Sekur Private Data Ltd F-1, filed Sep 16, 2022
Sekur Private Data Ltd. (SWISF)
As filed with the Securities and Exchange Commission on September 16, 2022
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM F-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
SEKUR PRIVATE DATA LTD.
(Exact name of Registrant as specified in its charter)
| BRITISH COLUMBIA, CANADA | 4822 | N/A | ||
(State or other jurisdiction of incorporation or organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification Number) |
First
Canadian Place, 100 King Street West, Suite 5600, Toronto, ON, Canada, M5X 1C9
Tel: (416) 644-8690
(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)
NORTHWEST LAW GROUP
Suite 704, 595 Howe Street, Vancouver, BC V6C 2T5
Tel: (604) 687-5792
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
NORTHWEST LAW GROUP Suite 704, 595 Howe Street, Vancouver, BC V6C 2T5 Tel: (604) 687-5792 |
Brett Hanson Emily Humbert Fox Rothschild LLP 222 South Ninth Street, Suite 2000 Minneapolis, MN 55402 Tel: (612) 607-7000 |
As soon as practicable after this Registration Statement is declared effective.
(Approximate date of commencement of proposed sale to the public)
| If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box: | ☐ | |
| If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. | ☐ | |
| If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. | ☐ | |
| If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. | ☐ | |
| Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933. | ||
| 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 7(a)(2)(B) of the Securities Act. | ☐ |
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. We may not sell the securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting any offer to buy these securities in any jurisdiction where such offer or sale is not permitted.
SUBJECT TO COMPLETION DATED SEPTEMBER 16, 2022
PRELIMINARY PROSPECTUS
Sekur Private Data Ltd.
● Units
Each Unit Consisting of
One Common Share and
One Warrant to Purchase One Common Share
We are offering for sale ● units (the “Units”) of Sekur Private Data Ltd., a British Columbia corporation. Each Unit consists of one common share, no par value, which we refer to as the “Common Shares”, and one warrant (the “Warrant”) to purchase one Common Share at an exercise price of USD$● per share, in a firm commitment underwritten public offering at an assumed public offering price of USD$● per Unit. The Units have no stand-alone rights and will not be certified or issued as stand-alone securities. The Common Shares and Warrants are immediately separable and will be issued separately in this offering. Each Warrant offered hereby is immediately exercisable on the date of issuance and will expire five years from the date of issuance.
Our Common Shares are currently trading on the Canadian Securities Exchange (the “CSE”) under the symbol “SKUR”, the OTCQX under the symbol “SWISF,” and the Frankfurt Stock Exchange (the “FRA”) under the symbol “GDT0”. On ●, the last closing price for our Common Shares reported on the OTCQX was USD$● per share.
We have applied to list our Common Shares and Warrants on the Nasdaq Capital Market under the symbols “SKUR” and “SKURW”, respectively. There can be no assurance that we will be successful in listing our Common Shares or Warrants on the Nasdaq Capital Market. We will not consummate this offering unless our Common Shares will be listed on the Nasdaq Capital Market. Prices of our Common Shares as reported on the OTCQX may not be indicative of the prices of our Common Shares if our Common Shares were traded on the Nasdaq Capital Market.
The offering price of the Units will be determined between the underwriters and us at the time of pricing, considering our historical performance and capital structure, prevailing market conditions, and overall assessment of our business, and may be at a discount to the current market price. Therefore, the recent market price used throughout this prospectus may not be indicative of the actual public offering price for our Common Shares and the Warrants.
Except as otherwise indicated, information in this prospectus, other than as set forth in our Financial Statements and the Notes thereto, reflect a 1-for-● reverse split of our Common Shares, which we refer to as the “Reverse Stock Split,” or the “Reverse Split”, as approved by our Board of Directors, to be effective immediately prior to the effective date of this prospectus and the pricing of this offering.
Investing in our securities involves a high degree of risk, including the risk of losing your entire investment. See “Risk Factors” beginning on page 9 to read about factors you should consider before buying our securities.
We are an “emerging growth company” as defined under the federal securities laws and may elect to comply with reduced public company reporting requirements. Please read “Implications of Our Being an Emerging Growth Company” beginning on page 3 of this prospectus for more information.
| Per Unit(1) | Total | |||||||
| Public offering price | USD$ | USD$ | ||||||
| Underwriter’s discounts and commissions(2) | USD$ | USD$ | ||||||
| Proceeds to our company before expenses(3) | USD$ | USD$ |
| (1) | The public offering price and underwriting discount in respect of the Units corresponds to a public offering price per share of USD$● per Common Share and USD$● per Warrant. Each Unit consists of one Common Share and one Warrant to purchase one Common Share. |
| (2) | We have also agreed to issue warrants to purchase ● Common Shares to the representative of the underwriters and to reimburse the representative of the underwriters for certain expenses. See “Underwriting” for additional information regarding total underwriter compensation. |
| (3) | The amount of offering proceeds to us presented in this table does not give effect to any exercise of the: (i) over-allotment option we have granted to the representative of the underwriters as described below and (ii) warrants being issued to the representative of the underwriters in this offering. |
Neither the Securities and Exchange Commission nor any state securities commission nor any other regulatory body has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
We have granted a 45-day option to the representative of the underwriters, exercisable one or more times in whole or in part, to purchase up to an additional ● Common Shares and/or up to an additional ● Warrants at a price from us at the public offering price of USD$● per Common Shares and USD$● per Warrant, respectively, less, in each case, the underwriting discounts payable by us, solely to cover over-allotments, if any.
The underwriters expect to deliver the securities against payment to the investors in this offering on or about ●.
Sole Book-Running Manager
Maxim Group LLC
The date of this Prospectus is ●
TABLE OF CONTENTS
| i |
Neither we nor any of the underwriters have authorized anyone to provide you with any information or to make any representations other than as contained in this prospectus or in any free writing prospectuses we have prepared. Neither we nor the underwriters take responsibility for, and provide no assurance about the reliability of, any information that others may give you. This prospectus is an offer to sell only the securities offered hereby, but only under circumstances and in jurisdictions where it is lawful to do so. The information contained in this prospectus is accurate only as of the date of this prospectus, regardless of the time of delivery of this prospectus or any sale of the securities. Our business, financial condition, results of operations and prospects may have changed since that date.
Unless otherwise indicated, all references in this prospectus to “Sekur,” the “Company,” “we,” “our,” “us” or similar terms refer to Sekur Private Data Ltd. and its subsidiaries.
No action is being taken in any jurisdiction outside the U.S. to permit a public offering of our securities or possession or distribution of this prospectus in any such jurisdiction. Persons who come into possession of this prospectus in jurisdictions outside the U.S. are required to inform themselves about and to observe any restrictions about this offering and the distribution of this prospectus applicable to those jurisdictions.
We obtained statistical data, market data and other industry data and forecasts used in this prospectus from market research, publicly available information and industry publications. While we believe that the statistical data, industry data and forecasts and market research are reliable, we have not independently verified the data.
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PRESENTATION OF FINANCIAL INFORMATION
The financial information contained in this prospectus derives from our audited consolidated financial statements as of December 31, 2020 and 2021. These financial statements and related notes included elsewhere in this prospectus are collectively referred to as our audited consolidated financial statements herein and throughout this prospectus. Our audited consolidated financial statements are prepared in accordance with International Financial Reporting Standards, or IFRS, as issued by the International Accounting Standards Board, or IASB. Our fiscal year ends on December 31 of each year, so all references to a particular fiscal year are to the applicable year ended December 31. Following the completion of this offering, we will be required to file annual reports on Form 20-F with the Securities and Exchange Commission, or the SEC, under United States Securities Exchange Act of 1934, as amended, or the Exchange Act, and although not required under the Exchange Act, we expect to publish unaudited condensed consolidated interim financial statements on a quarterly basis. On ●, we implemented a consolidation, or a reverse stock split, of our issued and outstanding Common Shares on the basis of one new Common Share for ● old Common Shares. The share and per share information in this prospectus, other than in our Financial Statements and the Notes thereto, or where referred to as “Pre-Split”, reflects such consolidation or reverse stock split.
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The following summary is qualified in its entirety by, and should be read in conjunction with, the more detailed information and financial statements included elsewhere in this prospectus. In addition to this summary, we urge you to read the entire prospectus carefully, especially the risks of investing in our securities, discussed under “Risk Factors,” before deciding whether to buy our securities.
Overview
Sekur Private Data Ltd. (the “Company,” “Sekur,” “we,” “us,” or “our”) (formerly GlobeX Data Ltd.) (the “Company”) was incorporated under the Business Corporations Act (British Columbia) on March 1, 2017 and completed its initial public offering (“IPO”) during the year ended December 31, 2019. The Company’s Common Shares and tradeable warrants were listed on the Canadian Securities Exchange effective July 22, 2019 under the symbols “SWIS” and “SWIS.WT”, respectively. On November 5, 2019, the Company’s Common Shares began trading on the OTCQB Venture Market with the trading symbol SWISF. On April 14, 2022, the Company changed its name to Sekur Private Data Ltd. and the Company’s Common Shares and tradable warrants were listed on the Canadian Securities Exchange under the new symbols “SKUR” and “SKUR.WT”, respectively. The Company began trading on the OTCQX as of April 29, 2022 under the trading symbol SWISF.
Sekur Private Data Ltd. is a Cybersecurity and Internet Privacy provider of Swiss hosted solutions for secure communications and secure data management. The Company distributes a suite of encrypted e-mails, secure messaging and secure communications and a suite of cloud-based storage, disaster recovery and document management tools. Sekur Private Data Ltd. sells its solutions through its websites sekur.com and sekursuite.com, and through its approved distributors, and telecommunications companies worldwide. Sekur Private Data Ltd. serves consumers, businesses and governments worldwide.
The Company is the exclusive worldwide (subject to certain limited exceptions) distributor and license holder of a full suite of encrypted emails and secure communication, secure cloud-based storage and document management solutions, primarily Sekur, SekurMail, SekurMessenger and SekurSuite (collectively, the “Products”). The Products, all of which are currently in use by customers, were developed by GlobeX Data S.A., a privately held Swiss based privacy, cyber security and secure communications company (“GDSA”) and licensed to the Company in perpetuity. Alain Ghiai-Chamlou, our President and Chief Executive Officer, is also the majority shareholder of GDSA.
On May 7, 2017, the Company entered into a licensing agreement (the “Global License Agreement”) with GDSA to market/distribute the Products globally except in Switzerland, Liechtenstein, The Principality of Monte Carlo, The Vatican City State, The Grand-Duchy of Luxembourg, the USA and Canada. On March 29, 2018, the Company acquired 100% of the issued and outstanding securities of GlobeX Data Inc. (“GlobeX US”) via a securities purchase agreement whereby Alain Ghiai-Chamlou, the sole shareholder of GlobeX US in the transaction, received 25,000,000 Common Shares of the Company as consideration. GlobeX US has an exclusive license in perpetuity with GDSA to market/distribute the products in the USA and Canada. Since 2017, the Company, through GlobeX US, primarily marketed the Products to end users in North America directly to end users and through some channel partners (“Channel Partners”).
On July 21, 2022, the Company entered into an Addendum (the “Addendum”) to the Global License Agreement with GDSA. This Addendum allows the Company to market/distribute the Products globally, including Switzerland, Lichtenstein, The Principality of Monte Carlo, The Vatican City State, and The Grand-Duchy of Luxembourg. The Company is permitted to market the Products in Switzerland only through online sales, and is not permitted to enter into a physical Reseller relationship in Switzerland. All other countries globally are now open to market by the Company.
Risk Factors Summary
Investing in our securities involves substantial risk. The risks described under the heading “Risk Factors” immediately following this summary may cause us to not realize the full benefits of our strengths or may cause us to be unable to successfully execute all or part of our strategy. Some of the more significant challenges include the following:
| ● | our dependency on maintaining the license with GDSA necessary to provide our solutions; |
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| ● | our history of operating losses; | |
| ● | our material dependence on the adoption of our solutions by both the industrial enterprise and public sector markets; | |
| ● | our participation in a competitive industry; | |
| ● | risks relating to defects that may be found in our products; | |
| ● | our ability to timely report on our financial condition or results of operations; | |
| ● | our ability to manage our growth effectively; | |
| ● | our ability to continue to develop solutions to address user needs effectively; | |
| ● | our ability to create independent brand awareness for our business and our products; | |
| ● | our dependence on the continued services and performance of a concentrated group of senior management and other key personnel; | |
| ● | our ability to compete in a rapidly evolving market; | |
| ● | our ability to sell our solutions into new markets; | |
| ● | our ability to attract, integrate and retain qualified personnel; | |
| ● | risks related to security breaches or disruptions to our IT systems; | |
| ● | risks related to potential future litigation or arbitration; | |
| ● | economic uncertainties or political changes; | |
| ● | failures from suppliers, subcontractors, distributors, resellers or other representatives of the Company to use legal or ethical business practices; | |
| ● | risks associated with natural or man-made disasters; | |
| ● | risks associated with strategic acquisitions and investments; and | |
| ● | risks related to changes in accounting standards. |
Recent Developments in Canadian dollars $
In April 2022, the Company closed a private placement consisting of 2,321,585 units at a price of CAD$0.35 per unit for proceeds of CAD$812,555. Each unit consists of one Common Share and one share purchase warrant. Each warrant entitles the holder to purchase an additional share at a price of CAD$0.70 per share for two years.
In April 2022, the Company changed its name to Sekur Private Data Ltd.
In April 2022, the Company began trading on the OTCQX under the trading symbol SWISF.
In May 2022, the Company issued 150,000 Common Shares at a fair value of CAD$56,250 for marketing services.
During the period ended June 30, 2022, the Company received proceeds of CAD$73,550 from the exercise of 384,000 warrants.
| 2 |
Subsequent to the period ended June 30, 2022, the Company received proceeds of CAD$70,300 from the exercise of 468,668 warrants.
Going Concern
Our continued operation as a going concern is dependent upon our ability to generate positive cash flows and/or obtain additional financing sufficient to fund continuing activities and acquisitions. While we continue to review our operations in order to identify strategies and tactics to increase revenue streams and financing opportunities, there is no assurance that we will be successful in such efforts; if we are not successful, we may be required to significantly reduce or limit operations, marketing expenses, or no longer operate as a going concern. It is also possible that operating and marketing expenses could increase in order to grow the business. If we do not start generating and significantly increase revenues to meet these increased operating expenses and/or obtain financing until our revenues meet these operating expenses, our business, financial condition and operating results could be materially adversely affected. We cannot be sure when or if we will ever achieve profitability and, if we do, we may not be able to sustain or increase that profitability.
Corporate Information
Our principal executive offices and headquarters are located at First Canadian Place, 100 King Street West, Suite 5600, Toronto, ON, M5X 1C9, Canada, and our phone number is +1-416-644-8690. We maintain a corporate website at www.sekurprivatedata.com. The information contained in, or accessible from, our website or any other website does not constitute a part of this prospectus.
Corporate History and Structure
The Company was incorporated under the Business Corporations Act (British Columbia) on March 1, 2017 with the name GlobeX Data Ltd. On April 14, 2022, the Company changed its name to Sekur Private Data Ltd.
The Company is registered with the CSE under the symbol SKUR, commenced trading on OTCQX under the symbol SWISF on April 29, 2022 and trades on the FRA under the symbol GDT0.
The following diagram illustrates our corporate structure as of the date of this prospectus:
Implications of Our Being an “Emerging Growth Company”
As a company with less than USD$1.07 billion in revenue during our last fiscal year, we qualify as an “emerging growth company” as defined in the Jumpstart Our Business Startups Act of 2012, or the JOBS Act. An “emerging growth company” may take advantage of reduced reporting requirements that are otherwise applicable to larger public companies. In particular, as an emerging growth company, we:
| ● | may present only two years of audited financial statements and only two years of related Management’s Discussion and Analysis of Financial Condition and Results of Operations, or “MD&A”; |
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| ● | are not required to provide a detailed narrative disclosure discussing our compensation principles, objectives and elements and analyzing how those elements fit with our principles and objectives, which is commonly referred to as “compensation discussion and analysis”; | |
| ● | are not required to obtain an attestation and report from our auditors on our management’s assessment of our internal control over financial reporting pursuant to the Sarbanes-Oxley Act of 2002; | |
| ● | are not required to obtain a non-binding advisory vote from our shareholders on executive compensation or golden parachute arrangements (commonly referred to as the “say-on-pay,” “say-on frequency” and “say-on-golden-parachute” votes); | |
| ● | are exempt from certain executive compensation disclosure provisions requiring a pay-for-performance graph and chief executive officer pay ratio disclosure; | |
| ● | are eligible to claim longer phase-in periods for the adoption of new or revised financial accounting standards under §107 of the JOBS Act; and | |
| ● | will not be required to conduct an evaluation of our internal control over financial reporting. |
We intend to take advantage of all of these reduced reporting requirements and exemptions, including the longer phase-in periods for the adoption of new or revised financial accounting standards under §107 of the JOBS Act. Our election to use the phase-in periods may make it difficult to compare our financial statements to those of non-emerging growth companies and other emerging growth companies that have opted out of the phase-in periods under §107 of the JOBS Act.
Under the JOBS Act, we may take advantage of the above-described reduced reporting requirements and exemptions until we no longer meet the definition of an emerging growth company. The JOBS Act provides that we would cease to be an “emerging growth company” at the end of the fiscal year in which the fifth anniversary of our initial sale of common equity pursuant to a registration statement declared effective under the Securities Act of 1933, as amended, herein referred to as the Securities Act, occurred, if we have more than USD$1.07 billion in annual revenues, have more than USD$700 million in market value of our Common Shares held by non-affiliates, or issue more than USD$1 billion in principal amount of non-convertible debt over a three-year period.
Foreign Private Issuer Status
We are a foreign private issuer within the meaning of the rules under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). As such, we are exempt from certain provisions applicable to United States domestic public companies. For example:
| ● | we are not required to provide as many Exchange Act reports, or as frequently, as a domestic public company; | |
| ● | for interim reporting, we are permitted to comply solely with our home country requirements, which are less rigorous than the rules that apply to domestic public companies; | |
| ● | we are not required to provide the same level of disclosure on certain issues, such as executive compensation; | |
| ● | we are exempt from provisions of Regulation FD aimed at preventing issuers from making selective disclosures of material information; | |
| ● | we are not required to comply with the sections of the Exchange Act regulating the solicitation of proxies, consents, or authorizations in respect of a security registered under the Exchange Act; and | |
| ● | we are not required to comply with Section 16 of the Exchange Act requiring insiders to file public reports of their share ownership and trading activities and establishing insider liability for profits realized from any “short-swing” trading transaction. |
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| Issuer | Sekur Private Data Ltd. | |
| Securities offered by us | ● Units, each Unit consisting of one Common Share and one warrant to purchase one Common Share. Each warrant will have an exercise price of USD$● per share, is exercisable immediately and will expire five (5) years from the date of issuance. The Units will not be certificated or issued in stand-alone form. The Common Shares and the Warrants comprising the Units are immediately separable upon issuance and will be issued separately in this offering. | |
| Offering Price per Unit | Public offering price of USD$● per Unit | |
| Over-allotment option | We have granted a 45-day option to the representative of the underwriters to purchase up to an additional ● Common Shares and/or up to an additional ● Warrants at a price of USD$● per Common Share and USD$0.01 per Warrant, respectively, less, in each case, the underwriting discounts payable by us, solely to cover over-allotments, if any. | |
| Common Shares outstanding prior to this offering | 116,556,773 (● following the Reverse Split) | |
| Common Shares to be outstanding after this offering | ● shares (or ● shares if the underwriters exercise their option to purchase additional Common Shares in full). | |
| Use of proceeds | We estimate that the net proceeds to us from this offering will be approximately USD$●, or approximately ● if the underwriters exercise their over-allotment option to purchase additional Common Shares and Warrants in full, assuming an offering price of USD$● per Unit after deducting underwriting discounts and commissions and estimated offering expenses payable by us. | |
| We intend to use the net proceeds of this offering primarily for general corporate purposes, including working capital, expanded sales and marketing activities, increased research and development expenditures and funding our growth strategies. See “Use of Proceeds” for additional information. | ||
| Description of the Warrants | The exercise price of the Warrants is USD$● per share. Each Warrant is exercisable for one Common Share, subject to adjustment in the event of stock dividends, stock splits, stock combinations, reclassifications, reorganizations or similar events affecting our Common Shares as described herein. A holder may not exercise any portion of a Warrant to the extent that the holder, together with its affiliates and any other person or entity acting as a group, would own more than 4.99% of the outstanding Common Shares after exercise, as such percentage ownership is determined in accordance with the terms of the Warrants, except that upon notice from the holder to us, the holder may waive such limitation up to a percentage, not in excess of 9.99%. Each Warrant will be exercisable immediately upon issuance and will expire five years after the initial issuance date. This prospectus also relates to the offering of the Common Shares issuable upon exercise of the Warrants. For more information regarding the Warrants, you should carefully read the section titled “Description of Share Capital —Warrants” in this prospectus. | |
| Representative’s Warrant | The registration statement of which this prospectus is a part also registers warrants (the “Representative’s Warrants”) to purchase ● Common Shares (equal to 8.0% of the aggregate number of Common Shares issued in this offering) to be issued to the underwriters, as a portion of the underwriting compensation payable in connection with this offering, as well as the Common Shares issuable upon the exercise of the Representative’s Warrants. The Representative’s Warrants will be exercisable at any time, and from time to time, in whole or in part, during the four and half year period commencing 180 days following the effective date of the registration statement of which this prospectus is a part, at an exercise price of USD$● (110% of the public offering price of the Units). Please see “Underwriting—Representative’s Warrants” for a description of these warrants. |
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| Proposed Nasdaq Capital Market Trading Symbol and Listing | We have applied to list our Common Shares and Warrants on the Nasdaq Capital Market under the symbols “SKUR” and “SKURW” respectively. | |
| Lock-up | We, our directors, executive officers, and shareholders who own 1% or more of our outstanding Common Shares have agreed with the underwriters not to offer for sale, issue, sell, contract to sell, pledge or otherwise dispose of any of our Common Shares or securities convertible into Common Shares for a period of six (6) months commencing on the date of this prospectus. See “Underwriting” for additional information. | |
| Transfer Agent, Registrar and Warrant Agent | National Securities Administrators Ltd. | |
| Risk Factors | See “Risk Factors” for a discussion of risks you should carefully consider before investing in our securities. |
The number of shares of our Common Shares to be outstanding after this offering is based on 116,556,773 (● shares following the Reverse Split), as of ●, 2022 and excludes:
| ● | 16,540,000 shares (● shares following the Reverse Split) of our Common Shares issuable upon the exercise of stock options outstanding under our 2018 Stock Option Plan, with a weighted-average exercise price of CAD$0.53 (CAD$● per share following the Reverse Split); | |
| ● | 17,112,778 Common Shares (● Common Shares following the Reverse Split) reserved for future issuance under our 2018 Stock Option Plan; | |
| ● | 30,404,914 Common Shares (● Common Shares following the Reverse Split) issuable upon the exercise of outstanding warrants with a weighted average exercise price of CAD$● per share (CAD$● per share following the Reverse Split); | |
| ● | ● Common Shares (● Common Shares following the Reverse Split) issuable upon the exercise of outstanding agent’s warrants with a weighted average exercise price of CAD$● per share (CAD$● per share following the Reverse Split); | |
| ● | up to ● Common Shares issuable upon the exercise of the Warrants included in the Units offered hereby at an exercise price of USD$●; and | |
| ● | up to ● Common Shares issuable upon exercise of Representative’s Warrants to be issued to the underwriter in connection with this offering, which have an exercise price of USD$● per share. |
Unless we specifically state otherwise, the information in this prospectus assumes no exercise by the underwriter of the over-allotment option.
On ●, 2022, the Board of Directors approved a reverse stock split of our Common Shares at the ratio of 1-for-● (the “Reverse Stock Split” or “Reverse Split”). The Reverse Stock Split was effectuated on ●. Unless otherwise indicated, all Common Share amounts in this prospectus are reflected on a pre-Reverse Stock Split basis.
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SUMMARY FINANCIAL DATA
The following summary consolidated statements of income for the years ended December 31, 2021 and 2020, and the six month periods ended June 30, 2022 and 2021 and the summary consolidated balance sheet data as of December 31, 2021 and 2020 and June 30, 2022.
Our management believes that the assumptions underlying our financial statements and the above allocations are reasonable. Our financial statements, however, may not necessarily reflect our results of operations, financial position and cash flows as if we had operated as a separate, stand-alone company during the periods presented. You should not view our historical results as an indicator of our future performance.
Selected Consolidated Statement of Income and Comprehensive Income
(In Canadian dollars, except number of shares)
As of ($CAD) | As of ($CAD) | |||||||
| Revenue | 144,811 | 26,756 | ||||||
| Operating expenses (income) | (9,524,672 | ) | (1,354,033 | ) | ||||
| Income (loss) from continuing operations | (9,412,484 | ) | (1,319,495 | ) | ||||
| Net income (loss) | (9,412,484 | ) | (1,319,495 | ) | ||||
| Net loss per share pre-Reverse Stock Split | (0.11 | ) | (0.02 | ) | ||||
| Net loss per share pro-forma post-Reverse Stock Split | ||||||||
| Capital; including the formula used for any adjustments to dividends declared | ||||||||
| Weighted Average number of shares outstanding pre-Reverse Stock Split (1) | 87,769,397 | 54,546,447 | ||||||
| Weighted Average number of shares outstanding pro-forma post-Reverse Stock Split (1) | ||||||||
As of (unaudited) ($CAD) | As of (unaudited) ($CAD) | |||||||
| Revenue | 201,400 | 18,841 | ||||||
| Operating expenses (income) | (4,127,781 | ) | (2,264,079 | ) | ||||
| Income (loss) from continuing operations | (3,936,056 | ) | (2,263,626 | ) | ||||
| Net income (loss) | (3,936,056 | ) | (2,263,626 | ) | ||||
| Net loss per share pre-Reverse Stock Split | (0.03 | ) | (0.03 | ) | ||||
| Net loss per share pro-forma post-Reverse Stock Split | ||||||||
| Capital; including the formula used for any adjustments to dividends declared | ||||||||
| Weighted Average number of shares outstanding pre-Reverse Stock Split (1) | 115,016,170 | 74,983,740 | ||||||
| Weighted Average number of shares outstanding pro-forma post-Reverse Stock Split (1) | ||||||||
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The following table presents our summary consolidated balance sheet data as of June 30, 2022, December 31, 2021 and 2020.
(In Canadian dollars, except number of shares)
As of (unaudited) ($CAD) | As of December 31, 2021 ($CAD) | As of December 31, ($CAD) | ||||||||||
| Cash | 6,386,716 | 8,812,477 | 494,927 | |||||||||
| Current Assets | 6,688,998 | 9,636,326 | 641,247 | |||||||||
| Intangible Assets | 2,552,573 | 2,552,573 | 2,552,573 | |||||||||
| Other Assets | 618,634 | 666,900 | - | |||||||||
| Total Assets | 9,860,205 | 12,855,799 | 3,193,820 | |||||||||
| Working Capital | 6,600,177 | 9,505,862 | 554,456 | |||||||||
| Current Liabilities (excluding current portion of long-term debt) | 88,821 | 130,464 | 86,791 | |||||||||
| Long term debt/convertible debt | - | - | - | |||||||||
| Total liabilities | 88,821 | 130,464 | 86,791 | |||||||||
| Shareholders’ Equity | 9,771,384 | 12,725,335 | 3,107,029 | |||||||||
| Share Capital(2) Common Shares pre-Reverse Stock Split | 21,931,542 | 20,982,323 | 6,161,300 | |||||||||
| Reserves(3) | 5,221,699 | 5,228,563 | 996,016 | |||||||||
| Accumulated other comprehensive income (losses) | - | - | - | |||||||||
| Deficit | (17,421,607 | ) | (13,485,551 | ) | (4,073,067 | ) | ||||||
| (1) | Represents Company weighted average shares outstanding as of June 30, 2022 of 115,016,170 Common Shares (● Common Shares assuming a 1 for ● reverse stock split) for the purposes of this prospectus, weighted average shares outstanding as of December 31, 2021 of 87,769,397 Common Shares (● Common Shares assuming a 1 for ● reverse stock split) for the purposes of this prospectus and weighted average shares outstanding as of December 31, 2020 of 54,546,447 pre-Reverse Stock Split (● pro-forma post-Reverse Stock Split). |
| (2) | Represents ● Common Shares of the Company outstanding as of June 30, 2022 on a 1 for ● reverse stock split for the purposes of this prospectus and as of December 31, 2021 on a 1 for ● reverse stock split for the purposes of this prospectus. |
| (3) | The purpose of our Reserve account is to track the valuation of equity instruments issued other than Common Shares (i.e. the value of stock options, warrants, and equity components of convertible debt). This value of these equity instruments is recorded in Reserves until the instrument is exercised into Common Shares, at which time the original value of the instrument is re-classified into share capital. This presentation is common under IFRS, and similar to the usage of Additional Paid-In-Capital in the United States. Because the Company’s shares do not have a par value, all valuations of equity instruments other than Common Shares get booked into the Reserve account. |
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An investment in our securities involves a high degree of risk. Before deciding whether to invest in our securities, you should consider carefully the risks described below, together with all of the other information set forth in this prospectus, including the section titled “Management’s Discussion and Analysis of Financial Condition and Results of Operation” and our consolidated financial statements and related notes. If any of these risks actually occurs, our business, financial condition, results of operations or cash flow could be materially and adversely affected, which could cause the trading price of our securities to decline, resulting in a loss of all or part of your investment.
Risks Related to Our Business
Our business is dependent on licensed technology, and failure to maintain our license could result in our business failing.
On May 7, 2017, we entered into a licensing agreement (the “Global License Agreement”) with GDSA to market/distribute the Products globally except in the U.S. and Canada. Through our acquisition of GlobeX US, we acquired an exclusive license to the U.S. and Canada. The term of the license is in perpetuity. However, GDSA has the right to terminate the Global License Agreement if we are in material breach of the Global License Agreement so long as GDSA provides written notice. Material breaches would include our failure to make payments to GDSA or bankruptcy. We are dependent on GDSA to develop and maintain the Products. As a result, the Company has limitations on its ability to implement any changes to the Products. If GDSA were to terminate the Global Licensing Agreement, fundamentally change the Products or halt development, our business would be significantly negatively affected. A failure or disruption in these services could materially and adversely affect our ability to manage our business effectively.
We have a history of operating losses and we may never achieve or maintain profitability.
We have a limited operating history and a history of losses from operations. As of December 31, 2021, we had an accumulated deficit of CAD$13,485,551. Even assuming the sale of the Units in this offering, without additional capital our existing cash and cash equivalents will be insufficient to fully fund our business plan. Our ability to achieve profitability will depend on whether we can obtain additional capital when we need it, complete the development of our technology, obtain required regulatory approvals and continue to develop arrangements with channel partners. There can be no assurance that we will ever achieve profitability.
We are materially dependent on the adoption of our solutions by both the industrial enterprise and public sector markets, and if end customers in those markets do not purchase our solutions, our revenues will be adversely impacted, and we may not be able to expand into other markets.
Our revenues have been primarily in the retail market, and we are materially dependent on the adoption of our solutions by both the industrial enterprise and public sector markets. End customers in the public sector market may remain, for reasons outside our control, tied to competitive alternatives to our products. Sales of our products to these buyers may also be delayed or limited by these competitive conditions. If our products are not widely accepted by buyers in those markets, we may not be able to expand sales of our products into new markets, and our business, results of operations and financial condition may be adversely impacted.
We participate in a competitive industry, which may become more competitive. Competitors with greater resources may be able to respond more quickly and cost-effectively than we can to new or emerging technologies and changes in customer requirements.
We face significant competition in developing and selling our products. Some of our competitors are:
Tutanota, Runbox, Posteo, ProtonMail, Mailfence, Hushmail and Countermail for Email solutions. For Messenger solutions, some of our competitors are Threema, WhatsApp, Telegram, and Signal.
We cannot assure we will be able to compete successfully against current or future competitors. Increased competition in mobile computing platforms, data capture products, or related accessories and software developments may result in price reductions, lower gross profit margins, and loss of market share, and could require increased spending on research and development, sales and marketing, and customer support. Some competitors may make strategic acquisitions or establish cooperative relationships with suppliers or companies that produce complementary products, which may create additional pressures on our competitive position in the marketplace.
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Most of our competitors have longer operating histories, greater name recognition, larger customer bases and significantly greater financial, technical, sales, marketing and other resources and experience than we do. Many of our competitors may also have existing relationships with the channel partners who we use to sell our products, or with our potential customers. Our competitors may also be able to more quickly and cost-effectively respond to new or emerging technologies and changes in customer requirements. If any of our larger competitors were to commit greater technical, sales, marketing and other resources to our markets, our ability to compete would be adversely impacted. If we are unable to successfully compete with our competitors, our sales would suffer and as a result our financial condition will be adversely impacted.
Defects in our products could reduce demand for our products and result in a loss of sales, delay in market acceptance and injury to our reputation, which would adversely impact our business.
Our software may contain undetected errors, defects or bugs. Although we have not suffered significant harm from any errors, defects or bugs to date, we may discover significant errors, defects, or bugs in the future that we may not be able to correct or correct in a timely manner. It is possible that errors, defects or bugs will be found in our existing or future software with the potential for delays in, or loss of market acceptance of, our products and services, diversion of our resources, injury to our reputation, increased service and warranty expenses, and payment of damages.
Further, errors, defects or bugs in our solutions could be exploited by hackers or could otherwise result in an actual or perceived breach of our information systems. Alleviating any of these problems could require significant expense and could cause interruptions, delays or cessation of our product licensing, which would reduce demand for our products and result in a loss of sales, delay in market acceptance and injure our reputation and could adversely impact our business, results of operations and financial condition.
Our financial controls and procedures may not be sufficient to accurately or timely report our financial condition or results of operations, which may adversely affect investor confidence in us and, as a result, the value of our securities.
In connection with the audit of our consolidated financial statements for the years ended December 31, 2021 and 2020, our independent registered public accountants did not identify any material weaknesses in our internal control over financial reporting. A “material weakness” is a deficiency, or a combination of deficiencies, in internal control over financial reporting such that there is a reasonable possibility that a material misstatement of our annual or interim financial statements will not be prevented or detected on a timely basis.
However, we cannot be certain that material weaknesses and control deficiencies will not be discovered in the future. If material weaknesses or control deficiencies occur in the future, we may be unable to report our financial results accurately on a timely basis or help prevent fraud, which could cause our reported financial results to be materially misstated and result in the loss of investor confidence or delisting and cause the market price of our Common Shares to decline.
When
we become listed on Nasdaq, we will be required to furnish a report by management on, among other things, the effectiveness of our internal
control over financial reporting for the first fiscal year beginning after the effective date of this offering. Whether or not our management
concludes that our internal control over financial reporting is effective, our independent registered public accounting firm may issue
a report that is qualified if it is not satisfied with our controls or the level at which our controls are documented, designed, operated
or reviewed. However, our independent registered public accounting firm will not be required to attest formally to the effectiveness
of our internal control over financial reporting pursuant to Section 404 of the Sarbanes-Oxley Act until the later of the year following
our first annual report required to be filed with the SEC or the date we are no longer an “emerging growth company” as defined
in the JOBS Act. Accordingly, you will not be able to depend on any attestation concerning our internal control over financial reporting
from our independent registered public accountants for the foreseeable future.
If our business does not grow as we expect, or if we fail to manage our growth effectively, our operating results and business would suffer.
Our ability to successfully grow our business depends on a number of factors including our ability to:
| ● | accelerate the adoption of our solutions by new end customers; |
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| ● | expand into new vertical markets; | |
| ● | develop and deliver new products and services; | |
| ● | increase awareness of the benefits that our solutions offer; and | |
| ● | expand our domestic and international footprint. |
As usage of our solutions grows, we will need to continue to make investments to develop and implement new or updated solutions, software, technologies, security features and infrastructure operations. In addition, we will need to appropriately scale our internal business systems and our services organization, including the suppliers of our products and customer support services, to serve our growing customer base. Any failure of, or delay in, these efforts could impair the performance of our solutions and reduce customer satisfaction.
Further, our growth could increase quickly and place a strain on our managerial, operational, financial and other resources, and our future operating results depend to a large extent on our ability to successfully manage our anticipated expansion and growth. To manage our growth successfully, we will need to continue to invest in sales and marketing, research and development, and general and administrative functions and other areas. We are likely to recognize the costs associated with these investments earlier than receiving some of the anticipated benefits, and the return on these investments may be lower, or may develop more slowly, than we expect, which could adversely impact our operating results.
If we are unable to manage our growth effectively, we may not be able to take advantage of market opportunities or develop new solutions or upgrades to our existing solutions, satisfy customer requirements, maintain the quality and security of our solutions or execute on our business plan, any of which could harm our business, operating results and financial condition.
We may not be able to continue to develop solutions to address user needs effectively in an industry characterized by ongoing change and rapid technological advances.
To be successful, we must adapt to rapidly changing technological and application needs by continually improving our products, as well as introducing new products and services, to address user demands.
Our industry is characterized by:
| ● | evolving industry standards; | |
| ● | frequent new product and service introductions; | |
| ● | increasing demand for customized product and software solutions; | |
| ● | rapid competitive developments; | |
| ● | changing customer demands; and | |
| ● | evolving distribution channels. |
Future success will depend on our ability to effectively and economically adapt in this evolving environment. We could incur substantial costs if we must modify our business to adapt to these changes, and may even be unable to adapt to these changes.
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Our future success is dependent on our ability to create independent brand awareness for our company and products with end customers, and our inability to achieve such brand awareness could limit our prospects.
To increase end-customer brand awareness, we intend to develop sales tools for key verticals within our target markets, increase usage of social media and expand product training efforts, among other things. As a result, we expect our sales and marketing expenses to increase in the future, primarily from increased sales personnel expenses, which will require us to cost-efficiently ramp up our sales and marketing capabilities and effectively target end customers. Our failure to establish stand-alone brand awareness with end customers of our products will leave us vulnerable to the marketing and selling success of others, including our channel partners, and these developments could have an adverse impact on our prospects. If we are unable to significantly increase the awareness of our brand and solutions with end customers in a cost-efficient manner, we will remain significantly dependent on our channel partners for sales of our products, and our business, financial condition and results of operations could be adversely impacted.
We are dependent on the continued services and performance of a concentrated group of senior management and other key personnel, the loss of any of whom could adversely impact our business.
Our future success depends in large part on the continued contributions of a concentrated group of senior management and other key personnel. In particular, the leadership of key management personnel is critical to the successful management of our company, the development of our solutions and our strategic direction. We also depend on the contributions of key technical personnel. Our senior management and key personnel are all employed on an at-will basis, which means that they could terminate their employment with us at any time, for any reason and without notice. The loss of any of our key personnel could significantly delay or prevent the achievement of our development and strategic objectives and harm our business.
We compete in a rapidly evolving market, and the failure to respond quickly and effectively to changing market requirements could cause our business and operating results to decline.
The mobile data market is characterized by rapidly changing technology, changing customer needs, evolving industry standards and frequent introductions of new products and services. As new web and mobile application standards are introduced and evolve, we may be required to modify our products to make them compatible with these new standards. We may not be successful in modifying our current products or introducing new ones in a timely or appropriately responsive manner, or at all. If we fail to address these changes successfully, our business and operating results could be significantly harmed.
If we are unable to sell our solutions into new markets, our revenues may not grow.
Any new market into which we attempt to sell our solutions may not be receptive. Our ability to penetrate new markets depends on the quality of our solutions, the continued adoption of our public safety solution by first responders, the perceived value of our solutions as a risk management tool and our ability to design our solutions to meet the demands of our customers. If the markets for our solutions do not develop as we expect, our revenues may not grow.
Our ability to successfully face these challenges depends on several factors, including increasing the awareness of our solutions and their benefits, the effectiveness of our marketing programs, the costs of our solutions, our ability to attract, retain and effectively train sales and marketing personnel, and our ability to develop relationships with wireless carriers and other partners. If we are unsuccessful in developing and marketing our solutions into new markets, new markets for our solutions might not develop or might develop more slowly than we expect, either of which would harm our revenues and growth prospects.
If we are unable to attract, integrate and retain additional qualified personnel, including top technical talent, our business could be adversely impacted.
Our future success depends in part on our ability to identify, attract, integrate and retain highly skilled technical, managerial, sales and other personnel. We face intense competition for qualified individuals from numerous other companies, including other software and technology companies, many of whom have greater financial and other resources than we do. Some of these characteristics may be more appealing to high-quality candidates than those we have to offer. In addition, new hires often require significant training and, in many cases, take significant time before they achieve full productivity. We may incur significant costs to attract and retain qualified personnel, including significant expenditures related to salaries and benefits and compensation expenses related to equity awards, and we may lose new employees to our competitors or other companies before we realize the benefit of our investment in recruiting and training them. Moreover, new employees may not be or become as productive as we expect, as we may face challenges in adequately or appropriately integrating them into our workforce and culture. If we are unable to attract, integrate and retain suitably qualified individuals who are capable of meeting our growing technical, operational and managerial requirements on a timely basis or at all, our business will be adversely impacted.
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If we are unable to appropriately incentivize and retain our employees through equity compensation, or if we need to increase our compensation expenses in order to appropriately incentivize and retain our employees, our business, operating results and financial condition would be adversely impacted.
A security breach or other significant disruption of our IT systems or those of our partners, suppliers or manufacturers, caused by cyberattacks or other means, could have a negative impact on our operations, sales, and operating results.
All IT systems are potentially vulnerable to damage, unauthorized access or interruption from a variety of sources, including but not limited to, cyberattacks, cyber intrusions, computer viruses, security breaches, energy blackouts, natural disasters, terrorism, sabotage, war, insider trading and telecommunication failures. A cyberattack or other significant disruption involving our IT systems or those of our outsource partners, suppliers or manufacturers could result in the unauthorized release of proprietary, confidential or sensitive information of ours or our users or result in virus and malware installation on our devices. Such unauthorized access to, or release of, this information or other security breaches could: (i) allow others to unfairly compete with us, (ii) compromise safety or security, (iii) subject us to claims for breach of contract, tort, and other civil claims, and (iv) damage our reputation. In particular, because we provide cybersecurity and internet privacy solutions, any unauthorized access to our information or other security breaches could cause customers or potential customers to lose confidence in our ability to securely provides those services. Any or all of the foregoing could have a negative impact on our business, financial condition and results of operations. We have not suffered any security breach since inception.
The unfavorable outcome of any future litigation, arbitration or administrative action could have a significant adverse impact on our financial condition or results of operations.
From time to time we may be a party to litigation, arbitration, or administrative actions. Our financial results and reputation could be negatively impacted by unfavorable outcomes to any future litigation or administrative actions, including those related to the Foreign Corrupt Practices Act, the U.K. Bribery Act, or other anti-corruption laws. There can be no assurances as to the favorable outcome of any litigation or administrative proceedings. In addition, it can be very costly to defend litigation or administrative proceedings and these costs could negatively impact our financial results.
Economic uncertainties or downturns, or political changes, could limit the availability of funds available to our customers and potential customers, which could significantly adversely impact our business.
Current or future economic uncertainties or downturns could adversely impact our business and operating results. Negative conditions in the general economy both in the United States and abroad, including conditions resulting from changes in gross domestic product growth, financial and credit market fluctuations, political deadlock, natural catastrophes, warfare and terrorist attacks in North America, Europe, the Asia Pacific region or elsewhere, could cause a decrease in funds available to our customers and potential customers and negatively affect the growth rate of our business.
These economic conditions may make it extremely difficult for our customers and us to forecast and plan future budgetary decisions or business activities accurately, and they could cause our customers to re-evaluate their decisions to purchase our solutions, which could delay and lengthen our sales cycles or result in cancellations of planned purchases. Furthermore, during challenging economic times or as a result of political changes, our customers may tighten their budgets and face constraints in gaining timely access to sufficient funding or other credit, which could result in an impairment of their ability to make timely payments to us. In turn, we may be required to increase our allowance for doubtful accounts, which would adversely impact our financial results.
We cannot predict the timing, strength or duration of any economic slowdown, instability or recovery, generally or within any particular industry, or the impact of political changes. If the economic conditions of the general economy or industries in which we operate worsen from present levels, or if recent political changes result in less funding being available to purchase our solutions, our business, operating results and financial condition could be adversely impacted.
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Failure of our suppliers, subcontractors, distributors, resellers, and representatives to use acceptable legal or ethical business practices, or to fail for any other reason, could negatively impact our business.
We do not control the labor and other business practices of our suppliers, subcontractors, distributors, resellers and third-party sales representatives, or TPSRs, and cannot provide assurance that they will operate in compliance with applicable rules, and regulations regarding working conditions, employment practices, environmental compliance, anti-corruption, and trademark a copyright and patent licensing. If one of our suppliers, subcontractors, distributors, resellers, or TPSRs violates labor or other laws or implements labor or other business practices that are regarded as unethical, the shipment of finished products to us could be interrupted, orders could be canceled, relationships could be terminated, and our reputation could be damaged. If one of our suppliers or subcontractors fails to procure the necessary license rights to trademarks, copyrights or patents, legal action could be taken against us that could impact the saleability of our products and expose us to financial obligations to a third party. Any of these events could have a negative impact on our sales and results of operations.
Moreover, any failure of our suppliers, subcontractors, distributors, resellers and TPSRs, for any reason, including bankruptcy or other business disruption, could disrupt our supply or distribution efforts and could have a negative impact on our sales and results of operations.
Natural or man-made disasters and other similar events may significantly disrupt our business, and negatively impact our operating results and financial condition.
Any of our facilities may be harmed or rendered inoperable by natural or man-made disasters, including earthquakes, tornadoes, hurricanes, wildfires, floods, nuclear disasters, acts of terrorism or other criminal activities, infectious disease outbreaks, and power outages, which may render it difficult or impossible for us to operate our business for some period of time. Any disruptions in our operations could negatively impact our business and operating results, and harm our reputation. In addition, while we currently carry business insurance that we believe is appropriate for our business and industry, we may not always carry business insurance or may not carry sufficient business insurance to compensate for losses that may occur. Any such losses or damages could have a significant adverse impact on our business, operating results and financial condition. In addition, the facilities of significant vendors, in particular our Swiss data center, may be harmed or rendered inoperable by such natural or man-made disasters, which may cause disruptions, difficulties or significant adverse impact on our business.
We are exposed to risks associated with strategic acquisitions and investments.
We may consider strategic acquisitions of companies with complementary technologies or intellectual property in the future. Acquisitions hold special challenges in terms of successful integration of technologies, products, services and employees. We may not realize the anticipated benefits of these acquisitions or the benefits of any other acquisitions we have completed or may complete in the future, and we may not be able to incorporate any acquired services, products or technologies with our existing operations, or integrate personnel from the acquired businesses, in which case our business could be harmed.
Acquisitions and other strategic decisions involve numerous risks, including:
| ● | problems integrating and divesting the operations, technologies, personnel, services or products over geographically disparate locations; | |
| ● | unanticipated costs, taxes, litigation and other contingent liabilities; | |
| ● | continued liability for discontinued businesses and pre-closing activities of divested businesses or certain post-closing liabilities which we may agree to assume as part of the transaction in which a particular business is divested; | |
| ● | adverse impacts on existing business relationships with suppliers and customers; | |
| ● | cannibalization of revenues as customers may seek multi-product discounts; | |
| ● | risks associated with entering into markets in which we have no, or limited, prior experience; | |
| ● | incurrence of significant restructuring charges if acquired products or technologies are unsuccessful; |
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| ● | significant diversion of management’s attention from our core business and diversion of key employees’ time and resources; | |
| ● | licensing, indemnity or other conflicts between existing businesses and acquired businesses; | |
| ● | inability to retain key customers, distributors, suppliers, vendors and other business relations of the acquired business; and | |
| ● | potential loss of our key employees or the key employees of an acquired organization or as a result of discontinued businesses. |
Financing for future acquisitions may not be available on favorable terms, or at all. If we identify an appropriate acquisition candidate for any of our businesses, we may not be able to negotiate the terms of the acquisition successfully, finance the acquisition or integrate the acquired business, products, service offerings, technologies or employees into our existing business and operations. Future acquisitions and divestitures may not be well-received by the investment community, which may cause the value of our stock to fall. We cannot ensure that we will be able to identify or complete any acquisition, divestiture or discontinued business in the future. Further, the terms of our indebtedness constrain our ability to make and finance additional acquisitions or divestitures.
If we acquire businesses, new products, service offerings or technologies in the future, we may incur significant acquisition-related costs. In addition, we may be required to amortize significant amounts of finite-lived intangible assets and we may record significant amounts of goodwill or indefinite-lived intangible assets that would be subject to testing for impairment. We have in the past and may in the future be required to write off all or part of the intangible assets or goodwill associated with these investments that could harm our operating results. If we consummate one or more significant future acquisitions in which the consideration consists of stock or other securities, our existing stockholders’ ownership could be significantly diluted. If we were to proceed with one or more significant future acquisitions in which the consideration included cash, we could be required to use a substantial portion of our cash and investments. Acquisitions could also cause operating margins to fall depending on the businesses acquired.
Our strategic investments may involve joint development, joint marketing, or entry into new business ventures, or new technology licensing. Any joint development efforts may not result in the successful introduction of any new products or services by us or a third party, and any joint marketing efforts may not result in increased demand for our products or services. Further, any current or future strategic acquisitions and investments by us may not allow us to enter and compete effectively in new markets or enhance our business in our existing markets and we may have to impair the carrying amount of our investments.
We could be adversely impacted by changes in accounting standards and subjective assumptions, estimates and judgments by management related to complex accounting matters.
Generally accepted accounting principles and related accounting pronouncements, implementation guidelines, and interpretations with regard to a wide range of matters that are relevant to our businesses, including, but not limited to, revenue recognition, asset impairment, inventories, customer rebates and other customer consideration, tax matters, and litigation and other contingent liabilities are highly complex and involve many subjective assumptions, estimates and judgments. Changes in these rules or their interpretation or changes in underlying assumptions, estimates or judgments could significantly change our reported or expected financial performance or financial condition. New accounting guidance may also require systems and other changes that could increase our operating costs and/or change our financial statements. For example, implementing future accounting guidance related to revenue, accounting for leases and other areas could require us to make significant changes to our accounting systems, impact existing debt agreements and result in adverse changes to our financial statements.
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Risks Related to Government Regulation
We are subject to anti-corruption, anti-bribery, anti-money laundering, economic sanctions, export control, and similar laws. Non-compliance with such laws can subject us to criminal or civil liability and harm our business, revenues, financial condition and results of operations.
We are subject to the U.S. Foreign Corrupt Practices Act of 1977, as amended, the U.S. domestic bribery statute contained in 18 U.S.C. § 201, the U.S. Travel Act, and other anti-bribery and anti-money laundering laws in the countries in which we conduct activities. Anti-corruption and anti-bribery laws have been enforced aggressively in recent years and are interpreted broadly to generally prohibit companies and their employees and third-party intermediaries from authorizing, offering, or providing, directly or indirectly, improper payments or benefits to recipients in the public or private sector. As we increase our international presence, we may engage with distributors and third-party intermediaries to market our solutions and to obtain necessary permits, licenses, and other regulatory approvals. In addition, we or our third-party intermediaries may have direct or indirect interactions with officials and employees of government agencies or state-owned or affiliated entities. We can be held liable for the corrupt or other illegal activities of these third-party intermediaries, our employees, representatives, contractors, partners and agents, even if we do not explicitly authorize such activities.
The United States has imposed economic sanctions that affect transactions with designated foreign countries, nationals and others. In particular, the United States prohibits U.S. persons from engaging with individuals and entities identified as “Specially Designated Nationals,” such as terrorists and narcotics traffickers. These prohibitions are administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control, or OFAC. OFAC rules prohibit U.S. persons from engaging in, or facilitating a foreign person’s engagement in, transactions with or relating to the prohibited individual, entity or country, and require the blocking of assets in which the individual, entity or country has an interest. Blocked assets (e.g., property or bank deposits) cannot be paid out, withdrawn, set off or transferred in any manner without a license from OFAC. Other countries in which we operate, including Canada also maintain economic and financial sanctions regimes.
