Namib Minerals 20-F, filed Jun 11, 2025
Namib Minerals (NAMM)
About this 20-F
Namib Minerals filed this 20-F on June 11, 2025, covering the fiscal year ended June 5, 2025.
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: June 5, 2025
Commission File Number: 001-42685
Namib Minerals
(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) |
71 Fort Street, PO Box 500,
Grand Cayman, Cayman Islands, KY1-11061
(Address of Principal Executive Offices)
Ibrahima Tall, Chief Executive Officer
Tel: (345) 769-4909
info@namibminerals.com
71 Fort Street, PO Box 500,
Grand Cayman, Cayman Islands, KY1-11061
(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 | Name of each exchange on which registered | ||
| Ordinary shares, par value $0.0001 per share | NAMM | The Nasdaq Stock Market LLC | ||
| Warrants, each exercisable for one Ordinary Share at an exercise price of $11.50 per share | NAMMW | The Nasdaq Stock Market LLC |
Securities registered or to be registered pursuant to Section 12(g) of the Act: None
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act: None
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: On June 5, 2025, the issuer had 53,677,429 ordinary shares, par value $0.0001 per share, 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 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 under 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 by the International Accounting Standards Board ☒ |
Other ☐ |
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 ☐
TABLE OF CONTENTS
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On June 5, 2025 (the “Closing Date”), Namib Minerals, an exempted company limited by shares incorporated under the laws of the Cayman Islands (“PubCo” or “Namib”), Red Rock Acquisition Corporation, formerly known as Hennessy Capital Investment Corp. VI (“HCVI”), Midas SPAC Merger Sub Inc., a Delaware corporation and a direct wholly-owned subsidiary of Namib (“SPAC Merger Sub”), Cayman Merger Sub Ltd., an exempted company limited by shares incorporated under the laws of the Cayman Islands and a direct wholly-owned subsidiary of Namib (“Company Merger Sub”), and Greenstone Corporation, an exempted company limited by shares incorporated under the laws of the Cayman Islands (“Greenstone” or the “Company”), consummated the business combination (the “Business Combination”) contemplated by the terms of that certain Business Combination Agreement, dated as of June 17, 2024 (as amended, the “Business Combination Agreement”).
On the Closing Date, pursuant to the Business Combination Agreement:
| · | Company Merger Sub merged with and into the Company (the “Company Merger”), with the Company being the surviving entity of the Company Merger and becoming a wholly-owned subsidiary of Namib; |
| · | Immediately following the Company Merger, SPAC Merger Sub merged with and into HCVI (the “SPAC Merger”), with HCVI being the surviving entity of the SPAC Merger and becoming a wholly-owned subsidiary of Namib; |
| · | (a) each issued and outstanding share of common stock of HCVI, par value $0.0001 per share, was cancelled in exchange for the right to receive one ordinary share of Namib, par value $0.0001 per share (each, a “Namib Ordinary Share”), and (b) each outstanding warrant of HCVI exercisable for one share of Class A common stock of HCVI, par value $0.0001 per share, became exercisable for one Namib Ordinary Share on the same terms and conditions (each, a “Namib Warrant”); and |
| · | the ordinary shares in the capital of the Company, par value $1.00 per share, that was issued and outstanding was exchanged for an aggregate 48,861,960 Namib Ordinary Shares. |
After the Closing Date, the Namib Ordinary Shares and Namib Warrants began trading on the Nasdaq Stock Market LLC (“Nasdaq”) under the symbols “NAMM” and “NAMMW,” respectively.
Unless otherwise indicated, “Namib” or “PubCo” refers to Namib Minerals, and references to “we,” “us,” “our,” and similar terminology refer to Namib Minerals subsequent to the Business Combination.
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CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Shell Company Report on Form 20-F (including information incorporated by reference herein, the “Report”) contains a number of forward-looking statements that involve substantial risks and uncertainties. All statements other than statements of historical facts contained in this Report are forward-looking statements. These forward-looking statements include information on our possible or assumed future results of operations or our performance. Any statements that refer to projections, forecasts or other characterizations of future events or circumstances, including any underlying assumptions, are also forward-looking statements. In some cases, you can identify forward-looking statements by words such as “estimate,” “plan,” “project,” “forecast,” “intend,” “expect,” “anticipate,” “believe,” “seek,” “strategy,” “future,” “opportunity,” “may,” “target,” “should,” “will,” “would,” “will be,” “will continue,” “will likely result,” “preliminary,” or similar expressions that predict or indicate future events or trends or that are not statements of historical matters.
The forward-looking statements in this Report are based on information available as of the date of this Report and are inherently subject to uncertainties and changes in circumstance and their potential effects and speak only as of the date of such statement. There can be no assurance that future developments will be those that have been anticipated. These forward-looking statements involve a number of risks, uncertainties or other assumptions that may cause actual results or performance to be materially different from those expressed or implied by these forward-looking statements. These risks and uncertainties include, but are not limited to, those factors described in the section entitled “Risk Factors” of Namib’s Post-Effective Amendment to its Registration Statement on Form F-4 (333-283650) filed with the Securities and Exchange Commission (the “SEC”) on April 15, 2025 (the “Form F-4”), which are incorporated by reference into this Report, and the following important factors:
| ● | market risks, including the price of gold; |
| ● | the effect of the announcement of the closing of the Business Combination on Namib’s business relationships, performance, and business generally; |
| ● | the outcome of any legal proceedings that may be instituted against Namib or any of its subsidiaries related to the Business Combination; |
| ● | the outcome of any legal proceedings relating to Greenstone’s purchase of Bulawayo Mining Company Limited, which owns all of Namib’s mines, from Metallon Corporation Limited (“Metallon”); |
| ● | failure to realize the anticipated benefits of the Business Combination; |
| ● | the inability to maintain the listing of Namib’s securities on Nasdaq; |
| ● | the inability to remediate the identified material weaknesses in Greenstone’s internal control over financial reporting, which, if not corrected, could adversely affect the reliability of Greenstone’s and Namib’s financial reporting; |
| ● | the risk that the price of Namib’s securities may be volatile due to a variety of factors, including changes in the highly competitive industries in which Namib plans to operate, variations in performance across competitors, changes in laws, regulations, technologies, natural disasters or health epidemics/pandemics, national security tensions, macro-economic and social environments affecting its business, and changes in the combined capital structure; |
| ● | the inability to implement business plans, forecasts, and other expectations after the completion of the Business Combination, identify and realize additional opportunities, and manage Namib’s growth and expanding operations; |
| ● | the risk that Namib may not be able to successfully develop its assets, including expanding the How Mine, restarting and expanding its other mines in Zimbabwe, or developing its exploration permits in the Democratic Republic of Congo (“DRC”); |
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| ● | the risk that Namib will be unable to raise additional capital to execute its business plan, which may not be available on acceptable terms or at all; |
| ● | political and social risks of operating in Zimbabwe and the DRC; and |
| ● | the operational hazards and risks that Namib faces. |
The risks outlined above and others described under the section entitled “Risk Factors” in the Form F-4 are not exhaustive. In addition, as a result of a number of known and unknown risks and uncertainties, including those listed above, Namib’s actual results or performance may be materially different from those expressed or implied by certain forward-looking statements. Should one or more of these risks or uncertainties materialize or should any of the assumptions made by the management team of Namib prove incorrect, actual results may vary in material respects from those projected in these forward-looking statements.
Forward-looking statements reflect current beliefs and are based on information currently available as of the date a forward-looking statement is made. Accordingly, forward-looking statements set forth herein speak only as of the date of this Report.
Namib does not undertake any obligation to revise forward-looking statements to reflect future events, changes in circumstances, or changes in beliefs. In the event that any forward-looking statement is updated, no inference should be made that Namib will make additional updates with respect to that statement, related matters, or any other forward-looking statements.
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ITEM 1. IDENTITY OF DIRECTORS, SENIOR MANAGEMENT AND ADVISERS
A. Directors and Senior Management
Item 6.A of this Report is incorporated herein by reference.
The business address of our directors and executive officers is 71 Fort Street, PO Box 500, Grand Cayman, Cayman Islands, KY1-11061.
B. Advisors
Greenberg Traurig LLP has represented Namib as U.S. securities counsel and will continue to act as U.S. securities counsel to Namib following the completion of the Business Combination. The address of Greenberg Traurig LLP is 1 Vanderbilt Ave, New York, New York 10017, United States.
Appleby Global Services (Cayman) Limited represented Namib on matters of Cayman Islands law and will continue to act as Cayman Islands law counsel following the completion of the Business Combination. The address of Appleby Global Services (Cayman) Limited is 71 Fort Street, PO Box 500, Grand Cayman, KY1-1106, Cayman Islands.
C. Auditors
For the period from May 27, 2024 (inception) to December 31, 2024, BDO South Africa Incorporated acted as the independent registered public accounting firm for Namib.
ITEM 2. OFFER STATISTICS AND EXPECTED TIMETABLE
Not Applicable.
A. [Reserved]
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B. Capitalization and Indebtedness
The following table sets forth the cash and cash equivalents and capitalization of Namib on an unaudited pro forma combined basis as of December 31, 2024, after giving effect to the Business Combination.
| (USD in thousands) | As of December 31, 2024, after giving effect to the Business Combination | |||
| Cash and cash equivalents | $ | 1,341 | ||
| Debt: | ||||
| Borrowings | 1,142 | |||
| Bank overdraft | 1,013 | |||
| Borrowings for long-term portion | 1,374 | |||
| Total indebtedness | $ | 3,529 | ||
| Equity: | ||||
| Ordinary Shares | 5 | |||
| Share premium | (92,222 | ) | ||
| Shareholders’ deficit | (64,772 | ) | ||
| Total shareholder's equity | (156,989 | ) | ||
| Total capitalization | $ | (153,460 | ) | |
C. Reasons for the Offer and Use of Proceeds
Not applicable.
D. Risk Factors
The risk factors associated with Namib are described in the Form F-4 in the section entitled “Risk Factors” and are incorporated herein by reference.
ITEM 4. INFORMATION ON THE COMPANY
A. History and Development of the Company
Namib Minerals was incorporated under the laws of the Cayman Islands on May 27, 2024 as an exempted company limited by shares with registration number 410406, having its registered office and mailing address for its principal executive office at Appleby Global Services (Cayman) Limited, 71 Fort Street, PO Box 500, Grand Cayman, Cayman Islands, KY1-1106, and its telephone number is (345) 769-4909. Upon consummation of the Business Combination on June 5, 2025, Namib’s only material asset is its interest in Greenstone. See “Explanatory Note” of this Report for further details on the Business Combination, and see also descriptions of the material terms of the Business Combination as described in the Form F-4 in the sections entitled “The Business Combination Agreement” and “Certain Agreements Related to the Business Combination” which are incorporated by reference.
Namib is subject to certain of the informational filing requirements of the Securities Exchange Act of 1934 (the “Exchange Act”). Since Namib 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 Namib 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 Namib Ordinary Shares. In addition, Namib 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, Namib is required to file with the SEC an Annual Report on Form 20-F containing financial statements audited by an independent accounting firm.
Namib’s principal website address is https://www.namibminerals.com/. We do not incorporate the information contained on, or accessible through, Namib’s website into this Report, and you should not consider it a part of this Report. The SEC also maintains a website at www.sec.gov that contains reports and other information that Namib files with or furnishes electronically to the SEC.
B. Business Overview
Prior to the Business Combination, Namib owned no material assets and did not operate any business. Upon consummation of the Business Combination on June 5, 2025, Namib became the direct parent of Greenstone and conducts its business through Greenstone and Greenstone’s subsidiaries. Information regarding the business of Namib is included in the Form F-4 under the sections entitled “Business of Greenstone and Information Related to Greenstone” and “Greenstone Management’s Discussion and Analysis of Financial Condition and Results of Operations” which is incorporated herein by reference. For a discussion of Greenstone’s principal capital expenditures and divestitures, reference is made to the section of the Form F-4 entitled “Greenstone Management’s Discussion and Analysis of Financial Condition and Results of Operations” which is incorporated herein by reference.
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C. Organizational Structure
The following diagram depicts the organizational structure of PubCo as of the date of this Report. All subsidiaries of PubCo are set forth in Exhibit 8.1 to this Report.
D. Property, Plants and Equipment
Information regarding the fixed assets of Namib is included in the form F-4 in the section entitled “Business of Greenstone and Certain Information about Greenstone — Mineral Resource and Mineral Reserve Summary Disclosure” 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 Namib is conducted through Greenstone, Namib’s direct, wholly-owned subsidiary, and Greenstone’s subsidiaries.
Reference is made to the section of the Form F-4 entitled “Greenstone 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 Executive Officers
The following table sets forth certain information relating to the executive officers and directors of Namib as of the date of this report.
| Name | Age | Title | Class | |||
| Ibrahima Tall | 47 | Chief Executive Officer and Director | III | |||
| Tulani Sikwila | 45 | Chief Financial Officer and Director | III | |||
| Siphesihle Mchunu | 36 | General Counsel and Director | II | |||
| Molly P. Zhang (aka Peifang Zhang) | 63 | Director | II | |||
| Dennis A. Johnson | 65 | Director | I | |||
| Tito Botelho Martins Júnior | 62 | Director | I |
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Ibrahima Tall. Mr. Tall serves as a Director and the Chief Executive Officer of Namib. Mr. Tall holds a master’s degree in civil engineering from Ecole Hassania des travaux Publics (EHTP) of Casablanca Morocco and has over 24 years of experience in mining operations and management in West and South Africa. Mr. Tall joined Greenstone and its predecessor companies in January 2019 as Chief Operating Officer and has served as Chief Executive Officer since June 2022. Prior to his time at Greenstone, Mr. Tall served in various management roles at Semafo and Managem. Mr. Tall also serves as a director of Standard Telecom Congo, a private company.
Tulani Sikwila. Mr. Sikwila serves as a Director and the Chief Financial Officer of Namib. Mr. Sikwila is a Chartered Accountant of England and Wales and holds an Executive M.Sc., Finance from HEC Paris. He has over 20 years of operational, accounting and finance expertise. Mr. Sikwila has spent over 19 years at Greenstone and its predecessor companies and has served in a variety of roles, most recently as Chief Financial Officer and Director. His long-standing association with the Company has provided him with an unparalleled understanding of its operations, strategies, and challenges. Mr. Sikwila is responsible for the company’s investment management, corporate finance, tax and compliance functions. Prior to his time at Greenstone, Mr. Sikwila worked as an auditor at Ernst & Young in Zimbabwe. Mr. Sikwila also serves as a director of Metallon Corporation Limited, a private U.K. company, and previously served as its Chief Executive Officer.
Siphesihle Mchunu. Mr. Mchunu serves as a Director and the General Counsel of Namib. Mr. Mchunu holds a Master of Laws from the University of Cape Town and a Bachelor of Laws from the University of Johannesburg and has over ten years of experience with a focus in energy, infrastructure, and mining. Mr. Mchunu joined Greenstone and its predecessor companies as its General Counsel in June 2020 and is responsible for managing the Company’s legal affairs. Prior to his time at Greenstone, Mr. Mchunu worked as an associate and/or senior associate at Poswa Incorporated, Routledge Modise (formerly Eversheds), and Hogan Lovells in South Africa. Mr. Mchunu also serves as a director of Standard Telecom Congo, a private company.
Molly P. Zhang (aka Peifang Zhang). Molly P. Zhang (aka Peifang Zhang) serves as a Director of Namib. Ms. Zhang holds a PhD in chemical engineering and a master’s degree in chemistry from the Technical University of Clausthal in Germany and has extensive international business, operational, and financial management experience, as well as services on various corporate boards of directors. Prior to her transition to board services, Ms. Zhang served in various global leadership positions with Orica Limited, a global mining services company, from 2011 to 2016, most recently as Vice President of Asset Management from 2015 to 2016. Ms. Zhang also served in various senior leadership positions with Dow Inc. from 1989 to 2009, most recently as Managing Director, SCG-Dow Group from 2009 to 2011. Ms. Zhang currently serves as a member of the board of directors of Gates Industrial Corporation plc (since July 2020) and Aqua Metals, Inc. (since March 2021), each a public company, and is a member of the Advisory Board of Circular Innovation Fund (since May 2023). Ms. Zhang recently served on the board of directors of Arch Resources, Inc., GEA Group AG, and Cooper-Standard Holdings, Inc.
Dennis A. Johnson. Dennis A. Johnson serves as a Director of Namib. Mr. Johnson graduated from Virginia Commonwealth University School of Business with a master’s degree in finance and the Virginia Military Institute with a bachelor’s degree in economics and is a Chartered Financial Analyst (“CFA”) Charter-holder. Mr. Johnson has over 40 years of experience as a global finance and investment executive and has served on the board of directors and as board committee chair for both public and private companies. He served as Managing Director at Citigroup from 1994 to 2005, Head of Global Corporate Governance for California Public Employees’ Retirement System (“CalPERS”), the largest public pension fund in the U.S., from 2005 to 2008, and non-executive director and member of the nominating & governance and compensation committees for Texas Industries (NYSE-TXI), one of the largest publicly traded cement and aggregates companies in the U.S. from 2009 to 2010. Mr. Johnson was also previously appointed to the SEC Investor Advisory Committee by SEC Chair Mary Shapiro. Mr. Johnson served as the Chief Investment Officer at TIAA, a Fortune 500 financial services company, from 2016 to 2018, and then served as Chief Strategy Officer at Public Investment Fund the sovereign wealth fund for the Kingdom of Saudi Arabia, from 2018 to 2020 and was based in Riyadh. Most recently, Mr. Johnson served as non-executive director and executive committee member for EasyKnock, a venture capital-backed fintech company, from 2023 to 2024 and was non-executive director and Chair of the audit committee for Glass Lewis & Company from 2022 to 2024. Mr. Johnson also served six years as an officer in the U.S. Army Reserve receiving an honorable discharge.
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Tito Botelho Martins Júnior. Tito Botelho Martins Júnior serves as a Director of Namib. Mr. Martins holds a Bachelor of Economics from the Federal University of Minas Gerais and an MBA from the IEAD Federal University of Rio de Janeiro, Brazil. He is a Certified Director with the National Association of Corporate Directors and has over 35 years of executive experience in the metals, mining, logistics, and energy sectors. Mr. Martins served in many executive positions at Vale S.A. from 1984 to 2003 and as Chief Executive Officer of Caemi Mineração Metalurgia from 2003 to 2006. Mr. Martins served in a variety of roles at Vale S.A. from 2006 to 2012, including most recently as Chief Financial Officer and Investor Relations Officer. From 2012 to 2021, Mr. Martins served as Chief Executive Officer and President of Nexa Resources SA (formerly Votorantim Metais) where he led the company’s initial public offering and listing on the New York Stock Exchange and the Toronto Stock Exchange. He was also Director of Cia Brasileira de Aluminio CBA, a private company, and Nexa Peru and Nexa Resources Atacocha, both public companies listed on the Lima Stock Exchange. Mr. Martins founded Kaiau Consultoria, a business and strategy consulting company, in 2022 and continues to serve as a Senior Advising Consultant. Mr. Martins currently serves as a director of Akasha Inc. and Capzul Corporation, both private companies.
B. Compensation
Information regarding the executive compensation of Namib’s executive officers and directors is included in the Form F-4 in the section entitled “Management of PubCo After the Business Combination — Compensation of Directors and Officers” which information is incorporated herein by reference.
C. Board Practices
Information regarding committees of the Board of Directors of Namib is included in the Form F-4 under the section entitled “Management of PubCo After the Business Combination — Board Committees” and is incorporated herein by reference. Information regarding the independence and classes of the Board of Directors of Namib is included in the Form F-4 under the section entitled “Management of PubCo After the Business Combination — Independence of our Board of Directors” and is incorporated herein by reference. However, Mr. Mark Harris, who is referenced in the Form F-4 as a director nominee, has been replaced by Mr. Tito Martins. Mr. Martins is an independent director and will assume the roles on the committees that Mr. Harris had previously been assigned.
D. Employees
Information regarding the employees of the Company is included in the Form F-4 under the section entitled “Business of Greenstone and Certain Information about Greenstone — Human Resources Capital” and is incorporated herein by reference.
E. Share Ownership
Information regarding the ownership of the Namib Ordinary Shares by our directors and executive officers is set forth in Item 7.A of this Report.
F. Disclosure of a Registrant’s Action to Recover Erroneously Awarded Compensation.
Not applicable.
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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 Namib Ordinary Shares as of June 5, 2025 by:
| · | each person, or group of affiliated persons, known by us to beneficially own more than 5% of outstanding Namib Ordinary Shares; |
| · | each of our directors; |
| · | each of our executive officers; and |
| · | all of our directors and executive officers as a group. |
Except as otherwise noted herein, the number and percentage of Namib Ordinary Shares beneficially owned is determined in accordance with Rule 13d-3 of the Exchange Act, and the information is not necessarily indicative of beneficial ownership for any other purpose. Under such rule, beneficial ownership includes any Namib Ordinary Shares as to which the holder has sole or shared voting power or investment power and also any Namib Ordinary Shares which the holder has the right to acquire within 60 days of June 5, 2025 through the exercise of any option, warrant or any other right. These shares were not deemed outstanding, however, for the purpose of computing the percentage ownership of any other person or entity.
The percentage of Namib Ordinary Shares beneficially owned is computed on the basis of 53,677,429 Namib Ordinary Shares outstanding on June 5, 2025.
Unless otherwise indicated, we believe that all persons named in the table below have sole voting and investment power with respect to all Namib Ordinary Shares beneficially owned by them.
Unless otherwise noted, the business address of each of our directors and officers is 71 Fort Street, PO Box 500, Grand Cayman, Cayman Islands, KY1-11061.
| Name | Amount and Nature of Beneficial Ownership | Approximate Percentage of Outstanding Shares | ||||||
| Ibrahima Tall(1) | 1,954,798 | 3.6 | % | |||||
| Tulani Sikwila(2) | 4,838,126 | 9.0 | % | |||||
| Siphesihle Mchunu(3) | 977,399 | 1.8 | % | |||||
| Molly P. Zhang | — | — | ||||||
| Dennis A. Johnson | — | — | ||||||
| Tito Botelho Martins Júnior | — | — | ||||||
| All directors and executive officers as a group (6 individuals) | 7,770,573 | 14.5 | % | |||||
| Five Percent Holders: | ||||||||
| Tulani Sikwila(2) | 4,838,126 | 9.0 | % | |||||
| Mzilakazi Godfrey Khumalo(5) | 4,886,996 | 9.1 | % | |||||
| Hennessy Capital Partners VI LLC(4) | 3,695,000 | 6.9 | % | |||||
| The Southern SelliBen Trust(6) | 34,208,973 | 63.7 | % | |||||
Notes: —
| * | Less than 1%. |
| (1) | Represents securities held by The South Rivers Foundation, and Ibrahima Tall exercises sole voting and dispositive power over such securities. |
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| (2) | Represents securities held by The NostroHeritage Foundation, and Tulani Sikwila exercises sole voting and dispositive power over such securities. |
| (3) | Represents securities held by The Red Richmond Foundation, and Siphesihle Mchunu exercises sole voting and dispositive power over such securities. |
| (4) | The address of Daniel J. Hennessy and Hennessy Capital Partners VI LLC is c/o Hennessy Capital Group LLC, 195 US Hwy 50, Suite 309 Zephyr Cove, NV. Hennessy Capital Partners VI LLC (the “Sponsor”) is the current record holder of 3,695,000 Namib Ordinary Shares. Hennessy Capital Group LLC (“HCG”) is the managing member of the Sponsor. Daniel J. Hennessy and Thomas D. Hennessy are the managing members of HCG. Consequently, Messrs. Hennessy may be deemed the beneficial owners of the securities held by the Sponsor, and have shared voting and dispositive control over such securities. Messrs. Hennessy disclaim beneficial ownership over any securities owned by the Sponsor in which they do not have any pecuniary interest. |
| (5) | The address of Mr. Khumalo is Route de Choulex 220, 1252 Meinier, Switzerland. |
| (6) | The address of the Southern SelliBen Trust (the “Trust”) is Cone Marshall Limited, Floor 3, 32 Mahuhu Crescent, Auckland Central, New Zealand. The voting and dispositive power with respect to the securities held by the Trust is exercised by its trustee, Three Rivers PTC Limited (“Three Rivers”). Decisions at Three Rivers are made by majority decisions of a board of four directors which includes Tulani Sikwila, Namib’s Chief Financial Officer and Director. None of the directors of Three Rivers has beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of any securities held by the Trust. Mr. Sikwila, in his role as a director of Three Rivers, disclaims any beneficial ownership of the securities held by the Trust. The assets held by the Trust are held for the benefit of Mr. Khumalo’s family. Mr. Khumalo is the settlor of the Trust but has no voting or dispositive power over the securities held by the Trust. |
Each outstanding Namib Ordinary Share is entitled to one vote for each share held of record on all matters to be voted on by shareholders. None of the holders of Namib Ordinary Shares have different voting rights from the other holders. We are not aware of any arrangements, the operation of which may, at a subsequent date, would result in a change of control.
As of June 5, 2025, we had seven shareholders of record located in the United States. One of those shareholders was CEDE & CO., a nominee of The Depository Trust Company, which held in aggregate 107,469 Namib Ordinary Shares, representing approximately 0.2% of our outstanding Namib Ordinary Shares. The other shareholders held 3.9 million Namib Ordinary Shares, representing 7.3% of our outstanding Namib Ordinary Shares.
B. Related Party Transactions
Information regarding certain related person transactions is included in the Form F-4 under the section entitled “Certain Greenstone Relationships and Related Person Transactions” and is incorporated herein by reference.
C. Interests of Experts and Counsel
None.
A. Consolidated Statements and Other Financial Information
Financial Statements
See Item 18 of this Report for financial statements and other financial information.
Legal Proceedings
Legal proceedings are described in the Form F-4 in the section entitled “Business of Greenstone and Certain Information about Greenstone — Legal Proceedings” and is incorporated herein by reference.
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Dividend Policy
Namib has not paid any cash dividends on its equity securities to date. The payment of cash dividends by Namib in the future will be dependent upon the revenues and earnings, if any, capital requirements and general financial condition. The Namib Board will consider whether or not to institute a dividend policy. It is presently intended that Namib will retain its earnings for use in business operations and, accordingly, it is not anticipated that the Namib Board will declare dividends in the foreseeable future. The Namib Board may decide, in the future, to declare cash dividends after Namib has recommenced full operations at the Redwing Mine and the Mazowe Mine and has retained sufficient capital to fund the development and expansion of any other mines or mineral rights. However, no assurance can be made that dividends will be declared, or the timing thereof. Such decision remains within the Namib Board’s discretion, subject to applicable legal, financial, and contractual requirements.
B. Significant Changes
Information on significant changes of Namib since December 31, 2024 is provided in the “Explanatory Note” portion of this Report and in the Form F-4 in the section entitled “Greenstone Management’s Discussion and Analysis of Financial Condition and Results of Operations — Recent Developments” and is incorporated herein by reference.
A. Offer and Listing Details
Nasdaq Listing of Namib Ordinary Shares and Warrants
Our Ordinary Shares and Warrants are listed on Nasdaq under the symbols “NAMM” and “NAMMW,” respectively.
Lock-up Restrictions
Information regarding the lock-up restrictions applicable to the Namib Ordinary Shares and Namib Warrants is included in the Form F-4 under the section entitled “Certain Agreements Related to the Business Combination — Registration Rights and Lock-up Agreement” and is incorporated herein by reference.
B. Plan of Distribution
Not applicable.
C. Markets
Our Ordinary Shares and Warrants are listed on Nasdaq under the symbols “NAMM” and “NAMMW,” respectively.
D. Selling Shareholders
Not applicable.
E. Dilution
Not applicable.
F. Expenses of the Issue
Not applicable.
ITEM 10. ADDITIONAL INFORMATION
A. Share Capital
Namib’s authorized share capital is $50,000 divided into 500,000,000 ordinary shares with a par value of US $0.0001 each. As of June 5, 2025, subsequent to closing of the Business Combination, there were 53,677,429 Namib Ordinary Shares outstanding. Upon the closing of the Business Combination, there were 18,576,712 Namib Warrants outstanding. The Namib Warrants will expire on 5.00 p.m. New York time, on June 5, 2030.
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B. Memorandum and Articles of Association
The second amended and restated articles of association of Namib, dated as of June 5, 2025, is included as Exhibit 1.1 to this Report. The description of the second amended and restated articles of association of Namib contained in the Form F-4 in the section entitled “Description of PubCo’s Securities” is incorporated herein by reference.
C. Material Contracts
Contracts Relating to the Business Combination
The description of the Business Combination Agreement included in the Form F-4 in the section entitled “The Business Combination Agreement” is incorporated herein by reference. Descriptions of other agreements relating to the Business Combination are included in the Form F-4 under the section entitled “Certain Agreement Related to the Business Combination” and are incorporate herein by reference.
Other Contracts
Descriptions of other material agreements are included in the Form F-4 under the sections entitled “Business of Greenstone and Information Related to Greenstone — Mineral Resource and Mineral Reserve Summary Disclosure,” “Proposal No. 3 — The Equity Incentive Plan Proposal,” and “Greenstone Management’s Discussion and Analysis of Financial Condition and Results of Operations — Recent Developments” and are incorporated herein by reference.
D. Exchange Controls and Other Limitations Affecting Security Holders
Under the Cayman Islands law, there are currently no restrictions on the export or import of capital, including foreign exchange controls or restrictions that affect the remittance of dividends, interest or other payments to non-resident holders of our Namib Ordinary Shares.
E. Taxation
Information pertaining to tax considerations is set forth in the Form F-4, in the sections entitled “Material U.S. Federal Income Tax Considerations” and “Certain Material Cayman Islands Tax Considerations,” and is incorporated herein by reference.
F. Dividends and Paying Agents
The information regarding Namib’s dividend policy included in Item 8.A of this Report and in the Form F-4 in the section entitled “Description of PubCo’s Securities — Dividends” is incorporated herein by reference. The Company has not identified a paying agent.
G. Statement by Experts
The consolidated financial statements of Greenstone Corporation as of and for each of the years ended December 31, 2024 and December 31, 2023 incorporated by reference herein have been audited by BDO South Africa Incorporated, an independent registered public accounting firm, as stated in their report appearing therein. Such financial statements are included in reliance on such report given upon the authority of BDO South Africa Incorporated as experts in accounting and auditing. The address of BDO South Africa Incorporated is Wanderers Office Park, 52 Corlett Drive, Illovo South Africa 2196.
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The audited financial statements of Namib Minerals for the period from May 27, 2024 (inception) to December 31, 2024 incorporated by reference herein have been audited by BDO South Africa Incorporated, an independent registered public accounting firm, as stated in their report appearing therein. Such financial statements are included in reliance upon the report of such firm given upon their authority as experts in accounting and auditing.
The financial statements of HCVI as of December 31, 2024 and December 31, 2023 and for the years then ended incorporated by reference herein have been audited by WithumSmith+Brown, PC, an independent registered public accounting firm, as stated in their report, which includes an explanatory paragraph as to HCVI’s ability to continue as a going concern. Such financial statements are included in reliance upon the report of such firm given upon their authority as experts in accounting and auditing. WithumSmith+Brown’s address is 506 Carnegie Ctr Ste 400, Princeton, NJ 08540
Aaron Radonich and Allan Blair have prepared the Technical Report Summaries with respect to the How Mine, the Redwing Mine and the Mazowe Mine which are incorporated by reference herein. Each of Mr. Radonich and Allan Blair is a qualified person as defined in Subpart 1300 (17 CFR 229.1300) of Regulation S-K and employed by WSP Australia Pty Limited (WSP). WSP’s address is Level 3, 51-55 Bolton St. PO Box 1162 Newcastle NSW 2300.
H. Documents on Display
We are subject to the informational requirements of the Exchange Act. Accordingly, we are required to file reports and other information with the SEC, including annual reports on Form 20-F and reports on Form 6-K. The SEC maintains an Internet site at www.sec.gov that contains reports, proxy and information statements and other information we have filed electronically with the SEC. As a foreign private issuer, we are exempt under the Exchange Act from, among other things, the rules prescribing the furnishing and content of proxy statements, and our executive officers, directors and principal shareholders are exempt from the reporting and short-swing profit recovery provisions contained in Section 16 of the Exchange Act. In addition, we are not required under the Exchange Act to file periodic reports and financial statements with the SEC as frequently or as promptly as U.S. companies whose securities are registered under the Exchange Act.
I. Subsidiary Information
Not applicable.
ITEM 11. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISKS
The information on market risk is set forth in the Form F-4 in the section titled “Greenstone 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.
ITEM 12. DESCRIPTION OF SECURITIES OTHER THAN EQUITY SECURITIES
Not applicable.
Not applicable.
See Item 18.
The audited consolidated financial statements of Greenstone as of and for the years ended December 31, 2024 and 2023 contained in the Form F-4 are incorporated herein by reference.
The audited financial statements of Namib as of December 31, 2024 and for the period from May 27, 2024 (inception) through December 31, 2024 contained in the Form F-4 are incorporated herein by reference.
The audited financial statements of HCVI as of and for the years ended December 31, 2024 and 2023 and contained in the Form F-4 are incorporated herein by reference.
Unaudited pro forma condensed consolidated combined financial information of Namib, HCVI and Greenstone is attached as Exhibit 99.1 to this Report.
