otherwise determined by the Committee in the applicable Award Agreement, with respect to a Participant’s Termination of Service, that the Participant is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment, provided, however, for purposes of an Incentive Stock Option, the term Disability shall have the meaning ascribed to it under Section 22(e)(3) of the Code. The determination of whether an individual has a Disability shall be determined by the Committee, and the Committee may rely on any determination that a Participant is disabled for purposes of benefits under any long-term disability plan in which a Participant participates that is maintained by the Company or any Affiliate.
2.17 “Dividend Equivalents” means a right granted to a Participant under the Plan to receive the equivalent value (in cash or Shares) of dividends paid on Shares.
2.18 “Effective Date” means the effective date of the Plan as defined in Article XV.
2.19 “Eligible Employees” means each employee of the Company or any of its Affiliates. An employee on a leave of absence may be an Eligible Employee.
2.20 “Eligible Individual” means an Eligible Employee, Non-Employee Director, or Consultant who is designated by the Committee in its discretion as eligible to receive Awards subject to the conditions set forth herein.
2.21 “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time. Reference to a specific section of the Exchange Act or regulation thereunder shall include such section or regulation, any valid regulation or interpretation promulgated under such section, and any comparable provision of any future legislation or regulation amending, supplementing, or superseding such section or regulation.
2.22 “Fair Market Value” means, for purposes of the Plan, unless otherwise required by any applicable provision of the Code or any regulations issued thereunder, as of any date and except as provided below, the last sales price reported for the Common Stock on the applicable date: (a) as reported on the principal national securities exchange in the United States on which it is then traded or (b) if the Common Stock is not traded, listed, or otherwise reported or quoted, the Committee shall determine in good faith the Fair Market Value in whatever manner it considers appropriate taking into account the requirements of Section 409A of the Code. For purposes of the exercise of any Award, the applicable date shall be the date a notice of exercise is received by the Committee or, if not a date on which the applicable market is open, the next day that it is open. Notwithstanding the foregoing, with respect to any Award granted on the pricing date of the Company’s initial public offering, the Fair Market Value shall mean the initial public offering price of a Share as set forth in the Company’s final prospectus relating to its initial public offering filed with the Securities and Exchange Commission.
2.23 “Family Member” means “family member” as defined in Section A.1.(a)(5) of the general instructions of Form S-8.
2.24 “Incentive Stock Option” means any Stock Option that is awarded to an Eligible Employee who is an employee of the Company, its Subsidiaries, or its Parents (if any) under the Plan and that is intended to be, and designated as, an “Incentive Stock Option” within the meaning of Section 422 of the Code.
2.25 “Non-Employee Director” means a director or a member of the Board of the Company who is not an employee of the Company.
2.26 “Non-Qualified Stock Option” means any Stock Option awarded under the Plan that is not an Incentive Stock Option.
2.27 “Other Stock-Based Award” means an Award under Article X of the Plan that is valued in whole or in part by reference to, or is payable in or otherwise based on, Shares.
2.28 “Parent” means any parent corporation of the Company within the meaning of Section 424(e) of the Code.
2.29 “Participant” means an Eligible Individual to whom an Award has been granted pursuant to the Plan.
2.30 “Performance Award” means an Award granted to a Participant pursuant to Article IX hereof contingent upon achieving certain Performance Goals.
2.31 “Performance Goals” means goals established by the Committee as contingencies for Awards to vest and/or become exercisable or distributable.
2.32 “Performance Period” means the designated period during which the Performance Goals must be satisfied with respect to the Award to which the Performance Goals relate.
2.33 “Plan” means this MoneyHero Limited 2023 Equity Incentive Plan, as amended from time to time.
2.34 “Qualified Member” means a member of the Board who is (a) a “non-employee director” within the meaning of Rule 16b-3(b)(3), and (b) “independent” under the listing standards or rules of the securities exchange upon which the Common Stock is traded, but only to the extent such independence is required to take the action at issue pursuant to such standards or rules.
2.35 “Reference Stock Option” has the meaning set forth in Section 7.1.
2.36 “Restricted Stock” means an Award of Shares under the Plan that is subject to restrictions under Article VIII.
2.37 “Restricted Stock Units” means an unfunded, unsecured right to receive, on the applicable settlement date, one Share or an amount in cash or other consideration determined by the Committee to be of equal value as of such settlement date, subject to certain vesting conditions and other restrictions.
2.38 “Restriction Period” has the meaning set forth in Section 8.3(a) with respect to Restricted Stock.
2.39 “Rule 16b-3” means Rule 16b-3 under Section 16(b) of the Exchange Act as then in effect or any successor provision.
2.40 “Section 409A of the Code” means the nonqualified deferred compensation rules under Section 409A of the Code and any applicable treasury regulations and other official guidance thereunder.
2.41 “Securities Act” means the Securities Act of 1933, as amended, and all rules and regulations promulgated thereunder. Reference to a specific section of the Securities Act or regulation thereunder shall include such section or regulation, any valid regulation or interpretation promulgated under such section, and any comparable provision of any future legislation or regulation amending, supplementing, or superseding such section or regulation.
2.42 “Shares” means shares of Common Stock.
2.43 “Stock Appreciation Right” shall mean the right pursuant to an Award granted under Article VII.
2.44 “Stock Option” or “Option” means any option to purchase Shares granted to Eligible Individuals granted pursuant to Article VI.
2.45 “Subsidiary” means any subsidiary corporation of the Company within the meaning of Section 424(f) of the Code.
2.46 “Ten Percent Stockholder” means a person owning, as of the applicable date of determination, stock possessing more than 10% of the total combined voting power of all classes of stock of the Company, its Subsidiaries or its Parent.
2.47 “Termination of Service” means the termination of the applicable Participant’s employment with, or performance of services for, the Company and its Affiliates. Unless otherwise determined by the Committee, (a) if a Participant’s employment or services with the Company and its Affiliates terminates but such Participant continues to provide services to the Company and its Affiliates in a non-employee capacity, such change in status shall not be deemed a Termination of Service with the Company and its Affiliates and (b) a Participant employed by, or performing services for, an Affiliate that ceases to be an Affiliate shall also be deemed to have incurred a Termination of Service provided the Participant does not immediately thereafter become an employee of the Company or another Affiliate. Notwithstanding the foregoing provisions of this definition, with respect to any Award that constitutes a “nonqualified deferred compensation plan” within the meaning of Section 409A of the Code, a Participant shall not be considered to have experienced a “Termination of Service” unless the Participant has experienced a “separation from service” within the meaning of Section 409A of the Code.
2.48 “Transaction Agreement” means that certain Business Combination Agreement, dated May 25, 2023, by and among Bridgetown Holdings Limited, MoneyHero Limited, Gemini Merger Sub 1 Limited, Gemini Merger Sub 2 Limited and CompareAsia Group Capital Limited, a Cayman Islands exempted company limited by shares.
ARTICLE III
ADMINISTRATION
3.1 Authority of the Committee. The Plan shall be administered by the Committee. Subject to the terms of the Plan and Applicable Law, the Committee shall have full authority to grant Awards to Eligible Individuals under the Plan. In particular, the Committee shall have the authority to:
(a) determine whether and to what extent Awards, or any combination thereof, are to be granted hereunder to one or more Eligible Individuals;
(b) determine the number of Shares to be covered by each Award granted hereunder;
(c) determine the terms and conditions, not inconsistent with the terms of the Plan, of any Award granted hereunder (including, but not limited to, the exercise or purchase price (if any), any restriction or limitation, any vesting schedule or acceleration thereof, or any forfeiture restrictions or waiver thereof, regarding any Award and the Shares relating thereto, based on such factors, if any, as the Committee shall determine, in its sole discretion);
(d) determine the amount of cash to be covered by each Award granted hereunder;
(e) determine whether, to what extent, and under what circumstances grants of Options and other Awards under the Plan are to operate on a tandem basis and/or in conjunction with or apart from other awards made by the Company outside of the Plan;
(f) determine whether and under what circumstances an Award may be settled in cash, Shares, other property, or a combination of the foregoing;
(g) determine whether, to what extent, and under what circumstances cash, Shares, or other property and other amounts payable with respect to an Award under the Plan shall be deferred either automatically or at the election of the Participant;
(h) modify, waive, amend, or adjust the terms and conditions of any Award, at any time or from time to time, including, but not limited to, Performance Goals;
(i) determine whether a Stock Option is an Incentive Stock Option or Non-Qualified Stock Option;
(j) determine whether to require a Participant, as a condition of the granting of any Award, to not sell or otherwise dispose of Shares acquired pursuant to the exercise or vesting of an Award for a period of time as determined by the Committee, in its sole discretion, following the date of the acquisition of such Award or Shares; and
(k) modify, extend, or renew an Award, subject to Article XII and Section 6.3(l).
3.2 Guidelines. Subject to Article XII hereof, the Committee shall have the authority to adopt, alter, and repeal such administrative rules, guidelines, and practices governing the Plan and perform all acts, including the delegation of its responsibilities (to the extent permitted by Applicable Law and applicable stock exchange rules), as it shall, from time to time, deem advisable; to construe and interpret the terms and provisions of the Plan and any Award issued under the Plan (and any agreements or sub-plans relating thereto); and to otherwise supervise the administration of the Plan. The Committee may correct any defect, supply any omission, or reconcile any inconsistency in the Plan or in any agreement relating thereto in the manner and to the extent it shall deem necessary to effectuate the purpose and intent of the Plan. The Committee may adopt special rules, sub-plans, guidelines, and provisions for persons who are residing in or employed in, or subject to, the taxes of any domestic or foreign jurisdictions to satisfy or accommodate applicable foreign laws or to qualify for preferred tax treatment of such domestic or foreign jurisdictions.
3.3 Decisions Final. Any decision, interpretation, or other action made or taken in good faith by or at the direction of the Company, the Board, or the Committee (or any of its members) arising out of or in connection with the Plan shall be within the absolute discretion of all and each of them, as the case may be, and shall be final, binding, and conclusive on the Company and all employees and Participants and their respective heirs, executors, administrators, successors, and assigns.
3.4 Designation of Consultants/Liability; Delegation of Authority.
(a) The Committee may designate employees of the Company and professional advisors to assist the Committee in the administration of the Plan and (to the extent permitted by Applicable Law) may grant authority to officers of the Company to grant Awards and/or execute agreements or other documents on behalf of the Committee.
(b) The Committee may employ such legal counsel, consultants, and agents as it may deem desirable for the administration of the Plan and may rely upon any opinion received from any such counsel or consultant and any computation received from any such consultant or agent. Expenses incurred by the Committee or the Board in the engagement of any such counsel, consultant, or agent shall be paid by the Company. The Committee, its members, and any person designated pursuant to subsection (a) above shall not be liable for any action or determination made in good faith with respect to the Plan. To the maximum extent permitted by Applicable Law, no officer of the Company or member or former member of the Committee or of the Board shall be liable for any action or determination made in good faith with respect to the Plan or any Award granted under it.
(c) The Committee may delegate any or all of its powers and duties under the Plan to a subcommittee of directors or to any officer of the Company, including the power to perform administrative functions and grant Awards; provided that such delegation does not (i) violate Applicable Law, or (ii) result in the loss of an exemption under Rule 16b-3(d)(1) for Awards granted to Participants subject to Section 16 of the Exchange Act in respect of the Company. Upon any such delegation, all references in the Plan to the “Committee,” shall be deemed to include any subcommittee or officer of the Company to whom such powers have been delegated by the Committee. Any such delegation shall not limit the right of such subcommittee members or such an officer to receive Awards. The Committee may also appoint agents who are not executive officers of the Company or members of the Board to assist in administering the Plan, provided, however, that such individuals may not be delegated the authority to grant or modify any Awards that will, or may, be settled in Shares.
3.5 Indemnification. To the maximum extent permitted by Applicable Law and to the extent not covered by insurance directly insuring such person, each officer or employee of the Company or any of its Affiliates and member or former member of the Committee or the Board shall be indemnified and held harmless by the Company against any cost or expense (including reasonable fees of counsel acceptable to the Committee) or liability (including any sum paid in settlement of a claim with the approval of the Committee), and advanced amounts necessary to pay the foregoing at the earliest time and to the fullest extent permitted, arising out of any act or omission to act in connection with the administration of the Plan, except to the extent arising out of such officer’s, employee’s, member’s, or former member’s own fraud or bad faith. Such indemnification shall be in addition to any right of indemnification the employees, officers, directors, or members or former officers, directors, or members may have under Applicable Law or under the by-laws of the Company or any of its Affiliates. Notwithstanding anything else herein, this indemnification will not apply to the actions or determinations made by an individual with regard to Awards granted to such individual under the Plan.
ARTICLE IV
SHARE LIMITATION
4.1 Shares. The aggregate number of Shares that may be issued or used for reference purposes or with respect to which Awards may be granted under the Plan shall not exceed 13,197,563 Shares (subject to any increase or decrease pursuant to this Article IV), which may be either authorized and unissued Shares or Shares held in or acquired for the treasury of the Company or both. The aggregate number of Shares that may be issued or used with respect to any Incentive Stock Option shall not exceed 13,197,563 Shares (subject to any increase or decrease pursuant to Section 4.3). The maximum number of Shares subject to Awards granted during a single fiscal year to any Non-Employee Director, taken together with any cash fees paid to that Non-Employee Director during the fiscal year and the value of awards granted to the Non-Employee Director under any other equity compensation plan of the Company during the fiscal year, shall not exceed a total value of $500,000 (calculating the value of any Awards based on the grant date fair value for financial reporting purposes), provided that, any awards granted under the CompareAsia Group Capital Limited 2022 Equity Plan, which were converted into Awards under the Plan, will not count towards the aforementioned $500,000 limit. Any Award under the Plan settled in cash shall not be counted against the foregoing maximum share limitations. Notwithstanding anything to the contrary contained herein, Shares subject to an Award under the Plan shall again be made available for issuance or delivery under the Plan if such Shares are (A) Shares tendered in payment of an Option, (B) Shares delivered or withheld by the Company to satisfy any tax withholding obligation, (C) Shares covered by a stock-settled Stock Appreciation Right or other Awards that were not issued upon the settlement of the Award, or (D) Shares subject to an Award that expires or is canceled, forfeited, or terminated without issuance of the full number of Shares to which the Award related.
4.2 Substitute Awards. In connection with an entity’s merger or consolidation with the Company or the Company’s acquisition of an entity’s property or stock, the Committee may grant Awards in substitution for any options or other stock or stock-based awards granted before such merger or consolidation by such entity or its Affiliate (“Substitute Awards”). Substitute Awards may be granted on such terms as the Committee deems appropriate, notwithstanding limitations on Awards in the Plan. Substitute Awards will not count against the overall share limit (nor shall Shares subject to a Substitute Award be added to the Shares available for Awards under the Plan as provided above), except that Shares acquired by exercise of substitute Incentive Stock Options will count against the maximum number of Shares that may be issued pursuant to the exercise of Incentive Stock Options under the Plan. Additionally, in the event that a company acquired by the Company or any Subsidiary or with which the Company or any Subsidiary combines has shares available under a pre-existing plan approved by stockholders and not adopted in contemplation of such acquisition or combination, the shares available for grants pursuant to the terms of such pre- existing plan (as adjusted, to the extent appropriate, using the exchange ratio or other adjustment or valuation ratio or formula used in such acquisition or combination to determine the consideration payable to the holders of common stock of the entities party to such acquisition or combination) may be used for Awards under the Plan and shall not reduce the Shares authorized for grant under the Plan (and Shares subject to such Awards shall not be added to the Shares available for Awards under the Plan as provided above); provided that Awards using such available shares shall not be made after the date awards or grants could have been made under the terms of the pre-existing plan, absent the acquisition or combination, and shall only be made to individuals who were not Eligible Employees or Non-Employee Directors prior to such acquisition or combination.
4.3 Adjustments.
(a) The existence of the Plan and the Awards granted hereunder shall not affect in any way the right or power of the Board or the stockholders of the Company to make or authorize (i) any adjustment, recapitalization, reorganization, or other change in the Company’s capital structure or its business, (ii) any merger or consolidation of the Company or any Affiliate, (iii) any issuance of bonds, debentures, or preferred or prior preference stock ahead of or affecting the Shares, (iv) the dissolution or liquidation of the Company or any Affiliate, (v) any sale or transfer of all or part of the assets or business of the Company or any Affiliate, or (vi) any other corporate act or proceeding.
(b) Subject to the provisions of Section 11.1:
(i) If the Company at any time subdivides (by any split, recapitalization, or otherwise) the outstanding Shares into a greater number of Shares, or combines (by reverse split, combination, or otherwise) its outstanding Shares into a lesser number of Shares, then the respective exercise prices for outstanding Awards that provide for a Participant-elected exercise and the number of Shares covered by outstanding Awards shall be appropriately adjusted by the Committee to prevent dilution or enlargement of the rights granted to, or available for, Participants under the Plan.
(ii) Excepting transactions covered by Section 4.3(b)(i), if the Company effects any merger, consolidation, statutory exchange, spin-off, reorganization, sale or transfer of all or substantially all the Company’s assets or business, or other corporate transaction or event in such a manner that the Company’s outstanding Shares are converted into the right to receive (or the holders of Common Stock are entitled to receive in exchange therefor), either immediately or upon liquidation of the Company, securities or other property of the Company or other entity, then, subject to the provisions of Section 11.1, (A) the aggregate number or kind of securities that thereafter may be issued under the Plan, (B) the number or kind of securities or other property (including cash) to be issued pursuant to Awards granted under the Plan (including as a result of the assumption of the Plan and the obligations hereunder by a successor entity, as applicable), or (C) the exercise or purchase price thereof, shall be appropriately adjusted by the Committee to prevent dilution or enlargement of the rights granted to, or available for, Participants under the Plan.
(iii) If there shall occur any change in the capital structure of the Company other than those covered by Section 4.3(b)(i) or 4.3(b)(ii), any conversion, any adjustment, or any issuance of any class of securities convertible or exercisable into, or exercisable for, any class of equity securities of the Company, then the Committee shall adjust any Award and make such other adjustments to the Plan to prevent dilution or enlargement of the rights granted to, or available for, Participants under the Plan.
(iv) The Committee may adjust the Performance Goals applicable to any Awards to reflect any unusual or non-recurring events and other extraordinary items, impact of charges for restructurings, discontinued operations, and the cumulative effects of accounting or tax changes, each as defined by generally accepted accounting principles or as identified in the Company’s financial statements, notes to the financial statements, management’s discussion and analysis, or other Company public filing.
(v) Any such adjustment determined by the Committee pursuant to this Section 4.3(b) shall be final, binding, and conclusive on the Company and all Participants and their respective heirs, executors, administrators, successors, and permitted assigns. Any adjustment to, or assumption or substitution of, an Award under this Section 4.3(b) shall be intended to comply with the requirements of Section 409A of the Code and Treasury Regulation §1.424-1 (and any amendments thereto), to the extent applicable. Except as expressly provided in this Section 4.3 or in the applicable Award Agreement, a Participant shall have no additional rights under the Plan by reason of any transaction or event described in this Section 4.3.
ARTICLE V
ELIGIBILITY
5.1 General Eligibility. All current and prospective Eligible Individuals are eligible to be granted Awards. Eligibility for the grant of Awards and actual participation in the Plan shall be determined by the Committee in its sole discretion.
5.2 Incentive Stock Options. Notwithstanding the foregoing, only Eligible Employees who are employees of the Company, its Subsidiaries, or its Parents (if any) are eligible to be granted Incentive Stock Options under the Plan. Eligibility for the grant of an Incentive Stock Option and actual participation in the Plan shall be determined by the Committee in its sole discretion.
5.3 General Requirement. The vesting and exercise of Awards granted to a prospective Eligible Individual are conditioned upon such individual actually becoming an Eligible Employee, Consultant, or Non-Employee Director, as applicable.
ARTICLE VI
STOCK OPTIONS
6.1 Options. Stock Options may be granted alone or in addition to other Awards granted under the Plan. Each Stock Option granted under the Plan shall be of one of two types: (a) an Incentive Stock Option or (b) a Non-Qualified Stock Option.
6.2 Grants. The Committee shall have the authority to grant to any Eligible Employee one or more Incentive Stock Options, Non-Qualified Stock Options, or both types of Stock Options; provided, however, that Incentive Stock Options may only be granted to an Eligible Employee who is an employee of the Company, its Subsidiaries, or its Parents (if any). The Committee shall have the authority to grant any Consultant or Non-Employee Director one or more Non-Qualified Stock Options. To the extent that any Stock Option does not qualify as an Incentive Stock Option (whether because of its provisions or the time or manner of its exercise or otherwise), such Stock Option or the portion thereof which does not so qualify shall constitute a separate Non-Qualified Stock Option.
6.3 Terms of Options. Options granted under the Plan shall be evidenced by an Award Agreement and subject to the following terms and conditions and shall be in such form and contain such additional terms and conditions not inconsistent with the terms of the Plan, as the Committee shall deem desirable:
(a) Exercise Price. The exercise price per Share subject to a Stock Option shall be determined by the Committee at the time of grant, provided that the per share exercise price of a Stock Option shall not be less than 100% (or, in the case of an Incentive Stock Option granted to a Ten Percent Stockholder, 110%) of the Fair Market Value at the time of grant, except, in either case to the extent provided otherwise by the Committee and set forth in an Award Agreement.
(b) Stock Option Term. The term of each Stock Option shall be fixed by the Committee, provided that no Stock Option shall be exercisable more than ten (10) years (or, in the case of an Incentive Stock Option granted to a Ten Percent Stockholder, five (5) years) after the date the Option is granted.
(c) Exercisability. Unless otherwise provided by the Committee in accordance with the provisions of this Section 6.3, Stock Options granted under the Plan shall be exercisable at such time or times and subject to such terms and conditions as shall be determined by the Committee at the time of grant. The Committee may, but shall not be required to, provide for an acceleration of vesting and exercisability in the terms of any Award Agreement upon the occurrence of a specified event.
(d) Method of Exercise. Subject to whatever installment exercise and waiting period provisions apply under Section 6.3(c), to the extent vested, Stock Options may be exercised in whole or in part at any time during the Option term, by giving written notice of exercise (which may be electronic) to the Company specifying the number of Shares to be purchased. Such notice shall be accompanied by payment in full of the exercise price (which shall equal the product of such number of Shares to be purchased multiplied by the applicable exercise price). The exercise price for the Stock Options may be paid upon such terms and conditions as shall be established by the Committee and set forth in the applicable Award Agreement. Without limiting the foregoing, the Committee may establish payment terms for the exercise of Stock Options pursuant to which the Company may withhold a number of Shares that otherwise would be issued to the Participant in connection with the exercise of the Stock Option having a Fair Market Value on the date of exercise equal to the exercise price, or that permit the Participant to deliver cash or Shares with a Fair Market Value equal to the exercise price on the date of payment, through a simultaneous sale through a broker of Shares acquired on exercise, or by any other means specified in the applicable Award Agreement or otherwise determined by the Committee, all as permitted by Applicable Law. No Shares shall be issued until payment therefor, as provided herein, has been made or provided for by the Participant.