We cannot assure you that our employees and agents will not take actions in violation of our policies and applicable law, for which we may be ultimately held responsible. As we increase our international presence, our risks under these laws, rules, and regulations may increase. Further, any change in the applicability or enforcement of these laws, rules, and regulations could adversely impact our business operations and financial results.
Detecting, investigating and resolving actual or alleged violations can require a significant diversion of time, resources, and attention from senior management. In addition, noncompliance with anti-corruption, anti-bribery, anti-money laundering, or economic sanctions laws, rules, and regulations could subject us to whistleblower complaints, investigations, sanctions, settlements, prosecution, other enforcement actions, disgorgement of profits, significant fines, damages, other civil and criminal penalties or injunctions, suspension and/or debarment from contracting with certain persons, the loss of export privileges, reputational harm, adverse media coverage, and other collateral consequences. If any subpoenas or investigations are launched, or governmental or other sanctions are imposed, or if we do not prevail in any possible civil or criminal litigation, our business, revenues, financial condition, and results of operations would be significantly harmed. In addition, responding to any action will likely result in a significant diversion of management’s attention and resources and significant defense costs and other professional fees. Enforcement actions and sanctions could further harm our business, financial condition and results of operations.
We are subject to a wide range of privacy and data security laws, regulations and other legal obligations.
Personal privacy and information security are significant issues in the United States and the other jurisdictions in which we operate or make our products and applications available. The legislative and regulatory framework for privacy and security issues worldwide is rapidly evolving and is likely to remain uncertain for the foreseeable future. Our handling of data is subject to a variety of laws and regulations, including regulation by various government agencies, and various state, local and foreign agencies.
We may collect personally identifiable information, or PII, when a user registers for an account login, and when a user uses the Products. We use this information to provide services to our customers and to support, expand and improve our business. We may also receive PII from our resellers and other business partners. When a user registers with us, we ask for their contact information (such as their name, street address and email address), as well as certain information pertaining to their business.
We use the information collected to fulfill a user’s requests for certain products and services offered by the Company. We may also send service announcements, newsletters, and periodic notices about specials, new products and services and products and services offered by the Company and its subsidiary.
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The Company does not offer services or sell products to children. The Company does not request or knowingly collect personally identifiable contact information from anyone under the age of 13.
The Company sends PII about a user to other companies or people when it is necessary to protect the rights, property, or safety of the Company, our users, or others, which may include the exchange of information with other organizations for fraud protection and/or risk reduction.
The Company stores its data in data centers in Switzerland and abides by Swiss Federal Data Protection Act (“FADP”). The Swiss FADP is the data privacy law of Switzerland which regulates the processing of personal data from individuals inside Switzerland. While the FADP provides broad protections to personal data, on September 25, 2020, the Swiss federal Parliament enacted a revised version of the FADP, which is anticipated to become effective in 2022 or the beginning of 2023. The new version of the FADP is designed to align Swiss data protection law with the European General Data Protection Regulation 2016/679, commonly referred to as GDPR. If Switzerland were to repeal the FADP or amend the FADP in a manner that no longer provides sufficient protection, our business model would be materially affected and we may not be able to provide sufficient protection for our customers’ data.
Many foreign countries and governmental bodies, including Canada, the European Union and other relevant jurisdictions, have laws and regulations concerning the collection and use of PII obtained from their residents or by businesses operating within their jurisdiction. These laws and regulations often are more restrictive than those in the United States. Laws and regulations in these jurisdictions apply broadly to the collection, use, storage, disclosure and security of data that identifies or may be used to identify or locate an individual, such as names, email addresses and, in some jurisdictions, Internet Protocol, or IP, addresses. Within the European Union, legislators have adopted the GDPR effective May 2018 which may impose additional obligations and risk upon our business and which may increase substantially the penalties to which we could be subject in the event of any non-compliance. We may incur substantial expense in complying with the obligations imposed by the governments of the foreign jurisdictions in which we do business or seek to do business and we may be required to make significant changes in our business operations, all of which may adversely impact our revenues and our business overall.
Although we are working to comply with those federal, state, and foreign laws and regulations, industry standards, contractual obligations and other legal obligations that apply to us, those laws, regulations, standards and obligations are evolving and may be modified, interpreted and applied in an inconsistent manner from one jurisdiction to another, and may conflict with one another, other requirements or legal obligations, our practices or the features of our products or applications. Any failure or perceived failure by us to comply with federal, state or foreign laws or regulations, industry standards, contractual obligations or other legal obligations, or any actual or suspected security incident, whether or not resulting in unauthorized access to, or acquisition, release or transfer of PII or other data, may result in governmental enforcement actions and prosecutions, private litigation, fines and penalties or adverse publicity and could cause our customers to lose trust in us, which could have an adverse impact on our reputation and business. Any inability to adequately address privacy and security concerns, even if unfounded, or comply with applicable laws, regulations, policies, industry standards, contractual obligations, or other legal obligations could result in additional cost and liability to us, damage our reputation, inhibit sales and adversely impact our business.
We also expect that there will continue to be new proposed laws, regulations and industry standards concerning privacy, data protection and information security in the United States, the European Union and other jurisdictions, and we cannot yet determine the impact such future laws, regulations and standards may have on our business. New laws, amendments to or re-interpretations of existing laws and regulations, industry standards, contractual obligations and other obligations may require us to incur additional costs and restrict our business operations. Such laws and regulations may require companies to implement privacy and security policies, permit users to access, correct and delete personal information stored or maintained by such companies, inform individuals of security breaches that affect their personal information, and, in some cases, obtain individuals’ consent to use PII for certain purposes. In addition, a foreign government could require that any PII collected in a country not be disseminated outside of that country, and we are not currently equipped to comply with such a requirement.
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Risks Related to Our Intellectual Property
If we are unable to successfully protect our intellectual property, our competitive position may be harmed.
The steps we take to protect our intellectual property may be inadequate, and it is possible that some or all of our confidentiality agreements will not be honored and certain contractual provisions may not be enforceable. Existing trade secret, trademark and copyright laws offer only limited protection. Unauthorized parties may attempt to copy aspects of our products or obtain and use information which we regard as proprietary. Policing unauthorized use of our products is difficult, time consuming and costly, particularly in foreign countries where the laws may not protect our proprietary rights as fully as in the United States. We cannot assure you that our means of protecting our proprietary rights will be adequate or that our competitors will not independently develop similar technology, the effect of either of which would harm our competitive position in the market. Furthermore, disputes can arise with our strategic partners, customers or others concerning the ownership of intellectual property.
Others may claim that we infringe on their intellectual property rights, which may result in costly and time-consuming litigation and could delay or otherwise impair the development and commercialization of our products.
Third parties in the future may assert, intellectual property infringement claims against us and against our channel partners, end customers and suppliers. Claims for alleged infringement and any resulting lawsuit, if successful, could subject us to significant liability for damages and invalidation of our intellectual property rights. Defending any such claims, with or without merit, including pursuant to indemnity obligations, could be time consuming, expensive, cause product shipment delays or require us to enter into a royalty or licensing agreement, any of which could delay the development and commercialization of our products or reduce our margins. If we are unable to obtain a required license, our ability to sell or use certain products may be impaired. In addition, if we fail to obtain a license, or if the terms of the license are burdensome to us, our operations could be significantly harmed.
Our inability to obtain and maintain any third-party license required to develop new products and product enhancements could seriously harm our business, financial condition and results of operations.
From time to time, we are required to license technology from third parties to develop new products or product enhancements. Third-party licenses may not be available to us on commercially reasonable terms, or at all. If we fail to renew any intellectual property license agreements on commercially reasonable terms, or any such license agreements otherwise expire or terminate, we may not be able to use the patents and technologies of these third parties in our products, which are critical to our success. We cannot assure you that we will be able to effectively control the level of licensing and royalty fees paid to third parties, and significant increase in such fees could have a significant and adverse impact on our future profitability. Seeking alternative technologies may be difficult and time-consuming, and we may not be successful in finding alternative technologies or incorporating them into our products. Our inability to obtain any third-party license necessary to develop new products or product enhancements could require us to obtain substitute technology of lower quality or performance standards, or at greater cost, which could seriously harm our business, financial condition and results of operations.
Risks Related to our Status as a Foreign Private Issuer and our International Operations
Because we are a corporation incorporated in British Columbia and some of our directors and officers are resident in Canada, it may be difficult for investors in the United States to enforce civil liabilities against us based solely upon the federal securities laws of the United States. Similarly, it may be difficult for Canadian investors to enforce civil liabilities against our directors and officers residing outside of Canada.
We are a corporation incorporated under the laws of British Columbia with our principal place of business in Toronto, Canada. Some of our directors and officers and the auditors or other experts named herein are residents of Canada and all or a substantial portion of our assets and those of such persons are located outside the United States. Consequently, it may be difficult for U.S. investors to effect service of process within the United States upon us or our directors or officers or such auditors who are not residents of the United States, or to realize in the United States upon judgments of courts of the United States predicated upon civil liabilities under the Securities Act. Investors should not assume that Canadian courts: (1) would enforce judgments of U.S. courts obtained in actions against us or such persons predicated upon the civil liability provisions of the U.S. federal securities laws or the securities or blue sky laws of any state within the United States or (2) would enforce, in original actions, liabilities against us or such persons predicated upon the U.S. federal securities laws or any such state securities or blue sky laws.
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Similarly, some of our directors and officers are residents of countries other than Canada and all or a substantial portion of the assets of such persons are located outside Canada. As a result, it may be difficult for Canadian investors to initiate a lawsuit within Canada against these non-Canadian residents. In addition, it may not be possible for Canadian investors to collect from these non-Canadian residents judgments obtained in courts in Canada predicated on the civil liability provisions of securities legislation of certain of the provinces and territories of Canada. It may also be difficult for Canadian investors to succeed in a lawsuit in the United States, based solely on violations of Canadian securities laws.
Operating outside of the United States presents specific risks to our business, and we have substantial operations outside of the United States.
Most of our employee and contractor base and operations are located outside the United States, primarily in Canada and Switzerland. Most of our software development is conducted outside the United States.
Risks associated with operations outside the United States include:
| ● | effectively managing and overseeing operations that are distant and remote from corporate headquarters may be difficult and may impose increased operating costs; | |
| ● | fluctuating foreign currency rates could restrict sales, increase costs of purchasing, and impact collection of receivables outside of the United States; | |
| ● | volatility in foreign credit markets may affect the financial well-being of our customers and suppliers; | |
| ● | violations of anti-corruption laws, including the Foreign Corrupt Practices Act and the U.K. Bribery Act could result in large fines and penalties; | |
| ● | violations of privacy and data security laws could result in large fines and penalties; and | |
| ● | tax disputes with foreign taxing authorities, and any resultant taxation in foreign jurisdictions associated with operations in such jurisdictions, including with respect to transfer pricing practices associated with such operations. |
Foreign currency fluctuations may reduce our competitiveness and sales in foreign markets.
The relative change in currency values creates fluctuations in product pricing for international customers. These changes in foreign end-customer costs may result in lost orders and reduce the competitiveness of our products in certain foreign markets. These changes may also negatively impact the financial condition of some foreign customers and reduce or eliminate their future orders of our products.
| ● | adverse changes in, or uncertainty of, local business laws or practices, including the following: |
| ● | foreign governments may impose burdensome tariffs, quotas, taxes, trade barriers, or capital flow restrictions; | |
| ● | restrictions on the export or import of technology may reduce or eliminate the ability to sell in or purchase from certain markets; |
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| ● | political and economic instability, including deterioration of political relations between the United States and other countries, may reduce demand for our solutions or put our non-U.S. assets at risk; | |
| ● | potentially limited intellectual property protection in certain countries may limit recourse against infringing on our solutions or cause us to refrain from selling in certain geographic territories; | |
| ● | staffing may be difficult along with higher turnover at international operations; | |
| ● | a government-controlled exchange rate and limitations on the convertibility of currencies; | |
| ● | transportation delays and customs related delays that may affect production and distribution of our products; and | |
| ● | integration and enforcement of laws vary significantly among jurisdictions and may change significantly over time. |
Our failure to manage any of these risks successfully could harm our international operations and adversely impact our business, operating results and financial condition.
Risks Related to this Offering and Our Securities
We do not know whether an active, liquid and orderly trading market will develop for our Common Shares or what the market price of our Common Shares will be and as a result it may be difficult for you to sell your Common Shares.
Although we have applied to list our Common Shares on The Nasdaq Capital Market, or Nasdaq, an active trading market for our shares may never develop or be sustained following this offering. You may not be able to sell your shares quickly or at the market price if trading in our Common Shares is not active. The initial public offering price for our Common Shares will be determined through negotiations with the underwriters, and the negotiated price may not be indicative of the market price of the Common Shares after the offering. As a result of these and other factors, you may be unable to resell your Common Shares at or above the initial public offering price. Further, an inactive market may also impair our ability to raise capital by selling our Common Shares and may impair our ability to enter into strategic partnerships or acquire companies or products by using our Common Shares as consideration.
We expect that our stock price will fluctuate significantly, and you may not be able to resell your shares at or above the initial public offering price.
The trading price of our Common Shares is likely to be volatile and subject to wide price fluctuations in response to various factors, including:
| ● | market conditions in the broader stock market in general, or in our industry in particular; | |
| ● | actual or anticipated fluctuations in our quarterly financial and operating results; | |
| ● | introduction of new products and services by us or our competitors; | |
| ● | sales, or anticipated sales, of large blocks of our stock; | |
| ● | issuance of new or changed securities analysts’ reports or recommendations; | |
| ● | failure of industry or securities analysts to maintain coverage of our company, changes in financial estimates by any industry or securities analysts that follow our company, or our failure to meet such estimates; | |
| ● | additions or departures of key personnel; | |
| ● | regulatory or political developments; |
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| ● | changes in accounting principles or methodologies; | |
| ● | acquisitions by us or by our competitors; | |
| ● | litigation and governmental investigations; and | |
| ● | economic, political and geopolitical conditions or events. |
These and other factors may cause the market price and demand for our Common Shares to fluctuate substantially, which may limit or prevent investors from readily selling their Common Shares and may otherwise negatively affect the liquidity of our Common Shares. If the market price of our Common Shares after this offering does not exceed the initial public offering price, you may not realize any return on your investment in us and may lose some or all of your investment. In addition, in the past, when the market price of a stock has been volatile, holders of that stock have often instituted securities class action litigation against the company that issued the stock. If any of our stockholders brought a lawsuit against us, we could incur substantial costs defending the lawsuit. Such a lawsuit could also divert the time and attention of our management from our business.
Warrants are speculative in nature.
The Warrants offered in this offering do not confer any rights of Common Share ownership on their holders, such as voting rights or the right to receive dividends, but rather merely represent the right to acquire Common Shares at a fixed price for a limited period of time. Specifically, commencing on the date of issuance, holders of the Warrants may exercise their right to acquire the Common Shares and pay an exercise price of USD$● per share, prior to five years from the date of issuance, after which date any unexercised Warrants will expire and have no further value. In addition, there is no established trading market for the Warrants and we do not expect a market to develop.
Holders of the Warrants will have no rights as a common shareholder until they acquire our Common Shares.
Until holders of the Warrants acquire Common Shares upon exercise of the Warrants, the holders will have no rights with respect to the Common Shares issuable upon exercise of the Warrants. Upon exercise of the Warrants, the holder will be entitled to exercise the rights of a common shareholder as to the security exercised only as to matters for which the record date occurs after the exercise.
There is no established market for the Warrants to purchase our Common Shares being offered in this offering.
There is no established trading market for the Warrants and we do not expect a market to develop. Although we have applied to list the Warrants on the Nasdaq Capital Market there can be no assurance that there will be an active trading market for the Warrants. Without an active trading market, the liquidity of the Warrants will be limited.
Provisions of the Warrants offered by this prospectus could discourage an acquisition of us by a third party.
In addition to the discussion of the provisions of our governing organizational documents, certain provisions of the Warrants offered by this prospectus could make it more difficult or expensive for a third party to acquire us. The Warrants prohibit us from engaging in certain transactions constituting “fundamental transactions” unless, among other things, the surviving entity assumes our obligations under the Warrants. These and other provisions of the Warrants offered by this prospectus could prevent or deter a third party from acquiring us even where the acquisition could be beneficial to you.
Our Reverse Stock Split may decrease the liquidity of our Common Shares.
The liquidity of our Common Shares may be affected adversely by the Reverse Stock Split given the reduced number of Common Shares that will be outstanding following the Reverse Stock Split. In addition, the Reverse Stock Split may increase the number of stockholders who own odd lots (less than 100 shares) of our Common Shares, creating the potential for such stockholders to experience an increase in the cost of selling their Common Shares and greater difficulty effecting such sales.
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Following the Reverse Stock Split, the resulting market price of our Common Shares may not attract new investors, including institutional investors, and may not satisfy the investing requirements of those investors. Consequently, the trading liquidity of our Common Shares may not improve.
Although we believe that a higher market price of our Common Shares may help generate greater or broader investor interest, there can be no assurance that the Reverse Stock Split will result in a Common Share price that will attract new investors, including institutional investors. In addition, there can be no assurance that the market price of our Common Shares will satisfy the investing requirements of those investors.
We may require additional capital to fund our business and support our growth, and our inability to generate and obtain such capital on acceptable terms, or at all, could harm our business, operating results, financial condition and prospects.
We intend to continue to make substantial investments to fund our business and support our growth. In addition, we may require additional funds to respond to business challenges, including the need to develop new features or enhance our solutions, improve our operating infrastructure or acquire or develop complementary businesses and technologies. As a result, in addition to the revenues we generate from our business and the proceeds from this offering, we may need to engage in additional equity or debt financings to provide the funds required for these and other business endeavors. If we raise additional funds through future issuances of equity or convertible debt securities, our existing stockholders could suffer significant dilution, and any new equity securities we issue could have rights, preferences and privileges superior to those of holders of our Common Shares. Any debt financing that we may secure in the future could involve restrictive covenants relating to our capital raising activities and other financial and operational matters, which may make it more difficult for us to obtain additional capital and to pursue business opportunities, including potential acquisitions. We may not be able to obtain such additional financing on terms favorable to us, if at all. If we are unable to obtain adequate financing or financing on terms satisfactory to us when we require it, our ability to continue to support our business growth and to respond to business challenges could be significantly impaired, and our business may be adversely impacted. In addition, our inability to generate or obtain the financial resources needed may require us to delay, scale back, or eliminate some or all of our operations, which may have a significant adverse impact on our business, operating results and financial condition.
Because we are a foreign private issuer and are exempt from certain Nasdaq corporate governance standards applicable to U.S. issuers, you will have less protection than you would have if we were a domestic issuer.
Nasdaq Listing Rules require listed companies to have, among other things, a majority of its board members be independent. As a foreign private issuer, however, we are permitted to, and we may follow home country practice in lieu of the above requirements, or we may choose to comply with the above requirement within one year of listing. The corporate governance practice in our home country does not require a majority of our board to consist of independent directors. Thus, although a director must act in the best interests of the Company, it is possible that fewer board members will be exercising independent judgment and the level of board oversight on the management of our company may decrease as a result. In addition, Nasdaq Listing Rules also require foreign private issuers to have a compensation committee, a nominating/corporate governance committee composed entirely of independent directors, and an audit committee with a minimum of three members. We, as a foreign private issuer, are not subject to these requirements. Nasdaq Listing Rules may require shareholder approval for certain corporate matters, such as requiring that shareholders be given the opportunity to vote on all equity compensation plans and material revisions to those plans, certain Common Share issuances. We intend to comply with the requirements of Nasdaq Listing Rules in determining whether shareholder approval is required on such matters and to appoint a nominating and corporate governance committee. We may, however, consider following home country practice in lieu of the requirements under Nasdaq Listing Rules with respect to certain corporate governance standards which may afford less protection to investors.
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Although as a Foreign Private Issuer we are exempt from certain corporate governance standards applicable to US issuers, if we cannot satisfy, or continue to satisfy, the initial listing requirements and other rules of the Nasdaq Capital Market, our securities may be delisted, which could negatively impact the price of our securities and your ability to sell them.
We have applied to list our Common Shares and Warrants for listing on the Nasdaq Capital Market upon consummation of this offering. However, we cannot assure you that our securities will continue to be listed on the Nasdaq Capital Market.
In addition, following this offering, in order to maintain our listing on the Nasdaq Capital Market, we will be required to comply with certain rules of the Nasdaq Capital Market, including those regarding minimum shareholders’ equity, minimum share price, minimum market value of publicly held shares, and various additional requirements. Even if we initially meet the listing requirements and other applicable rules of the Nasdaq Capital Market, we may not be able to continue to satisfy these requirements and applicable rules. If we are unable to satisfy the Nasdaq Capital Market criteria for maintaining our listing, our securities could be subject to delisting.
If the Nasdaq Capital Market delists our securities from trading, we could face significant consequences, including:
| ● | a limited availability for market quotations for our securities; | |
| ● | reduced liquidity with respect to our securities; | |
| ● | a determination that our Common Share is a “penny stock,” which will require brokers trading in our Common Share to adhere to more stringent rules and possibly result in a reduced level of trading activity in the secondary trading market for our Common Share; | |
| ● | limited amount of news and analyst coverage; and | |
| ● | a decreased ability to issue additional securities or obtain additional financing in the future. |
If we fail to maintain proper and effective internal controls, our ability to produce accurate financial statements on a timely basis could be impaired.
After the closing of this offering, we will be subject to the reporting requirements of the Securities Exchange Act of 1934, as amended, the Sarbanes-Oxley Act and the rules and regulations of Nasdaq. The Sarbanes-Oxley Act requires, among other things, that we maintain effective disclosure controls and procedures and internal controls over financial reporting. Internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements in accordance with accounting principles generally accepted in the U.S. Commencing with our fiscal year ending December 31, 2022, we must perform system and process evaluation and testing of our internal controls over financial reporting to allow management to report on the effectiveness of our internal controls over financial reporting in our Form 20-F filing for that year, as required by Section 404 of the Sarbanes-Oxley Act. This will require that we incur substantial additional professional fees and internal costs to expand our accounting and finance functions and that we expend significant management efforts. Prior to this offering, we have never been required to test our internal controls within a specified period, and, as a result, we may experience difficulty in meeting these reporting requirements in a timely manner.
During the evaluation and testing process of our internal controls, if we identify one or more material weaknesses in our internal control over financial reporting, we will be unable to assert that our internal control over financial reporting is effective. We cannot assure you that there will not be material weaknesses or significant deficiencies in our internal control over financial reporting in the future. Any failure to maintain internal control over financial reporting could severely inhibit our ability to accurately report our financial condition or results of operations. If we are unable to conclude that our internal control over financial reporting is effective, or if our independent registered public accounting firm determines we have a material weakness or significant deficiency in our internal control over financial reporting, we could lose investor confidence in the accuracy and completeness of our financial reports, the market price of our Common Shares could decline, and we could be subject to sanctions or investigations by Nasdaq, the Securities and Exchange Commission, or the SEC, or other regulatory authorities. Failure to remedy any material weakness in our internal control over financial reporting, or to implement or maintain other effective control systems required of public companies, could also restrict our future access to the capital markets.
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We will incur significant increased costs as a result of operating as a public company in the United States, and our management will be required to devote substantial time to new compliance initiatives.
As a public company in the United States, we will incur significant legal, accounting and other expenses that we did not incur previously. We will be subject to the reporting requirements of the Securities Exchange Act of 1934, as amended, which will require, among other things, that we file with the SEC annual, quarterly and current reports with respect to our business and financial condition. In addition, the Sarbanes-Oxley Act, as well as rules subsequently adopted by the SEC and Nasdaq to implement provisions of the Sarbanes-Oxley Act, impose significant requirements on public companies, including requiring establishment and maintenance of effective disclosure and financial controls and changes in corporate governance practices. Further, in July 2010, the Dodd-Frank Wall Street Reform and Consumer Protection Act, or the Dodd-Frank Act, was enacted. There are significant corporate governance and executive-compensation-related provisions in the Dodd-Frank Act that require the SEC to adopt additional rules and regulations in these areas. Recent legislation permits emerging growth companies to implement many of these requirements over a longer period and up to five years from the pricing of this offering. We intend to take advantage of this new legislation, but cannot assure you that we will not be required to implement these requirements sooner than planned and thereby incur unexpected expenses. Stockholder activism, the current political environment and the current high level of government intervention and regulatory reform may lead to substantial new regulations and disclosure obligations, which may lead to additional compliance costs and impact the manner in which we operate our business in ways we cannot currently anticipate.
We expect the rules and regulations applicable to public companies to substantially increase our legal and financial compliance costs and to make some activities more time-consuming and costly. If these requirements divert the attention of our management and personnel from other business concerns, they could have a material adverse effect on our business, financial condition and results of operations. The increased costs will decrease our net income or increase our consolidated net loss, and may require us to reduce costs in other areas of our business or increase the prices of our products or services. For example, we expect these rules and regulations to make it more difficult and more expensive for us to obtain director and officer liability insurance and we may be required to incur substantial costs to maintain the same or similar coverage. We cannot predict or estimate the amount or timing of additional costs we may incur to respond to these requirements. The impact of these requirements could also make it more difficult for us to attract and retain qualified persons to serve on our board of directors, our board committees or as executive officers.
Our executive officers and directors, and their affiliated entities, own a significant percentage of our stock and will be able to exert significant control over matters subject to stockholder approval.
Upon consummation of this offering (based on shares outstanding as of ●, 2022), our executive officers and directors, together with entities affiliated with such individuals, will beneficially own approximately ●% of our Common Shares (approximately ●% if the underwriters’ over-allotment option is exercised in full). Accordingly, these stockholders may, as a practical matter, continue to be able to control the election of a majority of our directors and the determination of all corporate actions after this offering. This concentration of ownership could delay or prevent a change in control of the Company.
New investors in our securities will experience immediate and substantial dilution after this offering.
The initial public offering price of our Units will be substantially higher than the pro forma net tangible book value per share of the outstanding Common Shares immediately after this offering. Based on an initial public offering price of USD$● per unit and our net tangible book value as of December 31, 2021, if you purchase our Common Shares in this offering you will pay more for your shares than the amounts paid by our existing stockholders for their shares and you will suffer immediate dilution of approximately USD$● per share in pro forma net tangible book value. As a result of this dilution, investors purchasing Common Shares in this offering may receive significantly less than the full purchase price that they paid for the shares purchased in this offering in the event of a liquidation.
Immediately prior to the consummation of this offering, we expect to have approximately ● outstanding stock options to purchase our Common Shares with exercise prices that are below the initial public offering price of our Common Shares. To the extent that these options are exercised, there will be further dilution.
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If a substantial number of shares become available for sale and are sold in a short period of time, the market price of our Common Shares could decline.
If our existing stockholders sell substantial amounts of our Common Shares in the public market following this offering and the expiration of the lock-up agreements, the market price of our Common Shares could decrease significantly. The perception in the public market that our existing stockholders might sell Common Shares could also depress our market price. Upon completion of this offering, we will have outstanding ● Common Shares, (taking into account the Reverse Stock Split,) assuming no exercise by the underwriters of their option to purchase additional shares, and options to purchase of our Common Shares, based on our shares and options to be outstanding as of immediately prior to the consummation of this offering. Our directors, executive officers and other holders of our Common Shares will be subject to the lock-up agreements described in “Underwriting” and the Rule 144 holding period requirements described in “Shares Eligible for Future Sale.” After all of these lock-up periods have expired and the holding periods have elapsed, up to ● additional shares (post-Reverse Stock Split) will be eligible for sale in the public market.
In addition, certain holders of Common Shares will have the right, subject to certain exceptions and conditions, to require us to register their Common Shares under the Securities Act, and they will have the right to participate in future registrations of securities by us. Registration of any of these outstanding Common Shares would result in such shares becoming freely tradable without compliance with Rule 144 upon effectiveness of the registration statement. A decline in the price of shares of our Common Shares might impede our ability to raise capital through the issuance of additional shares of our Common Shares or other equity securities.
Since we do not expect to pay any cash dividends for the foreseeable future, investors in this offering may be forced to sell their stock in order to obtain a return on their investment.
We do not anticipate declaring or paying in the foreseeable future any cash dividends on our capital stock. Instead, we plan to retain any earnings to finance our operations and growth plans discussed elsewhere or incorporated by reference in this prospectus. Accordingly, investors must rely on sales of their Common Shares after price appreciation, which may never occur, as the only way to realize any return on their investment. As a result, investors seeking cash dividends should not purchase our Common Shares.
We may lose our foreign private issuer status in the future, which could result in significant additional costs and expenses.
As discussed above, we are a foreign private issuer, and therefore, we are not required to comply with all of the periodic disclosure and current reporting requirements of the Exchange Act. In the future, we would lose our foreign private issuer status if (1) more than 50% of our outstanding voting securities are owned by U.S. residents and (2) a majority of our directors or executive officers are U.S. citizens or residents, or we fail to meet additional requirements necessary to avoid loss of foreign private issuer status. If we lose our foreign private issuer status, we will be required to file with the SEC periodic reports and registration statements on U.S. domestic issuer forms, which are more detailed and extensive than the forms available to a foreign private issuer. We will also have to mandatorily comply with U.S. federal proxy requirements, and our officers, directors and principal shareholders will become subject to the short-swing profit disclosure and recovery provisions of Section 16 of the Exchange Act. In addition, we will lose our ability to rely upon exemptions from certain corporate governance requirements under the listing rules of the Nasdaq Stock Market. As a U.S. listed public company that is not a foreign private issuer, we will incur significant additional legal, accounting and other expenses that we will not incur as a foreign private issuer.
We have broad discretion in the use of the net proceeds from this offering and may not use them effectively.
Our management will have broad discretion in the application of the net proceeds from this offering, including for any of the purposes described in the section entitled “Use of Proceeds,” and you will not have the opportunity as part of your investment decision to assess whether the net proceeds will be used appropriately. Because of the number and variability of factors that will determine our use of the net proceeds from this offering, their ultimate use may vary substantially from their currently intended use. Our management might not apply our net proceeds in ways that ultimately increase the value of your investment. We currently intend to use the net proceeds from this offering to expand marketing and brand enhancement related to our products, to fund our ongoing research and development activities, for personnel development and training and for resource management software development.
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Our expected use of net proceeds from this offering represents our current intentions based upon our present plans and business condition. As of the date of this prospectus, we cannot predict with certainty all of the particular uses for the net proceeds to be received upon the completion of this offering, or the amounts that we will actually spend on the uses set forth above. The amounts and timing of our actual use of the net proceeds will vary depending on numerous factors, including the commercial success of our systems and the costs of our research and development activities, as well as the amount of cash used in our operations. As a result, our management will have broad discretion in the application of the net proceeds, and investors will be relying on our judgment regarding the application of the net proceeds of this offering.
The failure by our management to apply these funds effectively could harm our business. Pending their use, we may invest the net proceeds from this offering in short-term, investment-grade, interest-bearing securities. These investments may not yield a favorable return to our stockholders. If we do not invest or apply the net proceeds from this offering in ways that enhance stockholder value, we may fail to achieve expected financial results, which could cause our stock price to decline.
If securities or industry analysts do not publish research or publish inaccurate or unfavorable research about our business, our stock price and trading volume could decline.
The trading market for our securities will depend in part on the research and reports that securities or industry analysts publish about us or our business. Securities and industry analysts do not currently, and may never, publish research on our company. If no securities or industry analysts commence coverage of our company, the trading price for our securities would likely be negatively impacted. In the event securities or industry analysts initiate coverage, if one or more of the analysts who covers us downgrades our stock or publishes inaccurate or unfavourable research about our business, our stock price may decline. If one or more of these analysts ceases coverage of our company or fails to publish reports on us regularly, demand for our securities could decrease, which might cause our stock price and trading volume to decline.
If we are classified as a “passive foreign investment company” for U.S. federal income tax purposes for any taxable year, U.S. Holders of Common Shares could be subject to adverse U.S. federal income tax consequences.
If we are classified as a “passive foreign investment company” (“PFIC”) within the meaning of Section 1297 of the U.S. Internal Revenue Code, as amended, for any taxable year during which a U.S. Holder held Common Shares, certain adverse U.S. federal income tax consequences may apply to the U.S. Holder. Our possible status as a PFIC must be determined annually and therefore may be subject to change. Generally, for any taxable year in which 75% or more of our gross income is passive income, or at least 50% of the average quarterly value of our assets (which may be determined in part by the market value of our Common Shares, which is subject to change) are held for the production of, or produce, passive income, we would be characterized as a PFIC for U.S. federal income tax purposes.
Although the tests for determining PFIC status are applied as of the end of each taxable year and are dependent upon a number of factors, some of which are beyond our control, including the value of our assets (including goodwill), the market price of our Common Shares, and the amount and type of our gross income we do not believe that we were a PFIC for the taxable year ended December 31, 2021. Our status as a PFIC is a fact-intensive determination made on an annual basis, and we cannot provide any assurance regarding our PFIC status for the taxable year ending December 31, 2022 or for subsequent taxable years. U.S. Holders who own our Common Shares for any period during which we are a PFIC will be required to file IRS Form 8621 for each tax year during which they hold our Common Shares. No opinion of legal counsel or ruling from the IRS concerning our status as a PFIC has been obtained or is currently planned to be requested. The determination of our PFIC status is made annually after the close of each taxable year and it is difficult to predict before such determination whether we will be a PFIC for any given taxable year. Even if we determine that we are not a PFIC after the close of a taxable year, there can be no assurance that the IRS will agree with our conclusion. No assurance can be provided regarding our PFIC status, and neither we nor our United States counsel expresses any opinion with respect to our PFIC status.
If we are a PFIC for any year during a non-corporate U.S. shareholder’s holding period of our Common Shares, then such non-corporate U.S. shareholder generally will be required to treat any gain realized upon a disposition of our Common Shares, or any so-called “excess distribution” received on our Common Shares, as ordinary income, rather than as capital gain, and the preferential tax rate applicable to dividends received on our Common Shares would not be available. Interest charges would also be added to the taxes on gains and distributions realized by all U.S. holders. A more detailed discussion of these adverse tax consequences is set forth below under “Taxation—Certain Material U.S. Federal Income Tax Considerations–PFIC Status of Our Company.”
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A U.S. shareholder may avoid these adverse tax consequences by making a timely and effective “qualified electing fund” election (“QEF election”). A U.S. shareholder who makes a QEF election generally must report, on a current basis, its share of our ordinary earnings and net capital gains, whether or not we distribute any amounts to our shareholders. The QEF election is available only if our company is characterized as a PFIC and provides a U.S. shareholder with certain information regarding the Company’s earnings and capital gains as required under applicable U.S. Treasury regulations. In the event we become a PFIC, we intend to provide all information and documentation that a U.S. shareholder making a QEF election is required to obtain for U.S. federal income tax purposes (e.g., the U.S. shareholder’s pro rata share of ordinary income and net capital gain, and a “PFIC Annual Information Statement” as described in applicable U.S. Treasury regulations).
A U.S. shareholder may also mitigate the adverse tax consequences by timely making a mark-to-market election. A U.S. shareholder who makes the mark-to-market election generally must include as ordinary income each year the increase in the fair market value of the Common Shares and deduct from gross income the decrease in the value of such shares during each of its taxable years. A mark-to-market election may be made and maintained only if our Common Shares are regularly traded on a qualified exchange, as defined in the Code and regulations. Whether our Common Shares are regularly traded on a qualified exchange is an annual determination based on facts that, in part, are beyond our control. Accordingly, a U.S. shareholder might not be eligible to make a mark-to-market election to mitigate the adverse tax consequences if we are characterized as a PFIC.
Certain economic risks are inherent in making either a QEF election or a mark-to-market election. If a QEF election is made, it is possible that earned income will be reported to a U.S. Holder as taxable income and income taxes will be due and payable on such an amount. A U.S. Holder of our Common Shares may pay tax on such “phantom” income, i.e., where income is reported to it pursuant to the QEF Election, but no cash is distributed with respect to such income. There is no assurance that any distribution or profitable sale will ever be made regarding our Common Shares, so the tax liability may result in a net economic loss. A mark-to-market election may result in significant share price gains in one year causing a significant income tax liability. This gain may be offset in another year by significant losses. If a mark-to-market election is made, this highly variable tax gain or loss may result in substantial and unpredictable changes in taxable income. The amount included in income under a mark-to-market election may be substantially greater than the amount included under a QEF election. Both the QEF and mark-to-market elections are binding on the U.S. Holder for all subsequent years that the U.S. Holder owns our shares unless permission to revoke the election is granted by the IRS.
If we are a PFIC at any time when a U.S. Holder holds our Common Shares, we will generally continue to be treated as a PFIC with respect to the U.S. Holder for all succeeding years during which the U.S. Holder holds our Common Shares even if we cease to meet the PFIC gross income test or asset test in a subsequent year. However, if we cease to meet these tests, a U.S. Holder can avoid the continuing impact of the PFIC rules by making a special election (a “Purging Election”) to recognize gain by making a “deemed sale” election with respect to all of the U.S. Holder’s Common Shares and have such Common Shares deemed to be sold at their fair market value on the last day of the last taxable year during which we were a PFIC.
Each U.S. shareholder should consult their own tax advisors with respect to the possibility of making these elections and the U.S. federal income tax consequences of the acquisition, ownership and disposition of our Common Shares. This paragraph is qualified in its entirety by the discussion in the section of this prospectus entitled “Certain Material United States Federal Income Tax Considerations.” In addition, our PFIC status may deter certain U.S. investors from purchasing our Common Shares, which could have an adverse impact on the market price of our Common Shares and our ability to raise additional financing by selling equity interests, including our Common Shares.
RULES RELATING TO A PFIC ARE VERY COMPLEX. YOU SHOULD CONSULT YOUR TAX ADVISER CONCERNING THE RELATIVE MERITS AND THE ECONOMIC AND TAX IMPACT OF THE PFIC RULES TO YOUR INVESTMENT IN OUR COMMON SHARES AS A NON-ELECTING U.S. HOLDER, A U.S. HOLDER MAKING A QEF ELECTION, A U.S. HOLDER MAKING A MARK-TO-MARKET ELECTION, OR A U.S. HOLDER MAKING ANY AVAILABLE PURGING ELECTION.
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DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements that reflect our current expectations and views of future events, all of which are subject to risks and uncertainties. Forward-looking statements give our current expectations or forecasts of future events. You can identify these statements by the fact that they do not relate strictly to historical or current facts. You can find many (but not all) of these statements by the use of words such as “approximates,” “believes,” “hopes,” “expects,” “anticipates,” “estimates,” “projects,” “intends,” “plans,” “will,” “would,” “should,” “could,” “may” or other similar expressions in this prospectus. These statements are likely to address our growth strategy, financial results and product and development programs. You must carefully consider any such statements and should understand that many factors could cause actual results to differ from our forward-looking statements. These factors may include inaccurate assumptions and a broad variety of other risks and uncertainties, including some that are known and some that are not. No forward-looking statement can be guaranteed and actual future results may vary materially. Factors that could cause actual results to differ from those discussed in the forward-looking statements include, but are not limited to:
| ● | the size and growth potential of the markets for our products, and our ability to serve those markets; | |
| ● | the rate and degree of market acceptance of our products; | |
| ● | our ability to expand our sales organization to address effectively existing and new markets that we intend to target; | |
| ● | impact from future regulatory, judicial, and legislative changes or developments in the U.S. and foreign countries, particularly in the area of data privacy laws; | |
| ● | our ability to compete effectively in a competitive industry; | |
| ● | our ability to obtain funding for our operations; | |
| ● | our ability to attract collaborators and strategic partnerships; | |
| ● | our ability to meet the Nasdaq, CSE and FRA requirements; | |
| ● | our ability to meet our other financial operating objectives; | |
| ● | the availability of qualified employees for our business operations; | |
| ● | general business and economic conditions; | |
| ● | our ability to meet our financial obligations as they become due; | |
| ● | positive cash flows and financial viability of our operations and new business opportunities; | |
| ● | ability to secure intellectual property rights over our proprietary products or enter into license agreements to secure the legal use of certain patents an intellectual property; | |
| ● | our ability to be successful in new markets; | |
| ● | our ability to avoid infringement of intellectual property rights; | |
| ● | the positive cash flows and financial viability of our operations and new business opportunities; | |
| ● | the future liquidity of our securities; | |
| ● | volatility of the price of our securities; |
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| ● | risks associated with the speculative nature of our Warrants and risks associated with the limitation of rights of Warrant holders; | |
| ● | our exemptions from certain Nasdaq corporate governance standards as a result of being a foreign issuer; | |
| ● | our potential failure to maintain proper internal controls and produce accurate and timely financial statements; | |
| ● | dilution as a result of the Offering; and | |
| ● | limited or negative coverage of our business. |
We describe certain material risks, uncertainties, and assumptions that could affect our business, including our financial condition and results of operations, under “Risk Factors.” We base our forward-looking statements on our management’s beliefs and assumptions based on information available to our management at the time the statements are made. We caution you that actual outcomes and results may, and are likely to, differ materially from what is expressed, implied or forecast by our forward-looking statements. Accordingly, you should be careful about relying on any forward-looking statements. Except as required under the federal securities laws, we do not have any intention or obligation to update publicly any forward-looking statements after the distribution of this prospectus, whether as a result of new information, future events, changes in assumptions, or otherwise.
Industry Data and Forecasts
This prospectus contains data related to the software industry in the United States. These industry data include projections that are based on a number of assumptions which have been derived from industry and government sources which we believe to be reasonable. The software industry may not grow at the rate projected by industry data, or at all. The failure of the industry to grow as anticipated is likely to have a material adverse effect on our business and the market price of our Common Shares. In addition, the rapidly changing nature of the software industry subjects any projections or estimates relating to the growth prospects or future condition of our industries to significant uncertainties. Furthermore, if any one or more of the assumptions underlying the industry data turns out to be incorrect, actual results may, and are likely to, differ from the projections based on these assumptions.
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ENFORCEABILITY OF CIVIL LIABILITIES
We are incorporated under the laws of British Columbia. Some of our directors and officers, and some of the experts named in this prospectus, are residents of Canada or otherwise reside outside of the United States, and all or a substantial portion of their assets, and all or a substantial portion of our assets, are located outside of the United States. We have appointed an agent for service of process in the United States, but it may be difficult for shareholders who reside in the United States to effect service within the United States upon those directors, officers and experts who are not residents of the United States. It may also be difficult for shareholders who reside in the United States to realize in the United States upon judgments of courts of the United States predicated upon our civil liability and the civil liability of our directors, officers and experts under the United States federal securities laws. Furthermore, because substantially all of our assets and substantially all of our directors and officers are located outside the United States, any judgment obtained in the United States against us or any of our directors and officers may not be collectible within the United States. There can be no assurance that U.S. investors will be able to enforce against us, members of our board of directors, officers or certain experts named herein who are residents of Canada and other countries outside the United States, any judgments in civil and commercial matters, including judgments under the federal securities laws.
We are not aware of any Canadian federal or provincial laws, decrees, or regulations that restrict the export or import of capital, including foreign exchange controls, or that affect the remittance of dividends, interest or other payments to non-Canadian holders of the Common Shares. There are no limitations under the laws of Canada or by the charter or our other constituent documents, except the Investment Canada Act which may require review and approval by the Minister of Industry (Canada) of certain acquisition of control of us by non-Canadians. The threshold for acquisitions of control is generally defined as being one-third or more of our voting shares. If the investment is potentially injurious to national security, it may be subject to review under the Investment Canada Act notwithstanding the percentage interest acquired or amount of the investment. “Non-Canadian” generally means an individual who is not a Canadian citizen, or a corporation, partnership, trust, or joint venture that is ultimately controlled by non-Canadian.
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Based upon an initial public offering price of USD$●.00 per Unit, we estimate that we will receive net proceeds from this offering, after deducting the underwriting discounts and the estimated offering expenses payable by us, of approximately USD$● assuming the Underwriter does not exercise its over-allotment option.
We plan to use the net proceeds we receive from this offering and any proceeds from the exercise of Warrants for general corporate purposes including: working capital (10%), growth strategies (10%), research and development (20%) and sales and marketing (60%).
| Use of Net Proceeds Approximately in USD$ 1,000 | ||||
| Working Capital 10% | $ | 1,500 | ||
| Growth Strategies 10% | $ | 1,500 | ||
| Research and Development 20% | $ | 3,000 | ||
| Sales and Marketing 60% | $ | 9,000 | ||
The foregoing represents our current intentions based upon our present plans and business conditions to use and allocate the net proceeds of this offering. Our management, however, will have some flexibility and discretion to apply the net proceeds of this offering. If an unforeseen event occurs or business conditions change, we may use the proceeds of this offering differently than as described in this prospectus. To the extent that the net proceeds we receive from this offering are not immediately used for the above purposes, we intend to invest our net proceeds in short-term, interest-bearing bank deposits or debt instruments.
We have never declared or paid any dividends on our Common Shares. We do not anticipate paying any dividends in the foreseeable future. We currently intend to retain any future earnings to fund business development and growth, and we do not expect to pay any dividends in the foreseeable future. Any future determination to declare cash dividends will be made at the discretion of our board of directors, subject to applicable laws, and will depend on a number of factors, including our financial condition, results of operations, capital requirements, contractual restrictions, general business conditions and other factors that our board of directors may deem relevant.
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The table below sets forth our capitalization as of June 30, 2022 on an actual basis and on an adjusted basis after giving effect to the Offering.
| As at June 30, 2022 | ||||||||
Actual (CAD$) | As Adjusted (CAD$) | |||||||
| Debt: | ||||||||
| Short-Term Debt: | ||||||||
| Trade and Other Payables | 78,238 | |||||||
| Due to Related Parties | 352 | |||||||
| Licensee Fees Payable | 10,231 | |||||||
| Long-Term Debt | - | |||||||
| Total Debt | 88,821 | |||||||
| Common Equity: | ||||||||
| Common Shares | 21,931,542 | |||||||
| Shares Subscribed | 39,750 | |||||||
| (Deficit) | (17,421,607 | ) | ||||||
| Reserves | 5,221,699 | |||||||
| Net Shareholders Equity | 9,771,384 | |||||||
| Total Capitalization (Debt and Equity) | 9,860,205 | |||||||
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If you invest in our Units in this offering, your interest will be diluted to the extent of the difference between the public offering price per share of Common Shares that is part of the Unit and the as adjusted net tangible book value per Common Share immediately after this offering.
Our historical net tangible book value as of June 30, 2022 was USD$●, or USD$● per Common Share, post- Reverse Stock Split for the purposes of this prospectus. Our historical net tangible book value is the amount of our total tangible assets (Total assets less Intangible Assets and Goodwill) less our liabilities. Historical net tangible book value per Common Share is our historical net tangible book value divided by the number of outstanding Common Shares as of June 30, 2022.
The pro forma net tangible book value of our Common Shares as of June 30, 2022 was USD$● per Common Share. Pro forma net tangible book value per share represents our total tangible assets less our total liabilities, divided by the number of outstanding Common Shares, after giving effect to the pro forma adjustments referenced under “Capitalization” and taking into account the Reverse Stock Split.
After giving effect to the sale of the Units that we are offering (attributing no value to the Warrants) at an assumed public offering price of USD$● per Unit, after deducting underwriting discounts and commissions and estimated offering expenses payable by us, our net tangible book value on a pro forma as adjusted basis as of June 30, 2022 would have been USD$● per Common Share). This amount represents an immediate increase in net tangible book value of USD$● per Common Share to our existing shareholders and an immediate dilution of USD$● per Common Share to new investors purchasing Common Shares in this offering. We determine dilution by subtracting the pro forma as adjusted net tangible book value per share after this offering from the amount of cash that a new investor paid for a Common Share.
The following table illustrates this dilution:
| Assumed public offering price per unit | USD$ | ● | ||
| As adjusted net tangible book value per share as of June 30, 2022 (1) | USD$ | ● | ||
| Increase per share attributable to this offering (2) | USD$ | ● | ||
| As adjusted net tangible book value per share after this offering (2) | USD$ | ● | ||
| Dilution per share to new investors in this offering (3) | USD$ | ● |
A USD$1.00 increase (decrease) in the assumed public offering price of USD$ ● per Unit, would increase the as adjusted net tangible book value per share by USD$●, and increase dilution to new investors by USD$● per share, in each case assuming that the number of shares offered by us, as set forth on the cover page of this prospectus, remains the same and after deducting underwriting discounts and commissions and estimated offering expenses payable by us.
The foregoing discussion and table do not take into account further dilution to new investors that could occur upon the exercise of outstanding warrants having a per share exercise or conversion price less than the per share offering price to the public in this offering.
If the underwriters exercise in full their option to purchase additional Common Shares in this offering, the as adjusted net tangible book value after the offering would be USD$● per share, the increase in net tangible book value to existing shareholders would be USD$● per share, and the dilution to new investors would be USD$● per share, in each case assuming a public offering price of USD$● per share.
The number of shares of our Common Shares to be outstanding after this offering is based on 116,556,773 (● shares following the Reverse Split) of our Common Shares outstanding, as of ●, 2022 and excludes:
| ● | 16,540,000 shares (● shares following the Reverse Split) of our Common Shares issuable upon the exercise of stock options outstanding as of ●, 2022 under our 2018 Stock Option Plan, with a weighted-average exercise price of CAD$0.47 (CAD$● per share following the Reverse Split); | |
| ● | 943,516 Common Shares (● Common Shares following the Reverse Split) reserved for future issuance under our 2018 Stock Option Plan; | |
| ● | 33,726,499 Common Shares (● Common Shares following the Reverse Split) issuable upon the exercise of outstanding warrants with a weighted average exercise price of USD$● per share (USD$● per share following the Reverse Split); | |
| ● | up to ● Common Shares issuable upon the exercise of the Warrants included in the Units offered hereby at an exercise price of USD$● per share; and | |
| ● | up to ● Common Shares issuable upon exercise of Representative’s Warrants to be issued to the underwriter in connection with this offering, which will have an exercise price of USD$● per share. |
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MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion and analysis of our financial condition and results of operations should be read in conjunction with our financial statements and the related notes included elsewhere in this prospectus. This discussion contains forward-looking statements reflecting our current expectations that involve risks and uncertainties. See “Disclosure Regarding Forward-Looking Statements” for a discussion of the uncertainties, risks, and assumptions associated with these statements. Actual results and the timing of events could differ materially from those discussed in our forward-looking statements as a result of many factors, including those set forth under “Risk Factors” and elsewhere in this prospectus
CORPORATE Overview
Sekur Private Data Ltd. (the “Company,” “Sekur,” “we,” “us,” or “our”) (formerly GlobeX Data Ltd.) (the “Company”) was incorporated under the Business Corporations Act (British Columbia) on March 1, 2017 and completed its initial public offering (“IPO”) during the year ended December 31, 2019. The Company’s Common Shares and tradeable warrants were listed on the Canadian Securities Exchange effective July 22, 2019 under the symbols “SWIS” and “SWIS.WT”, respectively. On November 5, 2019, the Company’s Common Shares began trading on the OTCQB Venture Market with the trading symbol SWISF. On April 14, 2022, the Company changed its name to Sekur Private Data Ltd. and the Company’s Common Shares and tradable warrants were listed on the Canadian Securities Exchange under the new symbols “SKUR” and “SKUR.WT”, respectively. The Company began trading on the OTCQX as of April 29, 2022 under the trading symbol SWISF.
Sekur Private Data Ltd. is a Cybersecurity and Internet Privacy provider of Swiss hosted solutions for secure communications and secure data management. The Company distributes a suite of encrypted e-mails, secure messaging and secure communications and a suite of cloud-based storage, disaster recovery and document management, tools. Sekur Private Data Ltd. sells its solutions through its websites sekur.com and sekursuite.com, and through its approved distributors, and telecommunications companies worldwide. Sekur Private Data Ltd. serves consumers, businesses and governments worldwide.
The Company is the exclusive worldwide distributor and license holder of a full suite of encrypted emails and secure communication, secure cloud-based storage and document management, solutions, primarily Sekur, SekurMail, SekurMessenger, SekurSuite (collectively, the “Products”). The Company primarily sells its Products directly to individual customers and businesses through its websites sekur.com and sekursuite.com, and through its approved distributors, and telecommunications companies worldwide. The Company serves consumers, businesses and governments worldwide. The Products, all of which are currently in use by customers, were developed by GlobeX Data S.A., a privately held Swiss based privacy, cyber security and secure communications company (previously defined as “GDSA”) and licensed to the Company in perpetuity.