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11
| * | Filed herewith. |
| # | Certain schedules, annexes and exhibits have been omitted but will be furnished supplementally to the SEC upon request. |
| + | Indicates a management contract or any compensatory plan, contract or arrangement. |
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SIGNATURE
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.
| NAMIB MINERALS | ||
| June 11, 2025 | By: | /s/ Ibrahima Tall |
| Name: | Ibrahima Tall | |
| Title: | Chief Executive Officer (Principal Executive Officer) | |
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Exhibit 1.1
THE COMPANIES ACT (AS REVISED)
OF THE CAYMAN ISLANDS
COMPANY LIMITED BY SHARES
SECOND AMENDED AND RESTATED
MEMORANDUM AND ARTICLES OF ASSOCIATION
OF
Namib Minerals
(Adopted by a Special Resolution passed on 4 June 2025 and effective on 5 June 2025)
THE COMPANIES ACT (AS REVISED)
OF THE CAYMAN ISLANDS
COMPANY LIMITED BY SHARES
SECOND AMENDED AND RESTATED
MEMORANDUM OF ASSOCIATION
OF
Namib Minerals
(Adopted by a Special Resolution passed on 4 June 2025 and effective on 5 June 2025)
| 1 | The name of the Company is Namib Minerals |
| 2 | The Registered Office of the Company shall be at the offices of Appleby Global Services, 71 Fort Street, PO Box 500, Grand Cayman, KY1-1106, Cayman Islands, or at such other place within the Cayman Islands as the Directors may decide. |
| 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 the laws of the Cayman Islands. |
| 4 | The liability of each Member is limited to the amount unpaid on such Member’s shares. |
| 5 | The share capital of the Company is US$50,000 divided into 500,000,000 ordinary shares with a par value of US$0.0001 each. |
| 6 | The Company has power to register by way of continuation as a body corporate limited by shares under the laws of any jurisdiction outside the Cayman Islands and to be deregistered in the Cayman Islands. |
| 7 | Capitalised terms that are not defined in this Second Amended and Restated Memorandum of Association bear the respective meanings given to them in the Second Amended and Restated Articles of Association of the Company. |
THE COMPANIES ACT (AS REVISED)
OF THE CAYMAN ISLANDS
COMPANY LIMITED BY SHARES
SECOND AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
OF
Namib Minerals
(Adopted by a Special Resolution passed on 4 June 2025 and effective on 5 June 2025)
| 1 | Interpretation |
| 1.1 | In the Articles Table A in the First Schedule to the Statute does not apply and, unless there is something in the subject or context inconsistent therewith: |
|
“Applicable Law”
|
means, with respect to any person, all provisions of laws, statutes, ordinances, rules, regulations, permits, certificates, judgments, decisions, decrees or orders of any governmental authority applicable to such person. | ||
| “Articles” | means these second amended and restated articles of association of the Company as amended, restated, supplemented and/or otherwise modified from time to time. | ||
| “Audit Committee” | means the audit committee of the Board established pursuant to the Articles, or any successor committee. | ||
| “Auditor” | means the person for the time being performing the duties of auditor of the Company (if any). | ||
| “Board” | means the board of Directors of the Company, from time to time. | ||
| “clearing house” | a clearing house recognised by the laws of the jurisdiction in which the Shares (or depositary receipts therefor) are listed or quoted on a stock exchange or interdealer quotation system in such jurisdiction. | ||
| “Company” | means the above named company. |
| “Compensation Committee” | means the compensation committee of the Board established pursuant to the Articles, or any successor committee. | ||
| “Communication Facilities” | means video, video-conferencing, internet or online conferencing applications, telephone or tele-conferencing and/or any other video-communication, internet or online conferencing application or telecommunications facilities by means of which all Persons participating in a meeting are capable of hearing and be heard by each other. | ||
| “Designated Stock Exchange” | means any national securities exchange in the United States or automated quotation system on which the Company’s securities are listed for trading, including but not limited to the Nasdaq Stock Market. | ||
| “Directors” | means the directors for the time being of the Company, including Independent Directors. | ||
| “Dividend” | means any dividend (whether interim or final) resolved to be paid on Shares pursuant to the Articles. | ||
| “Electronic Means” | means sending or otherwise making the communication available to the intended recipients in electronic format. | ||
| “Electronic Record” | has the same meaning as in the Electronic Transactions Act. | ||
| “Electronic Transactions Act” | means the Electronic Transactions Act (As Revised) of the Cayman Islands. | ||
| “Independent Director” | means a Director who is an independent director as defined in the Designated Stock Exchange Rules as determined by the Board. | ||
| “Nominating and Corporate Governance Committee” | means the nominating and corporate governance committee of the Board established pursuant to the Articles, or any successor committee. | ||
| “Member” | has the same meaning as in the Statute. | ||
| “Memorandum” | means the second amended and restated memorandum of association of the Company as amended, restated, supplemented and/or otherwise modified from time to time. |
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| “Ordinary Resolution” | means a resolution of a general meeting, at which a quorum is present, passed by a simple majority of the votes cast by, or on behalf of, the Members entitled to vote thereon in person or by proxy, and includes a unanimous written resolution. In computing the majority when a poll is demanded regard shall be had to the number of votes to which each Member is entitled by the Articles. | ||
| “Ordinary Share” | means an ordinary share of a par value of US$0.0001 in the share capital of the Company, designated as an Ordinary Share and having the rights provided for in these Articles. | ||
| “Person” | shall mean any natural person, firm, company, joint venture, partnership, exempted limited partnership, corporation, exempted company, limited liability company, association or other entity (whether or not having a separate legal personality) or any of them as the context so requires. | ||
| “Present” |
shall mean, in respect of any Person, such Person’s presence at a general meeting of members, which may be satisfied by means of such Person or, if a corporation or other non-natural Person, its duly authorised representative (or, in the case of any member, a proxy which has been validly appointed by such member in accordance with these Articles), being:
(a) physically present at the meeting; or
(b) in the case of any meeting at which Communication Facilities are permitted in accordance with these Articles connected by means of the use of such Communication Facilities.
| ||
| “Register of Members” | means the register of Members maintained in accordance with the Statute and includes (except where otherwise stated) any branch or duplicate register of Members. | ||
| “Registered Office” | means the registered office for the time being of the Company. | ||
| “Seal” | means the common seal of the Company and includes every duplicate seal. | ||
| “SEC” | means the United States Securities and Exchange Commission. |
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| “Share” | means any share in the capital of the Company, including the Ordinary Shares and includes a fraction of a share in the Company. | ||
| “signed” | means a signature or representation of a signature affixed by mechanical means or an electronic symbol or process attached to or logically associated with an electronic communication and executed or adopted by a person with the intent to sign the electronic communication. | ||
| “Special Resolution” | has the same meaning as in the Statute, and includes a unanimous written resolution. | ||
| “Statute” | means the Companies Act (As Revised) of the Cayman Islands, including any statutory modification or re-enactment thereof for the time being in force. | ||
| “Tax Filing Authorised Person” | means such person as any director shall designate from time to time, acting severally. | ||
| “Treasury Share” | means a Share held in the name of the Company as a treasury share in accordance with the Statute. |
| 1.2 | In the Articles: |
| (a) | words importing the singular number include the plural number and vice versa; |
| (b) | words importing the masculine gender include the feminine gender; |
| (c) | words importing persons include corporations as well as any other legal or natural person; |
| (d) | “written” and “in writing” include all modes of representing or reproducing words in visible form, including in the form of an Electronic Record; |
| (e) | “shall” shall be construed as imperative and “may” shall be construed as permissive; |
| (f) | references to provisions of any law or regulation shall be construed as references to those provisions as amended, modified, re-enacted or replaced; |
| (g) | any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; |
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| (h) | the term “and/or” is used herein to mean both “and” as well as “or.” The use of “and/or” in certain contexts in no respects qualifies or modifies the use of the terms “and” or “or” in others. The term “or” shall not be interpreted to be exclusive and the term “and” shall not be interpreted to require the conjunctive (in each case, unless the context otherwise requires); |
| (i) | headings are inserted for reference only and shall be ignored in construing the Articles; |
| (j) | any requirements as to delivery under the Articles include delivery in the form of an Electronic Record; |
| (k) | 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; |
| (l) | sections 8 and 19(3) of the Electronic Transactions Act shall not apply; |
| (m) | the term “clear days” in relation to the period of a notice means that period excluding the day when the notice is received or deemed to be received and the day for which it is given or on which it is to take effect; and |
| (n) | the term “holder” in relation to a Share means a person whose name is entered in the Register of Members as the holder of such Share. |
| 2 | Commencement of Business |
| 2.1 | The business of the Company may be commenced as soon after incorporation of the Company as the Directors shall see fit. |
| 2.2 | The Directors may pay, out of the capital or any other monies of the Company, all expenses incurred in or about the formation and establishment of the Company, including the expenses of registration. |
| 3 | Issue of Shares and other Securities |
| 3.1 | Subject to the provisions, if any, in the Memorandum (and to any direction that may be given by the Company in general meeting), these Articles and, where applicable, the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law, and without prejudice to any rights attached to any existing Shares, the Directors may, in their absolute discretion and without approval of the holders of Ordinary Shares, allot, issue, grant options over or otherwise dispose of Shares (including fractions of a Share) with or without preferred, deferred or other rights or restrictions, whether in regard to Dividend or other distribution, voting, return of capital or otherwise, any or all of which may be greater than the powers and rights associated with the Ordinary Shares, to such persons, at such times and on such other terms as they think proper, which shall be conclusively evidenced by their approval of the terms thereof, and may also (subject to the Statute and these Articles) vary such rights. |
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| 3.2 | Without limitation to the preceding Article, the Directors may so deal with the unissued Shares: (a) either at a premium or at par; or (b) with or without preferred, deferred or other special rights or restrictions, whether in regard to dividend, voting, return of capital or otherwise. |
| 3.3 | Without limitation to the two preceding Articles, 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. |
| 3.4 | The Company may issue rights, options, warrants or convertible securities or securities of similar nature conferring the right upon the holders thereof to subscribe for, purchase or receive any class of Shares or other securities in the Company on such terms as the Directors may from time to time determine. |
| 3.5 | The Company may issue units of securities in the Company, which may be comprised of Shares, rights, options, warrants or convertible securities or securities of similar nature conferring the right upon the holders thereof to subscribe for, purchase or receive any class of Shares or other securities in the Company, on such terms and conditions as the directors may decide. |
| 4 | The Company shall not issue Shares in bearer form and shall only issue Shares as fully paid.Ordinary Shares |
| 4.1 | The holders of the Ordinary Shares shall be: |
| (a) | entitled to Dividends in accordance with the relevant provisions of these Articles; |
| (b) | entitled to and are subject to the provisions in relation to winding up of the Company provided for in these Articles; |
| (c) | entitled to attend general meetings of the Company and shall be entitled to one vote for each Ordinary Share registered in his or her name in the Register of Members, both in accordance with the relevant provisions of these Articles. |
| 4.2 | All Ordinary Shares shall rank pari passu with each other in all respects. |
| 5 | Register of Members |
| 5.1 | The Company shall maintain or cause to be maintained the Register of Members in accordance with the Statute, provided that for so long as the securities of the Company are listed for trading on the Designated Stock Exchange, title to such securities may be evidenced and transferred in accordance with the laws applicable to and the rules and regulations of the Designated Stock Exchange. |
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| 5.2 | The Directors may determine that the Company shall maintain one or more branch registers of Members in accordance with the Statute. The Directors may also determine which register of Members shall constitute the principal register and which shall constitute the branch register or registers, and to vary such determination from time to time. |
| 6 | Annual Return |
| 6.1 | The Directors in each calendar year shall prepare or cause to be prepared an annual return and declaration setting forth the particulars required by the Statute and shall deliver a copy thereof to the registrar of companies for the Cayman Islands. |
| 7 | Closing Register of Members or Fixing Record Date |
| 7.1 | For the purpose of determining Members entitled to notice of, or to vote at any meeting of Members or any adjournment thereof, or Members entitled to receive payment of any Dividend or other distribution, or in order to make a determination of Members for any other purpose, the Directors may, after notice has been given by advertisement in an appointed newspaper or any other newspaper or by any other means in accordance with the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law, provide that the Register of Members shall be closed for transfers for a stated period which shall not in any case exceed forty (40) days. |
| 7.2 | In lieu of, or apart from, closing the Register of Members, the Directors may fix in advance or arrears a date as the record date for any such determination of Members entitled to notice of, or to vote at any meeting of the Members or any adjournment thereof, or for the purpose of determining the Members entitled to receive payment of any Dividend or other distribution, or in order to make a determination of Members for any other purpose. |
| 7.3 | If the Register of Members is not so closed and no record date is fixed for the determination of Members entitled to notice of, or to vote at, a meeting of Members or Members entitled to receive payment of a Dividend or other distribution, the date on which notice of the meeting is sent or the date on which the resolution of the Directors resolving to pay such Dividend or other distribution is passed, as the case may be, shall be the record date for such determination of Members. When a determination of Members entitled to vote at any meeting of Members has been made as provided in this Article, such determination shall apply to any adjournment thereof. |
| 8 | Certificates for Shares |
| 8.1 | A Member shall only be entitled to a Share certificate if the Directors resolve that Share certificates shall be issued. Share certificates representing Shares, if any, shall be in such form as the Directors may determine. Share certificates shall be signed by one or more Directors or other person authorised by the Directors. The Directors may authorise certificates to be issued under seal or executed in such other manner as the Directors determine. All certificates for Shares shall be consecutively numbered or otherwise identified and shall specify the Shares to which they relate. All certificates surrendered to the Company for transfer shall be cancelled and subject to the Articles no new certificate shall be issued until the former certificate representing a like number of relevant Shares shall have been surrendered and cancelled. Every certificate shall bear legends required under the Applicable Law, including the U.S. Securities Act of 1933, as amended. |
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| 8.2 | The Company shall not be bound to issue more than one certificate for Shares held jointly by more than one person and delivery of a certificate to one joint holder shall be a sufficient delivery to all of them. |
| 8.3 | If a Share certificate is defaced, worn out, lost or destroyed, it may be renewed on such terms (if any) as to evidence and indemnity and on the payment of such expenses reasonably incurred by the Company in investigating evidence, as the Directors may prescribe, and (in the case of defacement or wearing out) upon delivery of the old certificate. |
| 8.4 | Every Share certificate sent in accordance with the Articles will be sent at the risk of the Member or other person entitled to the certificate. The Company will not be responsible for any Share certificate lost or delayed in the course of delivery. |
| 8.5 | Share certificates shall be issued within the relevant time limit as prescribed by the Statute, if applicable, or as the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law may from time to time determine, whichever is shorter, after the allotment or, except in the case of a Share transfer which the Company is for the time being entitled to refuse to register and does not register, after lodgement of a Share transfer with the Company. |
| 9 | Transfer of Shares |
| 9.1 | Subject to the terms of the Articles, any Member may transfer all or any of his Shares by an instrument of transfer provided that such transfer complies with the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law. If the Shares in question were issued in conjunction with rights, options, warrants or units issued pursuant to the Articles on terms that one cannot be transferred without the other, the Directors shall refuse to register the transfer of any such Share without evidence satisfactory to them of the like transfer of such right, option, warrant or unit. |
| 9.2 | The instrument of transfer of any Share shall be in writing in the usual or common form or in a form prescribed by the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law or in any other form approved by the Directors and shall be executed by or on behalf of the transferor (and if the Directors so require, signed by or on behalf of the transferee) 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 transferor shall be deemed to remain the holder of a Share until the name of the transferee is entered in the Register of Members. |
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| 10 | Redemption, Repurchase and Surrender of Shares |
| 10.1 | Subject to the provisions, if any, in these Articles, the Memorandum, Applicable Law, including the Statute, and the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law, 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 Member on such terms and in such manner as the Directors may, before the issue of such Shares, determine; and |
| (b) | repurchase its own Shares (including any redeemable Shares) in such manner and on such other terms as the Directors may agree with the relevant Member, provided that the manner of repurchase is in accordance with any applicable requirements imposed from time to time by the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law; |
| 10.2 | For the avoidance of doubt, redemptions, repurchases and surrenders of Shares in the circumstances described in the Article above shall not require further approval of the Members. |
| 10.3 | The Company may make a payment in respect of the redemption or repurchase of its own Shares in any manner permitted by the Statute, including out of capital. |
| 10.4 | The Directors may accept the surrender for no consideration of any fully paid Share. |
| 10.5 | Upon the date of redemption or repurchase of a Share: (a) the Member holding that Share shall cease to be entitled to any rights in respect of the Share other than the right to receive: (i) the price for the Share; and (ii) any dividend declared in respect of the Share prior to the date of redemption or repurchase; (b) the Member’s name shall be removed from the register of Members with respect to the Share; and (c) the Share shall be cancelled or held as a Treasury Share, as the Directors may determine. |
| 10.6 | For the purpose of Article 10.5, the date of redemption or repurchase is the date when the Member’s name is removed from the register of Members with respect to the Shares the subject of the redemption or repurchase. |
| 11 | Treasury Shares |
| 11.1 | Subject to the relevant provisions of the Memorandum, Articles and the Statute being complied with, the Directors may, prior to the repurchase, redemption or surrender of any Share, determine that such Share shall be held as a Treasury Share. |
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| 11.2 | The Directors may determine to cancel a Treasury Share or transfer a Treasury Share on such terms as they think proper (including, without limitation, for nil consideration). |
| 11.3 | 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 made to the Company in respect of a Treasury Share. |
| 11.4 | The Company shall be entered in the register of Members as the holder of the Treasury Shares. However: (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; and (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 Statute. |
| 11.5 | Treasury Shares may be disposed of by the Company in accordance with the Statute and otherwise on such terms and conditions as the Directors determine. |
| 12 | Variation of Rights of Shares |
| 12.1 | If at any time the share capital of the Company is divided into different classes of Shares, all or any of the rights attached to any class (unless otherwise provided by the terms of issue of the Shares of that class) may, whether or not the Company is being wound up, be varied without the consent of the holders of the issued Shares of that class where such variation is considered by the Directors not to have a material adverse effect upon such rights; otherwise, any such variation shall be made only with the consent in writing of the holders of not less than two thirds (2/3) of the issued Shares of that class, or with the sanction of a Special Resolution passed at a separate meeting of the holders of the Shares of that class. For the avoidance of doubt, the Directors reserve the right, notwithstanding that any such variation may not have a material adverse effect, to obtain consent from the holders of Shares of the relevant class. To any such meeting all the provisions of the Articles relating to general meetings shall apply mutatis mutandis, except that the necessary quorum shall be one person holding or representing by proxy at least one third (1/3) of the issued Shares of the class and that any holder of Shares of the class present in person or by proxy may demand a poll. |
| 12.2 | For the purposes of a separate class meeting, the Directors may treat two (2) or more or all the classes of Shares as forming one class of Shares if the Directors consider that such class of Shares would be affected in the same way by the proposals under consideration, but in any other case shall treat them as separate classes of Shares. |
| 12.3 | The rights conferred upon the holders of the Shares of any class issued with preferred or other rights shall not, unless otherwise expressly provided by the terms of issue of the Shares of that class, be deemed to be varied by the creation or issue of further Shares ranking pari passu therewith. |
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| 13 | Commission on Sale of Shares |
The Company may, in so far as the Statute permits, pay a commission to any person in consideration of that person subscribing or agreeing to subscribe (whether absolutely or conditionally) or procuring or agreeing to procure subscriptions (whether absolutely or conditionally) for any Shares. Such commissions may be satisfied by the payment of cash and/or the issue of fully or partly paid-up Shares. The Company may also on any issue of Shares pay such brokerage as may be lawful.
| 14 | Non Recognition of Trusts |
Except as required by Applicable Law, the Company shall not be bound by or compelled to recognise in any way (even when notified) any equitable, contingent, future or partial interest in any Share, or any other rights in respect of any Share other than an absolute right to the entirety thereof in the holder.
| 15 | Lien on Shares |
| 15.1 | The Company shall have a first and paramount lien on all Shares (whether fully paid-up or not) registered in the name of a Member (whether solely or jointly with others) for all debts, liabilities or engagements to or with the Company (whether presently payable or not) by such Member or their estate, either alone or jointly with any other person, whether a Member or not, but the Directors may at any time declare any Share to be wholly or in part exempt from the provisions of this Article. The registration of a transfer of any such Share shall operate as a waiver of the Company’s lien thereon. The Company’s lien on a Share shall also extend to any amount payable in respect of that Share. |
| 15.2 | The Company may sell, in such manner as the Directors think fit, any Shares on which the Company has a lien, if a sum in respect of which the lien exists is presently payable, and is not paid within fourteen (14) clear days after notice has been received or deemed to have been received by the holder of the Shares, or to the person entitled to it in consequence of the death or bankruptcy of the holder, demanding payment and stating that if the notice is not complied with the Shares may be sold. To the maximum extent permitted by Applicable Law, the Directors shall incur no personal liability to the Member concerned in respect of the sale. |
| 15.3 | To give effect to any such sale the Directors may authorise any person to execute an instrument of transfer of the Shares sold to, or in accordance with the directions of, the purchaser. The purchaser or their nominee shall be registered as the holder of the Shares comprised in any such transfer, and they shall not be bound to see to the application of the purchase money, nor shall their title to the Shares be affected by any irregularity or invalidity in the sale or the exercise of the Company’s power of sale under the Articles. |
| 15.4 | On a sale pursuant to the preceding Articles: (a) the name of the Member concerned shall be removed from the register of Members as the holder of those Shares subject to a lien; and (b) that person shall deliver to the Company for cancellation the certificate (if any) for such Shares. |
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| 15.5 | The net proceeds of such sale after payment of costs, shall be applied in payment of such part of the amount in respect of which the lien exists as is presently payable and any balance shall (subject to a like lien for sums not presently payable as existed upon the Shares before the sale) be paid to the person entitled to the Shares at the date of the sale. |
| 16 | Call on Shares |
| 16.1 | Subject to the terms of the allotment and issue of any Shares, the Directors may make calls upon the Members in respect of any monies unpaid on their Shares (whether in respect of par value or premium), and each Member shall (subject to receiving at least fourteen (14) clear days’ notice specifying the time or times of payment) pay to the Company at the time or times so specified the amount called on the Shares. A call may be revoked or postponed, in whole or in part, as the Directors may determine. A call may be required to be paid by instalments. A person upon whom a call is made shall remain liable for calls made upon them notwithstanding the subsequent transfer of the Shares in respect of which the call was made. |
| 16.2 | A call shall be deemed to have been made at the time when the resolution of the Directors authorising such call was passed. |
| 16.3 | The joint holders of a Share shall be jointly and severally liable to pay all calls in respect thereof. |
| 16.4 | If a call remains unpaid after it has become due and payable, the person from whom it is due shall pay interest on the amount unpaid from the day it became due and payable until it is paid at such rate as the Directors may determine (and in addition all expenses that have been incurred by the Company by reason of such non-payment), but the Directors may waive payment of the interest or expenses wholly or in part. |
| 16.5 | An amount payable in respect of a Share on issue or allotment or at any fixed date, whether on account of the par value of the Share or premium or otherwise, shall be deemed to be a call and if it is not paid all the provisions of the Articles shall apply as if that amount had become due and payable by virtue of a call. |
| 16.6 | The Directors may issue Shares with different terms as to the amount and times of payment of calls, or the interest to be paid. |
| 16.7 | The Directors may, if they think fit, receive an amount from any Member willing to advance all or any part of the monies uncalled and unpaid upon any Shares held by that Member, and may (until the amount would otherwise become payable) pay interest at such rate as may be agreed upon between the Directors and the Member paying such amount in advance. |
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| 16.8 | No such amount paid in advance of calls shall entitle the Member paying such amount to any portion of a Dividend or other distribution payable in respect of any period prior to the date upon which such amount would, but for such payment, become payable. |
| 17 | Forfeiture of Shares |
| 17.1 | If a call or instalment of a call remains unpaid after it has become due and payable the Directors may give to the person from whom it is due not less than fourteen (14) clear days’ notice requiring payment of the amount unpaid together with any interest which may have accrued and any expenses incurred by the Company by reason of such non-payment. The notice shall specify where payment is to be made and shall state that if the notice is not complied with the Shares in respect of which the call was made will be liable to be forfeited. |
| 17.2 | If the notice is not complied with, any Share in respect of which it was given may, before the payment required by the notice has been made, be forfeited by a resolution of the Directors. Such forfeiture shall include all Dividends, other distributions or other monies payable in respect of the forfeited Share and not paid before the forfeiture. |
| 17.3 | A forfeited Share may be sold, re-allotted or otherwise disposed of on such terms and in such manner as the Directors think fit and at any time before a sale, re-allotment or disposition the forfeiture may be cancelled on such terms as the Directors think fit. Where for the purposes of its disposal a forfeited Share is to be transferred to any person the Directors may authorise some person to execute an instrument of transfer of the Share in favour of that person. |
| 17.4 | A person any of whose Shares have been forfeited shall cease to be a Member in respect of them and shall surrender to the Company for cancellation the certificate for the Shares forfeited and shall remain liable to pay to the Company all monies which at the date of forfeiture were payable by that person to the Company in respect of those Shares together with interest at such rate as the Directors may determine, but that person’s liability shall cease if and when the Company shall have received payment in full of all monies due and payable by them in respect of those Shares. |
| 17.5 | A certificate in writing under the hand of one Director or officer of the Company that a Share has been forfeited on a specified date shall be conclusive evidence of the facts stated in it as against all persons claiming to be entitled to the Share. The certificate shall (subject to the execution of an instrument of transfer) constitute a good title to the Share and the person to whom the Share is sold or otherwise disposed of shall not be bound to see to the application of the purchase money, if any, nor shall their title to the Share be affected by any irregularity or invalidity in the proceedings in reference to the forfeiture, sale or disposal of the Share. |
| 17.6 | The provisions of the 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 payable at a fixed time, whether on account of the par value of the Share or by way of premium as if it had been payable by virtue of a call duly made and notified. |
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| 18 | Transmission of Shares |
| 18.1 | If a Member dies the survivor or survivors (where they were a joint holder) or their legal personal representatives (where they were a sole holder), shall be the only persons recognised by the Company as having any title to the deceased Member’s Shares. The estate of a deceased Member is not thereby released from any liability in respect of any Share, for which the Member was a joint or sole holder. |
| 18.2 | Any person becoming entitled to a Share in consequence of the death or bankruptcy or liquidation or dissolution of a Member (or in any other way than by transfer) may, upon such evidence being produced as may be required by the Directors, elect, by a notice in writing sent by that person to the Company, either to become the holder of such Share or to have some person nominated by them registered as the holder of such Share. If they elect to have another person registered as the holder of such Share they shall sign an instrument of transfer of that Share to that person. 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 relevant Member before their death or bankruptcy or liquidation or dissolution, as the case may be. A person registered as a Member by reason of the death or bankruptcy of another Member shall indemnify the Company and the Directors against any loss or damage suffered by the Company or the Directors as a result of that registration. |
| 18.3 | A person becoming entitled to a Share by reason of the death or bankruptcy or liquidation or dissolution of a Member (or in any other case than by transfer) shall be entitled to the same Dividends, other distributions and other advantages to which they would be entitled if they were the holder of such Share. However, they shall not, before becoming a Member in respect of a Share, be entitled in respect of it to exercise any right conferred by membership in relation to general meetings of the Company and the Directors may at any time give notice requiring any such person to elect either to be registered or to have some person nominated by them registered as the holder of the Share (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 relevant Member before their death or bankruptcy or liquidation or dissolution or any other case than by transfer, as the case may be). If the notice is not complied with within ninety (90) days of being received or deemed to be received (as determined pursuant to the Articles) the Directors may thereafter withhold payment of all Dividends, other distributions, bonuses or other monies payable in respect of the Share until the requirements of the notice have been complied with. |
| 19 | Amendments of Memorandum and Articles of Association and Alteration of Capital |
| 19.1 | Subject to these Articles and to the fullest extent permitted by Statute, the Company may from time to time by Ordinary Resolution increase its share capital by such sum, to be divided into Shares of such classes and amount, as such Ordinary Resolution shall prescribe and amend its Memorandum for that purpose. |
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| 19.2 | Subject to these Articles and to the fullest extent permitted by Statute, the Company may by Ordinary Resolution do any of the following and amend its Memorandum for that purpose: |
| (a) | consolidate and divide all or any of its share capital into Shares of larger amount than its existing Shares, provided that any fractions of a Share that result from such a consolidation or division of its share capital shall be automatically repurchased by the Company at (i) the market price on the date of such consolidation or division, in the case of any Shares listed on a Designated Stock Exchange or (ii) a price to be agreed between the Company and the applicable Member in the case of any Shares not listed on a Designated Stock Exchange; |
| (b) | sub-divide 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; |
| (c) | divide Shares into multiple classes; and |
| (d) | cancel any Shares which, at the date of the passing of that Ordinary 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. |
| 19.3 | All new Shares created hereunder shall be subject to the same provisions of the Articles with reference to the payment of calls, liens, transfer, transmission, forfeiture and otherwise as the Shares in the original share capital. |
| 19.4 | Subject to the provisions of the Statute, to any rights for the time being conferred on the Members holding a particular class of Shares and the provisions of the Articles as regards the matters to be dealt with by Ordinary Resolution, the Company may by Special Resolution: |
| (a) | change its name; |
| (b) | alter or add to the Articles; |
| (c) | alter or add to the Memorandum with respect to any objects, powers or other matters specified therein; and |
| (d) | reduce its share capital in any way or any capital redemption reserve fund. |
| 20 | Offices and Places of Business |
Subject to the provisions of the Statute, the Company may by resolution of the Directors change the location of its Registered Office. The Company may, in addition to its Registered Office, maintain such other offices or places of business as the Directors determine.