(e) Non-Transferability of Options. No Stock Option shall be transferable by the Participant other than by will or by the laws of descent and distribution, and all Stock Options shall be exercisable, during the Participant’s lifetime, only by the Participant. Notwithstanding the foregoing, the Committee may determine, in its sole discretion, at the time of grant or thereafter that a Non-Qualified Stock Option that is otherwise not transferable pursuant to this Section 6.3(e) is transferable to a Family Member in whole or in part and in such circumstances, and under such conditions, as specified by the Committee. A Non-Qualified Stock Option that is transferred to a Family Member pursuant to the preceding sentence (i) may not be subsequently transferred other than by will or by the laws of descent and distribution and (ii) remains subject to the terms of the Plan and the applicable Award Agreement. Any Shares acquired upon the exercise of a Non- Qualified Stock Option by a permissible transferee of a Non-Qualified Stock Option or a permissible transferee pursuant to a transfer after the exercise of the Non-Qualified Stock Option shall be subject to the terms of the Plan and the applicable Award Agreement.
(f) Termination by Death or Disability. Unless otherwise provided in the applicable Award Agreement, or otherwise determined by the Committee at the time of grant or, if no rights of the Participant are reduced, thereafter, if a Participant’s Termination of Service is by reason of death or Disability, all Stock Options that are held by such Participant that are vested and exercisable at the time of the Participant’s Termination of Service may be exercised by the Participant (or in the case of the Participant’s death, by the legal representative of the Participant’s estate) at any time within a period of one year from the date of such Termination of Service, but in no event beyond the expiration of the stated term of such Stock Options; provided, however, that, in the event of a Participant’s Termination of Service by reason of Disability, if the Participant dies within such exercise period, all unexercised Stock Options held by such Participant shall thereafter be exercisable, to the extent to which they were exercisable at the time of death, for a period of one year from the date of such death, but in no event beyond the expiration of the stated term of such Stock Options.
(g) Involuntary Termination Without Cause. Unless otherwise provided in the applicable Award Agreement or otherwise determined by the Committee at the time of grant or, if no rights of the Participant are reduced, thereafter, if a Participant’s Termination of Service is by involuntary termination by the Company without Cause, all Stock Options that are held by such Participant that are vested and exercisable at the time of the Participant’s Termination of Service may be exercised by the Participant at any time within a period of ninety (90) days from the date of such Termination of Service, but in no event beyond the expiration of the stated term of such Stock Options.
(h) Voluntary Resignation. Unless otherwise provided in the applicable Award Agreement or otherwise determined by the Committee at the time of grant or, if no rights of the Participant are reduced, thereafter, if a Participant’s Termination of Service is voluntary (other than a voluntary termination described in Section 6.3(i) hereof), all Stock Options that are held by such Participant that are vested and exercisable at the time of the Participant’s Termination of Service may be exercised by the Participant at any time within a period of thirty (30) days from the date of such Termination of Service, but in no event beyond the expiration of the stated term of such Stock Options.
(i) Termination for Cause. Unless otherwise provided in the applicable Award Agreement or determined by the Committee at the time of grant or, if no rights of the Participant are reduced, thereafter, if a Participant’s Termination of Service (A) is for Cause or (B) is a voluntary Termination of Service (as provided in Section 6.3(h)) after the occurrence of an event that would be grounds for a Termination of Service for Cause, all Stock Options, whether vested or not vested, that are held by such Participant shall thereupon immediately terminate and expire as of the date of such Termination of Service.
(j) Unvested Stock Options. Unless otherwise provided in the applicable Award Agreement or determined by the Committee at the time of grant or, if no rights of the Participant are reduced, thereafter, Stock Options that are not vested as of the date of a Participant’s Termination of Service for any reason shall terminate and expire as of the date of such Termination of Service.
(k) Incentive Stock Option Limitations. To the extent that the aggregate Fair Market Value (determined as of the time of grant) of the Shares with respect to which Incentive Stock Options are exercisable for the first time by an Eligible Employee during any calendar year under the Plan and/or any other stock option plan of the Company, any Subsidiary, or any Parent exceeds $100,000, such Options shall be treated as Non-Qualified Stock Options. In addition, if an Eligible Employee does not remain employed by the Company, any Subsidiary, or any Parent at all times from the time an Incentive Stock Option is granted until three (3) months prior to the date of exercise thereof (or such other period as required by Applicable Law), such Stock Option shall be treated as a Non-Qualified Stock Option. Should any provision of the Plan not be necessary in order for the Stock Options to qualify as Incentive Stock Options, or should any additional provisions be required, the Committee may amend the Plan accordingly, without the necessity of obtaining the approval of the stockholders of the Company.
(l) Modification, Extension, and Renewal of Stock Options. The Committee may (i) modify, extend, or renew outstanding Stock Options granted under the Plan (provided that the rights of a Participant are not reduced without such Participant’s consent and provided, further, that such action does not subject the Stock Options to Section 409A of the Code without the consent of the Participant), and (ii) accept the surrender of outstanding Stock Options (to the extent not theretofore exercised) and authorize the granting of new Stock Options in substitution therefor (to the extent not theretofore exercised). Notwithstanding the foregoing, an outstanding Option may not be modified to reduce the exercise price thereof nor may a new Option at a lower price be substituted for a surrendered Option (other than adjustments or substitutions in accordance with Article IV), unless such action is approved by the stockholders of the Company.
(m) Other Terms and Conditions. The Committee may include a provision in an Award Agreement providing for the automatic exercise of a Non-Qualified Stock Option on a cashless basis on the last day of the term of such Option if the Participant has failed to exercise the Non-Qualified Stock Option as of such date, with respect to which the Fair Market Value of the Shares underlying the Non-Qualified Stock Option exceeds the exercise price of such Non- Qualified Stock Option on the date of expiration of such Option, subject to Section 14.4. Stock Options may contain such other provisions, which shall not be inconsistent with any of the terms of the Plan, as the Committee shall deem appropriate.
ARTICLE VII
STOCK APPRECIATION RIGHTS
7.1 Stock Appreciation Rights. Stock Appreciation Rights may be granted alone (“Free Standing Stock Appreciation Right”) or in conjunction with all or part of any Stock Option (a “Reference Stock Option”) granted under the Plan (“Tandem Stock Appreciation Rights”). In the case of a Non-Qualified Stock Option, such rights may be granted either at or after the time of the grant of such Reference Stock Option. In the case of an Incentive Stock Option, such rights may be granted only at the time of the grant of such Reference Stock Option.
7.2 Terms of Stock Appreciation Rights. Stock Appreciation Rights granted under the Plan shall be evidenced by an Award Agreement and subject to the following terms and conditions and shall be in such form and contain such additional terms not inconsistent with the terms of the Plan, as the Committee shall deem desirable:
(a) Exercise Price. The exercise price per Share subject to a Stock Appreciation Right shall be determined by the Committee at the time of grant, provided that the per Share exercise price of a Stock Appreciation Right shall not be less than 100% of the Fair Market Value at the time of grant, and provided, further, that the per share exercise price of a Tandem Stock Appreciation Right shall not be less than the per share exercise price of the Reference Stock Option, except, in either case and only with respect to Participants that are not based in the United States, to the extent provided otherwise by the Committee and set forth in an Award Agreement.
(b) Term. The term of each Free Standing Stock Appreciation Right shall be fixed by the Committee, but shall not be greater than ten (10) years after the date the right is granted. A Tandem Stock Appreciation Right or applicable portion thereof granted with respect to a Reference Stock Option shall terminate and no longer be exercisable upon the termination or exercise of the Reference Stock Option, except that, unless otherwise determined by the Committee, in its sole discretion, at the time of grant, a Tandem Stock Appreciation Right granted with respect to less than the full number of Shares covered by the Reference Stock Option shall not be reduced until, and then only to the extent that the exercise or termination of the Reference Stock Option causes, the number of Shares covered by the Tandem Stock Appreciation Right to exceed the number of Shares remaining available and unexercised under the Reference Stock Option.
(c) Exercisability. Unless otherwise provided by the Committee, Free Standing Stock Appreciation Rights granted under the Plan shall be exercised at such time or times and subject to such terms and conditions as shall be determined by the Committee at the time of grant. The Committee may, but shall not be required to, provide for an acceleration of vesting and exercisability in terms of any Award Agreement upon the occurrence of a specified event. A Tandem Stock Appreciation Right shall be exercisable only at such time or times and to the extent that the Reference Stock Options to which they relate shall be exercisable in accordance with the provisions of Article VI, and shall be subject to the provisions of Section 6.3(c).
(d) Method of Exercise. Subject to whatever installment and waiting period provisions applied under Section 6.3(c), to the extent vested, a Free Standing Stock Appreciation Right may be exercised in whole or in part at any time in accordance with the applicable Award Agreement, by given written notice of exercise (which may be electronic) to the Company specifying the number of Stock Appreciation Rights being exercised. A Tandem Stock Appreciation Right may be exercised by the Participant by surrendering the applicable portion of the Reference Stock Option. Upon such exercise and surrender, the Participant shall be entitled to receive an amount determined in the manner prescribed in this Section 7.2. Stock Options that have been so surrendered, in whole or in part, shall no longer be exercisable to the extent that the related Tandem Stock Appreciation Rights have been exercised.
(e) Payment. Upon the exercise of a Free Standing Stock Appreciation Right a Participant shall be entitled to receive, for each right exercised, up to, but no more than, an amount in cash and/or Shares (as chosen by the Committee in its sole discretion) equal in value to the excess of the Fair Market Value of one Share on the date that the right is exercised over the Fair Market Value of one Share on the date that the right was awarded to the Participant. Upon the exercise of a Tandem Stock Appreciation Right, a Participant shall be entitled to receive up to, but no more than, an amount in cash and/or Shares (as chosen by the Committee in its sole discretion) equal in value to the excess of the Fair Market Value of one Share over the Stock Option exercise price per Share specified in the Reference Stock Option Award Agreement multiplied by the number of Shares in respect of which the Tandem Stock Appreciation Right shall have been exercised, with the Committee having the right to determine the form of payment.
(f) Deemed Exercise of Reference Stock Option. Upon the exercise of a Tandem Stock Appreciation Right, the Reference Stock Option or part thereof to which such Stock Appreciation Right is related shall be deemed to have been exercised for the purpose of the limitation set forth in Article IV of the Plan on the number of Shares to be issued under the Plan.
(g) Termination. Unless otherwise determined by the Committee at grant or, if no rights of the Participant are reduced, thereafter, subject to the provisions of the applicable Award Agreement and the Plan, upon a Participant’s Termination of Service for any reason, Free Standing Stock Appreciation Rights may remain exercisable following a Participant’s Termination of Service on the same basis as Stock Options would be exercisable following a Participant’s Termination of Service in accordance with the provisions of Sections 6.3(f) through 6.3(j).
(h) Non-Transferability. Free Standing Stock Appreciation Rights shall not be transferable by the Participant other than by will or by the laws of descent and distribution, and all such rights shall be exercisable, during the Participant’s lifetime, only by the Participant. Tandem Stock Appreciation Rights shall be transferable only when and to the extent that the underlying Stock Option would be transferable under Section 6.3(e) of the Plan.
(i) Modification, Extension, and Renewal of Stock Appreciation Rights. The Committee may (i) modify, extend, or renew outstanding Stock Appreciation Rights granted under the Plan (provided that the rights of a Participant are not reduced without such Participant’s consent and provided, further, that such action does not subject the Stock Appreciation Rights to Section 409A of the Code without the consent of the Participant), and (ii) accept the surrender of outstanding Stock Appreciation Rights (to the extent not theretofore exercised) and authorize the granting of new Stock Appreciation Rights in substitution therefor (to the extent not theretofore exercised). Notwithstanding the foregoing, an outstanding Stock Appreciation Right may not be modified to reduce the exercise price thereof nor may a new Stock Appreciation Right at a lower price be substituted for a surrendered Stock Appreciation Right (other than adjustments or substitutions in accordance with Article IV), unless such action is approved by the stockholders of the Company.
(j) Other Terms and Conditions. The Committee may include a provision in an Award Agreement providing for the automatic exercise of a Stock Appreciation Right on a cashless basis on the last day of the term of such Stock Appreciation Right if the Participant has failed to exercise the Stock Appreciation Right as of such date, with respect to which the Fair Market Value of the Shares underlying the Stock Appreciation Right exceeds the exercise price of such Stock Appreciation Right on the date of expiration of such Stock Appreciation Right, subject to Section 14.4. Stock Appreciation Rights may contain such other provisions, which shall not be inconsistent with any of the terms of the Plan, as the Committee shall deem appropriate.
ARTICLE VIII
RESTRICTED STOCK; RESTRICTED STOCK UNITS
8.1 Awards of Restricted Stock and Restricted Stock Units. Shares of Restricted Stock and Restricted Stock Units may be granted alone or in addition to other Awards granted under the Plan. The Committee shall determine the Eligible Individuals to whom, and the time or times at which, grants of Restricted Stock and/or Restricted Stock Units shall be made, the number of shares of Restricted Stock or Restricted Stock Units to be awarded, the price (if any) to be paid by the Participant (subject to Section 8.2), the time or times within which such Awards may be subject to forfeiture, the vesting schedule and rights to acceleration thereof, and all other terms and conditions of the Awards. The Committee shall determine and set forth in the Award Agreement the terms and conditions for each Restricted Stock and Restricted Stock Unit Award, subject to the conditions and limitations contained in the Plan, including any vesting or forfeiture conditions during the applicable restriction period. The Committee may condition the grant or vesting of Restricted Stock and Restricted Stock Units upon the attainment of specified performance targets (including the Performance Goals) or such other factor as the Committee may determine in its sole discretion.
8.2 Awards and Certificates. Restricted Stock and Restricted Stock Units granted under the Plan shall be evidenced by an Award Agreement and subject to the following terms and conditions and shall be in such form and contain such additional terms and conditions not inconsistent with the terms of the Plan, as the Committee shall deem desirable:
(a) Restricted Stock:
(i) Purchase Price. The purchase price of Restricted Stock shall be fixed by the Committee. The purchase price for shares of Restricted Stock may be zero to the extent permitted by Applicable Law, and, to the extent not so permitted, such purchase price may not be less than par value.
(ii) Legend. Each Participant receiving Restricted Stock shall be issued a stock certificate in respect of such shares of Restricted Stock, unless the Committee elects to use another system, such as book entries by the transfer agent, as evidencing ownership of shares of Restricted Stock. Such certificate shall be registered in the name of such Participant, and shall, in addition to such legends required by Applicable Law, bear an appropriate legend referring to the terms, conditions, and restrictions applicable to such Restricted Stock.
(iii) Custody. If stock certificates are issued in respect of shares of Restricted Stock, the Committee may require that any stock certificates evidencing such shares be held in custody by the Company until the restrictions thereon shall have lapsed, and that, as a condition of any grant of Restricted Stock, the Participant shall have delivered a duly signed stock power or other instruments of assignment (including a power of attorney), each endorsed in blank with a guarantee of signature if deemed necessary or appropriate by the Company, which would permit transfer to the Company of all or a portion of the shares subject to the Restricted Stock Award in the event that such Award is forfeited in whole or part.
(iv) Rights as a Stockholder. Except as provided in Section 8.3(a) and this Section 8.2(a) or as otherwise determined by the Committee in an Award Agreement, the Participant shall have, with respect to the shares of Restricted Stock, all of the rights of a holder of Shares, including, without limitation, the right to receive dividends, the right to vote such Shares, and, subject to and conditioned upon the full vesting of shares of Restricted Stock, the right to tender such shares; provided that the Award Agreement shall specify on what terms and conditions the applicable Participant shall be entitled to dividends payable on the shares of Restricted Stock.
(v) Lapse of Restrictions. If and when the Restriction Period expires without a prior forfeiture of the Restricted Stock, the certificates for such Shares shall be delivered to the Participant. All legends shall be removed from said certificates at the time of delivery to the Participant, except as otherwise required by Applicable Law or other limitations imposed by the Committee.
(b) Restricted Stock Units:
(i) Settlement. The Committee may provide that settlement of Restricted Stock Units will occur upon or as soon as reasonably practical after the Restricted Stock Units vest or will instead be deferred, on a mandatory basis or at the Participant’s election, in a manner intended to comply with Section 409A of the Code.
(ii) Right as a Stockholder. A Participant will have no rights of a stockholder with respect to Shares subject to any Restricted Stock Unit unless and until Shares are delivered in settlement of the Restricted Stock Units.
(iii) Dividend Equivalents. If the Committee so provides, a grant of Restricted Stock Units may provide a Participant with the right to receive Dividend Equivalents. Dividend Equivalents may be paid currently or credited to an account for the Participant, settled in cash or Shares, and may be subject to the same restrictions on transferability and forfeitability as the Restricted Stock Units with respect to which the Dividend Equivalents are granted and subject to other terms and conditions as set forth in the Award Agreement.
8.3 Restrictions and Conditions.
(a) Restriction Period:
(i) The Participant shall not be permitted to transfer shares of Restricted Stock awarded under the Plan or vest in Restricted Stock Units during the period or periods set by the Committee (the “Restriction Period”) commencing on the date of such Award, as set forth in the applicable Award Agreement and such agreement shall set forth a vesting schedule and any event that would accelerate vesting of the Restricted Stock and/or Restricted Stock Units. Within these limits, based on service, attainment of Performance Goals pursuant to Section 8.3(a)(ii), and/or such other factors or criteria as the Committee may determine in its sole discretion, the Committee may condition the grant or provide for the lapse of such restrictions in installments in whole or in part, or may accelerate the vesting of all or any part of any Restricted Stock Award or Restricted Stock Unit and/or waive the deferral limitations for all or any part of any Award.
(ii) If the grant of shares of Restricted Stock or Restricted Stock Units or the lapse of restrictions or vesting schedule is based on the attainment of Performance Goals, the Committee shall establish the objective Performance Goals and the applicable vesting percentage applicable to each Participant or class of Participants in the applicable Award Agreement prior to the beginning of the applicable fiscal year or at such later date as otherwise determined by the Committee and while the outcome of the Performance Goals are substantially uncertain. Such Performance Goals may incorporate provisions for disregarding (or adjusting for) changes in accounting methods, corporate transactions (including, without limitation, dispositions and acquisitions), and other similar types of events or circumstances.
(b) Termination. Unless otherwise provided in the applicable Award Agreement or determined by the Committee at grant or, if no rights of the Participant are reduced, thereafter, upon a Participant’s Termination of Service for any reason during the relevant Restriction Period, all Restricted Stock or Restricted Stock Units still subject to restriction will be forfeited in accordance with the terms and conditions established by the Committee at grant or thereafter.
ARTICLE IX
PERFORMANCE AWARDS
9.1 Performance Awards. The Committee may grant a Performance Award to a Participant payable upon the attainment of specific Performance Goals either alone or in addition to other Awards granted under the Plan. The Performance Goals to be achieved during the Performance Period and the length of the Performance Period shall be determined by the Committee upon the grant of each Performance Award. The conditions for grant or vesting and the other provisions of Performance Awards (including, without limitation, any applicable Performance Goals) need not be the same with respect to each Participant. Performance Awards may be paid in cash, Shares, other property, or any combination thereof, in the sole discretion of the Committee as set forth in the applicable Award Agreement.
ARTICLE X
OTHER STOCK-BASED AND CASH AWARDS
10.1 Other Stock-Based Awards. The Committee is authorized to grant to Eligible Individuals Other Stock-Based Awards that are payable in, valued in whole or in part by reference to, or otherwise based on or related to Shares, including but not limited to, Shares awarded purely as a bonus and not subject to restrictions or conditions, Shares in payment of the amounts due under an incentive or performance plan sponsored or maintained by the Company, stock equivalent units, and Awards valued by reference to book value of Shares. Other Stock-Based Awards may be granted either alone or in addition to or in tandem with other Awards granted under the Plan.
Subject to the provisions of the Plan, the Committee shall have authority to determine the Eligible Individuals to whom, and the time or times at which, such Awards shall be made, the number of Shares to be awarded pursuant to such Awards, and all other conditions of the Awards. The Committee may also provide for the grant of Shares under such Awards upon the completion of a specified Performance Period. The Committee may condition the grant or vesting of Other Stock-Based Awards upon the attainment of specified Performance Goals as the Committee may determine, in its sole discretion.
10.2 Terms and Conditions. Other Stock-Based Awards made pursuant to this Article X shall be evidenced by an Award Agreement and subject to the following terms and conditions and shall be in such form and contain such additional terms and conditions not inconsistent with the terms of the Plan, as the Committee shall deem desirable:
(a) Non-Transferability. Subject to the applicable provisions of the Award Agreement and the Plan, Shares subject to Awards made under this Article X may not be transferred prior to the date on which the Shares are issued or, if later, the date on which any applicable restriction, performance, or deferral period lapses.
(b) Dividends. Unless otherwise determined by the Committee at the time of the grant of an Award, subject to the provisions of the Award Agreement and the Plan, the recipient of an Award under this Article X shall not be entitled to receive, currently or on a deferred basis, dividends or Dividend Equivalents in respect of the number of Shares covered by the Award.
(c) Vesting. Any Award under this Article X and any Shares covered by any such Award shall vest or be forfeited to the extent so provided in the Award Agreement, as determined by the Committee, in its sole discretion.
(d) Price. Shares under this Article X may be issued for no cash consideration. Shares purchased pursuant to a purchase right awarded under this Article X shall be priced as determined by the Committee in its sole discretion.
10.3 Cash Awards. The Committee may from time to time grant Cash Awards to Eligible Individuals in such amounts, on such terms and conditions, and for such consideration, including no consideration or such minimum consideration as may be required by Applicable Law, as it shall determine in its sole discretion. Cash Awards may be granted subject to the satisfaction of vesting conditions or may be awarded purely as a bonus and not subject to restrictions or conditions, and if subject to vesting conditions, the Committee may accelerate the vesting of such Awards at any time in its sole discretion. The grant of a Cash Award shall not require a segregation of any of the Company’s assets for satisfaction of the Company’s payment obligation thereunder.