On May 7, 2017, the Company entered into a licensing agreement (previously defined as the “Global License Agreement”) with GDSA to market/distribute the Products globally except in Switzerland, Liechtenstein, The Principality of Monte Carlo, The Vatican City State, The Grand-Duchy of Luxembourg, the U.S. and Canada. On March 29, 2018, the Company acquired 100% of the issued and outstanding securities of GlobeX US via a securities purchase agreement whereby the shareholder of the Company received 25,000,000 Common Shares as consideration. GlobeX US has an exclusive license with GDSA to market/distribute the products in the U.S. and Canada.
On July 21, 2022, the Company entered into an Addendum (the “Addendum”)to the Global License Agreement with GDSA. This Addendum allows the Company to market/distribute the Products globally, including Switzerland, Lichtenstein, The Principality of Monte Carlo, The Vatican City State, The Grand-Duchy of Luxembourg. The Company is permitted to market the Products in Switzerland only through online sales, and is not permitted to enter into a physical Reseller relationship in Switzerland. All other countries globally are now open to market by the Company.
Since
2017, the Company, through GlobeX US, primarily marketed the Products to end users in North America directly to end users and through
some channel partners (“Channel Partners”).
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License Agreement with GlobeX Data S.A.
On May 7, 2017, the Company entered into a licensing agreement (the “Global License Agreement”) with GDSA to market/distribute the Products globally except in the U.S. and Canada. The term of the license is in perpetuity. However, GDSA has the right to terminate the Global License Agreement if the Company is in material breach of the Agreement so long as GDSA provides written notice. Material breaches would include failure to make payments to GDSA or bankruptcy of the Company.
In accordance with the terms of the Global License Agreement, the Company is required to pay a 10% gross revenue royalty to GDSA. Such royalties are to be paid within 90 days of receipt of funds.
In addition, the Company is responsible for the maintenance costs of the Products and shall indemnify GDSA for all costs associated with platform maintenance, partner integrations, server maintenance and any cost related to requests from partners for modifying or customizing the Products to meet the needs of the Company’s various selling partners and clients.
About GlobeX Data S.A.
GDSA was originally founded in 2007 by the Company’s Chief Executive Officer and President, Alain Mehdi Ghiai-Chamlou. GDSA has been developing and refining the Products since 2009. GDSA continues to refine and develop new features for the Products. Since 2012 it has been mostly involved in integrating its services through channel partners including the channel partners of GlobeX US. GDSA is a related party to the Company as Mr. Ghiai-Chamlou owns 60.15% of GDSA.
Acquisition of GlobeX Data Inc.
On March 29, 2018, the Company acquired 100% of the issued and outstanding securities of GlobeX US via a securities purchase agreement whereby a shareholder of the Company, who is also a director and an officer of the Company, received 25,000,000 Common Shares as consideration. In April 2017, GlobeX US signed the USA License Agreement with GDSA to act as the master reseller of GDSA’s products in the USA and Canada. In accordance with the terms of the USA License Agreement, GlobeX US is required to pay a 10% gross revenue royalty to GDSA. Such royalties are to be paid within 90 days of receipt of funds. The USA License Agreement replaced an original Software License Agreement dated September 20, 2012, between GlobeX US and GDSA that only permitted sales in the USA.
In addition, GlobeX US is responsible for the continuing maintenance of the Products and shall indemnify GDSA for all costs associated with platform maintenance, partner integrations, server maintenance and any cost related to requests from partners for modifying or customizing the Products to meet the needs of the Company’s various selling partners and clients.
In 2014, GlobeX US entered into a Reselling Agreement with Concrete Capital Privacy LLC, a Delaware company developing and distributing privacy services and identity theft services under the brand of GuardStreet. Under this agreement, GuardStreet embeds and resells SekurSuite to all its customers and, in exchange, GlobeX US receives a fixed fee per user on a monthly basis. This service is primarily sold wholesale by GuardStreet to large organizations such as travel companies, mass market service companies and insurance companies. In that same year, GlobeX US and GDSA collaborated on a brand awareness marketing program whereby GlobeX US hired a PR firm to introduce the Products in the USA and Canada mass market.
The Company’s head office and principal address is located at First Canadian Place, 100 King Street West, Suite 5600, Toronto, ON, Canada, M5X 1C9 and the registered and records office is located at 595 Howe Street, Suite 704, Vancouver, BC, Canada, V6C 2T5.
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Results of Operations
Year ended December 31, 2021
The following table sets forth in Canadian dollars a summary of the consolidated results of operations of the Company for the periods indicated, both in absolute amount and as a percentage of its total revenues.
2021 ($CAD) | 2020 ($CAD) | |||||||
| Revenues | 144,881 | 26,756 | ||||||
| Net loss for the year | (9,412,484 | ) | (1,319,495 | ) | ||||
| Net loss per share | (0.11 | ) | (0.02 | ) | ||||
| Basic Loss per share Pre-Reverse Split(1) | (0.11 | ) | (0.02 | ) | ||||
| Diluted Loss per share Pre-Reverse Split(1) | (0.11 | ) | (0.02 | ) | ||||
| Basic Loss per share Post-Reverse Split(1) | ● | ● | ||||||
| Diluted Loss per share Post-Reverse Split(1) | ● | ● | ||||||
| Total Assets | 12,855,799 | 3,193,820 | ||||||
| Total non-current financial liabilities(2) | - | - | ||||||
| Cash dividends declared in all classes of shares | - | - | ||||||
Notes:
(1) Basic and diluted loss per share in 2021 is CAD$0.11 per share (CAD$● loss per share following the Reverse Split based on ● shares) and CAD$0.02 in 2020 (CAD$● after taking into account the reverse split based on ● shares) and in 2019 basic and diluted loss per share of CAD$0.02 pre-reverse split based upon a weighted average Common Shares outstanding of ● (basic and diluted loss per share of CAD$● after taking into account the reverse split based upon weighted average shares outstanding of ●).
(2) Includes current and long-term debts and future purchase consideration
Six Month Period ended June 30, 2022 in Canadian dollars $
2022 ($CAD) | 2021 ($CAD) | |||||||
| Revenues | 201,400 | 18,841 | ||||||
| Net loss for the Period | (3,936,056 | ) | (2,263,626 | ) | ||||
| Net loss per share | (0.03 | ) | (0.03 | ) | ||||
| Basic Loss per share Pre-Reverse Split(1) | (0.03 | ) | (0.03 | ) | ||||
| Diluted Loss per share Pre-Reverse Split(1) | (0.03 | ) | (0.03 | ) | ||||
| Basic Loss per share Post-Reverse Split(1) | ● | ● | ||||||
| Diluted Loss per share Post-Reverse Split(1) | ● | ● | ||||||
| Total Assets | 9,860,205 | 7,030,750 | ||||||
| Total non-current financial liabilities(2) | - | - | ||||||
| Cash dividends declared in all classes of shares | - | - | ||||||
Notes:
(1) Basic and diluted loss per share in 2022 is CAD$0.03 per share (CAD$● loss per share following the Reverse Split based on ● shares) and CAD$0.03 in 2020 (CAD$● after taking into account the reverse split based on ● shares) based upon a weighted average Common Shares outstanding of ● (basic and diluted loss per share of CAD$● after taking into account the reverse split based upon weighted average shares outstanding of ●).
(2) Includes current and long-term debts and future purchase consideration.
SIGNIFICANT HIGHLIGHTS
Year ended December 31, 2021 in Canadian dollars $
During the period reflected, the Company achieved various milestones such as:
In January 2021, the Company closed a private placement consisting of 9,150,000 units at a price of CAD$0.12 per unit for proceeds of CAD$1,098,000. Each unit consists of one Common Share and one share purchase warrant. Each warrant entitles the holder to purchase an additional share at a price of CAD$0.15 per share for two years.
The Company also granted 3,500,000 stock options to an officer and director of the Company at an exercise price of CAD$0.25 expiring January 20, 2026.
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In February 2021, the Company signed its first distribution agreement for its Sekur secure communications solution, in the Commonwealth of Australia, as part of a broader strategy to expand in Australia and New Zealand.
In March 2021, the Company closed a private placement consisting of 4,076,400 units at a price of CAD$0.30 per unit for proceeds of CAD$1,222,920. Each unit consists of one Common Share and one-half of a share purchase warrant. Each full warrant entitles the holder to purchase an additional share at a price of CAD$0.50 per share for two years. Cash finder’s fees were paid of CAD$60,000.
In May 2021, the Company signed a Distribution Agreement for a distribution deal in Sri Lanka with Dialog Broadband Networks (Private) Limited, part of Sri Lanka based Dialog Axiata PLC, itself part of Malaysia based telecom giant Axiata Group Berhad.
In May 2021, the Company closed a private placement consisting of 7,256,927 units at a price of CAD$0.30 per unit for proceeds of CAD$2,177,078. Each unit consists of one Common Share and one-half of a share purchase warrant. Each full warrant entitles the holder to purchase an additional share at a price of CAD$0.50 per share for two years. Cash finder’s fees were paid of CAD$122,000.
In July 2021, the Company granted 6,320,000 stock options exercisable at a price of CAD$0.50 for ten years to directors, officers and consultants of the Company.
In July 2021, the Company started the launch of its Sekur encrypted email and messaging solution to the USA consumer market.
In September 2021, the Company closed a private placement consisting of 19,261,470 units at a price of CAD$0.33 per unit for proceeds of CAD$6,356,285. Each unit consists of one Common Share and one-half of a share purchase warrant. Each full warrant entitles the holder to purchase an additional share at a price of CAD$0.60 per share for two years. Cash finder’s fees were paid of CAD$328,314.
In November 2021, the Company closed a private placement consisting of 5,355,510 units at a price of CAD$0.40 per unit for proceeds of CAD$2,142,204. Each unit consists of one Common Share and one-half of a share purchase warrant. Each full warrant entitles the holder to purchase an additional share at a price of CAD$0.80 per share for two years. Cash finder’s fees were paid of CAD$20,000.
In December 2021, the Company granted 4,180,000 stock options exercisable at a price of CAD$0.80 for ten years to directors, officers and consultants of the Company.
Six Month Period ended June 30, 2022 in Canadian dollars $
The following highlights and developments for the period ended June 30, 2022 and to the date of this MD&A:
In April 2022, the Company closed a private placement consisting of 2,321,585 units at a price of CAD$0.35 per unit for proceeds of CAD$812,555. Each unit consists of one Common Share and one share purchase warrant.
Each warrant entitles the holder to purchase an additional share at a price of CAD$0.70 per share for two years.
In April 2022, the Company changed its name to Sekur Private Data Ltd.
In April 2022, the Company began trading on the OTCQX under the trading symbol SWISF.
In May 2022, the Company issued 150,000 Common Shares at a fair value of CAD$56,250 for marketing services.
During the period ended June 30, 2022, the Company received proceeds of CAD$73,550 from the exercise of 384,000 warrants.
Subsequent to the period ended June 30, 2022, the Company received proceeds of CAD$47,000 from the exercise of 313,334 warrants.
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Critical Accounting Policies, Judgments and Estimates
Statement of compliance
The accompanying consolidated financial statements, including comparatives, have been prepared in accordance with International Financial Reporting Standards (“IFRS”) as issued by the International Accounting Standards Board (“IASB”) and Interpretations of the International Financial Reporting Interpretations Committee (“IFRIC”).
Basis of consolidation and presentation
The accompanying consolidated financial statements of the Company have been prepared on the historical cost basis, except for financial instruments classified as financial instruments at fair value through profit and loss, which are stated at their fair value. In addition, the consolidated financial statements have been prepared using the accrual basis of accounting, except for the statement of cash flows.
The accompanying consolidated financial statements incorporate the financial statements of the Company and its wholly controlled subsidiaries. Control exists when the Company has the power, directly or indirectly, to govern the financial and operating policies of an entity so as to obtain benefits from its activities. The consolidated financial statements include the accounts of the Company and its direct wholly-owned subsidiaries. All intercompany transactions and balances have been eliminated.
The accompanying consolidated financial statements include the accounts of the Company and its wholly-owned subsidiaries:
| Name of Subsidiary | Place of Incorporation | Ownership | ||
| Globex Data Inc. | Delaware, USA | 100% |
The accompanying consolidated financial statements of the Company are presented in Canadian dollars, which is the functional currency of the Company.
Foreign currency translation
Items included in the Company’s accompanying financial statements of each entity in the Company are measured using the currency of the primary economic environment in which the entity operates (the “functional currency”) and has been determined for each entity within the Company. The functional currency of Sekur Private Data Ltd. is the Canadian dollar and its wholly owned subsidiary Globex Data Inc. uses the United States dollar as its functional currency. The functional currency determinations were conducted through an analysis of the consideration factors identified in IASB.
The Effects of Changes in Foreign Exchange Rates.
Assets and liabilities of entities with a functional currency other than the Canadian dollar are translated into Canadian dollars at period end exchange rates. Income and expenses, and cash flows are translated into Canadian dollars using the average exchange rate. Exchange differences resulting from the translation of United States operations are recognized in other comprehensive income (loss) and accumulated in equity.
Transactions in currencies other than the entity’s functional currency are translated at the exchange rates in effect on the date of the transaction. Monetary assets and liabilities denominated in foreign currencies are translated at the rate of exchange in effect as at the statement of financial position date. Non-monetary assets and liabilities denominated in foreign currencies are translated at the exchange rates prevailing at the time of the acquisition of the assets or assumption of the liabilities. Foreign currency differences arising on translation are recognized in the statement of loss and comprehensive loss.
Use of estimates and judgements
The preparation of the Company’s accompanying consolidated financial statements in conformity with IFRS requires management to make estimates, judgments and assumptions that affect the application of accounting policies and the reported amounts of assets, liabilities, income and expenses. Actual results may differ from these estimates.
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Estimates and underlying assumptions are reviewed on an ongoing basis. Revisions to accounting estimates are recognized in the period in which the estimates are revised and in any future periods affected. Information about critical estimates in applying accounting policies that have the most significant effect on the amounts recognized in the consolidated financial statements are, but not limited to the following:
| a) | Ability to continue as a going concern – evaluation of the ability of the Company to realize its strategy for funding its future needs for working capital involves making judgments. | |
| b) | Equipment – equipment is depreciated over the estimated useful life of the asset to the asset’s estimated residual value as determined by management. Assessing the reasonableness of the estimated useful life, residual value and the appropriate depreciation methodology requires judgment and is based on management’s experience and knowledge of the industry. | |
| c) | Impairment – an evaluation of whether or not an asset is impaired involves consideration of whether indicators of impairment exist. Factors which could indicate impairment exists include: significant underperformance of an asset relative to historical or projected operating results, significant changes in the manner in which an asset is used or in the Company’s overall business strategy, the carrying amount of the net assets of the Company being more than its market capitalization or significant negative industry or economic trends. In some cases, these events are clear. However, in many cases, a clearly identifiable event indicating possible impairment does not occur. Instead, a series of individually insignificant events occur over a period of time leading to an indication that an asset may be impaired. Events can occur in these situations that may not be known until a date subsequent to their occurrence. When there is an indicator of impairment, the recoverable amount of the asset is estimated to determine the amount of impairment, if any. If indicators conclude that the asset is no longer impaired, the Company will reverse impairment losses on assets only to the extent that the asset’s carrying amount does not exceed the carrying amount that would have been determined, net of depreciation or amortization, if no impairment loss had been r to determining if an impairment exists, judgment is required in assessing if a reversal of an impairment loss is required. |
New accounting pronouncements
The Company did not adopt any new accounting standards during the year ended December 31, 2021 or the six month period ended June 30, 2022.
RESULTS OF OPERATIONS
Years Ended December 31, 2021 and 2020
The following table sets forth a summary of its results of operations for the periods indicated in Canadian dollars, both in absolute amount and as a percentage of its total revenues.
December 31, 2021 ($CAD) | December 31, 2020 ($CAD) | |||||||
| Revenues | 144,881 | 26,756 | ||||||
| Comprehensive Loss for the year | (9,524,672 | ) | (1,354,033 | ) | ||||
| Net loss for the year | (9,412,484 | ) | (1,319,495 | ) | ||||
| Net loss per share | (0.11 | ) | (0.02 | ) | ||||
| Basic Pre-Reverse Split(1) | (0.11 | ) | (0.02 | ) | ||||
| Diluted Pre-Reverse Split(1) | ||||||||
| Basic Post-Reverse Split(1) | ||||||||
| Diluted Pre-Reverse Split(1) | ||||||||
| Total Assets | 12,855,799 | 3,193,820 | ||||||
| Total non-current financial liabilities(2) | - | - | ||||||
| Cash dividends declared in all classes of shares | - | - | ||||||
| (1) | This information is based on figures prior to the Reverse Split. After taking into account the Reverse Split, the Basic and Diluted net loss per share is CAD$● in 2021 and CAD$● in 2020 |
| (2) | Includes current and long-term debts and future purchase consideration |
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The following is an analysis of the Company’s operating results in Canadian dollars for the year ended December 31, 2021 and includes a comparison against the year ended December 31, 2020.
Revenues in Canadian dollars $
The Company reported revenues of CAD$144,881 during the year ended December 31, 2021 compared to revenues of CAD$26,756 during the year ended December 31, 2020. The variance is due to increase of new customers in the current year as compared to the previous year. The Company does not have any cost of sales associated with its revenues as their sales are from direct website purchases or the sales are provided net of any agreements with channel partners as the customers purchase the services from the channel partner.
Expenses in Canadian dollars $
The net loss for the year ended December 31, 2021 was CAD$9,412,484 as compared to a net loss of CAD$1,319,495 for the year ended December 31, 2020. Significant variances include:
Marketing for the year ended December 31, 2021 was CAD$3,796,378 compared to CAD$153,333 for the year ended December 31, 2020. The increase in marketing fees is primarily due to the launch of the Company’s Sekur encrypted email and messaging solution to mass market consumers in the USA. The launch officially started in July 2021.
Software maintenance for the year ended December 31, 2021 was CAD$794,149 compared to CAD$409,714 for the year ended December 31, 2020. Software maintenance relates to invoiced amounts from GDSA and third parties for software maintenance, new Products, and integration costs and varies period to period. As the Company engages significant distribution partners, GDSA has agreed to implement all improvements to existing products and integrate the products into the distribution partners software ecosystem. As a result, the Company must cover the IT costs related to the integrations or improvements of products.
Amortization and Depreciation in Canadian dollars $
Amortization and depreciation costs for the year ended December 31, 2021 was CAD$6,198 compared to CAD$Nil for the same period in the previous year.
General and Administrative Costs in Canadian dollars $
(audited) (CAD$) |
(audited) (CAD$) | |||||||
| Accounting and audit | 66,395 | 53,754 | ||||||
| Consulting fees | 139,008 | 119,345 | ||||||
| Depreciation | 6,198 | - | ||||||
| Legal | 8,428 | 4,384 | ||||||
| Licensee Fees | 14,431 | 2,675 | ||||||
| Marketing | 3,796,378 | 153,333 | ||||||
| Office and administration | 52,044 | 44,931 | ||||||
| Rent and virtual office | 35,656 | 38,075 | ||||||
| Share-based payments | 4,555,966 | 461,803 | ||||||
| Software maintenance | 794,149 | 409,714 | ||||||
| Transfer agent and filing fees | 48,789 | 35,453 | ||||||
| Travel | 7,230 | 30,566 | ||||||
| Total | 9,524,672 | 1,354,033 | ||||||
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General and administrative costs for the year ended December 31, 2021 were CAD$9,524,672 compared to CAD$1,354,033 for the same period in the previous year. This increase primarily relates to significant increases in marketing and share-based payments. In addition, the Company showed increases in accounting and audit, consulting, legal, licensee fees, office administration, software maintenance and transfer agent and filing fees. The Company also recorded depreciation of CAD$6,198 in fiscal 2021 and did not record any depreciation in 2020. The increase in general and administrative expenses were offset in part by decreases in rent and virtual office and travel expenses.
Share-based Payments in Canadian dollars $
Share-based payments for the year ended December 31, 2021 was CAD$4,555,966 compared to CAD$461,803 for the year ended December 31, 2020. During the current year the Company granted 14,000,000 (2020 – 5,160,000) stock options calculated using the Black-Scholes option pricing model.
Interest Income in Canadian dollars $
Interest income for the year ended December 31, 2021, was CAD$7,046 compared to CAD$5,660 for the same period in the previous year for a positive variance of CAD$1,386. This positive variance resulted from an increase in short-term interest income during the current year with its financial institution.
Foreign Exchange Loss in Canadian dollars $
Foreign exchange loss (income) for the year ended December 31, 2021 of CAD$(39,739) compared to foreign exchange loss of CAD$2,122 for the same period in the previous year for a negative variance of (CAD$41,861). This variance resulted from foreign currency fluctuations in the period.
Net income (loss) for the period in Canadian dollars $
The Company experienced a net loss for the year ended December 31, 2021 of CAD$9,412,484 as compared to net loss of CAD$1,319,495 for the previous fiscal year representing an increase by CAD$8,092,989. This increase is due to significant increases in general and administrative expenses. The increase was offset by an increase in revenues and a gain recorded in other items of CAD$32,693 as compared to a loss of CAD$7,782 from the prior year.
Six Month Periods ended June 30, 2022 and 2021
The following table sets forth a summary of its results of operations for the periods indicated in Canadian dollars, both in absolute amount and as a percentage of its total revenues.
June 30, 2022 ($CAD) | June 30, 2021 ($CAD) | |||||||
| Revenues | 201,400 | 18,841 | ||||||
| Comprehensive Loss for the period | (3,936,056 | ) | (2,263,626 | ) | ||||
| Net loss for the period | (3,936,056 | ) | (2,263,626 | ) | ||||
| Net loss per share | (0.03 | ) | (0.03 | ) | ||||
| Basic Pre-Reverse Split(1) | (0.03 | ) | (0.03 | ) | ||||
| Diluted Pre-Reverse Split(1) | ||||||||
| Basic Post-Reverse Split(1) | ||||||||
| Diluted Pre-Reverse Split(1) | ||||||||
| Total Assets | 9,860,205 | 7,030,750 | ||||||
| Total non-current financial liabilities(2) | - | - | ||||||
| Cash dividends declared in all classes of shares | - | - | ||||||
| (1) | This information is based on figures prior to the Reverse Split. After taking into account the Reverse Split, the Basic and Diluted net loss per share is CAD$● in 2022 and CAD$● in 2021. |
| (2) | Includes current and long-term debts and future purchase consideration. |
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The following is an analysis of the Company’s operating results in Canadian dollars for the period ended June 30, 2022 and includes a comparison against the period ended June 30, 2021.
Revenues in Canadian dollars $
The Company reported revenues of CAD$201,400 during the period ended June 30, 2022 compared to revenues of CAD$18,841 during the period ended June 30, 2021. The variance is due to increase of new customers in the current period as compared to the same period of the previous year. The Company does not have any cost of sales associated with its revenues as their sales are from direct website purchases or the sales are provided net of any agreements with channel partners as the customers purchase the services from the channel partner.
Expenses in Canadian dollars $
The net loss for the period ended June 30, 2022 was CAD$3,936,056 as compared to a net loss of CAD$2,263,626 for the period ended June 30, 2021. Significant variances include:
Marketing for the period ended June 30, 2022 was CAD$3,246,206 compared to CAD$954,268 for the period ended June 30, 2021. The increase in marketing fees is primarily due to the launch of the Company’s Sekur encrypted email and messaging solution to mass market consumers in the USA. The launch officially started in July 2021.
Software maintenance for the period ended June 30, 2022 was CAD$575,945 compared to CAD$440,657 for the period ended June 30, 2021 . Software maintenance relates to invoiced amounts from GDSA and third parties for software maintenance and integration costs and varies period to period. As the Company engages significant distribution partners, GDSA has agreed to integrate the products into the distribution partners software ecosystem. As a result, the Company must cover the IT costs related to the integrations. The Company does not have a formal research and development policy. Feature additions and software updates are completed by GDSA at the Company’s request.
Amortization and Depreciation in Canadian dollars $
Amortization and depreciation costs for the period ended June 30, 2022 was CAD$48,266 compared to CAD$Nil for the same period in the previous period.
General and Administrative Costs in Canadian dollars $
(unaudited) ($CAD) |
(unaudited) ($CAD) | |||||||
| Accounting and audit | 47,980 | 28,375 | ||||||
| Consulting fees | 26,660 | 113,080 | ||||||
| Depreciation | 48,266 | - | ||||||
| Legal | 20,952 | 7,046 | ||||||
| Licensee Fees | 18,908 | 1,862 | ||||||
| Marketing | 3,246,206 | 954,268 | ||||||
| Office and administration | 40,971 | 18,652 | ||||||
| Rent and virtual office | 12,615 | 10,715 | ||||||
| Share-based payments | - | 663,493 | ||||||
| Software maintenance | 575,945 | 440,657 | ||||||
| Transfer agent and filing fees | 51,654 | 25,931 | ||||||
| Travel | 37,624 | - | ||||||
| Total | 4,127,781 | 2,264,079 | ||||||
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General and administrative costs for the period ended June 30, 2022 were CAD$4,127,781 compared to CAD$2,264,079 for the same period in the previous period. This increase primarily relates to a significant increase in marketing. In addition, the Company showed increases in accounting and audit, consulting, licensee fees, office administration, and transfer agent and filing fees. The Company also recorded depreciation of CAD$48,266 and travel of CAD$37,624 in the current period and did not record any depreciation or travel in the previous period. The increase in general and administrative expenses were offset in part by the fact that no share based payments were recorded in current period and by decreases in consulting fees, legal, rent and virtual office, and software maintenance expenses.
Share-based Payments in Canadian dollars $
Share-based payments for the period ended June 30, 2022 was CAD$Nil compared to CAD$663,493 for the period ended June 30, 2021. During the current period the Company granted no stock options. During the previous period the Company granted 3,500,000 stock options calculated using the Black-Scholes option pricing model.
Interest Income in Canadian dollars $
Interest income for the period ended June 30, 2022, was CAD$11,722 compared to CAD$387 for the same period in the previous period for a positive variance of CAD$11,335. This positive variance resulted from an increase in short-term interest income during the current year with its financial institution.
Foreign Exchange Loss in Canadian dollars $
Foreign exchange loss for the period ended June 30, 2022 of CAD$21,397 compared to foreign exchange loss of CAD$18,775 for the same period in the previous period for a negative variance of CAD$2,622. This variance resulted from foreign currency fluctuations in the period.
Net income (loss) for the period in Canadian dollars $
The Company experienced a net loss for the period ended June 30, 2022 of CAD$3,936,056 as compared to net loss of CAD$2,263,626 for the same period in the previous period representing an increase by CAD$1,672,430. This increase is due to significant increases in general and administrative expenses. The increase was offset in part by an increase in revenues.
LIQUIDITY AND CAPITAL RESOURCES
The Company’s future capital requirements will depend upon many factors including, without limitation, the success of its marketing and distribution channels. The Company has limited capital resources and has to rely upon the sale of equity securities for cash required for marketing the products, paying for software maintenance and development, and to fund the administration of the Company. Since the Company does not expect to generate any substantial revenues from operations in the immediate future, it must continue to rely upon the sales of its equity and debt securities to raise capital, which would result in further dilution to the shareholders. There is no assurance that financing, whether debt or equity, will be available to the Company in the amount required by the Company at any particular time or for any period and that such financing can be obtained on terms satisfactory to the Company or at all. See “Risk Factors”. The Company believes that it has sufficient cash resources to meet is its plans and requirements in the next twelve months and upon completion of the Offering the Company expects to have sufficient cash resources to meet its plans and requirements beyond twelve months.
As at December 31, 2021 the Company had a cash balance of CAD$8,812,477 compared to CAD$494,927 in December 31, 2020. As at December 31, 2021, the Company had an accumulated deficit of CAD$13,485,551 compared to CAD$4,073,067 as of December 31, 2020, and working capital of CAD$9,505,862 compared to CAD$554,456 as of December 31, 2020.
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As at June 30, 2022 the Company had a cash balance of CAD$6,386,716 compared to CAD$8,812,477in December 31, 2021. As at June 30, 2022, the Company had an accumulated deficit of CAD$17,421,607 compared to CAD$13,485,551 as of December 31, 2021, and working capital of CAD$6,600,177 compared to CAD$9,505,862 as of December 31, 2021.
The following table sets forth a summary in Canadian dollars of its cash flows for the periods indicated:
As of December 31, 2021 ($CAD) | As of December 31, 2020 ($CAD) | |||||||
| Net cash used in operating activities | (4,906,418 | ) | (888,090 | ) | ||||
| Net cash from financing activities | 13,884,824 | 417,664 | ||||||
| Net cash used in investing activities | (673,098 | ) | - | |||||
As of June 30, 2022 ($CAD) | As of June 30, 2021 ($CAD) | |||||||
| Net cash used in operating activities | (3,351,616 | ) | (1,628,667 | ) | ||||
| Net cash from financing activities | 925,855 | 5,387,953 | ||||||
| Net cash used in investing activities | - | - | ||||||
Cash (used in) provided by operating activities in Canadian dollars $
Net cash flows used in operating activities for the year ended December 31, 2021 were (CAD$4,906,418) compared with cash used of (CAD$888,090) in the same period of the prior year. The increase in cash used in operating activities was primarily due to the increases in share-based payments, marketing, accounts payable and accrued liabilities and license fees payable. The Company also reports depreciation and shares issued for marketing services in 2021. The increase was offset in part by increases in prepaid expenses, receivables and the recording of foreign exchange gains.
Net cash flows used in operating activities for the period ended June 30, 2022 were (CAD$3,351,616) compared with cash used of (CAD$1,628,667) in the same period of the prior year. The increase in cash used in operating activities was primarily due to the increases in accounts payable and accrued liabilities. The increase was offset in part by decreases in receivables, prepaid expenses, licensee fees payable and the fact that the Company recorded share based payments during the period ended June 30, 2022 and did not record share based payments during the period ended June 30, 2021.
Cash (used in) provided by investing activities in Canadian dollars $
Net cash flows used in investing activities for the year ended December 31, 2021 was CAD$673,098 compared with CAD$Nil in the prior year. This increase relates primarily to costs incurred for acquiring additional servers.
Net cash flows used in investing activities for the period ended June 30, 2022 and 2021 was CAD$Nil.
Cash used in financing activities in Canadian dollars $
December 31, 2021 ($CAD) | December 31, 2020 ($CAD) | |||||||
| Financing activities: | ||||||||
| Shares issued for cash | 12,973,707 | 403,228 | ||||||
| Share issue costs | (547,914 | ) | (8,344 | ) | ||||
| Shares subscribed | - | 22,780 | ||||||
| Exercise of stock options | 330,400 | - | ||||||
| Exercise of warrants | 1,128,631 | - | ||||||
| Net cash from financing activities | 13,884,824 | 417,664 | ||||||
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Net cash provided by financing activities for the year ended December 31, 2021 was CAD$13,884,824 compared to CAD$417,664 in December 31, 2020. This increase relates to the proceeds received from an increase in private placements financings and the exercises of stock options and warrants during the period. This increase was partially offset by an increase in share issue costs and the recording of share subscriptions in fiscal 2020.
June 30, 2022 ($CAD) | June 30, 2021 ($CAD) | |||||||
| Financing activities: | ||||||||
| Shares issued for cash | 812,555 | 4,525,258 | ||||||
| Share issue costs | - | (249,640 | ) | |||||
| Exercise of stock options | - | 330,400 | ||||||
| Exercise of warrants | 73,550 | 781,935 | ||||||
| Shares subscribed | 39,750 | - | ||||||
| Net cash from financing activities | 925,855 | 5,387,953 | ||||||
Net cash provided by financing activities for the period ended June 30, 2022 was CAD$925,855 compared to CAD$5,387,953 for June 30, 2021 .. This decrease relates to the fact that the Company did not complete as many financings in the period ended June 30, 2022. During the period ended June 30, 2021, the Company received proceeds from private placements financings and the exercises of stock options and warrants during the period.
The Company’s future capital requirements will depend upon many factors including, without limitation, the success of its marketing and distribution channels. The Company has limited capital resources and has to rely upon the sale of equity securities for cash required for marketing the products, paying for software maintenance and development, and to fund the administration of the Company. Since the Company does not expect to generate any substantial revenues from operations in the immediate future, it must continue to rely upon the sales of its equity and debt securities to raise capital, which would result in further dilution to the shareholders. There is no assurance that financing, whether debt or equity, will be available to the Company in the amount required by the Company at any particular time or for any period and that such financing can be obtained on terms satisfactory to the Company or at all.
Financial Instruments
Financial instruments measured at fair value are classified into one of three levels in the fair value hierarchy according to the relative reliability of the inputs used to estimate the fair values.
Financial instruments measured at fair value are classified into three levels in the fair value hierarchy according to the relative reliability of the inputs used to estimate the fair values. The three levels of the fair value hierarchy are:
Level 1 – Unadjusted quoted prices in active markets for identical assets or liabilities;
Level 2 – Inputs other than quoted prices that are observable for the asset or liability either directly or indirectly;
Level 3 – Inputs that are not based on observable market data.
The fair value of the Company’s receivables (excluding GST), accounts payable and accrued liabilities, due to related parties and licensee fees payable approximate their carrying value. The Company’s other financial instrument, being cash and cash equivalents, is measured at fair value using Level 1 inputs.
The Company is exposed to varying degrees to a variety of financial instrument related risks:
Credit risk
Credit risk is the risk that one party to a financial instrument will fail to discharge an obligation and cause the other party to incur a financial loss. The Company’s primary exposure to credit risk is on its cash and cash equivalents held in bank and investment accounts. The Company has deposited the cash with its bank from which management believes the risk of loss is remote.
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Liquidity risk
Liquidity risk is the risk that the Company will not be able to meet its financial obligations as they become due. The Company’s approach to managing liquidity is to ensure that it will have sufficient liquidity to meet liabilities when due. Accounts payable and accrued liabilities are due within the current operating year. The Company has a sufficient cash balance to settle current liabilities.
Currency Risk
Market risk is the risk that changes in market prices, such as foreign exchange rates, interest rates and equity prices will affect the Company’s income or the value of its holdings of financial instruments. The objective of market risk management is to manage and control market risk exposures within acceptable parameters, while optimizing the return.
A portion of the Company’s financial assets and liabilities are denominated in US dollars. The Company monitors this exposure, but has no hedge positions. The Company is exposed to currency risk on fluctuations related to cash, accounts payable and accrued liabilities and licensee fees payable that are denominated in US dollars. At December 31, 2021, a 10% change in the value to the USA dollar as compared to the Canadian dollar would not have a significant effect on net loss. At June 30, 2022, a 10% change in the value to the USA dollar as compared to the Canadian dollar would not have a significant effect on net loss.
Interest Rate Risk
Interest rate risk is the risk that the fair value of future cash flows of a financial instrument will fluctuate because of changes in market interest rates. The Company is exposed to interest rate risk, from time to time, on its cash balances. Surplus cash, if any, is placed on call with financial institutions and management actively negotiates favorable market related interest rates.
Off-Balance Sheet Arrangements
The Company has no off-balance sheet arrangements, including arrangements that would affect its liquidity, capital resources, market risk support, and credit risk support or other benefits.
Contractual Obligations
During the year ended December 31, 2021, the Company entered into three production and broadcasting agreements with a media services company (“AMI”) in the United States to assist the Company in furthering its media awareness through television, production, media analysis and procurement as follows:
(a) May 10, 2021 – 14-month campaign: development of a biography format television show, production of 14 specialized Nasdaq interviews, tech reports and emerging growth articles, broadcast of the interviews via five media outlets, production and broadcast a minimum of 30 commercials per month and social media support. As compensation for performing these services, AMI will receive USD$15,000 per month and 500,000 Common Shares of the Company;
(b) June 1, 2021 – 14-month campaign: broadcast a minimum of two security segments per month via two media outlets. As compensation for performing these services, AMI will receive USD$5,000 per month and 500,000 Common Shares of the Company. The Company has the right to produce two additional segments, at USD$2,500 per segment, for a maximum of four segments per month; and
(c) October 25, 2021 – 18-month marketing campaign: as for the May 10, 2021 agreement. As compensation for performing these services, AMI will receive USD$30,000 per month and 300,000 Common Shares of the Company.
On December 23, 2021, an aggregate of 1,300,000 Common Shares of the Company were issued to AMI at a value of CAD$572,000 based on the Company’s share price of CAD$0.44 on that date. During the year ended December 31, 2021, CAD$268,714, of this amount is included in marketing expense and CAD$303,286 is included in prepaid expenses.
Future Financings
The Company may sell its Common Shares in order to fund its business growth. Issuances of additional shares will result in dilution to existing shareholders. There is no assurance that the Company will achieve sales of the equity securities or arrange for debt or other financing to fund its growth in case it is necessary, or if the Company is able to do so, there is no guarantee that existing shareholders will not be substantially diluted.
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Total Revenues by Major Product Type in Canadian dollars $
The following table shows the Company’s revenue disaggregated by major product type:
| Year ended December 31, | ||||||||
2021 ($CAD) | 2020 ($CAD) | |||||||
| B2B individually/bulk | 6,496 | 5,657 | ||||||
| Sekur | 138,385 | 21,099 | ||||||
| 144,881 | 26,756 | |||||||
Total Revenues by geographical location in Canadian dollars $
The following table shows the Company’s revenue disaggregated by geographical location:
| Year ended December 31, | ||||||||
2020 ($CAD) | 2020 ($CAD) | |||||||
| Mexico | 585 | - | ||||||
| United States | 144,296 | 26,756 | ||||||
| 144,881 | 26,756 | |||||||
BUSINESS
Sekur Private Data Ltd. is a Cybersecurity and Internet Privacy provider of Swiss hosted solutions for secure communications and secure data management. The Company distributes a suite of encrypted e-mails, secure messaging and secure communications and a suite of cloud-based storage, disaster recovery and document management tools. Sekur Private Data Ltd. sells its solutions through its websites sekur.com and sekursuite.com, and through its approved distributors, and telecommunications companies worldwide. Sekur Private Data Ltd. serves consumers, businesses and governments worldwide.
Products
The Products have been developed by GDSA since 2009 and have been in use since 2011. GDSA continues to improve existing products and has a technical roadmap for more products in the pipeline. The Company, through its Global License Agreement with GDSA, has exclusive rights to license all existing and future products developed by GDSA. Currently, the Company is primarily selling three products: SekurSuite, SekurMessenger and SekurEmail. The Products are provided on a Software as a Service (“SaaS”) subscription model as discussed in the Distribution Model section.
In order to maintain Swiss privacy in accordance with Swiss data privacy laws, all data and data traffic are hosted and transmitted in secure servers located in Switzerland owned and operated by GDSA. GDSA owns its servers and does not lease them from any third party, nor does GDSA use third party cloud service providers such as Amazon Web Services, Microsoft Azure or Google cloud platforms.
GDSA counts among its clients individuals and small organizations from Switzerland and other countries in various industries such as financial, legal, industrial and service industries. GlobeX US has been using GDSA’s platform of products as well since 2012 and is continuing to sell GDSA’s products under license. Present clients of GlobeX US include a reseller named GuardStreet. GuardStreet bundles SekurSuite with its identity theft solution, which it sells to large consumer-based companies. The majority of GlobeX US’s client base comes from direct sales to consumers and small businesses through its websites sekur.com and sekursuite.com.
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Why Switzerland
Switzerland has a stable, prosperous and high-tech economy, enjoys great political and economic stability and isn’t prone to environmental risks, such as hurricanes, tsunamis, volcanos, earthquakes or floods. Switzerland also benefits from strict data protection laws such as the Swiss Federal Data Protection Act (“FADP”) and the Swiss Federal Data Protection Ordinance. The Swiss FADP is the data privacy law of Switzerland which regulates the processing of personal data from individuals inside Switzerland. While the FADP provides broad protections to personal data, on September 25, 2020, the Swiss federal Parliament enacted a revised version of the FADP, which is anticipated to become effective in 2022 or the beginning of 2023. The new version of the FADP is designed to align Swiss data protection law with the European General Data Protection Regulation 2016/679, commonly referred to as GDPR. The FADP provides an overall framework and deals with data protection using principles similar to those applied in other countries.
SekurSuite
SekurSuite is a full cloud-based product suite of data backup, file sharing, password management and communication tool designed for individual and business needs. Features include digital vault, multiple user management, access rights, collaborative functions, file-sharing, private label secure email hosted in Switzerland. Users can securely store and share any file type or password with anyone they wish, from business documents, bank and credit card account information, to PIN codes, personal records and Passwords. Simply login using any mobile device, tablet, laptop or desktop. Users can access SekurSuite through the web or download the SekurSuite iOS and Android applications. None of the data resides on the user’s device.
At SekurSuite, all the data, including the user authentication information, is transmitted over the Internet and stored on Swiss hosted servers in encrypted form. All connections to the servers, for all users, are protected with 2048-bit SSL encryption. This includes both inside and outside of the data center where servers are located. All data stored on disks and in the databases is double encrypted via a fast 256-bit AES method and with proprietary encryption methodologies from GDSA.
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SekurSuite is a cloud based document management, file share, password manager and email all in one. Features may differ between the individual consumer subscription and the business user subscription. The Company may also separate components of SekurSuite for individual sale.
SekurMail is a Swiss hosted secure email platform for enterprises. SekurMail transforms a user’s corporate email into a Secure and Private eMail and Collaboration Platform. Users have the option to use their preferred email connectivity client software using industry standard IMAP and SMTP protocols. For instance, Outlook can be used as your mail software connected to the SekurMail servers seamlessly. Businesses can move their domain hosting to SekurMail’s Swiss hosted secure hosting environment as well.
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Emails are basically insecure text files. Most email servers still communicate with each other over completely insecure channels. This means sensitive communications are openly readable by anyone capturing data on the Internet. SekurMail is an advanced and secure email message sending technology. Among its features, SecureSend allows users to control who reads messages and when. All data transmitted through SekurMail stays within secure servers in Switzerland.
For businesses, the SekurMail Secure eMail platform can replace traditional email installations with SekurMail’s domain hosting capabilities. Businesses can move their mail domain over to Swiss-hosted SekurMail and take advantage of SekurMail’s proprietary features, encryption and security technologies.
All data and traffic, including the user authentication information, is transmitted over the Internet and stored on Swiss hosted servers in encrypted form. All communications between SekurMail users are transmitted in Switzerland within the Swiss hosted secure servers. All connections to the servers, for all users, are protected with 2048 bit SSL encryption. This includes both inside and outside of the data center where servers are located. All data stored on disks and in the databases is double encrypted via a fast 256-bit AES method and with proprietary encryption methodologies from GDSA. SekurMail also uses DKIM Crypto Update - DomainKeys Identified Mail for anti-spoofing security and higher encryption key upgrade upgrading keys sizes from 512-2048 bits to 1024-4096 bits.
SekurMessenger
SekurMessenger is a Swiss secure communications application offering secure and private audio/video calling, chat, self deleting chat, file transfer and email via any mobile device, tablet or desktop. Users need to have a SekurMessenger account in order to communicate with other SekurMessenger users.
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SekurMessenger users can either use the SekurMessenger web site as their full-featured communications tool or download the SekurMessenger iOS and Android applications. None of the data resides on the user’s device.
All data and traffic, including the user authentication information, is transmitted over the Internet and stored on Swiss hosted servers in encrypted form. All communications between SekurMessenger users are transmitted in Switzerland within the Swiss hosted secure servers. All connections to the servers, for all users, are protected with 2048bit SSL encryption. This includes both inside and outside of the data center where servers are located. All data stored on disks and in the databases is double encrypted via a fast 256-bit AES method and with proprietary encryption methodologies from GDSA.
Software Platform Maintenance and Integrations
Under the terms of the Global Licensing Agreement the Company is responsible for all costs associated with maintaining the software platform hosting the products and any costs associated with making changes to the products or any work performed in relations to integrations with other resellers and telecommunications operators. The Company is also responsible for any additional infrastructure, such as servers as it grows its customer base and needs more storage and processing power. In addition, under the terms of the Software License Agreement between GDSA and GlobeX US, GlobeX US is also responsible for all costs associated with maintaining the software platform hosting the products and any costs associated with making changes to the products or any work performed in relation to integrations with other resellers and telecommunications operators. GlobeX US is also responsible for any additional infrastructure, such as servers as it grows its customer base and needs more storage and processing power. As a result of these agreements, the Company and GlobeX US must pay GDSA for costs associated with the development and maintenance of the products. These costs are allocated on a pro-rata basis based on user activity.
Upon signing up with a Channel Partner, the Company instructs GDSA to code integrations into the Products to allow the Products to be connected to and compatible with the Channel Partner’s databases and product platforms. The Company must pay for all of the costs incurred by GDSA in connection with these integrations.
The Company has asked GDSA to perform several integrations. As per instructions from the Company, GDSA has implemented a major integration with TelCel, the mobile division of America Movil in Mexico, the third largest telecommunications operator by subscriber base. The Company anticipates that it will need to complete further integrations before the end of 2022 in order to increase sales in Latin America, the USA and Europe, as the Company signs on more distributors and telecom operators. All upgrades on all products made by GDSA are inclusive in the Global License Agreement signed with the Company.
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The Company contracts GDSA and a staff of employees and contractors, managed by GDSA, in order to maintain, integrate and manage all its software. GDSA works with a team of 10 engineers in order to maintain the platforms in good condition, upgrade features and modify features to fit customers and resellers needs and to integrate its products to resellers billing and distribution platforms. Out of the 10 engineers, 5 are dedicated to maintaining and updating its products’ applications on iOS and Android systems, SekurSuite, SekurMail and SekurMessenger. These systems require constant maintenance and updating in order to meet industry standards set by iOS and Android. In addition, all systems are redundant in triple backup and have multiple power and location redundancy and failover features. As user base increases the Company will need more servers and more data center space to accommodate its user base.
Revenue Model
The Company’s revenue model is based on monthly recurring revenue per user (“MRR”). Each user pays a monthly fee to use the selected products also commonly referred to as services. In some cases, users pay a yearly fee and get a discount for paying the entire year in advance. This form of service is often referred to as Software As A Service, or SaaS.
Revenues are divided into several categories such as Direct to Consumer (“B2C”) and Business-to-Business (“B2B”). Each category charges a different price per service due to the volume of sales and the type of services sold. Some clients, such as government agencies, healthcare or financial institutions may require the Company to install servers in their local area in order to comply with country specific laws on data residency and data sovereignty. In this case, the Company ships its application servers to the client and installs and manages the services for that particular client. This service is called On-Premise. On-Premise service is usually more expensive as the Company needs to have a dedicated time to manage that particular location where the servers reside. Pricing to resellers and telecommunications operators depends on the type of product sold and the volume. The Company generally provides a discount to published pricing as seen on the websites of its products. The discount to published prices varies from 25% to a higher percentage and is kept in strict confidence as per NDAs signed between the Company and its reseller. The strategy is for the reseller to always be more competitive than the Company’s published prices.
The Company has mostly consumers and small businesses that purchase the services through the Company’s websites directly. The Company sponsors several YouTube influencers and places advertising on websites, such as banner ads, pre-roll videos and is working on organic search engine optimization. Additionally, the Company has contracted with AMI and has its own television show every Sunday, broadcast nationwide on NewsmaxTV, Fox Business TV and Bloomberg TV, the Sekur Privacy and Security segment, in order to educate its consumer and small business clients and promote its products. The Company also plans to increase its B2B revenues in the foreseeable future through partnership and a referral partnership program. To date, the Company has signed with a handful of resellers in Latin America, South Asia and the USA. The resellers represent less than 5% of the Company’s sales at the present time. The advantage of working with channel partners is that the Company has a lower marketing or advertising cost associated with the sale of its services.
Channel Partners Distribution Model
The Channel Partners distribution model is based on signing up Channel Partners, such as Managed Service Providers, resellers of cloud services and telecommunications companies serving mostly businesses. Partners are organized by type of products sold, by target markets and by geography. In order to spread its geographical exposure risk, the Company is spreading resellers in several key regions of high growth primarily in the emerging markets of Latin America and South Asia.
Geographic regions are divided into the following:
| ● | North America (NA) | |
| ● | Latin America (LATAM) | |
| ● | Asia Pacific (APAC) | |
| ● | India and the South Asian Association of Regional Cooperation (SAARC) | |
| ● | Europe, Middle East, Africa (EMEA) |
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Product Categories:
| ● | Small Business Sales | |
| ● | Enterprise Sales | |
| ● | Government Sales |
Small Business Sales, Enterprise Sales and Government include multiple user licenses that vary from five users per account to an unlimited amount of users per account.
Main Target Sectors:
| ● | Financial Services / Legal and Consulting | |
| ● | Telecommunications Operators | |
| ● | Managed Service Providers (MSPs) | |
| ● | Government | |
| ● | Healthcare |
Competition
The cloud content management market is large, highly competitive and highly fragmented. It is subject to rapidly evolving technologies, shifting customer needs and frequent introductions of new products and services. The Company faces competition from a broad spectrum of technology providers. The following is a non-exhaustive list of significant competitors to the Company’s business:
| CHAT | DATA STORAGE | PRIVACY/SECURITY AS PRIMARY SELLING FEATURE | ||||||
| Competitors: | ||||||||
| Yes | Yes | Yes | No | |||||
| Amazon | No | Yes | No | No | ||||
| Microsoft | No | Yes | Yes | No | ||||
| Dropbox | No | Yes | No | No | ||||
| Box.com | No | Yes | No | No | ||||
| Signal | Yes | No | No | Yes | ||||
| Telegram | Yes | No | No | No | ||||
| Egnyte | No | Yes | No | No | ||||
| Yes | No | No | No | |||||
| Sekur Products: | ||||||||
| SekurMessenger | Yes | No | Yes | Yes | ||||
| SekurSuite | No | Yes | Yes | Yes | ||||
| SekurMail | No | No | Yes | Yes |
The Company may face future competition in our markets from other large, established companies, as well as from smaller specialized companies.
Employees
As of the date of this prospectus, the Company has no employees and hires full time contractors for all its operations. The Company’s executive officers are independent contractors of the Company. The Company’s hiring model is based on employing referral partners working on commissions only and full time contractors. The Company plans to hire in house support employees as it grows its business. The IT department of the Company is outsourced to GDSA through platform maintenance and integrations needed for resellers or telecommunications operators.
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Intellectual Property
Under the terms of the Global Licensing Agreement, the Company has permission to use the branding, all past, present and future trade names and trademarks owned by GDSA, and any existing and future development, of the IP and software technology developed by GDSA, to market the Products.
Seasonality
The Company does not experience any effects of seasonality it its business. We do not experience any shifts in our sales patterns.
Facilities
The Company’s headquarters are located at First Canadian Place, 100 King Street West, Suite 5600, Toronto, ON, Canada, M5X 1C9, which is a virtual office with open space lounge and facilities. The Company entered into a lease agreement for its property for a 1-year term, renewable every year automatically unless terminated by the Company 90 days prior to renewal date, beginning on October 31, 2019 (the “Lease). The Lease is set to expire October 31, 2023 unless renewed automatically. Under the Lease, the Company pays Net Rent of CAD$3,948 per annum, payable in monthly equal installments.
Legal Proceedings
From time to time, we may be involved in litigation or other legal proceedings incidental to our business. We are not currently a party to any litigation the outcome of which, if determined adversely to us, would individually or in the aggregate be reasonably expected to have a material adverse effect on our business, operating results, cash flows or financial condition.
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MANAGEMENT
Set forth below is information concerning our directors and executive officers. Unless otherwise stated, the business address for our directors and executive officers is that of our principal executive offices First Canadian Place, 100 King Street West, Suite 5600, Toronto, ON, Canada, M5X 1C9
| Name | Age | Position(s) | ||
| Alain Ghiai-Chamlou | 55 | Chief Executive Officer, President, Secretary and Director | ||
| Scott Davis | 45 | Chief Financial Officer | ||
| Henry Sjoman | 72 | Director | ||
| Amir Assar | 55 | Director |
Alain Ghiai-Chamlou
Mr. Ghiai-Chamlou, founded the Company and has served as Director and CEO since March 2017. Mr. Ghiai-Chamlou has served as President and Corporate Secretary of the Company since June 2018. Mr. Ghiai-Chamlou founded GlobeX Data S.A. (“GDSA”) in 2007 and has served as Director and CEO since August 2007. Mr. Ghiai-Chamlou also founded GlobeX Data, Inc. (“GlobeX US”) in August 2012 and has served as Director and CEO of GlobeX US since August 2012. Mr. Ghiai-Chamlou attended Pratt Institute in New York, School of Architecture, and the California College of Arts in San Francisco, where he obtained his Bachelor of Architecture in 1994.