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| 21 | General Meetings |
| 21.1 | All general meetings other than annual general meetings shall be called extraordinary general meetings. |
| 21.2 | The Company may, but shall not (unless required by the Designated Stock Exchange Rules, the SEC and/or any other competent authority or otherwise under Applicable Law), be obligated to, hold a general meeting as its annual general meeting each year, and shall specify the meeting as such in the notices calling it. Any annual general meeting shall be held at such time and place as the Directors shall approve. At these meetings the report of the Directors (if any) shall be presented. |
| 21.3 | The Directors, the chief executive officer or the chairperson of the Board may call general meetings, and, for the avoidance of doubt, Members shall not have the ability to call general meetings. |
| 21.4 | The Directors shall on a Members’ requisition forthwith proceed to convene an extraordinary general meeting of the Company. |
| 21.5 | A Members’ requisition is a requisition of Members holding at the date of deposit of the requisition not less than fifty per cent (50%) in par value of the issued Shares which as at that date carry the right to vote at general meetings of the Company. |
| 21.6 | The Members’ requisition must state the objects of the meeting and must be signed by the requisitionists and deposited at the Registered Office, and may consist of several documents in like form each signed by one or more requisitionists. |
| 21.7 | If there are no Directors as at the date of the deposit of the Members’ requisition or if the Directors do not within twenty-one (21) days from the date of the deposit of the Members’ requisition duly proceed to convene a general meeting to be held within a further twenty-one (21) days, the requisitionists, or any of them representing more than one-half (1/2) of the total voting rights of all of the requisitionists, may themselves convene a general meeting, but any meeting so convened shall be held no later than the day which falls three (3) months after the expiration of the said twenty-one (21) day period. |
| 21.8 | A general meeting convened as aforesaid by requisitionists shall be convened in the same manner as nearly as possible as that in which general meetings are to be convened by Directors. |
| 21.9 | The Directors may make Communication Facilities available for a specific general meeting or all general meetings of the Company so that members and other participants may attend and participate at such general meetings by means of such Communication Facilities. |
| 21.10 | The notice of any general meeting at which Communication Facilities will be utilised must disclose the Communication Facilities that will be utilised, including the procedures to be followed by any member or other participant of the general meeting who wishes to utilise such Communication Facilities for the purpose of attending, participating and voting at such meeting. |
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| 22 | Notice of General Meetings |
| 22.1 | At least five (5) clear days’ notice shall be given of any general meeting. Every notice shall specify: (a) the place, the day and the hour of the meeting, (b) if the meeting is to be held in two or more places, the technology that will be used to facilitate the meeting, (c) subject to paragraph (d) and the requirements of (to the extent applicable) the Designated Stock Exchange Rules, the general nature of the business to be conducted at the general meeting; and (d) if a resolution is proposed as a Special Resolution, the text of that resolution. In each notice there shall appear with reasonable prominence the following statements: |
| (a) | that a Member who is entitled to attend and vote is entitled to appoint one or more proxies to attend and vote instead of that Member; and |
| (b) | that a proxyholder need not be a Member. |
| 22.2 | Whether or not the notice specified in this Article has been given and whether or not the provisions of the Articles regarding general meetings have been complied with, be deemed to have been duly convened if it is so agreed: |
| (a) | in the case of an annual general meeting, by all of the Members entitled to attend and vote at the meeting; and |
| (b) | in the case of an extraordinary general meeting, by all of the Members having a right to attend and vote at the meeting. |
| 22.3 | The accidental omission to give notice of a general meeting to, or the non receipt of notice of a general meeting by, any person entitled to receive such notice shall not invalidate the proceedings of that general meeting. |
| 23 | Proceedings at General Meetings |
| 23.1 | No business shall be transacted at any general meeting unless a quorum is Present. Except as otherwise provided in these Articles, a quorum shall be the presence, in person or by proxy, of one or more Persons holding at least one-third (1/3) of the issued Shares which confer the right to attend and vote thereat. |
| 23.2 | A person may participate at a general meeting by conference telephone or other communications equipment by means of which all the persons participating in the meeting can communicate with each other. Participation by a person in a general meeting in this manner is treated as presence in person at that meeting. |
| 23.3 | A resolution (including a Special Resolution) in writing (in one or more counterparts) signed by or on behalf of all of the Members for the time being entitled to receive notice of and to attend and vote at general meetings (or, being corporations or other non-natural persons, signed by their duly authorised representatives) shall be as valid and effective as if the resolution had been passed at a general meeting of the Company duly convened and held. The Directors may determine the manner in which written resolutions shall be put to Members. In particular, they may provide, in the form of any written resolution, for each Member to indicate, out of the number of votes the Member would have been entitled to cast at a meeting to consider the resolution, how many votes he wishes to cast in favour of the resolution and how many against the resolution or to be treated as abstentions. |
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| 23.4 | If a quorum is not Present within half an hour from the time appointed for the meeting to commence or if during such a meeting a quorum ceases to be Present, the meeting, if convened upon a Members’ requisition, shall be dissolved and in any other case it shall stand adjourned to the same day in the next week at the same time and/or place or to such other day, time and/or place as the Directors may determine, and if at the adjourned meeting a quorum is not Present within half an hour from the time appointed for the meeting to commence, the Members Present shall be a quorum. |
| 23.5 | The Directors may, at any time prior to the time appointed for the meeting to commence, appoint any person to act as chairperson of a general meeting of the Company or, if the Directors do not make any such appointment, the chairperson, if any, of the Board shall preside as chairperson at such general meeting. If there is no such chairperson, or if the chairperson shall not be Present within fifteen minutes after the time appointed for the meeting to commence, or is unwilling to act, the Directors Present shall elect one of their number to be chairperson of the meeting. |
| 23.6 | If no Director is willing to act as chairperson or if no Director is Present within fifteen minutes after the time appointed for the meeting to commence, the Members present shall choose one of their number to be chairperson of the meeting. |
| 23.7 | The chairperson of any general meeting shall be entitled to attend and participate at such general meeting by means of Communication Facilities, and to act as the chairperson, in which event, if the Communication Facilities are interrupted or fail for any reason to enable the chairperson to hear and be heard by all other Persons attending and participating at the meeting, then the other Directors Present at the meeting shall choose another Director Present to act as chairperson of the meeting for the remainder of the meeting; provided that (i) if no other Director is Present at the meeting, or (ii) if all the Directors Present decline to take the chair, then the meeting shall be automatically adjourned to the same day in the next week and at such time and place as shall be decided by the Board. |
| 23.8 | The chairperson may, with the consent of a meeting at which a quorum is Present (and shall if so directed by the meeting) adjourn the meeting from time to time and from place to place, 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. |
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| 23.9 | When a general meeting is adjourned for thirty (30) days or more, notice of the adjourned meeting shall be given as in the case of an original meeting. Otherwise it shall not be necessary to give any such notice of an adjourned meeting. |
| 23.10 | If a notice is issued in respect of a general meeting and the Directors, in their absolute discretion, consider that it is impractical or undesirable for any reason to hold that general meeting at the place, the day and the hour specified in the notice calling such general meeting, the Directors may postpone the general meeting to another place, day and/or hour provided that notice of the place, the day and the hour of the rearranged general meeting is promptly given to all Members. No business shall be transacted at any postponed meeting other than the business specified in the notice of the original meeting. |
| 23.11 | When a general meeting is postponed for thirty (30) days or more, notice of the postponed meeting shall be given as in the case of an original meeting. Otherwise it shall not be necessary to give any such notice of a postponed meeting. All proxy forms submitted for the original general meeting shall remain valid for the postponed meeting. The Directors may postpone a general meeting which has already been postponed. |
| 23.12 | A resolution put to the vote of the meeting shall be decided on a show of hands unless before, or on the declaration of the result of, the show of hands, the chairperson demands a poll, or any other Member or Members collectively Present and holding at least ten per cent (10%) in par value of the Shares giving a right to attend and vote at the meeting demand a poll. |
| 23.13 | Unless a poll is duly demanded and the demand is not withdrawn a declaration by the chairperson that a resolution has been carried or carried unanimously, or by a particular majority, or lost or not carried by a particular majority, an entry to that effect in the minutes of the proceedings of the meeting shall be conclusive evidence of that fact without proof of the number or proportion of the votes recorded in favour of or against such resolution. |
| 23.14 | The demand for a poll may be withdrawn. |
| 23.15 | Except on a poll demanded on the election of a chairperson or on a question of adjournment, a poll shall be taken as the chairperson directs, and the result of the poll shall be deemed to be the resolution of the general meeting at which the poll was demanded. |
| 23.16 | A poll demanded on the election of a chairperson or on a question of adjournment shall be taken forthwith. A poll demanded on any other question shall be taken at such date, time and place as the chairperson of the general meeting directs, and any business other than that upon which a poll has been demanded or is contingent thereon may proceed pending the taking of the poll. |
| 23.17 | In the case of an equality of votes, whether on a show of hands or on a poll, the chairperson shall be entitled to a second or casting vote. |
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| 24 | Votes of Members |
| 24.1 | Subject to any rights or restrictions attached to any Shares, on a show of hands every Member who is Present, shall have one vote and on a poll every Member Present in any such manner shall have one vote for every Share of which they are the holder. |
| 24.2 | In the case of joint holders, the vote of the senior holder who tenders a vote, whether in person or by proxy (or, in the case of a corporation or other non-natural person, by its duly authorised representative or proxy), shall be accepted to the exclusion of the votes of the other joint holders, and seniority shall be determined by the order in which the names of the holders stand in the Register of Members. |
| 24.3 | A Member in respect of whom an order has been made by any court having jurisdiction (whether in the Cayman Islands or elsewhere) in matters concerning mental disorder may vote, whether on a show of hands or on a poll, by their committee, receiver, curator bonis, or other person on such Member’s behalf appointed by that court, and any such committee, receiver, curator bonis or other person may vote by proxy. |
| 24.4 | No person shall be entitled to vote at any general meeting unless they are registered as a Member on the record date for such meeting nor unless all calls or other monies then payable by them in respect of Shares have been paid. |
| 24.5 | No objection shall be raised as to the qualification of any voter except at the general meeting or adjourned general meeting at which the vote objected to is given or tendered and every vote not disallowed at the meeting shall be valid. Any objection made in due time in accordance with this Article shall be referred to the chairperson whose decision shall be final and conclusive. |
| 24.6 | On a poll or on a show of hands votes may be cast either personally or by proxy (or in the case of a corporation or other non-natural person by its duly authorised representative or proxy). A Member may appoint more than one proxy or the same proxy under one or more instruments to attend and vote at a meeting. Where a Member appoints more than one proxy the instrument of proxy shall state which proxy is entitled to vote on a show of hands and shall specify the number of Shares in respect of which each proxy is entitled to exercise the related votes. |
| 24.7 | On a poll, a Member holding more than one Share need not cast the votes in respect of their Shares in the same way on any resolution and therefore may vote a Share or some or all such Shares either for or against a resolution and/or abstain from voting a Share or some or all of the Shares and, subject to the terms of the instrument appointing the proxy, a proxy appointed under one or more instruments may vote a Share or some or all of the Shares in respect of which they are appointed either for or against a resolution and/or abstain from voting a Share or some or all of the Shares in respect of which they are appointed. |
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| 25 | Proxies |
| 25.1 | The instrument appointing a proxy shall be in writing and shall be executed under the hand of the appointor or of their attorney duly authorised in writing, or, if the appointor is a corporation or other non natural person, under the hand of its duly authorised representative. A proxy need not be a Member. |
| 25.2 | The Directors may, in the notice convening any meeting or adjourned meeting, or in an instrument of proxy sent out by the Company, specify the manner by which the instrument appointing a proxy shall be deposited and the place and the time (being not later than the time appointed for the commencement of the meeting or adjourned meeting to which the proxy relates) at which the instrument appointing a proxy shall be deposited. In the absence of any such direction from the Directors in the notice convening any meeting or adjourned meeting or in an instrument of proxy sent out by the Company, the instrument appointing a proxy shall be deposited physically at the Registered Office not less than 48 hours before the time appointed for the meeting or adjourned meeting to commence at which the person named in the instrument proposes to vote. |
| 25.3 | The chairperson may in any event at their discretion declare that an instrument of proxy shall be deemed to have been duly deposited. An instrument of proxy that is not deposited in the manner permitted, or which has not been declared to have been duly deposited by the chairperson, shall be invalid. |
| 25.4 | The instrument appointing a proxy may be in any usual or common form (or such other form as the Directors may approve) and may be expressed to be for a particular meeting or any adjournment thereof or generally until revoked. An instrument appointing a proxy shall be deemed to include the power to demand or join or concur in demanding a poll. |
| 25.5 | Votes given in accordance with the terms of an instrument of proxy shall be valid notwithstanding the previous death or insanity of the principal or revocation of the proxy or of the authority under which the proxy was executed, or the transfer of the Share in respect of which the proxy is given unless notice in writing of such death, insanity, revocation or transfer was received by the Company at the Registered Office before the commencement of the general meeting, or adjourned meeting at which it is sought to use the proxy. |
| 26 | Corporate Members |
| 26.1 | Any corporation or other non-natural person which is a Member may in accordance with its constitutional documents, or in the absence of such provision 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 class of Members, and the person so authorised shall be entitled to exercise the same powers on behalf of the corporation which they represent as the corporation could exercise if it were an individual Member. |
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| 26.2 | A corporate Member wishing to act by a duly authorised representative must identify that person to the Company by notice in writing. The authorisation may be for any period of time, and must be delivered to the Company before the commencement of the meeting at which it is first used. The Directors of the Company may require the production of any evidence which they consider necessary to determine the validity of the notice. |
| 26.3 | A corporate Member may revoke the appointment of a duly authorised representative at any time by notice to the Company; but such revocation will not affect the validity of any acts carried out by the duly authorised representative before the Directors of the Company had actual notice of the revocation. |
| 26.4 | If a clearing house (or its nominee(s)), being a corporation, is a Member, it may authorise such persons as it sees fit to act as its representative at any meeting of the Company or at any meeting of any class of Members provided that the authorisation shall specify the number and class of Shares in respect of which each such representative is so authorised. Each person so authorised under the provisions of this Article shall be deemed to have been duly authorised without further evidence of the facts and be entitled to exercise the same rights and powers on behalf of the clearing house (or its nominee(s)) as if such person was the registered holder of such Shares held by the clearing house (or its nominee(s)). |
| 27 | Shares that May Not be Voted |
Shares in the Company that are beneficially owned by the Company shall not be voted, directly or indirectly, at any meeting and shall not be counted in determining the total number of outstanding Shares at any given time.
| 28 | Directors |
| 28.1 | There shall be a Board consisting of not less than one person (exclusive of alternate Directors) provided however that the Company may by Ordinary Resolution increase or reduce the limits in the number of Directors. There is no age limit for Directors save that they must be at least eighteen years of age. |
| 28.2 | The Directors shall be divided into three classes: Class I, Class II and Class III. The number of Directors in each class shall be as nearly equal as possible. Upon the adoption of the Articles, the existing Directors shall by resolution classify themselves as Class I, Class II or Class III Directors. The Class I Directors shall stand elected for a term expiring at the Company’s first annual general meeting after the adoption of the Articles, the Class II Directors shall stand elected for a term expiring at the Company’s second annual general meeting after the adoption of the Articles and the Class III Directors shall stand elected for a term expiring at the Company’s third annual general meeting after the adoption of the Articles. Commencing at the Company’s first annual general meeting, and at each annual general meeting thereafter, Directors elected to succeed those Directors whose terms expire shall be elected for a term of office to expire at the third (3rd) succeeding annual general meeting after their election. All Directors shall hold office until the expiration of their respective terms of office and until their successors shall have been elected and qualified. A Director elected to fill a vacancy resulting from the death, resignation or removal of a Director shall serve for the remainder of the full term of the Director whose death, resignation or removal shall have created such vacancy and until their successor shall have been elected and qualified. |
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| 28.3 | The Directors by the affirmative vote of a simple majority of the remaining Directors present and voting at a meeting of the Directors, even if less than a quorum, shall have the power from time to time and at any time to appoint any person as a Director to fill a casual vacancy on the Board or as an addition to the existing Board, subject to these Articles, the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law. A Director appointed to fill a vacancy in accordance with this Article shall be of the same Class of Director as the Director he or she replaced and the term of such appointment shall terminate in accordance with that Class of Director. Any Director so appointed shall hold office until the expiration of his or her term, until his or her successor shall have been duly elected and qualified or until his or her earlier death, resignation or removal. |
| 28.4 | The Directors may, from time to time, and except as required by the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law, adopt, institute, amend, modify or revoke the corporate governance policies or initiatives, which shall be intended to set forth the policies of the Company and the Directors on various corporate governance related matters, as the Directors shall determine by resolution from time to time. |
| 28.5 | For so long as Shares are listed on a Designated Stock Exchange, the Directors shall include at least such number of Independent Directors as Applicable Law or the rules and regulations of the Designated Stock Exchange require, subject to applicable phase-in rules of the Designated Stock Exchange rules or regulations or the Designated Stock Exchange Rules, as determined by the Board. |
| 29 | Powers of Directors |
| 29.1 | Subject to the provisions of the Statute, the Memorandum and the Articles and to any directions given by Special Resolution, the business of the Company shall be managed by the Directors who may exercise all the powers of the Company. No alteration of the Memorandum or Articles and no such direction shall invalidate any prior act of the Directors which would have been valid if that alteration had not been made or that direction had not been given. A duly convened meeting of Directors at which a quorum is present may exercise all powers exercisable by the Directors. |
| 29.2 | All cheques, promissory notes, drafts, bills of exchange and other negotiable or transferable instruments and all receipts for monies paid to the Company shall be signed, drawn, accepted, endorsed or otherwise executed as the case may be in such manner as the Directors shall determine by resolution. |
| 29.3 | The Directors on behalf of the Company may pay a gratuity or pension or allowance on retirement to any Director who has held any other salaried office or place of profit with the Company or to their surviving spouse, civil partner or dependants and may make contributions to any fund and pay premiums for the purchase or provision of any such gratuity, pension or allowance. |
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| 29.4 | The Directors may exercise all the powers of the Company to borrow money and to mortgage or charge its undertaking, property and assets (present and future) and uncalled capital or any part thereof and to issue debentures, debenture stock, mortgages, bonds and other such securities whether outright or as security for any debt, liability or obligation of the Company or of any third party. The Company shall not be treated as having recognised any such security interest unless it has so agreed in writing with the secured party. |
| 30 | Appointment and Removal of Directors |
| 30.1 | The Company may by Ordinary Resolution appoint any person to be a Director or may by Ordinary Resolution remove any Director. |
| 30.2 | The Directors may appoint any person to be a Director, either to fill a vacancy or as an additional Director provided that the appointment does not cause the number of Directors to exceed any number fixed by or in accordance with the Articles as the maximum number of Directors. |
| 31 | Vacation of Office of Director |
Without prejudice to the provisions in these Articles for retirement (by rotation or otherwise), the office of a Director shall be vacated if:
| (a) | the Director gives notice in writing to the Company that they resign the office of Director; or |
| (b) | the Director is absent (for the avoidance of doubt, without being represented by proxy or an alternate Director appointed by them) from three (3) consecutive meetings of the Board without special leave of absence from the Directors, and the Directors pass a resolution that they have by reason of such absence vacated office; or |
| (c) | the Director dies, becomes bankrupt or makes any arrangement or composition with their creditors generally; or |
| (d) | is prohibited by Applicable Law or the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law from being a director; or |
| (e) | the Director is found to be or becomes of unsound mind; or |
| (f) | all of the other Directors (being not less than two (2) in number) determine that he should be removed as a Director, either by a resolution passed by all of the other Directors at a meeting of the Directors duly convened and held in accordance with the Articles or by a resolution in writing signed by all of the other Directors. |
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| 32 | Proceedings of Directors |
| 32.1 | The quorum for the transaction of the business of the Directors may be fixed by the Directors, and unless so fixed shall be two if there are two (2) or more Directors, and shall be one if there is only one Director. A person who holds office as an alternate Director shall, if their appointor is not present, be counted in the quorum. A Director who also acts as an alternate Director shall, if their appointor is not present, count twice towards the quorum. |
| 32.2 | Subject to the provisions of the Articles, the Directors may regulate their proceedings as they think fit. Questions arising at any meeting shall be decided by a majority of votes. In the case of an equality of votes, the chairperson shall have a second or casting vote. A Director who is also an alternate Director shall be entitled in the absence of their appointor to a separate vote on behalf of their appointor in addition to their own vote. |
| 32.3 | A person may participate in a meeting of the Directors or any committee of Directors by conference telephone or other communications equipment by means of which all the persons participating in the meeting can communicate with each other at the same time. Participation by a person in a meeting in this manner is treated as presence in person at that meeting. Unless otherwise determined by the Directors the meeting shall be deemed to be held at the place where the chairperson is located at the start of the meeting. |
| 32.4 | Unless required otherwise by the rules and regulations of the Designated Stock Exchange, a resolution in writing (in one or more counterparts) signed by all the Directors or all the members of a committee of the Directors or, in the case of a resolution in writing relating to the removal of any Director or the vacation of office by any Director, all of the Directors other than the Director who is the subject of such resolution (an alternate Director being entitled to sign such a resolution on behalf of their appointor and if such alternate Director is also a Director, being entitled to sign such resolution both on behalf of their appointer and in their capacity as a Director) shall be as valid and effectual as if it had been passed at a meeting of the Directors, or committee of Directors as the case may be, duly convened and held. |
| 32.5 | A Director or alternate Director may, or other officer of the Company on the direction of a Director or alternate Director shall, call a meeting of the Directors by at least two (2) days’ notice in writing to every Director and alternate Director which notice shall set forth the general nature of the business to be considered unless notice is waived by all the Directors (or their alternates) either at, before or after the meeting is held. To any such notice of a meeting of the Directors all the provisions of the Articles relating to the giving of notices by the Company to the Members shall apply mutatis mutandis. |
| 32.6 | The continuing Directors (or a sole continuing Director, as the case may be) may act notwithstanding any vacancy in their body, but if and so long as their number is reduced below the number fixed by or pursuant to the Articles as the necessary quorum of Directors the continuing Directors or Director may act for the purpose of increasing the number of Directors to be equal to such fixed number, or of summoning a general meeting of the Company, but for no other purpose. |
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| 32.7 | The Directors may elect a chairperson of the Board and determine the period for which they are to hold office; but if no such chairperson is elected, or if at any meeting the chairperson is not present within five (5) minutes after the time appointed for the meeting to commence, the Directors present may choose one of their number to be chairperson of the meeting. |
| 32.8 | All acts done by any meeting of the Directors or of a committee of the Directors (including any person acting as an alternate Director) shall, notwithstanding that it is afterwards discovered that there was some defect in the appointment of any Director or alternate Director, and/or that they or any of them were disqualified, and/or had vacated their office and/or were not entitled to vote, be as valid as if every such person had been duly appointed and/or not disqualified to be a Director or alternate Director and/or had not vacated their office and/or had been entitled to vote, as the case may be. |
| 32.9 | A Director but not an alternate Director may be represented at any meetings of the Board by a proxy appointed in writing by that Director. The proxy shall count towards the quorum and the vote of the proxy shall for all purposes be deemed to be that of the appointing Director. |
| 33 | Presumption of Assent |
A Director or alternate Director who is present at a meeting of the Board at which action on any Company matter is taken shall be presumed to have assented to the action taken unless their dissent shall be entered in the minutes of the meeting or unless they shall file their written dissent from such action with the person acting as the chairperson or secretary of the meeting before the adjournment thereof or shall forward such dissent by registered post to such person immediately after the adjournment of the meeting. Such right to dissent shall not apply to a Director or alternate Director who voted in favour of such action.
| 34 | Directors’ Interests |
| 34.1 | A Director or alternate Director may hold any other office or place of profit under the Company (other than the office of Auditor) in conjunction with their office of Director for such period and on such terms as to remuneration and otherwise as the Directors may determine. |
| 34.2 | A Director or alternate Director may act on their own or by, through or on behalf of their firm in a professional capacity for the Company and they or their firm shall be entitled to remuneration for professional services as if they were not a Director or alternate Director. |
| 34.3 | A Director or alternate Director may be or become a director or other officer of or otherwise interested in any company promoted by the Company or in which the Company may be interested as a shareholder, a contracting party or otherwise, and no such Director or alternate Director shall be accountable to the Company for any remuneration or other benefits received by them as a director or officer of, or from their interest in, such other company. |
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| 34.4 | No person shall be disqualified from the office of Director or alternate Director or prevented by such office from contracting with the Company, either as vendor, purchaser or otherwise, nor shall any such contract or any contract or transaction entered into by or on behalf of the Company in which any Director or alternate Director shall be in any way interested be or be liable to be avoided, nor shall any Director or alternate Director so contracting or being so interested be liable to account to the Company for any profit realised by or arising in connection with any such contract or transaction by reason of such Director or alternate Director holding office or of the fiduciary relationship thereby established. A Director (or their alternate Director in their absence) shall be entitled to vote on, and be counted in the quorum in relation to, any resolution of the Directors in respect of any contract or transaction in which they are interested, provided that the relevant Director (or alternate Director) has disclosed the nature and extent of his or her interest in any such contract or transaction to the Board prior to any vote thereon. |
| 34.5 | A general notice that a Director or alternate Director is a shareholder, director, officer or employee of any specified firm or company and is to be regarded as interested in any transaction with such firm or company shall be sufficient disclosure for the purposes of voting on a resolution in respect of a contract or transaction in which they have an interest, and after such general notice it shall not be necessary to give special notice relating to any particular transaction. |
| 35 | Minutes |
The Directors shall cause minutes to be made in books kept for the purpose of recording all appointments of officers made by the Directors, all proceedings at meetings of the Company or the holders of any class of Shares and of the Directors, and of committees of the Directors, including the names of the Directors or alternate Directors present at each meeting.
| 36 | Delegation of Directors’ Powers |
| 36.1 | The Directors may delegate any of their powers, authorities and discretions, including the power to sub-delegate, to any committee consisting of one or more Directors. They may also delegate to any managing director or any Director holding any other executive office such of their powers, authorities and discretions as they consider desirable to be exercised by that Director, provided that an alternate Director may not act as managing director and the appointment of a managing director shall be revoked forthwith if they cease to be a Director. Any such delegation may be made subject to any conditions the Directors may impose and either collaterally with or to the exclusion of their own powers and any such delegation may be revoked or altered by the Directors. Subject to any such conditions, the proceedings of a committee of Directors shall be governed by the Articles regulating the proceedings of Directors, so far as they are capable of applying. |
| 36.2 | The Directors may establish any committees, local boards or agencies or appoint any person to be a manager or agent for managing the affairs of the Company and may appoint any person to be a member of such committees, local boards or agencies. Any such appointment may be made subject to any conditions the Directors may impose, and either collaterally with or to the exclusion of their own powers and any such appointment may be revoked or altered by the Directors. Subject to any such conditions, the proceedings of any such committee, local board or agency shall be governed by the Articles regulating the proceedings of Directors, so far as they are capable of applying. |
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| 36.3 | The Directors may delegate any of their powers, authorities and discretions, including the power to sub-delegate, to any committees consisting of such member or members of their body as they think fit (including, without limitation, the Audit Committee, and the Compensation Committee and the Nominating and Corporate Governance Committee); provided that any committee so formed shall include amongst its members at least two (2) Directors unless otherwise required by the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law. No committee shall have the power of authority to (a) recommend to the Members an amendment of these Articles (except that a committee may, to the extent authorised in the resolution or resolutions providing for the issuance of Shares adopted by the Directors as provided under the laws of the Cayman Islands, fix the designations and any of the preferences or rights of such Shares relating to Dividends, redemption, dissolution, any distribution of assets of the Company or the conversion into, or the exchange of such Shares for, Shares of any other class or classes or any other series of the same or any other class or classes of Shares); (b) adopt an agreement of merger or consolidation; (c) recommend to the Members the sale, lease or exchange of all or substantially all of the Company’s property and assets; (d) recommend to the Members a dissolution of the Company or a revocation of a dissolution; (e) recommend to the Members an amendment of the Memorandum; or (f) declare a Dividend or authorise the issuance of Shares unless the resolution establishing such committee (or the charter of such committee approved by the Directors) or the Memorandum or these Articles so provide. 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. The Directors may also delegate to any Director holding any executive office such of their powers as they consider desirable to be exercised by him or her. Any such delegation may be made subject to any conditions the Directors may impose, and either collaterally with or to the exclusion of their own powers, and may be revoked or altered. |
| 36.4 | The Directors may by power of attorney or otherwise appoint any person to be the agent of the Company on such conditions as the Directors may determine, provided that the delegation is not to the exclusion of their own powers and may be revoked by the Directors at any time. |
| 36.5 | The Directors may by power of attorney or otherwise appoint any company, firm, person or body of persons, whether nominated directly or indirectly by the Directors, to be the attorney or authorised signatory of the Company for such purpose and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the Directors under the Articles) and for such period and subject to such conditions as they may think fit, and any such powers of attorney or other appointment may contain such provisions for the protection and convenience of persons dealing with any such attorneys or authorised signatories 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 discretions vested in them. |
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| 36.6 | The Directors may adopt formal written charters for committees and, if so adopted, shall review and assess the adequacy of such formal written charters on an annual basis. Each of these committees shall be empowered to do all things necessary to exercise the rights of such committee set forth in the Articles and shall have such powers as the Directors may delegate pursuant to the Articles and as required by the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law. Each of the Audit Committee, the Compensation Committee and the Nominating and Corporate Governance Committee, if established, shall consist of such number of Directors as the Directors shall from time to time determine (or such minimum number as may be required from time to time by the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law). For so long as any class of Shares is listed on the Designated Stock Exchange, the Audit Committee, the Compensation Committee and the Nominating and Corporate Governance Committee shall be made up of such number of “independent directors” as is required from time to time by the rules and regulations of the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law. |
| 36.7 | The Directors may appoint such officers of the Company (including, for the avoidance of doubt and without limitation, any chief executive officer, president, chief operating officer, chief financial officer, vice presidents, secretary, assistance secretaries, treasurer or any other officers) as they consider necessary on such terms, at such remuneration and to perform such duties, and subject to such provisions as to disqualification and removal as the Directors may think fit. Unless otherwise specified in the terms of their appointment an officer of the Company may be removed by resolution of the Directors or Members. An officer of the Company may vacate their office at any time if they give notice in writing to the Company that they resign their office. |
| 36.8 | The Directors may elect, by the affirmative vote of a majority of the Directors then in office, a chairperson. The chairperson of the Board may be a director or an officer of the Company. Subject to the provisions of these Articles and the direction of the Directors, the chairperson of the Board shall perform all duties and have all powers which are commonly incident to the position of a chairperson of a board or which are delegated to him or her by the Directors, preside at all general meetings and meetings of the Directors at which he or she is present and have such powers and perform such duties as the Directors may from time to time prescribe. |
| 37 | Alternate Directors |
| 37.1 | Any Director (but not an alternate Director) may by writing appoint any other Director, or any other person willing to act, to be an alternate Director and by writing may remove from office an alternate Director so appointed by them. |
| 37.2 | An alternate Director shall be entitled to receive notice of all meetings of Directors and of all meetings of committees of Directors of which their appointor is a member, to attend and vote at every such meeting at which the Director appointing them is not personally present, to sign any written resolution of the Directors, and generally to perform all the functions of their appointor as a Director in their absence. |
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| 37.3 | An alternate Director shall cease to be an alternate Director if (a) their appointor ceases to be a Director, (b) the Director who appointed him revokes his appointment by notice delivered to the Board or to the registered office of the Company or in any other manner approved by the Board, or (c) in any event happens in relation to him which, if he were a Director of the Company, would cause his office as Director to be vacated. |
| 37.4 | Any appointment or removal of an alternate Director shall be by notice to the Company signed by the Director making or revoking the appointment or in any other manner approved by the Directors. |
| 37.5 | Subject to the provisions of the Articles, an alternate Director shall be deemed for all purposes to be a Director and shall alone be responsible for their own acts and defaults and shall not be deemed to be the agent of the Director appointing them. |
| 38 | No Minimum Shareholding |
The Company in general meeting may fix a minimum shareholding required to be held by a Director, but unless and until such a shareholding qualification is fixed a Director is not required to hold Shares.
| 39 | Remuneration of Directors |
| 39.1 | The remuneration to be paid to the Directors, if any, shall be such remuneration as the Directors shall determine. The Directors shall also be entitled to be paid all travelling, hotel and other expenses properly incurred by them in connection with their attendance at meetings of Directors or committees of Directors, or general meetings of the Company, or separate meetings of the holders of any class of Shares or debentures of the Company, or otherwise in connection with the business of the Company or the discharge of their duties as a Director, or to receive a fixed allowance in respect thereof as may be determined by the Directors, or a combination partly of one such method and partly the other. |
| 39.2 | The Directors may by resolution approve additional remuneration to any Director for any services which in the opinion of the Directors go beyond that Director’s ordinary routine work as a Director. Any fees paid to a Director who is also counsel, attorney or solicitor to the Company, or otherwise serves it in a professional capacity shall be in addition to their remuneration as a Director. |
| 40 | Seal |
| 40.1 | The Company may, if the Directors so determine, have a Seal. The Seal shall only be used by the authority of the Directors or of a committee of the Directors authorised by the Directors. Every instrument to which the Seal has been affixed shall be signed by at least one person who shall be either a Director or some officer of the Company or other person appointed by the Directors for the purpose. |
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| 40.2 | The Company may have for use in any place or places outside the Cayman Islands a duplicate Seal or Seals each of which shall be a facsimile of the common Seal of the Company and, if the Directors so determine, with the addition on its face of the name of every place where it is to be used. |
| 40.3 | A Director or officer, representative or attorney of the Company may without further authority of the Directors affix the Seal over their signature alone to any document of the Company required to be authenticated by them under seal or to be filed with the Registrar of Companies in the Cayman Islands or elsewhere wheresoever. |
| 41 | Dividends, Distributions and Reserve |
| 41.1 | Subject to the Statute and this Article and except as otherwise provided by the rights attached to any Shares, the Directors may resolve to pay Dividends and other distributions on Shares in issue and authorise payment of the Dividends or other distributions out of the funds of the Company lawfully available therefor. A Dividend shall be deemed to be an interim Dividend unless the terms of the resolution pursuant to which the Directors resolve to pay such Dividend specifically state that such Dividend shall be a final Dividend. No Dividend or other distribution shall be paid except out of the realised or unrealised profits of the Company, out of the share premium account or as otherwise permitted by law. |
| 41.2 | The Directors may, before recommending or declaring any Dividend, set aside out of the funds legally available for distribution such sums as they think proper as a reserve or reserves which shall, at the discretion of the Directors be applicable for meeting contingencies, or for equalising Dividends or for any other purpose to which those funds be properly applied and pending such application may, at the like discretion, either be employed in the business of the Company or be invested in such investments (other than Shares) as the Directors may from time to time think fit. The Directors shall establish an account to be called the “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. Unless otherwise provided by the provisions of these Articles, the Directors may apply the share premium account in any manner permitted by the Statute and the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law. The Company shall at all times comply with the provisions of these Articles, the Statute and the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law in relation to the share premium account. |
| 41.3 | Except as otherwise provided by the rights attached to any Shares, all Dividends and other distributions shall be paid according to the par value of the Shares that a Member holds. If any Share is issued on terms providing that it shall rank for Dividend as from a particular date, that Share shall rank for Dividend accordingly. |
| 41.4 | The Directors may deduct from any Dividend or other distribution payable to any Member all sums of money (if any) then payable by the Member to the Company on account of calls or otherwise. |
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| 41.5 | The Directors may resolve that any Dividend or other distribution be paid wholly or partly by the distribution of specific assets and in particular (but without limitation) by the distribution of Shares, debentures, or securities of any other company or in any one or more of such ways and where any difficulty arises in regard to such distribution, the Directors may settle the same as they think expedient and in particular may issue fractional Shares and may fix the value for distribution of such specific assets or any part thereof and may determine that cash payments shall be made to any Members upon the basis of the value so fixed in order to adjust the rights of all Members and may vest any such specific assets in trustees in such manner as may seem expedient to the Directors. |
| 41.6 | Except as otherwise provided by the rights attached to any Shares, Dividends and other distributions may be paid in any currency. The Directors may determine the basis of conversion for any currency conversions that may be required and how any costs involved are to be met. |
| 41.7 | The Directors may, before resolving to pay any Dividend or other distribution, set aside such sums as they think proper as a reserve or reserves which shall, at the discretion of the Directors, be applicable for any purpose of the Company and pending such application may, at the discretion of the Directors, be employed in the business of the Company. |
| 41.8 | Any Dividend, other distribution, interest or other monies payable in cash in respect of Shares may be paid by wire transfer to the holder or by cheque or warrant sent through the post directed to the registered address of the holder or, in the case of joint holders, to the registered address of the holder who is first named on the Register of Members or to such person and to such address as such holder or joint holders may in writing direct. Every such cheque or warrant shall be made payable to the order of the person to whom it is sent. Any one of two (2) or more joint holders may give effectual receipts for any Dividends, other distributions, bonuses, or other monies payable in respect of the Share held by them as joint holders. |
| 41.9 | No Dividend or other distribution shall bear interest against the Company. |
| 41.10 | Any Dividend or other distribution which cannot be paid to a Member and/or which remains unclaimed after six (6) months from the date on which such Dividend or other distribution becomes payable may, in the discretion of the Directors, be paid into a separate account in the Company’s name, provided that the Company shall not be constituted as a trustee in respect of that account and the Dividend or other distribution shall remain as a debt due to the Member. Any Dividend or other distribution which remains unclaimed after a period of six (6) years from the date on which such Dividend or other distribution becomes payable shall be forfeited and shall revert to the Company. |
| 42 | Capitalisation |
The Directors may at any time capitalise any sum standing to the credit of any of the Company’s reserve accounts or funds (including the share premium account and capital redemption reserve fund) or any sum standing to the credit of the profit and loss account or otherwise available for distribution; appropriate such sum to Members in the proportions in which such sum would have been divisible amongst such Members had the same been a distribution of profits by way of Dividend or other distribution; and apply such sum on their behalf in paying up in full unissued Shares for allotment and distribution credited as fully paid-up to and amongst them in the proportion aforesaid. In such event the Directors shall do all acts and things required to give effect to such capitalisation, with full power given to the Directors to make such provisions as they think fit in the case of Shares becoming distributable in fractions (including provisions whereby the benefit of fractional entitlements accrue to the Company rather than to the Members concerned). The Directors may authorise any person to enter on behalf of all of the Members interested into an agreement with the Company providing for such capitalisation and matters incidental or relating thereto and any agreement made under such authority shall be effective and binding on all such Members and the Company.