ARTICLE XI
CHANGE IN CONTROL PROVISIONS
11.1 Benefits. In the event of a Change in Control, and except as otherwise provided by the Committee in an Award Agreement, a Participant’s unvested Awards shall not vest automatically and a Participant’s Awards shall be treated in accordance with one or more of the following methods as determined by the Committee; provided, that, the Committee need not take the same action or actions with respect to all Awards or portions thereof or with respect to all Participants and the Committee may take different actions with respect to the vested and unvested portions of an Award:
(a) Awards, whether or not then vested, shall be continued, be assumed, or have new rights substituted therefor, as determined by the Committee in a manner consistent with the requirements of Section 409A of the Code, and restrictions to which shares of Restricted Stock or any other Award granted prior to the Change in Control are subject shall not lapse upon a Change in Control and the Restricted Stock or other Award shall, where appropriate in the sole discretion of the Committee, receive the same distribution as other Shares on such terms as determined by the Committee; provided that the Committee may decide to award additional Restricted Stock or other Awards in lieu of any cash distribution. Notwithstanding anything to the contrary herein, for purposes of Incentive Stock Options, any assumed or substituted Stock Option shall comply with the requirements of Treasury Regulation Section 1.424-1 (and any amendment thereto).
(b) The Committee, in its sole discretion, may provide for the purchase of any Awards by the Company for an amount of cash equal to the excess (if any) of the Change in Control Price of the Shares covered by such Awards, over the aggregate exercise price of such Awards; provided, however, that if the exercise price of an Option or Stock Appreciation Right exceeds the Change in Control Price, such Award may be cancelled for no consideration.
(c) The Committee may, in its sole discretion, terminate all outstanding and unexercised Stock Options, Stock Appreciation Rights, or any Other Stock-Based Award that provides for a Participant-elected exercise, effective as of the date of the Change in Control, by delivering notice of termination to each Participant within a reasonable period of time prior to the date of consummation of the Change in Control, in which case during the period from the date on which such notice of termination is delivered to the consummation of the Change in Control (as determined by the Committee in its sole discretion), each such Participant shall have the right to exercise in full all of such Participant’s Awards that are then outstanding (without regard to any limitations on exercisability otherwise contained in the Award Agreements), but any such exercise shall be contingent on the occurrence of the Change in Control, and, provided that, if the Change in Control does not take place within a specified period after giving such notice for any reason whatsoever, the notice and exercise pursuant thereto shall be null and void.
(d) Unless otherwise provided in an Award Agreement, if, within twelve (12) months following the date on which such Change in Control occurs, a Participant’s service, consulting relationship or employment with the surviving entity is terminated by the surviving entity pursuant to a Termination of Service by the Company for a reason other than Cause or due to the Participant’s death or Disability (a “Qualifying Termination”), any outstanding Awards or substitute awards shall become immediately vested and exercisable, as applicable. Unless the applicable Award Agreement specifically provides for different treatment upon the circumstances described in this Section 11.1(d), Performance Awards shall be settled as follows: (i) if the Participant is terminated pursuant to a Qualifying Termination prior to the end of a Performance Period the Performance Award shall vest at the greater of (x) actual performance achieved, measured and calculated as of the date of the Change in Control, and (y) target level of performance as set forth in the Award Agreement, and (ii) if the Participant is terminated pursuant to a Qualifying Termination following the Performance Period the Performance Award shall vest based on the actual performance achieved, measured and calculated as of the date of the Change in Control.
(e) Notwithstanding any other provision herein to the contrary, the Committee may, in its sole discretion, provide for accelerated vesting or lapse of restrictions of an Award at any time.
ARTICLE XII
TERMINATION OR AMENDMENT OF PLAN
Notwithstanding any other provision of the Plan, the Board or the Committee may at any time, and from time to time, amend, in whole or in part, any or all of the provisions of the Plan (including any amendment deemed necessary to ensure that the Company may comply with any Applicable Law), or suspend or terminate it entirely, retroactively or otherwise; provided, however, that, unless otherwise required by Applicable Law or specifically provided herein, the rights of a Participant with respect to Awards granted prior to such amendment, suspension, or termination may not be materially impaired without the consent of such Participant and, provided, further, that without the approval of the holders of the Shares entitled to vote in accordance with Applicable Law, no amendment may be made that would (i) increase the aggregate number of Shares that may be issued under the Plan (except by operation of Article IV); (ii) change the classification of individuals eligible to receive Awards under the Plan; (iii) reduce the exercise price of any Stock Option or Stock Appreciation Right; (iv) grant a new Stock Option, Stock Appreciation Right, or other Award in substitution for, or upon the cancellation of, any previously granted Stock Option or Stock Appreciation Right that has the effect of reducing the exercise price thereof; (v) exchange any Stock Option or Stock Appreciation Right for Common Stock, cash, or other consideration when the exercise price per Share under such Stock Option or Stock Appreciation Right exceeds the Fair Market Value of a Share; or (vi) take any other action that would be considered a “repricing” of a Stock Option or Stock Appreciation Right under the applicable listing standards of the national exchange on which the Common Stock is listed (if any). Notwithstanding anything herein to the contrary, the Board or the Committee may amend the Plan or any Award Agreement at any time without a Participant’s consent to comply with Applicable Law, including Section 409A of the Code. The Committee may amend the terms of any Award theretofore granted, prospectively or retroactively, but, subject to Article IV or as otherwise specifically provided herein or in an Award Agreement, no such amendment or other action by the Committee shall materially impair the rights of any holder without the holder’s consent.
ARTICLE XIII
UNFUNDED STATUS OF PLAN
The Plan is intended to constitute an “unfunded” plan for incentive and deferred compensation. With respect to any payment as to which a Participant has a fixed and vested interest but which is not yet made to a Participant by the Company, nothing contained herein shall give any such Participant any right that is greater than those of a general unsecured creditor of the Company.
ARTICLE XIV
GENERAL PROVISIONS
14.1 Legend. The Committee may require each person receiving Shares pursuant to a Stock Option or other Award under the Plan to represent to and agree with the Company in writing that the Participant is acquiring the Shares without a view to distribution thereof. In addition to any legend required by the Plan, the certificates for such Shares may include any legend that the Committee deems appropriate to reflect any restrictions on transfer. All certificates for Shares delivered under the Plan shall be subject to such stop transfer orders and other restrictions as the Committee may deem advisable under the rules, regulations, and other requirements of the Securities and Exchange Commission, any stock exchange upon which the Common Stock is then listed or any national securities exchange system upon whose system the Common Stock is then quoted, and any Applicable Law, and the Committee may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions. If the Shares are held in book-entry form, then the book-entry will indicate any restrictions on such Shares.
14.2 Other Plans. Nothing contained in the Plan shall prevent the Board from adopting other or additional compensation arrangements, subject to stockholder approval if such approval is required, and such arrangements may be either generally applicable or applicable only in specific cases.
14.3 No Right to Employment/Directorship/Consultancy. Neither the Plan nor the grant of any Award hereunder shall give any Participant or other employee, Consultant, or Non- Employee Director any right with respect to continuance of employment, consultancy, or directorship by the Company or any Affiliate, nor shall there be a limitation in any way on the right of the Company or any Affiliate by which an employee is employed or a Consultant or Non- Employee Director is retained to terminate such employment, consultancy, or directorship at any time.
14.4 Withholding of Taxes. A Participant shall be required to pay to the Company or one of its Affiliates, as applicable, or make arrangements satisfactory to the Company regarding the payment of, any income tax, social insurance contribution or other applicable taxes that are required to be withheld in respect of an Award. The Committee may (but is not obligated to), in its sole discretion, permit or require a Participant to satisfy all or any portion of the applicable taxes that are required to be withheld with respect to an Award by (a) the delivery of Shares (which are not subject to any pledge or other security interest) having an aggregate Fair Market Value equal to such withholding liability (or portion thereof); (b) having the Company withhold from the Shares otherwise issuable or deliverable to, or that would otherwise be retained by, the Participant upon the grant, exercise, vesting, or settlement of the Award, as applicable, a number of Shares with an aggregate Fair Market Value equal to the amount of such withholding liability; or (c) by any other means specified in the applicable Award Agreement or otherwise determined by the Committee.
14.5 Fractional Shares. No fractional Shares shall be issued or delivered pursuant to the Plan. The Committee shall determine whether cash, additional Awards, or other securities or property shall be used or paid in lieu of fractional Shares or whether any fractional shares should be rounded, forfeited, or otherwise eliminated.
14.6 No Assignment of Benefits. No Award or other benefit payable under the Plan shall, except as otherwise specifically provided by law or permitted by the Committee, be transferable in any manner, and any attempt to transfer any such benefit shall be void, and any such benefit shall not in any manner be liable for or subject to the debts, contracts, liabilities, engagements, or torts of any person who shall be entitled to such benefit, nor shall it be subject to attachment or legal process for or against such person.
14.7 Clawback Provisions. All Awards (including any proceeds, gains, or other economic benefit the Participant actually or constructively receives upon receipt or exercise of any Award or the receipt or resale of any Shares underlying the Award) will be subject to any Company clawback policy, including any clawback policy adopted to comply with Applicable Law (including the Dodd-Frank Wall Street Reform and Consumer Protection Act and any rules or regulations promulgated thereunder) as set forth in such clawback policy or the Award Agreement.
14.8 Listing and Other Conditions.
(a) Unless otherwise determined by the Committee, as long as the Common Stock is listed on a national securities exchange or system sponsored by a national securities association, the issuance of Shares pursuant to an Award shall be conditioned upon such Shares being listed on such exchange or system. The Company shall have no obligation to issue such Shares unless and until such Shares are so listed, and the right to exercise any Option or other Award with respect to such Shares shall be suspended until such listing has been effected.
(b) If at any time counsel to the Company shall be of the opinion that any sale or delivery of Shares pursuant to an Award is or may in the circumstances be unlawful or result in the imposition of excise taxes on the Company under Applicable Law, the Company shall have no obligation to make such sale or delivery, or to make any application or to effect or to maintain any qualification or registration under the Securities Act or otherwise, with respect to Shares or Awards, and the right to exercise any Option or other Award shall be suspended until, in the opinion of said counsel, such sale or delivery shall be lawful or will not result in the imposition of excise taxes on the Company.
(c) Upon termination of any period of suspension under this Section 14.8, any Award affected by such suspension that shall not then have expired or terminated shall be reinstated as to all Shares available before such suspension and as to Shares that would otherwise have become available during the period of such suspension, but no such suspension shall extend the term of any Award.
(d) A Participant shall be required to supply the Company with certificates, representations, and information that the Company requests and otherwise cooperate with the Company in obtaining any listing, registration, qualification, exemption, consent, or approval the Company deems necessary or appropriate.
14.9 Governing Law. The Plan and actions taken in connection herewith shall be governed and construed in accordance with the laws of the Cayman Islands, without reference to principles of conflict of laws.
14.10 Construction. Wherever any words are used in the Plan in the masculine gender they shall be construed as though they were also used in the feminine gender in all cases where they would so apply, and wherever words are used herein in the singular form they shall be construed as though they were also used in the plural form in all cases where they would so apply.
14.11 Other Benefits. No Award granted or paid out under the Plan shall be deemed compensation for purposes of computing benefits under any retirement plan of the Company or its Affiliates or affect any benefit or compensation under any other plan now or subsequently in effect under which the availability or amount of benefits is related to the level of compensation.
14.12 Costs. The Company shall bear all expenses associated with administering the Plan, including expenses of issuing Shares pursuant to Awards hereunder.
14.13 No Right to Same Benefits. The provisions of Awards need not be the same with respect to each Participant, and such Awards to individual Participants need not be the same in subsequent years.
14.14 Death/Disability. The Committee may in its discretion require the transferee of a Participant to supply it with written notice of the Participant’s death or Disability and to supply it with a copy of the will (in the case of the Participant’s death) or such other evidence as the Committee deems necessary to establish the validity of the transfer of an Award. The Committee may also require the agreement of the transferee to be bound by all of the terms and conditions of the Plan.
14.15 Section 16(b) of the Exchange Act. It is the intent of the Company that the Plan satisfy, and be interpreted in a manner that satisfies, the applicable requirements of Rule 16b-3 as promulgated under Section 16 of the Exchange Act so that Participants will be entitled to the benefitof Rule 16b-3, or any other rule promulgated under Section 16 of the Exchange Act, and will not be subject to short-swing liability under Section 16 of the Exchange Act. Accordingly, if the operation of any provision of the Plan would conflict with the intent expressed in this Section 14.15, such provision to the extent possible shall be interpreted and/or deemed amended so as to avoid such conflict.
14.16 Deferral of Awards. The Committee may establish one or more programs under the Plan to permit selected Participants the opportunity to elect to defer receipt of consideration upon exercise of an Award, satisfaction of performance criteria, or other event that absent the election would entitle the Participant to payment or receipt of Shares or other consideration under an Award. The Committee may establish the election procedures, the timing of such elections, the mechanisms for payments of, and accrual of interest or other earnings, if any, on amounts, Shares, or other consideration so deferred, and such other terms, conditions, rules, and procedures that the Committee deems advisable for the administration of any such deferral program.
14.17 Section 409A of the Code. The Plan and Awards are intended to comply with or be exempt from the applicable requirements of Section 409A of the Code and shall be limited, construed, and interpreted in accordance with such intent. To the extent that any Award is subject to Section 409A of the Code, it shall be paid in a manner that will comply with Section 409A of the Code, including proposed, temporary, or final regulations or any other guidance issued by the Secretary of the Treasury and the Internal Revenue Service with respect thereto. Notwithstanding anything herein to the contrary, any provision in the Plan that is inconsistent with Section 409A of the Code shall be deemed to be amended to comply with or be exempt from Section 409A of the Code and, to the extent such provision cannot be amended to comply therewith or be exempt therefrom, such provision shall be null and void. The Company shall have no liability to a Participant, or any other party, if an Award that is intended to be exempt from, or compliant with, Section 409A of the Code is not so exempt or compliant or for any action taken by the Committee or the Company and, in the event that any amount or benefit under the Plan becomes subject to penalties under Section 409A of the Code, responsibility for payment of such penalties shall rest solely with the affected Participants and not with the Company. Notwithstanding any contrary provision in the Plan or Award Agreement, any payment(s) of “nonqualified deferred compensation” (within the meaning of Section 409A of the Code) that are otherwise required to be made under the Plan to a “specified employee” (as defined under Section 409A of the Code) as a result of such employee’s separation from service (other than a payment that is not subject to Section 409A of the Code) shall be delayed for the first six months following such separation from service (or, if earlier, until the date of death of the specified employee) and shall instead be paid (in a manner set forth in the Award Agreement) upon expiration of such delay period.
14.18 Data Privacy. As a condition of receipt of any Award, each Participant explicitly and unambiguously consents to the collection, use, and transfer, in electronic or other form, of personal data as described in this Section 14.18 by and among, as applicable, the Company and its Affiliates, for the exclusive purpose of implementing, administering, and managing the Plan and Awards and the Participant’s participation in the Plan. In furtherance of such implementation, administration, and management, the Company and its Affiliates may hold certain personal information about a Participant, including, but not limited to, the Participant’s name, home address, telephone number, date of birth, social security or insurance number or other identification number, salary, nationality, job title(s), information regarding any securities of the Company or any of its Affiliates, and details of all Awards (the “Data”). In addition to transferring the Data amongst themselves as necessary for the purpose of implementation, administration, and management of the Plan and Awards and the Participant’s participation in the Plan, the Company and its Affiliates may each transfer the Data to any third parties assisting the Company in the implementation, administration, and management of the Plan and Awards and the Participant’s participation in the Plan. Recipients of the Data may be located in the Participant’s country or elsewhere, and the Participant’s country and any given recipient’s country may have different data privacy laws and protections. By accepting an Award, each Participant authorizes such recipients to receive, possess, use, retain, and transfer the Data, in electronic or other form, for the purposes of assisting the Company in the implementation, administration, and management of the Plan and Awards and the Participant’s participation in the Plan, including any requisite transfer of such Data as may be required to a broker or other third party with whom the Company or the Participant may elect to deposit any shares of Common Stock. The Data related to a Participant will be held only as long as is necessary to implement, administer, and manage the Plan and Awards and the Participant’s participation in the Plan. A Participant may, at any time, view the Data held by the Company with respect to such Participant, request additional information about the storage and processing of the Data with respect to such Participant, recommend any necessary corrections to the Data with respect to the Participant, or refuse or withdraw the consents herein in writing, in any case without cost, by contacting his or her local human resources representative. The Company may cancel the Participant’s eligibility to participate in the Plan, and in the Committee’s discretion, the Participant may forfeit any outstanding Awards if the Participant refuses or withdraws the consents described herein. For more information on the consequences of refusal to consent or withdrawal of consent, Participants may contact their local human resources representative.
14.19 Successor and Assigns. The Plan shall be binding on all successors and permitted assigns of a Participant, including, without limitation, the estate of such Participant and the executor, administrator, or trustee of such estate.
14.20 Severability of Provisions. If any provision of the Plan shall be held invalid or unenforceable, such invalidity or unenforceability shall not affect any other provisions hereof, and the Plan shall be construed and enforced as if such provisions had not been included.
14.21 Headings and Captions. The headings and captions herein are provided for reference and convenience only, shall not be considered part of the Plan, and shall not be employed in the construction of the Plan.
14.22 Authorization of Sub-Plans. The Committee may from time to time establish one or more sub-plans under the Plan for purposes of satisfying or accommodating applicable securities or tax laws of various jurisdictions or to qualify for preferred tax treatment of such jurisdiction. The Committee shall establish such sub-plans by adopting supplements to the Plan containing (i) such limitations on the Committee’s discretion under the Plan as the Committee deems necessary or desirable or (ii) such additional terms and conditions not otherwise inconsistent with the Plan as the Committee shall deem necessary or desirable. All supplements adopted by the Committee shall be deemed to be part of the Plan, but each supplement shall apply only to Participants within the affected jurisdiction and the Company shall not be required to provide copies of any supplement to Participants in any jurisdiction which is not the subject of such supplement.
ARTICLE XV
EFFECTIVE DATE OF PLAN
The Plan shall become effective upon the date immediately preceding the Closing Date, subject to prior stockholder approval in accordance with applicable state law, the Company’s bylaws and articles of incorporation, and applicable stock exchange rules. The Plan shall be submitted for the approval of the Company’s stockholders within twelve (12) months of the date of the Board’s initial adoption of the Plan. Awards may not be granted or awarded prior to such stockholder approval.
ARTICLE XVI
TERM OF PLAN
No Award shall be granted pursuant to the Plan on or after the tenth (10th) anniversary of the earlier of the date that the Plan is adopted or the date of stockholder approval, but Awards granted prior to such tenth (10th) anniversary may extend beyond that date.
Exhibit 4.6
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (“Agreement”) is entered into as a deed on [DATE] by and between MoneyHero Limited, an exempted company incorporated in the Cayman Islands (the “Company”), and [INDEMNITEE’S NAME], [INDEMNITEE’S TITLE] of the Company (“Indemnitee”). This Agreement supersedes and replaces any and all previous agreements between the Company and Indemnitee covering indemnification and advancement.
RECITALS
WHEREAS, the Board of Directors of the Company (the “Board”) believes that highly competent persons have become more reluctant to serve publicly-held corporations as directors, officers, or in other capacities unless they are provided with adequate protection through insurance or adequate indemnification and advancement of expenses against inordinate risks of claims and actions against them arising out of their service to and activities on behalf of the corporation;
WHEREAS, the Board has determined that, in order to attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect certain persons serving the Company and its subsidiaries from certain liabilities. Although the furnishing of such insurance has been a customary and widespread practice among United States-based corporations and other business enterprises, the Company believes that, given current market conditions and trends, such insurance may be available to it in the future only at higher premiums and with more exclusions. At the same time, directors, officers, and other persons in service to corporations or business enterprises are being increasingly subjected to expensive and time-consuming litigation relating to, among other things, matters that traditionally would have been brought only against the Company or business enterprise itself. The Memorandum and Articles of Association of the Company (as may be amended, supplemented and restated from time to time, the “Charter”) require indemnification of the officers and directors of the Company. The Charter does not provide that the indemnification provisions set forth therein are exclusive, and does not restrict or prohibit contracts to be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification and advancement of expenses;
WHEREAS, the uncertainties relating to such insurance, to indemnification, and to advancement of expenses may increase the difficulty of attracting and retaining such persons;
WHEREAS, the Board has determined that the increased difficulty in attracting and retaining such persons is detrimental to the best interests of the Company and its shareholders and that the Company should act to assure such persons that there will be increased certainty of such protection in the future;
WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify, and to advance expenses on behalf of, such persons to the fullest extent permitted by applicable law so that they will serve or continue to serve the Company free from undue concern that they will not be so indemnified;
WHEREAS, this Agreement is a supplement to and in furtherance of the Charter and any resolutions adopted pursuant thereto, and is not a substitute therefor, nor diminishes or abrogates any rights of Indemnitee thereunder; and
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WHEREAS, Indemnitee does not regard the protection available under the Charter and insurance as adequate in the present circumstances, and may not be willing to serve or continue to serve as an officer ordirector without adequate additional protection, and the Company desires Indemnitee to serve or continue to serve in such capacity. Indemnitee is willing to serve, continue to serve and to take on additional service for or on behalf of the Company on the condition that Indemnitee be so indemnified and be advanced expenses.
NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Company and Indemnitee do hereby covenant and agree as follows:
Section 1. Services to the Company. Indemnitee agrees to serve as [a/an] [director/officer/employee/agent/fiduciary] of the Company. Indemnitee may at any time and for any reason resign from such position (subject to any other contractual obligation or any obligation imposed by operation of law). This Agreement does not create any obligation on the Company to continue Indemnitee in such position and is not an employment contract between the Company (or any of its subsidiaries or any Enterprise) and Indemnitee.
Section 2. Definitions. As used in this Agreement:
(a) “Agent” means any person who is authorized by the Company or an Enterprise to act for or represent the interests of the Company or an Enterprise, respectively.
(b) A “Change in Control” occurs upon the earliest to occur after the date of this Agreement of any of the following events:
i. Acquisition of Stock by Third Party. Any Person (as defined below) is or becomes the Beneficial Owner (as defined below), directly or indirectly, of securities of the Company representing fifteen percent (15%) or more of the combined voting power of the Company’s then outstanding securities unless the change in relative beneficial ownership of the Company’s securities by any Person results solely from a reduction in the aggregate number of outstanding shares of securities entitled to vote generally in the election of directors;
ii. Change in Board of Directors. During any period of two (2) consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in Sections 2(b)(i), 2(b)(iii) or 2(b)(iv)) whose election by the Board or nomination for election by the Company’s shareholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the members of the Board;
iii. Corporate Transactions. The effective date of a merger or consolidation of the Company with any other entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the surviving entity outstanding immediately after such merger or consolidation and with the power to elect at least a majority of the board of directors or other governing body of such surviving entity;
iv. Liquidation. The approval by the shareholders of the Company of a complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; and
v. Other Events. There occurs any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any similar item on any similar schedule or form) promulgated under the Exchange Act (as defined below), whether or not the Company is then subject to such reporting requirement.