Scott Davis
Mr. Davis is a Chartered Professional Accountant and a partner of Cross Davis & Company LLP Chartered Professional Accountants, a firm focused on providing accounting and management services for publicly listed companies. His experience includes CFO positions of several companies listed on the TSX Venture Exchange and his past experience consists of senior management positions, including four years at Appleby as an Assistant Financial Controller. Prior to that, he spent two years at Davidson & Company LLP Chartered Professional Accountants as an Auditor, five years with Pacific Opportunity Capital Ltd. as an Accounting Manager and two years at Jacobson Soda and Hosak, Chartered Professional Accountants. Mr. Davis obtained his CPA, CGA in 2003.
Henry Sjoman
Mr. Sjoman has been an entrepreneur and angel investor since 1991. Mr. Sjoman has been involved in the electronics and telecommunications industry since 1974. Mr. Sjoman co-founded Elcoteq SE in 1991, an electronics manufacturing company that was listed on Euro Nasdaq until 2010. Mr. Sjoman received his BSc, Telecom from the Kipings Tkniska Institute (Sweden), in 1974.
Amir Assar
Amir Assar has over 27 years of experience in technology sales. Mr. Assar served as VP of Sales at Workday, Inc. (Nasdaq:WDAT) from August 2018 to November 2021 and VP of Sales of Adaptive Insights from August 2017 up until it was acquired by Workday. Amir Assar started his technology career in 1993 at Actel Corporation as Western USA Director of Sales. Actel was a leading provider of Field Programmable Gate Arrays (FPGA) and was acquired by Microsemi Corporation, a California-based semiconductor and systems solutions provider for the aerospace, defense, communications, data center and industrial markets. From there Amir went on to work for several successful emerging technology companies in Silicon Valley, including Annuncio Software (acquired by PeopleSoft), NetScaler (acquired by Citrix), DataPower (acquired by IBM), and IBM where he held senior sales management and leadership positions.
Family Relationships
None of our directors or executive officers has a family relationship as defined in Item 401 of Regulation S-K.
Involvement in Certain Legal Proceedings
To the best of our knowledge, none of our directors or executive officers has, during the past 10 years, been involved in any legal proceedings described in subparagraph (f) of Item 401 of Regulation S-K.
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Board of Directors
Our board of directors will consist of four directors upon closing of this offering, three of whom shall be “independent” within the meaning of Section 5605(a)(2) of the Nasdaq Listing Rules and will meet the criteria for independence set forth in Rule 10A-3 of the Exchange Act.
Terms of Directors and Executive Officers
Each of our directors holds office until a successor has been duly elected and qualified unless the director was appointed by the board of directors, in which case such director holds office until the next following annual meeting of shareholders at which time such director is eligible for re-election. All of our executive officers are appointed by and serve at the discretion of our board of directors.
Qualification
There is currently no shareholding qualification for directors, although a shareholding qualification for directors may be fixed by our shareholders by ordinary resolution.
Insider Participation Concerning Executive Compensation
Alain Ghiai-Chamlou has been involved in all determinations regarding executive officer compensation since the inception of the Company. He will continue to make such decisions until the Compensation Committee is established immediately prior to the consummation of this offering.
Committees of the Board of Directors
We have established three committees under the board of directors: an audit committee, a compensation committee, and a nominating and corporate governance committee. We will adopt a formal charter for each of the three committees prior to the closing of this offering. We have determined that Henry Sjoman, Amir Assar, ● and ● will satisfy the “independence” requirements of Section 5605(a)(2) of the Nasdaq Listing Rules and Rule 10A-3 under the Securities Exchange Act. Each committee’s members and functions are described below.
Audit Committee. Our audit committee consists of Henry Sjoman, Amir Assar and ●. ● is the chairperson of our audit committee. Our board also has determined that ● qualifies as an audit committee financial expert within the meaning of the SEC rules or possesses financial sophistication within the meaning of the Nasdaq Listing Rules. The audit committee oversees our accounting and financial reporting processes and the audits of the financial statements of our company. The audit committee is responsible for, among other things:
| ● | appointing the independent auditors and pre-approving all auditing and non-auditing services permitted to be performed by the independent auditors; | |
| ● | reviewing with the independent auditors any audit problems or difficulties and management’s response; | |
| ● | discussing the annual audited financial statements with management and the independent auditors; | |
| ● | reviewing the adequacy and effectiveness of our accounting and internal control policies and procedures and any steps taken to monitor and control major financial risk exposures; | |
| ● | reviewing and approving all proposed related party transactions; | |
| ● | meeting separately and periodically with management and the independent auditors; and | |
| ● | monitoring compliance with our code of business conduct and ethics, including reviewing the adequacy and effectiveness of our procedures to ensure proper compliance. |
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Compensation Committee. Our compensation committee consists of Henry Sjoman, Amir Assar and ●. ● is the chairperson of our compensation committee. The compensation committee assists the board in reviewing and approving the compensation structure, including all forms of compensation, relating to our directors and executive officers. Our chief executive officer may not be present at any committee meeting during which his compensation is deliberated. The compensation committee is responsible for, among other things:
| ● | reviewing and approving the total compensation package for our most senior executive officers; | |
| ● | approving and overseeing the total compensation package for our executives other than the most senior executive officers; | |
| ● | reviewing and recommending to the board with respect to the compensation of our directors; | |
| ● | reviewing periodically and approving any long-term incentive compensation or equity plans; | |
| ● | selecting compensation consultants, legal counsel or other advisors after taking into consideration all factors relevant to that person’s independence from management; and | |
| ● | reviewing programs or similar arrangements, annual bonuses, employee pension and welfare benefit plans. |
Nominating and Corporate Governance Committee. Our nominating and corporate governance committee consists of Henry Sjoman, Amir Assar, and ●. ● is the chairperson of our nominating and corporate governance committee. The nominating and corporate governance committee assists the board of directors in selecting individuals qualified to become our directors and in determining the composition of the board and its committees. The nominating and corporate governance committee are responsible for, among other things:
| ● | identifying and recommending nominees for election or re-election to our board of directors or for appointment to fill any vacancy; | |
| ● | reviewing annually with our board of directors its current composition in light of the characteristics of independence, age, skills, experience and availability of service to us; | |
| ● | identifying and recommending to our board the directors to serve as members of committees; | |
| ● | advising the board periodically with respect to significant developments in the law and practice of corporate governance as well as our compliance with applicable laws and regulations, and making recommendations to our board of directors on all matters of corporate governance and on any corrective action to be taken; and | |
| ● | monitoring compliance with our code of business conduct and ethics, including reviewing the adequacy and effectiveness of our procedures to ensure proper compliance. |
Code of Business Conduct and Ethics
Our board of directors has adopted a code of business conduct.
Non-Employee Director Compensation
Prior to the closing of this offering, we expect to implement a formal policy pursuant to which our non-employee directors will be eligible to receive compensation for service on our board of directors and committees of our board of directors.
The following table sets forth information regarding compensation earned during the year ended December 31, 2021 by our non-employee directors in Canadian dollars who served as directors during such year. Mr. Ghiai-Chamlou, our Chief Executive Officer, serves on our board of directors but did not receive compensation for his service as a director and the compensation paid to Mr. Ghiai-Chamlou as a consultant during the year ended December 31, 2021 is set forth in the “Executive Compensation” section below.
| Name | Fees Earned or ($CAD) | Option ($CAD) | Total ($CAD) | |||||||
| Henry Sjoman | Nil | 18,979 | 18,979 | |||||||
| Amir Assar | Nil | 35,780 | 35,780 | |||||||
The fair value of the option-based awards is calculated using the Black-Scholes Pricing Model.
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Auditors
Our current auditor is De Visser Gray LLP, of 4–1 - 905 West Pender Vancouver, BC V6C 1L6. Devisser Gray LLP is PCAOB registered.
Our previous auditors through the fiscal year ended December 31, 2020 were Morgan & Company LLP, located at 16–0 - 609 Granville Street, Vancouver, BC V7Y 1A1.
EXECUTIVE COMPENSATION
Summary Compensation Table
The following table sets forth certain information with respect to compensation for the years ended December 31, 2021 and 2020, earned by or paid to our chief executive officer and principal executive officer, our principal financial officer, and our other most highly compensated executive officers whose total compensation exceeded USD$100,000 (the “Named Executive Officers”).
| Non-Equity Incentive Plan Compensation (CAD$) | ||||||||||||||||||||||||||||||||||
| Name and Principal Position | Year | Salary (CAD$) | Share-based Awards (CAD$) | Option-based Awards (1) (CAD$) | Annual Incentive Plans | Long-term Incentive Plans | Pension Value (CAD$) | All Other Compensation (CAD$) | Total Compensation (CAD$) | |||||||||||||||||||||||||
| Alain Ghiai-Chamlou, | 2021 | - | - | 3,868,253 | - | - | - | - | 3,868,253 | |||||||||||||||||||||||||
| CEO, President | 2020 | - | - | 282,722 | - | - | - | - | 282,722 | |||||||||||||||||||||||||
| and Secretary | 2019 | - | - | 90,482 | - | - | - | - | 90,482 | |||||||||||||||||||||||||
| Scott Davis, | 2021 | - | - | 109,520 | - | - | - | 54,395 | (2) | 163,915 | (2) | |||||||||||||||||||||||
| CFO | 2020 | - | - | 72,621 | - | - | - | 39,234 | (2) | 111,855 | (2) | |||||||||||||||||||||||
| 2019 | - | - | 12,926 | - | - | - | 31,985 | (2) | 44,911 | (2) | ||||||||||||||||||||||||
| (1) | Represents the aggregate grant date fair value computed in accordance with IFRS 2 Share-based payments. The price for each amount is based on the closing price of the Company’s Common Shares trading on the CSE on the date of grant. The fair value of the option-based awards is calculated using the Black-Scholes Pricing Model. |
| (2) | Consists of accounting fees paid to an accounting firm in which Mr. Davis is a partner. |
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Incentive Plan Awards
The following table sets forth all outstanding share based and option based awards to the Named Executive Officers as at the fiscal year ended December 31, 2021 with a closing price of CAD$0.47 on that date.
| Option Based Awards | Share Based Awards | |||||||||||||||||||||||||
| Name | Number of Securities underlying unexercised options (#) | Option Exercise Price (CAD$) | Option Expiration Date | Value of unexercised in-the-money options (CAD$) | Number of shares or units of shares that have not vested (#) | Market or payout value of share-based awards that have not vested (CAD$) | Market or payout value of vested share-based awards not paid out or distributed (CAD$) | |||||||||||||||||||
| Alain Ghiai-Chamlou, | 4,000,000 | $ | 0.80 | Dec 31, 2031 | - | - | - | - | ||||||||||||||||||
| CEO, | 6,000,000 | $ | 0.50 | July 27, 2031 | - | |||||||||||||||||||||
| President and | 1,000,000 | $ | 0.14 | June 12, 2023 | 330,000 | |||||||||||||||||||||
| Secretary | 1,700,000 | $ | 0.12 | Dec 17, 2025 | 595,000 | |||||||||||||||||||||
| 3,500,000 | $ | 0.25 | Jan 20, 2026 | 770,000 | ||||||||||||||||||||||
| Scott Davis, | 100,000 | $ | 0.80 | Dec 31, 2031 | - | - | - | - | ||||||||||||||||||
| CFO | 200,000 | $ | 0.50 | July 27, 2031 | - | |||||||||||||||||||||
| 600,000 | $ | 0.12 | Dec 17, 2025 | 210,000 | ||||||||||||||||||||||
| 200,000 | $ | 0.14 | June 12, 2023 | 66,000 | ||||||||||||||||||||||
| Henry Sjoman | 25,000 | $ | 0.80 | Dec 31, 2031 | - | - | - | - | ||||||||||||||||||
| Director | 25,000 | $ | 0.50 | July 27, 2031 | - | |||||||||||||||||||||
| 370,000 | $ | 0.12 | Dec 17, 2025 | 129,500 | ||||||||||||||||||||||
| 100,000 | $ | 0.14 | June 12, 2023 | 33,000 | ||||||||||||||||||||||
| Amir Assar | 25,000 | $ | 0.80 | Dec 31, 2031 | - | - | - | - | ||||||||||||||||||
| Director | 75,000 | $ | 0.50 | July 27, 2031 | - | |||||||||||||||||||||
Notes:
2021 Outstanding Option Awards at Fiscal Year Ended
| (1) | 1,400,000 Common Shares (● following the Reverse Split) of the CAD$0.14 fully-vested options (CAD$● following the Reverse Split). The options expire on June 12, 2023. |
| (2) | 1,140,000 Common Shares (● following the Reverse Split) of the CAD$0.12 fully-vested options (CAD$● following the Reverse Split). The options expire on December 17, 2025. |
| (3) | 3,500,000 Common Shares (● following the Reverse Split) of the CAD$0.25 fully-vested options (CAD$● following the Reverse Split). The options expire on January 20, 2026. |
| (4) | 6,320,000 Common Shares (● following the Reverse Split) of the CAD$0.50 fully-vested options (CAD$● following the Reverse Split). The options expire on July 27, 2031. |
| (5) | 4,180,000 Common Shares (● following the Reverse Split) of the CAD$0.50 fully-vested options (CAD$● following the Reverse Split). The options expire on December 20, 2031. |
Agreements with Named Executive Officers
We do not have any compensation agreements with our Named Executive Officers.
Equity Incentive Plans
We adopted a stock option plan on April 30, 2018, and amended the plan on March 1, 2021 (“Stock Option Plan”). The purpose of the Stock Option Plan is to advance our interests and the interests of our subsidiaries and affiliates, if any, by encouraging our directors, officers, employees, management company employees and consultants, to acquire our Common Shares thereby increasing their proprietary interest in our company, encouraging them to remain associated with us and furnishing them with additional incentive in their efforts on our behalf in the conduct of our affairs. The Stock Option Plan provides that the aggregate number of securities reserved for issuance will be 15% of the number of our Common Shares issued and outstanding at the time such options are granted. The Stock Option Plan will be administered by our Board of Directors, which will have full and final authority with respect to the granting of all options thereunder.
Options may be granted under the Stock Option Plan to directors, officers, employees, management or consultants of company and our affiliates, if any, as our Board of Directors may, from time to time, designate. The exercise price of option grants will be determined by the Board of Directors, but after listing on Nasdaq will not be less than the closing market price of the Common Shares on Nasdaq at the time of grant. The Stock Option Plan provides that the number of Common Shares that may be reserved for issuance to any one individual upon exercise of all stock options held by such individual may not exceed 5% of the issued Common Shares, if the individual is a director, officer, employee or consultant, or 1% of the issued Common Shares, if the individual is engaged in providing investor relations services, on a yearly basis. All options granted under the Stock Option Plan will expire not later than the date that is ten years from the date that such options are granted. Options terminate earlier as follows: (i) immediately in the event of dismissal with cause; (ii) 90 days from date of termination other than for cause; or (iii) one year from the date of death or disability. Options granted under the Stock Option Plan are not transferable or assignable other than by will or other testamentary instrument or pursuant to the laws of succession.
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PRINCIPAL SHAREHOLDERS
Except as specifically noted, the following table sets forth information with respect to the beneficial ownership of our Common Shares as of the date of this prospectus by:
| ● | each of our directors and executive officers; and |
| ● | each person known to us to beneficially own more than 5% of our Common Shares on an as-converted basis. |
The percentage ownership information under the column entitled “Percentage of Shares Beneficial Owned Before the Offering” is based on ● shares of our Common Shares, following our Reverse Split, outstanding as of July 31, 2022, which gives effect to the conversion of all outstanding shares of our convertible debentures into shares of Common Shares.
The percentage ownership information under the column entitled “Percentage of Shares Beneficial Owned After the Offering” are based on ● Common Shares following the Reverse Split, and on an as-converted basis outstanding as of the date of this prospectus, issued and outstanding immediately after the completion of this offering, assuming the underwriters do not exercise their over-allotment option.
Beneficial ownership is determined in accordance with the rules and regulations of the SEC. In computing the number of shares beneficially owned by a person and the percentage ownership of that person, we have included shares that the person has the right to acquire within 60 days, including through the exercise of any option, warrant or other right or the conversion of any other security. These shares, however, are not included in the computation of the percentage ownership of any other person.
Unless otherwise indicated, the address for each beneficial owner listed in the table below is c/o Sekur Private Data Ltd., First Canadian Place, 100 King Street West, Suite 5600, Toronto, ON, Canada, M5X 1C9.
| Name and Position | No. of Common Shares | Percentage of Shares Beneficial Owned Before Offering (1) | Percentage of Shares Beneficially Owned After Offering (1) | |||||||||
| Alain Ghiai-Chamlou (2) | 47,959,411 | 35.84 | % | |||||||||
| Scott Davis (3) | 2,259,500 | 1.92 | % | |||||||||
| Henry Sjoman (4) | 2,742,500 | 2.34 | % | |||||||||
| Amir Assar (5) | 171,500 | 0.15 | % | |||||||||
| All Directors and Executive Officers as a Group (4 persons) (6) | 53,132,911 | 39.14 | % | |||||||||
Notes
*Less than 1%
| (1) | A total of 116,556,773 Common Shares were issued and outstanding as at ●, 2022. Numbers shown do not include Common Shares issuable upon exercise of options or warrants. See “Dilution” below. |
| (2) | Includes 12,700,000 unexercised incentive options and 4,552,355 unexercised warrants held by Mr. Ghiai-Chamlou. |
| (3) | Includes 1,100,000 unexercised incentive options and 209,500 unexercised warrants held by Mr. Davis. |
| (4) | Includes 520,000 unexercised incentive options held by Mr. Sjoman. |
| (5) | Includes 100,000 unexercised incentive options held by Mr. Assar. |
| (6) | Includes 14,420,000 unexercised incentive options and 4,761,855 unexercised warrants. |
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RELATED PARTY TRANSACTIONS
Other than as disclosed below, and except for the regular salary and bonus payments made to our directors and officers in the ordinary course of business as described in “Executive Compensation”, there have been no transactions since January 1, 2019, or any currently proposed transaction or series of similar transactions to which the Company was or is to be a party, in which the amount involved exceeds USD$120,000 and in which any current or former director or officer of the Company, any 5% or greater shareholder of the Company or any member of the immediate family of any such persons had or will have a direct or indirect material interest.
Payments to Globex Data S.A. in Canadian dollars $
Alain Ghiai-Chamlou, our President and Chief Executive Officer, is the founder and majority shareholder of GDSA.
During the year ended December 31, 2021, the Company paid software maintenance and software integration fees of CAD$326,295 (2020 - CAD$20,000; 2019 – CAD$56,299) and licensee fees of CAD$14,431 (2020 - CAD$2,675; 2019 - CAD$2,467) to GDSA under the Global License Agreement as at December 31, 2021, CAD$85,000 in software maintenance fees was included in prepaid expenses.
During the period ended June 30, 2022, the Company paid software maintenance and software integrations fees of CAD$320,609 (2021 - CAD$151,296) and licensee fees of CAD$18,908 (2021 - CAD$1,862) to GDSA under the Global License Agreement. As at June 30, 2022, CAD$Nil in software maintenance fees was included in prepaid expenses (December 31, 2021 - CAD$85,000).
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DESCRIPTION OF SHARE CAPITAL
The following description of our share capital and provisions of our memorandum and articles of association are summaries and do not purport to be complete. Reference is made to our memorandum and articles of association, which will become effective upon or before the completion of this offering, copies of which are filed as an exhibit to the prospectus (and which is referred to in this section as, respectively, the “memorandum” and the “articles”).
Common Shares
All of our issued and outstanding Common Shares are fully paid and non-assessable. Our Common Shares are issued in registered form, and are issued when registered in our register of members. Unless the board of directors determines otherwise, each holder of our Common Shares will not receive a certificate in respect of such Common Shares. Our shareholders who are non-residents of British Columbia may freely hold and vote their Common Shares.
We are authorized to issue an unlimited amount of Common Shares with no par value per share. Subject to the provisions of the Business Corporations Act (British Columbia) (“Business Corporations Act”) and our articles regarding redemption and purchase of the shares, the directors have general and unconditional authority to allot (with or without confirming rights of renunciation), grant options over or otherwise deal with any unissued shares to such persons, at such times and on such terms and conditions as they may decide. Such authority could be exercised by the directors to allot shares which carry rights and privileges that are preferential to the rights attaching to Common Shares. No share may be issued at a discount except in accordance with the provisions of the Business Corporations Act. 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.
On ●, 2022, the Board of Directors approved the Reverse Stock Split at the ratio of 1-for-●. The Reverse Stock Split was effectuated on ●.
Warrants
Overview. The following summary of certain terms and provisions of the Warrants offered hereby is not complete and is subject to, and qualified in its entirety by, the provisions of the Warrant agency agreement between us and the Warrant Agent, and the form of Warrant, both of which are filed as exhibits to the prospectus. Prospective investors should carefully review the terms and provisions set forth in the Warrant agency agreement, including the annexes thereto, and form of Warrant.
The Warrants issued in this offering entitle the registered holder to purchase Common Shares at a price equal to USD$● per share, subject to adjustment as discussed below, immediately following the issuance of such Warrant and terminating at 5:00 p.m., New York City time, five years after the closing of this offering.
The exercise price and number of Common Shares issuable upon exercise of the Warrants may be adjusted in certain circumstances, including in the event of a stock dividend or recapitalization, reorganization, merger or consolidation. However, the Warrants will not be adjusted for issuances of Common Shares at prices below its exercise price.
Exercisability. The Warrants are exercisable at any time after their original issuance and at any time up to the date that is five (5) years after their original issuance. The Warrants may be exercised upon surrender of the Warrant certificate on or prior to the expiration date at the offices of the Warrant Agent, with the exercise form on the reverse side of the Warrant certificate completed and executed as indicated, accompanied by full payment of the exercise price, by certified or official bank check payable to us, for the number of Warrants being exercised. Under the terms of the Warrant Agreement, we must use our best efforts to maintain the effectiveness of the registration statement and current prospectus relating to Common Shares issuable upon exercise of the Warrants until the expiration of the Warrants. If we fail to maintain the effectiveness of the registration statement and current prospectus relating to the Common Shares issuable upon exercise of the Warrants, the holders of the Warrants shall have the right to exercise the Warrants solely via a cashless exercise feature provided for in the Warrants, until such time as there is an effective registration statement and current prospectus.
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Exercise Limitation. A holder may not exercise any portion of a Warrant to the extent that the holder, together with its affiliates and any other person or entity acting as a group, would own more than 4.99% of the outstanding Common Shares after exercise, as such percentage ownership is determined in accordance with the terms of the Warrant, except that upon prior notice from the holder to us, the holder may waive such limitation up to a percentage not in excess of 9.99%.
Exercise Price. The exercise price per whole share of Common Share purchasable upon exercise of the Warrants is USD$●. The exercise price is subject to appropriate adjustment in the event of certain stock dividends and distributions, stock splits, stock combinations, reclassifications or similar events affecting our Common Shares and also upon any distributions of assets, including cash, stock or other property to our stockholders.
Fractional Shares. No fractional Common Shares will be issued upon exercise of the Warrants. As to any fraction of a share which the holder would otherwise be entitled to purchase upon such exercise, the Company will round up or down, as applicable, to the nearest whole share.
Transferability. Subject to applicable laws, the Warrants may be offered for sale, sold, transferred or assigned without our consent.
Warrant Agent; Global Certificate. The Warrants will be issued in registered form under a Warrant agency agreement between the Warrant Agent and us. The Warrants shall initially be represented only by one or more global warrants deposited with the Warrant Agent, as custodian on behalf of The Depository Trust Company (DTC) and registered in the name of Cede & Co., a nominee of DTC, or as otherwise directed by DTC.
Fundamental Transactions. In the event of a fundamental transaction, as described in the Warrants and generally including any reorganization, recapitalization or reclassification of our Common Shares, the sale, transfer or other disposition of all or substantially all of our properties or assets, our consolidation or merger with or into another person, the acquisition of more than 50% of our outstanding Common Shares, or any person or group becoming the beneficial owner of 50% of the voting power represented by our outstanding Common Shares, the holders of the Warrants will be entitled to receive the kind and amount of securities, cash or other property that the holders would have received had they exercised the Warrants immediately prior to such fundamental transaction.
Rights as a Stockholder. The Warrant holders do not have the rights or privileges of holders of Common Shares or any voting rights until they exercise their Warrants and receive Common Shares. After the issuance of Common Shares upon exercise of the Warrants, each holder will be entitled to one vote for each share held of record on all matters to be voted on by stockholders.
Governing Law. The Warrants and the Warrant agency agreement are governed by New York law.
Listing
We have applied to list the Common Shares and Warrants on the Nasdaq Capital Market under the symbol “SKUR” and “SKURW”, respectively.
Transfer Agent
The transfer agent for the Common Shares is National Securities Administrators Ltd., 7–2 - 777 Hornby Street
Vancouver, BC, V6Z 1S4, Canada.
Dividends
Subject to the provisions of the Business Corporations Act and any rights attaching to any class or classes of shares under and in accordance with the articles:
| (a) | the directors may declare dividends or distributions out of our funds which are lawfully available for that purpose; and |
| (b) | our shareholders may, by ordinary resolution, declare dividends but no such dividend shall exceed the amount recommended by the directors. |
Unless provided by the rights attached to a share, no dividend shall bear interest.
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Voting Rights
Subject to any rights or restrictions as to voting attached to any shares, unless any share carries special voting rights, on a show of hands every shareholder who is present in person and every person representing a shareholder by proxy shall have one vote per Common Shares. During a shareholder vote, every shareholder who is present in person and every person representing a shareholder by proxy shall have one vote for each share of which he or the person represented by proxy is the holder. In addition, all shareholders holding shares of a particular class are entitled to vote at a meeting of the holders of that class of shares. Votes may be given either personally or by proxy.
Variation of Rights of Shares
Whenever our capital is divided into different classes of shares, the rights attaching to any class of share (unless otherwise provided by the terms of issue of the shares of that class) may be varied either with the consent in writing of the holders of not less than two-thirds of the issued shares of that class, or with the sanction of a resolution passed by a majority of not less than two-thirds of the holders of shares of the class present in person or by proxy at a separate general meeting of the holders of shares of that class.
Unless the terms on which a class of shares was issued state otherwise, the rights conferred on the shareholder holding shares of any class shall not be deemed to be varied by the creation or issue of further shares ranking pari passu with the existing shares of that class.
Alteration of Share Capital
Subject to the Business Corporations Act, the Company may, by ordinary resolution:
| (1) | create one or more classes or series of shares or, if none of the shares of a class or series of shares are allotted or issued, eliminate that class or series of shares; |
| (2) | increase, reduce or eliminate the maximum number of shares that the Company is authorized to issue out of any class or series of shares or establish a maximum number of shares that the Company is authorized to issue out of any class or series of shares for which no maximum is established; |
| (3) | subdivide or consolidate all or any of its unissued, or fully paid issued, shares; |
| (4) | if the Company is authorized to issue shares of a class of shares with par value: |
| (a) | decrease the par value of those shares; or |
| (b) | if none of that class of shares are allotted or issued, increase the par value of those shares; |
| (5) | change all or any of its unissued, or fully paid issued, shares with par value into shares without par value or any of its unissued shares without par value into shares with par value; |
| (6) | alter the identifying name of any of its shares; or |
| (7) | otherwise alter its shares or authorized share structure when required or permitted to do so by the Business Corporations Act. |
Inspection of Books and Records
Holders of our Common Shares will have no general right under the Business Corporations Act to inspect or obtain copies of our register of members or our corporate records.
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General Meetings
Under the Business Corporations Act, the Company must hold its first annual general meeting within 18 months after the date on which it was incorporated or otherwise recognized, and after that much hold an annual general meeting at least once in each calendar year and not more than 15 months after the last annual reference date at such time and place as may be determined by the directors.
If all the shareholders who are entitled to vote at an annual general meeting consent by a unanimous resolution to all of the business that is required to be transacted at that annual general meeting, the annual general meeting is deemed to have been held on the date of the unanimous resolution. The shareholders much, in any unanimous resolution, select as the Company’s annual reference date, a date that would be appropriate for the holding of the applicable annual general meeting.
The directors also may whenever think fit, call a meeting of the shareholders.
A general meeting of the Company may be held anywhere in North America, as determined by the directors.
The Company must send notice of the date, time and location of any meeting of shareholders in the manner provided in the Business Corporations Act to each shareholder entitled to attend the meeting and to each director of the Company if and for so long as the Company is a public company, twenty-one days, and otherwise ten days.
The directors may set a date as the record date for the purpose of determining shareholders entitled to, or the non-receipt of any notice by, any of the persons entitled to notice does not invalidate any proceeding at that meeting. Any persons entitled to notice of a meeting of shareholders may, in writing or otherwise, waive or reduce the period of notice of such meeting.
Accidental omission to send notice of any meeting of shareholder to, or the non-receipt of any notice by, any of the persons entitled to notice does not invalidate any proceeding at that meeting. Any person entitled to notice of a meeting of shareholders may, in writing or otherwise, waive or reduce the period of notice of such meeting.
If a meeting of shareholders is to consider special business, as defined in the Company’s Articles of Incorporation, the notice of meeting must:
(1) state the general nature of the special business;
(2) if the special business includes considering, approving, ratifying, adopting or authorizing any document or the signing of or giving of effect to any document, have attached to it a copy of the document or state that a copy of the document will be available for inspection by shareholders:
(a) at the Company’s record office, or at such other reasonably accessible location in British Columbia as is specified in the notice; and
(b) during statutory business hours on any one or more specified days before the day set for the holding of the meeting.
A shareholder may participate in a meeting of the shareholders in person or by telephone if all shareholders participate in the meeting, whether in person or by telephone or other communications medium, are able to communicate with each other and if all shareholders who wish to participate in the meeting agree to such participation.
The quorum for the transaction of business at a meeting of shareholders is two persons, who are or representing by proxy, shareholders holding, in the aggregate, at least five percent of the issued shares entitled to be voted at the meeting. On a show of hands, every person present who is a shareholder or proxy holder entitled to vote on the matter has one vote.
Directors
Under the Business Corporations Act, as a publicly traded company, the Company must have at least three directors, and as many directors as set by ordinary resolution. The shareholders may elect or appoint the directors needed to fill any vacancies in the board of directors up to the number of opened vacancies. A director is entitled to remuneration for acting as directors.
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At every annual general meeting, the shareholder entitled to vote must elect, or in the unanimous resolution, appoint, a board of directors consisting of the number of directors for the time being.
The shareholding qualification for directors may be fixed by our shareholders by ordinary resolution and unless and until so fixed no share qualification shall be required.
Each director holds office for the term, if any, fixed by the terms of his appointment or until his earlier death, bankruptcy, insanity, resignation or removal. If no term is fixed on the appointment of a director, the director serves indefinitely until his earlier death, bankruptcy, insanity, resignation or removal.
A director may be removed by ordinary resolution.
A director may at any time resign or retire from office by giving us notice in writing. Unless the notice specifies a different date, the director shall be deemed to have resigned on the date that the notice is delivered to us.
Subject to the provisions of the articles, the office of a director may be terminated forthwith if:
| (a) | he resigns his office by notice to us; |
| (b) | he only held office as a director for a fixed term and such term expires; |
| (c) | he dies; or |
| (d) | he is removed pursuant to the articles of the Company. |
Each of the compensation committee and the nominating and corporate governance committee shall consist of at least three directors and the majority of the committee members are independent within the meaning of Section 5605(a)(2) of the Nasdaq Listing Rules. The audit committee consists of at least three directors, all of whom are independent within the meaning of Section 5605(a)(2) of the Nasdaq Listing Rules and meet the criteria for independence set forth in Rule 10A-3 or Rule 10C-1 of the Exchange Act.
Powers and Duties of Directors
Subject to the provisions of the Business Corporations Act and our articles of association, our business shall be managed by the directors, who may exercise all our powers. No prior act of the directors shall be invalidated by any subsequent alteration of our articles of association. To the extent allowed by the Business Corporations Act, however, shareholders may by special resolution validate any prior or future act of the directors which would otherwise be in breach of their duties.
The directors may delegate any of their powers to any person to be the attorney of the Company.
The board of directors may establish any local or divisional board of directors or agency and delegate to it its powers and authorities (with power to sub-delegate) for managing any of our affairs.
The directors may from time to time and at any time by power of attorney or in any other manner they determine appoint any person, either generally or in respect of any specific matter, to be our agent with or without authority for that person to delegate all or any of that person’s powers.
The directors may from time to time and at any time by power of attorney or in any other manner appoint any person, whether nominated directly or indirectly by the directors, to be our attorney or our authorized signatory and for such period and subject to such conditions as they may think fit. The powers, authorities and discretions, however, must not exceed those vested in, or exercisable, by the directors under the articles.
The board of directors may remove any person so appointed and may revoke or vary the delegation.
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A director may, as a director, vote (and be counted in the quorum) in respect of any contract, transaction, arrangement or proposal in which he has an interest which is not a material interest. However, a director who holds a disclosable interest in a contract or transaction win which the Company has entered or proposes to enter is not entitled to vote on any directors’ resolutions to approve the contract or transaction, unless the directors have disclosable interest in that contract or transaction, in which case any or all of those directors may vote on such resolution. Such director who holds a disclosable interest that is present for a meeting of directors may be counted in the quorum at the meeting, whether or not the director votes on any or all of the resolutions considered at the meeting.
Requirement for Directors and Officers to Disclose Interest in a Contract or Transaction
In accordance with the Business Corporations Act, each director and officer must disclose the nature and extent of any interest that he or she has in a material contract or material transaction whether made or proposed with us, if the director or officer is a party to the contract or transaction, is a director or an officer or an individual acting in a similar capacity of a party to the contract or transaction, or has a material interest in a party to the contract or transaction. Subject to certain limited exceptions under the Business Corporations Act, no director may vote on a resolution to approve a material contract or material transaction which is subject to such disclosure requirement.
As of the date hereof, except as otherwise disclosed in this prospectus, to the knowledge of the Board or the management of the Company, there are no material interests, whether direct or indirect, of any informed person of the Company, any proposed director of the Company, or any associate or affiliate of any informed person or proposed director, in any transaction since the commencement of the Company’s most recently completed financial year or in any proposed transaction which has materially affected or would materially affect the Company of any of its subsidiaries.
SHARES ELIGIBLE FOR FUTURE SALE
Future sales of substantial amounts of our Common Shares in the public market could adversely affect prevailing market prices. Furthermore, since only a limited number of shares will be available for sale shortly after the offering because of contractual and legal restrictions on resale described below, sales of substantial amounts of Common Shares in the public market after the restrictions lapse could adversely affect the prevailing market price for shares of our Common Shares as well as our ability to raise equity capital in the future.
Upon completion of this offering, we will have ● Common Shares issued and outstanding (or ● shares if the underwriters exercise in full their option to purchase additional shares of our Common Shares).
Of these shares, the ● Common Shares sold in this offering (or ● shares, if the underwriters exercise in full their option to purchase additional shares of our Common Shares) will be freely tradable without further restriction or registration under the Securities Act, except that any shares purchased by our affiliates may generally only be sold in compliance with Rule 144, which is described below. The remaining Common Shares will be deemed “restricted securities” under the Securities Act. Restricted securities may be sold in the public market only if they are registered under the Securities Act or if they qualify for an exemption from registration under Rules 144 or 701 under the Securities Act, which are discussed below.
Lock-up Agreements
We, each of our executive officers and directors of holders of at least 1% of our Common Shares (including securities convertible into or exchangeable for shares of our Common Shares) anticipate on entering into lock-up agreements under which these parties have agreed not to sell or otherwise transfer their shares for a period of six (6) months after the date of this prospectus. These lock-up restrictions are subject to certain exceptions and may be waived by the representatives of the underwriters at any time. As a result of these contractual restrictions, shares of our Common Shares subject to lock-up agreements will not be eligible for sale, including pursuant to Rules 144 or 701 under the Securities Act as discussed below, until these agreements expire or the restrictions are waived by the representatives of the underwriters.
See “Underwriting” for a more complete description of the lock-up agreements.
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Rule 144
In general, Rule 144 provides that once we have been subject to the public company reporting requirements of Section 13 or Section 15(d) of the Exchange Act for at least 90 days, a person who is not deemed to have been one of our affiliates for purposes of the Securities Act at any time during the 90 days preceding a sale and who has beneficially owned the shares of our Common Shares proposed to be sold for at least six months is entitled to sell those shares without complying with the manner of sale, volume limitation, or notice provisions of Rule 144, subject to compliance with the public information requirements of Rule 144. If such a person has beneficially owned the shares proposed to be sold for at least one year, including the holding period of any prior owner other than our affiliates, then that person would be entitled to sell those shares without complying with any of the requirements of Rule 144.
In general, Rule 144 provides that our affiliates or persons selling shares of our Common Shares on behalf of our affiliates are entitled to sell upon expiration of the market standoff agreements and lock-up agreements described above, within any three-month period, a number of shares of our Common Shares that does not exceed the greater of:
| ● | 1% of the number of shares of our Common Shares then outstanding, which will equal shares ● immediately after the completion of this offering; or | |
| ● | the average weekly trading volume of our Common Shares during the four calendar weeks preceding the filing of a notice on Form 144 with respect to that sale. |
Rule 701
Rule 701 generally allows a stockholder who purchased shares of our capital stock pursuant to a written compensatory plan or contract and who is not deemed to have been an affiliate of our company during the immediately preceding 90 days to sell these shares in reliance upon Rule 144, but without being required to comply with the public information, holding period, volume limitation, or notice provisions of Rule 144. Rule 701 also permits affiliates of our company to sell their Rule 701 shares under Rule 144 without complying with the holding period requirements of Rule 144. All holders of Rule 701 shares, however, are required to wait until 180 days after the date of this prospectus before selling those shares pursuant to Rule 701.
Registration Statement on Form S-8
We intend to file with the SEC one or more registration statements on Form S-8 covering the Common Shares reserved for issuance under our incentive plans. These registration statements are expected to be filed and become effective as soon as practicable after completion of this offering. Upon effectiveness, the Common Shares covered by these registration statements will generally be eligible for sale in the public market, subject to the lock-up agreements described above.
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MATERIAL UNITED STATES FEDERAL INCOME TAX CONSEQUENCES TO U.S. HOLDERS
Certain Canadian Federal Income Tax Considerations for United States Residents
TAX MATTERS ARE COMPLEX, AND THE CANADIAN FEDERAL INCOME TAX CONSEQUENCES OF PURCHASING, OWNING AND DISPOSING OF OUR COMMON SHARES WILL DEPEND UPON THE HOLDER’S PARTICULAR SITUATION. THE SUMMARY OF MATERIAL CANADIAN FEDERAL INCOME TAX CONSEQUENCES SET FORTH BELOW IS INTENDED TO PROVIDE ONLY A GENERAL SUMMARY AND IS NOT INTENDED TO BE A COMPLETE ANALYSIS OR DESCRIPTION OF ALL POTENTIAL CANADIAN FEDERAL INCOME TAX CONSEQUENCES.
THIS DISCUSSION DOES NOT INCLUDE A DESCRIPTION OF THE TAX LAWS OF ANY PROVINCE OR TERRITORY WITHIN CANADA. ACCORDINGLY, HOLDERS AND PROSPECTIVE HOLDERS OF OUR COMMON SHARES ARE ENCOURAGED TO CONSULT WITH THEIR OWN TAX ADVISERS ABOUT THE TAX CONSEQUENCES TO THEM HAVING REGARD TO THEIR OWN PARTICULAR CIRCUMSTANCES, INCLUDING ANY CONSEQUENCES OF PURCHASING, OWNING OR DISPOSING OF OUR COMMON SHARES ARISING UNDER CANADIAN FEDERAL, CANADIAN PROVINCIAL OR TERRITORIAL, U.S. FEDERAL, U.S. STATE OR LOCAL TAX LAWS OR TAX LAWS OF JURISDICTIONS OUTSIDE THE UNITED STATES OR CANADA.
The following is a summary of certain Canadian federal income tax considerations generally applicable to the holding and disposition of our securities acquired by a holder who, at all relevant times, (a) for the purposes of the Income Tax Act (Canada) (“ITA”) (i) is not resident, or deemed to be resident, in Canada, (ii) deals at arm’s length with us, and is not affiliated with us, (iii) holds our Common Shares as capital property, (iv) does not use or hold the Common Shares in the course of carrying on, or otherwise in connection with, a business carried on or deemed to be carried on in Canada and (v) is not a “registered non-resident insurer” or “authorized foreign bank” (each as defined in the ITA), or other holder of special status, and (b) for the purposes of the Canada-United States Tax Convention (the “Tax Treaty”), is a resident of the United States, has never been a resident of Canada, does not have and has not had, at any time, a permanent establishment or fixed base in Canada, and who otherwise qualifies for the full benefits of the Tax Treaty. Holders who meet all the criteria in clauses (a) and (b) above are referred to herein as “U.S. Holders”, and this summary only addresses such U.S. Holders.
This summary does not deal with special situations, such as the particular circumstances of traders or dealers, tax exempt entities, insurers or financial institutions, or other holders of special status or in special circumstances. Such holders, and all other holders who do not meet the criteria in clauses (a) and (b) above, should consult their own tax advisors.
This summary is based on the current provisions of the ITA, the regulations thereunder in force at the date hereof, the current provisions of the Tax Treaty, and our understanding of the administrative and assessing practices of the Canada Revenue Agency published in writing prior to the date hereof. This summary takes into account all specific proposals to amend the ITA or regulations thereunder publicly announced by or on behalf of the Minister of Finance (Canada) prior to the date hereof (the “Proposed Amendments”) and assumes that such Proposed Amendments will be enacted in the form proposed. However, such Proposed Amendments might not be enacted in the form proposed, or at all. This summary does not otherwise take into account or anticipate any changes in law or administrative or assessing practices, whether by legislative, governmental or judicial decision or action, nor does it take into account tax laws of any province or territory of Canada or of any other jurisdiction outside Canada, which may differ significantly from those discussed in this summary.
For the purposes of the ITA, all amounts relating to the acquisition, holding or disposition of our securities must generally be expressed in Canadian dollars. Amounts denominated in United States currency generally must be converted into Canadian dollars using the rate of exchange that is acceptable to the Canada Revenue Agency.
This summary is of a general nature only and is not intended to be, nor should it be construed to be, legal or tax advice to any particular U.S. Holder, and no representation with respect to the Canadian federal income tax consequences to any particular U.S. Holder or prospective U.S. Holder is made. This summary is not exhaustive of all Canadian federal income tax considerations. Accordingly, all prospective purchasers (including U.S. Holders) should consult with their own tax advisors for advice with respect to their own particular circumstances.
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Withholding Tax on Dividends
Amounts paid or credited or deemed to be paid or credited as, on account or in lieu of payment of, or in satisfaction of, dividends on our Common Shares to a U.S. Holder will be subject to Canadian withholding tax. Under the Tax Treaty, the rate of Canadian withholding tax on dividends paid or credited by us to a U.S. Holder that beneficially owns such dividends and substantiates eligibility for the benefits of the Tax Treaty is generally 15% (unless the beneficial owner is a company that owns at least 10% of our voting stock at that time, in which case the rate of Canadian withholding tax is generally reduced to 5%).
Dispositions
A U.S. Holder will not be subject to tax under the ITA on a capital gain realized on a disposition or deemed disposition of a security, unless the security is “taxable Canadian property” to the U.S. Holder for purposes of the ITA and the U.S. Holder is not entitled to relief under the Tax Treaty.
Generally, our Common Shares will not constitute “taxable Canadian property” to a U.S. Holder at a particular time unless, at any time during the 60-month period immediately preceding the disposition, more than 50% of the fair market value of such security was derived, directly or indirectly, from one or any combination of: (i) real or immoveable property situated in Canada, (ii) “Canadian resource properties” (as defined in the ITA), (iii) “timber resource properties” (as defined in the ITA), and (iv) options in respect of, or interests in, or for civil law rights in, property described in any of the foregoing whether or not the property exists. Notwithstanding the foregoing, in certain other circumstances set out in the ITA, our Common Shares could also be deemed to be “taxable Canadian property”.
If our Common Shares become listed on a “designated stock exchange” (as defined in the ITA) and are so listed at the time of disposition, our Common Shares generally will not constitute “taxable Canadian property” of a U.S. Holder at that time unless, at any time during the 60-month period immediately preceding the disposition, the following two conditions are met: (i) the U.S. Holder, persons with whom the U.S. Holder did not deal at arm’s length, partnerships in which the U.S. Holder or such non-arm’s length person holds a membership interest (either directly or indirectly through one or more partnerships), or the U.S. Holder together with all such persons, owned 25% or more of the issued shares of any class or series of shares of our company; and (ii) more than 50% of the fair market value of the shares of our company was derived directly or indirectly from one or any combination of real or immovable property situated in Canada, Canadian resource properties (as defined in the ITA), timber resource properties (as defined in the ITA) or options in respect of, or interests in, or for civil law rights in, property described in any of the foregoing whether or not the property exists. Notwithstanding the foregoing, in certain other circumstances set out in the ITA, Common Shares could also be deemed to be “taxable Canadian property”.
U.S. Holders who may hold Common Shares as “taxable Canadian property” should consult their own tax advisors with respect to the application of Canadian capital gains taxation, any potential relief under the Tax Treaty, and special compliance procedures under the ITA, none of which is described in this summary.
Certain Material United States Federal Income Tax Considerations
The following is a general summary of certain material U.S. federal income tax considerations applicable to a U.S. Holder (as defined below) arising from the acquisition, ownership and disposition of our securities. This summary applies to U.S. Holders that hold our Common Shares as capital assets. This summary applies only to U.S. Holders that acquire securities pursuant to this prospectus and does not apply to any subsequent U.S. Holder of our Common Shares.
This summary is for general information purposes only and does not purport to be a complete analysis or listing of all potential U.S. federal income tax considerations that may apply to a U.S. Holder as a result of the acquisition, ownership and disposition of our Common Shares. In addition, this summary does not take into account the individual facts and circumstances of any particular U.S. Holder that may affect the U.S. federal income tax consequences to such U.S. Holder, including specific tax consequences to a U.S. Holder under an applicable tax treaty. Accordingly, this summary is not intended to be, and should not be construed as, legal or U.S. federal income tax advice with respect to any particular U.S. Holder. In addition, this summary does not address the U.S. federal alternative minimum, net investment income, U.S. federal estate and gift, U.S. Medicare contribution, U.S. state and local, or non-U.S. tax consequences of the acquisition, ownership or disposition of our Common Shares. Except as specifically set forth below, this summary does not discuss applicable tax reporting requirements. Each U.S. Holder should consult its own tax advisor regarding all U.S. federal, U.S. state and local and non-U.S. tax consequences of the acquisition, ownership and disposition of our Common Shares.
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No opinion from U.S. legal counsel or ruling from the Internal Revenue Service (the “IRS”) has been requested, or will be obtained, regarding the U.S. federal income tax consequences of the acquisition, ownership or disposition of our Common Shares. This summary is not binding on the IRS, and the IRS is not precluded from taking a position that is different from, or contrary to, any position taken in this summary. In addition, because the authorities upon which this summary is based are subject to various interpretations, the IRS and the U.S. courts could disagree with one or more of the positions taken in this summary.
Scope of This Disclosure
Authorities
This summary is based on the Internal Revenue Code of 1986, as amended (the “Code”), Treasury Regulations (whether final, temporary, or proposed), published rulings of the IRS, published administrative positions of the IRS, the Convention Between Canada and the United States of America with Respect to Taxes on Income and on Capital, signed September 26, 1980, as amended (the “Canada-U.S. Tax Convention”), and U.S. court decisions that are applicable and, in each case, as in effect and available, as of the date hereof. Any of the authorities on which this summary is based could be changed in a material and adverse manner at any time, and any such change could be applied on a retroactive or prospective basis, which could affect the U.S. federal income tax considerations described in this summary. This summary does not discuss the potential effects, whether adverse or beneficial, of any proposed legislation that, if enacted, could be applied on a retroactive or prospective basis.
U.S. Holders
For purposes of this summary, the term “U.S. Holder” means a beneficial owner of our Common Shares that is for U.S. federal income tax purposes:
| ● | an individual who is a citizen or resident of the U.S.; | |
| ● | a corporation (or other entity taxable as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the U.S., any state thereof or the District of Columbia; | |
| ● | an estate, the income of which is subject to U.S. federal income taxation regardless of its source; or | |
| ● | a trust that (i) is subject to the primary supervision of a court within the U.S. and the control of one or more U.S. persons for all substantial decisions; or (ii) has a valid election in effect under applicable Treasury Regulations to be treated as a U.S. person. |
Transactions Not Addressed
This summary does not address the tax consequences of transactions effected prior or subsequent to, or concurrently with, any purchase of Common Shares pursuant to this prospectus (whether or not any such transactions are undertaken in connection with the purchase of Common Shares pursuant to this prospectus).
U.S. Holders Subject to Special U.S. Federal Income Tax Rules Not Addressed
This summary does not address the U.S. federal income tax considerations of the acquisition, ownership or disposition of our securities by U.S. Holders that are subject to special provisions under the Code, including, but not limited to, the following: (a) tax-exempt organizations, qualified retirement plans, individual retirement accounts, or other tax-deferred accounts; (b) financial institutions, underwriters, insurance companies, real estate investment trusts, or regulated investment companies; (c) broker-dealers, dealers, or traders in securities or currencies that elect to apply a “mark-to-market” accounting method; (d) U.S. Holders that have a “functional currency” other than the U.S. dollar (e) U.S. Holders that own our securities as part of a straddle, hedging transaction, conversion transaction, constructive sale, or other arrangement involving more than one position; (f) U.S. Holders that acquire our securities in connection with the exercise of employee stock options or otherwise as compensation for services; (g) U.S. Holders that hold our securities other than as a capital asset within the meaning of Section 1221 of the Code (generally, property held for investment purposes); and (h) U.S. Holders that own directly, indirectly, or by attribution, 10% or more, by voting power, of our outstanding stock.
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This summary also does not address the U.S. federal income tax considerations applicable to U.S. Holders who are: (a) U.S. expatriates or former long-term residents of the U.S.; (b) persons that have been, are, or will be a resident or deemed to be a resident in Canada for purposes of the Income Tax Act (Canada); (c) persons that use or hold, will use or hold, or that are or will be deemed to use or hold our securities in connection with carrying on a business in Canada; (d) persons whose securities in our company constitute “taxable Canadian property” under the Income Tax Act (Canada); or (e) persons that have a permanent establishment in Canada for purposes of the Canada-U.S. Tax Convention. U.S. Holders that are subject to special provisions under the Code, including U.S. Holders described immediately above, should consult their own tax advisors regarding all U.S. federal, U.S. state and local, and non-U.S. tax consequences (including the potential application and operation of any income tax treaties) relating to the acquisition, ownership or disposition of our Common Shares.
If an entity or arrangement that is classified as a partnership (or other “pass-through” entity) for U.S. federal income tax purposes holds our Common Shares, the U.S. federal income tax consequences to such partnership and the partners (or other owners) of such partnership of the acquisition, ownership or disposition of our Common Shares generally will depend on the activities of the partnership and the status of such partners (or other owners). This summary does not address the U.S. federal income tax considerations for any such partner or partnership (or other “pass-through” entity or its owners). Owners of entities and arrangements that are classified as partnerships (or other “pass-through” entities) for U.S. federal income tax purposes should consult their own tax advisors regarding the U.S. federal income tax consequences of the acquisition, ownership or disposition of our Common Shares.
Acquisition of Our Securities
A U.S. Holder generally will not recognize gain or loss upon the acquisition of our securities for cash pursuant to this prospectus. A U.S. Holder’s holding period for such Common Shares will begin on the day after the acquisition.