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| 43 | Untraceable Members |
| 43.1 | The Company shall be entitled to sell any Shares of a Member or the Shares to which a person is entitled by virtue of transmission on death or bankruptcy or operation of law if and provided that: |
| (a) | all cheques or warrants, not being less than three (3) in number, for any sums payable in cash to the holder of such Shares have remained uncashed for a period of twelve (12) years; |
| (b) | the Company has not during that time or before the expiry of the three (3)-month period referred to Article 41.1(d) received any indication of the whereabouts or existence of the Member or person entitled to such Shares by death, bankruptcy or operation of law; |
| (c) | during the twelve (12)-year period, at least three (3) Dividends in respect of the Shares in question have become payable and no Dividend during that period has been claimed by the Member; and |
| (d) | upon expiry of the twelve (12)-year period, the Company has caused an advertisement to be published in the newspapers or by electronic communication in the manner in which notices may be served by the Company by Electronic Means as provided in the Articles, given notice of its intention to sell such Shares, and a period of three (3) months has elapsed since such advertisement and the Designated Stock Exchange has been notified of such intention. |
The net proceeds of any such sale shall belong to the Company and upon receipt by the Company of such net proceeds it shall become indebted to the former Member for an amount equal to such net proceeds.
| 43.2 | To give effect to any sale contemplated by Article 42.1, the Company may appoint any person to execute as transferor an instrument of transfer of the said Shares and such other documents as are necessary to effect the transfer, and such documents shall be as effective as if they had been executed by the registered holder of or person entitled by transmission to such Shares and the title of the transferee shall not be affected by any irregularity or invalidity in the proceedings relating thereto. The net proceeds of sale shall belong to the Company which shall be obliged to account to the former Member or other person previously entitled as aforesaid for an amount equal to such proceeds and shall enter the name of such former Member or other person in the books of the Company as a creditor for such amount. No trust shall be created in respect of the debt, no interest shall be payable in respect of the same and the Company shall not be required to account for any money earned on the net proceeds, which may be employed in the business of the Company or invested in such investments (other than Shares or other securities in or of the Company or its holding company if any) or as the Directors may from time to time think fit. |
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| 44 | Books of Account |
| 44.1 | The Directors shall cause proper books of account (including, where applicable, material underlying documentation including contracts and invoices) to be kept with respect to all sums of money received and expended by the Company and the matters in respect of which the receipt or expenditure takes place, all sales and purchases of goods by the Company and the assets and liabilities of the Company. Such books of account must be retained for a minimum period of five (5) years from the date on which they are prepared. Proper books shall not be deemed to be kept if there are not kept such books of account as are necessary to give a true and fair view of the state of the Company’s affairs and to explain its transactions. |
| 44.2 | The Directors shall 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 Members not being Directors and no Member (not being a Director) shall have any right of inspecting any account or book or document of the Company except as conferred by Statute or authorised by the Directors or by the Company in general meeting. |
| 44.3 | For as long as the Company is admitted to trading on a Designated Stock Exchange, the accounts relating to the Company’s affairs shall be audited subject to the requirements of Applicable Law and the rules and regulations of the Designated Stock Exchange. The accounting principles shall be determined by the Directors by reference to the requirements (if any) of the Designated Stock Exchange, Applicable Law, regulation or the requirements of any regulatory authority of competent jurisdiction. This Article shall not apply if the Company is no longer admitted to trading on a Designated Stock Exchange. |
| 44.4 | The Directors may cause to be prepared and to be laid before the Company in general meeting profit and loss accounts, balance sheets, group accounts (if any) and such other reports and accounts as may be required by law. |
| 45 | Audit |
| 45.1 | The Directors may appoint an Auditor of the Company who shall hold office on such terms as the Directors determine. |
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| 45.2 | Without prejudice to the freedom of the Directors to establish any other committee, for so long as the Shares (or depositary receipts therefor) are admitted to trading on the Designated Stock Exchange, the Directors shall establish and maintain an Audit Committee as a committee of the Directors, the composition and responsibilities of which shall comply with the charter of the Audit Committee, the rules and regulations of the Designated Stock Exchange, the rules and regulations of the SEC and all other Applicable Law and regulations. |
| 45.3 | 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 Auditor. |
| 45.4 | 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 in the case of a company which is registered with the Registrar of Companies as an ordinary company, and at the next extraordinary general meeting following their appointment in the case of a company which is registered with the Registrar of Companies as an exempted company, and at any other time during their term of office, upon request of the Directors or any general meeting of the Members. |
| 46 | Notices |
| 46.1 | Except as otherwise provided in the Articles, any notice or document may be served by the Company on any Member either personally or by sending it through the post in a prepaid letter addressed to such Member at their registered address as appearing in the Register of Members or, to the extent permitted by the rules and regulations of the Designated Stock Exchange and all Applicable Law and regulations, by Electronic Means by transmitting it to any electronic number or address supplied by the Member to the Company, or by placing it on the Company’s website provided that the Company has obtained either (a) the Member’s prior express positive confirmation in writing; or (b) the Member’s deemed consent in the manner specified in the rules and regulations of the Designated Stock Exchange to receive or otherwise have made available to such Member notices and documents to be given or issued to them by the Company by such Electronic Means, or (in the case of notice) by advertisement published in the manner prescribed in the rules and regulations of the SEC and the rules and regulations of the Designated Stock Exchange. In the case of joint holders of a Share, all notices shall be given to that holder for the time being whose name stands first in the Register of Members and notice so given shall be sufficient notice to all the joint holders. |
| 46.2 | Where a notice is sent by courier, service of the notice shall be deemed to be effected by delivery of the notice to a courier company, and shall be deemed to have been received on the third (3rd) day (not including Saturdays or Sundays or legal holiday or a day on which banking institutions or trust companies are authorised or obligated by law to close in New York City and the Cayman islands) following the day on which the notice was delivered to the courier. Where a notice is sent by post, service of the notice shall be deemed to be effected by properly addressing, pre paying and posting a letter containing the notice, and shall be deemed to have been received on the fifth (5th) day (not including Saturdays or Sundays or public holidays in the Cayman Islands) following the day on which the notice was posted. Where a notice is sent by cable, telex or fax, service of the notice shall be deemed to be effected by properly addressing and sending such notice and shall be deemed to have been received on the same day that it was transmitted. Where a notice is given by e-mail service shall be deemed to be effected by transmitting the e-mail to the e-mail address provided by the intended recipient and shall be deemed to have been received on the same day that it was sent, and it shall not be necessary for the receipt of the e-mail to be acknowledged by the recipient. |
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| 46.3 | A notice may be given by the Company to the person or persons which the Company has been advised are entitled to a Share or Shares in consequence of the death or bankruptcy of a Member in the same manner as other notices which are required to be given under the Articles and shall be addressed to them by name, or by the title of representatives of the deceased, or trustee of the bankrupt, or by any like description at the address supplied for that purpose by the persons claiming to be so entitled, or at the option of the Company by giving the notice in any manner in which the same might have been given if the death or bankruptcy had not occurred. |
| 46.4 | Notice of every general meeting shall be given in any manner authorised by the Articles to every holder of Shares carrying an entitlement to receive such notice on the record date for such meeting except that in the case of joint holders the notice shall be sufficient if given to the joint holder first named in the Register of Members and every person upon whom the ownership of a Share devolves by reason of his being a legal personal representative or a trustee in bankruptcy of a Member where the Member but for his death or bankruptcy would be entitled to receive notice of the meeting, and no other person shall be entitled to receive notices of general meetings. |
| 47 | Winding Up |
| 47.1 | If the Company shall be wound up the liquidator shall apply the assets of the Company in satisfaction of creditors’ claims in such manner and order as such liquidator thinks fit. Subject to the rights attaching to any Shares, in a winding up: |
| (a) | if the assets available for distribution amongst the Members shall be insufficient to repay the whole of the Company’s issued 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; or |
| (b) | if the assets available for distribution amongst the Members shall be more than sufficient to repay the whole of the Company’s issued 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 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. |
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| 47.2 | If the Company shall be wound up the liquidator may, subject to the rights attaching to any Shares and with the sanction of a Special Resolution of the Company and any other sanction required by the Statute, divide amongst the Members in kind the whole or any part of the assets of the Company (whether such assets shall consist of property of the same kind or not) and may for that purpose value any assets and determine how the division shall be carried out as between the Members or different classes of Members. 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 Members as the liquidator, with the like sanction, shall think fit, but so that no Member shall be compelled to accept any asset upon which there is a liability. |
| 48 | Indemnity and Insurance |
| 48.1 | To the fullest extent permitted by Applicable Law, every Director and officer of the Company (which for the avoidance of doubt, shall not include auditors of the Company), together with every former Director and former officer of the Company, and their respective personal representatives (each an “Indemnified Person”) shall be indemnified out of the assets of the Company against any liability, action, proceeding, claim, demand, costs, damages or expenses, including legal expenses, whatsoever which they or any of them may incur as a result of any act or failure to act in carrying out their functions other than such liability (if any) that they may incur by reason of their own actual fraud, wilful neglect or wilful default. No Indemnified Person shall be liable to the Company for any loss or damage incurred by the Company as a result (whether direct or indirect) of the carrying out of their functions unless that liability arises through the actual fraud, wilful neglect or wilful default of such Indemnified Person. No person shall be found to have committed actual fraud, wilful neglect or wilful default under this Article unless or until a court of competent jurisdiction shall have made a finding to that effect. |
| 48.2 | To the extent permitted by the Statute, the Company shall advance to each Indemnified Person reasonable attorneys’ fees and other costs and expenses incurred in connection with the defence of any action, suit, proceeding or investigation involving such Indemnified Person for which indemnity will or could be sought. In connection with any advance of any expenses hereunder, the Indemnified Person shall execute an undertaking to repay the advanced amount to the Company if it shall be determined by final judgment or other final adjudication that such Indemnified Person was not entitled to indemnification pursuant to this Article. If it shall be determined by a final judgment or other final adjudication that such Indemnified Person was not entitled to indemnification with respect to such judgment, costs or expenses, then such party shall not be indemnified with respect to such judgment, costs or expenses and any advancement shall be returned to the Company (without interest) by the Indemnified Person. |
| 48.3 | To the extent permitted by the Statute, the Directors, on behalf of the Company, may purchase and maintain insurance for the benefit of any Director or other officer of the Company, their respective personal representatives, against any risks determined by the Directors, other than liability arising out of that person’s own dishonesty. |
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| 49 | Financial Year |
Unless the Directors otherwise prescribe, the financial year of the Company shall end on 31st December in each year and, following the year of incorporation, shall begin on 1st January in each year.
| 50 | Registration by Way of Continuation |
Subject to these Articles, 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.
| 51 | Mergers and Consolidations |
The Company shall have the power to merge or consolidate with one or more other constituent companies (as defined in the Statute) upon such terms as the Directors may determine and (to the extent required by the Statute) with the approval of a Special Resolution.
| 52 | Certain Tax Filings |
| 52.1 | Each Tax Filing Authorised Person and any such other person, acting alone, as any director shall designate from time to time, are authorised to file tax forms SS-4, W-8 BEN, W-8 IMY, W-9, 8832 and 2553 and such other similar tax forms as are customary to file with any US state or federal governmental authorities or foreign governmental authorities in connection with the formation, activities and/or elections of the Company and such other tax forms as may be approved from time to time by any director of the Company or any other Officer. The Company further ratifies and approves any such filing made by any Tax Filing Authorised Person or such other person prior to the date of these Articles. |
| 53 | Business Opportunities |
| 53.1 | To the fullest extent permitted by Applicable Law, any Director who is not employed by the Company or its subsidiaries shall not have any duty, except and to the extent expressly assumed by contract, to refrain from engaging directly or indirectly in the same or similar business activities or lines of business as the Company. To the fullest extent permitted by Applicable Law, the Company renounces any interest or expectancy of the Company in, or in being offered an opportunity to participate in, any potential transaction or matter which may be a corporate opportunity for any Director who is not employed by the Company or its subsidiaries, on the one hand, and the Company, on the other. Except to the extent expressly assumed by contract, to the fullest extent permitted by Applicable Law, any Director who is not employed by the Company or its subsidiaries shall not have any duty to communicate or offer any such corporate opportunity to the Company and shall not be liable to the Company or its Members for breach of any fiduciary duty as a Member, Director and/or Officer solely by reason of the fact that such party pursues or acquires such corporate opportunity for itself, himself or herself, directs such corporate opportunity to another person, or does not communicate information regarding such corporate opportunity to the Company. |
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| 53.2 | The Company hereby renounces any interest or expectancy of the Company in, or in being offered an opportunity to participate in, any potential transaction or matter which may be a corporate opportunity for both the Company and any Director who is not employed by the Company or its subsidiaries, about which any such Director acquires knowledge; provided that, the Company does not renounce any interest or expectancy it may have in any business opportunity that is expressly offered to any Director solely in his or her capacity as a Director or Officer, and not in any other capacity. |
| 53.3 | In addition to and notwithstanding the foregoing provisions of this Article, a corporate opportunity shall not be deemed to belong to the Company if it is a business opportunity the Company is not financially able or contractually permitted or legally able to undertake, or that is, from its nature, not in the line of the Company’s business or is of no practical advantage to it or that is one in which the Company has no interest or reasonable expectancy. |
| 53.4 | To the extent a court might hold that the conduct of any activity related to a corporate opportunity that is renounced in this Article to be a breach of duty to the Company or its Members, the Company hereby waives, to the fullest extent permitted by Applicable Law, any and all claims and causes of action that the Company may have for such activities. To the fullest extent permitted by Applicable Law, the provisions of this Article apply equally to activities conducted in the future and that have been conducted in the past. |
| 54 | Exclusive Forum |
| 54.1 | Unless the Company consents in writing to the selection of an alternative forum, the courts of the Cayman Islands shall have exclusive jurisdiction over any claim or dispute arising out of or in connection with the Memorandum, the Articles or otherwise related in any way to each Member’s shareholding in the Company, including but not limited to: |
| (a) | any derivative action or proceeding brought on behalf of the Company; |
| (b) | any action asserting a claim of breach of any fiduciary or other duty owed by any current or former Director, officer or other employee of the Company to the Company or the Members; |
| (c) | any action asserting a claim arising pursuant to any provision of the Statute, the Memorandum or the Articles; or |
| (d) | any action asserting a claim against the Company governed by the “Internal Affairs Doctrine” (as such concept is recognised under the laws of the United States of America). |
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| 54.2 | Each Member shall be deemed to have irrevocably submitted to the exclusive jurisdiction of the courts of the Cayman Islands, and each person or entity purchasing or otherwise acquiring Shares or any other equity security of the Company shall be deemed to have notice of and consent to the provisions of this Article. |
| 54.3 | Without prejudice to any other rights or remedies that the Company may have, each Member acknowledges that damages alone would not be an adequate remedy for any breach of the selection of the courts of the Cayman Islands as exclusive forum and that accordingly the Company shall be entitled, without proof of special damages, to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the selection of the courts of the Cayman Islands as exclusive forum. |
| 54.4 | This Article shall not apply to any action or suits brought to enforce any liability or duty created by the U.S. Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, or any claim for which the federal district courts of the United States of America are, as a matter of the laws of the United States, the sole and exclusive forum for determination of such a claim. |
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Exhibit 4.11
NAMIB MINERALS
2025 EQUITY INCENTIVE PLAN
NAMIB MINERALS
2025 EQUITY INCENTIVE PLAN
| 1. | Purpose | 1 |
| 2. | Definitions | 1 |
| 3. | Administration. | 6 |
| 4. | Shares Subject to Plan. | 7 |
| 5. | Eligibility | 9 |
| 6. | Specific Terms of Awards. | 9 |
| 7. | Certain Provisions Applicable to Awards. | 16 |
| 8. | Change in Control. | 19 |
| 9. | General Provisions. | 21 |
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NAMIB MINERALS
2025 EQUITY INCENTIVE PLAN
1. Purpose. The purpose of this Namib Minerals 2025 Equity Incentive Plan (including any sub-plans as applicable), as may be amended from time to time (the “Plan”) is to assist Namib Minerals, a Cayman Islands exempted company (the “Company”), and its Related Entities (as hereinafter defined) in attracting, motivating, retaining and rewarding high-quality executives and other employees, officers, directors, consultants and other persons who provide services to the Company or its Related Entities by enabling such persons to acquire or increase a proprietary interest in the Company in order to strengthen the mutuality of interests between such persons and the Company’s shareholders, and providing such persons with performance incentives to expend their maximum efforts in the creation of shareholder value.
2. Definitions. For purposes of the Plan, the following terms shall be defined as set forth below, in addition to such terms defined in Section 1 hereof and elsewhere herein.
(a) “Affiliate” shall have the meaning ascribed to such term in Rule 12b-2 of the General Rules and Regulations under the Exchange Act and any successor to such Rule.
(b) “Award” shall mean any Option, Stock Appreciation Right, Restricted Stock Award, Restricted Stock Unit Award, Share granted as a bonus or in lieu of another Award, Dividend Equivalent, Other Stock-Based Award or Performance Award, together with any other right or interest relating to Shares or other property (including cash), granted to a Participant under the Plan.
(c) “Award Agreement” shall mean any written or electronic agreement, contract or other instrument or document evidencing any Award granted under this Plan.
(d) “BCA” shall mean that certain Business Combination Agreement, dated as of June 17, 2024, by and among (i) Hennessy Capital Investment Corp. VI, a Delaware corporation, (ii) the Company; (iii) Midas SPAC Merger Sub Inc., a Delaware corporation and a direct wholly-owned Subsidiary of the Company, (iv) Cayman Merger Sub Ltd., an exempted company limited by shares incorporated under the laws of the Cayman Islands and a direct wholly-owned Subsidiary of the Company and (v) Greenstone Corporation, an exempted company limited by shares incorporated under the laws of the Cayman Islands, as may be amended from time to time.
(e) “Beneficiary” shall mean the person, persons, trust or trusts that have been designated by a Participant in his or her most recent written beneficiary designation filed with the Committee to receive the benefits specified under the Plan upon such Participant’s death or to which Awards or other rights are transferred if and to the extent permitted under Section 9(b) hereof. If, upon a Participant’s death, there is no designated Beneficiary or surviving designated Beneficiary, then the term Beneficiary means the Participant’s estate.
(f) “Beneficial Owner” and “Beneficial Ownership” shall have the meaning ascribed to such term in Rule 13d-3 under the Exchange Act and any successor to such Rule.
(g) “Board” shall mean the Board of Directors of the Company.
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(h) “Cause” shall have the equivalent meaning or the same meaning as “cause” or “for cause” as set forth in any employment, consulting, or other agreement for the performance of services between the Participant and the Company or a Related Entity or, in the absence of any such agreement or any such definition in such agreement, such term shall mean (i) the failure by the Participant to perform, in a reasonable manner, his or her duties as assigned by the Company or a Related Entity, (ii) any violation or breach by the Participant of his or her employment, consulting or other similar agreement with the Company or a Related Entity, if any, or any violation or breach of any material written policy or rule of the Company or a Related Entity as may be in effect from time to time, including any of such policy or rule regarding sexual harassment or work-place discrimination, (iii) any violation or breach by the Participant of any non-competition, non-solicitation, non-disclosure, confidentiality and/or other similar agreement with the Company or a Related Entity, (iv) any act by the Participant of dishonesty or bad faith with respect to the Company or a Related Entity, including the Participant’s commission of or participation in an act of fraud, embezzlement, misappropriation, breach of fiduciary duty against the Company or a Related Entity, (v) the Participant’s unlawful use (including being under the influence) or possession of illegal drugs on the premises of the Company or a Related Entity or while performing Participant’s duties and responsibilities for the Company or a Related Entity, or the use of alcohol, drugs or other similar substances in a manner that adversely affects the Participant’s work performance, or (vi) the Participant’s conviction of, or plea of guilty or nolo contendere to, any felony or crime involving moral turpitude. The good faith determination by the Committee of whether the Participant’s Continuous Service was terminated by the Company for “Cause” shall be final and binding for all purposes hereunder.
(i) “Change in Control” shall mean a Change in Control as defined in Section 8(b) of the Plan.
(j) “Code” shall mean the United States Internal Revenue Code of 1986, as amended from time to time, including regulations thereunder and successor provisions and regulations thereto.
(k) “Committee” shall mean a committee designated by the Board to administer the Plan; provided, however, that if the Board fails to designate a committee or if there are no longer any members on the committee so designated by the Board, or for any other reason determined by the Board, then the Board shall serve as the Committee. While it is intended that the Committee shall consist of at least two directors, each of whom shall be (i) a “non-employee director” within the meaning of Rule 16b-3 (or any successor rule) under the Exchange Act, unless administration of the Plan by “non-employee directors” is not then required in order for exemptions under Rule 16b-3 to apply to transactions under the Plan and (ii) “Independent”, the failure of the Committee to be so comprised shall not invalidate any Award that otherwise satisfies the terms of the Plan.
(l) “Consultant” shall mean any consultant or advisor who provides services to the Company or any Related Entity, so long as (i) such person renders bona fide services that are not in connection with the offer and sale of the Company’s securities in a capital-raising transaction, (ii) such person does not directly or indirectly promote or maintain a market for the Company’s securities, and (iii) the identity of such person would not preclude the Company from offering or selling securities to such person pursuant to the Plan in reliance on either the exemption from registration provided by Rule 701 under the United States Securities Act of 1933, as amended or, if the Company is required to file reports pursuant to Section 13 or 15(d) of the Exchange Act, registration on a Form S-8 Registration Statement under the United States Securities Act of 1933, as amended.
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(m) “Continuous Service” shall mean the uninterrupted provision of services to the Company or any Related Entity in any capacity of Employee, Director, Consultant or other service provider. Continuous Service shall not be considered to be interrupted in the case of (i) any approved leave of absence (including, without limitation, sick leave, military leave, or any other authorized personal leave), (ii) transfers among the Company, any Related Entities, or any successor entities, in any capacity of Employee, Director, Consultant or other service provider, or (iii) any change in status as long as the individual remains in uninterrupted service of the Company or a Related Entity in any capacity of Employee, Director, Consultant or other service provider (except as otherwise provided in the Award Agreement).
(n) “Director” shall mean a member of the Board or the board of directors of any Related Entity.
(o) “Disability” shall mean, unless otherwise defined in an Award Agreement, for purposes of the exercise of an Incentive Stock Option, a permanent and total disability, within the meaning of Section 22(e)(3) of the Code, and for all other purposes, the Participant's inability to perform the duties of his or her position with the Company or any Related Entity by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months.
(p) “Dividend Equivalent” shall mean a right, granted to a Participant under Section 6(g) hereof, to receive cash, Shares, other Awards or other property equal in value to dividends paid with respect to a specified number of Shares, or other periodic payments.
(q) “Effective Date” shall mean the date on which the transactions contemplated by the BCA are consummated, which shall be June 5, 2025.
(r) “Eligible Person” shall mean each Director, Employee, Consultant and other persons who provides services to the Company or any Related Entity. The foregoing notwithstanding, only Employees of the Company, or any parent corporation or subsidiary corporation of the Company (as those terms are defined in Sections 424(e) and (f) of the Code, respectively), shall be Eligible Persons for purposes of receiving any Incentive Stock Options. An Employee on leave of absence may, in the discretion of the Committee, be considered as still in the employ of the Company or a Related Entity for purposes of eligibility for participation in the Plan.
(s) “Employee” shall mean any person, including an officer or Director, who is an employee of the Company or any Related Entity, or is a prospective employee of the Company or any Related Entity (conditioned upon and effective not earlier than, such person becoming an employee of the Company or any Related Entity). The payment of a Director’s fee by the Company or a Related Entity shall not be sufficient to constitute “employment” by the Company or Related Entity.
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(t) “Exchange Act” shall mean the United States Securities Exchange Act of 1934, as amended from time to time, including rules thereunder and successor provisions and rules thereto.
(u) “Fair Market Value” shall mean the fair market value of Shares, Awards or other property on the date as of which the value is being determined, as determined by the Committee, or under procedures established by the Committee, in a manner intended to satisfy the principles of Section 409A of the Code or Section 422 of the Code, to the extent applicable, subject to the following:
(i) If, on such date, the Shares are listed on an international, national or regional securities exchange or market system, the Fair Market Value of a Share shall be the closing price of a Share (or the mean of the closing bid and asked prices of a Share if the Share is so quoted instead) as quoted on the applicable exchange or system, as reported in The Wall Street Journal or such other source as the Committee deems reliable. If the relevant date does not fall on a day on which the Shares have traded on such exchange or system, the date on which the Fair Market Value shall be established shall be the last day on which the Shares were so traded prior to the relevant date, or such other appropriate day as shall be determined by the Committee, in its discretion.
(ii) If, on such date, the Shares are not listed on an international, national or regional securities exchange or market system but is traded on an over-the-counter market, the Fair Market Value of a Share shall be the average of the closing bid and asked prices for Shares or, if no closing bid and asked prices, the last closing price, in such over-the-counter market for the last preceding date on which there was a sale of such Shares in such market.
(iii) If, on such date, the Shares are not listed on an international, national or regional securities exchange or market system and are not traded on an over-the-counter market, the Fair Market Value of a Share shall be as determined by the Committee in good faith without regard to any restriction other than a restriction which, by its terms, will never lapse.
(v) “Incentive Stock Option” shall mean any Option intended to be designated as an incentive stock option within the meaning of Section 422 of the Code or any successor provision thereto.
(w) “Independent”, when referring to either the Board or members of the Committee, shall have the same meaning as used in the rules of the Listing Market.
(x) “Incumbent Board” shall mean the Incumbent Board as defined in Section 8(b)(ii) hereof.
(y) “Listing Market” shall mean the international, national or regional securities exchange on which any securities of the Company are listed for trading, and if not listed for trading, by the rules of the Nasdaq Stock Market.
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(z) “Option” shall mean a right granted to a Participant under Section 6(b) hereof, to purchase Shares at a specified price during specified time periods.
(aa) “Optionee” shall mean a person to whom an Option is granted under this Plan or any person who succeeds to the rights of such person under this Plan.
(bb) “Other Stock-Based Awards” shall mean Awards granted to a Participant under Section 6(i) hereof.
(cc) “Parent” shall mean any corporation (other than the Company), whether now or hereafter existing, in an unbroken chain of corporations ending with the Company, if each of the corporations in the chain (other than the Company) owns stock possessing 50% or more of the combined voting power of all classes of stock in one of the other corporations in the chain.
(dd) “Participant” shall mean a person who has been granted an Award under the Plan which remains outstanding, including a person who is no longer an Eligible Person.
(ee) “Performance Award” shall mean any Award granted pursuant to Section 6(h) hereof.
(ff) “Performance Period” shall mean that period established by the Committee at the time any Performance Award is granted or at any time thereafter during which any performance goals specified by the Committee with respect to such Award are to be measured.
(gg) “Person” shall have the meaning ascribed to such term in Section 3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d) thereof and shall include a “group” as defined in Section 13(d) thereof.
(hh) “Related Entity” shall mean any Parent or Subsidiary, and any business, corporation, partnership, limited liability company or other entity designated by the Committee in which the Company, a Parent or a Subsidiary holds a substantial ownership interest, directly or indirectly and with respect to which the Company may offer or sell securities pursuant to the Plan in reliance upon either Rule 701 under the Securities Act of 1933, as amended or, if the Company is required to file reports pursuant to Section 13 or 15(d) of the Exchange Act, registration on a Form S-8 Registration Statement under the Securities Act of 1933, as amended.
(ii) “Restricted Stock” shall mean any Share issued with such risks of forfeiture and other restrictions as the Committee, in its sole discretion, may impose (including any restriction on the right to vote such Share and the right to receive any dividends), which restrictions may lapse separately or in combination at such time or times, in installments or otherwise, as the Committee may deem appropriate.
(jj) “Restricted Stock Award” shall mean an Award granted to a Participant under Section 6(d) hereof.
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(kk) “Restricted Stock Unit” shall mean a right to receive Shares, including Restricted Stock, cash measured based upon the value of Shares, or a combination thereof, at the end of a specified deferral period.
(ll) “Restricted Stock Unit Award” shall mean an Award of Restricted Stock Units granted to a Participant under Section 6(e) hereof.
(mm) “Restriction Period” shall mean the period of time specified by the Committee that Restricted Stock Awards shall be subject to such restrictions on transferability, risk of forfeiture and other restrictions, if any, as the Committee may impose.
(nn) “Rule 16b-3” shall mean Rule 16b-3, as from time to time in effect and applicable to the Plan and Participants, promulgated by the Securities and Exchange Commission under Section 16 of the Exchange Act.
(oo) “Shares” shall mean the ordinary shares of the Company, and such other securities as may be substituted (or resubstituted) for Shares pursuant to Section 9(c) hereof.
(pp) “Stock Appreciation Right” shall mean a right granted to a Participant under Section 6(c) hereof.
(qq) “Subsidiary” shall mean any corporation or other entity in which the Company has a direct or indirect ownership interest of 50% or more of the total combined voting power of the then outstanding securities or interests of such corporation or other entity entitled to vote generally in the election of directors or in which the Company has the right to receive 50% or more of the distribution of profits or 50% or more of the assets on liquidation or dissolution.
(rr) “Substitute Awards” shall mean Awards granted or Shares issued by the Company in assumption of, or in substitution or exchange for, Awards previously granted, or the right or obligation to make future Awards, by a company (i) acquired by the Company or any Related Entity, (ii) which becomes a Related Entity after the date hereof, or (iii) with which the Company or any Related Entity combines.
3. Administration.
(a) Authority of the Committee. The Plan shall be administered by the Committee except to the extent (and subject to the limitations imposed by Section 3(b) hereof) the Board elects to administer the Plan, in which case the Plan shall be administered by only those members of the Board who are Independent, in which case references herein to the “Committee” shall be deemed to include references to the Independent members of the Board. The Committee shall have full and final authority, subject to and consistent with the provisions of the Plan, to select Eligible Persons to become Participants, grant Awards, determine the type, number and other terms and conditions of, and all other matters relating to, Awards, prescribe Award Agreements (which need not be identical for each Participant) and rules and regulations for the administration of the Plan, construe and interpret the Plan and Award Agreements and correct defects, supply omissions or reconcile inconsistencies therein, and to make all other decisions and determinations as the Committee may deem necessary or advisable for the administration of the Plan. In exercising any discretion granted to the Committee under the Plan or pursuant to any Award, the Committee shall not be required to follow past practices, act in a manner consistent with past practices, or treat any Eligible Person or Participant in a manner consistent with the treatment of any other Eligible Persons or Participants. Decisions of the Committee shall be final, conclusive and binding on all persons or entities, including the Company, any Related Entity or any Participant or Beneficiary, or any transferee under Section 9(b) hereof or any other person claiming rights from or through any of the foregoing persons or entities.
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(b) Manner of Exercise of Committee Authority.
The Committee, and not the Board, shall exercise sole and exclusive discretion (i) on any matter relating to a Participant then subject to Section 16 of the Exchange Act with respect to the Company to the extent necessary in order that transactions by such Participant shall be exempt under Rule 16b-3 under the Exchange Act, and (ii) with respect to any Award to an Independent Director. The express grant of any specific power to the Committee, and the taking of any action by the Committee, shall not be construed as limiting any power or authority of the Committee. The Committee may delegate to members of the Board, or officers or managers of the Company or any Related Entity, or committees thereof, the authority, subject to such terms and limitations as the Committee shall determine, to perform such functions, including administrative functions as the Committee may determine to the extent that such delegation will not 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. The Committee may appoint agents to assist it in administering the Plan, including, without limitation, appointing one or more members of the Company’s management, with the power or authority otherwise granted to the Committee under this Plan with respect to a number of Shares reserved and available for delivery under the Plan, subject to the terms and limitations of such power or authority as determined by the Committee in its sole and absolute discretion. In no event, however, may an agent appointed by the Committee to assist it in administering the Plan be permitted to grant Awards to, or exercise any discretion with respect to any and all other matters relating to Awards previously granted to, such agent appointed by the Committee to assist it in administering the Plan.
(c) Limitation of Liability. The Committee and the Board, and each member thereof, shall be entitled to, in good faith, rely or act upon any report or other information furnished to him or her by any officer or Employee, the Company’s independent auditors, Consultants or any other agents assisting in the administration of the Plan. Members of the Committee and the Board, and any officer or Employee acting at the direction or on behalf of the Committee or the Board, shall not be personally liable for any action or determination taken or made in good faith with respect to the Plan, and shall, to the extent permitted by law, be fully indemnified and protected by the Company with respect to any such action or determination.
4. Shares Subject to Plan.
(a) Limitation on Overall Number of Shares Available for Delivery Under Plan. Subject to adjustment as provided in Section 9(c) hereof, the aggregate number of Shares that may be issued under all Awards under the Plan shall be equal to 5,367,742 (the “Share Pool”). In addition, the Share Pool will automatically increase on January 1st of each year during the term of the Plan, commencing on the first January 1 following the Effective Date, in an amount equal to the lesser of (i) five (5)% of the total number of Shares outstanding as of the December 31 immediately prior to such January 1 and (ii) such smaller number of Shares as is determined by the Board. Any Shares delivered under the Plan may consist, in whole or in part, of authorized and unissued shares or treasury shares.
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(b) Application of Limitation to Grants of Awards. No Award may be granted if the number of Shares to be delivered in connection with such an Award exceeds the number of Shares remaining available for delivery under the Plan, minus the number of Shares that would be counted against the limit upon settlement of then outstanding Awards. The Committee may adopt reasonable counting procedures to ensure appropriate counting, avoid double counting (as, for example, in the case of tandem or Substitute Awards) and make adjustments if the number of Shares actually delivered differs from the number of Shares previously counted in connection with an Award.