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vi. For purposes of this Section 2(b), the following terms have the following meanings:
1 “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time.
2 “Person” has the meaning as set forth in Sections 13(d) and 14(d) of the Exchange Act; provided, however, that Person excludes (i) the Company, (ii) any trustee or other fiduciary holding securities under an employee benefit plan of the Company, and (iii) any corporation owned, directly or indirectly, by the shareholders of the Company in substantially the same proportions as their ownership of the Company’s shares.
3 “Beneficial Owner” has the meaning given to such term in Rule 13d-3 under the Exchange Act; provided, however, that Beneficial Owner excludes any Person otherwise becoming a Beneficial Owner by reason of the shareholders of the Company approving a merger of the Company with another entity.
(c) “Corporate Status” describes the status of a person who is or was acting as a director, officer, employee, fiduciary, or Agent of the Company or an Enterprise.
(d) “Disinterested Director” means a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification is sought by Indemnitee.
(e) “Enterprise” means any other corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other entity for which Indemnitee is or was serving at the request of the Company as a director, officer, employee, or Agent.
(f) “Expenses” includes all reasonable attorneys’ fees, retainers, court costs, transcript costs, fees of experts and other professionals, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, any federal, state, local or foreign taxes imposed on Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, ERISA excise taxes and penalties, and all other disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, or otherwise participating in, a Proceeding. Expenses also include (i) Expenses incurred in connection with any appeal resulting from any Proceeding, including without limitation the premium, security for, and other costs relating to any cost bond, supersedeas bond, or other appeal bond or its equivalent, and (ii) for purposes of Section 14(d) only, Expenses incurred by Indemnitee in connection with the interpretation, enforcement or defense of Indemnitee’s rights under this Agreement, by litigation or otherwise. Expenses, however, do not include amounts paid in settlement by Indemnitee or the amount of judgments or fines against Indemnitee.
(g) “Independent Counsel” means a law firm, or a member of a law firm, selected by the Company and approved by Indemnitee (which approval shall not be unreasonably withheld) or, if there has been a Change in Control, selected by Indemnitee and approved by the Company (which approval shall not be unreasonably withheld), that is experienced in matters of corporation law and neither presently is, nor in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either such party (other than with respect to matters concerning the Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements), or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” does not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement.
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(h) The term “Proceeding” includes any threatened, pending or completed action, suit, claim, counterclaim, cross claim, arbitration, mediation, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened or completed proceeding, whether brought in the right of the Company or otherwise and whether of a civil, criminal, administrative, legislative, or investigative (formal or informal) nature, including any appeal therefrom, in which Indemnitee was, is or will be involved as a party, potential party, non-party witness or otherwise by reason of Indemnitee’s Corporate Status or by reason of any action taken by Indemnitee (or a failure to take action by Indemnitee) or of any action (or failure to act) on Indemnitee’s part while acting pursuant to Indemnitee’s Corporate Status, in each case whether or not serving in such capacity at the time any liability or Expense is incurred for which indemnification, reimbursement, or advancement of Expenses can be provided under this Agreement. A Proceeding includes one pending on or before the date of this Agreement. A Proceeding also includes a situation the Indemnitee believes in good faith may lead to or culminate in the institution of a Proceeding.
Section 3. Indemnity in Third-Party Proceedings. The Company will indemnify Indemnitee in accordance with the provisions of this Section 3 if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding, other than a Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 3, the Company will indemnify Indemnitee to the fullest extent permitted by applicable law and the Charter against all Expenses, judgments, fines and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines and amounts paid in settlement) actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, in the case of a criminal Proceeding, had no reasonable cause to believe that Indemnitee’s conduct was unlawful.
Section 4. Indemnity in Proceedings by or in the Right of the Company. The Company will indemnify Indemnitee in accordance with the provisions of this Section 4 if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 4, the Company will indemnify Indemnitee to the fullest extent permitted by applicable law and the Charter against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company. The Company will not indemnify Indemnitee for Expenses under this Section 4 related to any claim, issue or matter in a Proceeding for which Indemnitee has been finally adjudged by a court to be liable to the Company, unless, and only to the extent that, any court or tribunal in which the Proceeding was brought determines upon application by Indemnitee that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification.
Section 5. Indemnification for Expenses of a Party Who is Wholly or Partly Successful. To the fullest extent permitted by applicable law and the Charter, the Company will indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee in connection with any Proceeding the extent that Indemnitee is successful, on the merits or otherwise. If Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the Company will indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with or related to each successfully resolved claim, issue or matter to the fullest extent permitted by law and the Charter. For purposes of this Section 5 and without limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, will be deemed to be a successful result as to such claim, issue or matter.
Section 6. Indemnification For Expenses of a Witness. To the fullest extent permitted by applicable law and the Charter, the Company will indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with any Proceeding to which Indemnitee is not a party but to which Indemnitee is a witness, deponent, interviewee, or otherwise asked to participate.
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Section 7. Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of Expenses, but not, however, for the total amount thereof, the Company will indemnify Indemnitee for the portion thereof to which Indemnitee is entitled.
Section 8. Additional Indemnification. Notwithstanding any limitation in Sections 3, 4, or 5, the Company will indemnify Indemnitee to the fullest extent permitted by applicable law and the Charter if Indemnitee is a party to or threatened to be made a party to any Proceeding (including a Proceeding by or in the right of the Company to procure a judgment in its favor).
Section 9. Exclusions. Notwithstanding any provision in this Agreement, the Company is not obligated under this Agreement to make any indemnification payment to Indemnitee in connection with any Proceeding:
(a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other than pursuant to this Agreement, except to the extent provided in Section 15(b) and except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; or
(b) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act (as defined in Section 2(b) hereof) or similar provisions of state statutory law or common law, (ii) any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), or the payment to the Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Sarbanes-Oxley Act) or (iii) any reimbursement of the Company by Indemnitee of any compensation pursuant to any compensation recoupment or clawback policy adopted by the Board or the compensation committee of the Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Act;
(c) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Proceeding or part of any Proceeding is to enforce Indemnitee’s rights to indemnification or advancement of Expenses, including a Proceeding (or any part of any Proceeding) initiated pursuant to Section 14 of this Agreement, (ii) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (iii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law and the Charter;
(d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law (as to which all rights of appeal therefrom have been exhausted or lapsed) to be liable to the Company for intentional misconduct in the performance of his/her duty to the Company unless and then only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is entitled to indemnity for such Expenses as such court shall deem proper;
(f) in connection with any Proceeding brought about by the deliberate dishonesty, fraud or gross negligence of the Indemnitee seeking payment hereunder; provided, however, that the Indemnitee shall be protected under this Agreement as to any claims upon which suit may be brought against him/her by reason of any alleged dishonesty on his/her part, unless a judgment or other final adjudication thereof (as to which all rights of appeal therefrom have been exhausted or lapsed) adverse to the Indemnitee establishes that he/she committed (i) acts of active and deliberate dishonesty, (ii) with actual dishonest purpose and intent, and (iii) which acts were material to the cause of action so adjudicated;
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(g) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnity;
(h) in connection with an application in which the competent court refused to grant the Indemnitee relief; or
(i) in connection with any Proceeding arising out of the Indemnitee’s personal tax affairs, except to the extent taxes are incurred by the Indemnitee arising from his/her position with the Company or any position with any other enterprise whereby the Indemnitee is providing services at the request of the Company.
Section 10. Advances of Expenses.
(a) The Company will advance, to the extent not prohibited by law and the Charter, the Expenses reasonably incurred by or on behalf of Indemnitee in connection with any Proceeding (or any part of any Proceeding) not initiated by Indemnitee or any Proceeding (or any part of any Proceeding) initiated by Indemnitee if (i) the Proceeding or part of any Proceeding is to enforce Indemnitee’s rights to obtain indemnification or advancement of Expenses from the Company or Enterprise, including a proceeding initiated pursuant to Section 14 or (ii) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation. The Company will advance the Expenses within thirty (30) days after the receipt by the Company of a statement or statements requesting such advances from time to time, whether prior to or after final disposition of any Proceeding.
(b) Advances will be unsecured and interest free. Indemnitee undertakes to repay the amounts advanced (without interest) to the extent that it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company. No other form of undertaking is required other than the execution of this Agreement. The Company will make advances without regard to Indemnitee’s ability to repay the Expenses and without regard to Indemnitee’s ultimate entitlement to indemnification under the other provisions of this Agreement.
Section 11. Procedure for Notification of Claim for Indemnification or Advancement.
(a) Indemnitee will notify the Company in writing of any Proceeding with respect to which Indemnitee intends to seek indemnification or advancement of Expenses hereunder as soon as reasonably practicable following the receipt by Indemnitee of written notice thereof. Indemnitee will include in the written notification to the Company a description of the nature of the Proceeding and the facts underlying the Proceeding and provide such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification following the final disposition of such Proceeding. Indemnitee’s failure to notify the Company will not relieve the Company from any obligation it may have to Indemnitee under this Agreement, and any delay in so notifying the Company will not constitute a waiver by Indemnitee of any rights under this Agreement. The Secretary of the Company will, promptly upon receipt of such a request for indemnification or advancement, advise the Board in writing that Indemnitee has requested indemnification or advancement.
(b) The Company will be entitled to participate in the Proceeding at its own expense.
Section 12. Procedure Upon Application for Indemnification.
(a) Unless a Change of Control has occurred, the determination of Indemnitee’s entitlement to indemnification will be made:
i. by a majority vote of the Disinterested Directors, even though less than a quorum of the Board;
ii. by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board;
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iii. if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by written opinion provided by Independent Counsel selected by the Board; or
iv. if so directed by the Board, by the shareholders of the Company.
(b) If a Change in Control has occurred, the determination of Indemnitee’s entitlement to indemnification will be made by written opinion provided by Independent Counsel selected by Indemnitee (unless Indemnitee requests such selection be made by the Board)
(c) The party selecting Independent Counsel pursuant to subsection (a)(iii) or (b) of this Section 12 will provide written notice of the selection to the other party. The notified party may, within ten (10) days after receiving written notice of the selection of Independent Counsel, deliver to the selecting party a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 of this Agreement, and the objection will set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected will act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or the applicable court or tribunal has determined that such objection is without merit. If, within thirty (30) days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section 11(a) hereof and the final disposition of the Proceeding, Independent Counsel has not been selected or, if selected, any objection to has not been resolved, either the Company or Indemnitee may petition the Singapore International Arbitration Centre for the appointment as Independent Counsel of a person selected by such court or tribunal or by such other person as such court or tribunal designates. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 14(a) of this Agreement, Independent Counsel will be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).
(d) Indemnitee will cooperate with the person, persons or entity making the determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. The Company will advance and pay any Expenses incurred by Indemnitee in so cooperating with the person, persons or entity making the indemnification determination irrespective of the determination as to Indemnitee’s entitlement to indemnification and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing of the determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied and providing a copy of any written opinion provided to the Board by Independent Counsel.
(e) If it is determined that Indemnitee is entitled to indemnification, the Company will make payment to Indemnitee within thirty (30) days after such determination.
Section 13. Presumptions and Effect of Certain Proceedings.
(a) In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination will, to the fullest extent not prohibited by law, presume Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 11(a) of this Agreement, and the Company will, to the fullest extent not prohibited by law, have the burden of proof to overcome that presumption. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, will be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct.
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(b) If the determination of the Indemnitee’s entitlement to indemnification has not made pursuant to Section 12 within sixty (60) days after the later of (i) receipt by the Company of Indemnitee’s request for indemnification pursuant to Section 11(a) and (ii) the final disposition of the Proceeding for which Indemnitee requested Indemnification (the “Determination Period”), the requisite determination of entitlement to indemnification will, to the fullest extent not prohibited by law, be deemed to have been made and Indemnitee will be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law or the Charter. The Determination Period may be extended for a reasonable time, not to exceed an additional thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, the Determination Period may be extended an additional fifteen (15) days if the determination of entitlement to indemnification is to be made by the shareholders pursuant to Section 12(a)(iv) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, will not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that Indemnitee’s conduct was unlawful.
(d) For purposes of any determination of good faith, Indemnitee will be deemed to have acted in good faith if Indemnitee acted based on the records or books of account of the Company, its subsidiaries, or an Enterprise, including financial statements, or on information supplied to Indemnitee by the directors or officers of the Company, its subsidiaries, or an Enterprise in the course of their duties, or on the advice of legal counsel for the Company, its subsidiaries, or an Enterprise or on information or records given or reports made to the Company or an Enterprise by an independent certified public accountant or by an appraiser, financial advisor or other expert selected with reasonable care by or on behalf of the Company, its subsidiaries, or an Enterprise. Further, Indemnitee will be deemed to have acted in a manner “not opposed to the best interests of the Company,” as referred to in this Agreement if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan. The provisions of this Section 13(d) is not exclusive and does not limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.
(e) The knowledge and/or actions, or failure to act, of any director, officer, trustee, partner, managing member, fiduciary, agent or employee of the Enterprise may not be imputed to Indemnitee for purposes of determining Indemnitee’s right to indemnification under this Agreement.
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Section 14. Remedies of Indemnitee.
(a) Indemnitee may commence Proceedings against the Company to obtain indemnification or advancement of Expenses provided by this Agreement in the event that (i) a determination is made pursuant to Section 12 of this Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) the Company does not advance Expenses pursuant to Section 10 of this Agreement, (iii) the determination of entitlement to indemnification is not made pursuant to Section 12 of this Agreement within the Determination Period, (iv) the Company does not indemnify Indemnitee pursuant to Section 5 or 6 or the second to last sentence of Section 12(d) of this Agreement within thirty (30) days after receipt by the Company of a written request therefor, (v) the Company does not indemnify Indemnitee pursuant to Section 3, 4, 7 or 8 of this Agreement within thirty (30) days after a determination has been made that Indemnitee is entitled to indemnification, or (vi) in the event that the Company or any other person takes or threatens to take any action to declare this Agreement void or unenforceable, or institutes any litigation or other action or Proceeding designed to deny, or to recover from, the Indemnitee the benefits provided or intended to be provided to the Indemnitee hereunder. Alternatively, Indemnitee, at Indemnitee’s option, or the Company, at the Company’s option, may seek an award in arbitration in accordance with Section 25. Indemnitee must commence such Proceeding seeking an adjudication or an award in arbitration within one hundred and eighty (180) days following the date on which Indemnitee first has the right to commence such Proceeding pursuant to this Section 14(a); provided, however, that the foregoing clause does not apply in respect of a Proceeding brought by Indemnitee to enforce Indemnitee’s rights under Section 5 of this Agreement. Neither the Company or Indemnitee will oppose the other’s right to seek any such adjudication or award in arbitration.
(b) If a determination is made pursuant to Section 12 of this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 14 will be conducted in all respects as a de novo trial, or arbitration, on the merits and Indemnitee may not be prejudiced by reason of that adverse determination. In any judicial proceeding or arbitration commenced pursuant to this Section 14 the Company will have the burden of proving Indemnitee is not entitled to indemnification or advancement of Expenses, as the case may be, and will not introduce evidence of the determination made pursuant to Section 12 of this Agreement.
(c) If a determination is made pursuant to Section 12 of this Agreement that Indemnitee is entitled to indemnification, the Company will be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this Section 14, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law or the Charter.
(d) The Company is, to the fullest extent not prohibited by law, precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Section 14 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and will stipulate in any such court or before any such arbitrator that the Company is bound by all the provisions of this Agreement.
(e) It is the intent of the Company that, to the fullest extent permitted by law, the Indemnitee not be required to incur legal fees or other Expenses associated with the interpretation, enforcement or defense of Indemnitee’s rights under this Agreement by litigation or otherwise because the cost and expense thereof would substantially detract from the benefits intended to be extended to the Indemnitee hereunder. The Company, to the fullest extent permitted by law, will (within thirty (30) days after receipt by the Company of a written request therefor) advance to Indemnitee such Expenses which are incurred by Indemnitee in connection with any action concerning this Agreement, Indemnitee’s right to indemnification or advancement of Expenses from the Company, or concerning any directors’ and officers’ liability insurance policies maintained by the Company, and will indemnify Indemnitee against any and all such Expenses unless the court determines that each of the Indemnitee’s claims in such action were made in bad faith or were frivolous or are prohibited by law or the Charter.
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Section 15. Non-exclusivity; Survival of Rights; Insurance; Subrogation.
(a) The indemnification and advancement of Expenses provided by this Agreement are not exclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the Charter, any agreement, a vote of shareholders or a resolution of directors, or otherwise. The indemnification and advancement of Expenses provided by this Agreement may not be limited or restricted by any amendment,alteration or repeal of this Agreement in any way with respect to any action taken or omitted by Indemnitee in Indemnitee’s Corporate Status occurring prior to any amendment, alteration or repeal of this Agreement. To the extent that a change in Cayman Islands law, whether by statute or judicial decision, permits greater indemnification or advancement of Expenses than would be afforded currently under the Charter or this Agreement, it is the intent of the parties hereto that Indemnitee enjoy by this Agreement the greater benefits so afforded by such change. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy is cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, will not prevent the concurrent assertion or employment of any other right or remedy.
(b) The Company hereby acknowledges that Indemnitee may have certain rights to indemnification, advancement of Expenses and/or insurance provided by one or more other Persons with whom or which Indemnitee may be associated. The relationship between the Company and such other Persons, other than an Enterprise, with respect to the Indemnitee’s rights to indemnification, advancement of Expenses, and insurance is described by this subsection, subject to the provisions of subsection (d) of this Section 15 with respect to a Proceeding concerning Indemnitee’s Corporate Status with an Enterprise.
i. The Company hereby acknowledges and agrees:
1) the Company is the indemnitor of first resort with respect to any request for indemnification or advancement of Expenses made pursuant to this Agreement concerning any Proceeding;
2) the Company is primarily liable for all indemnification and indemnification or advancement of Expenses obligations for any Proceeding, whether created by law, organizational or constituent documents, contract (including this Agreement) or otherwise;
3) any obligation of any other Persons with whom or which Indemnitee may be associated to indemnify Indemnitee and/or advance Expenses to Indemnitee in respect of any proceeding are secondary to the obligations of the Company’s obligations;
4) the Company will indemnify Indemnitee and advance Expenses to Indemnitee hereunder to the fullest extent provided herein without regard to any rights Indemnitee may have against any other Person with whom or which Indemnitee may be associated or insurer of any such Person; and
ii. Any indemnification or advancement of Expenses provided by any other Person with whom or which Indemnitee may be associated is specifically in excess over the Company’s obligation to indemnify and advance Expenses or any valid and collectible insurance (including but not limited to any malpractice insurance or professional errors and omissions insurance) provided by the Company.
(c) To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees or agents of the Company, the Company will obtain a policy or policies covering Indemnitee to the maximum extent of the coverage available for any such director, officer, employee or agent under such policy or policies, including coverage in the event the Company does not or cannot, for any reason, indemnify or advance Expenses to Indemnitee as required by this Agreement. If, at the time of the receipt of a notice of a claim pursuant to this Agreement, the Company has director and officer liability insurance in effect, the Company will give prompt notice of such claim or of the commencement of a Proceeding, as the case may be, to the insurers in accordance with the procedures set forth in the respective policies. The Company will thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies. Indemnitee agrees to assist the Company to cause the insurers to pay such amounts and will comply with the terms of such policies, including selection of approved panel counsel, if required.
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(d) The Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee for any Proceeding concerning Indemnitee’s Corporate Status with an Enterprise will be reduced by any amount Indemnitee has actually received as indemnification or advancement of Expenses from such Enterprise. The Company and Indemnitee intend that any such Enterprise (and its insurers) be the indemnitor of first resort with respect to indemnification and advancement of Expenses for any Proceeding related to or arising from Indemnitee’s Corporate Status with such Enterprise. The Company’s obligation to indemnify and advance Expenses to Indemnitee is secondary to the obligations the Enterprise or its insurers owe to Indemnitee. Indemnitee agrees to take all reasonably necessary and desirable action to obtain from an Enterprise indemnification and advancement of Expenses for any Proceeding related to or arising from Indemnitee’s Corporate Status with such Enterprise.
(e) In the event of any payment made by the Company under this Agreement, the Company will be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee from any Enterprise or insurance carrier. Indemnitee will execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.
Section 16. Duration of Agreement. This Agreement continues until and terminates upon the later of: (a) ten (10) years after the date that Indemnitee ceases to have a Corporate Status or (b) one (1) year after the final termination of any Proceeding then pending in respect of which Indemnitee is granted rights of indemnification or advancement of Expenses hereunder and of any Proceeding commenced by Indemnitee pursuant to Section 14 of this Agreement relating thereto. The indemnification and advancement of Expenses rights provided by or granted pursuant to this Agreement are binding upon and shall be enforceable by the parties hereto and their respective successors and assigns (including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business or assets of the Company), continue as to an Indemnitee who has ceased to be a director, officer, employee or agent of the Company or of any other Enterprise, and inure to the benefit of Indemnitee and Indemnitee’s spouse, assigns, heirs, devisees, executors and administrators and other legal representatives.
Section 17. Severability. If any provision or provisions of this Agreement is held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) will not in any way be affected or impaired thereby and remain enforceable to the fullest extent permitted by law; (b) such provision or provisions will be deemed reformed to the extent necessary to conform to applicable law and to give the maximum effect to the intent of the parties hereto; and (c) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) will be construed so as to give effect to the intent manifested thereby.
Section 18. Interpretation. Any ambiguity in the terms of this Agreement will be resolved in favor of Indemnitee and in a manner to provide the maximum indemnification and advancement of Expenses permitted by law. The Company and Indemnitee intend that this Agreement provide to the fullest extent permitted by law for indemnification and advancement in excess of that expressly provided, without limitation, by the Charter, vote of the Company shareholders or disinterested directors, or applicable law.
Section 19. Enforcement.
(a) The Company expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on it hereby in order to induce Indemnitee to serve as a director or officer of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving or continuing to serve as a director or officer of the Company.
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(b) This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject matter hereof; provided, however, that this Agreement is a supplement to and in furtherance of the Charter and applicable law, and is not a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.