Ownership and Disposition of Our Common Shares
Distributions on Our Common Shares
Subject to the “passive foreign investment company” (“PFIC”) rules discussed below (see “Tax Consequences if Our Company is a PFIC”), a U.S. Holder that receives a distribution, including a constructive distribution, with respect to our Common Shares will be required to include the amount of such distribution in gross income as a dividend (without reduction for any Canadian income tax withheld from such distribution) to the extent of the current or accumulated “earnings and profits” of our company, as computed for U.S. federal income tax purposes. To the extent that a distribution exceeds the current and accumulated “earnings and profits” of our company, such distribution will be treated first as a tax-free return of capital to the extent of a U.S. Holder’s tax basis in our Common Shares and thereafter as gain from the sale or exchange of such Common Shares (see “Sale or Other Taxable Disposition of Our Common Shares” below). However, we may not maintain calculations of earnings and profits in accordance with U.S. federal income tax principles, and each U.S. Holder should therefore assume that any distribution by our company with respect to our Common Shares will constitute a dividend. Dividends received on our Common Shares generally will not be eligible for the “dividends received deduction” available to U.S. corporate shareholders receiving dividends from U.S. corporations. If our company is eligible for the benefits of the Canada-U.S. Tax Convention or our Common Shares are readily tradable on an established securities market in the U.S., dividends paid by our company to non-corporate U.S. Holders generally will be eligible for the preferential tax rates applicable to long-term capital gains, provided certain holding period and other conditions are satisfied, including that our company not be classified as a PFIC in the tax year of distribution or in the preceding tax year. The amount of any distribution or proceeds paid in Canadian dollars to a U.S. Holder in connection with the ownership of our Common Shares, will be treated in the manner described below under “Receipt of Foreign Currency.” If a U.S. Holder is subject to Canadian withholding tax on dividends paid on the holder’s Common Shares, the U.S. Holder may be eligible to claim a foreign tax credit as described below under “Foreign Tax Credit.” The dividend rules are complex, and each U.S. Holder should consult its own tax advisor regarding the application of such rules.
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Sale or Other Taxable Disposition of Our Common Shares
Subject to the PFIC rules discussed below, upon the sale or other taxable disposition of our Common Shares, a U.S. Holder generally will recognize capital gain or loss in an amount equal to the difference between the amount of cash plus the fair market value of any property received and such U.S. Holder’s tax basis in the Common Shares sold or otherwise disposed of. Such capital gain or loss will be long-term capital gain or loss if, at the time of the sale or other taxable disposition, the U.S. Holder’s holding period for such security is more than one year. Preferential tax rates apply to long-term capital gains of non-corporate U.S. Holders. There are currently no preferential tax rates for long-term capital gains of a U.S. Holder that is a corporation. Deductions for capital losses are subject to significant limitations under the Code. Any gain or loss recognized from the sale, exchange or other disposition of Common Shares will generally be gain or loss from sources within the United States for U.S. foreign tax credit purposes, except as otherwise provided in an applicable income tax treaty and if an election is properly made under the Code. See “Foreign Tax Credit” below.
PFIC Status of Our Company
If our company is or becomes a PFIC, the preceding sections of this summary may not describe the U.S. federal income tax consequences to U.S. Holders of the ownership and disposition of our Common Shares. The U.S. federal income tax consequences of owning and disposing of our Common Shares if our company is or becomes a PFIC are described below under the heading “Tax Consequences if Our Company is a PFIC.”
A non-U.S. corporation is a PFIC for each tax year in which (i) 75% or more of its gross income is passive income (as defined for U.S. federal income tax purposes) (the “income test”) or (ii) on average for such tax year, 50% or more (by value) of its assets either produce or are held for the production of passive income (the “asset test”). For purposes of the PFIC provisions, “gross income” generally includes sales revenues less cost of goods sold, plus income from investments and from incidental or outside operations or sources, and “passive income” generally includes dividends, interest, certain rents and royalties, and certain gains from commodities or securities transactions. In determining whether or not it is a PFIC, a non-U.S. corporation is required to take into account its pro rata portion of the income and assets of each corporation in which it owns, directly or indirectly, at least a 25% interest (by value). Under certain attribution and indirect ownership rules, if our company is a PFIC, U.S. Holders will generally be deemed to own their proportionate shares of our company’s direct or indirect equity interest in any company that is also a PFIC (a “Subsidiary PFIC”).
If certain conditions are met, a start-up non-U.S. corporation is not a PFIC in the first year that it has gross income, but it could be a PFIC in one or more earlier years in which it has no gross income but satisfies the asset test. Assets that produce or are held for the production of passive income include cash, even if held as working capital or raised in a public offering, marketable securities and other assets that may produce passive income. The percentage of a corporation’s assets that produce or are held for the production of passive income generally is determined based upon the average ratio of passive assets to total assets calculated at the end of each fiscal quarter. On December 4, 2020, the Treasury and IRS published a set of final and proposed regulations and guidance on PFICs. Among other changes that were made in the final regulations, a change in the computation of the 50% passive asset test described above will be implemented that will close off any alternative method of calculating assets that was advantageous to taxpayers. Taxpayers must calculate the value of assets at the end of each measuring period, then use the “weighted average” of those values to determine the value of assets for the passive asset test for the taxable year. Under the old rules, the “weighted average” arguably could be calculated based on value, or percentage. Final regulations section 1.1297-1(d)(1)(i) now requires the weighted average to be calculated based on the average value at the end of each measuring period (generally each of the four quarters that make up the company’s taxable year, unless an election is made to use an alternative measuring period (such as a week or month)). In addition, in new proposed regulations section 1.1297-1(d)(2), a limited exception to the treatment of working capital to take into account the short-term cash needs of operating companies was provided for purposes of measuring the passive asset test. This new rule provides that an amount of cash held in a non-interest bearing account that is held for the present needs of an active trade or business and is no greater than the amount reasonably expected to cover 90 days of operating expenses incurred in the ordinary course of the trade or business of the foreign corporation (for example, accounts payable for ordinary operating expenses or employee compensation) is not treated as a passive asset. The Treasury Department and the IRS indicated that they continue to study the appropriate treatment of working capital for purposes of the passive asset test.
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Although the tests for determining PFIC status are applied as of the end of each taxable year and are dependent upon a number of factors, some of which are beyond our control, including the value of our assets, the market price of our Common Shares, and the amount and type of our gross income we do not believe that we were a PFIC for the taxable year ended December 31, 2021. Our status as a PFIC is a fact-intensive determination made on an annual basis, and we cannot provide any assurance regarding our PFIC status for the taxable year ending December 31, 2022 or for subsequent taxable years. U.S. Holders who own our Common Shares for any period during which we are a PFIC will be required to file IRS Form 8621 for each tax year during which they hold our Common Shares. No opinion of legal counsel or ruling from the IRS concerning our status as a PFIC has been obtained or is currently planned to be requested. However, the determination of our PFIC status is made annually after the close of each taxable year and it is difficult to predict before such determination whether we will be a PFIC for any given taxable year. Even if we determine that we are not a PFIC after the close of a taxable year, there can be no assurance that the IRS will agree with our conclusion. No assurance can be provided regarding our PFIC status, and neither we nor our United States counsel expresses any opinion with respect to our PFIC status.
Tax Consequences if Our Company is a PFIC
If our company is a PFIC for any tax year during which a U.S. Holder owns our Common Shares, special rules may increase such U.S. Holder’s U.S. federal income tax liability with respect to the ownership and disposition of such Common Shares. If our company meets the income test or the asset test for any tax year during which a U.S. Holder owns our Common Shares, our company will be treated as a PFIC with respect to such U.S. Holder for that tax year and for all subsequent tax years, regardless of whether our company meets the income test or the asset test for such subsequent tax years, unless the U.S. Holder (i) elects to recognize any unrealized gain in such Common Shares or (ii) makes a timely and effective election to treat our company and each Subsidiary PFIC as a “qualified electing fund” (a “QEF”) under Section 1295 of the Code (a “QEF Election”) or (iii) makes a timely and effective “mark-to-market” election under Section 1296 of the Code (a “Mark-to-Market Election”).
Under the default PFIC rules, where no QEF Election or Mark-to-Market Election is made:
| ● | any gain realized on the sale or other disposition (including dispositions and certain other events that would not otherwise be treated as taxable events) of our Common Shares (including an indirect disposition of the stock of any Subsidiary PFIC) and any “excess distribution” (defined as a distribution to the extent it, together with all other distributions received in the relevant tax year, exceeds 125% of the average annual distribution received during the preceding three years) received on our Common Shares or with respect to the stock of a Subsidiary PFIC will be allocated ratably to each day of such U.S. Holder’s holding period for our Common Shares; | |
| ● | the amount allocated to the current tax year and any year prior to the first year in which our company was a PFIC will be taxed as ordinary income in the current year; | |
| ● | the amount allocated to each of the other tax years (the “Prior PFIC Years”) will be subject to tax at the highest ordinary income tax rate in effect for the applicable class of taxpayer for that year; | |
| ● | an interest charge will be imposed with respect to the resulting tax attributable to each Prior PFIC Year, which interest charge is not deductible by non-corporate U.S. Holders; and | |
| ● | any loss realized on the disposition of our Common Shares generally will not be recognized. |
A U.S. Holder that makes a timely and effective QEF election or Mark-to-Market election (as discussed below) may generally mitigate or avoid the PFIC consequences described above with respect to our Common Shares. These adverse tax consequences also would not apply to a pension or profit-sharing trust or other tax-exempt organization that did not borrow funds or otherwise utilize leverage in connection with its acquisition of our Common Shares. In addition, if a non-electing U.S. Holder who is an individual dies while owning our Common Shares, such U.S. Holder’s successor generally would not receive a step-up in tax basis with respect to such Common Shares, but instead would have a tax basis equal to the lower of the fair market value of such Common Shares or the decedent’s tax basis in such Common Shares.
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QEF Election. If a U.S. Holder makes a timely and effective QEF Election, the U.S. Holder must include currently in gross income each year its pro-rata share of our company’s ordinary income and net capital gains, regardless of whether such income and gains are actually distributed. Thus, a U.S. Holder could have a tax liability with respect to such ordinary income or gains without a corresponding receipt of cash from our company. If our company is a QEF with respect to a U.S. Holder, the U.S. Holder’s basis in our Common Shares will be increased to reflect the amount of the taxed but undistributed income. Distributions of income that had previously been taxed will result in a corresponding reduction of basis in our Common Shares and will not be taxed again as a distribution to a U.S. Holder. Taxable gains on the disposition of our Common Shares by a U.S. Holder that has made a timely and effective QEF Election are generally capital gains and the denial of the basis step-up at death described above would not apply. A U.S. Holder must make a QEF Election on IRS Form 8621 for our company and each Subsidiary PFIC if it wishes to have this treatment. To make a QEF Election, a U.S. Holder will need to have an annual information statement from our company setting forth the ordinary income and net capital gains for the year. In the event we become a PFIC, we do not intend to provide all information and documentation that a U.S. shareholder making a QEF election is required to obtain for U.S. federal income tax purposes (e.g., the U.S. shareholder’s pro rata share of ordinary income and net capital gain, and a “PFIC Annual Information Statement” as described in applicable U.S. Treasury regulations). In general, a U.S. Holder must make a QEF Election on or before the due date for filing its income tax return for the first year to which the QEF Election applies. Under applicable Treasury Regulations, a U.S. Holder will be permitted to make retroactive elections in particular circumstances, including if it had a reasonable belief that our company was not a PFIC and filed a protective election. Each U.S. Holder should consult its own tax advisor regarding the availability and desirability of, and procedure for, making a timely and effective QEF Election for our company and any Subsidiary PFIC.
Mark-to-Market Election. As an alternative to a QEF Election, a U.S. Holder may also mitigate the adverse tax consequences of PFIC status by timely making a Mark-to-Market Election, provided the U.S. Holder completes and files IRS Form 8621 in accordance with the relevant instructions and related Treasury regulations. A Mark-to-Market Election may be made with respect to “marketable stock” in a PFIC if such stock is “regularly traded” on a “qualified exchange or other market” (within the meaning of the Code and the applicable Treasury Regulations). A class of stock that is traded on one or more qualified exchanges or other markets is considered to be “regularly traded” for any calendar year during which such class of stock is traded in other than de minimis quantities on at least 15 days during each calendar quarter. If our Common Shares are considered to be “regularly traded” within this meaning, then a U.S. Holder generally will be eligible to make a Mark-to-Market Election with respect to such security but not with respect to a Subsidiary PFIC. Upon closing, our Common Shares will be listed or posted for trading on a stock quotation system and therefore should be considered to be “regularly traded” for this purpose. Whether our Common Shares are regularly traded on a qualified exchange is an annual determination based on facts that, in part, are beyond our control. When these securities become “regularly traded,” a U.S. Holder that makes a timely and effective Mark-to-Market Election with respect to such securities generally will be required to recognize as ordinary income in each tax year in which our company is a PFIC an amount equal to the excess, if any, of the fair market value of such stock as of the close of such taxable year over the U.S. Holder’s adjusted tax basis in such stock as of the close of such taxable year. A U.S. Holder’s adjusted tax basis in our securities generally will be increased by the amount of ordinary income recognized with respect to such stock. If the U.S. Holder’s adjusted tax basis in our securities as of the close of a tax year exceeds the fair market value of such stock as of the close of such taxable year, the U.S. Holder generally will recognize an ordinary loss, but only to the extent of net mark-to-market income recognized with respect to such stock for all prior taxable years. A U.S. Holder’s adjusted tax basis in our securities generally will be decreased by the amount of ordinary loss recognized with respect to such stock. Any gain from a sale, exchange or other disposition of the Common Shares in any taxable year in which we are a PFIC (i.e., when we meet the gross income test or asset test described above) would be treated as ordinary income and any loss from a sale, exchange or other disposition would be treated first as an ordinary loss (to the extent of any net mark-to-market gains previously included in income) and thereafter as a capital loss. If we cease to be a PFIC, any gain or loss recognized by a U.S. Holder on the sale or exchange of the Common Shares would be classified as a capital gain or loss. Capital losses are subject to significant limitations under the Code. If a Mark-to-Market Election with respect to our Common Shares is in effect on the date of a U.S. Holder’s death, the tax basis of the Common Shares in the hands of a U.S. Holder who acquired them from a decedent will be the lesser of the decedent’s tax basis or the fair market value of the Common Shares. Each U.S. Holder should consult its own tax advisor regarding the availability and desirability of, and procedure for, making a timely and effective Mark-to-Market Election with respect to our Common Shares.
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Election Tax Risks. Certain economic risks are inherent in making either a QEF election or a mark-to-market election. If a QEF election is made, it is possible that earned income will be reported to a U.S. Holder as taxable income and income taxes will be due and payable on such an amount. A U.S. Holder of our Common Shares may pay tax on such “phantom” income, i.e., where income is reported to it pursuant to the QEF Election, but no cash is distributed with respect to such income. There is no assurance that any distribution or profitable sale will ever be made regarding our Common Shares, so the tax liability may result in a net economic loss. A mark-to-market election may result in significant share price gains in one year causing a significant income tax liability. This gain may be offset in another year by significant losses. If a mark-to-market election is made, this highly variable tax gain or loss may result in substantial and unpredictable changes in taxable income. The amount included in income under a mark-to-market election may be substantially greater than the amount included under a QEF election. Both the QEF and mark-to-market elections are binding on the U.S. Holder for all subsequent years that the U.S. Holder owns our shares unless permission to revoke the election is granted by the IRS.
Purging Election. If we are a PFIC at any time when a U.S. Holder holds our Common Shares, we will generally continue to be treated as a PFIC with respect to the U.S. Holder for all succeeding years during which the U.S. Holder holds our Common Shares even if we cease to meet the PFIC gross income test or asset test in a subsequent year. However, if we cease to meet these tests, a U.S. Holder can avoid the continuing impact of the PFIC rules by making a special election (a “Purging Election”) to recognize gain by making a “deemed sale” election with respect to all of the U.S. Holder’s Common Shares and have such Common Shares deemed to be sold at their fair market value on the last day of the last taxable year during which we were a PFIC. The shareholder makes a purging election under Code section 1298(b)(1) and regulations section 1.1298–3 on IRS Form 8621 attached to the shareholder’s tax return (including an amended return), or requests the consent of the IRS Commissioner to make a late election under Code section 1298(b)(1) and regulations section 1.1298–3(e) (“late purging election”) on Form 8621-A. In addition, for a U.S. Holder making such an election, a new holding period would be deemed to begin for our Common Shares for purposes of the PFIC rules. After the Purging Election, the Common Shares with respect to which the Purging Election was made will not be treated as shares in a PFIC unless we subsequently again become a PFIC.
Each U.S. person who is a shareholder of a PFIC generally must file an annual report (on IRS Form 8621) with the IRS containing certain information, and the failure to file such report could result in the imposition of penalties on such U.S. person and in the extension of the statute of limitations with respect to federal income tax returns filed by such U.S. person.
The U.S. federal income tax rules relating to PFICs are very complex. U.S. Holders are urged to consult their own tax advisors with respect to the purchase, ownership and disposition of Common Shares, the consequences to them of an investment in a PFIC, any elections available with respect to the Common Shares and the IRS information reporting obligations with respect to the purchase, ownership and disposition of Common Shares in the event we are considered a PFIC.
Foreign Tax Credit
A U.S. Holder that pays (whether directly or through withholding) Canadian income tax in connection with the ownership or disposition of our Common Shares may be entitled, at the election of such U.S. Holder, to receive either a deduction or a credit for such Canadian income tax paid. Generally, a credit will reduce a U.S. Holder’s U.S. federal income tax liability on a dollar-for-dollar basis, whereas a deduction will reduce a U.S. Holder’s income subject to U.S. federal income tax. This election is made on a year-by-year basis and applies to all creditable foreign taxes paid (whether directly or through withholding) by a U.S. Holder during a year.
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Complex limitations apply to the foreign tax credit, including the general limitation that the credit cannot exceed the proportionate share of a U.S. Holder’s U.S. federal income tax liability that such U.S. Holder’s “foreign source” taxable income bears to such U.S. Holder’s worldwide taxable income. In applying this limitation, a U.S. Holder’s various items of income and deduction must be classified, under complex rules, as either “foreign source” or “U.S. source.” Generally, dividends paid by a non-U.S. corporation should be treated as foreign source for this purpose, and gains recognized on the sale of securities of a non-U.S. corporation by a U.S. Holder should be treated as U.S. source for this purpose, except as otherwise provided in an applicable income tax treaty, and if an election is properly made under the Code. However, the amount of a distribution with respect to our Common Shares that is treated as a “dividend” may be lower for U.S. federal income tax purposes than it is for Canadian federal income tax purposes, resulting in a reduced foreign tax credit allowance to a U.S. Holder. In addition, this limitation is calculated separately with respect to specific categories of income. The foreign tax credit rules are complex, and each U.S. Holder should consult its own U.S. tax advisor regarding the foreign tax credit rules.
Special rules apply to the amount of foreign tax credit that a U.S. Holder may claim on a distribution, including a constructive distribution, from a PFIC. Subject to such special rules, non-U.S. taxes paid with respect to any distribution in respect of stock in a PFIC are generally eligible for the foreign tax credit. The rules relating to distributions by a PFIC and their eligibility for the foreign tax credit are complicated, and a U.S. Holder should consult its own tax advisor regarding their application to the U.S. Holder.
Receipt of Foreign Currency
The amount of any distribution or proceeds paid in Canadian dollars to a U.S. Holder in connection with the ownership, sale or other taxable disposition of our Common Shares, will be included in the gross income of a U.S. Holder as translated into U.S. dollars calculated by reference to the exchange rate prevailing on the date of actual or constructive receipt of the payment, regardless of whether the Canadian dollars are converted into U.S. dollars at that time. If the Canadian dollars received are not converted into U.S. dollars on the date of receipt, a U.S. Holder will have a basis in the Canadian dollars equal to their U.S. dollar value on the date of receipt. Any U.S. Holder who receives payment in Canadian dollars and engages in a subsequent conversion or other disposition of the Canadian dollars may have a foreign currency exchange gain or loss that would be treated as ordinary income or loss, and generally will be U.S. source income or loss for foreign tax credit purposes. Different rules apply to U.S. Holders who use the accrual method with respect to foreign currency. Each U.S. Holder should consult its own U.S. tax advisor regarding the U.S. federal income tax consequences of receiving, owning, and disposing of Canadian dollars.
Information Reporting; Backup Withholding
Under U.S. federal income tax law, certain categories of U.S. Holders must file information returns with respect to their investment in, or involvement in, a non-U.S. corporation. For example, U.S. return disclosure obligations (and related penalties) are imposed on individuals who are U.S. Holders that hold certain specified foreign financial assets in excess of certain threshold amounts. The definition of “specified foreign financial assets” includes not only financial accounts maintained in non-U.S. financial institutions, but also, if held for investment and not in an account maintained by certain financial institutions, any stock or security issued by a non-U.S. person, any financial instrument or contract that has an issuer or counterparty other than a U.S. person and any interest in a non-U.S. entity. A U.S. Holder may be subject to these reporting requirements unless such U.S. Holder’s shares of our Common Shares are held in an account at certain financial institutions. Penalties for failure to file certain of these information returns are substantial. U.S. Holders should consult with their own tax advisors regarding the requirements of filing information returns on IRS Form 8938 for specified foreign financial assets, filing obligations relating to the PFIC rules including possible reporting on IRS Form 8621, and any other applicable reporting requirements.
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Payments made within the U.S. or by a U.S. payor or U.S. middleman of (a) distributions on our Common Shares, and (b) proceeds arising from the sale or other taxable disposition of our Common Shares generally will be subject to information reporting. In addition, backup withholding, currently at a rate of 24%, may apply to such payments if a U.S. Holder (a) fails to furnish such U.S. Holder’s correct U.S. taxpayer identification number (“TIN”) (generally on Form W-9), (b) furnishes an incorrect U.S. TIN, (c) is notified by the IRS that such U.S. Holder has previously failed to properly report items subject to backup withholding, or (d) fails to certify, under penalty of perjury, that such U.S. Holder has furnished its correct U.S. TIN and that the IRS has not notified such U.S. Holder that it is subject to backup withholding. Certain exempt persons generally are excluded from these information reporting and backup withholding rules. Backup withholding is not an additional tax. Any amounts withheld under the U.S. backup withholding rules are allowed as a credit against a U.S. Holder’s U.S. federal income tax liability, if any, or will be refunded, if such U.S. Holder furnishes required information to the IRS in a timely manner. The information reporting and backup withholding rules may apply even if, under the Canada-U.S. Tax Convention, payments are exempt from dividend withholding tax or otherwise eligible for a reduced withholding rate.
The discussion of reporting requirements set forth above is not intended to constitute an exhaustive description of all reporting requirements that may apply to a U.S. Holder. A failure to satisfy certain reporting requirements may result in an extension of the time period during which the IRS can assess a tax, and, under certain circumstances, such an extension may apply to assessments of amounts unrelated to any unsatisfied reporting requirement. Each U.S. Holder should consult its own tax advisor regarding the information reporting and backup withholding rules.
Certain Reporting Requirements
A U.S. Holder that acquires Common Shares generally will be required to file Form 926 with the IRS if (1) immediately after the acquisition such U.S. Holder, directly or indirectly, owns at least 10% of the Common Shares, or (2) the amount of cash transferred in exchange for Common Shares during the 12-month period ending on the date of the acquisition exceeds USD$100,000. Significant penalties may apply for failing to satisfy these filing requirements. U.S. Holders are urged to contact their tax advisors regarding these filing requirements.
THE ABOVE SUMMARY IS NOT INTENDED TO CONSTITUTE A COMPLETE ANALYSIS OF ALL U.S. TAX CONSIDERATIONS APPLICABLE TO U.S. HOLDERS WITH RESPECT TO THE ACQUISITION, OWNERSHIP OR DISPOSITION OF OUR COMMON SHARES. U.S. HOLDERS SHOULD CONSULT THEIR OWN TAX ADVISORS AS TO THE TAX CONSIDERATIONS APPLICABLE TO THEM IN THEIR PARTICULAR CIRCUMSTANCES.
MATERIAL CANADIAN FEDERAL INCOME TAX CONSIDERATIONS
The following summary describes, as of the date hereof, the principal Canadian federal income tax considerations under the Income Tax Act (Canada) (the “Tax Act”) generally applicable to a holder who acquires, as beneficial owner, Common Shares pursuant to this Offering, who has not elected to report its Canadian tax results in a currency other than the Canadian currency, and who deals at arm’s length with the Company and the underwriters for purposes of the Tax Act (a “Holder”).
This summary is based on the provisions of the Tax Act and the regulations thereunder (the “Regulations”) in force as of the date hereof, all specific proposals to amend the Tax Act and the Regulations that have been publicly announced prior to the date hereof (the “Proposed Amendments”), and our understanding of the current published administrative policies and practices of the Canada Revenue Agency. This summary assumes that the Proposed Amendments will be enacted in the form proposed; however, no assurance can be given that the Proposed Amendments will be enacted in the form proposed, if at all. This summary is not exhaustive of all possible Canadian federal income tax considerations and, except for the Proposed Amendments, does not take into account any changes in law, whether by legislative, governmental or judicial action, nor does it take into account provincial, territorial or foreign tax considerations, which may differ from those discussed herein.
This summary is of a general nature only and is not intended to be, nor should it be construed to be, legal or tax advice to any particular Holder, and no representations with respect to the income tax consequences to any Holder are made. Consequently, Holders and prospective holders of Common Shares should consult their own tax advisors for advice with respect to the tax consequences to them of acquiring such shares pursuant to this offering, having regard to their particular circumstances. This summary does not address any tax considerations applicable to persons other than Holders and such persons should consult their own tax advisors regarding the consequences of acquiring, holding and disposing of Common Shares under the Tax Act and any jurisdiction in which they may be subject to tax.
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Foreign Exchange
For purposes of the Tax Act, all amounts expressed in a currency other than Canadian dollars relating to the acquisition, holding or disposition of Common Shares, including dividends, adjusted cost base and proceeds of disposition, must be determined in Canadian dollars using the relevant rate of exchange required under the Tax Act.
Residents of Canada
The following portion of this summary is generally applicable to a Holder who, at all relevant times for purposes of the Tax Act (a) is, or is deemed to be, resident in Canada, (b) holds Common Shares as “capital property”, and (c) is not affiliated with the Company or the underwriters (a “Resident Holder”). Generally, Common Shares will be considered to be capital property to a Resident Holder unless they are held in the course of carrying on a business or as part of an adventure or concern in the nature of trade. Certain Resident Holders whose Common Shares do not otherwise qualify as capital property may, in certain circumstances, make an irrevocable election in accordance with subsection 39(4) of the Tax Act to have their Common Shares and every other “Canadian security” (as defined in the Tax Act) owned by such holder in the taxation year of the election and in all subsequent taxation years deemed to be capital property. Resident Holders are advised to consult their own tax advisors to determine whether such an election is available and desirable in their particular circumstances.
This summary is not applicable to a Resident Holder: (i) that is a “financial institution” for the purposes of the “mark-to-market” rules contained in the Tax Act; (ii) that is a “specified financial institution”; (iii) an interest in which would be a “tax shelter investment”; or (iv) that enters into a “derivative forward agreement” in respect of Common Shares, as each of those terms is defined in the Tax Act. This summary does not address the possible application of the “foreign affiliate dumping” rules that may be applicable to a Resident Holder that is a corporation resident in Canada (for the purposes of the Tax Act) and is, or becomes, or does not deal at arm’s length with a corporation resident in Canada that is, or that becomes, as part of a transaction or event or series of transactions or events that includes the acquisition of the Common Shares, controlled by a non-resident corporation, individual, trust or a group of any combination of non-resident individuals, trusts, and/or corporations who do not deal with each other at arm’s length for purposes of the rules in section 212.3 of the Tax Act. Any such Resident Holder should consult its own tax advisor with respect to an investment in Common Shares.
Dividends
In the case of a Resident Holder who is an individual (other than certain trusts), dividends received or deemed to be received on the Common Shares will be included in computing the Resident Holder’s income and will be subject to the gross-up and dividend tax credit rules that apply to taxable dividends received from taxable Canadian corporations. Provided that appropriate designations are made by the Company, such dividend will be treated as an “eligible dividend” for the purposes of the Tax Act and a Resident Holder who is an individual will be entitled to an enhanced dividend tax credit in respect of such dividend. There may be limitations on the Company’s ability to designate dividends and deemed dividends as eligible dividends.
Dividends received or deemed to be received on the Common Shares by a Resident Holder that is a corporation will be required to be included in computing the corporation’s income for the taxation year in which such dividends are received, but such dividends will generally be deductible in computing the corporation’s taxable income. In certain circumstances, subsection 55(2) of the Tax Act will treat a taxable dividend received by a Resident Holder that is a corporation as proceeds of disposition or a capital gain. Resident Holders that are corporations should consult their own tax advisors having regard to their own circumstances.
A Resident Holder that is a “private corporation” or a “subject corporation” (each as defined in the Tax Act) may be liable under Part IV of the Tax Act to pay a refundable tax on dividends received or deemed to be received on the Common Shares to the extent that such dividends are deductible in computing the Resident Holder’s taxable income for the taxation year.
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Dividends received by a Resident Holder who is an individual (including certain trusts) may result in such Resident Holder being liable for alternative minimum tax under the Tax Act. Resident Holders who are individuals should consult their own tax advisors in this regard.
Dispositions of Common Shares
A disposition or deemed disposition of a Common Share by a Resident Holder will generally result in the Resident Holder realizing a capital gain (or capital loss) equal to the amount by which the proceeds of disposition of the Common Share, net of any reasonable costs of disposition, are greater (or less) than the Resident Holder’s adjusted cost base of the Common Shares. Such capital gain (or capital loss) will be subject to the tax treatment described below under “—Taxation of Capital Gains and Capital Losses.”
The adjusted cost base to the Resident Holder of a voting share acquired pursuant to this offering will, at any particular time, be determined in accordance with certain rules in the Tax Act by averaging the cost of such share with the adjusted cost base of all Common Shares owned by the Resident Holder as capital property at that time, if any.
Taxation of Capital Gains and Capital Losses
Generally, one-half of any capital gain (a “taxable capital gain”) realized by a Resident Holder in a taxation year must be included in computing the Resident Holder’s income for the year, and one-half of any capital loss (an “allowable capital loss”) realized by a Resident Holder in a taxation year must be deducted from taxable capital gains realized by the Resident Holder in that year. Allowable capital losses for a taxation year in excess of taxable capital gains for that year generally may be carried back and deducted in any of the three preceding taxation years or carried forward and deducted in any subsequent taxation year against net taxable capital gains realized in such years, to the extent and under the circumstances described in the Tax Act.
The amount of any capital loss realized by a Resident Holder that is a corporation on the disposition of a Common Share may be reduced by the amount of any dividends received or deemed to have been received on such Common Share (or on a share for which such Common Share has been substituted) to the extent and under the circumstances described in the Tax Act. Analogous rules apply to a partnership or trust of which a corporation, trust or partnership is a member or beneficiary. Resident Holders should consult their own tax advisors in this regard.
Taxable capital gains realized by a Resident Holder who is an individual (including certain trusts) may give rise to liability for alternative minimum tax as calculated under the detailed rules set out in the Tax Act. A Resident Holder that is a “Canadian-controlled private corporation” (as defined in the Tax Act) may be liable to pay an additional refundable tax on certain investment income, including taxable capital gains.
Eligibility for Investment
At the time of closing of the offering the Common Shares will be a qualified investment under the Tax Act and the regulations thereunder for trusts governed by registered retirement savings plans, registered retirement income funds, registered education savings plans, registered disability savings plans, tax-free savings accounts (collectively “Registered Plans”) and deferred profit sharing plans (“DPSPs”), all as defined in the Tax Act, provided that at the time of closing of the offering the Common Shares are listed on a “designated stock exchange” as defined in the Tax Act (which includes the CSE) or the Company is a “public corporation” (other than a mortgage investment corporation) as defined in the Tax Act.
Notwithstanding the foregoing, the holder of, subscriber or annuitant under, a Registered Plan (the “Controlling Individual”) will be subject to a penalty tax in respect of Common Shares acquired by the Registered Plan if such shares are a prohibited investment for the particular Registered Plan. A Common Share generally will not be a “prohibited investment” for a Registered Plan provided the Controlling Individual deals at arm’s length with the Company for the purposes of the Tax Act and the Controlling Individual does not have a “significant interest” (as defined in subsection 207.01(4) the Tax Act) in the Company.
Prospective investors who intend to hold Common Shares in a Registered Plan or DPSP are advised to consult their personal tax advisors.
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Non-Residents of Canada
The following portion of this summary is generally applicable to a Holder who, at all relevant times for purposes of the Tax Act and any applicable tax treaty or convention (a) is not, and is not deemed to be, resident in Canada, and (b) does not use or hold, and is not deemed to use or hold, Common Shares in the course of carrying on a business in Canada (a “Non-Resident Holder”). Special rules which are not discussed in this summary may apply to a Non-Resident Holder that is an insurer which carries on an insurance business in Canada and elsewhere.
Dividends
Dividends paid or credited or deemed to be paid or credited to a Non-Resident Holder by the Company on Common Shares are subject to Canadian withholding tax at the rate of 25% on the gross amount of the dividend unless such rate is reduced by the terms of an applicable tax treaty. For example, under the Canada – United States Tax Convention (1980), as amended (the “Treaty”), the rate of withholding tax on dividends paid or credited to a Non-Resident Holder who is a resident of the United States for purposes of the Treaty and who is fully entitled to the benefits of the Treaty (a “U.S. Holder”) is generally limited to 15% of the gross amount of the dividend (or 5% in the case of a U.S. Holder that is a company that beneficially owns at least 10% of the Company’s Common Shares). Non-Resident Holders should consult their own tax advisors to determine their entitlement to relief under any applicable income tax treaty.
Dispositions of Common Shares
A Non-Resident Holder will not be subject to tax under the Tax Act in respect of a capital gain realized on the disposition or deemed disposition of a voting share unless the voting share constitutes “taxable Canadian property” to the Non-Resident Holder for purposes of the Tax Act and the Non-Resident Holder is not entitled to relief under the terms of an applicable tax treaty between Canada and the Non-Resident Holder’s jurisdiction of residence.
Provided the Common Shares are listed on a “designated stock exchange”, as defined in the Tax Act (which currently includes the CSE) at the time of disposition, the Common Shares will generally not constitute taxable Canadian property of a Non-Resident Holder at that time unless, at any time during the 60-month period immediately preceding the disposition, the following two conditions are satisfied: (i) (a) the Non-Resident Holder, (b) persons with whom the Non-Resident Holder did not deal at arm’s length for purposes of the Tax Act, (c) partnerships in which the Non-Resident Holder or a person described in (b) holds a membership interest directly or indirectly through one or more partnerships, or (d) any combination of the persons and partnerships described in (a) through (c), owned 25% or more of the issued shares of any class or series of shares of the Company, and (ii) more than 50% of the fair market value of the Common Shares was derived directly or indirectly from one or any combination of: real or immovable property situated in Canada, “Canadian resource properties”, “timber resource properties” (each as defined in the Tax Act), and options in respect of, or interests in or for civil law rights in, such properties, whether or not the property exits. Notwithstanding the foregoing, the shares may also be deemed to be taxable Canadian property to a Non-Resident Holder under other provisions of the Tax Act.
Non-Resident Holders who may hold Common Shares as taxable Canadian property should consult their own tax advisors.
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Maxim Group LLC is acting as the lead managing underwriter and sole book running manager in connection with this offering. Under the terms and subject to the conditions in the Underwriting Agreement, the Company has agreed to issue and sell and the Underwriter has agreed to purchase, on a firm commitment basis, on the Closing Date, or such other date as the Company and the Underwriter may agree, the number of Units indicated below at the public offering price per Unit less the underwriting discounts set forth on the cover page of this prospectus:
| Name of Underwriter | Number of Units | |||
| Maxim Group LLC | ||||
| Total | ||||
Maxim’s address is 300 Park Avenue, 16th Floor, New York, New York 10022.
The Underwriting Agreement provides that the underwriter is obligated to purchase all the Units in the offering if any are purchased, other than those covered by the over-allotment option described below. The Underwriting Agreement also provides that if the underwriter defaults, the offering may be terminated.
The Units will be offered in the United States by the Underwriter either directly or through its duly registered U.S. broker dealer affiliates or agents. Any Units sold by the Underwriter to securities dealers will be sold at the public offering price less a selling concession not in excess of USD$ per Units. No Units will be offered or sold to Canadian purchasers, and there will be no solicitations or advertising activities undertaken in Canada in connection with the Offering.
The Units are offered subject to a number of conditions, including:
| ● | receipt and acceptance of the Units by the Underwriter; | |
| ● | the Underwriter’s right to withdraw, cancel or modify offers to the public and to reject orders in whole or in part; and | |
| ● | other conditions contained in the Underwriting Agreement, such as the receipt by the Underwriter of officers’ certificates and legal opinions. |
The Company has applied to list the Common Shares and Warrants on the Nasdaq Capital Market under the trading symbol “SKUR” and “SKURW,” respectively. Trading of the Common Shares and Warrants on the Nasdaq is anticipated to commence following pricing of Units under the Offering. We will not consummate this offering unless our Common Shares will be listed on the Nasdaq Capital Market.
The offering price of the Units was determined by arm’s length negotiation between the Company and the Underwriter.
Over-Allotment Option
The Company has granted an option to Maxim to purchase up to an additional Common Shares and/or Warrants to purchase an additional Common Shares at the public offering price, less the underwriting discount. Maxim may exercise the over-allotment option for 45 days from the Closing Date. If any of these additional Common Shares or Warrants are purchased, Maxim will offer the additional Common Shares or Warrants on the same terms as those on which the Units are being offered.
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Underwriting Discounts and Commissions
Units sold by the Underwriter to the public will initially be offered at the offering price set forth on the cover of this Prospectus. Any Units sold by the Underwriter to securities dealers may be sold at a discount of up to 8%, or USD$● per Unit, from the public offering price. If all of the Common Shares are not sold at the public offering price, the Underwriter may change the offering price and the other selling terms. Upon execution of the Underwriting Agreement, the Underwriter will be obligated to purchase the Common Shares at the prices and upon the terms stated therein and, as a result, will thereafter bear any risk associated with changing the offering price to the public or other selling terms.
The following table shows the per Unit and total underwriting discount the Company will pay to the Underwriter:
Per Common Share ($USD) | Without Over-Allotment Option ($USD) | With Over-Allotment Option ($USD) | ||||||||||
| Public offering price | $ | $ | $ | |||||||||
| Underwriting discounts and commissions (8%)(1) | ||||||||||||
| Proceeds, before expenses, to us | $ | $ | $ | |||||||||
Note:
| (1) | In the event that we direct investors to the Underwriter, the applicable Underwriting discount and commissions with respect to such investors would be reduced to 4%. |
We estimate that the total expenses of the Offering payable by us, not including the underwriting discount, will be approximately USD$[●]. We have agreed to be responsible and pay for all expenses related to the offering including all filing fees, legal fees and communication expenses relating to the registration of the securities to be sold in the offering (including the over-allotment securities). Upon Maxim’s request, we will provide funds to pay all fees, expenses and disbursements in excess of the USD$25,000 advance provided to Maxim upon execution of the engagement letter for reasonable out-of-pocket expenses. We have agreed to pay an additional USD$25,000 advance upon the filing of the registration statement of which this prospectus forms a part. The maximum amount of legal fees, costs and expenses incurred by Maxim that we shall be responsible for shall not exceed USD$125,000. The underwriting agreement, however, provides that in the event the offering is terminated, any advance expense deposits paid to the underwriter will be returned to the extent that offering expenses are not actually incurred in accordance with Financial Industry Regulatory Authority (“FINRA”) Rule 5110(c)(2)(C).
Underwriter Warrants
In addition, we have agreed to issue to Maxim (or its permitted assignees) Representative’s Warrants to purchase up to a total of Common Shares (8.0% of the shares of Common Shares sold in this offering). The Representative’s Warrants will be exercisable at any time, and from time to time, in whole or in part, during the period commencing 180 days following the commencement of sales of the securities issued in this offering and expiring five (5) years from the commencement of sales of the securities issued in this offering, which period is in compliance with applicable FINRA rules. The Representative’s Warrants are exercisable at a per share price equal to USD$ per share, or 110% of the public offering price in the offering. The Representative’s Warrants have been deemed compensation by FINRA and are therefore subject to a 180-day lock-up pursuant to Rule 5110(e)(1)(A) of FINRA. Maxim (or permitted assignees under Rule 5110(e)(2)(B)) will not sell, transfer, assign, pledge, or hypothecate these Representative’s Warrants or the securities underlying these Representative’s Warrants, nor will they engage in any hedging, short sale, derivative, put, or call transaction that would result in the effective economic disposition of the Representative’s Warrants or the underlying securities for a period of 180 days from the effective date of the registration statement of which this prospectus supplement is a part. In addition, the Representative’s Warrants provide for registration rights upon request, in certain cases. The demand registration rights provided will not be greater than five years from the effective date of the registration statement of which this prospectus supplement is a part in compliance with applicable FINRA rules. The piggyback registration rights provided will not be greater than seven (7) years from the effective date of the registration statement of which this prospectus is a part in compliance with applicable FINRA rules. We will bear all fees and expenses attendant to registering the securities issuable on exercise of the Representative’s Warrants other than fees and expenses associated with a second demand right and underwriting commissions incurred and payable by the holders. The Representative’s Warrants will not contain more than one demand registration right at the Company’s expense pursuant to FINRA Rule 5110(g)(8)(B). The exercise price and number of Underwriter’s Warrant Shares issuable upon exercise of the Representative’s Warrants may be adjusted in certain circumstances including in the event of a stock dividend, extraordinary cash dividend or our recapitalization, reorganization, merger or consolidation. However, the Representative’s Warrants exercise price or underlying shares will not be adjusted for issuances of Common Shares at a price below the Representative’s Warrants’ exercise price.
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Discretionary Accounts
The Underwriter does not intend to confirm sales of the Units to any accounts over which it has discretionary authority.
Lock-Up Agreements
The Company and our officers, directors and holders or 1% or more of our outstanding Common Shares have entered into customary “lock up” agreements in favor of Maxim pursuant to which such persons and entities have agreed, for a period of six months after the offering is completed, that they shall neither offer, issue, sell, contract to sell, encumber, grant any option for the sale of or otherwise dispose of any our securities without Maxim’s prior written consent.
Indemnification
We have agreed to indemnify Maxim against certain liabilities, including liabilities under Securities Act, and liabilities arising from breaches of representations and warranties contained in the underwriting agreement and to contribute to payments that the underwriter may be required to make for these liabilities.
Price Stabilization, Short Positions and Penalty Bids
In connection with this offering, the underwriter may engage in transactions that stabilize, maintain or otherwise affect the price of our securities. Specifically, the underwriter may over-allot in connection with this offering by selling more shares than are set forth on the cover page of this prospectus. This creates a short position in our shares for its own account. The short position may be either a covered short position or a naked short position. In a covered short position, the number of shares over-allotted by the underwriter is not greater than the number of shares that it may purchase in the over-allotment option. In a naked short position, the number of shares involved is greater than the number of shares in the over-allotment option. To close out a short position, the underwriter may elect to exercise all or part of the over-allotment option. The underwriter may also elect to stabilize the price of our shares or reduce any short position by bidding for, and purchasing, shares in the open market.
The underwriter may also impose a penalty bid. This occurs when a particular underwriter or dealer repays selling concessions allowed to it for distributing a security in this offering because the underwriter repurchases that security in stabilizing or short covering transactions.
Finally, the underwriter may bid for, and purchase, shares in market making transactions, including “passive” market making transactions as described below.
These activities may stabilize or maintain the market price of our shares at a price that is higher than the price that might otherwise exist in the absence of these activities. The underwriter is not required to engage in these activities, and may discontinue any of these activities at any time without notice. These transactions may be effected on the Nasdaq Capital Market, in the over-the-counter market, or otherwise.
| 84 |
In connection with this offering, the underwriter and selling group members, if any, or their affiliates may engage in passive market making transactions in our shares immediately prior to the commencement of sales in this offering, in accordance with Rule 103 of Regulation M under the Exchange Act. Rule 103 generally provides that:
| ● | a passive market maker may not effect transactions or display bids for our shares in excess of the highest independent bid price by persons who are not passive market makers; | |
| ● | net purchases by a passive market maker on each day are generally limited to 30% of the passive market maker’s average daily trading volume in our shares during a specified two-month prior period or 200 shares, whichever is greater, and must be discontinued when that limit is reached; and | |
| ● | passive market making bids must be identified as such. |
Right of First Refusal
Subject to the closing of this offering and certain conditions set forth in the underwriting agreement, for a period of 24 months after the closing of the offering, the underwriter shall have a right of first refusal to act as sole managing underwriter and sole book-runner for any and all future public or private equity, equity-linked, convertible and debt offerings undertaken during such period by us, or any of our successors or subsidiaries, provided that such right of first refusal will not apply to offerings solely with Swiss individuals or entities and certain other identified parties.
Tail Financing Payments
If we terminate our engagement agreement with Maxim, other than for cause, and we subsequently complete any public or private financing any time during the 24 months after such termination with any investors contacted by Maxim in connection with this offering, then Maxim shall be entitled to receive the same compensation for such offering as it would have been entitled to in connection with this offering.
Other Relationships
From time to time, the Underwriter and/or its affiliates may in the future engage in investment banking and other commercial dealings in the ordinary course of business with us for which they would expect to receive customary fees and commissions.
In addition, in the ordinary course of its business activities, the Underwriter and its affiliates may make or hold a broad array of investments and actively trade debt and equity securities (or related derivative securities) and financial instruments (including bank loans) for their own account and for the accounts of their customers. Such investments and securities activities may involve securities and/or instruments of ours or our affiliates. The Underwriter and its affiliates may also make investment recommendations and/or publish or express independent research views in respect of such securities or financial instruments and may hold, or recommend to clients that they acquire, long and/or short positions in such securities and instruments.
International Selling Restrictions
Other than in the United States, no action has been taken by us or the underwriter that would permit a public offering of the securities offered by this prospectus in any jurisdiction where action for that purpose is required. The securities offered by this prospectus may not be offered or sold, directly or indirectly, nor may this prospectus or any other offering material or advertisements in connection with the offer and sale of any such securities be distributed or published in any jurisdiction, except under circumstances that will result in compliance with the applicable rules and regulations of that jurisdiction. Persons into whose possession this prospectus comes are advised to inform themselves about and to observe any restrictions relating to the offering and the distribution of this prospectus. This prospectus does not constitute an offer to sell or a solicitation of an offer to buy any securities offered by this prospectus in any jurisdiction in which such an offer or a solicitation is unlawful.
Electronic Distribution
A prospectus in electronic format may be made available on the web sites maintained by the underwriter, or selling group members, if any, participating in this offering and the underwriter may distribute prospectus supplements electronically. The underwriter may agree to allocate a number of shares to selling group members for sale to their online brokerage account holders. Internet distributions will be allocated by the underwriter and selling group members that will make internet distributions on the same basis as other allocations.
| 85 |
Notice to Prospective Investors in Canada
The Common Shares and Warrants may be sold only to purchasers purchasing, or deemed to be purchasing, as principal that are accredited investors, as defined in National Instrument 45-106 Prospectus Exemptions or subsection 73.3(1) of the Securities Act (Ontario), and are permitted clients, as defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations. Any resale of the Common Shares or Warrants must be made in accordance with an exemption from, or in a transaction not subject to, the prospectus requirements of applicable securities laws.
Securities legislation in certain provinces or territories of Canada may provide a purchaser with remedies for rescission or damages if this prospectus (including any amendment thereto) contains a misrepresentation, provided that the remedies for rescission or damages are exercised by the purchaser within the time limit prescribed by the securities legislation of the purchaser’s province or territory. The purchaser should refer to any applicable provisions of the securities legislation of the purchaser’s province or territory for particulars of these rights or consult with a legal advisor.
Pursuant to section 3A.3 (or, in the case of securities issued or guaranteed by the government of a non-Canadian jurisdiction, section 3A.4) of National Instrument 33-105 Underwriting Conflicts (NI33-105), the underwriters are not required to comply with the disclosure requirements of NI 33-105 regarding underwriter conflicts of interest in connection with this offering.
EXPENSES RELATING TO THIS OFFERING
Set forth below is an itemization of the total expenses in USD$, excluding Underwriting discounts, expected to be incurred in connection with this offering by us. With the exception of the SEC registration fee, the FINRA filing fee, and the Nasdaq Capital Market listing fee, all amounts are estimates.
| SEC registration fee | USD$ | ● | ||
| FINRA filing fee | USD$ | ● | ||
| Nasdaq Capital Market Listing Fee | USD$ | 45,000 | ||
| Transfer agent fees and expenses | USD$ | 35,000 | ||
| Printer fees and engraving expenses | USD$ | 25,000 | ||
| Legal fees and expenses | USD$ | 255,000 | ||
| Accounting fees and expenses | USD$ | 40,000 | ||
| Miscellaneous | USD$ | 15,000 | ||
| Total | USD$ | ● |
The validity of the Common Shares offered in this offering and certain other legal matters as to British Columbia law will be passed upon for us by Northwest Law Group, our counsel as to British Columbia law. The validity of the Units and the Warrants offered in the offering will be passed upon by Northwest Law Group. Matters related to the laws of the United States will be passed upon for us by Northwest Law Group. Fox Rothschild LLP, Minneapolis, Minnesota, is representing the underwriters in this offering.
The consolidated financial statements for the years ended December 31, 2021 and 2020, included in this prospectus will been so included in reliance on the report of our accountants, De Visser Gray LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
| 86 |
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We have filed with the SEC a registration statement on Form F-1, including relevant exhibits and schedules under the Securities Act, covering the Common Shares offered by this prospectus. You should refer to our registration statements and their exhibits and schedules if you would like to find out more about us and about the Common Shares. This prospectus summarizes material provisions of contracts and other documents that we refer you to. Since the prospectus may not contain all the information that you may find important, you should review the full text of these documents.
Immediately upon the completion of this offering, we will be subject to periodic reporting and other informational requirements of the Exchange Act, as applicable to foreign private issuers. Accordingly, we will be required to file reports, including annual reports on Form 20-F, and other information with the SEC. As a foreign private issuer, we are exempt from the rules of the Exchange Act prescribing the furnishing and content of proxy statements to shareholders under the federal proxy rules contained in Sections 14(a), (b) and (c) of the Exchange Act, 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.
The registration statements, reports and other information so filed can be inspected and copied at the public reference facilities maintained by the SEC at 100 F Street, N.E., Washington, D.C. 20549. You can request copies of these documents upon payment of a duplicating fee, by writing to the SEC. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the public reference rooms. The SEC also maintains a website that contains reports, proxy statements and other information about issuers, such as us, who file electronically with the SEC. The address of that website is http://www.sec.gov. The information on that website is not a part of this prospectus.
No dealers, salesperson or other person is authorized to give any information or to represent anything not contained in this prospectus. You must not rely on any unauthorized information or representations. This prospectus is an offer to sell only the securities offered hereby, but only under circumstances and in jurisdictions where it is lawful to do so. The information contained in this prospectus is current only as of its date.
| 87 |
Index to Financial Statements
| 88 |
(FORMERLY GLOBEX DATA LTD.)
CONSOLIDATED FINANCIAL STATEMENTS
FOR THE YEARS ENDED DECEMBER 31, 2021 AND 2020
(Expressed in Canadian Dollars)
| F-1 |
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Shareholders of Sekur Private Data Ltd. (formerly GlobeX Data Ltd.)
Opinion on the Consolidated Financial Statements
We have audited the accompanying consolidated statements of financial position of Sekur Private Data Ltd. (formerly GlobeX Data Ltd. (“the Company”) as of December 31, 2021 and 2020, and the related consolidated statements of comprehensive loss, changes in shareholders’ equity and cash flows for each of the years in the two-year period ended December 31, 2021, and the related notes (collectively referred to as the financial statements). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2021 and 2020, and the results of its operations and its cash flows for each of the years in the two-year period ended December 31, 2021, in conformity with International Financial Reporting Standards as issued by the International Accounting Standards Board.
Basis for Opinion
These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (“PCAOB”) and are required to be independent with respect to the Company in accordance with U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance whether the financial statements are free of material misstatement, whether due to fraud or error. The Company is not required to have, nor were we engaged to perform, an audit of internal control over financial reporting. As part of our audits, we are required to obtain an understanding of internal control over financial reporting, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion.
Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our opinion.
 |
|
| CHARTERED PROFESSIONAL ACCOUNTANTS | |
| We have served as the Company’s auditor since 2021. | |
| Vancouver, Canada | |
| September 16, 2022 |
| F-2 |
(FORMERLY GLOBEX DATA LTD.)
CONSOLIDATED STATEMENTS OF FINANCIAL POSITION
(Expressed in Canadian Dollars)
As at
| December 31, 2021 | December 31, 2020 | |||||||
| ASSETS | ||||||||
| Current | ||||||||
| Cash and cash equivalents | $ | 8,812,477 | $ | 494,927 | ||||
| Receivables | 48,555 | 19,472 | ||||||
| Prepaid expenses (Notes 6 and 9) | 775,294 | 126,848 | ||||||
| 9,636,326 | 641,247 | |||||||
| Non-current | ||||||||
| Equipment (Note 3) | 666,900 | - | ||||||
| Intangible asset (Note 4) | 2,552,573 | 2,552,573 | ||||||
| Total Assets | $ | 12,855,799 | $ | 3,193,820 | ||||
| LIABILITIES AND SHAREHOLDERS’ EQUITY | ||||||||
| Current liabilities | ||||||||
| Accounts payable and accrued liabilities | $ | 77,730 | $ | 45,784 | ||||
| Due to related parties (Note 6) | - | 2,759 | ||||||
| Licensee fees payable (Notes 1, 4 and 6) | 52,734 | 38,248 | ||||||
| 130,464 | 86,791 | |||||||
| Shareholders’ equity | ||||||||
| Share capital (Note 5) | 20,982,323 | 6,161,300 | ||||||
| Shares subscribed (Note 5) | - | 22,780 | ||||||
| Reserves (Note 5) | 5,228,563 | 996,016 | ||||||
| Deficit | (13,485,551 | ) | (4,073,067 | ) | ||||
| 12,725,335 | 3,107,029 | |||||||
| Total Liabilities and Shareholders’ Equity | $ | 12,855,799 | $ | 3,193,820 | ||||
Nature of operations and going concern (Note 1)
Subsequent events (Note 12)
| Approved on behalf of the Board of Directors: | ||
| “Alain Ghiai” | “Henry Sjöman” | |
| Director | Director |
The accompanying notes are an integral part of these consolidated financial statements.
| F-3 |
(FORMERLY GLOBEX DATA LTD.)
CONSOLIDATED STATEMENTS OF COMPREHENSIVE LOSS
(Expressed in Canadian Dollars)
Year ended December 31, 2021 |
Year ended December 31, 2020 | |||||||
| REVENUE (Note 11) | $ | 144,881 | $ | 26,756 | ||||
| EXPENSES | ||||||||
| Accounting and audit (Note 6) | 66,395 | 53,754 | ||||||
| Consulting fees | 139,008 | 119,345 | ||||||
| Depreciation (Note 3) | 6,198 | - | ||||||
| Legal | 8,428 | 4,384 | ||||||
| Licensee fees (Notes 1, 4 and 6) | 14,431 | 2,675 | ||||||
| Marketing | 3,796,378 | 153,333 | ||||||
| Office and administration | 52,044 | 44,931 | ||||||
| Rent and virtual office | 35,656 | 38,075 | ||||||
| Share-based payments (Notes 5 and 6) | 4,555,966 | 461,803 | ||||||
| Software maintenance (Note 6) | 794,149 | 409,714 | ||||||
| Transfer agent and filing fees | 48,789 | 35,453 | ||||||
| Travel | 7,230 | 30,566 | ||||||
| (9,524,672 | ) | (1,354,033 | ) | |||||
| OTHER ITEMS | ||||||||
| Interest income | 7,046 | 5,660 | ||||||
| Gain (loss) on foreign exchange | (39,739 | ) | 2,122 | |||||
| (32,693 | ) | 7,782 | ||||||
| Net loss and comprehensive loss for the year | $ | (9,412,484 | ) | $ | (1,319,495 | ) | ||
| Basic and diluted loss per share | $ | (0.11 | ) | $ | (0.02 | ) | ||
| Weighted average number of common shares outstanding | 87,769,397 | 54,546,447 | ||||||
The accompanying notes are an integral part of these consolidated financial statements.
| F-4 |
(FORMERLY GLOBEX DATA LTD.)
CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS’ EQUITY
For the years ended December 31, 2021 and 2020
(Expressed in Canadian Dollars)
| Number of Shares | Share Capital $ | Shares Subscribed $ | Reserves $ | Deficit $ | Shareholders’ Equity $ | |||||||||||||||||||
| Balance, December 31, 2019 | 52,420,282 | 5,583,237 | 157,000 | 534,213 | (2,753,572 | ) | 3,520,878 | |||||||||||||||||
| Shares issued | 4,580,431 | 586,407 | (157,000 | ) | - | - | 429,407 | |||||||||||||||||
| Share issue costs | - | (8,344 | ) | - | - | - | (8,344 | ) | ||||||||||||||||
| Shares subscribed | - | - | 22,780 | - | - | 22,780 | ||||||||||||||||||
| Share-based payments | - | - | - | 461,803 | - | 461,803 | ||||||||||||||||||
| Net loss for the year | - | - | - | - | (1,319,495 | ) | (1,319,495 | ) | ||||||||||||||||
| Balance, December 31, 2020 | 57,000,713 | 6,161,300 | 22,780 | 996,016 | (4,073,067 | ) | 3,107,029 | |||||||||||||||||
| Shares issued | 45,517,307 | 13,046,527 | (22,780 | ) | (50,040 | ) | - | 12,973,707 | ||||||||||||||||
| Share issue costs | - | (680,297 | ) | - | 132,383 | - | (547,914 | ) | ||||||||||||||||
| Exercise of stock options | 2,720,000 | 596,827 | - | (266,427 | ) | - | 330,400 | |||||||||||||||||
| Exercise of warrants | 7,113,168 | 1,267,966 | - | (139,335 | ) | - | 1,128,631 | |||||||||||||||||
| Shares issued for accounts payable | 50,000 | 18,000 | - | - | - | 18,000 | ||||||||||||||||||
| Shares issued for marketing services | 1,300,000 | 572,000 | - | - | - | 572,000 | ||||||||||||||||||
| Share-based payments | - | - | - | 4,555,966 | - | 4,555,966 | ||||||||||||||||||
| Net loss for the year | - | - | - | - | (9,412,484 | ) | (9,412,484 | ) | ||||||||||||||||
| Balance, December 31, 2021 | 113,701,188 | 20,982,323 | - | 5,228,563 | (13,485,551 | ) | 12,725,335 | |||||||||||||||||
The accompanying notes are an integral part of these consolidated financial statements.
| F-5 |
(FORMERLY GLOBEX DATA LTD.)
CONSOLIDATED STATEMENTS OF CASH FLOWS
For the years ended December 31, 2021 and 2020
(Expressed in Canadian Dollars)
| 2021 | 2020 | |||||||
| CASH FLOWS USED IN OPERATING ACTIVITIES | ||||||||
| Net loss | $ | (9,412,484 | ) | $ | (1,319,495 | ) | ||
| Items not affecting cash: | ||||||||
| Depreciation | 6,198 | - | ||||||
| Foreign exchange | (12,242 | ) | - | |||||
| Share-based payments | 4,555,966 | 461,803 | ||||||
| Shares issued for marketing services | 268,714 | - | ||||||
| Changes in non-cash working capital items: | ||||||||
| Receivables | (29,083 | ) | (11,753 | ) | ||||
| Prepaid expenses | (345,160 | ) | (29,154 | ) | ||||
| Accounts payable and accrued liabilities | 49,946 | 6,625 | ||||||
| Due to related parties | (2,759 | ) | 2,113 | |||||
| Licensee fees payable | 14,486 | 1,771 | ||||||
| Cash used in operating activities | (4,906,418 | ) | (888,090 | ) | ||||
| CASH FLOWS FROM FINANCING ACTIVITIES | ||||||||
| Shares issued for cash | 12,973,707 | 403,228 | ||||||
| Share issue costs | (547,914 | ) | (8,344 | ) | ||||
| Shares subscribed | - | 22,780 | ||||||
| Exercise of stock options | 330,400 | - | ||||||
| Exercise of warrants | 1,128,631 | - | ||||||
| Cash provided by financing activities | 13,884,824 | 417,664 | ||||||
| CASH FLOWS USED IN INVESTING ACTIVITIES | ||||||||
| Equipment acquired | (673,098 | ) | - | |||||
| Cash used in investing activities | (673,098 | ) | - | |||||
| Change in cash and cash equivalents | 8,305,308 | (470,426 | ) | |||||
| Effect of foreign exchange on cash | 12,242 | - | ||||||
| Cash, beginning | 494,927 | 965,353 | ||||||
| Cash and cash equivalents, end | $ | 8,812,477 | $ | 494,927 | ||||
| Cash and cash equivalents: | ||||||||
| Cash | $ | 3,913,654 | $ | 494,927 | ||||
| Money market mutual funds | 4,898,823 | - | ||||||
| $ | 8,812,477 | $ | 494,927 | |||||
| Supplemental cash flow information: | ||||||||
| Cash received for interest | $ | 3,694 | $ | 5,660 | ||||
| Transfer to share capital on exercise of stock options | $ | 266,427 | $ | - | ||||
| Transfer to share capital on exercise of broker’s warrants | $ | 139,335 | $ | - | ||||
| Fair value of agent’s warrants | $ | 82,343 | $ | - | ||||
| Fair value of Finder’s units | $ | 50,040 | $ | - | ||||
| Shares issued for accounts payable | $ | 18,000 | $ | 26,179 | ||||
The accompanying notes are an integral part of these consolidated financial statements.
| F-6 |
(FORMERLY GLOBEX DATA LTD.)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2021 and 2020
(Expressed in Canadian Dollars)
| 1. | NATURE OF OPERATIONS AND GOING CONCERN |
a) Nature of operations
Sekur Private Data Ltd. (formerly GlobeX Data Ltd.) (the “Company”) was incorporated under the Business Corporations Act (British Columbia) on March 1, 2017 and completed its initial public offering (“IPO”) during the year ended December 31, 2019. The Company’s common shares and tradeable warrants were listed on the Canadian Securities Exchange effective July 22, 2019 under the symbols “SWIS” and “SWIS.WT”, respectively. On November 5, 2019, the Company’s common shares began trading on the OTCQB Venture Market with the trading symbol SWISF. On April 14, 2022, the Company changed its name to Sekur Private Data Ltd. and the Company’s common shares and tradable warrants were listed on the Canadian Securities Exchange under the new symbols “SKUR” and “SKUR.WT”, respectively. The Company began trading on the OTCQX as of April 29, 2022 under the trading symbol SWISF.
The Company is a Cybersecurity and Internet Privacy provider of Swiss-hosted solutions for secure communications and secure data management. On May 7, 2017, the Company (as licensee) entered into the GlobeX Data Secure Cloud Services Licensee Agreement and Program (“Reseller Agreement 2”) with GlobeX Data S.A. (“GDSA”), a Swiss corporation with a common director, whereby GDSA granted to the Company an exclusive, transferrable license to resell the Plan Offerings (as defined) to prospects in all countries except Switzerland, Lichtenstein, the Principality of Monte Carlo, the Vatican City State, Canada and the United States for a perpetual term unless terminated by GDSA. The terms and conditions of Reseller Agreement 2 are the same as for the Reseller Agreement as described in Note 4, except that the Company has 90 days to cure a breach of any part of Reseller Agreement 2.
The Company’s head office and principal address is located at First Canadian Place, 100 King Street West, Suite 5600, Toronto, ON, Canada, M5X 1C9 and the registered and records office is located at 595 Howe Street, Suite 704, Vancouver, BC, Canada, V6C 2T5.
b) Going concern
Between January 15, 2021 and November 17, 2021, the Company closed five non-brokered private placements (Note 5) that realized net proceeds of $12,448,573 which will be used to complete the Company’s commercialization path and a step to develop profitable operations. As at December 31, 2021, the Company had a deficit of $13,485,551 since inception and incurred negative operating cash flows. Due to the private placements during the year, the Company has increased its working capital balance to $9,505,862 (December 31, 2020 - $554,456) and available cash to $8,812,477 (December 31, 2020 - $494,927). Therefore, management concludes that the Company has sufficient funds to fund its operations for the next 12 months. Ultimately the continuing operations of the Company are dependent upon generating profitable operations and obtaining funding, as required, to allow the Company to achieve its business objectives. While the Company’s management believes that there are many financing opportunities available, there is no assurance that it will be able to successfully obtain additional financing as needed. These consolidated financial statements have been prepared using accounting policies applicable to a going concern, which contemplates the realization of assets and settlement of liabilities in the normal course of business as they become due and do not reflect any adjustments that would be necessary if the going concern basis was not appropriate. If the going concern basis was not appropriate, significant adjustments would be necessary in the carrying value of assets and liabilities, the reported expenses and the classifications used in the consolidated statements of financial position.
These consolidated financial statements were authorized for issue by the Board of Directors on September 16, 2022.
| 2. | SIGNIFICANT ACCOUNTING POLICIES |
Statement of compliance to International Financial Reporting Standards
These consolidated financial statements have been prepared in accordance with International Financial Reporting Standards (“IFRS”) as issued by the International Accounting Standards Board (“IASB”).
| F-7 |
SEKUR PRIVATE DATA LTD.
(FORMERLY GLOBEX DATA LTD.)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2021 and 2020
(Expressed in Canadian Dollars)
| 2. | SIGNIFICANT ACCOUNTING POLICIES (cont’d…) |
Basis of presentation
These consolidated financial statements of the Company have been prepared on an accrual basis and are based on historical costs, modified where applicable. The consolidated financial statements are presented in Canadian dollars unless otherwise noted.
Use of estimates and judgments
The preparation of these financial statements in conformity with IFRS requires management to make estimates, judgments and assumptions that affect the application of accounting policies and the reported amounts of assets, liabilities, revenue and expenses. Actual results may differ from these estimates. Estimates and underlying assumptions are reviewed on an ongoing basis. Revisions to accounting estimates are recognized in the period in which the estimates are revised and in any future periods affected.
Certain of the Company’s accounting policies and disclosures require key assumptions concerning the future and other estimates that have a significant risk of causing a material adjustment to the carrying amounts of assets and liabilities or disclosures within the next fiscal year. Where applicable, further information about the assumptions made is disclosed in the notes specific to that asset or liability. The critical accounting estimates and judgments set out below have been applied consistently to all periods presented in these financial statements.
| a) | Ability to continue as a going concern – evaluation of the ability of the Company to realize its strategy for funding its future needs for working capital involves making judgments. | |
| b) | Equipment – equipment is depreciated over the estimated useful life of the asset to the asset’s estimated residual value as determined by management. Assessing the reasonableness of the estimated useful life, residual value and the appropriate depreciation methodology requires judgment and is based on management’s experience and knowledge of the industry. | |
| c) | Impairment – an evaluation of whether or not an asset is impaired involves consideration of whether indicators of impairment exist. Factors which could indicate impairment exists include: significant underperformance of an asset relative to historical or projected operating results, significant changes in the manner in which an asset is used or in the Company’s overall business strategy, the carrying amount of the net assets of the Company being more than its market capitalization or significant negative industry or economic trends. In some cases, these events are clear. However, in many cases, a clearly identifiable event indicating possible impairment does not occur. Instead, a series of individually insignificant events occur over a period of time leading to an indication that an asset may be impaired. Events can occur in these situations that may not be known until a date subsequent to their occurrence. When there is an indicator of impairment, the recoverable amount of the asset is estimated to determine the amount of impairment, if any. If indicators conclude that the asset is no longer impaired, the Company will reverse impairment losses on assets only to the extent that the asset’s carrying amount does not exceed the carrying amount that would have been determined, net of depreciation or amortization, if no impairment loss had been recognized. Similar to determining if an impairment exists, judgment is required in assessing if a reversal of an impairment loss is required. |
| F-8 |
SEKUR PRIVATE DATA LTD.
(FORMERLY GLOBEX DATA LTD.)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2021 and 2020
(Expressed in Canadian Dollars)
| 2. | SIGNIFICANT ACCOUNTING POLICIES (cont’d…) |
Basis of Consolidation
These consolidated financial statements incorporate the financial statements of the Company and its controlled subsidiary. Control is defined as the exposure, or rights, to variable returns from involvement with an investee and the ability to affect those returns through power over the investee. Power over an investee exists when an investor has existing rights that give it the ability to direct the activities that significantly affect the investee’s returns. This control is generally evidenced through owning more than 50% of the voting rights or currently exercisable potential voting rights of a Company’s share capital. All significant intercompany transactions and balances have been eliminated.
These consolidated financial statements include the financial statements of the Company and its wholly-owned subsidiary listed in the following table:
| Name of Subsidiary | Country of Incorporation | Ownership Interest | Principal Activity | |||
| GlobeX Data, Inc. | USA | 100% | Secure Data Management and Communications |
Cash and cash equivalents
Cash includes cash on hand and demand deposits. Cash equivalents comprise short-term, highly liquid investments that are readily convertible to known amounts of cash which are subject to insignificant risk of change and have maturities of three months or less from the date of acquisition, held for the purpose of meeting short-term cash commitments rather than for investing or other purposes.
Foreign currencies
The functional currency of an entity is the currency of the primary economic environment in which the entity operates. The functional currency of the Company and its subsidiary is the Canadian dollar. The functional currency determinations were conducted through an analysis of the consideration factors identified in IAS 21, The Effects of Changes in Foreign Exchange Rates. These consolidated financial statements are presented in Canadian dollars.
Transactions in currencies other than the functional currency are recorded at the rates of exchange prevailing on the dates of the transactions. At each financial position reporting date, monetary assets and liabilities that are denominated in foreign currencies are translated at the rates prevailing at the date of the statement of financial position. Non-monetary items that are measured in terms of historical cost in a foreign currency are not re-translated. Revenues and expenses are translated at the average rates in effect during applicable accounting periods, except amortization which is translated at historical rates.
Translation of the subsidiary’s assets and liabilities is performed using the rate prevailing at the statement of financial position date. Income and expenses are translated at average exchange rates. Exchange differences arising on translation of monetary items or on settlement of monetary items are recorded in profit or loss in the statement of comprehensive loss.
| F-9 |
SEKUR PRIVATE DATA LTD.
(FORMERLY GLOBEX DATA LTD.)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2021 and 2020
(Expressed in Canadian Dollars)
| 2. | SIGNIFICANT ACCOUNTING POLICIES (cont’d…) |
Revenues from contracts with customers
The Company earns revenue from providing Swiss-hosted Cybersecurity and Internet Privacy solutions for secure communications and secure data management worldwide. Revenue is recognized at the point in time when the customer obtains control of the service. Control is achieved when the service is performed for the customer, the Company has a present right to payment for the service, significant risks and rewards of ownership have transferred to the customer according to contract terms and there is no unfulfilled obligation that could affect the customer’s acceptance of the service. For contract services that last over a year, revenue is recognized over the duration of the contract.
Contact balances
Contract assets are recognized when services are transferred to customers before consideration is received or before the Company has an unconditional right to payment for performance completed to date. Contract assets are subsequently transferred to receivables when the right of payment becomes unconditional. Contract liabilities are recognized when amounts are received from customers in advance of transfer of services. Contract liabilities are subsequently recognized in revenue as or when the Company performs under contracts.
Equipment
Equipment is recorded at cost less accumulated depreciation and impairment losses. Cost includes the purchase price and the directly attributable costs to bring the assets to the location and condition necessary for them to be capable of operating in the manner intended by management.
Depreciation of equipment is calculated on a straight-line basis over the assets’ estimated useful lives. Where components of an asset have different useful lives, depreciation is calculated on each component separately. Depreciation commences when an asset is ready for its intended use. Estimate of remaining useful lives and residual values are reviewed annually. Changes in estimates are accounted for prospectively.
The expected useful lives of assets depreciated on a straight-line basis are as follows:
| ● | Solid-state Drives | 4 years |
| ● | Servers | 4 years |
Intangible assets
Intangible assets consist of GDI’s Reseller Agreement (see Note 4).
Intangible assets acquired separately are initially recorded at cost. Intangible assets are measured at cost less accumulated amortization and accumulated impairment losses, if any. The accounting for an intangible asset is based on its useful life. Intangible assets with a finite useful life are amortized over their estimated useful life. Intangible assets with an indefinite useful life are not amortized. The amortization method, estimated useful life, carrying value and residual value are reviewed at the end of each reporting period or more frequently, if required, and are adjusted as appropriate. The effect of any changes in estimates are accounted for on a prospective basis.
Intangible assets acquired in a business combination and recognized separately from goodwill are initially recognized at their fair value at the acquisition date (which is regarded as their cost). Subsequent to initial recognition, intangible assets acquired in a business combination are reported at cost less accumulated amortization and accumulated impairment losses, on the same basis as intangible assets that are acquired separately.
The Reseller Agreement was assessed as having an indefinite useful life by management because of its perpetual term.
| F-10 |
SEKUR PRIVATE DATA LTD.
(FORMERLY GLOBEX DATA LTD.)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2021 and 2020
(Expressed in Canadian Dollars)
| 2. | SIGNIFICANT ACCOUNTING POLICIES (cont’d…) |
Share-based payments
The Company grants stock options to acquire common shares of the Company to directors, officers, and consultants.
The fair value of stock options is measured on the date of grant, using the Black-Scholes option pricing model, and is recognized over the vesting period. Consideration paid for the shares on the exercise of stock options is credited to share capital.
In situations where equity instruments are issued to non-employees and some or all of the goods or services received by the entity as consideration cannot be specifically identified, they are measured at the fair value of the share-based payment. Otherwise, share-based payments are measured at the fair value of goods or services received.
Share capital
Common shares are classified as equity. Proceeds from unit placements are allocated between shares and warrants issued using the residual method. Costs directly identifiable with share capital financing are charged against share capital. Share issuance costs incurred in advance of share subscriptions are recorded as deferred financing costs.
Share issuance costs related to uncompleted share subscriptions are charged to operations in the period they are incurred.
Financial instruments
The Company classifies and measures its financial instruments in accordance with IFRS 9 Financial Instruments as set out below:
| Financial Instrument | Classification | |
| Cash and cash equivalents | Fair value through profit or loss | |
| Receivables (excluding GST) | Amortized cost | |
| Accounts payable and accrued liabilities | Amortized cost | |
| Due to related parties | Amortized cost | |
| Licensee fees payable | Amortized cost |
Financial assets
The Company classifies its financial assets into the following categories, depending on the purpose for which the asset was acquired. Management determines the classification of its financial assets at initial recognition.
Amortized cost - Amortized cost assets are those assets which are held within a business model whose objective is to hold financial assets to collect contractual cash flows and the terms of the financial assets must provide on specified dates cash flows solely through the collection of principal and interest.
Fair value through other comprehensive income (“FVOCI”) - FVOCI assets are those assets which are held within a business model whose objective is achieved by both collecting contractual cash flows and selling financial assets and the contractual terms of the financial assets give rise on specified dates to cash flows solely through the collection of principal and interest.
Fair value through profit or loss (“FVTPL”) - A financial asset shall be measured at fair value through profit or loss unless it is measured at amortized cost or FVOCI. The Company may however make the irrevocable option to classify particular investments as FVTPL.
| F-11 |
SEKUR PRIVATE DATA LTD.
(FORMERLY GLOBEX DATA LTD.)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2021 and 2020
(Expressed in Canadian Dollars)
| 2. | SIGNIFICANT ACCOUNTING POLICIES (cont’d…) |
Financial instruments (cont’d…)
Impairment of financial assets at amortized cost: The Company recognizes a loss allowance for expected credit losses on financial assets that are measured at amortized cost.
Financial liabilities
Management determines the classification of its financial liabilities at initial recognition.
Amortized cost - The Company classifies all financial liabilities as subsequently measured at amortized cost using the effective interest method, except for financial liabilities carried at FVTPL and certain other exceptions.
Financial liabilities are classified as current liabilities if payment is due within one year or less. If not, they are presented as non-current liabilities.
All financial instruments are initially recognized at fair value on the consolidated statement of financial position. Subsequent measurement of financial instruments is based on their classification. Financial assets and liabilities classified at FVTPL are measured at fair value with changes in those fair values recognized in the consolidated statement of comprehensive loss for the year.
Income taxes
Income tax expense comprises current and deferred tax. Income tax expense is recognized in profit or loss except to the extent that it relates to items recognized directly in equity, in which case it is recognized in equity.
Current tax is the expected tax payable on the taxable income for the year, using tax rates enacted or substantively enacted at the reporting date, and any adjustment to tax payable in respect of previous years.
Deferred tax is recognized by providing for temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and the amounts used for taxation purposes. Deferred tax is not recognized on the initial recognition of assets or liabilities in a transaction that is not a business combination. In addition, deferred tax is not recognized for taxable temporary differences arising on the initial recognition of goodwill. Deferred tax is measured at the tax rates that are expected to be applied to temporary differences when they reverse, based on the laws that have been enacted or substantively enacted by the reporting date. Deferred tax assets and liabilities are offset if there is a legally enforceable right to offset, and they relate to income taxes levied by the same tax authority on the same taxable entity, or on different taxable entities, but they intend to settle current tax liabilities and assets on a net basis or their tax assets and liabilities will be realized simultaneously.
A deferred tax asset is recognized to the extent that it is probable that future taxable profits will be available against which the temporary difference can be utilized. Deferred tax assets are reviewed at each reporting date and are reduced to the extent that it is no longer probable that the related tax benefit will be realized.
New accounting standards adopted in the year
The Company did not adopt any new accounting standards during the year.
| F-12 |
SEKUR PRIVATE DATA LTD.
(FORMERLY GLOBEX DATA LTD.)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2021 and 2020
(Expressed in Canadian Dollars)
| 2. | SIGNIFICANT ACCOUNTING POLICIES (cont’d…) |
New accounting standards, interpretations and amendments not yet adopted
Amendments to IAS 1 – Presentation of Financial Statements: Classifying Liabilities as Non-current
In January 2020, the IASB issued an amendment to IAS 1 Presentation of Financial Statements (IAS 1). The amendment clarifies the criterion for classifying a liability as non-current relating to the right to defer settlement of a liability for at least 12 months after the reporting period. An entity is required to apply this amendment for annual reporting periods beginning on or after January 1, 2023.
Amendments to IAS 16 – Property, Plant and Equipment: Proceeds before Intended Use
In May 2020, the IASB issued amendments to IAS 16, Property, Plant and Equipment (IAS 16). The amendments prohibit a company from deducting from the cost of property, plant and equipment amounts received from selling items produced while the company is preparing the asset for its intended use. Instead, a company will recognize such sales proceeds and related costs in profit (loss). An entity is required to apply these amendments for annual reporting periods beginning on or after January 1, 2022. The amendments are applied retrospectively only to items of property, plant and equipment that are available for use after the beginning of the earliest period presented in the financial statements in which the entity first applies the amendments.
Amendments to IAS 12 – Income Taxes
In May 2021, the IASB issued amendments to IAS 16, Income Taxes (IAS 12). The amendments will require companies to recognize deferred tax on particular transactions that, on initial recognition, give rise to equal amounts of taxable and deductible temporary differences. The proposed amendments will typically apply to transactions such as leases for the lessee and decommissioning and restoration obligations related to assets in operation. An entity is required to apply these amendments for annual reporting periods beginning on or after January 1, 2023. Early application is permitted. The amendments are applied to transactions that occur on or after the beginning of the earliest comparative period presented.
| 3. | EQUIPMENT |
Solid-state Drives | Servers | Total | ||||||||||
| Cost: | ||||||||||||
| As at December 31, 2020 and 2019 | $ | - | $ | - | $ | - | ||||||
| Additions during the year | 99,172 | 573,926 | 673,098 | |||||||||
| As at December 31, 2021 | 99,172 | 573,926 | 673,098 | |||||||||
| Accumulated depreciation: | ||||||||||||
| As at December 31, 2020 and 2019 | - | - | - | |||||||||
| Depreciation for the year | 6,198 | - | 6,198 | |||||||||
| As at December 31, 2021 | 6,198 | - | 6,198 | |||||||||
| Net book value: | ||||||||||||
| At December 31, 2020 | $ | - | $ | - | $ | - | ||||||
| At December 31, 2021 | $ | 92,974 | $ | 573,926 | $ | 666,900 | ||||||
| F-13 |
SEKUR PRIVATE DATA LTD.
(FORMERLY GLOBEX DATA LTD.)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2021 and 2020
(Expressed in Canadian Dollars)
| 3. | EQUIPMENT (cont’d…) |
The servers were put in use on April 1, 2022. Accordingly, no depreciation was recorded during the year ended December 31, 2021.
| 4. | INTANGIBLE ASSET |
On March 30, 2018, the Company acquired all of the issued and outstanding shares of GlobeX Data Inc. (“GDI”). As consideration for the acquisition, the Company issued 25 million common shares to GDI, with the license agreement held by GDI being assigned a fair value of $2,552,573.
On April 3, 2017, GDI (as licensee) entered into the GlobeX Data SA Secure Cloud Services Licensee License Agreement and Program (the “Reseller Agreement”) with GDSA (see Note 1), whereby GDSA granted to GDI an exclusive, non-transferrable license to resell the Plan Offerings (as defined) to prospects in the United States and Canada for a perpetual term unless terminated by GDSA. Pursuant to the Reseller Agreement, GDI markets the Plan Offerings to prospects or customers (the “End User”) and the End User subscribes to the Plan Offerings by entering into an end user license agreement (the “EULA”) with GDSA by signing a contract with the GDI. Acceptance of a prospect or customer as an End User is at the sole discretion of GDSA, with GDSA having the right to terminate an EULA. GDI has the absolute right to accept any End User and, if it does, it also assumes the liability of acceptance of the End User. GDSA charges the End User a service fee for the Plan Offerings, with payment received by GDSA being remitted to GDI. GDI also has the option of collecting funds directly from the End User. Gross service fee revenue is split between GDSA (10%, being the licensee fee) and GDI (90%). The Reseller Agreement can be terminated by GDSA at any time if GDI fails to cure a breach of any part of the Reseller Agreement within 30 days of receiving written notice of the breach.
During the year ended December 31, 2021, the Company accrued licensee fees of $14,431 (2020 - $2,675) in respect of the Reseller Agreement.
As at December 31, 2021, $52,734 (2020 - $38,248) was payable to GDSA pursuant to the Reseller Agreement.
| F-14 |
SEKUR PRIVATE DATA LTD.
(FORMERLY GLOBEX DATA LTD.)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2021 and 2020
(Expressed in Canadian Dollars)
| 5. | SHARE CAPITAL |
The Company has authorized an unlimited number of common shares and preferred shares. No preferred shares have been issued.
During the year ended December 31, 2021, the Company:
| a) | Closed a private placement consisting of 9,150,000 units at a price of $0.12 per unit for proceeds of $1,098,000 (of which $22,780 was received during the year ended December 31, 2020). Each unit consists of one common share and one share purchase warrant. Each warrant entitles the holder to purchase an additional share at a price of $0.15 per share for two years. The Company issued 417,000 finder’s units under the same terms at a fair value of $50,040. Cash finder’s fees were paid of $17,600 and finder’s warrants of 640,000 were issued at a fair value of $82,343 under the same terms.
| |
| b) | Closed a private placement consisting of 4,076,400 units at a price of $0.30 per unit for proceeds of $1,222,920. Each unit consists of one common share and one-half of a share purchase warrant. Each full warrant entitles the holder to purchase an additional share at a price of $0.50 per share for two years. Cash finder’s fees were paid of $60,000. | |
| c) | Closed a private placement consisting of 7,256,927 units at a price of $0.30 per unit for proceeds of $2,177,078. Each unit consists of one common share and one-half of a share purchase warrant. Each full warrant entitles the holder to purchase an additional share at a price of $0.50 per share for two years. Cash finder’s fees were paid of $122,000. |
| F-15 |
SEKUR PRIVATE DATA LTD.
(FORMERLY GLOBEX DATA LTD.)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2021 and 2020
(Expressed in Canadian Dollars)
| 5. | SHARE CAPITAL (cont’d…) |
| d) | Closed a private placement consisting of 19,261,470 units at a price of $0.33 per unit for proceeds of $6,356,285. Each unit consists of one common share and one-half of a share purchase warrant. Each full warrant entitles the holder to purchase an additional share at a price of $0.60 per share for two years. Cash finder’s fees were paid of $328,314. | |
| e) | Closed a private placement consisting of 5,355,510 units at a price of $0.40 per unit for proceeds of $2,142,204. Each unit consists of one common share and one-half of a share purchase warrant. Each full warrant entitles the holder to purchase an additional share at a price of $0.80 per share for two years. Cash finder’s fees were paid of $20,000. | |
| f) | Received proceeds of $1,128,631 from the exercise of 7,113,168 warrants and $330,400 from the exercise of 2,720,000 stock options. | |
| g) | Issued 50,000 common shares to settle $18,000 payable to a company for investor relations services. | |
| h) | Issued 1,300,000 common shares at a fair value of $572,000 for marketing services (see Note 9). |
During the year ended December 31, 2020, the Company:
| a) | Closed a private placement consisting of 1,225,196 units at a price of $0.15 per unit for proceeds of $183,779 (of which $157,000 was received during the year ended December 31, 2019). Each unit consists of one common share and one share purchase warrant. Each warrant entitles the holder to purchase an additional share at a price of $0.20 per share for two years. | |
| b) | Closed a private placement consisting of 851,053 units at a price of $0.12 per unit for proceeds of $102,126. Each unit consists of one common share and one share purchase warrant. Each warrant entitles the holder to purchase an additional share at a price of $0.13 per share for one year. | |
| c) | Closed a private placement consisting of 2,504,182 units at a price of $0.12 per unit for proceeds of $300,502. Each unit consists of one common share and one share purchase warrant. Each warrant entitles the holder to purchase an additional share at a price of $0.15 per share for two years. | |
| d) | Received $22,780 of share subscriptions towards a future share issuance. |
Escrow Shares
Following the closing of the IPO, the Company had an aggregate of 31,960,001 common shares held in escrow pursuant to the escrow agreement dated May 8, 2019. The shares are subject to a 10% release on the Listing Date (July 22, 2019), with the remaining escrowed securities being released in 15% tranches every 6 months thereafter. As at December 31, 2021, there were 9,588,001 shares remaining in escrow.
| F-16 |
SEKUR PRIVATE DATA LTD.
(FORMERLY GLOBEX DATA LTD.)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2021 and 2020
(Expressed in Canadian Dollars)
| 5. | SHARE CAPITAL (cont’d…) |
Stock Options
The Company adopted a stock option plan on April 30, 2018. The stock option plan provides that, subject to the requirements of the CSE, the aggregate number of securities reserved for issuance will be 15% of the number of the Company’s common shares issued and outstanding at the time such options are granted. The exercise price of option grants will be determined by the Board of Directors, but will not be less than the closing market price of the common shares on the CSE less allowable discounts at the time of grant. All options granted under the stock option plan will expire not later than the date that is ten years from the date that such options are granted.
| Number of Options | Weighted Average Exercise Price ($) | |||||||
| Outstanding at December 31, 2019 | 3,410,000 | 0.22 | ||||||
| Granted | 5,160,000 | 0.12 | ||||||
| Expired/cancelled | (3,310,000 | ) | 0.22 | |||||
| Outstanding, December 31, 2020 | 5,260,000 | 0.13 | ||||||
| Granted | 20,320,000 | 0.52 | ||||||
| Exercised | (2,720,000 | ) | 0.12 | |||||
| Expired/cancelled | (6,320,000 | ) | 0.50 | |||||
| Outstanding and exercisable, December 31, 2021 | 16,540,000 | 0.47 | ||||||
The weighted-average remaining contractual life of options at December 31, 2021 was 7.43 years (2020 – 3.92 years).
Additional information regarding stock options outstanding as at December 31, 2021 is as follows:
| Exercise price ($) | Number of options | Expiry Date | |||||
| 0.14 | 1,400,000 | June 12, 2023 | |||||
| 0.12 | 1,140,000 | December 17, 2025 | |||||
| 0.25 | 3,500,000 | January 20, 2026 | |||||
| 0.50 | 6,320,000 | July 27, 2031 | |||||
| 0.80 | 4,180,000 | December 20, 2031 | |||||
| 16,540,000 | |||||||
| F-17 |
SEKUR PRIVATE DATA LTD.
(FORMERLY GLOBEX DATA LTD.)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2021 and 2020
(Expressed in Canadian Dollars)
| 5. | SHARE CAPITAL (cont’d…) |
During the year ended December 31, 2021, the Company granted 14,000,000 (2020 - 5,160,000) stock options with a fair market value of $4,555,966 (2020 - $461,803) or $0.33 (2020 - $0.09) per option which was charged to operations. In April 2021 and June 2021, the Company granted 4,820,000 stock options and 1,500,000 stock options to directors, officers and consultants at an exercise price of $0.50 per share for a period of five years. These options were voluntarily returned to the Company in June 2021. The following assumptions were used for the Black-Scholes valuation of the stock options assuming no expected dividends or forfeitures:
Year ended December 31, 2021 | Year
ended | |||||||
| Risk-free interest rate | 0.43% - 1.38 | % | 0.27% - 0.46 | % | ||||
| Expected life (in years) | 5 - 10 | 0.5 - 5 | ||||||
| Expected volatility | 125% - 135 | % | 81% - 130 | % |
Warrants
| Number of Warrants | Weighted Average Exercise Price ($) | |||||||
| Outstanding, December 31, 2019 | 6,147,360 | 0.71 | ||||||
| Issued | 4,580,431 | 0.16 | ||||||
| Outstanding, December 31, 2020 | 10,727,791 | 0.48 | ||||||
| Issued | 28,182,154 | 0.44 | ||||||
| Exercised | (7,113,168 | ) | 0.16 | |||||
| Outstanding, December 31, 2021 | 31,796,777 | 0.51 | ||||||
The weighted-average remaining contractual life of warrants at December 31, 2021 was 1.26 years (2020 – 1.47 years).
Additional information regarding warrants outstanding as at December 31, 2021 is as follows:
| Exercise price ($) | Number of warrants | Expiry Date | |||||
| 0.20 | 256,863 | January 17, 2022(a) | |||||
| 0.75 | 5,690,000 | July 22, 2022 | |||||
| 0.25 | 164,760 | July 22, 2022(b) | |||||
| 0.15 | 7,710,000 | January 15, 2023(c) | |||||
| 0.50 | 2,038,200 | March 31, 2023 | |||||
| 0.50 | 3,628,464 | May 14, 2023 | |||||
| 0.60 | 9,630,735 | September 3, 2023 | |||||
| 0.80 | 2,677,755 | November 17, 2023 | |||||
| 31,796,777 | |||||||
| (a) | Subsequent to December 31, 2021, 249,000 warrants were exercised for proceeds of $49,800 and 7,863 warrants expired unexercised. | |
| (b) | Subsequent to December 31, 2021, 35,000 warrants were exercised for proceeds of $8,750. | |
| (c) | Subsequent to December 31, 2021, 568,668 warrants were exercised for proceeds of $85,300. |
| F-18 |
SEKUR PRIVATE DATA LTD.
(FORMERLY GLOBEX DATA LTD.)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2021 and 2020
(Expressed in Canadian Dollars)
| 5. | SHARE CAPITAL (cont’d…) |
During the year ended December 31, 2021, the Company granted 640,000 (2020 - nil) agent’s warrants with a fair market value of $82,343 (2020 - $nil) or $0.13 (2020 - $nil) per warrant which was charged to share issue costs. The following assumptions were used for the Black-Scholes valuation of the warrants assuming no expected dividends or forfeitures:
Year ended December 31, 2021 | Year ended December 31, 2020 | |||||||
| Risk-free interest rate | 0.15 | % | - | |||||
| Expected life (in years) | 2 | - | ||||||
| Expected volatility | 135 | % | - | |||||
| 6. | RELATED PARTY TRANSACTIONS |
Related party transactions were in the normal course of operations and measured at the exchange amount, which is the amount established and agreed to by the related parties. Key management personnel are the persons responsible for planning, directing and controlling the activities of the Company, and include both executive and non-executive directors, and entities controlled by such persons. The Company considers all directors and officers of the Company to be key management personnel.
During the year ended December 31, 2021, the Company incurred $54,395 (2020 - $39,234) in accounting fees and corporate services to an accounting firm in which an officer of the Company is a partner. As at December 31, 2021, there was $nil (2020 - $784) owing to this firm. This balance is unsecured, non-interest bearing and has no fixed terms of repayment.
As at December 31, 2021, there was $97 (2020 - $1,975) owing to an officer and director of the Company for expense reimbursements. This balance is unsecured, non-interest bearing and has no fixed terms of repayment.
During the year ended December 31, 2021, the Company granted 13,950,000 (2020 – 4,570,000) stock options with a fair value of $4,536,550 (2020 - $405,418) to directors and officers of the Company. In April 2021 and June 2021, the Company granted 4,800,000 stock options and 1,500,000 stock options to directors and officers at an exercise price of $0.50 per share for a period of five years. These options were voluntarily returned to the Company in June 2021.
During the year ended December 31, 2021, the Company paid software maintenance fees of $326,295 (2020 - $20,000) and licensee fees of $14,431 (2020 - $2,675) to GDSA (see Notes 1 and 4). As at December 31, 2021, $85,000 in software maintenance fees was included in prepaid expenses.
| 7. | FINANCIAL INSTRUMENTS AND RISK MANAGEMENT |
Financial instruments measured at fair value are classified into one of three levels in the fair value hierarchy according to the relative reliability of the inputs used to estimate the fair values. The three levels of the fair value hierarchy are:
| ● | Level 1 – Unadjusted quoted prices in active markets for identical assets or liabilities; | |
| ● | Level 2 – Inputs other than quoted prices that are observable for the asset or liability either directly or indirectly; and | |
| ● | Level 3 – Inputs that are not based on observable market data. |
| F-19 |
SEKUR PRIVATE DATA LTD.
(FORMERLY GLOBEX DATA LTD.)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2021 and 2020
(Expressed in Canadian Dollars)
| 7. | FINANCIAL INSTRUMENTS AND RISK MANAGEMENT (cont’d…) |
The fair value of the Company’s receivables (excluding GST), accounts payable and accrued liabilities, due to related parties and licensee fees payable approximate their carrying value. The Company’s other financial instrument, being cash and cash equivalents, is measured at fair value using Level 1 inputs.
The Company is exposed in varying degrees to a variety of financial instrument related risks. The Board of Directors approves and monitors the risk management processes, inclusive of documented investment policies, counterparty limits, and controlling and reporting structures. The type of risk exposure and the way in which such exposure is managed is provided as follows:
a) Credit risk
Credit risk is the risk that one party to a financial instrument will fail to discharge an obligation and cause the other party to incur a financial loss. The Company’s primary exposure to credit risk is on its cash and cash equivalents held in bank and investment accounts. The Company has deposited the cash with its bank from which management believes the risk of loss is remote.
b) Liquidity risk
Liquidity risk is the risk that the Company will not be able to meet its financial obligations as they become due. The Company’s approach to managing liquidity is to ensure that it will have sufficient liquidity to meet liabilities when due. Accounts payable and accrued liabilities are due within the current operating year. The Company has a sufficient cash balance to settle current liabilities.
c) Market risk
Market risk is the risk that changes in market prices, such as foreign exchange rates, interest rates and equity prices will affect the Company’s income or the value of its holdings of financial instruments. The objective of market risk management is to manage and control market risk exposures within acceptable parameters, while optimizing the return.
d) Currency risk
A portion of the Company’s financial assets and liabilities are denominated in US dollars. The Company monitors this exposure, but has no hedge positions.
The Company is exposed to currency risk on fluctuations related to cash (US$340,688), accounts payable and accrued liabilities (US$18,098) and licensee fees payable (US$41,532) that are denominated in US dollars. At December 31, 2021, a 10% change in the value to the US dollar as compared to the Canadian dollar would not have a significant effect on net loss.
e) Interest rate risk
Interest rate risk is the risk that the fair value of future cash flows of a financial instrument will fluctuate because of changes in market interest rates. The Company is exposed to interest rate risk, from time to time, on its cash balances. Surplus cash, if any, is placed on call with financial institutions and management actively negotiates favorable market related interest rates.
| F-20 |
SEKUR PRIVATE DATA LTD.
(FORMERLY GLOBEX DATA LTD.)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2021 and 2020
(Expressed in Canadian Dollars)
| 8. | CAPITAL DISCLOSURE AND MANAGEMENT |
The Company defines its capital as all components of shareholders’ equity. The Company’s objectives when managing capital are to safeguard its ability to continue as a going concern.
In order to maintain its capital structure, the Company is dependent on equity funding and when necessary, raises capital through the issuance of equity instruments, primarily comprised of common shares. The Company manages its capital structure and makes adjustments to it in light of economic conditions. The Company, upon approval from its Board of Directors, will make changes to its capital structure as deemed appropriate under the specific circumstances.
The Company is not subject to any externally imposed capital requirements or debt covenants, and does not presently utilize any quantitative measures to monitor its capital. There were no changes to the Company’s approach to managing capital during the year.
| 9. | CONTRACTUAL OBLIGATIONS |
During the year ended December 31, 2021, the Company entered into three production and broadcasting agreements with a media services company (“AMI”) in the United States to assist the Company in furthering its media awareness through television, production, media analysis and procurement as follows:
| a) | May 10, 2021 – 14-month campaign: development of a biography format television show, production of 14 specialized NASDAQ interviews, tech reports and emerging growth articles, broadcast of the interviews via five media outlets, production and broadcast a minimum of 30 commercials per month and social media support. As compensation for performing these services, AMI will receive US$15,000 per month and 500,000 common shares of the Company; | |
| b) | June 1, 2021 – 14-month campaign: broadcast a minimum of two security segments per month via two media outlets. As compensation for performing these services, AMI will receive US$5,000 per month and 500,000 common shares of the Company. The Company has the right to produce two additional segments, at $2,500 per segment, for a maximum of four segments per month; and | |
| c) | October 25, 2021 – 18-month marketing campaign: as for the May 10, 2021 agreement. As compensation for performing these services, AMI will receive US$30,000 per month and 300,000 common shares of the Company. |
On December 23, 2021, an aggregate of 1,300,000 common shares of the Company were issued to AMI at a value of $572,000 based on the Company’s share price of $0.44 on that date (see Note 5). During the year ended December 31, 2021, $268,714, of this amount is included in marketing expense and $303,286 is included in prepaid expenses.
| F-21 |
SEKUR PRIVATE DATA LTD.
(FORMERLY GLOBEX DATA LTD.)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2021 and 2020
(Expressed in Canadian Dollars)
| 10. | INCOME TAXES |
A reconciliation of income taxes at the statutory rate of 27% (2020 – 27%) with the reported taxes is as follows:
| Year ended December 31, | ||||||||
| 2021 | 2020 | |||||||
| Expected income tax recovery | $ | (2,597,000 | ) | $ | (356,000 | ) | ||
| Non-deductible permanent differences | 1,457,000 | 236,000 | ||||||
| Share issuance costs | (184,000 | ) | (2,000 | ) | ||||
| True up of prior years’ tax provisions | - | 412,000 | ||||||
| Change in deferred tax assets not recognized | 1,324,000 | (290,000 | ) | |||||
| Deferred income tax recovery | $ | - | $ | - | ||||
| As at December 31, | ||||||||
| 2021 | 2020 | |||||||
| Equipment | $ | 727,000 | $ | - | ||||
| Non-capital losses | 1,632,000 | 440,000 | ||||||
| Share issue costs | 180,000 | 50,000 | ||||||
| Unrecognized deferred tax assets | (2,539,000 | ) | (490,000 | ) | ||||
| $ | - | $ | - | |||||
The Company has available for deduction against future taxable income non-capital losses of approximately $6,045,000. These losses, if not utilized, will begin to expire in 2037.
| 11. | REVENUE |
Sekur Private Data Ltd. serves consumers, businesses and governments worldwide and distributes a suite of encrypted e-mails, secure messaging and secure communication, and a suite of cloud-based storage, disaster recovery and document management tools (the “Solutions”) developed by GDSA. All data and data traffic is hosted and transmitted in secure servers located in Switzerland that are held and managed by GDSA. The Company sells its Solutions through its websites sekur.com and sekursuite.com, and through its approved distributors and telecommunications companies. The Company offers several ways to partner with distributors:
| ● | Bulk purchase of services with white label potential or co-branding for resale, gifting or reselling by partners to their end users; | |
| ● | Free trial offer followed by profit sharing with channel partner upon conversion to paid services; and | |
| ● | Revenue-share model for the business to business (“B2B”) sector with telecom operators. |
Solutions are sold to the following customer groups:
| ● | Business to Consumer (“B2C”) through regional and country-specific websites set up for the Products; | |
| ● | B2C bulk, by reselling through large distributors that then sell directly to customers; | |
| ● | B2B individually and B2B bulk customers, by selling through cloud service brokers and B2B marketplaces; and | |
| ● | Sekur, marketing directly to high net worth individuals and/or c-level executives or through distributors. |
| F-22 |
SEKUR PRIVATE DATA LTD.
(FORMERLY GLOBEX DATA LTD.)
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
For the years ended December 31, 2021 and 2020
(Expressed in Canadian Dollars)
| 11. | REVENUE (cont’d…) |
(a) Total Revenues by Major Product Type
The following table shows the Company’s revenue disaggregated by major solution type:
| Year ended December 31, | ||||||||
| 2021 | 2020 | |||||||
| B2B individually/bulk | $ | 6,496 | $ | 5,657 | ||||
| Sekur | 138,385 | 21,099 | ||||||
| $ | 144,881 | $ | 26,756 | |||||
(b) Total Revenues by geographical location
The following table shows the Company’s revenue disaggregated by geographical location:
| Year ended December 31, | ||||||||
| 2021 | 2020 | |||||||
| Mexico | $ | 585 | $ | - | ||||
| United States | 144,296 | 26,756 | ||||||
| $ | 144,881 | $ | 26,756 | |||||
| 12. | SUBSEQUENT EVENTS |
Subsequent to the year ended December 31, 2021, the Company:
| a) | Closed a private placement consisting of 2,321,585 units at a price of $0.35 per unit for proceeds of $812,555. Each unit consists of one common share and one share purchase warrant. Each warrant entitles the holder to purchase an additional share at a price of $0.70 per share for two years. | |
| b) | Issued 150,000 common shares at a fair value of $56,250 for marketing services. | |
| c) | Changed its name to Sekur Private Data Ltd. | |
| d) | Issued 852,668 common shares for proceeds of $143,850 from the exercise of warrants (see Note 5). |
| F-23 |
(FORMERLY GLOBEX DATA LTD.)
CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
FOR THE SIX MONTHS ENDED JUNE 30, 2022 AND 2021
(Expressed in Canadian Dollars)
(Unaudited – Prepared by Management)
| F-24 |
NOTICE OF NO AUDITOR REVIEW OF INTERIM FINANCIAL STATEMENTS
Under National Instrument 51-102, Part 4, subsection 4.3(3)(a), if an auditor has not performed a review of the interim financial statements, they must be accompanied by a notice indicating that the financial statements have not been reviewed by an auditor.
The accompanying unaudited interim financial statements of the Company have been prepared by and are the responsibility of the Company’s management.
The Company’s independent auditor has not performed a review of these financial statements in accordance with standards established by the Chartered Professional Accountants of Canada for a review of interim financial statements by an entity’s auditor.
| F-25 |
(FORMERLY GLOBEX DATA LTD.)