(c) Availability of Shares Not Delivered under Awards and Adjustments to Limits.
(i) If any Shares subject to an Award are forfeited, expire or otherwise terminate without issuance of such Shares, or any Award is settled for cash or otherwise does not result in the issuance of all or a portion of the Shares subject to such Award, the Shares to which those Awards were subject, shall, to the extent of such forfeiture, expiration, termination, non-issuance or cash settlement, be added back to the Share Pool and again be available for delivery with respect to Awards under the Plan.
(ii) Shares withheld from an Award to satisfy either (i) the exercise price or purchase price of such Award, or (ii) any tax withholding requirements shall not count against the maximum number of Shares remaining available for issuance pursuant to Awards granted under the Plan and, for the avoidance of doubt, shall be added back to the Share Pool.
(iii) Substitute Awards shall not reduce the Shares authorized for delivery under the Plan or authorized for delivery to a Participant in any period; provided, that Substitute Awards issued in connection with the assumption of, or in substitution for, outstanding Incentive Stock Options shall be counted against the aggregate number of Shares available for Awards of Incentive Stock Options under the Plan pursuant to Section 4(c)(v) herein. Additionally, in the event that an entity acquired by the Company or any Related Entity or with which the Company or any Related Entity combines has shares available under a pre-existing plan approved by its shareholders and not adopted in contemplation of such acquisition or combination, the shares available for delivery 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 delivery under the Plan if and to the extent that the use of such Shares would not require approval of the Company’s shareholders under the rules of the Listing Market. 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 Employees, Directors, Consultants or other service providers prior to such acquisition or combination.
(iv) Any Share that again becomes available for delivery pursuant to this Section 4(c) shall be added back as one (1) Share.
(v) Notwithstanding anything in this Section 4(c) to the contrary but subject to adjustment as provided in Section 9(c) hereof, the maximum aggregate number of Shares that may be delivered under the Plan as a result of the exercise of the Incentive Stock Options shall be 5,367,742 Shares. In no event shall any Incentive Stock Options be granted under the Plan after the tenth anniversary of the date on which the Board adopts the Plan.
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(vi) Notwithstanding anything in this Section 4 to the contrary, in any fiscal year of the Company during any part of which the Plan is in effect, the aggregate value of all compensation payable to a Participant who is a Director but is not also an Employee or Consultant, including cash fees and any Awards granted under this Plan (valued based on the “fair value” as of the date of grant as determined in accordance with FASB ASC Topic 718 (or any other applicable accounting guidance)), shall not exceed $750,000.
5. Eligibility. Awards may be granted under the Plan only to Eligible Persons.
6. Specific Terms of Awards.
(a) General. Awards may be granted on the terms and conditions set forth in this Section 6. In addition, the Committee may impose on any Award or the exercise thereof, at the date of grant or thereafter (subject to Section 9(e) hereof), such additional terms and conditions, not inconsistent with the provisions of the Plan, as the Committee shall determine, including terms requiring forfeiture of Awards in the event of termination of the Participant’s Continuous Service and terms permitting a Participant to make elections relating to his or her Award. Except as otherwise expressly provided herein, the Committee shall retain full power and discretion to accelerate, waive or modify, at any time, any term or condition of an Award that is not mandatory under the Plan. Except in cases in which the Committee is authorized to require other forms of consideration under the Plan, or to the extent other forms of consideration must be paid to satisfy the requirements of applicable laws, no consideration other than services may be required for the grant (as opposed to the exercise) of any Award.
(b) Options. The Committee is authorized to grant Options to any Eligible Person on the following terms and conditions:
(i) Exercise Price. Other than in connection with Substitute Awards, the exercise price per Share purchasable under an Option shall be determined by the Committee, provided that such exercise price shall not be less than 100% of the Fair Market Value of a Share on the date of grant of the Option with respect to any Participants who are United States taxpayers and shall not, in any event, be less than the par value of a Share on the date of grant of the Option. If an Employee owns or is deemed to own (by reason of the attribution rules applicable under Section 424(d) of the Code) more than 10% of the combined voting power of all classes of stock of the Company (or any parent corporation or subsidiary corporation of the Company, as those terms are defined in Sections 424(e) and (f) of the Code, respectively) and an Incentive Stock Option is granted to such Employee, the exercise price of such Incentive Stock Option (to the extent required by the Code at the time of grant) shall be no less than 110% of the Fair Market Value of a Share on the date such Incentive Stock Option is granted. Other than pursuant to Section 9(c)(i) and (ii) of this Plan, the Committee shall not be permitted to (A) lower the exercise price per Share of an Option after it is granted, (B) cancel an Option when the exercise price per Share exceeds the Fair Market Value of the underlying Shares in exchange for cash or another Award (other than in connection with Substitute Awards), (C) cancel an outstanding Option in exchange for an Option with an exercise price that is less than the exercise price of the original Options or (D) take any other action with respect to an Option that may be treated as a repricing pursuant to the applicable rules of the Listing Market, without approval of the Company’s shareholders.
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(ii) Time and Method of Exercise. The Committee shall determine the time or times at which or the circumstances under which an Option may be exercised in whole or in part (including based on achievement of performance goals and/or future service requirements), the method by which notice of exercise is to be given and the form of exercise notice to be used, the time or times at which Options shall cease to be or become exercisable following termination of Continuous Service or upon other conditions, the methods by which the exercise price may be paid or deemed to be paid (including in the discretion of the Committee a cashless exercise procedure), the form of such payment, including, without limitation, cash, Shares (including without limitation the withholding of Shares otherwise deliverable pursuant to the Award), other Awards or awards granted under other plans of the Company or a Related Entity, or other property (including notes or other contractual obligations of Participants to make payment on a deferred basis provided that such deferred payments are not in violation of Section 13(k) of the Exchange Act, or any rule or regulation adopted thereunder or any other applicable law), and the methods by or forms in which Shares will be delivered or deemed to be delivered to Participants.
(iii) Form of Settlement. The Committee may, in its sole discretion, provide that the Shares to be issued upon exercise of an Option shall be in the form of Restricted Stock or other similar securities.
(iv) Incentive Stock Options. The Committee shall only grant Incentive Stock Options if (y) with respect to the initial Share Pool set forth in Section 4(a) and 4(c)(vi), within 12 months of the Effective Date, and/or (z) with respect to any increase in the Share pools set forth in Sections 4(a) and 4(c)(iv) by an amendment to this Plan, within 12 months of the effective date of any such amendment the Plan or amendment, whichever applicable, is approved by shareholders of the Company eligible to vote in the election of directors, by a vote sufficient to meet the requirements of Code Section 422, applicable requirements under the rules of any stock exchange or automated quotation system on which the Shares may be listed or quoted, and other laws, regulations, and obligations of the Company applicable to the Plan. Incentive Stock Options may be granted subject to shareholder approval but may not be exercised or otherwise settled in the event the shareholder approval is not obtained. The terms of any Incentive Stock Option granted under the Plan shall comply in all respects with the provisions of Section 422 of the Code. Anything in the Plan to the contrary notwithstanding, no term of the Plan relating to Incentive Stock Options (including any Stock Appreciation Right issued in tandem therewith) shall be interpreted, amended or altered, nor shall any discretion or authority granted under the Plan be exercised, so as to disqualify either the Plan or any Incentive Stock Option under Section 422 of the Code, unless the Participant has first requested, or consents to, the change that will result in such disqualification. Thus, if and to the extent required to comply with Section 422 of the Code, Options granted as Incentive Stock Options shall be subject to the following special terms and conditions:
(A) the Option shall not be exercisable for more than ten years after the date such Incentive Stock Option is granted; provided, however, that if a Participant owns or is deemed to own (by reason of the attribution rules of Section 424(d) of the Code) more than 10% of the combined voting power of all classes of stock of the Company (or any parent corporation or subsidiary corporation of the Company, as those terms are defined in Sections 424(e) and (f) of the Code, respectively) and the Incentive Stock Option is granted to such Participant, the term of the Incentive Stock Option shall be (to the extent required by the Code at the time of the grant) for no more than five years from the date of grant;
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(B) the aggregate Fair Market Value (determined as of the date the Incentive Stock Option is granted) of the Shares with respect to which Incentive Stock Options granted under the Plan and all other option plans of the Company (and any parent corporation or subsidiary corporation of the Company, as those terms are defined in Sections 424(e) and (f) of the Code, respectively) that become exercisable for the first time by the Participant during any calendar year shall not (to the extent required by the Code at the time of the grant) exceed $100,000 (or such other limit as required by the Code); and
(C) if Shares acquired by exercise of an Incentive Stock Option are disposed of within two years following the date the Incentive Stock Option is granted or one year following the transfer of such Shares to the Participant upon exercise, the Participant shall, promptly following such disposition, notify the Company in writing of the date and terms of such disposition and provide such other information regarding the disposition as the Committee may reasonably require.
(c) Stock Appreciation Rights. The Committee may grant Stock Appreciation Rights to any Eligible Person in conjunction with all or part of any Option granted under the Plan or at any subsequent time during the term of such Option (a “Tandem Stock Appreciation Right”), or without regard to any Option (a “Freestanding Stock Appreciation Right”), in each case upon such terms and conditions as the Committee may establish in its sole discretion, not inconsistent with the provisions of the Plan, including the following:
(i) Right to Payment. A Stock Appreciation Right shall confer on the Participant to whom it is granted a right to receive, upon exercise thereof, the excess of (A) the Fair Market Value of one Share on the date of exercise over (B) the grant price of the Stock Appreciation Right as determined by the Committee. The grant price of a Stock Appreciation Right shall not be less than 100% of the Fair Market Value of a Share on the date of grant with respect to any Participants who are United States taxpayers, in the case of a Freestanding Stock Appreciation Right, or less than the associated Option exercise price, in the case of a Tandem Stock Appreciation Right. Other than pursuant to Section 9(c)(i) and (ii) of the Plan, the Committee shall not be permitted to (A) lower the grant price per Share of a Stock Appreciation Right after it is granted, (B) cancel a Stock Appreciation Right when the grant price per Share exceeds the Fair Market Value of the underlying Shares in exchange for another Award (other than in connection with Substitute Awards), (C) cancel an outstanding Stock Appreciation Right in exchange for a Stock Appreciation Right with a grant price that is less than the grant price of the original Stock Appreciation Right, or (D) take any other action with respect to a Stock Appreciation Right that may be treated as a repricing pursuant to the applicable rules of the Listing Market, without shareholder approval.
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(ii) Other Terms. The Committee shall determine at the date of grant or thereafter, the time or times at which and the circumstances under which a Stock Appreciation Right may be exercised in whole or in part (including based on achievement of performance goals and/or future service requirements), the time or times at which Stock Appreciation Rights shall cease to be or become exercisable following termination of Continuous Service or upon other conditions, the method of exercise, method of settlement, form of consideration payable in settlement, method by or forms in which Shares will be delivered or deemed to be delivered to Participants, whether or not a Stock Appreciation Right shall be in tandem or in combination with any other Award, and any other terms and conditions of any Stock Appreciation Right.
(iii) Tandem Stock Appreciation Rights. Any Tandem Stock Appreciation Right may be granted at the same time as the related Option is granted or, for Options that are not Incentive Stock Options, at any time thereafter before exercise or expiration of such Option. Any Tandem Stock Appreciation Right related to an Option may be exercised only when the related Option would be exercisable and the Fair Market Value of the Shares subject to the related Option exceeds the exercise price at which Shares can be acquired pursuant to the Option. In addition, if a Tandem Stock Appreciation Right exists with respect to less than the full number of Shares covered by a related Option, then an exercise or termination of such Option shall not reduce the number of Shares to which the Tandem Stock Appreciation Right applies until the number of Shares then exercisable under such Option equals the number of Shares to which the Tandem Stock Appreciation Right applies. Any Option related to a Tandem Stock Appreciation Right shall no longer be exercisable to the extent the Tandem Stock Appreciation Right has been exercised, and any Tandem Stock Appreciation Right shall no longer be exercisable to the extent the related Option has been exercised.
(d) Restricted Stock Awards. The Committee is authorized to grant Restricted Stock Awards to any Eligible Person on the following terms and conditions:
(i) Grant and Restrictions. Restricted Stock Awards shall be subject to such restrictions on transferability, risk of forfeiture and other restrictions, if any, as the Committee may impose, or as otherwise provided in this Plan during the Restriction Period. The terms of any Restricted Stock Award granted under the Plan shall be set forth in a written Award Agreement which shall contain provisions determined by the Committee and not inconsistent with the Plan. The restrictions may lapse separately or in combination at such times, under such circumstances (including based on achievement of performance goals and/or future service requirements), in such installments or otherwise, as the Committee may determine at the date of grant or thereafter. Except to the extent restricted under the terms of the Plan and any Award Agreement relating to a Restricted Stock Award, a Participant granted Restricted Stock shall have all of the rights of a shareholder, including the right to vote the Restricted Stock and the right to receive dividends thereon (subject to any mandatory reinvestment or other requirement imposed by the Committee). During the period that the Restricted Stock Award is subject to a risk of forfeiture, subject to Section 9(b) below and except as otherwise provided in the Award Agreement, the Restricted Stock may not be sold, transferred, pledged, hypothecated, margined or otherwise encumbered by the Participant or Beneficiary.
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(ii) Forfeiture. Except as otherwise determined by the Committee, upon termination of a Participant’s Continuous Service during the applicable Restriction Period, the Participant’s Restricted Stock that is at that time subject to a risk of forfeiture that has not lapsed or otherwise been satisfied shall be forfeited and reacquired by the Company; provided that the Committee may provide, by resolution or other action or in any Award Agreement, or may determine in any individual case, that forfeiture conditions relating to Restricted Stock Awards shall be waived in whole or in part in the event of terminations resulting from specified causes, and the Committee may in other cases waive in whole or in part the forfeiture of Restricted Stock.
(iii) Certificates for Stock. Restricted Stock granted under the Plan may be evidenced in such manner as the Committee shall determine. If certificates representing Restricted Stock are registered in the name of the Participant, the Committee may require that such certificates bear an appropriate legend referring to the terms, conditions and restrictions applicable to such Restricted Stock, that the Company retain physical possession of the certificates, and that the Participant deliver a stock power to the Company, endorsed in blank, relating to the Restricted Stock.
(iv) Dividends and Splits. As a condition to the grant of a Restricted Stock Award, the Committee shall either (A) require that any cash dividends paid on a Share of Restricted Stock be automatically reinvested in additional Shares of Restricted Stock, or (B) require that payment be delayed (with or without interest at such rate, if any, as the Committee shall determine) and remain subject to restrictions and a risk of forfeiture to the same extent as the Restricted Stock with respect to which such cash dividend is payable, in each case in a manner that does not violate the requirements of Section 409A of the Code. Unless otherwise determined by the Committee, Shares distributed in connection with a stock split or stock dividend, and other property distributed as a dividend, shall be subject to restrictions and a risk of forfeiture to the same extent as the Restricted Stock with respect to which such Shares or other property have been distributed.
(e) Restricted Stock Unit Award. The Committee is authorized to grant Restricted Stock Unit Awards to any Eligible Person on the following terms and conditions:
(i) Award and Restrictions. Satisfaction of a Restricted Stock Unit Award shall occur upon expiration of the deferral period specified for such Restricted Stock Unit Award by the Committee (or, if permitted by the Committee, as elected by the Participant in a manner that does not violate the requirements of Section 409A of the Code). In addition, a Restricted Stock Unit Award shall be subject to such restrictions (which may include a risk of forfeiture) as the Committee may impose, if any, which restrictions may lapse at the expiration of the deferral period or at earlier specified times (including based on achievement of performance goals and/or future service requirements), separately or in combination, in installments or otherwise, as the Committee may determine. A Restricted Stock Unit Award may be satisfied by delivery of Shares, cash equal to the Fair Market Value of the specified number of Shares covered by the Restricted Stock Units, or a combination thereof, as determined by the Committee at the date of grant or thereafter. Prior to satisfaction of a Restricted Stock Unit Award, a Restricted Stock Unit Award carries no voting or dividend or other rights associated with Share ownership. Prior to satisfaction of a Restricted Stock Unit Award, except as otherwise provided in an Award Agreement and as permitted under Section 409A of the Code, a Restricted Stock Unit Award may not be sold, transferred, pledged, hypothecated, margined or otherwise encumbered by the Participant or any Beneficiary.
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(ii) Forfeiture. Except as otherwise determined by the Committee, upon termination of a Participant’s Continuous Service during the applicable deferral period or portion thereof to which forfeiture conditions apply (as provided in the Award Agreement evidencing the Restricted Stock Unit Award), the Participant’s Restricted Stock Unit Award that is at that time subject to a risk of forfeiture that has not lapsed or otherwise been satisfied shall be forfeited; provided that the Committee may provide, by resolution or other action or in any Award Agreement, or may determine in any individual case, that forfeiture conditions relating to a Restricted Stock Unit Award shall be waived in whole or in part in the event of terminations resulting from specified causes, and the Committee may in other cases waive in whole or in part the forfeiture of any Restricted Stock Unit Award.
(iii) Dividend Equivalents. As a condition to the grant of a Restricted Stock Unit and if the Award Agreement provides for Dividend Equivalents with respect to the underlying Restricted Stock Units, the Committee shall require that any cash dividends paid on a Share attributable to such Restricted Stock Unit be delayed (with or without interest at such rate, if any, as the Committee shall determine) and remain subject to restrictions and a risk of forfeiture to the same extent as the Restricted Stock Unit with respect to which such cash dividend is payable, in a manner that does not violate the requirements of Section 409A of the Code. Unless otherwise determined by the Committee, Shares distributed in connection with a stock split or stock dividend, and other property distributed as a dividend, shall be subject to restrictions and a risk of forfeiture to the same extent as the Restricted Stock Unit with respect to which such Shares or other property have been distributed.
(f) Bonus Stock and Awards in Lieu of Obligations. The Committee is authorized to grant Shares to any Eligible Persons as a bonus, or to grant Shares or other Awards in lieu of obligations to pay cash or deliver other property under the Plan or under other plans or compensatory arrangements, provided that, in the case of Eligible Persons subject to Section 16 of the Exchange Act, the amount of such grants remains within the discretion of the Committee to the extent necessary to ensure that acquisitions of Shares or other Awards are exempt from liability under Section 16(b) of the Exchange Act. Shares or Awards granted hereunder shall be subject to such other terms as shall be determined by the Committee.
(g) Dividend Equivalents. The Committee is authorized to grant Dividend Equivalents to any Eligible Person entitling the Eligible Person to receive cash, Shares, other Awards, or other property equal in value to the dividends paid with respect to a specified number of Shares, or other periodic payments. Dividend Equivalents may be awarded on a free-standing basis or in connection with another Award. The Committee may provide that Dividend Equivalents shall be paid or distributed when accrued, or whether such Dividend Equivalents shall be deemed to have been reinvested in additional Shares, Awards, or other investment vehicles, and subject to such restrictions on transferability and risks of forfeiture, as the Committee may specify; provided, that in no event shall such Dividend Equivalents be paid out to Participants prior to vesting of the corresponding Shares underlying the Award. Any such determination by the Committee shall be made at the grant date of the applicable Award. Notwithstanding the foregoing, Dividend Equivalents credited in connection with an Award that vests based on the achievement of performance goals shall be subject to restrictions and risk of forfeiture to the same extent as the Award with respect to which such Dividend Equivalents have been credited.
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(h) Performance Awards. The Committee is authorized to grant Performance Awards to any Eligible Person payable in cash, Shares, or other Awards, on terms and conditions established by the Committee. The performance criteria to be achieved during any Performance Period and the length of the Performance Period shall be determined by the Committee upon the grant of each Performance Award. The performance criteria may consist of the following (determined for the Company, on a consolidated basis, and/or for Related Entities, or for business or geographical units of the Company and/or a Related Entity), without limitation: (1) earnings per share; (2) revenues or margins; (3) cash flow (including operating cash flow, free cash flow, discounted return on investment, and cash flow in excess of cost of capital); (4) operating margin; (5) return on net assets, investment, capital, or equity; (6) economic value added; (7) direct contribution; (8) net income; pretax earnings; earnings before all or some of the following items: interest, taxes, depreciation, amortization, stock-based compensation, ASC 718 expense, or any extraordinary or special items; earnings after interest expense and before extraordinary or special items; operating income or income from operations; income before interest income or expense, unusual items and income taxes, local, state or federal and excluding budgeted and actual bonuses which might be paid under any ongoing bonus plans of the Company; (9) working capital; (10) management of fixed costs or variable costs; (11) identification or consummation of investment opportunities or completion of specified projects in accordance with corporate business plans, including strategic mergers, acquisitions or divestitures; (12) total stockholder return; (13) debt reduction; (14) market share; (15) entry into new markets, either geographically or by business unit; (16) customer retention and satisfaction; (17) strategic plan development and implementation, including turnaround plans; and/or (18) the Fair Market Value of a Share. Any of the foregoing criteria may be determined on an absolute or relative basis or as compared to the performance of a published or special index deemed applicable by the Committee including, but not limited to, the Standard & Poor’s 500 Stock Index, the Nasdaq Composite Index, the Russell 2000 Index, or another group of companies that are deemed comparable to the Company. In determining the achievement of the performance goals, unless otherwise specified by the Committee at the time the performance goals are set, the Committee shall exclude the impact of (i) restructurings, discontinued operations, and extraordinary items (as defined pursuant to generally accepted accounting principles), and other unusual or non-recurring charges, (ii) change in accounting standards required by generally accepted accounting principles; or (iii) such other exclusions or adjustments as the Committee specifies at the time the Award is granted. Except as may be provided in Section 8 or an Award Agreement, Performance Awards will be distributed only after the end of the relevant Performance Period. The performance goals to be achieved for each Performance Period, the duration of the Performance Period and the amount of the Award to be distributed, in each case, shall be conclusively determined by the Committee. Performance Awards may be paid in a lump sum or in installments following the close of the Performance Period or, in accordance with procedures established by the Committee, on a deferred basis in a manner that does not violate the requirements of Section 409A of the Code.
(i) Other Stock-Based Awards. The Committee is authorized, subject to limitations under applicable law, to grant to any Eligible Person such other Awards that may be denominated or payable in, valued in whole or in part by reference to, or otherwise based on, or related to, Shares, as deemed by the Committee to be consistent with the purposes of the Plan. Other Stock-Based Awards may be granted to Participants either alone or in addition to other Awards granted under the Plan, and such Other Stock-Based Awards shall also be available as a form of payment in the settlement of other Awards granted under the Plan. The Committee shall determine the terms and conditions of such Awards. Shares delivered pursuant to an Award in the nature of a purchase right granted under this Section 6(i) shall be purchased for such consideration, (including without limitation loans from the Company or a Related Entity provided that such loans are not in violation of Section 13(k) of the Exchange Act or any rule or regulation adopted thereunder or any other applicable law) paid for at such times, by such methods, and in such forms, including, without limitation, cash, Shares, other Awards or other property, as the Committee shall determine.
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7. Certain Provisions Applicable to Awards.
(a) Stand-Alone, Additional, Tandem, and Substitute Awards. Awards granted under the Plan may, in the discretion of the Committee, be granted either alone or in addition to, in tandem with, or in substitution or exchange for, any other Award or any award granted under another plan of the Company, any Related Entity, or any business entity to be acquired by the Company or a Related Entity, or any other right of a Participant to receive payment from the Company or any Related Entity. Such additional, tandem, and substitute or exchange Awards may be granted at any time. If an Award is granted in substitution or exchange for another Award or award, the Committee shall require the surrender of such other Award or award in consideration for the grant of the new Award. In addition, Awards may be granted in lieu of cash compensation, including in lieu of cash amounts payable under other plans of the Company or any Related Entity, in which the value of Shares subject to the Award is equivalent in value to the cash compensation (for example, Restricted Stock or Restricted Stock Units), or in which the exercise price, grant price or purchase price of the Award in the nature of a right that may be exercised is equal to the Fair Market Value of the underlying Shares minus the value of the cash compensation surrendered, provided that any such determination to grant an Award in lieu of cash compensation must be made in a manner intended to be exempt from or comply with Section 409A of the Code.
(b) Term of Awards. The term of each Award shall be for such period as may be determined by the Committee; provided that in no event shall the term of any Option or Stock Appreciation Right exceed a period of ten years (or in the case of an Incentive Stock Option such shorter term as may be required under Section 422 of the Code); provided, however, that in the event that on the last day of the term of an Option or a Stock Appreciation Right, other than an Incentive Stock Option, (i) the exercise of the Option or Stock Appreciation Right is prohibited by applicable law, or (ii) Shares may not be purchased, or sold by certain employees or directors of the Company due to the “black-out period” of a Company policy or a “lock-up” agreement undertaken in connection with an issuance of securities by the Company, the term of the Option or Stock Appreciation Right may be extended by the Committee for a period of up to thirty (30) days following the end of the legal prohibition, black-out period or lock-up agreement, provided that such extension of the term of the Option or Stock Appreciation Right would not cause the Option or Stock Appreciation Right to violate the requirements of Section 409A of the Code.
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(c) Form and Timing of Payment Under Awards; Deferrals. Subject to the terms of the Plan and any applicable Award Agreement, payments to be made by the Company or a Related Entity upon the exercise of an Option or other Award or settlement of an Award may be made in such forms as the Committee shall determine, including, without limitation, cash, Shares, other Awards or other property, and may be made in a single payment or transfer, in installments, or on a deferred basis, provided that any determination to pay in installments or on a deferred basis shall be made by the Committee at the date of grant. Any installment or deferral provided for in the preceding sentence shall, however, subject to the terms of the Plan, be subject to the Company’s compliance with the provisions of the Sarbanes-Oxley Act of 2002, as amended, the rules and regulations adopted by the Securities and Exchange Commission thereunder, all applicable rules of the Listing Market and any other applicable law, and in a manner intended to be exempt from or otherwise satisfy the requirements of Section 409A of the Code. Subject to Section 7(e) of this Plan, the settlement of any Award may be accelerated, and cash paid in lieu of Shares in connection with such settlement, in the sole discretion of the Committee or upon occurrence of one or more specified events (in addition to a Change in Control). Any such settlement shall be at a value determined by the Committee in its sole discretion, which, without limitation, may in the case of an Option or Stock Appreciation Right be limited to the amount if any by which the Fair Market Value of a Share on the settlement date exceeds the exercise or grant price. Installment or deferred payments may be required by the Committee (subject to Section 7(e) of this Plan, including the consent provisions thereof in the case of any deferral of an outstanding Award not provided for in the original Award Agreement) or permitted at the election of the Participant on terms and conditions established by the Committee. The acceleration of the settlement of any Award, and the payment of any Award in installments or on an deferred basis, all shall be done in a manner that is intended to be exempt from or otherwise satisfy the requirements of Section 409A of the Code. The Committee may, without limitation, make provision for the payment or crediting of a reasonable interest rate on installment or deferred payments or the grant or crediting of Dividend Equivalents or other amounts in respect of installment or deferred payments denominated in Shares.
(d) Exemptions from Section 16(b) Liability. It is the intent of the Company that the grant of any Awards to or other transaction by a Participant who is subject to Section 16 of the Exchange Act shall be exempt from Section 16 pursuant to an applicable exemption (except for transactions acknowledged in writing to be non-exempt by such Participant). Accordingly, if any provision of this Plan or any Award Agreement does not comply with the requirements of Rule 16b-3 then applicable to any such transaction, such provision shall be construed or deemed amended to the extent necessary to conform to the applicable requirements of Rule 16b-3 so that such Participant shall avoid liability under Section 16(b).
(e) Code Section 409A.
(i) The Award Agreement for any Award that the Committee reasonably determines to constitute a “nonqualified deferred compensation plan” under Section 409A of the Code (a “Section 409A Plan”), and the provisions of the Section 409A Plan applicable to that Award, shall be construed in a manner consistent with the applicable requirements of Section 409A of the Code, and the Committee, in its sole discretion and without the consent of any Participant, may amend any Award Agreement (and the provisions of the Plan applicable thereto) if and to the extent that the Committee determines that such amendment is necessary or appropriate to comply with the requirements of Section 409A of the Code.
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(ii) If any Award constitutes a Section 409A Plan, then the Award shall be subject to the following additional requirements, if and to the extent required to comply with Section 409A of the Code:
(A) Payments under the Section 409A Plan may be made only upon (u) the Participant’s “separation from service”, (v) the date the Participant becomes “disabled”, (w) the Participant’s death, (x) a “specified time (or pursuant to a fixed schedule)” specified in the Award Agreement at the date of the deferral of such compensation, (y) a “change in the ownership or effective control of the corporation, or in the ownership of a substantial portion of the assets” of the Company, or (z) the occurrence of an “unforeseeble emergency”;
(B) The time or schedule for any payment of the deferred compensation may not be accelerated, except to the extent provided in applicable Treasury Regulations or other applicable guidance issued by the Internal Revenue Service;
(C) Any elections with respect to the deferral of such compensation or the time and form of distribution of such deferred compensation shall comply with the requirements of Section 409A(a)(4) of the Code;
(D) In the case of any Participant who is “specified employee”, a distribution on account of a “separation from service” may not be made before the date which is six months after the date of the Participant’s “separation from service” (or, if earlier, the date of the Participant’s death); and
(E) Each separately identified amount to which a Participant is entitled under a Section 409A Plan shall be treated as a separate payment. In addition, to the extent permissible under Section 409A, any series of installment payments under a Section 409A Plan shall be treated as a right to a series of separate payments.
For purposes of the foregoing, the terms in quotations shall have the same meanings as those terms have for purposes of Section 409A of the Code, and the limitations set forth herein shall be applied in such manner (and only to the extent) as shall be necessary to comply with any requirements of Section 409A of the Code that are applicable to the Award.
(iii) Notwithstanding the foregoing, or any provision of this Plan or any Award Agreement, the Company does not make any representation to any Participant or Beneficiary that any Awards made pursuant to this Plan are exempt from, or satisfy, the requirements of, Section 409A of the Code, and the Company shall have no liability or other obligation to indemnify or hold harmless the Participant or any Beneficiary for any tax, additional tax, interest or penalties that the Participant or any Beneficiary may incur in the event that any provision of this Plan, or any Award Agreement, or any amendment or modification thereof, or any other action taken with respect thereto, is deemed to violate any of the requirements of Section 409A of the Code.
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8. Change in Control.
(a) Effect of “Change in Control.”
Subject to any limitations or reductions as may be necessary to comply with Section 409A of the Code, an Award may be subject to acceleration of vesting and exercisability if and only to the extent expressly provided for in any employment or other agreement between the Participant and the Company or any Related Entity, or in any Award Agreement entered into prior to the occurrence of a Change in Control (as defined below), or to the extent otherwise determined by the Committee in its sole discretion and without any requirement that each Participant be treated consistently. Except as otherwise provided in Section 8(a)(iv) hereof, such Awards shall be treated as follows upon the occurrence of a “Change in Control,” as defined in Section 8(b):
(i) Any Option or Stock Appreciation Right that was not previously vested and exercisable as of the time of the Change in Control, shall become immediately vested and exercisable, subject to applicable restrictions set forth in Section 9(a) hereof.
(ii) Any restrictions, deferral of settlement, and forfeiture conditions applicable to a Restricted Stock Award, Restricted Stock Unit Award or an Other Stock-Based Award subject only to future service requirements granted under the Plan shall lapse and such Awards shall be deemed fully vested as of the time of the Change in Control, except to the extent of any waiver by the Participant and subject to applicable restrictions set forth in Section 9(a) hereof.
(iii) With respect to any outstanding Award subject to achievement of performance goals and conditions under the Plan, the Committee may, in its discretion, consider such Awards to have been earned and payable based on actual achievement of performance goals as measured immediately prior to the consummation of the Change in Control or based upon target performance (either in full or pro-rata based on the portion of the Performance Period completed as of the Change in Control), except to the extent of any waiver by the Participant and subject to applicable restrictions set forth in Section 9(a).
(iv) Except as otherwise provided in any employment or other agreement for services between the Participant and the Company or any Related Entity, and unless the Committee otherwise determines in a specific instance, each outstanding Option, Stock Appreciation Right, Restricted Stock Award, Restricted Stock Unit Award or Other Stock-Based Award shall not be accelerated as described in Sections 8(a)(i), (ii) and (iii), if either (A) the Company is the surviving entity in the Change in Control and the Option, Stock Appreciation Right, Restricted Stock Award, Restricted Stock Unit Award or Other Stock-Based Award continues to be outstanding after the Change in Control on substantially the same terms and conditions as were applicable immediately prior to the Change in Control or (B) the successor company or its parent company assumes or substitutes for the applicable Award, as determined in accordance with Section 9(c)(ii) of this Plan.