Section 20. Modification and Waiver. No supplement, modification or amendment of this Agreement is binding unless executed in writing by the parties hereto. No waiver of any of the provisions of this Agreement will be deemed or constitutes a waiver of any other provisions of this Agreement nor will any waiver constitute a continuing waiver.
Section 21. Notice by Indemnitee and Defense of Claim.
(a) Indemnitee agrees promptly to notify the Company in writing upon being served with any summons, citation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder. The failure of Indemnitee to so notify the Company does not relieve the Company of any obligation which it may have to the Indemnitee under this Agreement or otherwise.
(b) The Company shall be entitled to participate in the defense of any claim relating to an indemnifiable event or to assume the defense thereof, with counsel reasonably satisfactory to Indemnitee; provided that, if Indemnitee believes, after consultation with counsel selected by Indemnitee, that (i) the use of counsel chosen by the Company to represent Indemnitee would present such counsel with an actual or potential conflict of interest, (ii) the named parties in any such claim (including any impleaded parties) include the Company or any subsidiary of the Company, on the one hand, and Indemnitee, on the other hand, and Indemnitee concludes, after consultation with counsel selected by Indemnitee, that there may be one or more legal defenses available to him that are different from or in addition to those available to the Company or any subsidiary of the Company, or (iii) any such representation by such counsel would be precluded under the applicable standards of professional conduct then prevailing, then Indemnitee shall be entitled to retain separate counsel (but not more than one law firm, plus, if applicable, local counsel in respect of any particular claim) at the Company’s expense. Notwithstanding any other provision of this Agreement, the Company shall not, without the prior written consent of Indemnitee, settle any threatened or pending indemnifiable claim which the Indemnitee is or could have been a party to unless such settlement solely involves the payment of money and includes a full and final release of the Indemnitee from all claims that are the subject matter of such indemnifiable claim. Neither the Company nor Indemnitee shall unreasonably withhold its consent to any proposed settlement; provided that Indemnitee may withhold consent to any settlement that does not provide a full and final release of Indemnitee
Section 22. Notices. All notices, requests, demands and other communications under this Agreement will be in writing and will be deemed to have been duly given if (a) delivered by hand to the other party, (b) sent by reputable overnight courier to the other party or (c) sent by facsimile transmission or electronic mail, with receipt of oral confirmation that such communication has been received:
(a) If to Indemnitee, at the address indicated on the signature page of this Agreement, or such other address as Indemnitee provides to the Company.
(b) If to the Company to:
MoneyHero Limited
70 Shenton Way
#18-15, EON Shenton
S079118, Singapore
Attention: Shaun Kraft and Laura Hannon
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or to any other address as may have been furnished to Indemnitee by the Company.
Section 23. Contribution. To the fullest extent permissible under applicable law, if the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, will contribute to the amount incurred by Indemnitee, whether for judgments, fines, penalties, excise taxes, amounts paid or to be paid in settlement and/or for Expenses, in connection with any claim relating to an indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and Indemnitee as a result of the event(s) and/or transaction(s) giving cause to such Proceeding; and/or (ii) the relative fault of the Company (and its directors, officers, employees and agents) and Indemnitee in connection with such event(s) and/or transaction(s).
Section 24. Applicable Law and Consent to Jurisdiction. This Agreement and the legal relations among the parties are governed by, and construed and enforced in accordance with, the laws of the Cayman Islands, without regard to its conflict of laws rules.
Section 25. Dispute Resolution.
(a) When a party hereto considers that there is a dispute relating to this Agreement, that party shall give all of the other parties to the dispute written notice of the dispute. The parties agree to make a good faith effort to resolve any dispute that may arise first by negotiations between the parties (and their appointed representatives). The parties (and their appointed representatives) shall meet in person or by video or audio conference at a mutually acceptable time and place within fifteen (15) days after the date of the notice of dispute and shall be entitled to representation by legal counsel at the negotiations. All negotiations shall be confidential. If the dispute has not been resolved within thirty (30) days after the date of the notice of dispute, or if a party or appointed representative of such party fails or refuses to meet within the fifteen (15) day time period specified above, either party may initiate arbitration proceedings in accordance with Section 25(b). For the avoidance of doubt, a failure to comply with the pre-arbitral dispute resolution mechanism set out in this Section 25(a) shall not be a bar to the jurisdiction of any tribunal formed pursuant to Section 25(b).
(b) Any dispute, claim, difference or controversy arising out of, relating to or having any connection with this Agreement, including any dispute as to its existence, validity, interpretation, performance, breach or termination or the consequences of its nullity and any dispute relating to any non-contractual obligations arising out of or in connection with it (for the purposes of this Section 25(b), a “Dispute”), shall be referred to and finally settled by arbitration administered by the Singapore International Arbitration Centre in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference in this Section 25(b). Capitalized terms used in this Section 25(b) which are not otherwise defined in this Agreement have the meaning given to them in the SIAC Rules:
i. The seat of the arbitration shall be Singapore.
ii. The tribunal shall consist of three (3) arbitrators. The arbitrators shall be appointed in accordance with the SIAC Rules.
iii. The language of the arbitration shall be English.
iv. The submission to arbitration in this Section 25(b) shall not be construed as an intention by the parties hereto to deprive any court or other governmental body or regulatory agency of its jurisdiction to provide interim relief or remedies. The award(s) shall be final and binding on the parties hereto, and judgment upon any award may be entered and enforced in any court having jurisdiction.
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Section 26. Third Party Rights. A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act (as amended) to enforce any term of this Agreement. Notwithstanding any other term of this Agreement, the consent of or notice to any person who is not a party to this Agreement shall not be required for any termination, rescission or agreement to any variation, waiver, assignment, novation, release or settlement under this Agreement at any time.
Section 27. Identical Counterparts. This Agreement may be executed in one or more counterparts, each of which will for all purposes be deemed to be an original but all of which together constitutes one and the same Agreement. Only one such counterpart signed by the party against whom enforceability is sought needs to be produced to evidence the existence of this Agreement.
Section 28. Headings. The headings of this Agreement are inserted for convenience only and do not constitute part of this Agreement or affect the construction thereof.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as a deed on the day and year first above written.
| MONEYHERO LIMITED |
| By: |
| Name: |
| Office: |
| WITNESSED BY: |
| Name: |
| Title: |
| Address: |
| INDEMNITEE |
| Name: |
| Address: |
| WITNESSED BY |
| Name: |
| Title: |
| Address: |
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Exhibit 4.12
EXECUTION VERSION
DATED OCTOBER 12, 2023
MONEYHERO LIMITED
DEED POLL
CONSTITUTING UP TO US$5,000,000 OF FIXED RATE UNSECURED
LOAN NOTES 2027 AND PIK NOTES
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CONTENTS
CLAUSE
| 1. |
Interpretation | 1 | ||||
| 2. |
Amount and Description of Notes | 9 | ||||
| 3. |
Status of Notes | 9 | ||||
| 4. |
Use of Proceeds | 9 | ||||
| 5. |
Repayment of Notes | 9 | ||||
| 6. |
Prepayment of Notes | 9 | ||||
| 7. |
Interest | 10 | ||||
| 8. |
Certificates | 10 | ||||
| 9. |
The Register | 10 | ||||
| 10. |
Notes Not to Be Quoted | 11 | ||||
| 11. |
No Withholding or Set-off | 11 | ||||
| 12. |
Meetings of Noteholders | 11 | ||||
| 13. |
Variation | 11 | ||||
| 14. |
Enforcement and Third Party Rights | 12 | ||||
| 15. |
Notices | 12 | ||||
| 16. |
Governing Law and Jurisdiction | 12 | ||||
| 17. |
Most Favoured Nation | 12 | ||||
| SCHEDULE 1 FORM OF CERTIFICATE | 13 | |||||
| SCHEDULE 2 THE CONDITIONS | 15 | |||||
| Part 1. Interest, repayment and redemption |
15 | |||||
| 1. |
Interest | 15 | ||||
| 2. |
Repayment of Principal and Unpaid Interest | 15 | ||||
| 3. |
Time of Payment | 15 | ||||
| 4. |
Event of Default | 16 | ||||
| 5. |
Action on Redemption | 16 | ||||
| 6. |
Tax Gross-Up | 17 | ||||
| Part 2. Transfer provisions and other matters |
19 | |||||
| SCHEDULE 3 MEETINGS OF THE NOTEHOLDERS | 22 | |||||
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THIS DEED is dated October 12, 2023
PARTY
MONEYHERO LIMITED, an exempted company duly incorporated under the laws of Cayman Islands with registration number 398798 and having its registered office at Walkers Corporate Limited, 190 Elgin Avenue, George Town, grand Cayman KY1-9008, Cayman Islands (the “Company”).
BACKGROUND
By exercising of the powers conferred on them by the Articles, the Directors of the Company have, by a resolution passed on October 12, 2023, authorised the issuance of up to US$5,000,000 of fixed rate unsecured loan notes and have agreed to constitute them in the following manner.
AGREED TERMS
| 1. | INTERPRETATION |
| 1.1 | The definitions and rules of interpretation in this clause apply in this Deed. |
Accounting Principles: means:
| (a) | in respect of a Group Company incorporated in a jurisdiction which has generally accepted accounting principles, standards and practices, the generally accepted accounting principles, standards and practices in that jurisdiction, including (where applicable) IFRS; or |
| (b) | in respect of the consolidated Group or a Group Company incorporated in a jurisdiction which does not have generally accepted accounting principles, standards and practices, IFRS. |
Affiliate: means (i) with respect to a Person other than a natural person, any other Person that, directly or indirectly, Controls, is Controlled by or is under common Control with such Person and (ii) in the case of a Person that is a natural person, any other Person that is directly or indirectly Controlled by such Person or is a Relative of such Person or any Person that is directly or indirectly Controlled by such Relative.
Articles: means the articles of association of the Company, as amended or supplemented.
Business: Company and its Subsidiaries’ business of operating a web or application-based marketplace, community, brokerage or aggregator service specialized in fintech and financial services and comparing banking, insurance, telecommunication, utility or other personal finance products and/or providing platform- or software-as-a-service solutions.
Business Day: means a day (other than a Saturday or Sunday) on which banks are open for general business in Hong Kong, Singapore and the Cayman Islands and (in relation to any date for payment of principal or interest on the Notes) New York City.
Certificate: means a certificate for Notes in the form (or substantially in the form) set out in Schedule 1.
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Company Competitor: means any marketplace, brokerage or aggregator for financial services, including banking, brokerage and insurance companies, telecommunication companies, utility providers as well as companies that compare banking, brokerage, insurance, telecommunication or utility products, or compare any other products that Company or its Subsidiaries are comparing from time to time, unless the Directors otherwise determine.
Conditions: means the conditions attaching to the Notes, as set out in Schedule 2 (as amended from time to time in accordance with this Deed).
Control: with respect to a Person, (a) direct or indirect ownership or control of more than 50% of the outstanding voting securities of such Person; (b) the ability to appoint or remove a majority of the directors of the board (or equivalent governing body) of such Person; (c) the right to control the votes at a meeting of the board of directors (or equivalent governing body) of such Person; or (d) the ability to direct or cause the direction of the management and policies of such Person (whether by contract or howsoever arising); and the terms “Controls”, “Controlling; and “Controlled” shall be construed accordingly.
Cross Default Event: means each of the following events or circumstances:
| (a) | any Financial Indebtedness of any Group Company is not paid when due nor within any originally applicable grace period; |
| (b) | any creditor of any Group Company becomes entitled to declare any Financial Indebtedness of such Group Company due and payable prior to its specified maturity as a result of an event of default (however described), or any Financial Indebtedness of any Group Company is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described); and |
| (c) | any commitment for any Financial Indebtedness of any Group Company is cancelled or suspended by a creditor of any Group Company as a result of an event of default (however described), |
provided that, in each case, no Financial Indebtedness (i) owed by one Group Company to another Group Company; (ii) covered (or to the extent supported) by a bank guarantee, letter of credit or other similar instrument (but only so long as the entity providing the counter-indemnity under such instrument is not in default under the provisions of such bank guarantee, letter of credit or other similar instruments); or (iii) which has ceased to be due and payable or on demand or in respect of which the relevant creditor is no longer entitled to declare it due and payable, will be taken into account when calculating whether a Cross Default Event has occurred.
Directors: means the board of directors of the Company, or, subject to the Articles, a duly authorised committee of that board, for the time being.
Event of Default: means the occurrence of any of the following events or circumstances:
| (a) | an Insolvency Event; |
| (b) | the Company materially breaches any provision of this Deed (other than those referred to in paragraph (e) below), provided that no Event of Default will occur under this sub- paragraph (b) if the material breach is capable of remedy and it is remedied within 20 Business Days of a Noteholder giving notice to the Company to remedy such material breach or the Company becoming aware of such material breach, whichever is the earlier. For the purposes of this paragraph (b), the Company shall not be regarded as becoming aware of the occurrence of a material breach of any provision of this Deed unless and until it is within the actual knowledge of an executive director, chief executive officer (or equivalent), the chief financial officer, or any other member of the management team of the Company who is actually aware of such provisions of this Deed; |
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| (c) | a Cross Default Event, provided that no Event of Default will occur under this paragraph (c) if (i) the amount of Financial Indebtedness or (ii) the commitment for Financial Indebtedness falling within paragraphs (a) to (c) (inclusive) of the definition of “Cross Default Event” above is, in each case, less than the Threshold Amount in aggregate; |
| (d) | the Group (taken as a whole) ceases to carry on all, or substantially all, of its business; |
| (e) | the Company does not pay on the due date any amount payable pursuant to this Deed in the manner and at the place and in the currency in which it is expressed to be payable; or |
| (f) | an event or circumstance occurs which has a Material Adverse Effect. |
Excluded Finance Lease: means any lease or hire purchase contract which would, in accordance with the Accounting Principles in force prior to 1 January 2019, have been treated as operating lease.
Financial Indebtedness: means any indebtedness for or in respect of (without double counting):
| (a) | moneys borrowed; |
| (b) | any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent; |
| (c) | any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument (but, in each case, excluding any Trade Instruments); |
| (d) | the amount of any liability in respect of any Finance Lease; |
| (e) | receivables sold or discounted (other than any receivables to the extent they are sold or discounted on a non-recourse basis or, if sold on a limited recourse basis, to the extent of such recourse only); |
| (f) | any amount raised under any other transaction (including any forward sale or purchase agreement) required to be accounted for as a borrowing in accordance with Accounting Principles; |
| (g) | any Treasury Transaction (and, when calculating the value of any Treasury Transaction, only the marked to market value shall be taken into account, provided that if any actual amount is due as a result of the termination or close-out of that Treasury Transaction, only that actual due amount shall be taken into account); |
| (h) | shares which are expressed to be redeemable on or prior to the date falling six months after the Redemption Date (provided that shares redeemable only at the option of the issuer will be treated as indebtedness only if not treated as equity by Accounting Principles); |
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| (i) | any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution (excluding any Trade Instruments) in respect of an underlying liability of an entity which liability would fall within one of the other sub-paragraphs of this definition; |
| (j) | the amount of any liability in respect of any credit for goods and services raised in the ordinary course of day-to-day trading outstanding for more than 120 days after its customary date of payment (unless being contested in good faith and in accordance with the relevant procedures); or |
| (k) | the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (j) of this definition. |
Finance Lease: means any lease or hire purchase contract which would, in accordance with the Accounting Principles, be treated as a finance or capital lease (other than an Excluded Finance Lease).
Group: means collectively, the Company and each of the Subsidiaries.
Group Company: means each of the Company and the Subsidiaries.
IFRS: means international accounting standards within the meaning of IAS Regulation 1606/2002 to the extent applicable to the relevant Group Company’s financial statements.
Insolvency Event: means each of the following events or circumstances:
| (a) | any Group Company: |
| (i) | is, or is presumed, deemed or is declared for the purposes of any applicable law to be, unable or admits inability to pay its debts as they fall due (in each case other than solely as a result of its balance sheet liabilities exceeding its balance sheet assets); |
| (ii) | suspends or threatens to suspend making payments on any of its debts; or |
| (iii) | by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors (excluding any Noteholder in its capacity as such) with a view to rescheduling any of its indebtedness; |
| (b) | a moratorium is declared in respect of any Financial Indebtedness of any Group Company; or |
| (c) | any formal corporate action or formal legal proceedings is taken in for: |
| (i) | the suspension of payments, a moratorium of any indebtedness, winding up, dissolution, administration, striking off or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any Group Company and except in each case which is contested by that Group Company in good faith and dismissed within 15 Business Days; |
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| (ii) | a composition, assignment or arrangement with any creditor of any Group Company in relation to a liability or debt of more than the Threshold Amount unless the relevant proceedings are being contested in good faith and are shown to be frivolous or vexatious and discharged within 15 Business Days; or |
| (iii) | the appointment of a liquidator, receiver, administrator, administrative receiver, compulsory manager or other similar officer in respect of any Group Company or any of its assets except any application made to the court for the purposes of commencing winding up proceedings which is frivolous or vexatious and contested by that Group Company in good faith and dismissed within 15 Business Days, |
(provided always that “Group Company” for the purposes of this definition shall not include PT MoneyGuru Indonesia, Compargo Malaysia Sdn Bhd, MoneyGuru Co. Ltd, MoneyGuru Insurance Broker Co. Ltd and/or MoneyGuru Services Co. Ltd).
Interest Date: means the date of each of the first, second, third, fourth anniversaries of the date of this Deed and thereafter, the Redemption Date.
Interest Period: means initially, the period commencing on the Issue Date up to but excluding the first Interest Date and thereafter, each subsequent period from and including that or any subsequent Interest Date up to but excluding the next Interest Date.
Interest Rate: means 25.00 per cent. per annum;
Issue Date: means, in respect of any Note, the first day on which such Note is issued pursuant to this Deed.
Major Noteholder: means PCCW Media International Limited.
Material Adverse Effect: means any event or circumstance which, in each case after taking into account all mitigating factors or circumstances including any warranty, indemnity or other resources available to the Group or right of recourse against any third party with respect to the relevant event or circumstance and any obligation of any person in force to provide any additional equity investment:
| (a) | has a material adverse effect on: |
| (i) | the consolidated business, assets or financial condition of the Group (taken as a whole); or |
| (ii) | the ability of the Company to perform its payment obligations with respect to this Deed, the Notes and all related documents in relation thereto (together, the “Documents”); |
| (b) | subject to the Reservations, affects the validity or the enforceability of the whole or any material part of any of the Documents or any material rights or remedies of any Noteholder under the Documents in a manner which is materially adverse to the interests of the Noteholders under the Documents taken as a whole and if capable of remedy, is not remedied within 20 Business Days of the Company becoming aware of the issue or being given notice of the issue by a Noteholder. |
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Notes: means the fixed rate unsecured loan notes 2027 together with any PIK Notes constituted by this Deed.
Noteholder: means a Person for the time being entered in the Register as the holder of any Notes in accordance with Clause 9.2.
Permitted Transferee: means with respect to any Noteholder, any Person other than (i) the Company or any of its Subsidiaries or (ii) any Prohibited Transferee (whether or not an Affiliate of the transferring Noteholder).
Person: means any individual, corporation, partnership, limited partnership, proprietorship, association, limited liability company, firm, trust, estate or other enterprise or entity.
PIK Notes: means the PIK Notes issued by the Company in accordance with paragraph 1 of Part 1 of Schedule 2.
Politically Exposed Person: means a current or former senior official in the executive, legislative, administrative, military or judicial branches of a Government Authority (whether elected or not), a current or former senior official of a major political party, or a current or former senior executive of a government-owned commercial enterprise. In addition, a Politically Exposed Person includes any corporation, business or other entity that has been formed by, or for the benefit of, a Politically Exposed Person.
Prepayment Notice: has the meaning given to it in Clause 6(b).
Principal Amount: means the principal amount of Notes for the time being issued and outstanding.
“Prohibited Transferee” means (i) any Company Competitor; (ii) any current or potential future provider of Company within the insurance, retail banking or telecommunications industry; (iii) any Person whose involvement or investment in the Business is or could reasonably be, as determined by the Directors, damaging to the reputation of the Business, and in each case of (i) and (ii), unless otherwise determined by the Directors; or (iv) any person who (a) is named on (1) lists promulgated by the United Nations Security Council or its committees pursuant to resolutions issued under Chapter VII of the United Nations Charter or (2) the World Bank Listing of Ineligible Firms (see www.worldbank.org/debarr); (b) is targeted by or subject to any sanction administered or enforced by the Office of Foreign Assets Control of the US Department of the Treasury, the U.S. Department of State or under a UN Security Council Resolution; or (c) is a Politically Exposed Person.
Redemption Date: means 14 October 2027 (or such later date that is agreed, in writing, between the Company and the Major Noteholder).
Register: means a register of Noteholders referred to in, and kept and maintained in accordance with, Clause 9.
Registered Office: means the registered office of the Company from time to time.
Relative: of a natural person shall mean the siblings, spouse and children of such natural person and any parent or siblings of such natural person or spouse.
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Reservations: means:
| (a) | the principle that equitable remedies are remedies which may be granted or refused at the discretion of the court, the principle of reasonableness and fairness, the limitation of enforcement by laws relating to bankruptcy, insolvency, liquidation, reorganisation, court schemes, moratoria, administration and other laws generally affecting the rights of creditors and secured creditors; |
| (b) | the time barring of claims under applicable limitation laws and defences of acquiescence, set- off or counterclaim and the possibility that an undertaking to assume liability for or to indemnify a person against non-payment of stamp duty may be void; |
| (c) | the principle that in certain circumstances security granted by way of fixed charge may be recharacterised as a floating charge or that security purported to be constituted as an assignment may be recharacterised as a charge; |
| (d) | the principle that additional interest imposed pursuant to any relevant agreement may be held to be unenforceable on the grounds that it is a penalty and thus void; |
| (e) | the principle that a court may not give effect to an indemnity for legal costs incurred by an unsuccessful litigant; |
| (f) | the principle that the creation or purported creation of security over any contract or agreement which is subject to a prohibition on transfer, assignment or charging may be void, ineffective or invalid and may give rise to a breach of the contract or agreement over which security has purportedly been created; |
| (g) | similar principles, rights and defences under the laws of any relevant jurisdiction; and |
| (h) | any other general principles which are customarily set out as qualifications or reservations (howsoever described) as to matters of law in the legal opinions customarily delivered to lenders in connection with the entry into loan instruments similar to the Notes. |
Shares: means the shares in the capital of the Company.
Subsidiary: with respect to any specified Person, any other Person Controlled by such specified Person.
Threshold Amount: means US$5,000,000.
Trade Instruments: means any performance bonds, advance payment bonds or documentary letters of credit issued in respect of the obligations of any Group Company arising in the ordinary course of day-to-day business of that Group Company.