CONDENSED CONSOLIDATED INTERIM STATEMENTS OF FINANCIAL POSITION
(Unaudited)
(Expressed in Canadian Dollars)
As at
| June 30, 2022 | December 31, 2021 | |||||||
| ASSETS | ||||||||
| Current | ||||||||
| Cash and cash equivalents | $ | 6,386,716 | $ | 8,812,477 | ||||
| Receivables | 26,792 | 48,555 | ||||||
| Prepaid expenses (Notes 6 and 9) | 275,490 | 775,294 | ||||||
| 6,688,998 | 9,636,326 | |||||||
| Non-current | ||||||||
| Equipment (Note 3) | 618,634 | 666,900 | ||||||
| Intangible asset (Note 4) | 2,552,573 | 2,552,573 | ||||||
| Total Assets | $ | 9,860,205 | $ | 12,855,799 | ||||
| LIABILITIES AND SHAREHOLDERS’ EQUITY | ||||||||
| Current liabilities | ||||||||
| Accounts payable and accrued liabilities | $ | 78,238 | $ | 77,633 | ||||
| Due to related parties (Note 6) | 352 | 97 | ||||||
| Licensee fees payable (Notes 1, 4 and 6) | 10,231 | 52,734 | ||||||
| 88,821 | 130,464 | |||||||
| Shareholders’ equity | ||||||||
| Share capital (Note 5) | 21,931,542 | 20,982,323 | ||||||
| Shares subscribed (Note 5) | 39,750 | - | ||||||
| Reserves (Note 5) | 5,221,699 | 5,228,563 | ||||||
| Deficit | (17,421,607 | ) | (13,485,551 | ) | ||||
| 9,771,384 | 12,725,335 | |||||||
| Total Liabilities and Shareholders’ Equity | $ | 9,860,205 | $ | 12,855,799 | ||||
Nature of operations and going concern (Note 1)
Subsequent events (Note 11)
| Approved on behalf of the Board of Directors: | ||
| “Alain Ghiai” | “Henry Sjöman” | |
| Director | Director |
The accompanying notes are an integral part of these condensed consolidated interim financial statements.
| F-26 |
(FORMERLY GLOBEX DATA LTD.)
CONDENSED CONSOLIDATED INTERIM STATEMENTS OF COMPREHENSIVE LOSS
(Unaudited)
(Expressed in Canadian Dollars)
Three months ended June 30, 2022 | Three months ended June 30, 2021 | Six months ended June 30, 2022 | Six months ended June 30, 2021 | |||||||||||||
| REVENUE (Note 10) | $ | 113,365 | $ | 10,119 | $ | 201,400 | $ | 18,841 | ||||||||
| EXPENSES | ||||||||||||||||
| Accounting and audit (Note 6) | 35,760 | 18,690 | 47,980 | 28,375 | ||||||||||||
| Consulting fees | 25,364 | 12,935 | 26,660 | 113,080 | ||||||||||||
| Credit card processing fees | 11,518 | - | 11,518 | - | ||||||||||||
| Depreciation (Note 3) | 42,069 | - | 48,266 | - | ||||||||||||
| Legal | 20,139 | 2,329 | 20,952 | 7,046 | ||||||||||||
| Licensee fees (Notes 1, 4 and 6) | 10,123 | 998 | 18,908 | 1,862 | ||||||||||||
| Marketing | 1,710,693 | 676,156 | 3,246,206 | 954,268 | ||||||||||||
| Office and administration | 21,981 | 12,005 | 29,453 | 18,652 | ||||||||||||
| Rent and virtual office | 9,950 | 1,867 | 12,615 | 10,715 | ||||||||||||
| Share-based payments (Notes 5 and 6) | - | - | - | 663,493 | ||||||||||||
| Software maintenance (Note 6) | 419,595 | 233,105 | 575,945 | 440,657 | ||||||||||||
| Transfer agent and filing fees | 24,070 | 16,910 | 51,654 | 25,931 | ||||||||||||
| Travel | 8,626 | - | 37,624 | - | ||||||||||||
| (2,339,888 | ) | (974,995 | ) | (4,127,781 | ) | (2,264,079 | ) | |||||||||
| OTHER ITEMS | ||||||||||||||||
| Interest income | 8,270 | - | 11,722 | 387 | ||||||||||||
| Loss on foreign exchange | (9,365 | ) | (13,831 | ) | (21,397 | ) | (18,775 | ) | ||||||||
| (1,095 | ) | (13,831 | ) | (9,675 | ) | (18,388 | ) | |||||||||
| Net loss and comprehensive loss for the period | $ | (2,227,618 | ) | $ | (978,707 | ) | $ | (3,936,056 | ) | $ | (2,263,626 | ) | ||||
| Basic and diluted loss per share | $ | (0.02 | ) | $ | (0.01 | ) | $ | (0.03 | ) | $ | (0.03 | ) | ||||
| Weighted average number of common shares outstanding | 116,044,811 | 80,981,691 | 115,016,170 | 74,983,740 | ||||||||||||
The accompanying notes are an integral part of these condensed consolidated interim financial statements.
| F-27 |
(FORMERLY GLOBEX DATA LTD.)
CONDENSED CONSOLIDATED INTERIM STATEMENTS OF CHANGES IN SHAREHOLDERS’ EQUITY
For the six months ended June 30, 2022 and 2021
(Unaudited)
(Expressed in Canadian Dollars)
| Number of Shares | Share Capital $ | Shares Subscribed $ | Reserves $ | Deficit $ | Shareholders’ Equity $ | |||||||||||||||||||
| Balance, December 31, 2020 | 57,000,713 | 6,161,300 | 22,780 | 996,016 | (4,073,067 | ) | 3,107,029 | |||||||||||||||||
| Shares issued | 20,900,327 | 4,548,038 | (22,780 | ) | - | - | 4,525,258 | |||||||||||||||||
| Share issue costs | - | (331,983 | ) | - | 82,343 | - | (249,640 | ) | ||||||||||||||||
| Exercise of stock options | 2,720,000 | 596,827 | - | (266,427 | ) | - | 330,400 | |||||||||||||||||
| Exercise of warrants | 5,136,715 | 835,372 | - | (53,437 | ) | - | 781,935 | |||||||||||||||||
| Shares issued for accounts payable | 50,000 | 18,000 | - | - | - | 18,000 | ||||||||||||||||||
| Share-based payments | - | - | - | 663,493 | - | 663,493 | ||||||||||||||||||
| Net loss for the period | - | - | - | - | (2,263,626 | ) | (2,263,626 | ) | ||||||||||||||||
| Balance, June 30, 2021 | 85,807,755 | 11,827,554 | - | 1,421,988 | (6,336,693 | ) | 6,912,849 | |||||||||||||||||
| Balance, December 31, 2021 | 113,701,188 | 20,982,323 | - | 5,228,563 | (13,485,551 | ) | 12,725,335 | |||||||||||||||||
| Shares issued | 2,321,585 | 812,555 | - | - | - | 812,555 | ||||||||||||||||||
| Exercise of warrants | 384,000 | 80,414 | - | (6,864 | ) | - | 73,550 | |||||||||||||||||
| Shares subscribed | - | - | 39,750 | - | - | 39,750 | ||||||||||||||||||
| Shares issued for marketing services | 150,000 | 56,250 | - | - | - | 56,250 | ||||||||||||||||||
| Net loss for the period | - | - | - | - | (3,936,056 | ) | (3,936,056 | ) | ||||||||||||||||
| Balance, June 30, 2022 | 116,556,773 | 21,931,542 | 39,750 | 5,221,699 | (17,421,607 | ) | 9,771,384 | |||||||||||||||||
The accompanying notes are an integral part of these condensed consolidated interim financial statements.
| F-28 |
(FORMERLY GLOBEX DATA LTD.)
CONDENSED CONSOLIDATED INTERIM STATEMENTS OF CASH FLOWS
For the six months ended June 30, 2022 and 2021
(Unaudited)
(Expressed in Canadian Dollars)
| 2022 | 2021 | |||||||
| CASH FLOWS USED IN OPERATING ACTIVITIES | ||||||||
| Net loss | $ | (3,936,056 | ) | $ | (2,263,626 | ) | ||
| Items not affecting cash: | ||||||||
| Depreciation | 48,266 | - | ||||||
| Shares issued for marketing services | 56,250 | - | ||||||
| Share-based payments | - | 663,493 | ||||||
| Changes in non-cash working capital items: | ||||||||
| Receivables | 21,763 | (36,179 | ) | |||||
| Prepaid expenses | 499,804 | (41,465 | ) | |||||
| Accounts payable and accrued liabilities | 605 | 31,614 | ||||||
| Due to related parties | 255 | 16,684 | ||||||
| Licensee fees payable | (42,503 | ) | 812 | |||||
| Cash used in operating activities | (3,351,616 | ) | (1,628,667 | ) | ||||
| CASH FLOWS FROM FINANCING ACTIVITIES | ||||||||
| Shares issued for cash | 812,555 | 4,525,258 | ||||||
| Share issue costs | - | (249,640 | ) | |||||
| Exercise of stock options | - | 330,400 | ||||||
| Exercise of warrants | 73,550 | 781,935 | ||||||
| Shares subscribed | 39,750 | - | ||||||
| Cash provided by financing activities | 925,855 | 5,387,953 | ||||||
| Change in cash and cash equivalents | (2,425,761 | ) | 3,759,286 | |||||
| Cash, beginning | 8,812,477 | 494,927 | ||||||
| Cash and cash equivalents, ending | $ | 6,386,716 | $ | 4,254,213 | ||||
| Cash and cash equivalents: | ||||||||
| Cash | $ | 1,381,732 | $ | 4,254,213 | ||||
| Money market mutual funds | 5,004,984 | - | ||||||
| $ | 6,386,716 | $ | 4,254,213 | |||||
| Supplemental cash flow information: | ||||||||
| Cash received for interest | $ | 11,722 | $ | 387 | ||||
| Transfer to share capital on exercise of stock options | $ | - | $ | 266,427 | ||||
| Transfer to share capital on exercise of broker’s warrants | $ | 6,864 | $ | 53,437 | ||||
| Fair value of agent’s warrants | $ | - | $ | 82,343 | ||||
| Shares issued for accounts payable | $ | - | $ | 18,000 | ||||
The accompanying notes are an integral part of these condensed consolidated interim financial statements.
| F-29 |
(FORMERLY GLOBEX DATA LTD.)
NOTES TO THE CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
For the six months ended June 30, 2022 and 2021
(Unaudited)
(Expressed in Canadian Dollars)
| 1. | NATURE OF OPERATIONS AND GOING CONCERN |
a) Nature of operations
Sekur Private Data Ltd. (formerly GlobeX Data Ltd.) (the “Company”) was incorporated under the Business Corporations Act (British Columbia) on March 1, 2017 and completed its initial public offering (“IPO”) during the year ended December 31, 2019. The Company’s common shares and tradeable warrants were listed on the Canadian Securities Exchange effective July 22, 2019 under the symbols “SWIS” and “SWIS.WT”, respectively. On November 5, 2019, the Company’s common shares began trading on the OTCQB Venture Market with the trading symbol SWISF. On April 14, 2022, the Company changed its name to Sekur Private Data Ltd. and the Company’s common shares and tradable warrants were listed on the Canadian Securities Exchange under the new symbols “SKUR” and “SKUR.WT”, respectively. The Company began trading on the OTCQX as of April 29, 2022 under the trading symbol SWISF.
The Company is a Cybersecurity and Internet Privacy provider of Swiss-hosted solutions for secure communications and secure data management. On May 7, 2017, the Company (as licensee) entered into the GlobeX Data Secure Cloud Services Licensee Agreement and Program (“Reseller Agreement 2”) with GlobeX Data S.A. (“GDSA”), a Swiss corporation with a common director, whereby GDSA granted to the Company an exclusive, transferrable license to resell the Plan Offerings (as defined) to prospects in all countries except Switzerland, Lichtenstein, the Principality of Monte Carlo, the Vatican City State, Canada and the United States for a perpetual term unless terminated by GDSA. The terms and conditions of Reseller Agreement 2 are the same as for the Reseller Agreement as described in Note 4, except that the Company has 90 days to cure a breach of any part of Reseller Agreement 2.
The Company’s head office and principal address is located at First Canadian Place, 100 King Street West, Suite 5600, Toronto, ON, Canada, M5X 1C9 and the registered and records office is located at 595 Howe Street, Suite 704, Vancouver, BC, Canada, V6C 2T5.
b) Going concern
Between January 15, 2021 and November 17, 2021, the Company closed five non-brokered private placements (Note 5) that realized net proceeds of $12,448,573 which will be used to complete the Company’s commercialization path and a step to develop profitable operations. As at June 30, 2022, the Company had a deficit of $17,421,607 since inception and incurred negative operating cash flows. As at June 30, 2022, the Company had a working capital balance of $6,600,177 (December 31, 2021 - $9,505,862) and available cash of $6,386,716 (December 31, 2021 - $8,812,477). Therefore, management concludes that the Company has sufficient funds to fund its operations for the next 12 months. Ultimately the continuing operations of the Company are dependent upon generating profitable operations and obtaining funding, as required, to allow the Company to achieve its business objectives. While the Company’s management believes that there are many financing opportunities available, there is no assurance that it will be able to successfully obtain additional financing as needed. These condensed consolidated interim financial statements have been prepared using accounting policies applicable to a going concern, which contemplates the realization of assets and settlement of liabilities in the normal course of business as they become due and do not reflect any adjustments that would be necessary if the going concern basis was not appropriate. If the going concern basis was not appropriate, significant adjustments would be necessary in the carrying value of assets and liabilities, the reported expenses and the classifications used in the consolidated statements of financial position.
These condensed consolidated interim financial statements were authorized for issue by the Board of Directors on August 10, 2022.
| F-30 |
SEKUR PRIVATE DATA LTD.
(FORMERLY GLOBEX DATA LTD.)
NOTES TO THE CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
For the six months ended June 30, 2022 and 2021
(Unaudited)
(Expressed in Canadian Dollars)
| 2. | SIGNIFICANT ACCOUNTING POLICIES |
Statement of compliance to International Financial Reporting Standards
These condensed consolidated interim financial statements have been prepared in accordance with International Accounting Standards (“IAS”) 34, Interim Financial Reporting.
Basis of presentation
These condensed consolidated interim financial statements of the Company have been prepared on an accrual basis and are based on historical costs, modified where applicable. The condensed consolidated interim financial statements are presented in Canadian dollars unless otherwise noted.
These condensed consolidated interim financial statements do not include all of the information required for full annual consolidated financial statements and should be read in conjunction with the annual consolidated financial statements of the Company for the year ended December 31, 2021.
The Company uses the same accounting policies and methods of computation as in the annual audited consolidated financial statements for the year ended December 31, 2021.
Use of estimates and judgments
The preparation of these financial statements in conformity with IFRS requires management to make estimates, judgments and assumptions that affect the application of accounting policies and the reported amounts of assets, liabilities, revenue and expenses. Actual results may differ from these estimates. Estimates and underlying assumptions are reviewed on an ongoing basis. Revisions to accounting estimates are recognized in the period in which the estimates are revised and in any future periods affected.
Certain of the Company’s accounting policies and disclosures require key assumptions concerning the future and other estimates that have a significant risk of causing a material adjustment to the carrying amounts of assets and liabilities or disclosures within the next fiscal year. Where applicable, further information about the assumptions made is disclosed in the notes specific to that asset or liability. The critical accounting estimates and judgments set out below have been applied consistently to all periods presented in these financial statements.
| a) | Ability to continue as a going concern – evaluation of the ability of the Company to realize its strategy for funding its future needs for working capital involves making judgments. | |
| b) | Equipment – equipment is depreciated over the estimated useful life of the asset to the asset’s estimated residual value as determined by management. Assessing the reasonableness of the estimated useful life, residual value and the appropriate depreciation methodology requires judgment and is based on management’s experience and knowledge of the industry. |
| F-31 |
SEKUR PRIVATE DATA LTD.
(FORMERLY GLOBEX DATA LTD.)
NOTES TO THE CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
For the six months ended June 30, 2022 and 2021
(Unaudited)
(Expressed in Canadian Dollars)
| 2. | SIGNIFICANT ACCOUNTING POLICIES (cont’d…) |
Use of estimates and judgments (cont’d…)
| c) | Impairment – an evaluation of whether or not an asset is impaired involves consideration of whether indicators of impairment exist. Factors which could indicate impairment exists include: significant underperformance of an asset relative to historical or projected operating results, significant changes in the manner in which an asset is used or in the Company’s overall business strategy, the carrying amount of the net assets of the Company being more than its market capitalization or significant negative industry or economic trends. In some cases, these events are clear. However, in many cases, a clearly identifiable event indicating possible impairment does not occur. Instead, a series of individually insignificant events occur over a period of time leading to an indication that an asset may be impaired. Events can occur in these situations that may not be known until a date subsequent to their occurrence. When there is an indicator of impairment, the recoverable amount of the asset is estimated to determine the amount of impairment, if any. If indicators conclude that the asset is no longer impaired, the Company will reverse impairment losses on assets only to the extent that the asset’s carrying amount does not exceed the carrying amount that would have been determined, net of depreciation or amortization, if no impairment loss had been recognized. Similar to determining if an impairment exists, judgment is required in assessing if a reversal of an impairment loss is required. |
Basis of Consolidation
These condensed consolidated interim financial statements incorporate the financial statements of the Company and its controlled subsidiary. Control is defined as the exposure, or rights, to variable returns from involvement with an investee and the ability to affect those returns through power over the investee. Power over an investee exists when an investor has existing rights that give it the ability to direct the activities that significantly affect the investee’s returns. This control is generally evidenced through owning more than 50% of the voting rights or currently exercisable potential voting rights of a Company’s share capital. All significant intercompany transactions and balances have been eliminated.
These condensed consolidated interim financial statements include the financial statements of the Company and its wholly-owned subsidiary listed in the following table:
| Name of Subsidiary | Country of Incorporation | Ownership Interest | Principal Activity | |||
| GlobeX Data, Inc. | USA | 100% | Secure Data Management and Communications |
| F-32 |
SEKUR PRIVATE DATA LTD.
(FORMERLY GLOBEX DATA LTD.)
NOTES TO THE CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
For the six months ended June 30, 2022 and 2021
(Unaudited)
(Expressed in Canadian Dollars)
| 3. | EQUIPMENT |
Solid-state Drives | Servers | Total | ||||||||||
| Cost: | ||||||||||||
| As at December 31, 2020 | $ | - | $ | - | $ | - | ||||||
| Additions during the year | 99,172 | 573,926 | 673,098 | |||||||||
| As at December 31, 2021 and June 30, 2022 | 99,172 | 573,926 | 673,098 | |||||||||
| Accumulated depreciation: | ||||||||||||
| As at December 31, 2020 | - | - | - | |||||||||
| Depreciation for the year | 6,198 | - | 6,198 | |||||||||
| As at December 31, 2021 | 6,198 | - | 6,198 | |||||||||
| Depreciation for the period | 12,394 | 35,872 | 48,266 | |||||||||
| As at June 30, 2022 | 18,592 | 35,872 | 54,464 | |||||||||
| Net book value: | ||||||||||||
| At December 31, 2021 | $ | 92,974 | $ | 573,926 | $ | 666,900 | ||||||
| At June 30, 2022 | $ | 80,580 | $ | 538,054 | $ | 618,634 | ||||||
| 4. | INTANGIBLE ASSET |
On March 30, 2018, the Company acquired all of the issued and outstanding shares of GlobeX Data Inc. (“GDI”). As consideration for the acquisition, the Company issued 25 million common shares to GDI, with the license agreement held by GDI being assigned a fair value of $2,552,573.
On April 3, 2017, GDI (as licensee) entered into the GlobeX Data SA Secure Cloud Services Licensee License Agreement and Program (the “Reseller Agreement”) with GDSA (see Note 1), whereby GDSA granted to GDI an exclusive, non-transferrable license to resell the Plan Offerings (as defined) to prospects in the United States and Canada for a perpetual term unless terminated by GDSA. Pursuant to the Reseller Agreement, GDI markets the Plan Offerings to prospects or customers (the “End User”) and the End User subscribes to the Plan Offerings by entering into an end user license agreement (the “EULA”) with GDSA by signing a contract with the GDI. Acceptance of a prospect or customer as an End User is at the sole discretion of GDSA, with GDSA having the right to terminate an EULA. GDI has the absolute right to accept any End User and, if it does, it also assumes the liability of acceptance of the End User. GDSA charges the End User a service fee for the Plan Offerings, with payment received by GDSA being remitted to GDI. GDI also has the option of collecting funds directly from the End User. Gross service fee revenue is split between GDSA (10%, being the licensee fee) and GDI (90%). The Reseller Agreement can be terminated by GDSA at any time if GDI fails to cure a breach of any part of the Reseller Agreement within 30 days of receiving written notice of the breach.
During the period ended June 30, 2022, the Company accrued licensee fees of $18,908 (2021 - $1,862) in respect of the Reseller Agreement.
As at June 30, 2022, $10,231 (December 31, 2021 - $52,734) was payable to GDSA pursuant to the Reseller Agreement.
| F-33 |
SEKUR PRIVATE DATA LTD.
(FORMERLY GLOBEX DATA LTD.)
NOTES TO THE CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
For the six months ended June 30, 2022 and 2021
(Unaudited)
(Expressed in Canadian Dollars)
| 5. | SHARE CAPITAL |
The Company has authorized an unlimited number of common shares and preferred shares. No preferred shares have been issued.
During the period ended June 30, 2022, the Company:
| a) | Closed a private placement consisting of 2,321,585 units at a price of $0.35 per unit for proceeds of $812,555. Each unit consists of one common share and one share purchase warrant. Each warrant entitles the holder to purchase an additional share at a price of $0.70 per share for two years. | |
| b) | Issued 150,000 common shares at a fair value of $56,250 for marketing services. | |
| c) | Received proceeds of $73,550 from the exercise of 384,000 warrants and received share subscriptions of $39,750 for warrants that were exercised subsequent to June 30, 2022. |
During the year ended December 31, 2021, the Company:
| a) | Closed a private placement consisting of 9,150,000 units at a price of $0.12 per unit for proceeds of $1,098,000 (of which $22,780 was received during the year ended December 31, 2020). Each unit consists of one common share and one share purchase warrant. Each warrant entitles the holder to purchase an additional share at a price of $0.15 per share for two years. The Company issued 417,000 finder’s units under the same terms at a fair value of $50,040. Cash finder’s fees were paid of $17,600 and finder’s warrants of 640,000 were issued at a fair value of $82,343 under the same terms. | |
| b) | Closed a private placement consisting of 4,076,400 units at a price of $0.30 per unit for proceeds of $1,222,920. Each unit consists of one common share and one-half of a share purchase warrant. Each full warrant entitles the holder to purchase an additional share at a price of $0.50 per share for two years. Cash finder’s fees were paid of $60,000. | |
| c) | Closed a private placement consisting of 7,256,927 units at a price of $0.30 per unit for proceeds of $2,177,078. Each unit consists of one common share and one-half of a share purchase warrant. Each full warrant entitles the holder to purchase an additional share at a price of $0.50 per share for two years. Cash finder’s fees were paid of $122,000. | |
| d) | Closed a private placement consisting of 19,261,470 units at a price of $0.33 per unit for proceeds of $6,356,285. Each unit consists of one common share and one-half of a share purchase warrant. Each full warrant entitles the holder to purchase an additional share at a price of $0.60 per share for two years. Cash finder’s fees were paid of $328,314. | |
| e) | Closed a private placement consisting of 5,355,510 units at a price of $0.40 per unit for proceeds of $2,142,204. Each unit consists of one common share and one-half of a share purchase warrant. Each full warrant entitles the holder to purchase an additional share at a price of $0.80 per share for two years. Cash finder’s fees were paid of $20,000. | |
| f) | Received proceeds of $1,128,631 from the exercise of 7,113,168 warrants and $330,400 from the exercise of 2,720,000 stock options. | |
| g) | Issued 50,000 common shares to settle $18,000 payable to a company for investor relations services. | |
| h) | Issued 1,300,000 common shares at a fair value of $572,000 for marketing services (see Note 9). |
| F-34 |
SEKUR PRIVATE DATA LTD.
(FORMERLY GLOBEX DATA LTD.)
NOTES TO THE CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
For the six months ended June 30, 2022 and 2021
(Unaudited)
(Expressed in Canadian Dollars)
| 5. | SHARE CAPITAL (cont’d…) |
Escrow Shares
Following the closing of the IPO, the Company had an aggregate of 31,960,001 common shares held in escrow pursuant to the escrow agreement dated May 8, 2019. The shares are subject to a 10% release on the Listing Date (July 22, 2019), with the remaining escrowed securities being released in 15% tranches every 6 months thereafter. As at June 30, 2022, there were 4,794,001 shares remaining in escrow.
Stock Options
The Company adopted a stock option plan on April 30, 2018. The stock option plan provides that, subject to the requirements of the CSE, the aggregate number of securities reserved for issuance will be 15% of the number of the Company’s common shares issued and outstanding at the time such options are granted. The exercise price of option grants will be determined by the Board of Directors, but will not be less than the closing market price of the common shares on the CSE less allowable discounts at the time of grant. All options granted under the stock option plan will expire not later than the date that is ten years from the date that such options are granted.
| Number of Options | Weighted Average Exercise Price ($) | |||||||
| Outstanding at December 31, 2020 | 5,260,000 | 0.13 | ||||||
| Granted | 20,320,000 | 0.52 | ||||||
| Exercised | (2,720,000 | ) | 0.12 | |||||
| Expired/cancelled | (6,320,000 | ) | 0.50 | |||||
| Outstanding and exercisable, December 31, 2021 and June 30, 2022 | 16,540,000 | 0.47 | ||||||
The weighted-average remaining contractual life of options at June 30, 2022 was 6.94 years (year ended December 31, 2021 – 7.43 years).
Additional information regarding stock options outstanding as at June 30, 2022 is as follows:
| Exercise price ($) | Number of options | Expiry Date | |||||
| 0.14 | 1,400,000 | June 12, 2023 | |||||
| 0.12 | 1,140,000 | December 17, 2025 | |||||
| 0.25 | 3,500,000 | January 20, 2026 | |||||
| 0.50 | 6,320,000 | July 27, 2031 | |||||
| 0.80 | 4,180,000 | December 20, 2031 | |||||
| 16,540,000 | |||||||
| F-35 |
SEKUR PRIVATE DATA LTD.
(FORMERLY GLOBEX DATA LTD.)
NOTES TO THE CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
For the six months ended June 30, 2022 and 2021
(Unaudited)
(Expressed in Canadian Dollars)
| 5. | SHARE CAPITAL (cont’d…) |
During the period ended June 30, 2022, the Company granted nil (year ended December 31, 2021 - 14,000,000) stock options with a fair market value of $nil (year ended December 31, 2021 - $4,555,966) or $nil (year ended December 31, 2021 - $0.33) per option which was charged to operations. In April 2021 and June 2021 of the previous fiscal year, the Company granted 4,820,000 stock options and 1,500,000 stock options to directors, officers and consultants at an exercise price of $0.50 per share for a period of five years. These options were voluntarily returned to the Company in June 2021. The following assumptions were used for the Black-Scholes valuation of the stock options assuming no expected dividends or forfeitures:
Period ended June 30, 2022 | Year ended December 31, 2021 | |||||||
| Risk-free interest rate | - | 0.43% - 1.38 | % | |||||
| Expected life (in years) | - | 5 - 10 | ||||||
| Expected volatility | - | 125% - 135 | % |
Warrants
| Number of Warrants | Weighted Average Exercise Price ($) | |||||||
| Outstanding, December 31, 2020 | 10,727,791 | 0.48 | ||||||
| Issued | 28,182,154 | 0.44 | ||||||
| Exercised | (7,113,168 | ) | 0.16 | |||||
| Outstanding, December 31, 2021 | 31,796,777 | 0.51 | ||||||
| Issued | 2,321,585 | 0.70 | ||||||
| Exercised | (384,000 | ) | 0.19 | |||||
| Expired | (7,863 | ) | 0.20 | |||||
| Outstanding, June 30, 2022 | 33,726,499 | 0.53 | ||||||
The weighted-average remaining contractual life of warrants at June 30, 2022 was 0.84 years (year ended December 31, 2021 – 1.26 years).
| F-36 |
SEKUR PRIVATE DATA LTD.
(FORMERLY GLOBEX DATA LTD.)
NOTES TO THE CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
For the six months ended June 30, 2022 and 2021
(Unaudited)
(Expressed in Canadian Dollars)
| 5. | SHARE CAPITAL (cont’d…) |
Additional information regarding warrants outstanding as at June 30, 2022 is as follows:
| Exercise price ($) | Number of warrants | Expiry Date | |||||
| 0.75 | 5,690,000 | July 22, 2022* | |||||
| 0.25 | 129,760 | July 22, 2022* | |||||
| 0.15 | 7,610,000 | January 15, 2023 | |||||
| 0.50 | 2,038,200 | March 31, 2023 | |||||
| 0.50 | 3,628,464 | May 14, 2023 | |||||
| 0.60 | 9,630,735 | September 3, 2023 | |||||
| 0.80 | 2,677,755 | November 17, 2023 | |||||
| 0.70 | 2,321,585 | April 18, 2024 | |||||
| 33,726,499 | |||||||
* Expired subsequent to June 30, 2022, unexercised.
During the period ended June 30, 2022, the Company granted nil (year ended December 31, 2021 - 640,000) agent’s warrants with a fair market value of $nil (year ended December 31, 2021 - $82,343) or $nil (year ended December 31, 2021 - $0.13) per warrant which was charged to share issue costs. The following assumptions were used for the Black-Scholes valuation of the warrants assuming no expected dividends or forfeitures:
Period ended June 30, 2022 | Year ended December 31, 2021 | |||||||
| Risk-free interest rate | - | 0.15 | % | |||||
| Expected life (in years) | - | 2 | ||||||
| Expected volatility | - | 135 | % | |||||
| 6. | RELATED PARTY TRANSACTIONS |
Related party transactions were in the normal course of operations and measured at the exchange amount, which is the amount established and agreed to by the related parties. Key management personnel are the persons responsible for planning, directing and controlling the activities of the Company, and include both executive and non-executive directors, and entities controlled by such persons. The Company considers all directors and officers of the Company to be key management personnel.
During the period ended June 30, 2022, the Company incurred $25,580 (2021 - $25,575) in accounting fees and corporate services to an accounting firm in which an officer of the Company is a partner. As at June 30, 2022, there was $352 (December 31, 2021 - $nil) owing to this firm. This balance is unsecured, non-interest bearing and has no fixed terms of repayment.
As at June 30, 2022, there was $nil (December 31, 2021 - $97) owing to an officer and director of the Company for expense reimbursements. This balance is unsecured, non-interest bearing and has no fixed terms of repayment.
| F-37 |
SEKUR PRIVATE DATA LTD.
(FORMERLY GLOBEX DATA LTD.)
NOTES TO THE CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
For the six months ended June 30, 2022 and 2021
(Unaudited)
(Expressed in Canadian Dollars)
| 6. | RELATED PARTY TRANSACTIONS (cont’d…) |
During the period ended June 30, 2022, the Company granted nil (year ended December 31, 2021 – 13,950,000) stock options with a fair value of $nil (year ended December 31, 2021 - $4,536,550) to directors and officers of the Company. In April 2021 and June 2021 of the previous fiscal year, the Company granted 4,800,000 stock options and 1,500,000 stock options to directors and officers at an exercise price of $0.50 per share for a period of five years. These options were voluntarily returned to the Company in June 2021.
During the period ended June 30, 2022, the Company paid software maintenance fees of $320,609 (2021 - $151,296) and licensee fees of $18,908 (2021 - $1,862) to GDSA (see Notes 1 and 4). As at June 30, 2022, $nil in software maintenance fees was included in prepaid expenses (December 31, 2021 - $85,000).
| 7. | FINANCIAL INSTRUMENTS AND RISK MANAGEMENT |
Financial instruments measured at fair value are classified into one of three levels in the fair value hierarchy according to the relative reliability of the inputs used to estimate the fair values. The three levels of the fair value hierarchy are:
| ● | Level 1 – Unadjusted quoted prices in active markets for identical assets or liabilities; | |
| ● | Level 2 – Inputs other than quoted prices that are observable for the asset or liability either directly or indirectly; and | |
| ● | Level 3 – Inputs that are not based on observable market data. |
The fair value of the Company’s receivables (excluding GST), accounts payable and accrued liabilities, due to related parties and licensee fees payable approximate their carrying value. The Company’s other financial instrument, being cash and cash equivalents, is measured at fair value using Level 1 inputs.
The Company is exposed in varying degrees to a variety of financial instrument related risks. The Board of Directors approves and monitors the risk management processes, inclusive of documented investment policies, counterparty limits, and controlling and reporting structures. The type of risk exposure and the way in which such exposure is managed is provided as follows:
a) Credit risk
Credit risk is the risk that one party to a financial instrument will fail to discharge an obligation and cause the other party to incur a financial loss. The Company’s primary exposure to credit risk is on its cash and cash equivalents held in bank and investment accounts. The Company has deposited the cash with its bank from which management believes the risk of loss is remote.
b) Liquidity risk
Liquidity risk is the risk that the Company will not be able to meet its financial obligations as they become due. The Company’s approach to managing liquidity is to ensure that it will have sufficient liquidity to meet liabilities when due. Accounts payable and accrued liabilities are due within the current operating year. The Company has a sufficient cash balance to settle current liabilities.
c) Market risk
Market risk is the risk that changes in market prices, such as foreign exchange rates, interest rates and equity prices will affect the Company’s income or the value of its holdings of financial instruments. The objective of market risk management is to manage and control market risk exposures within acceptable parameters, while optimizing the return.
| F-38 |
SEKUR PRIVATE DATA LTD.
(FORMERLY GLOBEX DATA LTD.)
NOTES TO THE CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
For the six months ended June 30, 2022 and 2021
(Unaudited)
(Expressed in Canadian Dollars)
| 7. | FINANCIAL INSTRUMENTS AND RISK MANAGEMENT (cont’d…) |
d) Currency risk
A portion of the Company’s financial assets and liabilities are denominated in US dollars. The Company monitors this exposure, but has no hedge positions.
The Company is exposed to currency risk on fluctuations related to cash, accounts payable and accrued liabilities and licensee fees payable that are denominated in US dollars. At June 30, 2022, a 10% change in the value to the US dollar as compared to the Canadian dollar would not have a significant effect on net loss.
e) Interest rate risk
Interest rate risk is the risk that the fair value of future cash flows of a financial instrument will fluctuate because of changes in market interest rates. The Company is exposed to interest rate risk, from time to time, on its cash balances. Surplus cash, if any, is placed on call with financial institutions and management actively negotiates favorable market related interest rates.
| 8. | CAPITAL DISCLOSURE AND MANAGEMENT |
The Company defines its capital as all components of shareholders’ equity. The Company’s objectives when managing capital are to safeguard its ability to continue as a going concern.
In order to maintain its capital structure, the Company is dependent on equity funding and when necessary, raises capital through the issuance of equity instruments, primarily comprised of common shares. The Company manages its capital structure and makes adjustments to it in light of economic conditions. The Company, upon approval from its Board of Directors, will make changes to its capital structure as deemed appropriate under the specific circumstances.
The Company is not subject to any externally imposed capital requirements or debt covenants, and does not presently utilize any quantitative measures to monitor its capital. There were no changes to the Company’s approach to managing capital during the period.
| 9. | CONTRACTUAL OBLIGATIONS |
During the year ended December 31, 2021, the Company entered into three production and broadcasting agreements with a media services company (“AMI”) in the United States to assist the Company in furthering its media awareness through television, production, media analysis and procurement as follows:
| a) | May 10, 2021 – 14-month campaign: development of a biography format television show, production of 14 specialized NASDAQ interviews, tech reports and emerging growth articles, broadcast of the interviews via five media outlets, production and broadcast a minimum of 30 commercials per month and social media support. As compensation for performing these services, AMI will receive US$15,000 per month and 500,000 common shares of the Company; |
| F-39 |
SEKUR PRIVATE DATA LTD.
(FORMERLY GLOBEX DATA LTD.)
NOTES TO THE CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
For the six months ended June 30, 2022 and 2021
(Unaudited)
(Expressed in Canadian Dollars)
| 9. | CONTRACTUAL OBLIGATIONS (cont’d…) |
| b) | June 1, 2021 – 14-month campaign: broadcast a minimum of two security segments per month via two media outlets. As compensation for performing these services, AMI will receive US$5,000 per month and 500,000 common shares of the Company. The Company has the right to produce two additional segments, at $2,500 per segment, for a maximum of four segments per month; and | |
| c) | October 25, 2021 – 18-month marketing campaign: as for the May 10, 2021 agreement. As compensation for performing these services, AMI will receive US$30,000 per month and 300,000 common shares of the Company. |
On December 23, 2021, an aggregate of 1,300,000 common shares of the Company were issued to AMI at a value of $572,000 based on the Company’s share price of $0.44 on that date (see Note 5). As at June 30, 2022, $55,423 was included in prepaid expenses (December 31, 2021 - $303,286).
| 10. | REVENUE |
Sekur Private Data Ltd. serves consumers, businesses and governments worldwide and distributes a suite of encrypted e-mails, secure messaging and secure communication, and a suite of cloud-based storage, disaster recovery and document management tools (the “Solutions”) developed by GDSA. All data and data traffic is hosted and transmitted in secure servers located in Switzerland that are held and managed by GDSA. The Company sells its Solutions through its websites sekur.com and sekursuite.com, and through its approved distributors and telecommunications companies. The Company offers several ways to partner with distributors:
| ● | Bulk purchase of services with white label potential or co-branding for resale, gifting or reselling by partners to their end users; | |
| ● | Free trial offer followed by profit sharing with channel partner upon conversion to paid services; and | |
| ● | Revenue-share model for the business to business (“B2B”) sector with telecom operators. |
Solutions are sold to the following customer groups:
| ● | Business to Consumer (“B2C”) through regional and country-specific websites set up for the Products; | |
| ● | B2C bulk, by reselling through large distributors that then sell directly to customers; | |
| ● | B2B individually and B2B bulk customers, by selling through cloud service brokers and B2B marketplaces; and | |
| ● | Sekur, marketing directly to high net worth individuals and/or c-level executives or through distributors. |
(a) Total Revenues by Major Product Type
The following table shows the Company’s revenue disaggregated by major solution type:
Period ended | Year ended | |||||||
| June 30, 2022 | December 31, 2021 | |||||||
| B2B individually/bulk | $ | 1,622 | $ | 6,496 | ||||
| Sekur | 199,778 | 138,385 | ||||||
| $ | 201,400 | $ | 144,881 | |||||
| F-40 |
SEKUR PRIVATE DATA LTD.
(FORMERLY GLOBEX DATA LTD.)
NOTES TO THE CONDENSED CONSOLIDATED INTERIM FINANCIAL STATEMENTS
For the six months ended June 30, 2022 and 2021
(Unaudited)
(Expressed in Canadian Dollars)
| 10. | REVENUE (cont’d…) |
(b) Total Revenues by geographical location
The following table shows the Company’s revenue disaggregated by geographical location:
Period ended | Year ended | |||||||
| June 30, 2022 | December 31, 2021 | |||||||
| Mexico | $ | 805 | $ | 585 | ||||
| United States | 200,595 | 144,296 | ||||||
| $ | 201,400 | $ | 144,881 | |||||
| 11. | SUBSEQUENT EVENTS |
Subsequent to the period ended June 30, 2022, the Company:
| a) | Issued 313,334 common shares from the exercise of warrants for proceeds of $47,000 of which $39,750 was received during the period ended June 30, 2022. |
| F-41 |
[●] Units
Each Unit Consisting of
One Common Share and
One Warrant to Purchase One Common Share
PROSPECTUS
Sole Book-Running Manager
Maxim Group LLC
●, 2022
Through and including ● (the 25th day after the date of this prospectus), all dealers that effect transactions in these securities, whether or not participating in this offering, may be required to deliver a prospectus. This is in addition to a dealer’s obligation to deliver a prospectus when acting as an underwriter and with respect to an unsold allotment or subscription.
PART II – INFORMATION NOT REQUIRED IN PROSPECTUS
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Our officers and directors are indemnified as provided by the Business Corporations Act (British Columbia) (the “Business Corporations Act”) and our Articles.
Indemnification
The Business Corporations Act provides that we are required to indemnify our officers and directors to the extent that they are successful, on the merits or otherwise, in the outcome of the proceeding brought against them as a result of serving in that position, including criminal, civil, administrative or investigative actions and actions brought by or on behalf of the Company.
The Business Corporations Act further provides that we are permitted to indemnify our officers and directors for criminal, civil, administrative or investigative actions brought against them by third parties and for actions brought by or on behalf of the Company, even if they are unsuccessful in defending that action, if the officer or director:
| (a) | is not found to liable for a breach of his or her fiduciary duties as an officer or director or to have engaged in intentional misconduct, fraud or a knowing violation of the law; or |
| (b) | acted in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his conduct was unlawful. |
However, with respect to actions brought by or on behalf of the Company against our officers or directors, we are not permitted to indemnify our officers or directors where they are adjudged by a court, after the exhaustion of all appeals, to be liable to us or for amounts paid in settlement to the Company, unless, and only to the extent that, a court determines that the officers or directors are entitled to be indemnified.
Our Articles provide that every director or officer, former director or officer, or person who acts or acted at our request, as a director or officer of the Company, in the absence of any dishonesty on the part of such person, shall be indemnified by us against, and it shall be the duty of the directors out of our funds to pay, all costs, losses and expenses, including an amount paid to settle an action or claim or satisfy a judgment, that such director, officer or person may incur or become liable to pay in respect of any claim made against such person or civil, criminal or administrative action or proceeding to which such person is made a party by reason of being or having been our director or officer, whether we are a claimant or party to such action or proceeding or otherwise; and the amount for which such indemnity is proved shall immediately attach as a lien on our property and have priority as against the shareholders over all other claims.
The Articles further provides that no director or officer, former director or officer, or person who acts or acted at our request, as a director or officer of the Company, in the absence of any dishonesty on such person’s party, shall be liable for the acts, receipts, neglects or defaults of any other director, officer or such person, or for joining in any receipt or other act for conformity, or for the loss, damage or expense happening to us through the insufficiency or deficiency of title to any property acquired for or on behalf of the Company, or through the insufficiency or deficiency of any security in or upon which any of our funds are invested, or for any loss or damage arising from the bankruptcy, insolvency or tortuous acts or any person with whom any funds, securities or effects are deposited, or for any loss occasioned by error of judgment or oversight on the part of such person, or for any other loss, damage or misfortune whatsoever which happens in the execution of the duties of such person or in relation thereto.
Advance of Expenses
As permitted by the Business Corporations Act and our Articles, we are to advance funds to our officers or directors for the payment of expenses incurred in connection with defending a proceeding brought against them in advance of a final disposition of the action, suit or proceeding. However, as a condition of our doing so, the officers or directors to which funds are to be advanced must provide us with undertakings to repay any advanced amounts if it is ultimately determined that they are not entitled to be indemnified for those expenses.
| 89 |
Insurance
We, upon approval by the Board of Directors, may purchase insurance on behalf of any person required or permitted to be indemnified pursuant to our Articles.
RECENT SALES OF UNREGISTERED SECURITIES
During the past three years, we completed the following sales of unregistered securities in Canadian dollars $:
| 1. | On January 17, 2020, we issued 1,225,196 units at a price of CAD$0.15 per unit. Each unit consists of one Common Share and one share purchase warrant entitling the holder to purchase an additional share at a price of CAD$0.20 per share for a two-year term. 1,006,863 Units were issued to non-US Persons pursuant to the provisions of Regulation S promulgated under the United States Securities Act, as amended (the “Securities Act”) and 218,333 Units were issued pursuant to the provisions of Rule 506 of Regulation D promulgated under the Securities Act (“Regulation D”) as each of the subscribers represented that they were accredited investors as defined in Rule 501 of Regulation D. |
| 2. | On May 20, 2020, we issued 851,053 units at a price of CAD$0.12 per unit. Each unit consists of one Common Share and one share purchase warrant entitling the holder to purchase an additional share at a price of CAD$0.13 per share for a two-year term. 726,053 units were issued to non-US Persons pursuant to the provisions of Regulation S promulgated under the Securities Act and 125,000 units were issued pursuant to the provisions of Rule 506 of Regulation D as each of the subscribers represented that they were accredited investors as defined in Rule 501 of Regulation D. |
| 3. | On October 27, 2020, we issued 2,504,182 units at a price of CAD$0.12 per unit. Each unit consists of one Common Share and one share purchase warrant entitling the holder to purchase an additional share at a price of CAD$0.15 per share for a two-year term. The units were issued to non-US Persons pursuant to the provisions of Regulation S promulgated under the Securities Act. |
| 4. | On January 6, 2021, we issued 1,300,000 units at a price of CAD$0.12 per unit. Each unit consists of one Common Share and one share purchase warrant entitling the holder to purchase an additional share at a price of CAD$0.15 per share for a two-year term. The units were issued to non-US Persons pursuant to the provisions of Regulation S promulgated under the Securities Act. |
| 5. | On January 6, 2021, we issued 1,700,000 Common Shares at a price of CAD$0.12 per share and 500,000 Common Shares at a price of $0.11 per share. Both Issuances were pursuant to the exercise of outstanding options. The shares were issued to non-US Persons pursuant to the provisions of Regulation S promulgated under the Securities Act |
| 6. | On January 7, 2021, we issued 1,763,334 units at a price of CAD$0.12 per unit. Each unit consists of one Common Share and one share purchase warrant entitling the holder to purchase an additional share at a price of CAD$0.15 per share for a two-year term. The units were issued to non-US Persons pursuant to the provisions of Regulation S promulgated under the Securities Act. |
| 7. | On January 15, 2021, we issued 6,086,666 units at a price of CAD$0.12 per unit. Each unit consists of one Common Share and one share purchase warrant entitling the holder to purchase an additional share at a price of CAD$0.15 per share for a two-year term. The units were issued to non-US Persons pursuant to the provisions of Regulation S promulgated under the Securities Act and 106,664 units were issued pursuant to the provisions of Rule 506 of Regulation D as each of the subscribers represented that they were accredited investors as defined in Rule 501 of Regulation D. |
| 8. | On January 15, 2021, we issued 417,000 finder’s units at a price of CAD$0.12 per unit. Each unit consists of one Common Share and one share purchase warrant entitling the holder to purchase an additional share at a price of CAD$0.15 per share for a two-year term. The units were issued to non-US Persons pursuant to the provisions of Regulation S promulgated under the Securities Act. |
| 9. | On February 9, 2021, we issued 851,053 Common Shares, at a price of CAD$0.13 per share pursuant to the exercise of outstanding warrants. The shares were issued to non-US Persons pursuant to the provisions of Regulation S promulgated under the Securities Act. |
| 90 |
| 10. | On February 23, 2021, we issued 2,504,182 Common Shares at a price of CAD$0.15 per share pursuant to the exercise of outstanding warrants. The shares were issued to non-US Persons pursuant to the provisions of Regulation S promulgated under the Securities Act. |
| 11. | On February 23, 2021, we issued 2,000 Common Shares, at a price of CAD$0.75 per share pursuant to the exercise of outstanding warrants. The shares were issued to non-US Persons pursuant to the provisions of Regulation S promulgated under the Securities Act. |
| 12. | On March 2, 2021, we issued 272,480 Common Shares at a price of CAD$0.25 per share pursuant to the exercise of outstanding warrants. The shares were issued to non-US Persons pursuant to the provisions of Regulation S promulgated under the Securities Act. |
| 13. | On March 4, 2021, we issued 100,000 at a price of CAD$0.20 per share pursuant to the exercise of outstanding options. The shares were issued to non-US Persons pursuant to the provisions of Regulation S promulgated under the Securities Act. |
| 14. | On March 8, 2021, we issued 50,000 Common Shares at a price of CAD$0.36 per share representing CAD$18,000 paid to a company for professional. The shares were issued to non-US Persons pursuant to the provisions of Regulation S promulgated under the Securities Act. |
| 15. | On March 31, 2021, we issued 4,076,400 units at a price of CAD$0.30 per unit. Each unit consists of one Common Share and one half of one whole share purchase warrant with each warrant entitling the holder to purchase an additional share at a price of CAD$0.50 per share for a two-year term. 4,024,000 units were issued to non-US Persons pursuant to the provisions of Regulation S promulgated under the Securities Act and 52,400 units were issued pursuant to the provisions of Rule 506 of Regulation D as each of the subscribers represented that they were accredited investors as defined in Rule 501 of Regulation D. |
| 16. | On May 14, 2021, we issued 7,256,927 units at a price of CAD$0.30 per unit. Each unit consists of one Common Share and one half of one whole share purchase warrant with each warrant entitling the holder to purchase an additional share at a price of CAD$0.50 per share for a two-year term. 4,082,382 units were issued to non-US Persons pursuant to the provisions of Regulation S promulgated under the Securities Act and 3,174,545 units were issued pursuant to the provisions of Rule 506 of Regulation D as each of the subscribers represented that they were accredited investors as defined in Rule 501 of Regulation D. |
| 17. | On May 18, 2021, we issued 800,000 Common Shares at a price of CAD$0.15 per share pursuant to the exercise of outstanding warrants. The shares were issued to non-US Persons pursuant to the provisions of Regulation S promulgated under the Securities Act. |
| 18. | On May 21, 2021, we issued 370,000 Common Shares at a price of CAD$0.12 per share pursuant to the exercise of outstanding options. The shares were issued to non-US Persons pursuant to the provisions of Regulation S promulgated under the Securities Act. |
| 19. | On June 9, 2021, we issued 200,000 Common Shares at a price of CAD$0.15 per share pursuant to the exercise of outstanding warrants. The shares were issued to non-US Persons pursuant to the provisions of Regulation S promulgated under the Securities Act. |
20. |
On June 14, 2021, we issued 40,000 Common Shares at a price of CAD$0.15 per share pursuant to the exercise of outstanding warrants. The shares were issued to non-US Persons pursuant to the provisions of Regulation S promulgated under the Securities Act. |
| 21. | On June 15, 2021, we issued 50,000 Common Shares at a price of CAD$0.15 per share pursuant to the exercise of outstanding warrants. The shares were issued to non-US Persons pursuant to the provisions of Regulation S promulgated under the Securities Act. |
| 22. | On June 16, 2021, we issued 50,000 Common Shares at a price of CAD$0.14 per share pursuant to the exercise of outstanding options. The shares were issued pursuant to the provisions of Rule 506 of Regulation D as each of the subscribers represented that they were accredited investors as defined in Rule 501 of Regulation D. |
| 91 |
| 23. | On June 30, 2021, we issued 417,000 Common Shares at a price of CAD$0.15 per share pursuant to the exercise of outstanding warrants. The shares were issued to non-US Persons pursuant to the provisions of Regulation S promulgated under the Securities Act. |
| 24. | On July 29, 2021, we issued 640,000 Common at a price of CAD$0.15 per share pursuant to the exercise of outstanding warrants. The shares were issued to non-US Persons pursuant to the provisions of Regulation S promulgated under the Securities Act. |
| 25. | On September 3, 2021, we issued 19,261,470 units at a price of CAD$0.33 per unit. Each unit consists of one Common Share and one half of one whole share purchase warrant with each warrant entitling the holder to purchase an additional share at a price of CAD$0.60 per share for a two-year term. 9,434,578 units were issued to non-US Persons pursuant to the provisions of Regulation S promulgated under the Securities Act and 9,826,892 units were issued pursuant to the provisions of Rule 506 of Regulation D as each of the subscribers represented that they were accredited investors as defined in Rule 501 of Regulation D. |
| 26. | On October 6, 2021, we issued 100,000 Common Shares, at a price of CAD$0.15 per share pursuant to the exercise of outstanding warrants. The shares were issued to non-US Persons pursuant to the provisions of Regulation S promulgated under the Securities Act. |
| 27. | On October 21, 2021, we issued 250,000 Common Shares at a price of CAD$0.15 per share pursuant to the exercise of outstanding warrants. The shares were issued to non-US Persons pursuant to the provisions of Regulation S promulgated under the Securities Act. |
| 28. | On November 17, 2021, we issued 5,355,510 units at a price of CAD$0.40 per unit. Each unit consists of one Common Share and one half of one whole share purchase warrant with each warrant entitling the holder to purchase an additional share at a price of CAD$0.80 per share for a two-year term. 2,871,525 units were issued to non-US Persons pursuant to the provisions of Regulation S promulgated under the Securities Act and 2,483,985 units were issued pursuant to the provisions of Rule 506 of Regulation D as each of the subscribers represented that they were accredited investors as defined in Rule 501 of Regulation D. |
| 29. | On December 1, 2021, we issued 83,333 Common Shares at a price of CAD$0.20 per share pursuant to the exercise of outstanding warrants. The shares were issued to non-US Persons pursuant to the provisions of Regulation S promulgated under the Securities Act. |
| 30. | On December 2, 2021, we issued 18,120 Common Shares at a price of CAD$0.25 per share pursuant to the exercise of outstanding warrants. The shares were issued to non-US Persons pursuant to the provisions of Regulation S promulgated under the Securities Act. |
31.
|
On December 21, 2021, we issued 666,667 Common Shares, at a price of CAD$0.20 per share pursuant to the exercise of outstanding warrants. The shares were issued to non-US Persons pursuant to the provisions of Regulation S promulgated under the Securities Act. |
| 32. | On December 23, 2021, we issued 218,333 Common Shares at a price of CAD$0.20 per share pursuant to the exercise of outstanding warrants. The shares were issued pursuant to the provisions of Rule 506 of Regulation D as each of the subscribers represented that they were accredited investors as defined in Rule 501 of Regulation D. |
| 33. | On December 23, 2021, we issued 1,300,000 Common Shares at a price of CAD$0.44 per share pursuant for professional services. The shares were issued pursuant to the provisions of Rule 506 of Regulation D as each of the subscribers represented that they were accredited investors as defined in Rule 501 of Regulation D. |
| 34. | On January 11, 2022, we issued 35,000 Common Shares at a price of CAD$0.25 per share pursuant to the exercise of outstanding warrants. The shares were issued to non-US Persons pursuant to the provisions of Regulation S promulgated under the Securities Act. |
| 92 |
| 35. | On January 17, 2022, we issued 249,000 Common Shares at a price of CAD$0.20 per share pursuant to the exercise of outstanding options/warrants. The shares were issued to non-US Persons pursuant to the provisions of Regulation S promulgated under the Securities Act. |
| 36. | On February 21, 2022, we issued 100,000 Common Shares at a price of CAD$0.15 per share pursuant to the exercise of outstanding warrants. The shares were issued to non-US Persons pursuant to the provisions of Regulation S promulgated under the Securities Act. |
| 37. | On April 18, 2022, we issued 2,321,585 units at a price of CAD$0.35 per unit. Each unit consists of one Common Share and one half of one whole share purchase warrant with each warrant entitling the holder to purchase an additional share at a price of CAD$0.70 per share for a two-year term. 997,199 units were issued to non-US Persons pursuant to the provisions of Regulation S promulgated under the Securities Act and 1,324,386 units were issued pursuant to the provisions of Rule 506 of Regulation D as each of the subscribers represented that they were accredited investors as defined in Rule 501 of Regulation D. |
| 38. | On May 2, 2022, we issued 150,000 Common Shares at a price of CAD$0.375 per share for professional services. The shares were issued pursuant to the provisions of Rule 506 of Regulation D as each of the subscribers represented that they were accredited investors as defined in Rule 501 of Regulation D. |
| 39. | On July 6, 2022, we issued 265,000 Common at a price of CAD$0.15 per share pursuant to the exercise of outstanding warrants. The shares were issued to non-US Persons pursuant to the provisions of Regulation S promulgated under the Securities Act. |
| 40. | On July 28, 2022, we issued 48,334 Common Shares at a price of CAD$0.15 per share pursuant to the exercise of outstanding warrants. The shares were issued to non-US Persons pursuant to the provisions of Regulation S promulgated under the Securities Act. |
41.
|
On August 8, 2022, we issued 105,334 Common Shares at a price of CAD$0.15 per share pursuant to the exercise of outstanding warrants. The shares were issued to non-US Persons pursuant to the provisions of Regulation S promulgated under the Securities Act. |
| 42. | On August 12, 2022, we issued 50,000 Common Shares at a price of CAD$0.15 per share pursuant to the exercise of outstanding warrants. The shares were issued to non-US Persons pursuant to the provisions of Regulation S promulgated under the Securities Act. |
| 93 |
EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
Exhibit Number |
Description of Exhibit | |
| 1.1* | Underwriting Agreement | |
| 3.1 | Certificate of Incorporation | |
| 3.2 | Certificate of Name Change | |
| 3.3 | Notice of Articles | |
| 3.4 | Articles | |
| 4.1* | Form of Representative’s Warrants | |
| 5.1* | Opinion of Northwest Law Group | |
| 10.1 | License Agreement dated April 3, 2017 between GlobeX Data S.A. and GlobeX US. | |
| 10.2 | License Agreement dated May 7, 2017 between GlobeX Data S.A. and the Company. | |
| 10.3 | Purchase Agreement dated March 29, 2018 between Alain Mehdi Ghiai-Chamlou, GlobeX GlobeX US and the Company. | |
| 10.4 | Addendum (the “Addendum”) to the Global License Agreement between GlobeX Data S.A. and the Company dated July 21, 2022. | |
| 21.1 | List of Subsidiaries | |
| 23.1* | Consent of Northwest Law Group (included in Exhibit 5.1) | |
| 23.2* | Consent of Auditors | |
| 107 | Filing Fee Table |
*To be filed by amendment.
| 94 |
The undersigned registrant hereby undertakes:
| 1. | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
| (a) | To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; | |
| (b) | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in the volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and | |
| (c) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. |
| 2. | That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| 3. | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
| 4. | To file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A. of Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Act need not be furnished, provided that the registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (4) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements. |
| 5. | That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser, each prospectus field pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use. |
| 6. | That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
| (a) | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
| (b) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; | |
| (c) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and | |
| (d) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
| 7. | Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act, and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer, or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer, or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. |
| 95 |
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-1 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Vancouver, Province of British Columbia, Canada, on September 16, 2022.
| SEKUR PRIVATE DATA LTD. | ||
| By: | /s/ Alain Ghiai-Chamlou | |
| ALAIN GHIAI-CHAMLOU | ||
Chief Executive Officer, President and Secretary (Principal Executive Officer) | ||
| By: | /s/ Scott Davis | |
| SCOTT DAVIS | ||
Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) | ||
| 96 |
Each person whose signature appears below constitutes and appoints Alain Ghiai-Chamlou and Scott Davis, and each of them individually, in his or her true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, for and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement and any subsequent registration statement that we may hereafter file with the Securities and Exchange Commission pursuant to Rule 462(b) under the Securities Act of 1933, as amended, to register additional securities in connection with this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, fully power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or either of them individually, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
| Date: | September 16, 2022 | /s/ Alain Ghiai-Chamlou | |
| ALAIN GHIAI-CHAMLOU | |||
| Chief Executive Officer, President and Director (Principal Executive Officer) | |||
| Date: | September 16, 2022 | /s/ Scott Davis | |
| SCOTT DAVIS | |||
| Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) | |||
| Date: | September 16, 2022 | /s/ Henry Sjoman | |
| HENRY SJOMAN | |||
| Director | |||
| Date: | September 16, 2022 | /s/ Amir Assar | |
| AMIR ASSAR | |||
| Director | |||
Globex Data Inc. | |||
| Date: | September 16, 2022 | /s/ Alain Ghia-Chamlou | |
| Alain Ghiai-Chamlou | |||
| Authorized Representative in the United States |
| 97 |
Exhibit 3.1
Exhibit 3.2
Exhibit 3.3
Exhibit 3.4
Articles
of
GLOBEX DATA LTD.