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(b) Definition of “Change in Control”. Unless otherwise specified in any employment or other agreement for services between the Participant and the Company or any Related Entity, or in an Award Agreement, a “Change in Control” shall mean the occurrence of any of the following:
(i) The acquisition (whether by purchase, merger, consolidation, combination, or other similar transaction) by any Person of Beneficial Ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of more than fifty percent (50%) of (A) the then-outstanding shares of Common Stock or (B) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”) (the foregoing Beneficial Ownership hereinafter being referred to as a “Controlling Interest”); provided, however, that for purposes of this Plan, the following acquisitions shall not constitute or result in a Change in Control: (w) any acquisition by the Company or any Related Entity; (x) any acquisition by any Person that as of the Effective Date owns Beneficial Ownership of a Controlling Interest; (y) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any Related Entity; or (z) any acquisition by any entity pursuant to a transaction which complies with the following (1) all or substantially all of the individuals and entities who were the Beneficial Owners, respectively, of the Outstanding Company Voting Securities immediately prior to such transaction beneficially own, directly or indirectly, more than fifty percent (50%) of the combined voting power of the then outstanding voting securities entitled to vote generally in the election of members of the board of directors (or comparable governing body of an entity that does not have such a board), as the case may be, of the entity resulting from such transaction (including, without limitation, an entity which as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries) (the “Continuing Entity”) immediately prior to such transaction, of the Outstanding Company Voting Securities, (excluding any outstanding voting securities of the Continuing Entity that such Beneficial Owners hold immediately following the consummation of the transaction as a result of their ownership, prior to such consummation, of voting securities of any company or other entity involved in or forming part of such transaction other than the Company), and (2) no Person (excluding any employee benefit plan (or related trust) of the Company or any Continuing Entity or any entity controlled by the Continuing Entity or any Person that as of the Effective Date owns Beneficial Ownership of a Controlling Interest) beneficially owns, directly or indirectly, more than fifty percent (50%) of the combined voting power of the then outstanding voting securities of the Continuing Entity except to the extent that such ownership existed prior to the transaction; or
(ii) During any period of twelve (12) consecutive months (not including any period prior to the Effective Date) individuals who constitute the Board on the Effective Date (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the Effective Date whose election, or nomination for election by the Company’s shareholders, was approved by a vote of at least two-thirds of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board; or
(iii) Consummation of a sale or other disposition of all or substantially all of the assets of the Company and its Subsidiaries (taken as a whole) to any Person who is not an Affiliate.
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Notwithstanding anything to the contrary herein, the term “Change in Control” shall not include any sale of assets, a merger or other transaction effected exclusively for the purpose of changing the domicile of the Company. If required for compliance with Section 409A of the Code, in no event will a Change in Control be deemed to have occurred if such transaction is not also a “change in the ownership or effective control of” the Company or “a change in the ownership of a substantial portion of the assets of” the Company as determined under Treasury Regulation Section 1.409A-3(i)(5) (without regard to any alternative definition thereunder).
9. General Provisions.
(a) Compliance With Legal and Other Requirements. The Company may, to the extent deemed necessary or advisable by the Committee, postpone the issuance or delivery of Shares or payment of other benefits under any Award until completion of such registration or qualification of such Shares or other required action under any federal or state law, rule or regulation, listing or other required action with respect to the Listing Market, or compliance with any other obligation of the Company, as the Committee, may consider appropriate, and may require any Participant to make such representations, furnish such information and comply with or be subject to such other conditions as it may consider appropriate in connection with the issuance or delivery of Shares or payment of other benefits in compliance with applicable laws, rules, and regulations, listing requirements, or other obligations.
(b) Limits on Transferability; Beneficiaries. No Award or other right or interest granted under the Plan shall be pledged, hypothecated or otherwise encumbered or subject to any lien, obligation or liability of such Participant to any party, or assigned or transferred by such Participant otherwise than by will or the laws of descent and distribution or to a Beneficiary upon the death of a Participant, and such Awards or rights that may be exercisable shall be exercised during the lifetime of the Participant only by the Participant or his or her guardian or legal representative, except that Awards and other rights (other than Incentive Stock Options and Stock Appreciation Rights in tandem therewith) may be transferred to one or more Beneficiaries or other transferees during the lifetime of the Participant, and may be exercised by such transferees in accordance with the terms of such Award, but only if and to the extent such transfers are permitted by the Committee pursuant to the express terms of an Award Agreement (subject to any terms and conditions which the Committee may impose thereon), are by gift or pursuant to a domestic relations order, and are to a “Permitted Assignee” that is a permissible transferee under the applicable rules of the Securities and Exchange Commission for registration of securities on a Form S-8 registration statement. For this purpose, a Permitted Assignee shall mean (i) the Participant’s spouse, children or grandchildren (including any adopted and step children or grandchildren), parents, grandparents or siblings, (ii) a trust for the benefit of one or more of the Participant or the persons referred to in clause (i), (iii) a partnership, limited liability company or corporation in which the Participant or the persons referred to in clauses (i) and (ii) are the only partners, members or shareholders, or (iv) a foundation in which any person or entity designated in clauses (i), (ii) or (iii) above control the management of assets. A Beneficiary, transferee, or other person claiming any rights under the Plan from or through any Participant shall be subject to all terms and conditions of the Plan and any Award Agreement applicable to such Participant, except as otherwise determined by the Committee, and to any additional terms and conditions deemed necessary or appropriate by the Committee.
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(c) Adjustments.
(i) Adjustments to Awards. In the event that any extraordinary dividend or other distribution (whether in the form of cash, Shares, or other property), recapitalization, forward or reverse split, reorganization, merger, consolidation, spin-off, combination, repurchase, share exchange, liquidation, dissolution or other similar corporate transaction or event affects the Shares and/or such other securities of the Company or any other issuer, then the Committee shall, in such manner as it may deem appropriate and equitable, substitute, exchange or adjust any or all of (A) the number and kind of Shares which may be delivered in connection with Awards granted thereafter, (B) the number and kind of Shares subject to or deliverable in respect of outstanding Awards, (C) the exercise price, grant price or purchase price relating to any Award and/or make provision for payment of cash or other property in respect of any outstanding Award, and (D) any other aspect of any Award that the Committee determines to be appropriate in order to prevent the reduction or enlargement of benefits under any Award; provided, that in the case of any “equity restructuring” (within the meaning of the Financial Accounting Standards Board Accounting Standards Codification Topic 718 (or any successor pronouncement thereto)), the Committee shall make an equitable or proportionate adjustment to outstanding Awards to reflect such equity restructuring. Any adjustment under this Section 9(c) shall be conclusive and binding for all purposes.
(ii) Adjustments in Case of Certain Transactions. In the event of any merger, consolidation or other reorganization in which the Company does not survive, or in the event of any Change in Control (and subject to the provisions of Section 8 of this Plan relating to the vesting of Awards in the event of any Change in Control and subject to any limitations or reductions as may be necessary to comply with Section 409A of the Code), any outstanding Awards may be dealt with in accordance with any of the following approaches, without the requirement of obtaining any consent or agreement of a Participant as such, as determined by the agreement effectuating the transaction or, if and to the extent not so determined, as determined by the Committee: (A) the continuation of the outstanding Awards by the Company, if the Company is a surviving entity, (B) the assumption or substitution for, as those terms are defined below, the outstanding Awards by the surviving entity or its parent or subsidiary, (C) full exercisability or vesting and accelerated expiration of the outstanding Awards, or (D) settlement of the value of the outstanding Awards in cash or cash equivalents or other property followed by cancellation of such Awards, which value, in the case of Options or Stock Appreciation Rights, shall be measured by the amount, if any, by which the Fair Market Value of a Share exceeds the exercise or grant price of the Option or Stock Appreciation Right as of the effective date of the transaction, (it being understood that, in such event, any Option or Stock Appreciation Right having a per Share exercise or grant price equal to, or in excess of, the Fair Market Value of a Share subject thereto may be canceled and terminated without any payment or consideration therefor). For the purposes of this Plan, an Option, Stock Appreciation Right, Restricted Stock Award, Restricted Stock Unit Award, Performance Award or Other Stock-Based Award shall be considered assumed or substituted for if following the applicable transaction the Award confers the right to purchase or receive, for each Share subject to the Option, Stock Appreciation Right, Restricted Stock Award, Restricted Stock Unit Award, Performance Award or Other Stock-Based Award immediately prior to the applicable transaction, on substantially the same vesting and other terms and conditions as were applicable to the Award immediately prior to the applicable transaction, the consideration (whether stock, cash or other securities or property) received in the applicable transaction by holders of Shares for each Share held on the effective date of such transaction (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding Shares); provided, however, that if such consideration received in the applicable transaction is not solely common stock of the successor company or its parent or subsidiary, the Committee may, with the consent of the successor company or its parent or subsidiary, provide that the consideration to be received upon the exercise or vesting of an Option, Stock Appreciation Right, Restricted Stock Award, Restricted Stock Unit Award, Performance Award or Other Stock-Based Award, for each Share subject thereto, will be solely common stock of the successor company or its parent or subsidiary substantially equal in fair market value to the per share consideration received by holders of Shares in the applicable transaction. The determination of such substantial equality of value of consideration shall be made by the Committee in its sole discretion and its determination shall be conclusive and binding. The Committee shall give written notice of any proposed transaction referred to in this Section 9(c)(ii) a reasonable period of time prior to the closing date for such transaction (which notice may be given either before or after the approval of such transaction), in order that Participants may have a reasonable period of time prior to the closing date of such transaction within which to exercise any Awards that are then exercisable (including any Awards that may become exercisable upon the closing date of such transaction). A Participant may condition his or her exercise of any Awards upon the consummation of the transaction.
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(iii) Other Adjustments. The Committee or the Board is authorized to make adjustments in the terms and conditions of, and the criteria included in, Awards (including Awards subject to satisfaction of performance goals, or performance goals and conditions relating thereto) in recognition of unusual or nonrecurring events (including, without limitation, acquisitions and dispositions of businesses and assets) affecting the Company, any Related Entity or any business unit, or the financial statements of the Company or any Related Entity, or in response to changes in applicable laws, regulations, accounting principles, tax rates and regulations or business conditions or in view of the Committee’s assessment of the business strategy of the Company, any Related Entity or business unit thereof, performance of comparable organizations, economic and business conditions, personal performance of a Participant, and any other circumstances deemed relevant.
(d) Award Agreements. Each Award Agreement shall either be (a) in writing in a form approved by the Committee and executed by the Company by an officer duly authorized to act on its behalf, or (b) an electronic notice in a form approved by the Committee and recorded by the Company (or its designee) in an electronic recordkeeping system used for the purpose of tracking one or more types of Awards as the Committee may provide; in each case and if required by the Committee, the Award Agreement shall be executed or otherwise electronically accepted by the recipient of the Award in such form and manner as the Committee may require. The Committee may authorize any officer of the Company to execute any or all Award Agreements on behalf of the Company. The Award Agreement shall set forth the material terms and conditions of the Award as established by the Committee consistent with the provisions of the Plan.
(e) Taxes. The Company and any Related Entity are authorized to withhold from any Award granted, any payment relating to an Award under the Plan, including from a distribution of Shares, or any payroll or other payment to a Participant, amounts of withholding and other taxes due or potentially payable in connection with any transaction involving an Award, and to take such other action as the Committee may deem advisable to enable the Company or any Related Entity and Participants to satisfy obligations for the payment of withholding taxes and other tax obligations relating to any Award. This authority shall include authority to withhold or receive Shares or other property and to make cash payments in respect thereof in satisfaction of a Participant’s tax obligations, either on a mandatory or elective basis in the discretion of the Committee. The amount of withholding tax paid with respect to an Award by the withholding of Shares otherwise deliverable pursuant to the Award or by delivering Shares already owned shall not exceed the maximum statutory withholding required with respect to that Award (or such other limit as the Committee shall impose, including without limitation, any limit imposed to avoid or limit any financial accounting expense relating to the Award).
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(f) Changes to the Plan and Awards. The Board may amend, alter, suspend, discontinue or terminate the Plan, or the Committee’s authority to grant Awards under the Plan, without the consent of shareholders or Participants, except that any amendment or alteration to the Plan shall be subject to the approval of the Company’s shareholders not later than the annual meeting next following such Board action if such shareholder approval is required by any federal or state law or regulation (including, without limitation, Rule 16b-3) or the rules of the Listing Market, and the Board may otherwise, in its discretion, determine to submit other such changes to the Plan to shareholders for approval; provided that, except as otherwise permitted by the Plan or Award Agreement, without the consent of an affected Participant, no such Board action may materially and adversely affect the rights of such Participant under the terms of any previously granted and outstanding Award. The Committee may waive any conditions or rights under, or amend, alter, suspend, discontinue or terminate any Award theretofore granted and any Award Agreement relating thereto, except as otherwise provided in the Plan; provided that, except as otherwise permitted by the Plan or Award Agreement, without the consent of an affected Participant, no such Committee or the Board action may materially and adversely affect the rights of such Participant under terms of such Award.
(g) Clawback of Benefits.
(i) The Company may (A) cause the cancellation of any Award, (B) require reimbursement of any Award by a Participant or Beneficiary, and (C) effect any other right of recoupment of equity or other compensation provided under this Plan or otherwise in accordance with any Company policies that currently exist or that may from time to time be adopted or modified in the future by the Company and/or applicable law (each, a “Clawback Policy”). In addition, a Participant may be required to repay to the Company certain previously paid compensation, whether provided under this Plan or an Award Agreement or otherwise, in accordance with any Clawback Policy. By accepting an Award, a Participant is also agreeing to be bound by any existing or future Clawback Policy adopted by the Company, or any amendments that may from time to time be made to the Clawback Policy in the future by the Company in its discretion (including without limitation any Clawback Policy adopted or amended to comply with applicable laws or stock exchange requirements) and is further agreeing that all of the Participant’s Award Agreements may be unilaterally amended by the Company, without the Participant’s consent, to the extent that the Company in its discretion determines to be necessary or appropriate to comply with any Clawback Policy.
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(ii) If the Participant, without the consent of the Company, while employed by or providing services to the Company or any Related Entity or after termination of such employment or service, violates a non-competition, non-solicitation or non-disclosure covenant or agreement or otherwise engages in activity that is in conflict with or adverse to the interest of the Company or any Related Entity, as determined by the Committee in its sole discretion, then (i) any outstanding, vested or unvested, earned or unearned portion of the Award may, at the Committee’s discretion, be canceled and (ii) the Committee, in its discretion, may require the Participant or other person to whom any payment has been made or Shares or other property have been transferred in connection with the Award to forfeit and pay over to the Company, on demand, all or any portion of the gain (whether or not taxable) realized upon the exercise of any Option or Stock Appreciation Right and the value realized (whether or not taxable) on the vesting or payment of any other Award during the time period specified in the Award Agreement or otherwise specified by the Committee.
(g) Limitation on Rights Conferred Under Plan. Neither the Plan nor any action taken hereunder or under any Award shall be construed as (i) giving any Eligible Person or Participant the right to continue as an Eligible Person or Participant or in the employ or service of the Company or a Related Entity; (ii) interfering in any way with the right of the Company or a Related Entity to terminate any Eligible Person’s or Participant’s Continuous Service at any time, (iii) giving an Eligible Person or Participant any claim to be granted any Award under the Plan or to be treated uniformly with other Participants and Employees, or (iv) conferring on a Participant any of the rights of a shareholder of the Company or any Related Entity including, without limitation, any right to receive dividends or distributions, any right to vote or act by written consent, any right to attend meetings of shareholders or any right to receive any information concerning the Company’s or any Related Entity’s business, financial condition, results of operation or prospects, unless and until such time as the Participant is duly issued Shares on the stock books of the Company or any Related Entity in accordance with the terms of an Award. None of the Company, its officers or its directors shall have any fiduciary obligation to the Participant with respect to any Awards unless and until the Participant is duly issued Shares pursuant to the Award on the stock books of the Company in accordance with the terms of an Award. Neither the Company, nor any Related Entity, nor any of their respective officers, directors, representatives or agents is granting any rights under the Plan to the Participant whatsoever, oral or written, express or implied, other than those rights expressly set forth in this Plan or the Award Agreement.
(h) Unfunded Status of Awards; Creation of Trusts. The Plan is intended to constitute an “unfunded” plan for incentive and deferred compensation. With respect to any payments not yet made to a Participant or obligation to deliver Shares pursuant to an Award, nothing contained in the Plan or any Award Agreement shall give any such Participant any rights that are greater than those of a general creditor of the Company or Related Entity that issues the Award; provided that the Committee may authorize the creation of trusts and deposit therein cash, Shares, other Awards or other property, or make other arrangements to meet the obligations of the Company or Related Entity under the Plan. Such trusts or other arrangements shall be consistent with the “unfunded” status of the Plan unless the Committee otherwise determines with the consent of each affected Participant. The trustee of such trusts may be authorized to dispose of trust assets and reinvest the proceeds in alternative investments, subject to such terms and conditions as the Committee may specify and in accordance with applicable law.
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(i) Nonexclusivity of the Plan. Neither the adoption of the Plan by the Board nor its submission to the shareholders of the Company for approval shall be construed as creating any limitations on the power of the Board or a committee thereof to adopt such other incentive arrangements as it may deem desirable.
(j) Payments in the Event of Forfeitures; Fractional Shares. Unless otherwise determined by the Committee, in the event of a forfeiture of an Award with respect to which a Participant paid cash or other consideration, the Participant shall be repaid the amount of such cash or other consideration. No fractional Shares shall be issued or delivered pursuant to the Plan or any Award. The Committee shall determine whether cash, other Awards or other property shall be issued or paid in lieu of such fractional shares or whether such fractional shares or any rights thereto shall be forfeited or otherwise eliminated.
(k) Governing Law. Except as otherwise provided in any Award Agreement, the validity, construction and effect of the Plan, any rules and regulations under the Plan, and any Award Agreement shall be determined in accordance with the laws of the Cayman Islands, in each case, without giving effect to principles of conflict of laws, and applicable federal law.
(l) Foreign Laws. The Committee shall have the authority to adopt such modifications, procedures, and subplans as may be necessary or desirable to comply with provisions of the laws of foreign countries in which the Company or its Related Entities may operate to assure the viability of the benefits from Awards granted to Participants performing services in such countries and to meet the objectives of the Plan.
(m) Plan Effective Date; Termination of Plan. The Plan shall become effective on the Effective Date. The Plan shall terminate at the earliest of (i) such time as no Shares remain available for issuance under the Plan, (ii) termination of this Plan by the Board, or (iii) the tenth anniversary of the Effective Date. Awards outstanding upon expiration of the Plan shall remain in effect until they have been exercised or terminated or have expired.
(n) Construction and Interpretation. Whenever used herein, nouns in the singular shall include the plural, and the masculine pronoun shall include the feminine gender. Headings of Articles and Sections hereof are inserted for convenience and reference and constitute no part of the Plan.
(o) Severability. If any provision of the Plan or any Award Agreement shall be determined to be illegal or unenforceable by any court of law in any jurisdiction, the remaining provisions hereof and thereof shall be severable and enforceable in accordance with their terms, and all provisions shall remain enforceable in any other jurisdiction.
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Exhibit 8.1
Namib Minerals
List of Subsidiaries
|
Name of Subsidiary |
State of Jurisdiction of Incorporation | |
| Red Rock Acquisition Corporation | Delaware | |
| Greenstone Corporation | Cayman Islands | |
| Bulawayo Mining Company Limited | England and Wales | |
| Bulawayo Mining Company (UK) Limited | England and Wales | |
| Gold Fields of Mazowe (UK) Limited | England and Wales | |
| KD Mining Company (UK) Limited | England and Wales | |
| Bulawayo Mining Company (Private) Limited | Zimbabwe | |
| Mazowe Mining Company (Private) Limited | Zimbabwe | |
| Redwing Mining Company (Private) Limited | Zimbabwe |
Exhibit 11.1
NAMIB MINERALS
CODE OF Business CONDUCT AND ETHICS
Adopted by the Board on June 5, 2025
| I. | INTRODUCTION |
Namib Minerals, an exempted company limited by shares incorporated under the laws of the Cayman Islands (together with its subsidiaries, the “Company,” “we” or “our”) requires the highest standards of professional and ethical conduct from its directors, officers, and employees. The Company’s reputation for honesty and integrity is key to the success of its business. The Company intends that its business practices will comply with the laws of all of the jurisdictions in which it operates and that honesty, integrity, and accountability will always characterize the Company’s business activity. No director, officer, or employee may achieve results through violations of laws or regulations or unscrupulous dealings.
This Code of Business Conduct and Ethics (this “Code”) reflects the Company’s commitment to this culture of honesty, integrity, and accountability and outlines the basic principles and policies with which all directors, officers, and employees are expected to comply. Therefore, we expect you to read this Code thoroughly and carefully.
In addition to following this Code in all aspects of your business activities, you are expected to seek guidance in any situation where there is a question regarding compliance with the Company’s policies and applicable laws. Cooperation with this Code is essential to the continued success of the Company’s business and the cultivation and maintenance of its reputation as a good corporate citizen. Misconduct is never justified, even where sanctioned or ordered by someone in a position of higher management. No one, regardless of stature or position, can authorize actions that are illegal, or that jeopardize or violate Company standards.
We note that this Code sets forth general principles of conduct and ethics and is intended to work in conjunction with other, more specific policies and procedures, such as the Insider Trading Policy and the Related Party Transactions Policy. These policies can be found on our website at https://namibminerals.com or our onboarding or compliance materials distributed to you. You should refer to those policies and procedures for more detail in the specified context.
| II. | COMPLIANCE WITH LAWS, RULES AND REGULATIONS |
Compliance with all laws, rules, and regulations applicable to the Company is critical to our reputation and continued success. This includes compliance with the laws and regulations of the Cayman Islands, Zimbabwe, the United States, and the Democratic Republic of Congo and all relevant laws and regulations in other jurisdictions in which we operate, that are applicable to, among other things, the manner in which we conduct our business (including corporate and employee licensing requirements) and the collection, use, retention, protection, disclosure, transfer, and other processing of personal information, as well as any securities exchange or other organization or body that regulates the Company. All directors, officers, and employees must respect and obey the laws of the cities, states, and countries in which the Company operates and avoid even the appearance of impropriety. Directors, officers, or employees who fail to comply with this Code and applicable laws will be subject to disciplinary measures, up to and including termination of employment.
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Although not all employees, officers, and directors are expected to know the details of all applicable laws, rules and regulations, it is important to know enough to determine when to seek advice from appropriate personnel. Questions about compliance should be addressed to the Company’s legal division.
| III. | CONFLICTS OF INTEREST |
A conflict of interest occurs when your private interests or activities influence, or appear to influence, our ability to make business decisions in the Company’s best interest. For example, conflicts may arise if:
| ● | You cause the Company to engage in business transactions with a company that you, your friends, or your relatives control without having obtained the appropriate prior approvals required. |
| ● | You are in a position to (i) compete with, rather than help, the Company or (ii) make a business decision not on the basis of the Company’s interest but rather for your own personal advantage. |
| ● | You take actions, or have personal or family interests, that may make it difficult to perform your work (or discharge your duties and obligations) effectively. |
| ● | You, or any of your family members or affiliates, receive improper personal benefits other than gratuities and payments received or provided in compliance with the applicable policies, as a result of your position in the Company. |
The safest way to ensure you are not involved in a conflict of interest, or a perceived conflict, is to simply disclose the activity. Failure to promptly disclose information about any actual or potential conflict may affect your employment status at the Company.
If you have an interest that may create a conflict:
| ● | Promptly inform your supervisor, and |
| ● | Include the name of the third party and description of the conflict. |
This may include gifts or entertainment that are not nominal. Not sure whether to tell your supervisor? When in doubt, disclose.
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Company employees may also bring any conflict or potential conflict involving another director, officer, or employee, to the attention of the Company’s General Counsel. If the concern requires confidentiality, including keeping particular individuals anonymous, then this confidentially will be protected, except to the extent necessary to conduct an effective investigation or as required by applicable law, regulation, or legal proceedings.
| IV. | CORPORATE OPPORTUNITIES |
When carrying out your duties or responsibilities, you owe a duty to the Company to advance its legitimate interests. Except as provided in the Company’s policies, directors, officers, and employees are prohibited from (i) taking for themselves opportunities that arise through the use of corporate property, information, or position, (ii) using corporate property, information, or position for personal gain, and (iii) competing with the Company.
| V. | INFORMATION SECURITY |
The Company is committed to respecting data privacy. The Company will apply reasonable controls and security measures when processing personal data within the Company and by its business partners.
The Company takes due care to prevent misuse of or unauthorized access to personally identifiable information within its control. All processing of personal data (e.g., data on employees, business partners, customers, and suppliers) must be in compliance with applicable data privacy standards and laws.
| VI. | PUBLIC REPORTING |
Full, fair, accurate, and timely disclosure must be made in the reports and other documents that the Company files with, or submits to, the U.S. Securities and Exchange Commission (the “SEC”) and in its other public communications. Such disclosure is critical to ensure that the Company maintains its good reputation, complies with its obligations under the securities laws and meets the expectations of its shareholders.
Persons responsible for the preparation of such documents and reports and other public communications must exercise the highest standard of care in accordance with the following guidelines:
| ● | all accounting records, and the reports produced from such records, must comply with all applicable laws; |
| ● | all accounting records must fairly and accurately reflect the transactions or occurrences to which they relate; |
| ● | all accounting records must fairly and accurately reflect in reasonable detail the Company’s assets, liabilities, revenues and expenses; |
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| ● | accounting records must not contain any false or intentionally misleading entries; |
| ● | no transactions should be intentionally misclassified as to accounts, departments, or accounting periods; |
| ● | all transactions must be supported by accurate documentation in reasonable detail and recorded in the proper account and in the proper accounting period; |
| ● | no information should be concealed from any internal audit function or the independent auditors; and |
| ● | compliance with the Company’s internal control over financial reporting and disclosure controls and procedures is required. |
| VII. | CONFIDENTIALITY |
Directors, officers, and employees must maintain and protect the confidentiality of information entrusted to them by the Company, or that otherwise comes into their possession, during the course of their employment or while carrying out their duties and responsibilities, except when disclosure is authorized by the Company or legally mandated. The obligation to preserve confidential information continues even after directors, officers, and employees leave the Company.
Confidential information encompasses, in any format, all non-public information (including, for example, “inside information” (material, non-public information that has not publicly been disclosed and has the potential to affect the price of a security)) or information that current or potential suppliers, partners, and clients have entrusted to the Company that may be of use to competitors, or may otherwise be harmful to the Company or its key stakeholders, if disclosed. Financial information is of special sensitivity and should under all circumstances be considered confidential, except where its disclosure is approved by the Company or when the information has been publicly disseminated.
| VIII. | PROTECTION AND PROPER USE OF COMPANY ASSETS |
All directors, officers, and employees should promote and ensure the efficient and responsible use of the Company’s assets and resources by the Company. Theft, carelessness, and waste have a direct impact on the Company’s profitability. Any suspected incidents of fraud or theft should be immediately reported for investigation.
Company assets, such as proprietary information, funds, materials, supplies, products, equipment, software, facilities, and other assets owned or leased by the Company or that are otherwise in the Company’s possession, may only be used for legitimate business purposes and must never be used for illegal purposes.
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Proprietary information includes any information that is not generally known to the public or would be valued by, or helpful to, our competitors. Examples of proprietary information are intellectual property, business and marketing plans, employee information, and customer/client lists. The obligation to use proprietary information only for legitimate business purposes continues even after you leave the Company.
| IX. | INSIDER TRADING, HEDGING AND PLEDGING |
Insider trading is unethical and illegal. Directors, officers, and employees must not trade in securities of a company (including our suppliers, customers, partners, and other third parties with which we have relationships) while in possession of material non-public information regarding that company. It is also illegal to “tip” or pass on inside information to any other person who might make an investment decision based on that information or pass the information to third parties. The Company has an Insider Trading Policy, which describes these obligations in more detail and sets forth obligations in respect of trading in, hedging and pledging the Company’s securities. For more information regarding trading in, hedging and pledging the Company’s securities, please review the Company’s Insider Trading Policy.
| X. | FAIR DEALING |
Each director, officer, and employee, in carrying out his or her duties and responsibilities, should endeavor to deal fairly with each other and the Company’s customers, clients, suppliers, and competitors. No director, officer, or employee should take unfair advantage of anyone through illegal conduct, manipulation, concealment, abuse of privileged information, misrepresentation of material facts or any other unfair-dealing practice.
| XI. | NON-DISCRIMINATION AND NON-HARASSMENT |
We are committed to providing a work environment free from discrimination and harassment based on race, ethnicity, religion, gender, age, national origin, or any other protected class. Such conduct is unlawful and prohibited by Company policy. Such prohibited conduct by or towards any employee, leader, contract worker, customer, client, vendor, or anyone else who does business with the Company will not be tolerated. Questions about compliance should be addressed to the Company’s legal division.
Any employee determined by the Company to have engaged in conduct in violation of this policy will be subject to appropriate disciplinary action, up to, and including termination. Moreover, any employee or leader who condones or ignores potential violations of this policy will be subject to appropriate disciplinary action, up to and including termination. Individuals should also be aware that they can be held personally liable for engaging in unlawful discrimination, sexual or other harassment, or retaliation, and may be subject to civil or criminal penalties. To the extent a customer, client, vendor, or other person with whom the Company does business with engages in conduct in violation of this policy, the Company will take appropriate corrective action.
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| XII. | SAFETY AND HEALTH |
The Company is committed to keeping its workplaces free from hazards. You should report any accidents, injuries or unsafe equipment, practices or conditions immediately to a supervisor or other designated person. Threats, acts of violence, or physical intimidation are prohibited and should be reported immediately. When representing and/or conducting business for the Company, you must not be under the influence of and/or engage in the use of any substance that could prevent you from discharging your work duties and responsibilities safely and effectively.
| XIII. | COMPANY RECORDS AND DOCUMENT RETENTION |
Records created, received or used during the conduct of Company business, including all communications sent or received using the Company’s email and/or other messaging systems, are at all times the property of the Company wherever those records may be located. At any time, the Company and, in certain circumstances, third parties (including government officials), may review, without prior notice to personnel, any and all Company records, including records marked “Personal” or “Private.” All Company records should be stored/archived and retained in accordance with the Company’s record retention policy as in effect from time to time.
Any records that you create and store are subject to this Code and may be demanded by third parties during the course of litigation or a government investigation or, in the case of records sent outside the Company, subject to the records retention policies of the recipients.
You should, therefore, avoid discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct. This applies to communications of all kinds, including e-mail, instant messaging, voicemail messages, text messages, video recordings and informal notes or interoffice memos.
| XIV. | USE OF ELECTRONIC MEDIA |
The Company has developed a policy to ensure that you understand the rules governing your use of the Company’s computer network, and options for e-mail and voicemail or other messaging services, Internet access or other use of electronic media. All Company equipment, including desks, computers and computer systems, computer software, electronic storage devices, cellphones or other mobile devices, e-mail, voicemail, and other physical items are for business use only. The Company at all times retains the right to access and search all such electronic media or other items contained in or used in conjunction with the Company’s computer, e-mail, voicemail and Internet access systems and equipment with no prior notice.
Like the Company’s computer network, e-mail and voicemail services, access to Internet services such as web-browsing or newsgroups is provided to employees by the Company only for business use. Any personal use must be infrequent and must not involve any prohibited and/or unlawful activity, interfere with the productivity of the employee or his or her co-workers, consume system resources or storage capacity on an ongoing basis or involve large file transfers or otherwise deplete system resources available for business purposes.
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Your messages and computer information are considered Company property and consequently, employees should not have an expectation of privacy in the context of computer, cellphone, and/or other mobile device use. Unless prohibited by law, the Company reserves the right to access and disclose this information as necessary for business purposes, in its sole discretion. Use good judgment, and do not access, send messages or store any information that you would not want to be seen or heard by other individuals.
The Company also recognizes that many employees are choosing to express themselves by using Internet technologies, such as blogs, wikis, file-sharing, user generated audio and video, virtual worlds, and social networking sites, such as Facebook, LinkedIn and X (formerly known as Twitter). Whether you choose to participate in such social networking outside of work on your own time is your own decision.
| XV. | BUSINESS GIFTS AND ENTERTAINMENT |
Conflicts of interest generally arise when we offer or receive things of value to/from a third party. Things of value may include gifts, gratuities, entertainment, tickets, loans, favors, discounts, travel, services, incentives, advances, and items that would not be considered “normal business practice.” This rule of thumb applies to your immediate family members, as well. A family member is a spouse, domestic partner, parent, or child of an employee at the Company. Offering or receiving things of value that might be perceived to unfairly influence a business relationship should be avoided. These guidelines apply at all times and do not change during traditional gift-giving seasons, and apply equally to employees, officers, or directors offering gifts and entertainment to the Company’s business associates.
This being said, at times you may receive nominal gifts that are generally common business courtesies, such as an occasional lunch or dinner, or gifts of limited value. The value of gifts should be nominal, both with respect to frequency and monetary amount. Frequent gifting to a recipient may be perceived as an attempt to create an obligation to the giver and is therefore inappropriate.
In addition, strict rules apply when the Company does business with governmental agencies and officials, whether in the Cayman Islands, Zimbabwe, or in other countries. Because of the sensitive nature of these relationships, you must seek approval from the Company’s administrative division before offering or making any gifts or hospitality to governmental officials. Your judgement is critical in these situations.
| XVI. | BRIBERY, CORRUPTION AND MONEY LAUNDERING |
Directors, officers, and employees must comply with all laws prohibiting bribery, corruption, and kickbacks, including laws prohibiting improper payments to domestic and foreign officials such as the U.S. Foreign Corrupt Practices Act (the “FCPA”). While this section focuses primarily on foreign officials, this policy equally prohibits bribery of domestic officials and commercial or private sector parties.
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The FCPA prohibits an offer, payment, promise of payment, or authorization of the payment of any money or thing of value to a foreign official, foreign political party, official of a foreign political party, or candidate for political office to induce or influence any act or decision of such person or party or to secure any improper advantage. The FCPA prohibits such conduct whether done directly or indirectly through an agent or other intermediary.
No payment may be made to a foreign official even for non-discretionary action without first consulting with and obtaining written authorization from the Company’s administrative division. If a permitted facilitating payment is authorized, such payment must be accurately and fairly recorded in the Company’s books, records, and accounts.
The FCPA further requires compliance by the Company with record keeping and internal controls requirements. The Company must maintain financial records which, in reasonable detail, accurately and fairly reflect transactions and disposition of corporate assets. In particular, all bank accounts that receive or disburse funds on behalf of the Company shall be properly authorized and any such transactions recorded on the official books and records of the Company. In addition, the Company must maintain a system of internal controls sufficient to provide reasonable assurances that the Company’s assets are used only in accordance with directives and authorizations by the Board of Directors and senior management, and that checks and balances are employed so as to prevent the by-passing or overriding of these controls.