Treasury Transaction: means any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price.
| 1.2 | Clause, Schedule and paragraph headings shall not affect the interpretation of this Deed. |
| 1.3 | References to clauses, paragraphs and Schedules are to the clauses and paragraphs of and Schedules to this Deed and references to paragraphs are to paragraphs of the relevant Schedule. |
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| 1.4 | The Schedules (including, for the avoidance of doubt, the Conditions) form part of this Deed and shall have effect as if set out in full in the body of this Deed. Any reference to this Deed includes the Schedules. |
| 1.5 | All references to this Deed, the Conditions or to any other agreement or document referred to in this Deed or the Conditions is a reference to this Deed (which shall include the Conditions), the Conditions or such other agreement or document as varied or novated in accordance with their terms from time to time. |
| 1.6 | Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. |
| 1.7 | Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders. |
| 1.8 | A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. |
| 1.9 | A reference to writing or written includes e-mail (unless otherwise expressly provided in this Deed). |
| 1.10 | Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms. |
| 1.11 | Where the context permits, other and otherwise are illustrative and shall not limit the sense of the words preceding them. |
| 1.12 | A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. |
| 1.13 | A reference to a statute or statutory provision shall include all subordinate legislation made from time to time. |
| 1.14 | Any obligation on a Person not to do something includes an obligation not to allow that thing to be done. |
| 1.15 | A reference in this Deed to: |
| (a) | any Notes being outstanding means such Notes as are in issue, not redeemed and not cancelled at the relevant time; |
| (b) | the assets of any Person shall be construed as a reference to all or any part of its business, undertaking, property, assets, revenues (including any right to receive revenues) and uncalled capital; |
| (c) | indebtedness shall be construed as a reference to any obligation for the payment or repayment of money, whether as principal or as surety and whether present or future, actual or contingent; |
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| (d) | repayment includes (as the context requires) prepayment and redemption and vice versa, and the words prepay, repay, redeem, repayable, redeemed, prepaid and repaid shall be construed accordingly; |
| (e) | US$ or US dollars denotes the lawful currency of the United States of America; and |
| (f) | tax shall be construed so as to include any present and future tax, levy, impost, deduction, withholding, duty or other charge of a similar nature (including, without limitation, any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same). |
| 1.16 | An Event of Default is Continuing if it has not been waived. |
| 1.17 | Unless the context otherwise requires, a reference to the Notes includes a reference to all and/or any of the Notes. |
| 2. | AMOUNT AND DESCRIPTION OF NOTES |
| 2.1 | The aggregate Principal Amount of the Notes is limited to US$5,000,000 together with a sum equal to any PIK Notes issued and outstanding under this Deed from time to time. |
| 2.2 | The Notes shall be known as fixed rate unsecured loan notes 2027 and PIK Notes and shall be issued by the Company in integral multiples of US$1.00. |
| 2.3 | PIK Notes shall be issued in the amounts required under Condition 1. |
| 3. | STATUS OF NOTES |
| 3.1 | The Notes when issued and outstanding shall rank pari passu, equally and ratably, without discrimination or preference among themselves and as unsecured obligations of the Company. |
| 3.2 | The Notes shall be issued and held subject to and with the benefit of the provisions of this Deed (including the Conditions). All such provisions shall be binding on the Company and the Noteholders and all Persons claiming through or under them respectively and shall ensure for the benefit of all Noteholders. |
| 4. | USE OF PROCEEDS |
| 4.1 | The proceeds of all subscriptions for the Notes shall be used to fund the Company’s working capital and general corporate purposes. |
| 5. | REPAYMENT OF NOTES |
| 5.1 | The Notes shall be repaid in accordance with Part 1 of Schedule 2. |
| 5.2 | All Notes repaid by the Company shall be automatically and immediately cancelled and shall not be reissued. |
| 6. | PREPAYMENT OF NOTES |
| (a) | The Company shall prepay the Notes (or the relevant Notes only) in accordance with Part 1 of Schedule 2 if it is or becomes unlawful for the Notes (or the relevant Notes only) to remain outstanding, as confirmed by a written legal opinion (addressed to the Company and furnished by the Company to the Noteholders upon request) from reputable outside legal counsel to the Company. |
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| 7. | INTEREST |
Until the Notes are repaid by the Company in accordance with the provisions of this Deed, interest shall accrue and be paid on the Principal Amount of the Notes outstanding at the rate and in the manner provided in Part 1 of Schedule 2.
| 8. | CERTIFICATES |
| 8.1 | Each Noteholder (or the joint holders of any Notes) shall be entitled to receive, without charge, one Certificate for the Notes registered in his (or their) names. |
| 8.2 | Where any Notes are held jointly, the Company shall not be bound to issue more than one Certificate in respect of such Notes and delivery of a Certificate to the Person who is first named in the Register as Noteholder shall be sufficient delivery to all joint holders of such Notes. |
| 8.3 | Each Certificate shall: |
| (a) | bear a denoting number; |
| (b) | be issued and executed by the Company as a deed in the form (or substantially in the form) set out in Schedule 1; and |
| (c) | have the Conditions endorsed on or attached to it. |
| 8.4 | In the case of repayment or transfer of part only of a Noteholder’s Notes, the Certificate(s) in respect of such Notes shall be either: |
| (a) | endorsed with a memorandum of the nominal amount of the Notes so redeemed or transferred and the date of such repayment or transfer; or |
| (b) | cancelled and (without charge) replaced by a new Certificate for the balance of the Principal Amount of the Notes not then repaid or transferred. |
| 9. | THE REGISTER |
| 9.1 | The Company shall keep and maintain the Register at the Registered Office or at such other place as the Company may from time to time appoint for this purpose and notify to the Noteholders. |
| 9.2 | There shall be entered in the Register: |
| (a) | the names and addresses of the holders of the Notes for the time being; |
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| (b) | the Principal Amount of the Notes held by each Noteholder; |
| (c) | the date of issue of each of the Notes and the date on which the name of each Noteholder is entered in the Register in respect of the Notes registered in his (or their) name; |
| (d) | the serial number of each Certificate issued and the date of its issue; and |
| (e) | the date(s) of all transfers and changes of ownership of any of the Notes. |
| 9.3 | The Company shall promptly amend the Register to record any change to the name or address of a Noteholder that is notified in writing to the Company by that Noteholder. |
| 9.4 | The Noteholders or any of them, or any Person authorised by a Noteholder, shall be at liberty at all reasonable times during office hours to inspect the Register, to take copies of or extracts from it or any part of it and to request delivery of a copy of the current Register to a Noteholder via email. |
| 9.5 | Every Noteholder shall be recognised by the Company as entitled to his (or their) Notes free from any equity, set-off or cross-claim against the original or an intermediate holder of such Notes. |
| 10. | NOTES NOT TO BE QUOTED |
No application has been, or shall be, made to any investment exchange for permission to deal in, or for an official or other listing or quotation, in respect of the Notes.
| 11. | NO WITHHOLDING OR SET-OFF |
Payments of principal and interest in respect of the Notes shall be paid by the Company to the Noteholders in accordance with the Conditions without any deduction or withholding (whether in respect of any set-off, counterclaim or otherwise whatsoever) unless any deduction or withholding is required by law.
| 12. | MEETINGS OF NOTEHOLDERS |
Meetings of the Noteholders shall be convened and held in accordance with the provisions of Schedule 3.
| 13. | VARIATION |
| 13.1 | Notwithstanding any power exercisable by the Noteholders by Special Resolution as set out in paragraph 17 of Schedule 3 of this Deed, all or any of the rights for the time being attached to the Notes or other provisions of this Deed (including the Conditions) may from time to time (whether or not the Company is being wound up) only be altered or abrogated with the prior written consent of the Company and the Major Noteholder. Any such alteration or abrogation shall be effected by way of deed poll executed by the Company and expressed to be supplemental to this Deed. |
| 13.2 | The Company shall, within 15 Business Days of making any variation pursuant to this Clause 13, send to each Noteholder (or, in the case of joint holders, to the Noteholder named first in the Register) a copy of the deed poll (or other document) effecting the variation. |
| 13.3 | Any modification, alteration or abrogation made pursuant to Clause 13.1 shall be binding on all the Noteholders. |
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| 14. | ENFORCEMENT AND THIRD PARTY RIGHTS |
| 14.1 | From and after the date of this Deed, and for so long as any Notes are outstanding or any amount is payable or repayable by the Company in respect of the Notes, the Company undertakes to duly perform and observe its obligations under this Deed. |
| 14.2 | No Person other than the Company and the Noteholders shall have any rights under the Contracts (Rights of Third Parties) Ordinance (Cap. 623) (the “Third Parties Ordinance”) to enforce or to enjoy the benefit of any term of this Deed. |
| 14.3 | This Deed shall operate for the benefit of all Noteholders and each Noteholder shall be entitled to sue for the performance or observance of the provisions of this Deed in his own right so far as his own holding of Notes is concerned. |
| 15. | NOTICES |
Any notice to be given to or by any Noteholder(s) for the purposes of this Deed shall be given in accordance with the provisions of paragraphs 8 to 10 (inclusive) of Part 2 of Schedule 2.
| 16. | GOVERNING LAW AND JURISDICTION |
| 16.1 | This Deed and the Notes and any dispute or claim arising out of or in connection with any of them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the law of Hong Kong. |
| 16.2 | Any dispute, controversy, difference or claim arising out of or relating to this Deed and the Notes, 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 finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (“HKIAC”) under the HKIAC Administered Arbitration Rules in force when the Notice of Arbitration is submitted. The law of this arbitration clause shall be that stated in Clause 16.1. The seat of this arbitration shall be Hong Kong. The number of arbitrators shall be three. The arbitration proceedings shall be conducted in English. |
| 16.3 | Notwithstanding the foregoing, nothing in this Clause shall prevent any party seeking any interim or interlocutory relief in aid of any arbitration or in connection with enforcement proceedings from any court of competent jurisdiction. |
| 17. | MOST FAVOURED NATION |
In the event the Company issues any additional securities on terms more favourable than those contained in this Deed while the Notes remain outstanding, the Company shall promptly, and in any event within five Business Days after the date of issuance of such additional securities, give notice to the Noteholders of such issuance and shall provide equivalent rights to the Noteholders with respect to the Notes (with appropriate adjustment for economic terms or other contractual rights acceptable to the Major Noteholder).
This Deed has been executed as a deed and is delivered and takes effect on the date stated at the beginning of it.
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Schedule 1 Form of Certificate
Certificate No.: [NUMBER]
Date of Issue: [DATE]
Amount: US$[AMOUNT]
MONEYHERO LIMITED
FIXED RATE UNSECURED LOAN NOTES 2027 AND PIK NOTES
Created and issued pursuant to a resolution of the board of directors of MoneyHero Limited (the “Company”) passed on [DATE].
THIS IS TO CERTIFY THAT [NAME OF NOTEHOLDER] is the registered holder (“Noteholder”) of US$[AMOUNT] of the fixed rate unsecured loan notes 2027 and PIK Notes constituted by a Deed entered into by the Company on [DATE] (“Deed”). Such Notes are issued with the benefit of and subject to the provisions contained in the Deed and the Conditions endorsed on or annexed to this Certificate.
Notes:
| 1. | The Notes are repayable and shall bear interest in accordance with the Conditions. |
| 2. | This Certificate (or an indemnity in respect of lost or destroyed Certificate) must be surrendered to the Company before any transfer or repayment, whether of the whole or any part of the Notes comprised in it, can be registered or effected, or any new certificate issued in exchange. |
| 3. | Any change of address of the Noteholder(s) must be notified in writing signed by the Noteholder(s) to the Company at the Registered Office. |
| 4. | Subject to the Conditions, the Notes are transferable in amounts and in integral multiples of US$[AMOUNT]. |
| 5. | No transfer of any part of the Notes represented by this Certificate can be registered without production of this Certificate (or an indemnity in respect of lost or destroyed Certificate). |
| 6. | Words and expressions defined in the Deed shall bear the same meaning in this Certificate and in the Conditions. |
| 7. | The Notes and any dispute or claim arising out of or in connection with any of them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the law of Hong Kong. |
| 8. | Any dispute, controversy, difference or claim arising out of or relating to the Notes, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to the Notes shall be finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (“HKIAC”) under the HKIAC Administered Arbitration Rules in force when the Notice of Arbitration is submitted. The law of this arbitration clause shall be that stated in paragraph 7. The seat of this arbitration shall be Hong Kong. The number of arbitrators shall be three. The arbitration proceedings shall be conducted in English. |
| 9. | A copy of the Deed is available for inspection at the registered office of the Company. |
This Certificate has been executed as a deed and is delivered and takes effect on the date of issue stated at the beginning of it.
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| Executed as a deed by MONEYHERO LIMITED acting by [NAME OF FIRST DIRECTOR], a director and [NAME OF SECOND DIRECTOR OR SECRETARY], |
||
| [a director OR its secretary] | ||
|
| ||
| [SIGNATURE OF FIRST DIRECTOR] | ||
| Director | ||
|
| ||
| [SIGNATURE OF SECOND DIRECTOR OR SECRETARY] | ||
| [Director or Secretary] | ||
OR
| Executed as a deed by MONEYHERO LIMITED
acting by [[NAME OF DIRECTOR] as director]/[NAME OF AUTHORISED SIGNATORY] as authorised signatory], | ||
| [SIGNATURE OF [DIRECTOR]/[AUTHORISED SIGNATORY]] |
| |
| [Director]/[Authorised Signatory]
in the presence of: | ||
| Witness Signature: | ||
| Name: | ||
| Address: | ||
| Occupation: | ||
| Dated: [INSERT DATE] | ||
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Schedule 2 The Conditions
Part 1. Interest, repayment and redemption
| 1. | INTEREST |
| 1.1 | Interest shall accrue in arrears on the Principal Amount of each outstanding Note at the applicable Interest Rate. |
| 1.2 | Interest so accrued shall be payable on each Interest Date by the Company by way of issuance to the Noteholders of PIK Notes in the same form as the Notes and with a principal value equal to the amount of interest so accrued during the corresponding Interest Period. Such PIK Notes shall be deemed to have been issued on such Interest Date and shall themselves accrue interest at the applicable Interest Rate in accordance with these Conditions which, for the avoidance of doubt, shall also be deemed to be issued as PIK Notes. Issuance of PIK Notes under and in accordance with these Conditions shall be in full satisfaction of the interest to which such issuance relates. Promptly following the issuance of PIK Notes pursuant to this paragraph 1.2, the Company shall update the Register to reflect such issuance and deliver a Certificate with respect to such PIK Notes to the Noteholders. |
| 1.3 | Interest shall accrue daily at the Interest Rate and shall be calculated on the basis of a 365-day year and the actual number of days elapsed. |
| 1.4 | If the Company fails to pay redemption monies when due, interest shall continue to accrue on the unpaid amount at the applicable Interest Rate plus 1.00 per cent. |
| 2. | REPAYMENT OF PRINCIPAL AND UNPAID INTEREST |
| 2.1 | The Notes shall be redeemed in accordance with paragraph 2.2 below: |
| (a) | on the Redemption Date; |
| (b) | in respect of the relevant Notes only, on the date specified in the relevant Prepayment Notice; or |
| (c) | in respect of the relevant Notes only, if it is or becomes unlawful for such Notes to remain outstanding, as confirmed by a written legal opinion (addressed to the Company and furnished by the Company to the Noteholders upon request) from reputable outside legal counsel to the Company, on the date on which such event occurs. |
| 2.2 | The Company shall, subject to paragraph 5.1 of Part 1 of these Conditions, pay to each Noteholder an amount (in US dollars) equal to: (a) the aggregate Principal Amount of such outstanding Notes (for the avoidance of doubt, including the PIK Notes) held by such Noteholder; and (b) any accrued but unpaid interest. |
| 3. | TIME OF PAYMENT |
Whenever any payment of principal (or otherwise) becomes due on a day which is not a Business Day, payment shall be made on the next Business Day.
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| 4. | EVENT OF DEFAULT |
| 4.1 | The Company shall notify the Noteholders immediately if it becomes aware of the occurrence of an Event of Default. |
| 4.2 | On and at any time after the occurrence of an Event of Default which is Continuing, the Major Noteholder may by written notice to the Company declare the Notes be immediately due and payable and on receipt of such notice the Company shall, subject to paragraph 5.1 of Part 1 of these Conditions, pay to each Noteholder an amount (in US dollars) equal to: |
| (a) | the aggregate Principal Amount of such outstanding Notes (for the avoidance of doubt, including the PIK Notes) held by such Noteholder; and |
| (b) | any accrued but unpaid interest. |
| 5. | ACTION ON REDEMPTION |
| 5.1 | A Noteholder whose Note is due to be redeemed shall, not later than the due date for redemption, deliver to the Company the Certificate for the Note for cancellation (or, in the respect of lost or destroyed Certificates, an indemnity in a form satisfactory to the Company (acting reasonably)). Following delivery and against a receipt (if the Company so requires) for the moneys payable in respect of the Note, the Company shall pay to the Noteholder those moneys due to him on the due date for redemption of such Note to the account notified to the Company by the Noteholder not less than three Business Days prior to the redemption date. |
| 5.2 | If, on redemption of a Note, a Noteholder fails to deliver the Certificate for it (or an indemnity in accordance with these Conditions) or to accept payment of moneys due to him: |
| (a) | the Company shall pay the moneys due to such Noteholder into a bank account and, subject to the remainder of this paragraph 5.2, upon reasonable notice to the Company, the relevant Noteholder may request the moneys in such bank account and the Company shall procure that the moneys in such bank account are paid to the Noteholder; |
| (b) | the payment of an amount into a bank account pursuant to sub-paragraph 5.2(a) above does not constitute the Company a trustee in respect of the amount and is deemed for all purposes to be a payment to the Noteholder and such payment shall discharge the Company from all further obligations in respect of the Note; |
| (c) | the Company is not responsible for the safe custody of the amount or related interest (if any); |
| (d) | subject to paragraph (e) below, the Company is, and the Noteholder is not, entitled to interest accrued on the amount; and |
| (e) | if the amount remains unclaimed: |
| (i) | in respect of interest on a Note, after a period of five years; and |
| (ii) | in respect of the Principal Amount of a Note, after a period of ten years, |
in each case, from the date of payment of the amount into the bank account, the Noteholder ceases to be entitled to the amount and it shall then belong to the Company.
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| 5.3 | The Company shall cancel any Notes repaid, redeemed or purchased and shall not reissue them. |
| 6. | TAX GROSS-UP |
| 6.1 | All payments to be made by the Company to any Noteholder under the Notes or the Deed shall be made free and clear of and without any Tax Deduction unless it is required to make a Tax Deduction pursuant to applicable law, in which case the sum payable by it (in respect of which such Tax Deduction is required to be made) shall be increased to the extent necessary to ensure that such Noteholder receives a sum net of any deduction or withholding equal to the sum which it would have received had no such Tax Deduction been made or required to be made. |
| 6.2 | The Company shall promptly upon becoming aware that the Company must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the relevant Noteholder accordingly. Similarly, a Noteholder shall notify the Company on becoming so aware in respect of a payment payable to that Noteholder. |
| 6.3 | If the Company is required to make a Tax Deduction, it will make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law. |
| 6.4 | Within 30 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Company shall deliver to the Noteholder entitled to the payment evidence reasonably satisfactory to that Noteholder that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority. |
| 6.5 | All amounts set out or expressed to be payable to a Noteholder shall be deemed to be exclusive of any Indirect Tax. If any Indirect Tax is chargeable on any supply made by any Noteholder to the Company in connection with this Deed, the Company shall pay to that Noteholder (in addition to and at the same time as paying the consideration) an amount equal to the amount of the Indirect Tax. |
| 6.6 | Where the Company is required to reimburse or indemnify a Noteholder for any costs or expenses, the Company shall also at the same time pay and indemnify that Noteholder against all Indirect Tax incurred by that Noteholder in respect of the costs or expenses to the extent that that Noteholder reasonably determines that it is not entitled to credit or repayment in respect of the Indirect Tax. |
| 6.7 | Each party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction. Each party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction) notify the party to whom it is making the payment. |
| 6.8 | In this paragraph 6 of Part 1 of these Conditions: |
“Code” means the U.S. Internal Revenue Code of 1986.
“FATCA” means:
| (a) | sections 1471 to 1474 of the Code or any associated regulations; |
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| (b) | any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the U.S. and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or |
| (c) | any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the U.S. Internal Revenue Service, the U.S. government or any governmental or taxation authority in any other jurisdiction. |
“FATCA Deduction” means a deduction or withholding from a payment under the Notes or the Deed required by FATCA.
“Indirect Tax” means any goods and services tax, consumption tax, value added tax or any tax of a similar nature.
“Tax” means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).
“Tax Deduction” means a deduction or withholding for or on account of Tax from a payment under the Notes or the Deed, other than a FATCA Deduction.