Violation of the FCPA is an offense, subjecting the Company to substantial fines and penalties and any director, officer, employee or stockholder acting on behalf of the Company to imprisonment and fines. The FCPA prohibits the Company from paying, directly or indirectly, a fine imposed upon an individual pursuant to the FCPA. Violation of this policy may result in disciplinary actions up to and including discharge from the Company.
In addition, directors, officers and employees of the Company must comply with all applicable laws prohibiting money laundering. You may contact the Company’s legal division for information and questions related to anti-money laundering laws and obligations.
| XVII. | COMPLIANCE WITH AND AMENDMENTS TO THIS CODE |
Failure to comply with this Code or applicable laws, rules, or regulations may result in disciplinary measures, including discharge from your position with the Company. Violations of this Code may also constitute violations of law and may result in civil or criminal penalties for such person, such person’s supervisors, and/or the Company. The Board of Directors will determine, or designate appropriate persons to determine, appropriate actions to be taken in the event of a violation of this Code in relation to executives or directors. In determining what action is appropriate in a particular case, the Board of Directors or its designee will consider the nature and severity of the violation, whether the violation was a single occurrence or repeated occurrences, whether the violation was intentional or inadvertent, whether the individual in question had been advised prior to the violation as to the proper course of action, and whether or not the individual in question had committed other violations in the past.
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This Code cannot, and is not intended to, address all of the ethical complexities that may arise during the course of employment or association with the Company. There will be occasions where circumstances not covered by policy or procedure arise, and where a judgment must be made as to the appropriate course of action. In such circumstances, the Company encourages common sense decision-making, and consultation with a supervisor, the legal division, or a designee of them for guidance.
Any material amendment of this Code will be made only by the Company’s Board of Directors and will be promptly disclosed as required by law or stock exchange regulation.
| XVIII. | SEE SOMETHING, SAY SOMETHING |
If you suspect or observe any irregularities relating to accounting, accounting internal controls, or auditing matters, or if you think that an actual or possible violation of this Code or other policies or other unlawful or improper workplace conduct has occurred, it is important to report your concerns immediately. You should use the channel that is most comfortable to you. As a general matter, your supervisor or manager may be in the best position to address an issue. However, that is not your only option. Potential channels to report a concern include your manager, the Company’s legal division, including the General Counsel, and where appropriate, the Audit Committee pursuant to the Company’s Whistleblower Policy.
We also have in place a whistleblowing contact and consultation contact pursuant to “Whistleblower Policy” where reports or consultation can be made at any time by chat, phone, e-mail, facsimile, document, or direct meeting.
The Company strives to ensure that all questions or concerns are handled fairly, discreetly, and thoroughly.
Once a report is made and received, the Company will investigate promptly and all directors, officers, and employees are expected to cooperate candidly with relevant investigatory procedures. If, after investigating a report of an alleged prohibited action by a director or executive officer, the Audit Committee determines that a violation of this Code has occurred, the Audit Committee will report such determination to the Board.
If, after investigating a report of an alleged prohibited action by any other person, a relevant manager determines that a violation of this Code has occurred, the manager will report such determination to the General Counsel.
Upon receipt of a determination that there has been a violation of this Code, the Board or the General Counsel, as appropriate, will take such preventative or disciplinary action as it deems appropriate, including, but not limited to, reassignment, demotion, dismissal and, in the event of criminal conduct or other serious violations of the law, notification of appropriate governmental authorities.
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The Company has a no-tolerance policy for retaliation against persons who raise good faith compliance, ethics, or related issues. However, it is unacceptable to file a report knowing it to be false.
For more information regarding reporting concerns of possible violation and misconduct, please review the Company’s Whistleblower Policy.
| XIX. | DISCIPLINARY ACTION |
Anyone who violates this Code is subject to disciplinary action, up to and including termination of employment.
| XX. | WAIVER |
Any waiver of this Code for any executive officer or director will be made only by the Company’s Board of Directors and will be promptly disclosed as required by law or stock exchange regulation. Any waiver of this Code for any other employee will be made by the Company’s Board of Directors or the Audit Committee. Any waiver for a director or an executive officer shall be disclosed as required by SEC and Nasdaq Stock Market rules.
| XXI. | ACKNOWLEDGMENT |
You will be provided with the Code when you first join the Company. Updates will be posted from time to time on our website and you are responsible for ensuring compliance with the most recent version of the Code. You may also be required to acknowledge receipt and compliance with the Code on an annual basis, which may be conducted electronically.
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Exhibit 11.2
NAMIB MINERALS
Insider Trading Policy
Adopted by the Board of Directors on June 5, 2025
| I. | PURPOSE OF THIS POLICY |
In the course of performing your duties for Namib Minerals (together with its subsidiaries, the “Company”), you may from time to time receive or become aware of material nonpublic information (“MNPI”) about the Company or other companies that do business with the Company. This Insider Trading Policy (the “Policy”) furnishes guidelines concerning information that may be “material” and “nonpublic” and your legal obligations and obligations to the Company relating to the use or disclosure of MNPI regarding the Company or such other companies.
The Company has adopted this Policy to promote compliance with applicable securities laws, known as “insider trading” laws, which prohibit persons who receive or become aware of MNPI about the Company (or other companies that do business with the Company) from trading in the Company’s (or such other company’s) securities or providing MNPI to others who may trade in the Company’s (or such other company’s) securities on the basis of that information.
Insider trading laws can impose legal liability not only on individuals who fail to comply with these laws, but also to the Company as the employer of individuals who violate these laws. Accordingly, the Company has adopted this Policy not only to guide the individuals associated with the Company who are covered by the Policy, but also to protect the Company from legal liability and promote its business interest in maintaining an impeccable reputation for integrity. This Policy is subject to modification from time to time as the Board of Directors (“Board”) deems necessary or advisable.
| II. | EFFECTIVENESS OF THIS POLICY |
This Policy is effective as of the date set forth at the top of this page and supersedes any previous insider trading policy of the Company. In the event of any conflict or inconsistency between this Policy and any other materials previously distributed by the Company, this Policy shall govern. In addition, each Covered Person (as defined below) is responsible for complying with applicable law as then in force and effect. Accordingly, in the event of any conflict or inconsistency between this Policy and applicable law, or any omission from this Policy, Covered Persons are not excused from complying with applicable law.
| III. | COMPLIANCE OFFICER FOR THIS POLICY |
The Company’s General Counsel shall serve as the compliance officer (the “Compliance Officer”) for this Policy. The Compliance Officer, or the Board, may designate additional officers of the Company to serve as Compliance Officer for this Policy from time to time. Any questions concerning this Policy should be directed to, and all interpretations of this Policy shall be made by, a duly designated Compliance Officer.
| IV. | TO WHOM THIS POLICY APPLIES |
This Policy is applicable to all current and former directors, officers and employees of the Company, whether located in or outside of the United States, as well as family members and other members of their respective households, partnerships in which any such person is a general partner, trusts of which any such person is a trustee, estates of which any such person is an administrator or executor and other legal entities that any such person controls (the “Covered Persons”). The Compliance Officer may also determine from time to time that other persons who may have access to MNPI due to their activities with the Company shall be subject to this Policy. Any persons so identified by the Compliance Officer shall also be “Covered Persons” for purposes of this Policy.
| V. | POLICY |
If a Covered Person is in possession of MNPI relating to the Company, that person may not, directly or indirectly, buy, sell or engage in other transactions in securities of the Company. Securities of the Company is broadly construed to include equity, debt and convertible securities of the Company, and derivatives (whether or not issued by the Company) linked to or exercisable for securities of the Company (the “Company Securities”), except as set forth in Section VIII below, or engage, directly or indirectly, in any other action to disclose to others (“tipping”) or benefit from or take advantage of that information (for example, recommending transactions in Company Securities).
This Policy also applies to MNPI relating to any other company with publicly-traded securities, including the Company’s customers, suppliers or other business relations, obtained in the course of the Covered Person’s employment by, service to or other relationship with the Company.
Additional restrictions on buying, selling or engaging in other transactions in Company Securities apply to directors, executive officers and other officers (as set forth below) of the Company, as described in Section IX.
| VI. | DEFINITIONS AND EXPLANATIONS |
| (a) | When Information is “Material”. |
In order to determine whether information is material, it must be evaluated in the context of all facts and circumstances at play at the time. Information is considered “material” if:
| ● | a reasonable investor would consider the information important in making a decision to buy, sell or hold Company Securities; |
| ● | release of the information could produce a qualitative change to the package of information disclosed to the public by the Company; or |
| ● | public disclosure of the information would be likely to have a significant effect on the market price of Company Securities. |
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Material information can be positive or negative and can relate to virtually any aspect of the Company’s business. Information that is or may be material includes (but is not limited to) the following, depending upon all facts and circumstances at the time of assessment:
| ● | unpublished financial or operating results, positive or negative; |
| ● | projections or changes in projections of financial or operating results, upwards or downwards; |
| ● | a pending or proposed corporate transaction involving the Company, such as merger, acquisition or divestiture; |
| ● | a pending or proposed public offering or private placement of securities of the Company or other financing for the Company outside of the ordinary course of business; |
| ● | a pending or proposed repurchase or redemption of Company Securities; |
| ● | the gain or loss of a significant customer or supplier; |
| ● | changes in senior management; |
| ● | execution of a business contract that is important to the Company financially, strategically or otherwise; |
| ● | significant regulatory approvals or challenges; |
| ● | pending or threatened litigation of potential significance to the Company, or settlement or other resolution of ongoing litigation; |
| ● | a change in the Company’s independent registered public accounting firm; |
| ● | the need to restate financial statements; |
| ● | impending bankruptcy or liquidity problems; and |
| ● | other material events or developments that the Company is required to disclose in a Form 6-K to be filed with the U.S. Securities and Exchange Commission (“SEC”). |
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| (b) | When Information is “Nonpublic”. |
Information is “nonpublic” if it has not been disclosed to the public. In order for information to be considered public, it must be widely disseminated; for example, through:
| ● | newswire releases; |
| ● | widely available broadcasts on television and radio; |
| ● | publication in widely available newspapers or news websites; or |
| ● | disclosure in the Company’s periodic reports filed with the SEC. |
Publication on the Company’s website can also contribute to wide dissemination of information (and may itself constitute wide dissemination depending upon the extent to which the Company has established its website as a vehicle for timely release of important Company information in accordance with SEC guidance).
After a wide dissemination of material information, a reasonable period of time must elapse for the investing public to process the information. As a rule of thumb, two full Trading Days following wide dissemination is regarded as a reasonable waiting period before such information is deemed to be “public” and no longer “nonpublic” for purposes of this Policy. For purposes of this Policy, a “Trading Day” shall mean any day on which the Nasdaq Stock Market is open for trading. The Compliance Officer may determine that a different waiting period is appropriate with respect to particular Company disclosures based upon prevailing facts and circumstances. For the avoidance of doubt, Covered Persons should consult the Compliance Officer when contemplating transactions in Company Securities shortly after public disclosures by the Company.
| (c) | Be Mindful of How a Transaction May be Viewed in Hindsight. |
If a particular transaction (or group of transactions) is challenged by enforcement authorities, it will be viewed with the benefit of hindsight. As a result, before engaging in any transaction, a Covered Person should give careful thought to whether any facts and circumstances exist that could raise suspicions about the propriety of the proposed transaction after the fact; for example, as to whether information that the Covered Person has become aware of may be construed as “material” and “nonpublic.” Again, in the event of any doubt, Covered Persons should consult the Compliance Officer when contemplating transactions in Company Securities.
| VII. | GUIDELINES |
| (a) | Non-disclosure of Material Nonpublic Information (MNPI). |
MNPI must not be disclosed to anyone unless it has first been widely disseminated to the public as described above, except to other Company personnel who have a need to know the information and are bound by a confidentiality obligation to the Company and covered by this Policy, or third party agents of the Company (such as accountants, investment bankers or outside legal counsel) whose positions require them to have access to such information, but who are bound by a professional obligation to protect its confidentiality.
| (b) | Prohibited Trading in Company Securities. |
No person may place a purchase or sell order or recommend that another person place a purchase or sell order in Company Securities when they are aware of MNPI concerning the Company that has not been disclosed to the public. As noted above, for purposes of the prohibition expressed in this Policy, “Company Securities” should be construed broadly, and the terms “purchase” or “sell” should also be interpreted broadly to include transactions involving Company Securities such as elections or changes in elections under Company Securities purchase plans, loans, pledges, gifts, charitable donations and other contributions of Company Securities.
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| (c) | “Tipping” Information to Others. |
Covered Persons may be liable for communicating or tipping MNPI to any third party (“tippee”). Further, insider trading violations are not limited to trading or tipping by Covered Persons. Persons other than Covered Persons also can be liable for insider trading, including tippees who trade on MNPI tipped to them and individuals who trade on MNPI which has been misappropriated.
Tippees inherit a Covered Person’s duties under this Policy and applicable insider trading laws and may be held liable for trading on MNPI illegally tipped to them by a Covered Person. Similarly, just as Covered Persons are liable for the insider trading of their tippees, so are tippees who communicate the information to others who trade. In other words, a tippee’s liability for insider trading is no different from that of a Covered Person. Tippees can obtain MNPI in deliberate ways, such as the direct receipt of a tip, or in less deliberate or obvious ways, such as conversing at social, business or other gatherings. In addition, insider trading liability can arise if a Covered Person misappropriates information for purposes of securities trading in breach of a duty of confidentiality—for example, a fiduciary obligation to a party that provides confidential information after entering into a non-disclosure agreement with the Company.
| (d) | Prohibitions Involving Securities of Other Companies. |
As described in paragraphs (a), (b) and (c) above, no Covered Person may disclose MNPI, engage in prohibited trading or “tip” information to others to the extent the Covered Person becomes aware of MNPI about another company in the course of business activities on behalf of the Company.
| (e) | No Hedging of Company Securities. |
The Company believes that purchases of hedging instruments that protect against downward changes in Company’s share price can result in the purchaser no longer having the same objectives as the Company’s other shareholders because they are no longer subject to the full risks of share ownership. Accordingly, no employee of the Company or member of the Company’s Board may engage in any hedging transaction that would result in lack of exposure to the full risks of share ownership. Prohibited hedging transactions include, but are not limited to, collars, forward sale contracts, trading in publicly-traded options, puts, calls or other derivative instruments related to Company shares or debt.
| (f) | No Margin Accounts, Pledging or Short Sales of Company Securities. |
No employee of the Company or member of the Company’s Board may hold Company Securities in a margin account, pledge Company Securities as collateral for a loan or “short” sell Company Securities. The Board may, in its sole discretion and in limited circumstances, grant an exception to this prohibition.
| VIII. | EXCEPTIONS |
| (a) | No Sale/No Purchase Transactions. |
The prohibitions of this Policy do not apply to bona fide gifts of Company Securities (i.e., for no consideration), except that any such transaction should be pre-cleared by the Compliance Officer as provided in Section IX(c). In addition, this Policy does not restrict purchases and sales of mutual funds, similar professionally managed “commingled pools” or exchange-traded funds that invest in Company Securities in addition to securities of other companies.
| (b) | Transactions under Company Equity Plans. |
The prohibitions of this Policy do not apply to a Covered Person’s exercise of a stock option granted under a Company equity plan for cash, but do apply to any sale of Company Securities received upon exercise of an option in the open market, regardless of whether the sale is to pay the exercise price or for tax withholding. Similarly, this Policy does not apply to a Covered Person’s surrender of Company Securities to the Company or the retention and withholding from delivery to the Covered Person of shares by the Company (i.e., a so-called “net settlement”) upon vesting of restricted stock in satisfaction of tax withholding obligations in a manner permitted by the applicable equity award agreement or the Company equity plan pursuant to which the restricted stock was granted.
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| IX. | ADDITIONAL PROVISIONS APPLICABLE TO SPECIAL INSIDERS |
| (a) | Special Insiders. |
This Section IX sets forth additional provisions applicable to the following individuals associated with the Company (referring to the publicly-traded entity, not its subsidiaries) (“Special Insiders”):
| ● | each member of the Board ; |
| ● | each “executive officer” of the Company, as described in Rule 3b-7 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”); |
| ● | each individual designated in Exhibit A to this Policy who have regular access to MNPI in the normal course of their job; and |
| ● | each other individual designated as a Special Insider by the Compliance Officer from time to time. |
| (b) | Blackout Periods/Trading Windows. |
Special Insiders are prohibited from trading in Company Securities during the following blackout periods: (a) the Company’s regularly scheduled quarterly blackout period commencing at the close of the market on the tenth business day prior to the end of each June 30 and December 31, and the ending of any other quarter for which the Company issues “earnings releases”, and ending two business days after the Company’s “earnings release” is issued to the public relating to the Company’s financial information for the concluded period, and (b) special blackout periods instituted by the Company on a discretionary basis, upon notice to Special Insiders, when news of pending material events or other MNPI regarding the Company that is anticipated to be disclosed has not yet been publicly disclosed. Subject to pre-clearance as provided in Section IX(c) below, Special Insiders are generally permitted to trade when no blackout period is in effect; provided, however, that even during an open trading window, a Special Insider who is aware of MNPI may not trade in Company Securities until the information has been made publicly available as described above, or is no longer material.
| (c) | Pre-Clearance. |
Special Insiders (including family members and other members of their respective households) must obtain prior clearance from the Compliance Officer before buying, selling or engaging in any transaction in Company Securities (except as described in Section IX(e) below), including any exercise of stock options. The Compliance Officer will evaluate each proposed transaction to determine if it raises insider trading concerns or other concerns under the federal or state securities laws and regulations. Any advice will relate solely to legal considerations and not the merits of the investment decision. Clearance of a transaction will be valid only for a 48-hour period. If the Special Insider becomes aware of MNPI before the trade is executed, the prior clearance is void and the trade must not be completed. If the transaction order is not placed within that 48-hour period, clearance of the transaction must be re-requested from the Compliance Officer. If the Special Insider seeks prior clearance and permission to engage in the transaction is denied, then the Special Insider should refrain from initiating any transaction in Company Securities and should not inform any other person of the restriction.
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| (d) | Short-Swing Trading. |
Special Insiders who purchase Company Securities may not sell any Company Securities of the same class for at least six months after the purchase.
| (e) | Rule 10b5-1 Plans. |
A Special Insider’s trades may be exempt from this Policy if made under a properly pre-established and maintained written trading plan, known as a “Rule 10b5-1 plan.” If the Rule 10b5-1 plan meets all of the requirements under the Exchange Act for such a plan, and the purchases or sales of Company Securities are actually made in accordance with the terms and conditions of the plan, the trades will not be deemed to have been made “on the basis of” MNPI, even if the Special Insider who established the plan is actually aware of MNPI at the time of execution of the transactions provided for by the plan.
A properly designed Rule 10b5-1 plan must meet the following requirements:
| ● | the plan was established when the Special Insider was unaware of MNPI concerning the Company; |
| ● | the plan specifies the number (or dollar value) of Company Securities to be purchased or sold, the price (which may be a fixed price, market price or minimum/maximum price) at which the shares are to be traded, and the date of the trade, or provides a written formula or algorithm for determining the timing, amount and price of the trade (or the plan can give a third party such as a designated broker the exclusive right to determine the timing, amount and price of the trade); |
| ● | the plan does not permit the Special Insider to exercise any subsequent influence over how, when, or whether to effect purchases or sales; provided, however, that if a third party (such as a broker) is designated under the terms of the plan to determine the timing, amount and price of trades, the third party must not have been aware of the MNPI about the Company or Company Securities when it makes its trading decisions; and |
| ● | the plan must be entered into in good faith and not as part of a scheme to evade insider trading prohibitions and include a representation in the plan certifying at the time of adoption or modification that the Special Insider is (1) not aware of any MNPI; and (2) adopting the plan is in good faith and not as part of a scheme to evade Rule 10b5-1. |
Any new Rule 10b5-1 plan, or amendment or termination of an existing Rule 10b5-1 plan, must be reviewed and approved by the Compliance Officer; provided, however, that trades occurring under an approved Rule 10b5-1 plan do not require pre-clearance.
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NAMIB MINERALS
INSIDER TRADING POLICY
CERTIFICATION
I have received a copy of and read the Insider Trading Policy of Namib Minerals and its subsidiaries (the “Company”). I understand and agree to comply with the policies and procedures set forth in the Insider Trading Policy.
I understand and agree that my failure to comply with the Insider Trading Policy in all respects may constitute a basis for the termination for cause of my employment by or other service relationship with the Company, or other appropriate disciplinary action.
| Signature: | ||
| Name: | ||
| Date: |
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Exhibit A
Vice President, Finance
Managing Director for Zimbabwe
Financial Director for Zimbabwe
Legal Affairs Manager in Zimbabwe
Finance Manager
Group Financial Controller
9
Exhibit 15.1
Consent of Independent Registered Public Accounting Firm
We hereby consent to the incorporation by reference in this Shell Company Report (the “Report”) on Form 20-F of Namib Minerals of our report dated April 15, 2025, relating to the financial statements of Greenstone Corporation appearing in Registration Statement on Form F-4 (File No. 333-283650).
We also consent to the reference to us under the caption “Statement by Experts” in the Report.
/s/ BDO South Africa Incorporated
BDO South Africa Incorporated
Johannesburg, South Africa
June 11, 2025
Exhibit 15.2
Consent of Independent Registered Public Accounting Firm
We hereby consent to the incorporation by reference in this Shell Company Report (the “Report”) on Form 20-F of Namib Minerals of our report dated April 15, 2025, relating to the financial statements of Namib Minerals appearing in Registration Statement on Form F-4 (File No. 333-283650).
We also consent to the reference to us under the caption “Statement by Experts” in the Report.
/s/ BDO South Africa Incorporated
BDO South Africa Incorporated
Johannesburg, South Africa
June 11, 2025
Exhibit 15.3
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Form 20-F of our report dated March 28, 2025, which includes an explanatory paragraph relating to Hennessy Capital Investment Corp. VI’s ability to continue as a going concern, relating to the financial statements of Hennessy Capital Investment Corp. VI. We also consent to the reference to us under the caption “Statement of Experts”.
/s/ WithumSmith+Brown, PC
New York, New York
June 11, 2025
Exhibit 15.7
Allan Harry Blair, QP Mineral Reserves
WSP Australia Pty Limited
Level 3, Mia Yellagonga Tower 2, 5 Spring Street, Perth, 6000, Australia
CONSENT OF QUALIFIED PERSON
Regarding (i) the technical report summary titled Redwing Mine S-K 1300 Technical Report Summary with an effective date of 31 December 2023, (ii) the technical report summary titled How Mine S-K 1300 Technical Report Summary with an effective date of 31 December 2023, and (iii) the technical report summary titled Mazowe Mine S-K 1300 Technical Report Summary with an effective date of 31 December 2023, in each case as signed and certified by me, Allan Blair (collectively, the “Technical Report Summaries”), Technical Executive – Mining at WSP, I hereby state that I am responsible for the preparation of those certain sections of the Technical Report Summaries listed as my areas of responsibility in Section 2.4 of each report.
Furthermore, I state that:
| (a) | I consent to the public filing by Namib Minerals of the Technical Report Summaries with the United States Securities and Exchange Commission; |
| (b) | the document that the Technical Report Summaries support is the report on Form 20-F of Namib Minerals (as may be amended or supplemented, the “Document”); |
| (c) | I consent to the use of my name in the Document, to any quotation from or summarization in the Document of the parts of the Technical Report Summaries for which I am responsible, and to the filing of each Technical Report Summary as an exhibit to the Document; and |
| (d) | I confirm that I have read the Document, and that the Document fairly and accurately reflects, in the form and context in which it appears, the information in the parts of the Technical Report Summaries for which I am responsible. |
Dated at Perth, Western Australia this 11th of June, 2025.
| /s/ Allan Harry Blair | |
| Signature of Qualified Person |
Allan Harry Blair, FAusIMM, Member No. 102240
Exhibit 15.8
Aaron Radonich, QP Mineral Resources
WSP Australia Pty Limited
Level 3/51-55 Bolton St, Newcastle, NSW, 2300, Australia
CONSENT OF QUALIFIED PERSON
Regarding (i) the technical report summary titled Redwing Mine S-K 1300 Technical Report Summary with an effective date of 31 December 2023, (ii) the technical report summary titled How Mine S-K 1300 Technical Report Summary with an effective date of 31 December 2023, and (iii) the technical report summary titled Mazowe Mine S-K 1300 Technical Report Summary with an effective date of 31 December 2023, in each case as signed and certified by me, Aaron Radonich (collectively, the “Technical Report Summaries”), Mine Engineering & Geology Manager with WSP at the time of preparation of the reports, I hereby state that I am responsible for the preparation of those certain sections of the Technical Report Summaries listed as my areas of responsibility in Section 2.4 of each report.
Furthermore, I state that:
| (a) | I consent to the public filing by Namib Minerals of the Technical Report Summaries with the United States Securities and Exchange Commission; |
| (b) | the document that the Technical Report Summaries support is the report on Form 20-F of Namib Minerals (as may be amended or supplemented, the “Document”); |
| (c) | I consent to the use of my name in the Document, to any quotation from or summarization in the Document of the parts of the Technical Report Summaries for which I am responsible, and to the filing of each Technical Report Summary as an exhibit to the Document; and |
| (d) | I confirm that I have read the Document, and that the Document fairly and accurately reflects, in the form and context in which it appears, the information in the parts of the Technical Report Summaries for which I am responsible. |
Dated at Newcastle, New South Wales, Australia this 11th of June 2025.
 | |
| /s/ Aaron Radonich | |
| Signature of Qualified Person |
Aaron Radonich, FAusIMM(CP), Member No. 221172
Exhibit 97.1
NAMIB MINERALS
EXECUTIVE OFFICER CLAWBACK POLICY
Approved by the Board of Directors on June 5, 2025 (the “Adoption Date”)
| I. | PURPOSE |
This Executive Officer Clawback Policy describes the circumstances under which Covered Persons of Namib Minerals and any of its direct or indirect subsidiaries (collectively, the “Company”) will be required to repay or return Erroneously-Awarded Compensation to the Company.
This Policy and any terms used in this Policy shall be construed in accordance with all applicable SEC regulations promulgated to comply with Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, including, without limitation, Rule 10D-1 promulgated under the Securities Exchange Act of 1934, as amended, and the rules adopted by Nasdaq.
Each Covered Person of the Company shall sign an Acknowledgement and Agreement to the Executive Officer Clawback Policy in the form attached hereto as Exhibit A as a condition to his or her participation in any of the Company’s incentive-based compensation programs; provided, that, this Policy shall apply to each Covered Person, irrespective of whether such Covered Person shall have failed, for any reason, to have executed such acknowledgment and agreement.
| II. | DEFINITIONS |
For purposes of this Policy, the following capitalized terms shall have the meaning set forth below:
| (a) | “Accounting Restatement” shall mean an accounting restatement (i) due to the material noncompliance of the Company with any financial reporting requirement under the securities laws, including any required accounting restatement to correct an error in previously issued financial statements that is material to the previously issued financial statements (a “Big R” restatement), or (ii) that corrects an error that is not material to previously issued financial statements, but would result in a material misstatement if the error were corrected in the current period or left uncorrected in the current period (a “little r” restatement). |
| (b) | “Board” shall mean the Board of Directors of the Company. |
| (c) | “Clawback-Eligible Incentive Compensation” shall mean, in connection with an Accounting Restatement, any Incentive-Based Compensation Received by a Covered Person (regardless of whether such Covered Person was serving at the time that Erroneously-Awarded Compensation is required to be repaid) (i) on or after October 2, 2023, (ii) after beginning service as a Covered Person, (iii) while the Company has a class of securities listed on a national securities exchange or national securities association, and (iv) during the Clawback Period. |
| (d) | “Clawback Period” shall mean, with respect to any Accounting Restatement, the three completed fiscal years immediately preceding the Restatement Date and any transition period (that results from a change in the Company’s fiscal year) of less than nine months within or immediately following those three completed fiscal years. |
| (e) | “Committee” shall mean the Compensation Committee of the Board. |
| (f) | “Covered Person” shall mean any person who is, or was at any time, during the Clawback Period, an Executive Officer of the Company. For the avoidance of doubt, Covered Person may include a former Executive Officer who left the Company, retired or transitioned to a non-Executive Officer role (including after serving as an Executive Officer in an interim capacity) during the Clawback Period. |
| (g) | “Erroneously-Awarded Compensation” shall mean the amount of Clawback-Eligible Incentive Compensation that exceeds the amount of Incentive-Based Compensation that otherwise would have been Received had it been determined based on the restated amounts. This amount must be computed without regard to any taxes paid. |
| (h) | “Executive Officer” shall mean the Company’s president, principal financial officer, principal accounting officer (or if there is no such accounting officer, the controller), any vice-president in charge of a principal business unit, division, or function (such as sales, administration, or finance), any other officer who performs a policy-making function, or any other person (including an officer of the Company’s parent(s) or subsidiaries) who performs similar policy-making functions for the Company. For the sake of clarity, at a minimum, all persons who would be executive officers pursuant to Item 401(b) of Regulation S-K shall be deemed “Executive Officers”. |
| (i) | “Financial Reporting Measures” shall mean measures that are determined and presented in accordance with the accounting principles used in preparing the Company’s financial statements, and all other measures that are derived wholly or in part from such measures. For purposes of this Policy, Financial Reporting Measures shall include stock price and total shareholder return (and any measures that are derived wholly or in part from stock price or total shareholder return). |
| (j) | “Incentive-Based Compensation” shall mean any compensation that is granted, earned or vested wholly or in part upon the attainment of a Financial Reporting Measure, as further described under Section III of this Policy. |
| (k) | “Nasdaq” shall mean The Nasdaq Stock Market. |
| (l) | “Policy” shall mean this Executive Officer Clawback Policy, as the same may be amended and/or restated from time to time. |
| (m) | “PSUs” shall mean performance share units. |
| (n) | “Received” shall mean Incentive-Based Compensation received, or deemed to be received, in the Company’s fiscal period during which the Financial Reporting Measure specified in the Incentive-Based Compensation is attained, even if the payment or grant occurs after the fiscal period. |
| (o) | “Repayment Agreement” shall have the meaning set forth in Section V below. |
| (p) | “Restatement Date” shall mean the earlier of (i) the date the Board, a committee of the Board or the officers of the Company authorized to take such action if Board action is not required, concludes, or reasonably should have concluded, that the Company is required to prepare an Accounting Restatement, or (ii) the date that a court, regulator or other legally authorized body directs the Company to prepare an Accounting Restatement. |
| (q) | “RSUs” shall mean restricted stock units. |
| (r) | “SARs” shall mean stock appreciation rights. |
| (s) | “SEC” shall mean the U.S. Securities and Exchange Commission. |
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| III. | INCENTIVE-BASED COMPENSATION |
For purposes of this Policy, specific examples of Incentive-Based Compensation include, but are not limited to:
| ● | Non-equity incentive plan awards that are earned based, wholly or in part, on satisfaction of a Financial Reporting Measure performance goal; |
| ● | Bonuses paid from a “bonus pool,” the size of which is determined, wholly or in part, based on satisfaction of a Financial Reporting Measure performance goal; |
| ● | Other cash awards based on satisfaction of a Financial Reporting Measure performance goal; |
| ● | Restricted stock, RSUs, PSUs, stock options and SARs that are granted or become vested, wholly or in part, on satisfaction of a Financial Reporting Measure performance goal; and |
| ● | Proceeds received upon the sale of shares acquired through an incentive plan that were granted or vested based, wholly or in part, on satisfaction of a Financial Reporting Measure performance goal. |
For purposes of this Policy, Incentive-Based Compensation excludes:
| ● | Base salaries (except with respect to any salary increases earned, wholly or in part, based on satisfaction of a Financial Reporting Measure performance goal); |
| ● | Bonuses paid solely at the discretion of the Committee or Board that are not paid from a “bonus pool” that is determined by satisfying a Financial Reporting Measure performance goal; |
| ● | Bonuses paid solely upon satisfying one or more subjective standards and/or completion of a specified employment period; |
| ● | Non-equity incentive plan awards earned solely upon satisfying one or more strategic measures or operational measures; and |
| ● | Equity awards that vest solely based on the passage of time and/or satisfaction of one or more non-Financial Reporting Measures. |
| IV. | DETERMINATION AND CALCULATION OF ERRONEOUSLY-AWARDED COMPENSATION |
In the event of an Accounting Restatement, the Committee shall promptly (and in all events within ninety (90) days after the Restatement Date) determine the amount of any Erroneously-Awarded Compensation for each Covered Person in connection with such Accounting Restatement and shall promptly thereafter provide each Covered Person with a written notice containing the amount of Erroneously-Awarded Compensation and a demand for repayment, return or forfeiture thereof, as applicable.
| (a) | Cash Awards. With respect to cash awards, the Erroneously-Awarded Compensation is the difference between the amount of the cash award (whether payable as a lump sum or over time) that was Received and the amount that should have been received applying the restated Financial Reporting Measure. |
| (b) | Cash Awards Paid From Bonus Pools. With respect to cash awards paid from bonus pools, the Erroneously-Awarded Compensation is the pro rata portion of any deficiency that results from the aggregate bonus pool that is reduced based on applying the restated Financial Reporting Measure. |
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| (c) | Equity Awards. With respect to equity awards, if the shares, RSUs, PSUs, options or SARs are still held at the time of recovery, the Erroneously-Awarded Compensation is the number of such securities Received in excess of the number that should have been received applying the restated Financial Reporting Measure (or the value of that excess number). If the RSUs, PSUs, options or SARs have vested or been exercised, as the case may be, but the underlying shares have not been sold, the Erroneously-Awarded Compensation is the number of shares underlying the excess RSUs, PSUs, options or SARs (or the value thereof). If the underlying shares have already been sold, then the Committee shall determine the amount which most reasonably estimates the Erroneously-Awarded Compensation. |
| (d) | Compensation Based on Stock Price or Total Shareholder Return. For Incentive-Based Compensation based on (or derived from) stock price or total shareholder return, where the amount of Erroneously-Awarded Compensation is not subject to mathematical recalculation directly from the information in the applicable Accounting Restatement, the amount shall be determined by the Committee based on a reasonable estimate of the effect of the Accounting Restatement on the stock price or total shareholder return upon which the Incentive-Based Compensation was Received (in which case, the Committee shall maintain documentation of such determination of that reasonable estimate and provide such documentation to Nasdaq in accordance with applicable listing standards). |
| V. | RECOVERY OF ERRONEOUSLY-AWARDED COMPENSATION |
Once the Committee has determined the amount of Erroneously-Awarded Compensation recoverable from the applicable Covered Person, the Committee shall take all necessary actions to recover the Erroneously-Awarded Compensation. Unless otherwise determined by the Committee, the Committee shall pursue the recovery of Erroneously-Awarded Compensation in accordance with the below:
| (a) | Cash Awards. With respect to cash awards, the Committee shall either (i) require the Covered Person to repay the Erroneously-Awarded Compensation in a lump sum in cash (or such property as the Committee agrees to accept with a value equal to such Erroneously-Awarded Compensation) or (ii) if approved by the Committee, enter into a Repayment Agreement in accordance with subsection (d) below. |
| (b) | Unvested Equity Awards. With respect to those equity awards that have not yet vested, the Committee shall take such action as is necessary to cancel, or otherwise cause to be forfeited, the awards in the amount of the Erroneously-Awarded Compensation. |
| (c) | Vested Equity Awards. With respect to those equity awards that have vested or been exercised and the underlying shares have not been sold, the Committee shall take such action as is necessary to cause the Covered Person to deliver and surrender the underlying shares in the amount of the Erroneously-Awarded Compensation. |
In the event that the Covered Person has sold any underlying shares, the Committee shall either (i) require the Covered Person to repay the Erroneously-Awarded Compensation in a lump sum in cash (or such property as the Committee agrees to accept with a value equal to such Erroneously-Awarded Compensation) or (ii) if approved by the Committee, enter into a Repayment Agreement in accordance with subsection (d) below.
| (d) | Repayment Agreement. To the extent approved by the Committee, the Company shall enter into a written agreement (in a form reasonably acceptable to the Committee) with the Covered Person that provides for the Covered Person’s repayment of the Erroneously-Awarded Compensation as promptly as possible without unreasonable economic hardship to the Covered Person based upon the particular facts and circumstances (a “Repayment Agreement”). |
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| (e) | Effect of Non-Repayment. To the extent that a Covered Person fails to repay all Erroneously-Awarded Compensation to the Company when due (as determined in accordance with this Policy), the Company shall take all actions reasonable and appropriate to recover such outstanding Erroneously-Awarded Compensation from the applicable Covered Person. The applicable Covered Person shall be required to reimburse the Company for any and all expenses reasonably incurred (including legal fees) by the Company in recovering such Erroneously-Awarded Compensation in accordance with the immediately preceding sentence. |
The Committee shall have broad discretion to determine the appropriate means of recovery of Erroneously-Awarded Compensation based on all applicable facts and circumstances and taking into account the time value of money and the cost to shareholders of delaying recovery. However, in no event may the Company accept an amount that is less than the amount of Erroneously-Awarded Compensation in satisfaction of a Covered Person’s obligations hereunder.
| VI. | DISCRETIONARY RECOVERY |
Notwithstanding anything herein to the contrary, the Company shall not be required to take action to recover Erroneously-Awarded Compensation if any one of the following conditions are met and the Committee determines that recovery would be impracticable:
| (i) | The direct expenses paid to a third party to assist in enforcing this Policy against a Covered Person would exceed the amount to be recovered, after the Company has made a reasonable attempt to recover the applicable Erroneously-Awarded Compensation, documented such attempts and provided such documentation to Nasdaq; |
| (ii) | Recovery would violate home country law where that law was adopted prior to November 28, 2022, provided that, before determining that it would be impracticable to recover any amount of Erroneously-Awarded Compensation based on violation of home country law, the Company has obtained an opinion of home country counsel, acceptable to Nasdaq, that recovery would result in such a violation and a copy of the opinion is provided to Nasdaq; or |
| (iii) | Recovery would likely cause an otherwise tax-qualified retirement plan, under which benefits are broadly available to employees of the Company, to fail to meet the requirements of 26 U.S.C. 401(a)(13) or 26 U.S.C. 411(a) and regulations thereunder. |
| VII. | REPORTING AND DISCLOSURE REQUIREMENTS |
The Company shall file all disclosures with respect to this Policy in accordance with the requirements of the federal securities laws, including the disclosure required by the applicable filings required to be made with the SEC.
| VIII. | EFFECTIVE DATE |
This Policy shall apply to all Incentive-Based Compensation Received on or after October 2, 2023.
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| IX. | NO INDEMNIFICATION |
The Company shall not indemnify any Covered Person against the loss of Erroneously-Awarded Compensation and shall not pay, or reimburse any Covered Persons for premiums, for any insurance policy to fund such Covered Person’s potential recovery obligations.
| X. | ADMINISTRATION |
The Committee has the sole discretion to administer this Policy and ensure compliance with Nasdaq Rules and any other applicable law, regulation, rule or interpretation of the SEC or Nasdaq promulgated or issued in connection therewith. The Committee shall, subject to the provisions of this Policy, make such determinations and interpretations and take such actions as it deems necessary, appropriate or advisable. All determinations and interpretations made by the Committee shall be final, binding and conclusive.
| XI. | AMENDMENT; TERMINATION |
The Board may amend this Policy from time to time in its discretion and shall amend this Policy as it deems necessary, including as and when it determines that it is legally required by any federal securities laws, SEC rule or the rules of any national securities exchange or national securities association on which the Company’s securities are then listed. The Board may terminate this Policy at any time. Notwithstanding anything in this Section XI to the contrary, no amendment or termination of this Policy shall be effective if such amendment or termination would (after taking into account any actions taken by the Company contemporaneously with such amendment or termination) cause the Company to violate any federal securities laws, SEC rule, or the rules of any national securities exchange or national securities association on which the Company’s securities are then listed.
| XII. | OTHER RECOUPMENT RIGHTS; NO ADDITIONAL PAYMENTS |
The Committee intends that this Policy will be applied to the fullest extent of the law. The Committee may require that any employment agreement, equity award agreement or any other agreement entered into on or after the Adoption Date shall, as a condition to the grant of any benefit thereunder, require a Covered Person to agree to abide by the terms of this Policy; provided, that, this Policy shall apply to all Covered Persons irrespective of any such explicit agreement. Any right of recoupment under this Policy is in addition to, and not in lieu of, any other rights under applicable laws, regulations or rules, or any other legal remedies available to the Company, or pursuant to any similar policy in any employment agreement, equity plan, equity award agreement or similar arrangement. However, this Policy shall not provide for recovery of Incentive-Based Compensation that the Company has already recovered pursuant to Section 304 of the Sarbanes-Oxley Act or other recovery obligations.
| XIII. | SUCCESSORS |
This Policy shall be binding and enforceable against all Covered Persons and their beneficiaries, heirs, executors, administrators or other legal representatives.
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Exhibit A
ACKNOWLEDGEMENT AND AGREEMENT
TO THE
EXECUTIVE OFFICER CLAWBACK POLICY
OF
NAMIB MINERALS
By signing below, the undersigned acknowledges and confirms that the undersigned has received and reviewed a copy of Namib Minerals’ Executive Officer Clawback Policy (the “Policy”). Capitalized terms used but not otherwise defined in this Acknowledgement Form (this “Acknowledgement Form”) shall have the meanings ascribed to such terms in the Policy.
By signing this Acknowledgement Form, the undersigned acknowledges and agrees that the undersigned is and will continue to be subject to the Policy and that the Policy will apply both during and after the undersigned’s employment with the Company. Further, by signing below, the undersigned agrees to abide by the terms of the Policy, including, without limitation, by returning any Erroneously-Awarded Compensation (as defined in the Policy) to the Company to the extent required by, and in a manner permitted by, the Policy.
| Signature | |
| Name | |
| Date |
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Exhibit 99.1
Unaudited Pro Forma Condensed CONSOLIDATED Combined Financial Information
Capitalized but undefined terms included below have the same meaning as terms defined and included in Namib Minerals’ Post-Effective Amendment to its Registration Statement on Form F-4 (333-283650) filed with the Securities and Exchange Commission on April 15, 2025.
Introduction
Namib Minerals is providing the following unaudited pro forma condensed consolidated combined financial statements to aid you in your analysis of the financial aspects of the Business Combination.
The unaudited pro forma condensed consolidated combined statement of financial position as of December 31, 2024, gives effect to the Business Combination as if it occurred on December 31, 2024. The unaudited pro forma condensed consolidated combined statement of profit or loss for the year ended December 31, 2024 gives effect to the Business Combination as if it had been completed on January 1, 2024.
The unaudited pro forma condensed consolidated combined financial information has been derived from and should be read in conjunction with, the historical financial statements and related notes of Greenstone and HCVI for the applicable periods incorporated by reference in Namib Minerals’ Shell Company Report on Form 20-F of which this document is an exhibit..
The unaudited pro forma condensed consolidated combined financial statements have been presented for illustrative purposes only and 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. Further, the unaudited pro forma condensed consolidated combined financial information 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.
Description of the Business Combination
Pursuant to the Business Combination Agreement, Company Merger Sub merged with and into Greenstone, with Greenstone continuing as the surviving company and becoming a wholly-owned subsidiary of Namib Minerals, and SPAC Merger Sub merged with and into HCVI, with HCVI continuing as the surviving company, and becoming a wholly-owned subsidiary of Namib Minerals.
Pursuant to the Business Combination Agreement each of the following transactions occurred:
| ● | SPAC Common Stock: each share of SPAC Class A and Class B Common Stock (collectively “SPAC Common Stock”) was cancelled in exchange for the right to receive one (1) ordinary share of Namib Minerals, par value $0.0001 per share (a “Namib Ordinary Share”). |
| ● | SPAC Warrants: each SPAC Warrant issued by HCVI ceased to represent a right to acquire the number of shares of SPAC Common Stock and was converted into a right to acquire the same number of the Namib Ordinary Shares (the “Warrants”) on substantially the same terms as were in effect immediately prior to the close of the Business Combination. |
| ● | Company Shares: each share of the Greenstone’s share capital shall be exchanged for such fraction of a newly issued Namib Ordinary Share that is equal to the Exchange Ratio. |
Pursuant to the Sponsor Letter Agreement, Hennessy Capital Partners VI LLC (the “Sponsor”), forfeited 7,544,318 shares of SPAC Common Stock.
Polar Subscription Agreements
HCVI entered into Polar Subscription Agreement I and Polar Subscription Agreement II with HCG, the Sponsor, and Polar, pursuant to which Polar provided an aggregate of $2,650,000 in cash contributions to cover HCVI’s working capital expenses. The Sponsor has agreed to repay the cash consideration, and 880,000 Namib Ordinary Shares were issued by Namib Minerals pursuant to the terms of Polar Subscription Agreement I and Polar Subscription Agreement II.
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Special Meeting of Stockholders
On May 6, 2025, HCVI, held a special meeting of stockholders during which the stockholders of HCVI exercised their right to redeem 3,168,984 shares of SPAC Class A Common Stock for cash at a redemption price of approximately $10.89 per share, for an aggregate redemption amount of approximately $34.5 million. After the satisfaction of such redemptions, the balance in the Company’s Trust Account was approximately $1.2 million.
Capitalization
The following summarizes the pro forma Namib Ordinary Shares immediately following the Closing:
| Post-Business Combination | % | |||||||
| Sponsor, Polar, and Permitted Transferees | 4,575,000 | 9 | % | |||||
| Other Initial Shareholders | 125,000 | 0 | % | |||||
| SPAC Public Stockholders | 107,469 | 0 | % | |||||
| Greenstone Rollover Shares | 48,869,960 | 91 | % | |||||
| Namib Ordinary Shares at Closing | 53,677,429 | 100 | % | |||||
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Unaudited Pro Forma condensed consolidated combined
statement of financial position
As of December 31, 2024
(U.S. Dollars, in thousands)
| IFRS Policy | ||||||||||||||||||||||
| and | Transaction | |||||||||||||||||||||
| Historical | Historical | Presentation | Accounting | |||||||||||||||||||
| Greenstone Corporation | HCVI | Alignment (Note 2) | Adjustments (Note 4) | Pro Forma Combined |
||||||||||||||||||
| Assets | ||||||||||||||||||||||
| Current assets | ||||||||||||||||||||||
| Inventories | $ | 3,188 | $ | — | $ | — | $ | — | $ | 3,188 | ||||||||||||
| Trade and other receivables, net | 3,752 | — | — | — | 3,752 | |||||||||||||||||
| Amounts due from related party | 765 | — | — | — | 765 | |||||||||||||||||
| Cash and cash equivalents | 698 | 889 | — | 35,476 | A | 1,341 | ||||||||||||||||
| (41 | ) | D | ||||||||||||||||||||
| — | — | — | (1,170 | ) | F | — | ||||||||||||||||
| (34,511 | ) | E | ||||||||||||||||||||
| Prepaid expenses | — | 15 | — | — | 15 | |||||||||||||||||
| Short-term prepayments | 548 | — | — | — | 548 | |||||||||||||||||
| Excise duty indemnification | — | — | — | 3,574 | C | 3,574 | ||||||||||||||||
| Total current assets | 8,951 | 904 | — | 3,328 | 13,183 | |||||||||||||||||
| Non-current assets | ||||||||||||||||||||||
| Property, plant and equipment, net | 37,044 | — | — | — | 37,044 | |||||||||||||||||
| Exploration and evaluation assets, net | 987 | — | — | — | 987 | |||||||||||||||||
| Long-term prepayments | 3,922 | — | — | — | 3,922 | |||||||||||||||||
| Cash held in Trust Account | — | 35,476 | — | (35,476 | ) | A | — | |||||||||||||||
| Staff loan receivables | 135 | — | — | — | 135 | |||||||||||||||||
| Total non-current assets | 42,088 | 35,476 | — | (35,476 | ) | 42,088 | ||||||||||||||||
| Total Assets | $ | 51,039 | $ | 36,380 | $ | — | $ | (32,148 | ) | $ | 55,271 | |||||||||||
| Liabilities | ||||||||||||||||||||||
| Current liabilities | ||||||||||||||||||||||
| Trade and other payables | $ | 31,451 | $ | 288 | $ | — | $ | 7,374 | F | $ | 39,113 | |||||||||||
| Current tax liabilities | 8,990 | — | — | — | 8,990 | |||||||||||||||||
| Borrowings-current portion | 1,142 | — | — | — | 1,142 | |||||||||||||||||
| Bank overdraft | 1,013 | 1,013 | ||||||||||||||||||||
| Amounts due to related parties | 3,389 | — | — | — | 3,389 | |||||||||||||||||
| Accrued liabilities | — | 7,035 | — | (7,035 | ) | F | — | |||||||||||||||
| Extension notes payable | — | 9,520 | — | (9,520 | ) | L | — | |||||||||||||||
| Working capital loans – related party | — | 341 | — | (341 | ) | F | — | |||||||||||||||
| Deferred compensation – related parties | — | 1,186 | — | (1,186 | ) | F | — | |||||||||||||||
| Excise tax payable | — | 3,229 | — | 345 | C | 3,574 | ||||||||||||||||
| Earn out liability | — | — | — | 112,000 | M | 112,000 | ||||||||||||||||
| Franchise and income taxes payable | 41 | — | (41 | ) | D | — | ||||||||||||||||
| Common stock subject to possible redemption | — | 35,436 | K | (35,436 | ) | B | — | |||||||||||||||
| Total current liabilities | 45,985 | 21,640 | 35,436 | 66,160 | 169,221 | |||||||||||||||||
| Non-Current liabilities | ||||||||||||||||||||||
| Provision for rehabilitation cost | 26,389 | — | — | — | 26,389 | |||||||||||||||||
| Borrowings | 1,374 | — | — | — | 1,374 | |||||||||||||||||
| Deferred tax liability | 8,217 | — | — | — | 8,217 | |||||||||||||||||
| Derivative warrant liabilities | — | 2,229 | — | 4,830 | N | 7.059 | ||||||||||||||||
| Deferred underwriting compensation | — | — | — | — | — | |||||||||||||||||
| Total non-current liabilities | 35,980 | 2,229 | — | 4,830 | 43,039 | |||||||||||||||||
| Total Liabilities | $ | 81,965 | $ | 23,869 | $ | 35,436 | $ | 70,990 | $ | 212,260 | ||||||||||||
| Class A common stock subject to possible redemption | — | 35,436 | (35,436 | ) | K | — | — | |||||||||||||||
| EQUITY | ||||||||||||||||||||||
| Shareholder’s equity | ||||||||||||||||||||||
| Ordinary Shares | — | — | — | 5 | I | 5 | ||||||||||||||||
| Class A common stock | — | — | — | — | — | |||||||||||||||||
| Class B common stock | — | 1 | — | (1 | ) | G | — | |||||||||||||||
| Share capital | 1 | — | — | (1 | ) | I | — | |||||||||||||||
| Share premium | — | — | — | 35,436 | B | (92,222) | ||||||||||||||||
| — | 1 | G | — | |||||||||||||||||||
| — | — | — | (22,926 | ) | H | — | ||||||||||||||||
| — | — | — | (4 | ) | I | — | ||||||||||||||||
| — | — | — | 37,092 | J | — | |||||||||||||||||
| (34,511 | ) | E | ||||||||||||||||||||
| — | — | — | 9,520 | L | — | |||||||||||||||||
| — | — | — | (112,000 | ) | M | — | ||||||||||||||||
| (4,830 | ) | N | — | |||||||||||||||||||
| Additional paid-in capital | — | 9,995 | — | (9,995 | ) | H | — | |||||||||||||||
| Shareholders’ deficit | (30,927 | ) | (32,921 | ) | — | 3,229 | C | (64,772 | ) | |||||||||||||
| — | — | — | 18 | F | — | |||||||||||||||||
| — | — | — | 32,921 | H | — | |||||||||||||||||
| — | — | — | (37,092 | ) | J | — | ||||||||||||||||
| Total Equity | (30,926 | ) | (22,925 | ) | — | (103,138 | ) | (156,989 | ) | |||||||||||||
| Total Liabilities, Class A common stock subject to possible redemption and Equity | 51,039 | 36,380 | — | (32,148 | ) | 55,271 | ||||||||||||||||
See accompanying notes to unaudited pro forma condensed consolidated combined financial information.
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Unaudited pro forma condensed consolidated combined
statement of profit or loss
For the Year Ended December 31, 2024
(U.S. Dollars, in thousands, except for per share data)
| IFRS Policy | |||||||||||||||||||||
| and | Transaction | ||||||||||||||||||||
| Historical | Historical | Presentation | Accounting | ||||||||||||||||||
| Greenstone Corporation | HCVI | Alignment (Note 2) | Adjustments (Note 4) | Pro Forma Combined | |||||||||||||||||
| Revenue | $ | 85,882 | $ | — | $ | — | $ | — | $ | 85,882 | |||||||||||
| Production costs | (38,671 | ) | — | — | — | (38,671 | ) | ||||||||||||||
| Depreciation | (4,141 | ) | — | — | — | (4,141 | ) | ||||||||||||||
| Royalties | (4,281 | ) | — | — | — | (4,281 | ) | ||||||||||||||
| Gross profit | 38,789 | — | — | — | 38,789 | ||||||||||||||||
| Other income | 716 | — | — | — | 716 | ||||||||||||||||
| Administrative expenses | (20,101 | ) | (6,661 | ) | — | 17 | AA | (63,657 | ) | ||||||||||||
| — | 180 | CC | — | ||||||||||||||||||
| — | (37,092 | ) | DD | — | |||||||||||||||||
| Allowance for credit losses, net of recoveries | (13 | ) | — | — | — | (13 | ) | ||||||||||||||
| Foreign exchange gain | 1,016 | — | — | — | 1,016 | ||||||||||||||||
| Impairment | (5,724 | ) | (5,724 | ) | |||||||||||||||||
| Estimated fair value of Founder Shares provided in Non-Redemption Agreements | — | (8,170 | ) | — | — | (8,170 | ) | ||||||||||||||
| Operating profit (loss) | 14,683 | (14,831 | ) | — | (36,895 | ) | (37,043 | ) | |||||||||||||
| Finance cost | (1,522 | ) | — | — | — | (1,522 | ) | ||||||||||||||
| Related party credit loss | (1,426 | ) | — | — | — | (1,426 | ) | ||||||||||||||
| Interest income | 14 | — | — | — | 14 | ||||||||||||||||
| Financial guarantee remeasurement | 2,746 | — | — | — | 2,746 | ||||||||||||||||
| Interest income earned on Trust Account | — | 2,550 | — | (2,550 | ) | BB | — | ||||||||||||||
| Other Interest Income | — | 23 | — | — | 23 | ||||||||||||||||
| Change in fair value of extension notes payable | — | (6,870 | ) | — | 6,870 | FF | — | ||||||||||||||
| Change in fair value of derivative warrant liabilities | — | (1,115 | ) | — | — | (1,115 | ) | ||||||||||||||
| Profit (loss) before taxation | 14,495 | (20,243 | ) | — | (32,575 | ) | (38,323 | ) | |||||||||||||
| Income tax expense | (10,907 | ) | (506 | ) | — | 1,604 | EE | (9,809 | ) | ||||||||||||
| Profit (loss) for the year | $ | 3,588 | $ | (20,749 | ) | $ | — | $ | (30,971 | ) | $ | (48,132 | ) | ||||||||
| Loss per share | |||||||||||||||||||||
| Basic loss per share | 4.00 | (1.24 | ) | (0.90 | ) | ||||||||||||||||
| Diluted loss per share | 4.00 | (1.24 | ) | (0.90 | ) | ||||||||||||||||
See accompanying notes to unaudited pro forma condensed consolidated combined financial information.
5
NOTES TO THE UNAUDITED PRO
FORMA
CONDENSED CONSOLIDATED COMBINED FINANCIAL STATEMENTS
| 1. | Basis of Presentation |
Basis of Pro Forma Presentation
The unaudited pro forma condensed consolidated combined financial information was prepared in accordance with Article 11 of Regulation S-X. The unaudited pro forma condensed consolidated combined statement of financial position as of December 31, 2024 gives effect to the Business Combination as if it occurred on December 31, 2024. The unaudited pro forma condensed consolidated combined statement of profit or loss for the year ended December 31, 2024 gives effect to the Business Combination as if it had been completed on January 1, 2024. Management has made significant estimates and assumptions in its determination of the pro forma adjustments, which are described in these notes. Management believes the methodologies and assumptions used provide a reasonable basis for presenting all of the significant effects of the Business Combination based on information available at this time and that the pro forma adjustments give appropriate effect to those assumptions and are properly applied in the unaudited pro forma condensed consolidated combined financial information.
The unaudited pro forma condensed consolidated combined financial statements do not give effect to any anticipated synergies, operating efficiencies, tax savings, or cost savings that may be associated with the Business Combination.
The historical consolidated financial statements of Greenstone have been prepared in accordance with IFRS Accounting Standards as issued by the IASB. The historical financial statements of HCVI have been prepared in accordance with U.S. GAAP. The financial statements of HCVI have been converted to IFRS Accounting Standards as issued by the IASB for the purposes of presentation in the unaudited pro forma condensed consolidated combined financial information.
| 2. | IFRS Policy and Presentation Alignment |
The historical financial information of HCVI has been adjusted to give effect to the differences between U.S. GAAP and IFRS Accounting Standards as issued by the IASB for the purposes of the unaudited pro forma condensed consolidated combined financial information. Based on a preliminary analysis, the only adjustment required to convert HCVI’s financial statements from U.S. GAAP to IFRS Accounting Standards for purposes of the unaudited pro forma condensed consolidated combined financial information was to reclassify SPAC Class A Common Stock subject to possible redemption to current financial liabilities under International Accounting Standard 32, Financial Instruments: Presentation (“IAS 32”), as HCVI’s stockholders have the right to redeem their Public Shares and HCVI has the irrevocable obligation to deliver cash or another financial instrument for such redemption. As a result of this adjustment, there is also an adjustment to present the accretion of SPAC Class A Common Stock subject to possible redemption as an expense, historically recognized directly in equity under U.S. GAAP.
Further, as part of the preparation of the unaudited pro forma condensed consolidated combined financial information, certain reclassifications were made to align HCVI’s historical financial information in accordance with the presentation of Greenstone’s historical financial information.
| 3. | Accounting Treatment |
Business Combination
The Business Combination is accounted for as a capital reorganization in accordance with IFRS Accounting Standards. Under this method of accounting, while HCVI is the legal acquirer, it is treated as the “acquired” company, and Greenstone is the “acquirer” for accounting and financial reporting purposes. Since HCVI does not meet the definition of a “business” pursuant to IFRS 3, Business Combinations, the transaction is accounted for within the scope of IFRS 2, Share-Based Payments. Accordingly, the Business Combination is treated as the equivalent of Greenstone issuing shares for the net assets of HCVI, with the fair value of the shares, in excess of the net assets of HCVI, being accounted for as a stock exchange listing expense under IFRS 2. The net assets of HCVI are stated at historical cost, with no goodwill or other intangible assets recorded. Operations prior to the Business Combination are those of Greenstone.
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Earnouts
During the period between the close of the Business Combination and 8th anniversary of the Closing Date, Namib Minerals shall issue up to 30 million Namib Ordinary Shares to the shareholders of Greenstone (as determined on the Closing Date), when the relevant milestones are achieved.
Management determined the Company Earnouts are not compensatory in nature and therefore not within the scope of IFRS 2. The Company Earnouts are not treated as a component of the equity exchange between Greenstone and HCVI and have the effect of reducing the value of the Namib Ordinary Shares issued to HCVI. The Company Earnouts are accounted for as derivative liabilities under IAS 32/IFRS 9.
Warrants
The Warrants issued are a replacement of the SPAC Warrants and represent liabilities assumed in the Business Combination. The Warrants are not part of the consideration issued by Greenstone to acquire HCVI. The Warrants are derivative liabilities under IAS 32/IFRS 9.
| 4. | Adjustments to Unaudited Pro Forma Condensed Consolidated Combined Financial Information |
The unaudited pro forma condensed consolidated combined financial information has been prepared to illustrate the effect of the Business Combination and has been prepared for informational purposes only.
Adjustments to Unaudited Pro Forma Condensed Consolidated Combined Statement of Financial Position
The adjustments included in the unaudited pro forma condensed consolidated combined financial position as of December 31, 2024 are as follows:
| A. | Represents the reclassification of the remaining $35.5 million of cash and cash equivalents held in the Trust Account at the financial position date that becomes available to fund the Business Combination. |
| B. | Reflects the reclassification of 3,276,453 of SPAC Class A Common Stocks subject to possible redemption to Namib Ordinary Shares with a par value of $0.0001 per share and share premium. |
| C. | Reflects the indemnification by Sponsor of Namib Minerals, SPAC, and Greenstone and their respective affiliates from any and all excise taxes of SPAC. Excise tax payable is $3.6 million. |
| D. | Reflects the settlement of existing HCVI liabilities other than those related to SPAC Transaction Expenses upon the consummation of the Business Combination. |
| E. | Reflects the redemption of 3,168,984 shares of SPAC Class A Common Stock for redemption payments of $34.5 million, allocated to SPAC Common Stock and share premium using par value of $0.0001 per share at a pro rata redemption price of $10.89 per share. |
| F. | Represents the accrual at Closing of the incurred Company Transaction Expenses and extinguishment of accrued SPAC Transaction Expenses as follows: |
| 1) | Represents the accrual at Closing of $7.7 million of incurred and estimated Company Transaction Expenses total inclusive of advisory, banking, printing, legal and accounting fees that are expensed as a part of the Business Combination, as they are listing costs under IAS 32. This amount is incremental to the Company Transaction Expenses accrued within Trade and other payables as of 12/31/24. |
| 2) | Represents the extinguishment of $8.9 million of accrued SPAC Transaction Expenses. In accordance with the terms of the Business Combination Agreement which require the Sponsor to ensure neither HCVI, Namib Minerals, or Greenstone has any liability with respect to any unpaid SPAC Transaction Expenses, the accrued SPAC Transaction Expenses are not an obligation of Namib Minerals or its subsidiaries. |
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| G. | Reflects the Sponsor’s related adjustment as part of the Business Combination as specified below: |
| 1) | Forfeiture of 7,544,318 Shares of SPAC Class A Common Stock held by the Sponsor as prescribed in the Sponsor Letter Agreement. |
| 2) | Recognition of the reclassification of 11,364,318 SPAC Class B Common Stock into Namib Ordinary Shares at the Closing, net of the forfeitures described in G1 above. |
| H. | Reflects as part of the recapitalization at the Closing the elimination of Accumulated deficit and Additional paid in capital of HCVI amounting to $32.9 million and $10.0 million, respectively. |
| I. | Reflects the conversion of Greenstone Rollover Shares into 48,869,960 Namib Ordinary Shares. |
| J. | Represents the preliminary estimated expense recognized, in accordance with IFRS 2, for the excess of the sum of the fair value of Namib Ordinary Shares issued, as compared to the fair value of HCVI’s identifiable net assets at the date of the Business Combination, resulting in a $37.1 million decrease to accumulated deficit. The fair value of shares issued is based on a market price of $11.40 per share as of the Closing Date. |
The stock-based compensation expense under IFRS 2, which is a non-cash and non-recurring expense, is summarized below:
| Fair value of Namib Ordinary Shares issued to SPAC Public Stockholders | $ | 1,225,417 | ||
| Fair value of Namib Ordinary Shares issued to Sponsor | 43,548,000 | |||
| Fair value of all the consideration issued by target to acquire the SPAC | $ | 44,773,147 | ||
| Less: Net assets of HCVI | 7,680,849 | |||
| IFRS 2 charge for listing services | $ | 37,092,297 |
| K. | See Note 3 for explanation of IFRS Accounting Standards policy and presentation adjustment to common stock. |
| L. | Reflects the issuance of 880,000 of Namib Ordinary Shares to Polar pursuant to the Polar Subscription Agreements. |
| M. | Reflects the recognition of the Company Earnout, which is classified as a liability at fair value in accordance with the requirements of IAS 32. |
| N. | Reflects the change in fair value of the Warrants based on the fair value as of the Closing Date. |
Adjustments to Unaudited Pro Forma Condensed Consolidated Combined Statements of Profit or Loss
The transaction accounting adjustments included in the unaudited pro forma condensed consolidated combined statements of profit or loss for the year ended December 31, 2024 are as follows:
| AA. | Reflects a net adjustment related to estimated transaction costs: |
| ● | $8.8 million Greenstone transaction costs incurred at Closing and recorded as an expense in relation to the Business Combination. Transaction costs are reflected as if incurred on January 1, 2024, the date the Business Combination occurred for the purposes of the unaudited pro forma condensed consolidated combined statement of operations. |
| ● | $8.9 million reduction of transaction cost expense related to accrued SPAC Transaction Expenses which are not an obligation of Namib Minerals in accordance with the terms of the Business Combination Agreement. |
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| BB. | Reflects the elimination of interest earned on cash and marketable securities held in the Trust Account. |
| CC. | Reflects the elimination of historical expenses related to HCVI’s office space and secretarial and administrative services. Pursuant to the Administrative Support Agreement, the services terminated upon the consummation of the Business Combination. |
| DD. | Reflects the expense recognized of $37.1 million, in accordance with IFRS 2, for the difference between the fair value of Namib Ordinary Shares issued, as compared to the fair value of HCVI’s identifiable net assets at the date of the Business Combination, as described in (J). The fair value of shares issued is based on a market price of $11.40 per share as of the Closing Date. |
| EE. | Reflects the estimated income tax impact related to the pro forma adjustments. The tax impact of the pro forma adjustments was determined based on the jurisdiction in which the adjustment was incurred. The listing charge expense (DD) was not taxed as it is an expense incurred by the Company, a Cayman Islands exempted company for tax purposes. Similarly, transaction costs incurred by Greenstone were not taxed, as Greenstone is also a Cayman Islands exempted company. The tax impact of the pro forma adjustments to income or expense which were incurred by HCVI were determined based on the effective tax rate of HCVI for each period presented. |
| FF. | Reflects the reversal of the change in fair value of the Extension Notes Payable as part of settling the Polar Subscription Agreement I and Polar Subscription Agreement II in cash. |
| 5. | Pro Forma Loss Per Share Information |
The pro forma loss per share information is derived from the earnings per share calculated with the number of shares outstanding at the Closing Date and the issuance of additional shares issued due to the Business Combination, treated as if they were outstanding from January 1, 2024. This treatment aligns with the presentation of the Business Combination as if it occurred at the start of the period, with all related shares considered issued for the full duration.
The unaudited pro forma condensed consolidated combined financial information has been prepared for the year ended December 31, 2024:
| (USD in thousands, except share data) | Year Ended December 31, 2024 | |||
| Numerator: | ||||
| Pro forma net loss | $ | 48,132 | ||
| Denominator: | ||||
| Public Stockholders | 107,469 | |||
| Sponsor, Polar and Permitted Transferees | 4,575,000 | |||
| Other Initial Shareholders | 125,000 | |||
| Company Shareholders | 48,869,960 | |||
| Weighted average common shares outstanding – basic and diluted(1) | 53,677,429 | |||
| Net loss per share attributable to common stockholders – basic and diluted | $ | 0.90 | ||
| (1) | Conversion of Warrants, the issuance of Company Earnout shares, and the issuance of Namib Ordinary Shares under the Equity Incentive Plan may result in dilution after the Closing Date. Potential dilution related to Warrants will be dependent on current period profit or loss and the exercise price relative to the fair value. Potential dilution related to the Company Earnout shares will be dependent on the Company’s ability to meet the specified milestone achievements. |
9