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Part 2. Transfer provisions and other matters
| 1. | The Company shall recognise the registered holder of any Notes as the absolute owner of them and shall not (except as provided by statute or as ordered by a court of competent jurisdiction) be bound to take notice or see to the execution of any trust (whether express, implied or constructive) to which any Note may be subject. The Company shall not (except as provided by statute or as ordered by a court of competent jurisdiction) be bound to enter any notice of any trust (whether express, implied or constructive) on the register in respect of any of the Notes. |
| 2. | Neither the Notes nor any of the rights or obligations of any Noteholder hereunder may be assigned, conveyed or transferred, in whole or in part, without the Company’s prior written consent, provided that the Notes may be transferred to one or more Permitted Transferee(s) that is an Affiliate of such Noteholder (each, a “Notes Permitted Transferee”), subject to such Noteholder entering into a deed of transfer in favour of such Notes Permitted Transferee(s) in accordance with paragraphs 4 and 5 of this Part 2 of these Conditions. The rights and/or obligations of the Company under this Deed may not be assigned, by operation of law or otherwise, in whole or in part, by the Company without the prior written consent of the Major Noteholder. Subject to the foregoing, the rights and obligations of the Company and the Noteholders under the Notes shall be binding upon and benefit their respective permitted successors, assigns, heirs, administrators and transferees. |
| 3. | If, while a Notes Permitted Transferee holds any Notes, such Notes Permitted Transferee ceases to qualify as a Notes Permitted Transferee in relation to the transferor Noteholder from whom or which such Notes Permitted Transferee or any previous Notes Permitted Transferee of such transferor Noteholder received such Notes (an “Unwinding Event”), then: |
| (a) | the relevant transferor Noteholder shall forthwith notify the other Noteholders and the Company of the occurrence of such Unwinding Event; and |
| (b) | immediately following such Unwinding Event, such transferor Noteholder shall take all actions necessary to effect a transfer of all the Notes held by the relevant Notes Permitted Transferee that is no longer qualified as a Notes Permitted Transferee either back to such transferor Noteholder or, pursuant to paragraph 2 and 3 of this Part 2 of these Conditions, to another Person that qualifies as a Notes Permitted Transferee of such transferor Noteholder. |
| 4. | Each deed of transfer shall be signed by the transferor, and the transferor shall be deemed to remain the owner of the Notes to be transferred until the name of the transferee is entered in the Register in respect of such Notes. |
| 5. | Each deed of transfer shall be sent to, or left for registration at, the registered office of the Company for the time being, and shall be accompanied by the Certificate(s) for the Notes to be transferred (or an indemnity in respect of lost or destroyed Certificate). All deeds of transfer that are registered may be retained by the Company. |
| 6. | Subject always to paragraph 5 of this Part 2 of these Conditions, payment of the Principal Amount, and all accrued interest which has accrued on the Notes which has not been satisfied by way of the issuance of PIK Notes may, with the consent of the receiving Noteholder, be made by bank transfer in immediately available funds to an account nominated for the purpose to the Company in writing by, the registered holder or, in the case of joint registered holders, to the one who is first-named on the Register, or to such Person or Persons as the registered holder or all the joint registered holders may in writing direct and sent to the registered holder or in the case of joint registered holders to that one of the joint registered holders who is first-named on the Register or to such address as the registered holder or joint registered holders may in writing direct. A bank transfer to the relevant account made in accordance with this paragraph shall be good discharge to the Company. |
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| 7. | If more than one Person is entered in the Register as joint holders of any Notes then, without prejudice to paragraph 6 of this Part 2 of these Conditions, the receipt of any one of such holders for any moneys payable on or in respect of the Notes shall be as effective a discharge to the Company or other Person making the payment as if the Person signing such receipt were the sole registered holder of such Notes. |
| 8. | If any Certificate is worn out or defaced then, on production of it to the Directors, they may cancel it and may issue a fresh Certificate in lieu. If any Certificate is lost or destroyed it shall be replaced promptly on such terms (if any) as to evidence and indemnity as the Company may reasonably require. An entry recording the issue of the new Certificate and indemnity (if any) shall be made in the Register. No fee shall be charged for the registration of any transfer or for the registration of any probate, letters of administration, certificate of marriage or death, power of attorney or other documents relating to or effecting title to any Notes. |
| 9. | Any communication to be made under or in connection with this Deed or the Notes shall be made in writing and, unless otherwise stated, may be made by letter or by email. The address and email address (and the department or officer, if any, for whose attention the communication is to be made) of each Person for any communication or document to be made or delivered under or in connection with this Deed or the Notes is: (i) in the case of the Company, that identified with its name below; and (ii) in the case of each Noteholder, that notified in writing to the Company on or prior to the date on which it becomes a Noteholder. |
Address for service of notices:
The Company
Address: c/o 70 Shenton Way, #18-15, EON Shenton, S079118, Singapore
Email: shaun.kraft@moneyherogroup.com and laura.hannon@moneyherogroup.com
Attention: Shaun Kraft and Laura Hannon
| 10. | Any communication or document made or delivered by one person to another under or in connection with this Deed or the Notes will be effective: (i) if by way of letter, only when it has been left at the relevant address or five Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address, (ii) if by way of email, in accordance with paragraph 11 below, at the time of transmission or (iii) upon personal delivery to the party to be notified. Any communication or document which becomes effective, in accordance with the preceding sentence, after 5 p.m. in the place of receipt shall be deemed only to become effective on the following day. |
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| 11. | Any communication or document to be made or delivered by one Person to another under or in connection with this Deed or the Notes may be made or delivered by electronic mail or other electronic means if those two Persons: (i) notify each other in writing of their electronic mail address and/or any other information required to enable the transmission of information by that means; and (ii) notify each other of any change to their address or any other such information supplied by them by not less than five Business Days’ notice. Any such electronic communication or delivery may only be made in that way to the extent that those two Persons agree that, unless and until notified to the contrary, this is to be an accepted form of communication or delivery. Any such electronic communication or delivery in accordance with the foregoing made or delivered by one Person to another will be effective only when actually received (or made available) in readable form. Any electronic communication or document which becomes effective, in accordance with the foregoing, after 5 p.m. in the place in which the Person to whom the relevant communication or document is sent or made available has its address for the purpose of this Deed shall be deemed only to become effective on the following day. |
| 12. | A copy of this Deed shall be kept at the Company’s registered office. A Noteholder (and any Person authorised by a Noteholder) may inspect that copy of the Deed at all reasonable times during office hours. |
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Schedule 3 Meetings of the Noteholders
| 1. | The Company may at any time convene a meeting of Noteholders. In addition, the Company shall at the written request of the Major Noteholder convene a meeting of the Noteholders. Any meeting shall be held at such place as the Company may designate. |
| 2. | At least seven days’ notice (exclusive of the day on which the notice is served or deemed to be served and of the day for which notice is given) of every meeting shall be given to the Noteholders. The notice shall specify the place, day and time of the meeting and the general nature of the business to be transacted. The accidental omission to give notice to, or the non-receipt of notice by, any of the Noteholders shall not invalidate the proceedings at any meeting. A meeting of the Noteholders shall, despite being called at shorter notice than specified above, be deemed to have been duly called if it is agreed in writing by all of the Noteholders. |
| 3. | At any meeting the quorum shall be the Major Noteholder. No business (other than choosing a Chairman) shall be transacted at any meeting unless the requisite quorum is present. |
| 4. | If a quorum is not present, within half an hour from the time appointed for the meeting, the meeting shall be dissolved. |
| 5. | The Noteholders present shall choose one of their number to be Chairman. Any Director or officer of, any Secretary of, and the solicitors to, the Company and any other person authorised in that behalf by the Company may attend at any such meeting. |
| 6. | Each question submitted to a meeting of Noteholders shall, unless a poll is demanded, be decided by a show of hands. |
| 7. | At any meeting of Noteholders unless a poll is demanded by the Chairman or by one or more Noteholders present in person or by proxy and holding or representing in the aggregate not less than one-twentieth in nominal amount of the outstanding Notes (before or on the declaration of the result of the show of hands), a declaration by the Chairman that a resolution has been carried by the requisite majority, lost or not carried by the requisite majority shall be conclusive evidence of the fact, without proof of the number or proportion of the votes recorded in favour of or against such resolution. |
| 9. | If there is an equality of votes, whether on a show of hands or on a poll, the Chairman of the meeting shall not be entitled to a casting vote in addition to the vote(s) (if any) to which he may be entitled as a Noteholder or as a proxy. |
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| 11. | Any poll demanded at any meeting on the election of a Chairman, or on any question of adjournment, shall be taken at the meeting without adjournment. |
| 12. | On a show of hands, each Noteholder who is an individual and is present in person or (being a corporation) is present by its duly authorised representative or by one of its officers as its proxy, shall have one vote. On a poll, each Noteholder present in person or by proxy, shall have one vote for every US$1.00 nominal of Notes held by him and a person entitled to more than one vote need not (if he votes) use all his votes or cast all the votes he uses in the same way. |
| 13. | In the case of joint registered Noteholders any one of them shall be entitled to vote in respect of such Notes either in person or by proxy and, in the latter case, as if the joint holder were solely entitled to such Notes. If more than one joint holder is present at any meeting either personally or by proxy that one joint holder so present whose name as between himself and the other or others present stands first in the Register as one of the joint holders shall alone be entitled to vote in person or by proxy. |
| 14. | Each deed appointing a proxy must be in writing and duly executed by the appointor or his duly authorised attorney or, in the case of a corporation under its common seal or duly executed by a duly authorised attorney or officer. The Chairman may (but shall not be bound to) require evidence of the authority of any attorney or officer. A proxy need not be a Noteholder. |
| 15. | A deed of proxy shall be in the usual or common form or in any other form that the Directors may accept. The proxy shall be deemed to include the right to demand or join in demanding a poll. A proxy shall, unless stated otherwise, be valid as well for any adjournment of the meeting as for the meeting to which it relates and need not be witnessed. |
| 16. | The deed appointing a proxy, and the power of attorney or other authority (if any) under which it is signed or a notarially certified copy of such power of attorney or authority, shall be deposited at the place specified in (or in any document accompanying) the notice convening the meeting. If no such place is specified, the proxy shall be deposited at the registered office of the Company not less than 24 hours before the time appointed for holding the meeting or adjourned meeting or for taking of the poll at which the person named in that deed proposes to vote. In default, the deed of proxy shall not be treated as valid. A vote given in accordance with the terms of a deed of proxy shall be valid notwithstanding the revocation of the proxy or of the authority under which the proxy is given, unless notification in writing of the revocation has been received at the registered office of the Company or at such other place (if any) specified for the deposit of deeds of proxy in the notice convening the meeting (or any document accompanying it) 24 hours before the commencement of the meeting or adjourned meeting or the taking of the poll at which the vote is given. |
| (a) | power to sanction the exchange or sale of the Notes for, or the conversion of the Notes into, or the cancellation of the Notes in consideration of, shares, stock, debenture stock or other obligations or security of the Company or any other company formed or to be formed (other than as set out in Schedule 2); |
| (b) | power to sanction any abrogation, modification or compromise of, or any arrangement in respect of, the Noteholders’ rights against the Company, provided the same has been previously approved in writing by the Company, whether those rights shall arise under the Deed, the Notes or otherwise; |
23
| (c) | power to assent to any modification of the provisions contained in the Deed and Schedule 2 and to authorise the Company to execute any supplemental deed embodying any such modification. Any such modification shall be proposed by the Company; and |
| (d) | power to: |
| (i) | modify the date fixed for final redemption of the Notes; |
| (ii) | reduce or cancel the Principal Amount payable on the Notes; |
| (iii) | reduce the amount payable or modify the method of calculating the amount payable on the Notes; or |
| (iv) | modify the dates for payment in respect of any interest, on the Notes. |
| (e) | Notwithstanding the foregoing, no matters referred to in paragraphs (a) to (d) (inclusive) above shall be effected without the prior written consent of the Company (in its absolute discretion). |
| 18. | A Special Resolution passed at a meeting of the Noteholders shall be binding on all the Noteholders whether or not they are present at the meeting. Each of the Noteholders shall be bound to give effect to it accordingly. The passing of any such resolution shall be conclusive evidence that the circumstances justify passing it (so that the meeting may determine without appeal whether or not the circumstances justify passing it). |
| 19. | Special Resolution when used in this Deed, means a resolution passed at a meeting of the Noteholders duly convened and held in accordance with Schedule 2, and carried by the holders of not less than 60.00% of the nominal amount of the Notes voting at such meeting, to include the Major Noteholder, on a show of hands or, if a poll is duly demanded, the votes given on such a poll. |
| 20. | A resolution in writing signed by or on behalf of the Major Noteholder shall, for all purposes, be as valid and effectual as a resolution passed at a meeting duly convened and held in accordance with Schedule 2. Such resolution in writing may be contained in one document or in several documents in similar form, each signed by one or more Noteholders. |
| 21. | Minutes of all resolutions and proceedings at every meeting shall be made and duly entered in books to be from time to time provided for that purpose by the Company. Any minutes, if purporting to be signed by the Chairman of the meeting or by the Chairman of the next succeeding meeting of the Noteholders, shall be conclusive evidence of the matters stated in them. Until the contrary is proved, every meeting for which minutes have been made and signed shall be deemed to have been duly held and convened, and all resolutions passed at the meeting to have been duly passed. |
24
| Executed as a deed by MoneyHero Limited acting by Shaun Kraft, as authorised signatory, in the presence of: |
|
|||
|
|
SIGNATURE OF SHAUN KRAFT | |||
| Authorised Signatory |
| |||
| SIGNATURE OF WITNESS | ||||
| Name: Jia Xu Lee | ||||
| Address: 70 Shenton Way, #18-08, EON Shenton, Singapore 079118 Occupation: Paralegal | ||||
[Project Gemini - Signature Page to Deed Poll]
Exhibit 8.1
Subsidiaries of MoneyHero Limited
The following list sets forth the subsidiaries of MoneyHero Limited.
| Legal Name |
Jurisdiction of Incorporation | |
| CompareAsia Group Capital Limited | Cayman Islands | |
| Gemini Merger Sub 1 Limited | Cayman Island | |
| CompareAsia Group Limited | Hong Kong | |
| CAG Regional Limited | Hong Kong | |
| CAG Regional Singapore Pte. Ltd | Singapore | |
| Compargo Malaysia Sdn. Bhd. | Malaysia | |
| Ekos Limited | Hong Kong | |
| Ekos Inc. | Philippines | |
| Ekos Pte. Ltd. | Singapore | |
| MoneyGuru Co. Ltd. | Thailand | |
| MoneyGuru Insurance Broker Co., Ltd. | Thailand | |
| MoneyGuru Philippines Corporation | Philippines | |
| MoneyGuru Services Co., Ltd. | Thailand | |
| MoneyHero Insurance Brokerage, Inc. | Philippines | |
| MoneyHero Insurance Brokers Limited | Hong Kong | |
| MoneyHero Global Limited | Hong Kong | |
| PT MoneyGuru Indonesia | Indonesia | |
| Singsaver Insurance Brokers Pte. Ltd. | Singapore | |
| Singsaver Pte. Ltd. | Singapore | |
| Seedly Pte. Ltd | Singapore | |
| 理財一零一有限公司 (Money101 Limited*) | Taiwan |
| * | English translation for identification purpose only |
Exhibit 15.1
UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION
Introduction
Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the shell company report on Form 20-F to which this exhibit is attached (the “Form 20-F”) and, if not defined in the Form 20-F, the proxy statement/prospectus dated September 26, 2023 (the “Proxy Statement/Prospectus”) filed by MoneyHero Limited with the Securities and Exchange Commission as part of its registration statement on Form F-4 (Registration No.333- 274454).
The following unaudited pro forma condensed combined financial statements are based on the historical financial information of PubCo, Bridgetown and CGCL as adjusted to give effect to: (i) the Business Combination, and the other transactions contemplated by the Business Combination Agreement between Bridgetown and CGCL; and (ii) other changes in capitalization that occurred upon closing of the Business Combination.
The unaudited pro forma condensed combined statement of financial position as of June 30, 2023 gives pro forma effect to the Business Combination as if it had been consummated as of that date. The unaudited pro forma condensed combined statement of operations for the six months ended June 30, 2023 and for the year ended December 31, 2022 give effect to the Business Combination as if it had been occurred on January 1, 2022.
The unaudited pro forma condensed combined financial statements do not necessarily reflect what the combined company’s financial condition or results of operations would have been had the Business Combination occurred on the dates indicated. The unaudited pro forma condensed combined financial statements also may not be useful in predicting the future financial condition and results of operations of the combined company. The actual financial position and results of operations may differ significantly from the pro forma amounts reflected herein due to a variety of factors.
This information is based on and should be read in conjunction with (i) CGCL’s audited consolidated financial statements as of and for the year ended December 31, 2022, (ii) Bridgetown’s audited financial statements for the year ended December 31, 2022, (iii) CGCL’s unaudited interim financial statements for the six months ended June 30, 2023, (iv) Bridgetown’s unaudited interim financial statements for the six months ended June 30, 2023, (v) PubCo’s unaudited interim financial statements for the period from March 21, 2023 (date of incorporation) to June 30, 2023 and related notes, the sections titled “Bridgetown’s Management’s Discussion and Analysis of Financial Condition and Results of Operations” and “MoneyHero’s Management’s Discussion and Analysis of Financial Condition and Results of Operations” and other financial information included elsewhere in the Proxy Statement/Prospectus.
The unaudited pro forma condensed combined financial statements have been prepared using the assumptions below:
| • | 2,655,171 CGCL Class A Ordinary Shares and 2,058,932 CGCL Class B Ordinary Shares outstanding as of June 30, 2023 were converted at a ratio of 0.307212 into PubCo Class A Ordinary Shares; |
| • | 15,488,498 CGCL Preference Shares outstanding as of June 30, 2023 were converted at a ratio of 0.307212 into PubCo Preference Shares; |
| • | An aggregate of 150,801 PubCo Preference Shares and PubCo Class A Ordinary Shares were issued in connection with the Business Combination from the conversion at a ratio of 0.307212 of: (i) 462,327 CGCL Preference Shares that CGCL issued to holders of CGCL Preference Shares as share dividends; and (ii) 28,544 CGCL Class A Ordinary Shares that CGCL issued to settle its contractual obligations before Closing; The estimated fair value of PubCo equity issued was based on the market values of Bridgetown’s Class A ordinary shares outstanding at the date of the Business Combination. The fair value of PubCo equity consideration issued was determined based on Bridgetown’s quoted market price of $6.15/share as of October 12, 2023. |
| • | 27,179,790 CGCL Class C Warrants outstanding as of June 30, 2023 were exercised and converted at a ratio of 0.307212 into PubCo Class A Ordinary Shares; |
| • | 451,839 PubCo Class A Ordinary Shares were issued pursuant to the Working Capital Loan Capitalization Agreement; |
| • | 5,452,739 Bridgetown Class A Ordinary Shares outstanding as of June 30, 2023 were redeemed at US$10.36 per share, the pro rata share of the funds in Bridgetown’s Trust Account upon Closing of the Business Combination. US$56.5 million in cash was paid to the redeeming shareholders with the offset to share capital. |
| • | Upon Closing of the Business Combination, PMIL exercised its call option immediately and subscribed for 5 million Call Option Notes in an aggregate principal amount of US$5,000,000 at a price of US$1.0 per Call Option Note and 2,005,460 PubCo Class A Ordinary Shares were issued to PMIL for no consideration. |
Description of the Business Combination
On May 25, 2023, Bridgetown entered into the Business Combination Agreement with CGCL, PubCo, Bridgetown Merger Sub and CGCL Merger Sub. Pursuant to the Business Combination Agreement, on October 12, 2023, Bridgetown merged with and into Bridgetown Merger Sub, with Bridgetown Merger Sub being the surviving company and remaining as a wholly-owned subsidiary of PubCo, and following the Initial Merger, CGCL Merger Sub merged with and into CGCL, with CGCL being the surviving company and becoming a wholly-owned subsidiary of PubCo.
1
Ownership
Pursuant to Bridgetown Holdings Limited’s existing charter, Bridgetown’s public shareholders were offered the opportunity to redeem, upon closing of the Business Combination, Bridgetown Class A Ordinary Shares held by them for cash equal to their pro rata share of the aggregate amount on deposit in the Trust Account. The unaudited pro forma condensed combined financial statements reflect the actual redemption of 5,452,739 shares of Bridgetown Class A Ordinary Shares at $10.36 per share upon closing of the Business Combination.
The following summarizes the number of PubCo ordinary shares outstanding at Closing Date:
| Shares | % | |||||||
| CGCL Shareholders(1) |
16,712,657 | 40.10 | % | |||||
| Bridgetown Public Shareholders(2) |
9,640,295 | 23.13 | % | |||||
| Bridgetown Sponsor/Directors/Advisors |
15,326,677 | 36.77 | % | |||||
|
|
|
|
|
|||||
| Total PubCo Shares Outstanding at Closing |
41,679,629 | 100.00 | % | |||||
|
|
|
|
|
|||||
Notes:
| (1) | Excluding an aggregate of 5,000,000 Bridgetown Class A Ordinary Shares transferred from the FWD Parties to EIHL after the Extraordinary General Meeting and before the Closing Date. |
| (2) | Including the 5,000,000 Bridgetown Class A Ordinary Shares transferred from the FWD Parties to EIHL after the Extraordinary General Meeting and before the Closing Date. |
2
UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENT OF FINANCIAL POSITION
AS AT 30 JUNE 2023
(in US$)
| (IFRS, US$) CompareAsia Group Capital Limited |
(IFRS, US$) Money Hero Limited |
(US GAAP, US$) Bridgetown Holdings Ltd. |
Transaction accounting adjustment |
Note | Pro forma combined |
|||||||||||||||||||
| NON-CURRENT ASSETS |
||||||||||||||||||||||||
| Goodwill |
— | — | — | |||||||||||||||||||||
| Other intangible assets |
13,558,503 | — | 13,558,503 | |||||||||||||||||||||
| Property and equipment |
223,893 | — | 223,893 | |||||||||||||||||||||
| Right-of-use assets |
825,322 | — | 825,322 | |||||||||||||||||||||
| Prepayments and deposits |
159,086 | — | 159,086 | |||||||||||||||||||||
| Cash and marketable securities held in Trust Account |
— | 154,927,287 | (154,927,287 | ) | E | — | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
| Total non-current assets |
14,766,804 | — | 154,927,287 | (154,927,287 | ) | 14,766,804 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
| CURRENT ASSETS |
||||||||||||||||||||||||
| Accounts receivable |
9,189,533 | — | 9,189,533 | |||||||||||||||||||||
| Contract assets |
11,328,082 | — | 11,328,082 | |||||||||||||||||||||
| Prepayments, deposits and other receivables |
3,737,126 | 305,833 | 4,042,959 | |||||||||||||||||||||
| Tax recoverable |
22,691 | 22,691 | ||||||||||||||||||||||
| Due from shareholders |
— | — | — | |||||||||||||||||||||
| Pledged bank deposits |
192,959 | — | 192,959 | |||||||||||||||||||||
| Cash and cash equivalents |
19,455,522 | 146,148 | (3,371,452 | ) | A | 115,923,927 | ||||||||||||||||||
| (3,745,920 | ) | D | ||||||||||||||||||||||
| 154,927,287 | E | |||||||||||||||||||||||
| 2,718 | H | |||||||||||||||||||||||
| (56,490,376 | ) | J | ||||||||||||||||||||||
| 5,000,000 | K | |||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
| Total current assets |
43,925,913 | — | 451,981 | 96,332,257 | 140,700,151 | |||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
| CURRENT LIABILITIES |
||||||||||||||||||||||||
| Accounts payable |
14,620,665 | 14,620,665 | ||||||||||||||||||||||
| Other payables and accruals |
10,227,471 | 183,437 | 6,199,843 | 16,610,751 | ||||||||||||||||||||
| Other derivative financial instruments |
11,883,067 | (11,883,067 | ) | K | — | |||||||||||||||||||
| Warrant liabilities |
61,299,262 | (49,476,487 | ) | H | 11,822,775 | |||||||||||||||||||
| Lease liabilities |
713,262 | — | 713,262 | |||||||||||||||||||||
| Tax payable |
— | — | — | |||||||||||||||||||||
| Provisions |
— | — | ||||||||||||||||||||||
| Advances from related party |
2,818,398 | (2,818,398 | ) | I | — | |||||||||||||||||||
| Due to Related Party |
— | 400,000 | (400,000 | ) | I | — | ||||||||||||||||||
| Promissory notes - related party |
— | 1,300,000 | (1,300,000 | ) | I | — | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
| Total current liabilities |
98,743,727 | 183,437 | 10,718,241 | (65,877,952 | ) | 43,767,453 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
3
UNAUDITED PRO FORMA CONDENSED COMBINED STATEMENT OF FINANCIAL POSITION (continued)
AS AT 30 JUNE 2023
(in US$)
| (IFRS, US$) CompareAsia Group Capital Limited |
(IFRS, US$) Money Hero Limited |
(US GAAP, US$) Bridgetown Holdings Ltd. |
Transaction accounting adjustment |
Note | Pro forma combined |
|||||||||||||||||||
| NET CURRENT ASSETS/(LIABILITIES) |
(54,817,814 | ) | (183,437 | ) | (10,266,260 | ) | 162,200,208 | 96,932,698 | ||||||||||||||||
| — | — | — | — | — | ||||||||||||||||||||
| TOTAL ASSETS LESS CURRENT LIABILITIES |
(40,051,010 | ) | (183,437 | ) | 144,661,027 | 7,272,921 | 111,699,502 | |||||||||||||||||
| — | — | — | — | — | ||||||||||||||||||||
| NON-CURRENT LIABILITIES |
||||||||||||||||||||||||
| Lease liabilities |
117,755 | — | 117,755 | |||||||||||||||||||||
| Other payables |
124,477 | 124,477 | ||||||||||||||||||||||
| Interest-bearing borrowings |
12,282,655 | — | 5,000,000 | K | 17,282,655 | |||||||||||||||||||
| Deferred tax liabilities |
35,673 | — | 35,673 | |||||||||||||||||||||
| Provisions |
234,058 | — | 234,058 | |||||||||||||||||||||
| Warrant liabilities |
— | 6,764,261 | 6,764,261 | |||||||||||||||||||||
| Deferred underwriting fee payable |
— | 17,849,805 | (17,849,805 | ) | C | — | ||||||||||||||||||
| Preference shares |
3,861 | F | 3,975 | |||||||||||||||||||||
| 114 | G | |||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
| Total non-current liabilities |
12,794,618 | — | 24,614,066 | (12,845,831 | ) | 24,562,854 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
| Commitments and Contingencies |
||||||||||||||||||||||||
| Ordinary shares subject to possible redemptions |
— | — | 154,927,287 | (154,927,287 | ) | B | — | |||||||||||||||||
| EQUITY |
||||||||||||||||||||||||
| Issued capital |
2,020 | — | 1,487 | 4,168 | ||||||||||||||||||||
| 964 | B | |||||||||||||||||||||||
| (1,400 | ) | F | ||||||||||||||||||||||
| 15 | G | |||||||||||||||||||||||
| 837 | H | |||||||||||||||||||||||
| 45 | I | |||||||||||||||||||||||
| 200 | K | |||||||||||||||||||||||
| Reserves/ (deficit) |
(52,847,648 | ) | (183,437 | ) | (34,881,813 | ) | (3,371,452 | ) | A | 87,132,480 | ||||||||||||||
| 154,926,323 | B | |||||||||||||||||||||||
| 17,849,805 | C | |||||||||||||||||||||||
| (3,745,920 | ) | D | ||||||||||||||||||||||
| (2,461 | ) | F | ||||||||||||||||||||||
| (129 | ) | G | ||||||||||||||||||||||
| 49,478,368 | H | |||||||||||||||||||||||
| 4,518,353 | I | |||||||||||||||||||||||
| (56,490,376 | ) | J | ||||||||||||||||||||||
| 11,882,867 | K | |||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
| Total equity/ (deficit) |
(52,845,628 | ) | (183,437 | ) | (34,880,326 | ) | 175,046,039 | 87,136,648 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
| Total liabilities and equity/ (deficit) |
58,692,717 | — | 155,379,268 | (58,605,030 | ) | 155,466,955 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
4
UNAUDITED PRO FORMA CONSOLIDATED COMBINED STATEMENT OF PROFIT OR LOSS AND OTHER COMPREHENSIVE INCOME
FOR THE PERIOD ENDED 30 JUNE 2023
(in US$, except share and per share data)
| (IFRS, US$)
CompareAsia |
(IFRS, US$)
MoneyHero |
(US GAAP, US$)
Bridgetown |
Transaction accounting adjustment |
Note | Pro forma combined |
|||||||||||||||||||
| REVENUE |
34,891,982 | — | — | 34,891,982 | ||||||||||||||||||||
| Cost and expenses: |
||||||||||||||||||||||||
| Cost of revenue |
(15,994,026 | ) | — | (15,994,026 | ) | |||||||||||||||||||
| Advertising and marketing expenses |
(7,488,058 | ) | — | (7,488,058 | ) | |||||||||||||||||||
| Technology costs |
(3,256,222 | ) | — | (3,256,222 | ) | |||||||||||||||||||
| Employee benefit expenses |
(9,601,992 | ) | (9,601,992 | ) | ||||||||||||||||||||
| General, administrative and other operating expenses |
(6,114,849 | ) | (183,487 | ) | — | (6,298,336 | ) | |||||||||||||||||
| Foreign exchange differences, net |
(2,169,649 | ) | — | (2,169,649 | ) | |||||||||||||||||||
| Formation and operating costs |
— | (5,328,857 | ) | (5,328,857 | ) | |||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
| Operating loss |
(9,732,814 | ) | (183,487 | ) | (5,328,857 | ) | — | (15,245,158 | ) | |||||||||||||||
| Other income/(expenses): |
||||||||||||||||||||||||
| Other income |
171,873 | — | 171,873 | |||||||||||||||||||||
| Finance costs |
(3,568,652 | ) | — | (3,568,652 | ) | |||||||||||||||||||
| Change in fair value of financial instruments |
(57,937,053 | ) | (3,610,295 | ) | (61,547,348 | ) | ||||||||||||||||||
| Interest earned on cash and marketable securities held in Trust Account |
— | 2,564,294 | (2,564,294 | ) | L | — | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
| LOSS BEFORE TAX |
(71,066,646 | ) | (183,487 | ) | (6,374,858 | ) | (2,564,294 | ) | (80,189,285 | ) | ||||||||||||||
| Income tax expenses |
(34,352 | ) | — | — | (34,352 | ) | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
| LOSS FOR THE YEAR |
(71,100,998 | ) | (183,487 | ) | (6,374,858 | ) | (2,564,294 | ) | (80,223,637 | ) | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
| Pro forma weighted average common of shares outstanding |
||||||||||||||||||||||||
| - basic and diluted |
41,679,629 | |||||||||||||||||||||||
| Pro forma net loss per share |
||||||||||||||||||||||||
| - basic and diluted |
(1.92 | ) | ||||||||||||||||||||||
5
UNAUDITED PRO FORMA CONSOLIDATED COMBINED STATEMENT OF PROFIT OR LOSS AND OTHER COMPREHENSIVE INCOME
FOR THE YEAR ENDED DECEMBER 31, 2022
(in US$, except share and per share data)
| (IFRS, US$) CompareAsia Group Capital Limited |
(US GAAP, US$) Bridgetown Holdings Ltd |
Transaction accounting adjustment |
Note | Pro forma combined |
||||||||||||||||
| REVENUE |
68,132,256 | — | 68,132,256 | |||||||||||||||||
| Cost and expenses: |
||||||||||||||||||||
| Cost of revenue |
(33,881,248 | ) | — | (33,881,248 | ) | |||||||||||||||
| Advertising and marketing expenses |
(16,473,378 | ) | — | (16,473,378 | ) | |||||||||||||||
| Technology costs |
(6,554,254 | ) | — | (6,554,254 | ) | |||||||||||||||
| Employee benefit expenses |
(35,023,534 | ) | — | (35,023,534 | ) | |||||||||||||||
| General, administrative and other operating expenses |
(13,854,809 | ) | — | (89,678 | ) | G | (13,944,487 | ) | ||||||||||||
| Foreign exchange differences, net |
(4,051,710 | ) | — | (4,051,710 | ) | |||||||||||||||
| Formation and operating costs |
— | (1,701,017 | ) | (1,701,017 | ) | |||||||||||||||
| Cost of proposed listing |
3,648,995 | A | (87,308,408 | ) | ||||||||||||||||
| (90,957,403 | ) |
|
B |
|
||||||||||||||||
|
|
|
|
|
|
|
|
|
|||||||||||||
| Operating loss |
(41,706,677 | ) | (1,701,017 | ) | (87,398,086 | ) | (130,805,780 | ) | ||||||||||||
| Other income/(expenses): |
||||||||||||||||||||
| Other income |
915,164 | — | 915,164 | |||||||||||||||||
| Finance costs |
(7,800,597 | ) | — | (7,800,597 | ) | |||||||||||||||
| Change in fair value of financial instruments |
(1,101,484 | ) | 20,366,950 | 19,265,466 | ||||||||||||||||
| Interest earned on cash and marketable securities held in Trust Account |
— | 4,550,111 | (4,550,111 | ) | L | — | ||||||||||||||
|
|
|
|
|
|
|
|
|
|||||||||||||
| LOSS BEFORE TAX |
(49,693,594 | ) | 23,216,044 | (91,948,197 | ) | (118,425,747 | ) | |||||||||||||
| Income tax credit |
251,779 | — | 251,779 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|||||||||||||
| LOSS FOR THE YEAR |
(49,441,815 | ) | 23,216,044 | (91,948,197 | ) | (118,173,968 | ) | |||||||||||||
|
|
|
|
|
|
|
|
|
|||||||||||||
| Pro forma weighted average common of shares outstanding - basic and diluted |
41,679,629 | |||||||||||||||||||
| - Pro forma net loss per share - basic and diluted |
(2.84 | ) | ||||||||||||||||||
6
NOTES TO UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL STATEMENTS
Basis of Preparation
The unaudited pro forma condensed financial information is based on CGCL, Bridgetown and PubCo’s historical consolidated financial statements as adjusted to give effect of the Business Combination and the other transactions contemplated by the Business Combination Agreement. The unaudited pro forma condensed combined statement of financial position as of June 30, 2023 assumes that the Business Combination occurred on January 1, 2022. The unaudited pro forma condensed combined statement of operations for the six months ended June 30, 2023 and for the year ended December 31, 2022 present pro forma effect to the Business Combination as if it had been completed on January 1, 2022.
The unaudited pro forma condensed combined financial information has been prepared using, and should be read in conjunction with (i) CGCL’s audited consolidated financial statements as of and for the year ended December 31, 2022, (ii) Bridgetown’s audited financial statements for the year ended December 31, 2022, (iii) CGCL’s unaudited interim financial statements for the six months ended June 30, 2023, (iv) Bridgetown’s unaudited interim financial statements for the six months ended June 30, 2023, (v) PubCo’s unaudited interim financial statements for the period from March 21, 2023 (date of incorporation) to June 30, 2023 and related notes, the sections titled “Bridgetown’s Management’s Discussion and Analysis of Financial Condition and Results of Operations” and “MoneyHero’s Management’s Discussion and Analysis of Financial Condition and Results of Operations” and other financial information included elsewhere in the Proxy Statement/Prospectus.
Anticipated Accounting Treatment
The Business Combination is accounted for as a capital reorganization. Under this method of accounting, PubCo and Bridgetown is treated as the “acquired” companies for financial reporting purposes. Accordingly, the Business Combination is treated as the equivalent of CGCL issuing shares at the Closing for the net assets of PubCo and Bridgetown as of the Closing Date, accompanied by a recapitalization. The net assets of Bridgetown is stated at historical cost, with no goodwill or other intangible assets recorded.
CGCL is determined to be the accounting acquirer based on evaluation of the following facts and circumstances:
| (i) | CGCL’s ultimate controlling shareholder has the ability to nominate the majority of the members of the board of directors; |
| (ii) | CGCL’s senior management is the senior management of the post-combination company; and |
| (iii) | CGCL is the larger entity, in terms of substantive operations and employee base. |
The Business Combination is not within the scope of IFRS 3 because PubCo and Bridgetown do not meet the definition of a business in accordance with IFRS 3, and is accounted for in accordance with IFRS 2. Any excess of fair value of PubCo shares issued over the fair value of PubCo’s and Bridgetown’s identifiable net assets acquired represents compensation for the service of a stock exchange listing for its shares and is expensed as incurred.
The unaudited pro forma condensed combined financial information is not necessarily indicative of what the actual results of operations and financial position would have been had the Business Combination taken place on the dates indicated, nor are they indicative of the future consolidated results of operations or financial position of the post-combination company. They should be read in conjunction with the historical financial statements and notes thereto of CGCL, Bridgetown and PubCo.
IFRS Policy and Presentation Alignment
The historical financial statements of CGCL and PubCo were prepared in accordance with IFRS as issued by the IASB and in their presentation and reporting currency of United States dollars (US$). The historical financial statements of Bridgetown were prepared in accordance with U.S. GAAP in its presentation and reporting currency of United States dollars (US$). IFRS differs from U.S. GAAP in certain material respects and thus may not be comparable to financial information presented by U.S. companies.
7
IFRS differs from U.S. GAAP in certain material respects and thus may not be comparable to financial information presented by U.S. companies.
Transaction Accounting Adjustments
The Transaction accounting adjustments included in the unaudited pro forma condensed combined statement of financial position as of June 30, 2023 and the unaudited pro forma condensed combined statement of profit or loss and other comprehensive income for the six months ended June 30, 2023 and for the year ended December 31, 2022 are as follows:
| A. | Represents transaction costs incurred and expensed by CGCL of approximately US$3.4 million for advisory, legal, research and accounting fees expected to be incurred as part of the Business Combination subsequent to June 30, 2023. |
| B. | Represents IFRS 2 stock exchange listing expenses calculated as the excess of (i) the estimated fair value of CGCL equity issued over (ii) the fair value of Bridgetown’s net assets acquired in connection with the Business Combination. The estimated fair value of PubCo equity to be issued was based on the market values of Bridgetown’s Class A ordinary shares and Class B ordinary shares outstanding at the date of the Business Combination. The IFRS 2 stock exchange listing expenses, which is non-recurring in nature and represents a share-based payment made in exchange for a listing service, is estimated to be US$91.0 million for the year ended December 31, 2022. The listing service expense is calculated based on the fair value of Bridgetown Class A ordinary shares and Class B ordinary shares outstanding at the date of the Business Combination. |
| As of June 30, 2023 | ||||
| (in US$) | ||||
| Fair value of PubCo equity consideration issued (pro forma) |
||||
| Fair value of Bridgetown Class A ordinary shares outstanding |
59,287,814 | |||
| Fair value of Bridgetown Class B ordinary shares outstanding |
91,480,254 | |||
|
|
|
|||
| 150,768,068 | ||||
| Estimated fair value of Bridgetown net assets/liabilities acquired (pro forma) |
||||
| Net assets as of June 30, 2023 |
120,046,961 | |||
| Accrued transaction costs in Note D |
(3,745,920 | ) | ||
| Settlement for redemptions of Bridgetown common stock |
(56,490,376 | ) | ||
|
|
|
|||
| 59,810,665 | ||||
| Excess of PubCo consideration issued over fair value of Bridgetown net assets acquired (IFRS2 Charge) |
90,957,403 | |||
|
|
|
|||
The estimated fair value of PubCo equity consideration issued was determined based on Bridgetown’s quoted market price of $6.15/share as of October 12, 2023 assuming 9,640,295 Bridgetown Class A ordinary shares and 14,874,838 Bridgetown Class B ordinary shares are converted into PubCo shares.
The actual amount of the IFRS 2 stock exchange listing expenses will be calculated as of (and recognized as a charge to the income statement upon) consummation of the Business Combination and may differ materially from the amount estimated above.
| C. | Represents the agreement with UBS and BTIG, the underwriters of Bridgetown’s IPO, to waive any entitlement to the deferred underwriting compensation with respect to the Business Combination. |
| D. | Represents transaction costs incurred by Bridgetown of approximately US$3.7 million, for advisory, legal, research and accounting fees incurred as part of the Business Combination. |
| E. | Reflects the liquidation and reclassification of $152.6 million of investments held in the Trust Account to cash and cash equivalents that becomes available following the Business Combination. |
| F. | Represents the conversion of (i) 2,655,171 CGCL Class A Ordinary Shares and 2,058,932 CGCL Class B Ordinary Shares outstanding as of June 30, 2023 at a ratio of 0.307212 into PubCo Class A Ordinary Shares per share in relation to the Business Combination Agreement; and (ii) 15,488,498 CGCL Preference Shares outstanding as of June 30, 2023 at a ratio of 0.307212 into PubCo Preference Shares in relation to the Business Combination Agreement. |
| G. | Represents an aggregate of 150,801 PubCo Preference Shares and PubCo Class A Ordinary Shares issued in connection with the Business Combination from the conversion at a ratio of 0.307212 of (i) 462,327 CGCL Preference Shares that CGCL issued to holders of CGCL Preference Shares as share dividends; and (ii) 28,544 CGCL Class A Ordinary Shares that CGCL issued to settle its contractual obligations before Closing. The estimated fair value of PubCo equity issued was based on the market values of Bridgetown’s Class A ordinary shares outstanding at the date of the Business Combination. The fair value of PubCo equity consideration issued was determined based on Bridgetown’s quoted market price of $6.15/share as of October 12, 2023. |
8
| H. | Represents the pro forma adjustment for the exercise and conversion of 27,179,790 CGCL Class C Warrants at a ratio of 0.307212 into 8,349,958 PubCo Class A Ordinary Shares in relation to the Business Combination Agreement. |
| I. | Represents 451,839 PubCo Class A Ordinary Shares issued pursuant to the Working Capital Loan Capitalization Agreement. |
| J. | Represents the pro forma adjustment for the 5,452,739 Bridgetown Class A Ordinary Shares redeemed at US$10.36 per share, the pro rata share of the funds in Bridgetown’s Trust Account upon Closing of the Business Combination. US$56.5 million in cash was paid to the redeeming shareholders with the offset to share capital. |
| K. | Represents the exercise of the PubCo Call Option by PMIL in full immediately following the Closing of the Business Combination, pursuant to which PMIL subscribed for 5 million Call Option Notes in an aggregate principal amount of US$5,000,000 at a price of US$1.00 per Call Option Note and received 2,005,460 PubCo Class A Ordinary Shares for no consideration. |
| L. | Represents the elimination of interest income generated from the Trust Account for the year ended December 31, 2022 and the six months ended June 30, 2023. |
Pro forma basic and diluted net loss per share
Represents the pro forma basic and diluted net loss per share calculated using the historical weighted average shares outstanding, and the issuance of additional shares in connection with the Business Combination and related transactions, assuming the shares were outstanding since January 1, 2022. As the Business Combination and related transactions are reflected as if they had occurred at the beginning of the period presented, the calculation of weighted average shares outstanding for basic and diluted net loss per share assumes that the shares issued in connection with the Business Combination are outstanding for the entire period presented. No adjustment was made to the pro forma basic loss per share amounts presented for the six months ended June 30, 2023 and for the year ended December 31, 2022 as the impact of the warrants and share options outstanding had an anti-dilutive effect on the pro forma basic loss per share amounts presented.
The unaudited pro forma condensed combined financial statements were prepared based on the actual redemption of Bridgetown’s public shares as of the Closing Date:
| For the six months ended 30 June 2023 |
||||
| (in US$) | ||||
| Pro forma net loss |
(80,223,637 | ) | ||
| Weighted average shares outstanding—basic and diluted |
41,679,629 | |||
| Net loss per share—basic and diluted |
(1.92 | ) | ||
| Weighted average shares outstanding—basic and diluted: |
||||
| CGCL Shareholders(1) |
16,712,657 | |||
| Bridgetown Public Shareholders(2) |
9,640,295 | |||
| Bridgetown Sponsor/Directors/Advisors |
15,326,677 | |||
|
|
|
|||
| Total |
41,679,629 | |||
|
|
|
|||
| For the year ended December 31, 2022 |
||||
| (in US$) | ||||
| Pro forma net loss |
(118,173,968 | ) | ||
| Weighted average shares outstanding—basic and diluted |
41,679,629 | |||
| Net loss per share—basic and diluted |
(2.84 | ) | ||
| Weighted average shares outstanding—basic and diluted: |
||||
| CGCL shareholders(1) |
16,712,657 | |||
| Bridgetown public shareholders(2) |
9,640,295 | |||
| Bridgetown Sponsor/Directors/Advisors |
15,326,677 | |||
|
|
|
|||
| Total |
41,679,629 | |||
|
|
|
|||
| Shares | % | |||||||
| CGCL Shareholders(1) |
16,712,657 | 40.10 | % | |||||
| Bridgetown Public Shareholders(2) |
9,640,295 | 23.13 | % | |||||
| Bridgetown Sponsor/Directors/Advisors |
15,326,677 | 36.77 | % | |||||
|
|
|
|
|
|||||
| Total PubCo Shares Outstanding at Closing |
41,679,629 | 100.00 | % | |||||
|
|
|
|
|
|||||
Notes:
| (1) | Excluding an aggregate of 5,000,000 Bridgetown Class A Ordinary Shares transferred from the FWD Parties to EIHL after the Extraordinary General Meeting and before the Closing Date. |
| (2) | Including the 5,000,000 Bridgetown Class A Ordinary Shares transferred from the FWD Parties to EIHL after the Extraordinary General Meeting and before the Closing Date. |
9
Exhibit 15.2
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption “Statement by Experts” in the Shell Company Report on Form 20-F of MoneyHero Limited and to the incorporation by reference therein of our reports dated June 5, 2023 and August 14, 2023, with respect to the consolidated financial statements of CompareAsia Group Capital Limited, and MoneyHero Limited (formerly known as Hyphen Group Limited), respectively, included in the Registration Statement (No. 333-274454) and related Prospectus of MoneyHero Limited.
/s/ Ernst & Young
Hong Kong, The People’s Republic of China
October 19, 2023
Exhibit 15.3
Consent of Independent Registered Public Accounting Firm
We hereby consent to the incorporation by reference in this Shell Company Report on Form 20-F of our report dated March 30, 2023, relating to the balance sheets of Bridgetown Holdings Limited as of December 31, 2022 and 2021, and the related statements of operations, changes in shareholders’ deficit and cash flows for the years then ended, which appears in MoneyHero Limited’s Form F-4, and to the reference to our Firm under the caption “Statement by Experts”.
/s/ WithumSmith+Brown, PC
New York, New York
October 19, 2023