Incorporation number: BC1109261
TABLE OF CONTENTS
Page No. | ||
| 1. | Interpretation | 2 |
| 2. | Shares and Share Certificates | 2 |
| 3. | Issue of Shares | 4 |
| 4. | Share Registers | 5 |
| 5. | Share Transfers | 5 |
| 6. | Transmission of Shares | 6 |
| 7. | Purchase of Shares | 7 |
| 8. | Borrowing Powers | 7 |
| 9. | Alterations | 8 |
| 10. | Meetings of Shareholders | 9 |
| 11. | Proceedings at Meetings of Shareholders | 11 |
| 12. | Votes of Shareholders | 14 |
| 13. | Directors | 18 |
| 14. | Election and Removal of Directors | 19 |
| 15. | Alternate Directors | 22 |
| 16. | Powers and Duties of Directors | 23 |
| 17. | Disclosure of Interest of Directors | 24 |
| 18. | Proceedings of Directors | 25 |
| 19. | Executive and Other Committees | 27 |
| 20. | Officers | 29 |
| 21. | Indemnification | 30 |
| 22. | Dividends | 31 |
| 23. | Documents, Records and Reports | 33 |
| 24. | Notices | 33 |
| 25. | Seal | 34 |
| 26. | Prohibitions | 35 |
| 27. | Special Rights And Restrictions | 36 |
| 1.1 | Definitions |
In these Articles, the following words and phrases have the meanings set out beside them:
| (1) | “board of directors”, “directors” and “board” mean the directors or sole director of the Company for the time being; |
| (2) | “Business Corporations Act” means the Business Corporations Act (British Columbia) from time to time in force and all amendments thereto and includes all regulations and amendments thereto made pursuant to that Act; |
| (3) | “Company” means the company whose name is set out at the top of page 1, being the company which has adopted these Articles; |
| (4) | “Interpretation Act” means the Interpretation Act (British Columbia) from time to time in force and all amendments thereto and includes all regulations and amendments thereto made pursuant to that Act; |
| (4) | “legal personal representative” means the personal or other legal representative of the shareholder; |
| (5) | “registered address” of a shareholder means the shareholder’s address as recorded in the central securities register; |
| (6) | “seal” means the seal of the Company, if any. |
| 1.2 | Business Corporations Act and Interpretation Act Definitions Applicable |
The definitions in the Business Corporations Act and the definitions and rules of construction in the Interpretation Act, with the necessary changes, so far as applicable, and unless the context requires otherwise, apply to these Articles as if they were an enactment. If there is a conflict between a definition in the Business Corporations Act and a definition or rule in the Interpretation Act relating to a term used in these Articles, the definition in the Business Corporations Act will prevail in relation to the use of the term in these Articles. If there is a conflict between these Articles and the Business Corporations Act, the Business Corporations Act will prevail.
2. Shares and Share Certificates
| 2.1 | Authorized Share Structure |
The authorized share structure of the Company consists of shares of the kinds, classes and, if any, series described in the Notice of Articles of the Company.
| 2 |
| 2.2 | Form of Share Certificate |
Each share certificate issued by the Company must comply with, and be signed as required by, the Business Corporations Act.
| 2.3 | Shareholder Entitled to Certificate or Acknowledgment |
Each shareholder is entitled, without charge, to (a) one share certificate representing the shares of each class or series of shares registered in the shareholder’s name or (b) a non-transferable written acknowledgment of the shareholder’s right to obtain such a share certificate, but in respect of a share held jointly by several persons, the Company is not bound to issue more than one share certificate and delivery of a share certificate for a share to one of several joint shareholders or to one of the shareholders’ duly authorized agents will be sufficient delivery to all.
| 2.4 | Delivery by Mail |
Any share certificate or non-transferable written acknowledgment of a shareholder’s right to obtain a share certificate may be sent to the shareholder by mail at the shareholder’s registered address and neither the Company nor any director, officer or agent of the Company is liable for any loss to the shareholder because the share certificate or acknowledgement is lost in the mail or stolen.
| 2.5 | Replacement of Worn Out or Defaced Certificate or Acknowledgement |
If the directors are satisfied that a share certificate or a non-transferable written acknowledgment of the shareholder’s right to obtain a share certificate is worn out or defaced, they must, on production to them of the share certificate or acknowledgment, as the case may be, and on such other terms, if any, as they think fit:
| (1) | order the share certificate or acknowledgment, as the case may be, to be cancelled; and |
| (2) | issue a replacement share certificate or acknowledgment, as the case may be. |
| 2.6 | Replacement of Lost, Stolen or Destroyed Certificate or Acknowledgment |
If a share certificate or a non-transferable written acknowledgment of a shareholder’s right to obtain a share certificate is lost, stolen or destroyed, a replacement share certificate or acknowledgment, as the case may be, must be issued to the person entitled to that share certificate or acknowledgment, as the case may be, if the directors receive:
| (1) | proof satisfactory to them that the share certificate or acknowledgment is lost, stolen or destroyed; and |
| (2) | any indemnity the directors consider adequate. |
| 2.7 | Splitting Share Certificates |
If a shareholder surrenders a share certificate to the Company with a written request that the Company issue in the shareholder’s name two or more share certificates, each representing a specified number of shares and in the aggregate representing the same number of shares as the share certificate so surrendered, the Company must cancel the surrendered share certificate and issue replacement share certificates in accordance with that request.
| 3 |
| 2.8 | Certificate Fee |
There must be paid to the Company, in relation to the issue of any share certificate under Articles 2.5, 2.6 or 2.7, the amount, if any and which must not exceed the amount prescribed under the Business Corporations Act, determined by the directors.
| 2.9 | Recognition of Trusts |
Except as required by law or statute or these Articles, no person will be recognized by the Company as holding any share upon any trust, and the Company is not bound by or compelled in any way to recognize (even when having notice thereof) any equitable, contingent, future or partial interest in any share or fraction of a share or (except as by law or statute or these Articles provided or as ordered by a court of competent jurisdiction) any other rights in respect of any share except an absolute right to the entirety thereof in the shareholder.
| 3.1 | Directors Authorized |
Subject to the rights of the holders of issued shares of the Company, the Company may allot, sell, issue and otherwise dispose of the unissued shares, and issued shares held by the Company, at the times, to the persons, including directors, in the manner, on the terms and conditions and for the issue prices (including any premium at which shares with par value may be issued) that the directors may determine. The issue price for a share with par value must be equal to or greater than the par value of the share.
| 3.2 | Commissions and Discounts |
The Company may pay at any time a reasonable commission or allow a reasonable discount to any person in consideration of that person purchasing or agreeing to purchase shares of the Company from the Company or any other person or procuring or agreeing to procure purchasers for shares of the Company.
| 3.3 | Brokerage |
The Company may pay such brokerage fee or other consideration as may be lawful for or in connection with the sale or placement of its securities.
| 3.4 | Conditions of Issue |
Except as provided for by the Business Corporations Act, no share may be issued until it is fully paid. A share is fully paid when:
| (1) | consideration is provided to the Company for the issue of the share by one or more of the following: |
| (a) | past services performed for the Company; | |
| (b) | property; | |
| (c) | money; and |
| 4 |
| (2) | the value of the consideration received by the Company equals or exceeds the issue price set for the share under Article 3.1. |
| 3.5 | Share Purchase Warrants and Rights |
The Company may issue share purchase warrants, options and rights upon such terms and conditions as the directors determine, which share purchase warrants, options and rights may be issued alone or in conjunction with debentures, debenture stock, bonds, shares or any other securities issued or created by the Company from time to time.
| 4.1 | Central Securities Register |
The Company must maintain in British Columbia a central securities register as required by the Business Corporations Act. The directors may appoint:
| (1) | an agent to maintain the central securities register; and |
| (2) | one or more agents, including the agent which keeps the central securities register, as transfer agent for its shares or any class or series of its shares, as the case may be, and the same or another agent as registrar for its shares or such class or series of its shares. |
The directors may terminate such appointment of any agent at any time and may appoint another agent in its place.
| 4.2 | Closing Register |
The Company must not at any time close its central securities register.
| 5.1 | Registering Transfers |
A transfer of a share of the Company must not be registered unless:
| (1) | a duly signed instrument of transfer in respect of the share has been received by the Company; |
| (2) | if a share certificate has been issued by the Company in respect of the share to be transferred, that share certificate has been surrendered to the Company; and |
| (3) | if a non-transferable written acknowledgment of the shareholder’s right to obtain a share certificate has been issued by the Company in respect of the share to be transferred, that acknowledgment has been surrendered to the Company. |
| 5 |
| 5.2 | Form of Instrument of Transfer |
The instrument of transfer in respect of any share of the Company must be either in the form, if any, on the back of the Company’s share certificates or in any other form that may be approved by the directors from time to time.
| 5.3 | Transferor Remains Shareholder |
Except to the extent that the Business Corporations Act otherwise provides, the transferor of shares is deemed to remain the holder of the shares until the name of the transferee is entered in a securities register of the Company in respect of the transfer.
| 5.4 | Signing of Instrument of Transfer |
If a shareholder, or their duly authorized attorney, signs an instrument of transfer in respect of shares registered in the name of the shareholder, the signed instrument of transfer constitutes a complete and sufficient authority to the Company and its directors, officers and agents to register the number of shares specified in the instrument of transfer or specified in any other manner, or, if no number is specified, all the shares represented by the share certificates or set out in the written acknowledgments deposited with the instrument of transfer:
| (1) | in the name of the person named as transferee in that instrument of transfer; or |
| (2) | if no person is named as transferee in that instrument of transfer, in the name of the person on whose behalf the instrument is deposited for the purpose of having the transfer registered. |
| 5.5 | Enquiry as to Title Not Required |
Neither the Company nor any director, officer or agent of the Company is bound to inquire into the title of the person named in the instrument of transfer as transferee or, if no person is named as transferee in the instrument of transfer, of the person on whose behalf the instrument is deposited for the purpose of having the transfer registered or is liable for any claim related to registering the transfer by the shareholder or by any intermediate owner or holder of the shares, of any interest in the shares, of any share certificate representing such shares or of any written acknowledgment of a right to obtain a share certificate for such shares.
| 5.6 | Transfer Fee |
There must be paid to the Company, in relation to the registration of any transfer, the amount, if any, determined by the directors.
| 6.1 | Legal Personal Representative Recognized on Death |
In case of the death of a shareholder, the legal personal representative, or if the shareholder was a joint holder, the surviving joint holder, will be the only person recognized by the Company as having any title to the shareholder’s interest in the shares. Before recognizing a person as a legal personal representative, the directors may require proof of appointment by a court of competent jurisdiction, a grant of letters probate, letters of administration or such other evidence or documents as the directors consider appropriate.
| 6 |
| 6.2 | Rights of Legal Personal Representative |
The legal personal representative has the same rights, privileges and obligations that attach to the shares held by the shareholder, including the right to transfer the shares in accordance with these Articles, provided the documents required by the Business Corporations Act and the directors have been deposited with the Company.
| 7.1 | Company Authorized to Purchase Shares |
Subject to Article 7.2 and the special rights and restrictions attached to the shares of any class or series, the Company, if authorized by the directors, may purchase or otherwise acquire any of its shares at the price and upon the terms specified in such resolution.
| 7.2 | Purchase When Insolvent |
The Company must not make a payment or provide any other consideration to purchase or otherwise acquire any of its shares if there are reasonable grounds for believing that:
| (1) | the Company is insolvent; or |
| (2) | making the payment or providing the consideration would render the Company insolvent. |
| 7.3 | Sale and Voting of Purchased Shares |
If the Company retains a share redeemed, purchased or otherwise acquired by it, the Company may sell, gift or otherwise dispose of the share, but, while such share is held by the Company, it:
| (1) | is not entitled to vote the share at a meeting of its shareholders; |
| (2) | must not pay a dividend in respect of the share; and |
| (3) | must not make any other distribution in respect of the share. |
The Company, if authorized by the directors, may:
| (1) | borrow money in the manner and amount, on the security, from the sources and on the terms and conditions that they consider appropriate; |
| (2) | issue bonds, debentures and other debt obligations either outright or as security for any liability or obligation of the Company or any other person and at such discounts or premiums and on such other terms as they consider appropriate; |
| 7 |
| (3) | guarantee the repayment of money by any other person or the performance of any obligation of any other person; and |
| (4) | mortgage, charge, whether by way of specific or floating charge, grant a security interest in, or give other security on, the whole or any part of the present and future assets and undertaking of the Company. |
| 9.1 | Alteration of Authorized Share Structure |
Subject to Article 9.2, the Company may by:
| (1) | a resolution of its board of directors |
| (a) | increase, reduce or eliminate the maximum number of shares that the Company is authorized to issue out of any class or series of shares or establish a maximum number of shares that the Company is authorized to issue out of any class or series of shares for which no maximum is established; | |
| (b) | change all or any of its unissued, or fully paid issued, shares with par value into shares without par value or any of its unissued shares without par value into shares with par value; | |
| (c) | alter the identifying name of any of its shares; and | |
| (d) | subdivide or consolidate all or any of its unissued, or fully paid issued, shares. |
| (2) | an ordinary resolution: |
| (a) | create one or more classes or series of shares or, if none of the shares of a class or series of shares are allotted or issued, eliminate that class or series of shares; and | |
| (b) | if the Company is authorized to issue shares of a class of shares with par value: |
| (i) | decrease the par value of those shares; and | |
| (ii) | if none of the shares of that class of shares are allotted or issued, increase the par value of those shares. |
| (3) | a special resolution, otherwise alter its shares or authorized share structure when required or permitted to do so by the Business Corporations Act. |
| 9.2 | Special Rights and Restrictions |
The Company may by ordinary resolution:
| (1) | create special rights or restrictions for, and attach those special rights or restrictions to, the shares of any class or series of shares, unless any of those shares have been issued in which case the Company may do so only by special resolution; or |
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| (2) | vary or delete any special rights or restrictions attached to the shares of any class or series of shares, unless any of those shares have been issued in which case the Company may do so only by special resolution. |
| 9.3 | Change of Name |
The Company may by a resolution of its board of directors authorize an alteration of its Notice of Articles to change its name or adopt or change any translation of that name.
| 9.4 | Other Alterations |
If the Business Corporations Act does not specify the type of resolution and these Articles do not specify another type of resolution, the Company may by special resolution alter these Articles.
| 10.1 | Annual General Meetings |
The Company must, unless an annual general meeting is deferred or waived in accordance with the Business Corporations Act, hold its first annual general meeting following incorporation, amalgamation or continuation within 18 months after the date on which it was incorporated or otherwise created and recognized, and after that must hold an annual general meeting at least once in each calendar year and not more than 15 months after the last annual reference date at such time and place as may be determined by the directors; and
| 10.2 | Resolution Instead of Annual General Meeting |
If all the shareholders entitled to vote at an annual general meeting consent by a unanimous resolution under the Business Corporations Act to all of the business required to be transacted at that annual general meeting, the meeting is deemed to have been held on the date of the unanimous resolution. The shareholders must, in any unanimous resolution passed under this Article 10.2, select as the Company’s annual reference date a date that would be appropriate for the holding of the applicable annual general meeting.
| 10.3 | Calling and Location of Meetings of Shareholders |
The directors may, whenever they think fit, call a meeting of shareholders. Meetings of the shareholders of the Company shall be held at such place, either within or without the Province of British Columbia, as may be designated from time to time by the Board of Directors, or, if not so designated, then at the office of the Company.
| 10.4 | Notice for Meetings of Shareholders |
The Company must send notice of the date, time and location of any meeting of shareholders, in the manner provided in these Articles, or in such other manner, if any, as may be prescribed by ordinary resolution (whether previous notice of the resolution has been given or not), to each shareholder entitled to attend the meeting, to each director and to the auditor of the Company, unless these Articles otherwise provide, at least the following number of days before the meeting:
| (1) | if and for so long as the Company is a public company, 21 days; |
| (2) | otherwise, 10 days. |
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| 10.5 | Record Date for Notice |
The directors may set a date as the record date for the purpose of determining shareholders entitled to notice of any meeting of shareholders. The record date must not precede the date on which the meeting is to be held by more than two months or, in the case of a general meeting requisitioned by shareholders under the Business Corporations Act, by more than four months. The record date must not precede the date on which the meeting is held by fewer than:
| (1) | if and for so long as the Company is a public company, 21 days; |
| (2) | otherwise, 10 days. |
If no record date is set, it is 5:00 p.m. on the business day immediately preceding the first date on which the notice is sent or, if no notice is sent, the beginning of the meeting.
| 10.6 | Record Date for Voting |
The directors may set a date as the record date for the purpose of determining shareholders entitled to vote at any meeting of shareholders. The record date must not precede the date on which the meeting is to be held by more than two months or, in the case of a general meeting requisitioned by shareholders under the Business Corporations Act, by more than four months. If no record date is set, the record date is 5 p.m. on the day immediately preceding the first date on which the notice is sent or, if no notice is sent, the beginning of the meeting.
| 10.7 | Failure to Give Notice and Waiver of Notice |
The accidental omission to send notice of any meeting to, or the non-receipt of any notice by, any of the persons entitled to notice does not invalidate any proceedings at that meeting. Any person entitled to notice of a meeting of shareholders may, in writing or otherwise, waive or reduce the period of notice of such meeting.
| 10.8 | Notice of Special Business at Meetings of Shareholders |
If a meeting of shareholders is to consider special business within the meaning of Article 11.1, the notice of meeting must:
| (1) | state the general nature of the special business; and |
| (2) | if the special business includes considering, approving, ratifying, adopting or authorizing any document or the signing of or giving of effect to any document, have attached to it a copy of the document or state that a copy of the document will be available for inspection by shareholders: |
| (a) | at the Company’s records office, or at such other reasonably accessible location in British Columbia as is specified in the notice; and | |
| (b) | during statutory business hours on any one or more specified days before the day set for the holding of the meeting. |
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11. Proceedings at Meetings of Shareholders
| 11.1 | Special Business |
At a meeting of shareholders, the following business is special business:
| (1) | at a meeting of shareholders that is not an annual general meeting, all business is special business except business relating to the conduct of or voting at the meeting; |
| (2) | at an annual general meeting, all business is special business except for the following: |
| (a) | business relating to the conduct of or voting at the meeting; | |
| (b) | consideration of any financial statements of the Company presented to the meeting; | |
| (c) | consideration of any reports of the directors or auditor; | |
| (d) | the setting or changing of the number of directors; | |
| (e) | the election or appointment of directors; | |
| (f) | the appointment of an auditor; | |
| (g) | the setting of the remuneration of an auditor; | |
| (h) | business arising out of a report of the directors not requiring the passing of a special resolution or an exceptional resolution; and | |
| (i) | any other business which, under these Articles or the Business Corporations Act, may be transacted at a meeting of shareholders without prior notice of the business being given to the shareholders. |
| 11.2 | Special Majority |
The majority of votes required for the Company to pass a special resolution at a meeting of shareholders is two-thirds of the votes cast on the resolution.
| 11.3 | Quorum |
Subject to the special rights and restrictions attached to the shares of any class or series of shares, the quorum for the transaction of business at a meeting of shareholders is two shareholders who are present in person or represented by proxy.
| 11.4 | One Shareholder May Constitute Quorum |
If there is only one shareholder entitled to vote at a meeting of shareholders:
| (1) | the quorum is one person who is, or who represents by proxy, that shareholder, and |
| (2) | that shareholder, present in person or by proxy, may constitute the meeting. |
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| 11.5 | Other Persons May Attend |
The directors, the president (if any), the secretary (if any), the assistant secretary (if any), any lawyer for the Company, the auditor of the Company and any other persons invited by the directors are entitled to attend any meeting of shareholders, but if any of those persons does attend a meeting of shareholders, that person is not to be counted in the quorum and is not entitled to vote at the meeting unless that person is a shareholder or proxy holder entitled to vote at the meeting.
| 11.6 | Requirement of Quorum |
No business, other than the election of a chair of the meeting and the adjournment of the meeting, may be transacted at any meeting of shareholders unless a quorum of shareholders entitled to vote is present at the commencement of the meeting, but such quorum need not be present throughout the meeting.
| 11.7 | Lack of Quorum |
If, within one-half hour from the time set for the holding of a meeting of shareholders, a quorum is not present:
| (1) | in the case of a general meeting requisitioned by shareholders, the meeting is dissolved, and |
| (2) | in the case of any other meeting of shareholders, the meeting stands adjourned to the same day in the next week at the same time and place. |
| 11.8 | Lack of Quorum at Succeeding Meeting |
If, at the meeting to which the meeting referred to in Article 11.7(2) was adjourned, a quorum is not present within one-half hour from the time set for the holding of the meeting, the person or persons present and being, or representing by proxy, one or more shareholders entitled to attend and vote at the meeting constitute a quorum.
| 11.9 | Chair |
The following individuals are entitled to preside as chair at a meeting of shareholders:
| (1) | the chair of the board, if any; or |
| (2) | if the chair of the board is absent or unwilling to act as chair of the meeting, the first of the following individuals to agree to act as chair: the president, if any. |
| 11.10 | Selection of Alternate Chair |
If, at any meeting of shareholders, the chair of the board or president are not present within 15 minutes after the time set for holding the meeting, or if the chair of the board and the president are unwilling to act as chair of the meeting, or if the chair of the board and the president have advised the secretary, if any, or any director present at the meeting, that they will not be present at the meeting, one of the chief executive officer, the chief financial officer, a vice-president, the secretary or the Company’s legal counsel may act as chair of the meeting and, failing them, the directors present must choose one of their number to be chair of the meeting or if all of the directors present decline to take the chair or fail to so choose or if no director is present, the shareholders entitled to vote at the meeting who are present in person or by proxy may choose any person present at the meeting to chair the meeting.
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| 11.11 | Adjournments |
The chair of a meeting of shareholders may, and if so directed by the meeting must, adjourn the meeting from time to time and from place to place, but no business may be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place.
| 11.12 | Notice of Adjourned Meeting |
It is not necessary to give any notice of an adjourned meeting or of the business to be transacted at an adjourned meeting of shareholders except that, when a meeting is adjourned for 30 days or more, notice of the adjourned meeting must be given as in the case of the original meeting.
| 11.13 | Decisions by Show of Hands or Poll |
Every motion put to a vote at a meeting of shareholders will be decided on a show of hands unless a poll, before or on the declaration of the result of the vote by show of hands, is directed by the chair or demanded by at least one shareholder entitled to vote who is present in person or by proxy.
| 11.14 | Declaration of Result |
The chair of a meeting of shareholders must declare to the meeting the decision on every question in accordance with the result of the show of hands or the poll, as the case may be, and that decision must be entered in the minutes of the meeting. A declaration of the chair that a resolution is carried by the necessary majority or is defeated is, unless a poll is directed by the chair or demanded under Article 11.13, conclusive evidence without proof of the number or proportion of the votes recorded in favour of or against the resolution.
| 11.15 | Motion Need Not be Seconded |
No motion proposed at a meeting of shareholders need be seconded unless the chair of the meeting rules otherwise, and the chair of any meeting of shareholders is entitled to propose or second a motion.
| 11.16 | Casting Vote |
In case of an equality of votes, the chair of a meeting of shareholders does not, either on a show of hands or on a poll, have a second or casting vote in addition to the vote or votes to which the chair may be entitled as a shareholder.
| 11.17 | Manner of Taking Poll |
Subject to Article 11.18, if a poll is duly demanded at a meeting of shareholders:
| (1) | the poll must be taken: |
| (a) | at the meeting, or within seven days after the date of the meeting, as the chair of the meeting directs; and | |
| (b) | in the manner, at the time and at the place that the chair of the meeting directs; |
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| (2) | the result of the poll is deemed to be the decision of the meeting at which the poll is demanded; and |
| (3) | the demand for the poll may be withdrawn by the person who demanded it. |
| 11.18 | Demand for Poll on Adjournment |
A poll demanded at a meeting of shareholders on a question of adjournment must be taken immediately at the meeting.
| 11.19 | Chair Must Resolve Dispute |
In the case of any dispute as to the admission or rejection of a vote given on a poll, the chair of the meeting must determine the dispute, and their determination made in good faith is final and conclusive.
| 11.20 | Casting of Votes |
On a poll, a shareholder entitled to more than one vote need not cast all the votes in the same way.
| 11.21 | Demand for Poll |
No poll may be demanded in respect of the vote by which a chair of a meeting of shareholders is elected.
| 11.22 | Demand for Poll Not to Prevent Continuance of Meeting |
The demand for a poll at a meeting of shareholders does not, unless the chair of the meeting so rules, prevent the continuation of a meeting for the transaction of any business other than the question on which a poll has been demanded.
| 11.23 | Retention of Ballots and Proxies |
The Company must, for at least three months after a meeting of shareholders, keep each ballot cast on a poll and each proxy voted at the meeting at its records office, and, during that period, make them available for inspection during normal business hours by any shareholder or proxyholder entitled to vote at the meeting. At the end of such three month period, the Company may destroy such ballots and proxies.
| 12.1 | Number of Votes by Shareholder or by Shares |
Subject to any special rights or restrictions attached to any shares and to the restrictions imposed on joint shareholders under Article 12.3:
| (1) | on a vote by show of hands, every person present who is a shareholder or proxy holder and entitled to vote on the matter has one vote; and |
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| (2) | on a poll, every shareholder entitled to vote on the matter has one vote in respect of each share entitled to be voted on the matter and held by that shareholder and may exercise that vote either in person or by proxy. |
| 12.2 | Votes of Persons in Representative Capacity |
A person who is not a shareholder may vote at a meeting of shareholders, whether on a show of hands or on a poll, and may appoint a proxy holder to act at the meeting, if, before doing so, the person satisfies the chair of the meeting, or the directors, that the person is a legal personal representative or a trustee in bankruptcy for a shareholder who is entitled to vote at the meeting.
| 12.3 | Votes by Joint Holders |
If there are joint shareholders registered in respect of any share:
| (1) | any one of the joint shareholders may vote at any meeting, either personally or by proxy, in respect of the share as if that joint shareholder were solely entitled to it; or |
| (2) | if more than one of the joint shareholders is present at any meeting, personally or by proxy, and more than one of them votes in respect of that share, then only the vote of the joint shareholder present whose name stands first on the central securities register in respect of the share will be counted. |
| 12.4 | Legal Personal Representatives as Joint Shareholders |
Two or more legal personal representatives of a shareholder in whose sole name any share is registered are, for the purposes of Article 12.3, deemed to be joint shareholders.
| 12.5 | Representative of a Corporate Shareholder |
If a corporation, that is not a subsidiary of the Company, is a shareholder, that corporation may appoint a person to act as its representative at any meeting of shareholders of the Company, and:
| (1) | for that purpose, the instrument appointing a representative must: |
| (a) | be received at the registered office of the Company or at any other place specified, in the notice calling the meeting, for the receipt of proxies, at least the number of business days specified in the notice for the receipt of proxies, or if no number of days is specified, two business days before the day set for the holding of the meeting; or | |
| (b) | be provided, at the meeting, to the chair of the meeting or to a person designated by the chair of the meeting; |
| (2) | if a representative is appointed under this Article 12.5: |
| (a) | the representative is entitled to exercise in respect of and at that meeting the same rights on behalf of the corporation that the representative represents as that corporation could exercise if it were a shareholder who is an individual, including, without limitation, the right to appoint a proxy holder; and | |
| (b) | the representative, if present at the meeting, is to be counted for the purpose of forming a quorum and is deemed to be a shareholder present in person at the meeting. |
Evidence of the appointment of any such representative may be sent to the Company by written instrument, fax or any other method of transmitting legibly recorded messages.
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| 12.6 | Proxy Provisions Do Not Apply to All Companies |
Articles 12.9 and 12.12 do not apply to the Company if and for so long as it is a public company or a pre-existing reporting company which has the Statutory Reporting Company Provisions as part of its Articles or to which the Statutory Reporting Company Provisions apply.
| 12.7 | Appointment of Proxy Holders |
Every shareholder of the Company, including a corporation that is a shareholder but not a subsidiary of the Company, entitled to vote at a meeting of shareholders of the Company may, by proxy, appoint one or more (but not more than five) proxy holders to attend and act at the meeting in the manner, to the extent and with the powers conferred by the proxy.
| 12.8 | Alternate Proxy Holders |
A shareholder may appoint one or more alternate proxy holders to act in the place of an absent proxy holder.
| 12.9 | When Proxy Holder Need Not Be Shareholder |
Subject to Article 12.6, a person must not be appointed as a proxy holder unless the person is a shareholder, although a person who is not a shareholder may be appointed as a proxy holder if:
| (1) | the person appointing the proxy holder is a corporation or a representative of a corporation appointed under Article 12.5; |
| (2) | the Company has at the time of the meeting for which the proxy holder is to be appointed only one shareholder entitled to vote at the meeting; or |
| (3) | the shareholders present in person or by proxy at and entitled to vote at the meeting for which the proxy holder is to be appointed, by a resolution on which the proxy holder is not entitled to vote but in respect of which the proxy holder is to be counted in the quorum, permit the proxy holder to attend and vote at the meeting. |
| 12.10 | Deposit of Proxy |
A proxy for a meeting of shareholders must:
| (1) | be received at the registered office of the Company or at any other place specified, in the notice calling the meeting, for the receipt of proxies, at least the number of business days specified in the notice, or if no number of days is specified, two business days before the day set for the holding of the meeting; or |
| (2) | unless the notice provides otherwise, be provided, at the meeting, to the chair of the meeting or to a person designated by the chair of the meeting. |
A proxy may be sent to the Company by written instrument, fax or any other method of transmitting legibly recorded messages.
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| 12.11 | Validity of Proxy Vote |
A vote given in accordance with the terms of a proxy is valid notwithstanding the death or incapacity of the shareholder giving the proxy and despite the revocation of the proxy or the revocation of the authority under which the proxy is given, unless notice in writing of that death, incapacity or revocation is received:
| (1) | at the registered office of the Company, at any time up to and including the last business day before the day set for the holding of the meeting at which the proxy is to be used; or |
| (2) | by the chair of the meeting, before the vote is taken. |
| 12.12 | Form of Proxy |
Subject to Article 12.6, a proxy, whether for a specified meeting or otherwise, must be either in the following form or in any other form approved by the directors or the chair of the meeting:
[name of company]
(the “Company”)
The undersigned, being a shareholder of the Company, hereby appoints [name] or, failing that person, [name], as proxy holder for the undersigned to attend, act and vote for and on behalf of the undersigned at the meeting of shareholders of the Company to be held on [month, day, year] and at any adjournment of that meeting.
Number of shares in respect of which this proxy is given (if no number is specified, then this proxy if given in respect of all shares registered in the name of the shareholder): _____________________
| Signed [month, day, year] | |
| [Signature of shareholder] | |
| [Name of shareholder—printed] |
| 12.13 | Revocation of Proxy |
Every proxy may be revoked by an instrument in writing that is:
| (1) | received at the registered office of the Company at any time up to and including the last business day before the day set for the holding of the meeting at which the proxy is to be used; or |
| (2) | provided, at the meeting, to the chair of the meeting. |
| 12.14 | Revocation of Proxy Must Be Signed |
An instrument referred to in Article 12.13 must be signed as follows:
| (1) | if the shareholder for whom the proxy holder is appointed is an individual, the instrument must be signed by the shareholder or their legal personal representative or trustee in bankruptcy; |
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| (2) | if the shareholder for whom the proxy holder is appointed is a corporation, the instrument must be signed by the corporation or by a representative appointed for the corporation under Article 12.5. |
| 12.15 | Production of Evidence of Authority to Vote |
The chair of any meeting of shareholders may, but need not, inquire into the authority of any person to vote at the meeting and may, but need not, demand from that person production of evidence as to the existence of the authority to vote.
| 13.1 | First Directors; Number of Directors |
The directors, or the first directors after the Company being incorporated, amalgamated or continued, are the persons designated as directors of the Company in the Notice of Articles that applies to the Company when it is recognized under the Business Corporations Act. The number of directors, excluding additional directors appointed under Article 14.8, is set at:
| (1) | subject to paragraphs (2) and (3), the number of directors that is equal to the number of the Company’s first directors; |
| (2) | if the Company is a public company, the greater of three and the most recently set of: |
| (a) | the number of directors set by ordinary resolution (whether or not previous notice of the resolution was given); and | |
| (b) | the number of directors set under Article 14.4; |
| (3) | if the Company is not a public company, the most recently set of: |
| (a) | the number of directors set by ordinary resolution (whether or not previous notice of the resolution was given); and | |
| (b) | the number of directors set under Article 14.4. |
| 13.2 | Change in Number of Directors |
If the number of directors is set under Articles 13.1(2)(a) or 13.1(3)(a):
| (1) | the shareholders may elect or appoint the directors needed to fill any vacancies in the board of directors up to that number; |
| (2) | if the shareholders do not elect or appoint the directors needed to fill any vacancies in the board of directors up to that number contemporaneously with the setting of that number, then the directors may appoint, or the shareholders may elect or appoint, directors to fill those vacancies. |
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| 13.3 | Directors’ Acts Valid Despite Vacancy |
An act or proceeding of the directors is not invalid merely because fewer than the number of directors set or otherwise required under these Articles is in office.
| 13.4 | Qualifications of Directors |
A director is not required to hold a share in the capital of the Company as qualification for their office but must be qualified as required by the Business Corporations Act to become, act or continue to act as a director.
| 13.5 | Remuneration of Directors |
The directors are entitled to the remuneration for acting as directors, if any, as the directors may from time to time determine. If they so decide, the remuneration, if any, of the directors will be determined by the shareholders. That remuneration may be in addition to any salary or other remuneration paid to any officer or employee of the Company as such, who is also a director.
| 13.6 | Reimbursement of Expenses of Directors |
The Company must reimburse each director for the reasonable expenses they may incur in and about the business of the Company.
| 13.7 | Special Remuneration for Directors |
If any director performs any professional or other services for the Company that in the opinion of the directors are outside the ordinary duties of a director, or if any director is otherwise specially occupied in or about the Company’s business, they may be paid remuneration fixed by the directors, or, at the option of that director, fixed by ordinary resolution, and such remuneration may be either in addition to, or in substitution for, any other remuneration that they may be entitled to receive.
| 13.8 | Gratuity, Pension or Allowance on Retirement of Director |
Unless otherwise determined by ordinary resolution, the directors on behalf of the Company may pay a gratuity or pension or allowance on retirement to any director who has held any salaried office or place of profit with the Company or to their spouse or dependants and may make contributions to any fund and pay premiums for the purchase or provision of any such gratuity, pension or allowance.
14. Election and Removal of Directors
| 14.1 | Election at Annual General Meeting |
At every annual general meeting and in every unanimous resolution contemplated by Article 10.2:
| (1) | the shareholders entitled to vote at the annual general meeting for the election of directors must elect, or in the unanimous resolution appoint, a board of directors consisting of the number of directors for the time being set under these Articles; and |
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| (2) | all the directors cease to hold office immediately before the election or appointment of directors under paragraph (1), but are eligible for re-election or re-appointment. |
| 14.2 | Consent to be a Director |
No election, appointment or designation of an individual as a director is valid unless:
| (1) | that individual consents to be a director in the manner provided for in the Business Corporations Act; |
| (2) | that individual is elected or appointed at a meeting at which the individual is present and the individual does not refuse, at the meeting, to be a director; or |
| (3) | with
respect to first directors, the designation is otherwise valid under the Business Corporations
Act. |
| 14.3 | Failure to Elect or Appoint Directors |
If:
| (1) | the Company fails to hold an annual general meeting, and all the shareholders who are entitled to vote at an annual general meeting fail to pass the unanimous resolution contemplated by Article 10.2, on or before the date by which the annual general meeting is required to be held under the Business Corporations Act; or |
| (2) | the shareholders fail, at the annual general meeting or in the unanimous resolution contemplated by Article 10.2, to elect or appoint any directors; |
then each director then in office continues to hold office until the earlier of:
| (3) | the date on which their successor is elected or appointed; and |
| (4) | the date on which they otherwise cease to hold office under the Business Corporations Act or these Articles. |
| 14.4 | Places of Retiring Directors Not Filled |
If, at any meeting of shareholders at which there should be an election of directors, the places of any of the retiring directors are not filled by that election, those retiring directors who are not re-elected and who are asked by the newly elected directors to continue in office will, if willing to do so, continue in office to complete the number of directors for the time being set pursuant to these Articles until further new directors are elected at a meeting of shareholders convened for that purpose. If any such election or continuance of directors does not result in the election or continuance of the number of directors for the time being set pursuant to these Articles, the number of directors of the Company is deemed to be set at the number of directors actually elected or continued in office.
| 14.5 | Directors May Fill Casual Vacancies |
Any casual vacancy occurring in the board of directors may be filled by the directors.
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| 14.6 | Remaining Directors Power to Act |
The directors may act notwithstanding any vacancy in the board of directors, but if the Company has fewer directors in office than the number set pursuant to these Articles as the quorum of directors, the directors may only act for the purpose of appointing directors up to that number or of summoning a meeting of shareholders for the purpose of filling any vacancies on the board of directors or for any other purpose.
| 14.7 | Shareholders May Fill Vacancies |
If the Company has no directors or fewer directors in office than the number set pursuant to these Articles as the quorum of directors, the shareholders may elect or appoint directors to fill any vacancies on the board of directors.
| 14.8 | Additional Directors |
Notwithstanding Articles 13.1 and 13.2, between annual general meetings or unanimous resolutions contemplated by Article 10.2, the directors may appoint one or more additional directors, but the number of additional directors appointed under this Article 14.8 must not at any time exceed:
| (1) | one-third of the number of first directors, if, at the time of the appointments, one or more of the first directors have not yet completed their first term of office; or |
| (2) | in any other case, one-third of the number of the current directors who were elected or appointed as directors other than under this Article 14.8. |
Any director so appointed ceases to hold office immediately before the next election or appointment of directors under Article 14.1(1), but is eligible for re-election or re-appointment.
| 14.9 | Ceasing to be a Director |
A director ceases to be a director when:
| (1) | the term of office of the director expires; |
| (2) | the director dies; |
| (3) | the director resigns as a director by notice in writing provided to the Company or a lawyer for the Company; or |
| (4) | the director is removed from office pursuant to Articles 14.10 or 14.11. |
| 14.10 | Removal of Director by Shareholders |
The Company may remove any director before the expiration of their term of office by special resolution. In that event, the shareholders may elect, or appoint by ordinary resolution, a director to fill the resulting vacancy. If the shareholders do not elect or appoint a director to fill the resulting vacancy contemporaneously with the removal, then the directors may appoint or the shareholders may elect, or appoint by ordinary resolution, a director to fill that vacancy.
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| 14.11 | Removal of Director by Directors |
The directors may remove any director before the expiration of their term of office if the director is convicted of an indictable offence, convicted by a court of an offence under or found in breach and sanctioned by a securities regulatory authority of any Canadian or United States securities legislation, or if the director ceases to be qualified to act as a director of a company and does not promptly resign, and the directors may appoint a director to fill the resulting vacancy.
| 15.1 | Appointment of Alternate Director |
Any director (an “appointor”) may by notice in writing received by the Company appoint any person (an “appointee”) who is qualified to act as a director to be their alternate to act in their place at meetings of the directors or committees of the directors at which the appointor is not present unless (in the case of an appointee who is not a director) the directors have reasonably disapproved the appointment of such person as an alternate director and have given notice to that effect to the appointor within a reasonable time after the notice of appointment is received by the Company.
| 15.2 | Notice of Meetings |
Every alternate director so appointed is entitled to notice of meetings of the directors and of committees of the directors of which their appointor is a member and to attend and vote as a director at any such meetings at which their appointor is not present.
| 15.3 | Alternate for More Than One Director Attending Meetings |
A person may be appointed as an alternate director by more than one director, and an alternate director:
| (1) | will be counted in determining the quorum for a meeting of directors once for each of their appointors and, in the case of an appointee who is also a director, once more in that capacity; |
| (2) | has a separate vote at a meeting of directors for each of their appointors and, in the case of an appointee who is also a director, an additional vote in that capacity; |
| (3) | will be counted in determining the quorum for a meeting of a committee of directors once for each of their appointors who is a member of that committee and, in the case of an appointee who is also a member of that committee as a director, once more in that capacity; |
| (4) | has a separate vote at a meeting of a committee of directors for each of their appointors who is a member of that committee and, in the case of an appointee who is also a member of that committee as a director, an additional vote in that capacity. |
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| 15.4 | Consent Resolutions |
Every alternate director, if authorized by the notice appointing them, may sign in place of their appointor any resolutions to be consented to in writing.
| 15.5 | Alternate Director Not an Agent |
Every alternate director is deemed not to be the agent of their appointor.
| 15.6 | Revocation of Appointment of Alternate Director |
An appointor may at any time, by notice in writing received by the Company, revoke the appointment of an alternate director appointed by them.
| 15.7 | Ceasing to be an Alternate Director |
The appointment of an alternate director ceases when:
| (1) | their appointor ceases to be a director and is not promptly re-elected or re-appointed; |
| (2) | the alternate director dies; |
| (3) | the alternate director resigns as an alternate director by notice in writing provided to the Company or a lawyer for the Company; |
| (4) | the alternate director ceases to be qualified to act as a director; or |
| (5) | their appointor revokes the appointment of the alternate director. |
| 15.8 | Remuneration and Expenses of Alternate Director |
The Company must reimburse an alternate director for the reasonable expenses that would be properly reimbursed if they were a director, and the alternate director is entitled to receive from the Company such proportion, if any, of the remuneration otherwise payable to the appointor as the appointor may from time to time direct.
16. Powers and Duties of Directors
| 16.1 | Powers of Management |
The directors must, subject to these Articles, manage or supervise the management of the business and affairs of the Company and have the authority to exercise all such powers of the Company as are not, by the Business Corporations Act or by these Articles, required to be exercised by the shareholders of the Company.
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| 16.2 | Appointment of Attorney of Company |
The directors may from time to time, by power of attorney or other instrument, under seal if so required by law, appoint any person to be the attorney of the Company for such purposes, and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the directors under these Articles and excepting the power to fill vacancies in the board of directors, to remove a director, to change the membership of, or fill vacancies in, any committee of the directors, to appoint or remove officers appointed by the directors and to declare dividends) and for such period, and with such remuneration and subject to such conditions as the directors may think fit. Any such power of attorney may contain such provisions for the protection or convenience of persons dealing with such attorney as the directors think fit. Any such attorney may be authorized by the directors to sub-delegate all or any of the powers, authorities and discretions for the time being vested in them.
17. Disclosure of Interest of Directors
| 17.1 | Obligation to Account for Profits |
A director or senior officer who holds a disclosable interest (as that term is used in the Business Corporations Act) in a contract or transaction into which the Company has entered or proposes to enter is liable to account to the Company for any profit that accrues to the director or senior officer under or as a result of the contract or transaction only if and to the extent provided in the Business Corporations Act.
| 17.2 | Restrictions on Voting by Reason of Interest |
A director who holds a disclosable interest in a contract or transaction into which the Company has entered or proposes to enter is not entitled to vote on any directors’ resolution to approve that contract or transaction, unless all the directors have a disclosable interest in that contract or transaction, in which case any or all of those directors may vote on such resolution.
| 17.3 | Interested Director Counted in Quorum |
A director who holds a disclosable interest in a contract or transaction into which the Company has entered or proposes to enter and who is present at the meeting of directors at which the contract or transaction is considered for approval may be counted in the quorum at the meeting whether or not the director votes on any or all of the resolutions considered at the meeting.
| 17.4 | Disclosure of Conflict of Interest or Property |
A director or senior officer who holds any office or possesses any property, right or interest that could result, directly or indirectly, in the creation of a duty or interest that materially conflicts with that individual’s duty or interest as a director or senior officer, must disclose the nature and extent of the conflict as required by the Business Corporations Act.
| 17.5 | Director Holding Other Office in the Company |
A director may hold any office or place of profit with the Company, other than the office of auditor of the Company, in addition to their office of director for the period and on the terms (as to remuneration or otherwise) that the directors may determine.
| 17.6 | No Disqualification |
No director or intended director is disqualified by their office from contracting with the Company either with regard to the holding of any office or place of profit the director holds with the Company or as vendor, purchaser or otherwise, and no contract or transaction entered into by or on behalf of the Company in which a director is in any way interested is liable to be voided for that reason.
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| 17.7 | Professional Services by Director or Officer |
A director or officer, or any person in which a director or officer has an interest, may act in a professional capacity for the Company, except as auditor of the Company, and the director or officer or such person is entitled to remuneration for professional services as if that director or officer were not a director or officer.
| 17.8 | Director or Officer in Other Corporations |
A director or officer may be or become a director, officer or employee of, or otherwise interested in, any person in which the Company may be interested as a shareholder or otherwise, and the director or officer is not accountable to the Company for any remuneration or other benefits received by them as director, officer or employee of, or from their interest in, such other person.
| 18.1 | Meetings of Directors |
The directors may meet together for the conduct of business, adjourn and otherwise regulate their meetings as they think fit, and meetings of the directors held at regular intervals may be held at the place, at the time and on the notice, if any, as the directors may from time to time determine.
| 18.2 | Voting at Meetings |
Questions arising at any meeting of directors are to be decided by a majority of votes and, in the case of an equality of votes, the chair of the meeting does not have a second or casting vote.
| 18.3 | Chair of Meetings |
The following individual is entitled to preside as chair at a meeting of directors:
| (1) | the chair of the board, if any; |
| (2) | in the absence of the chair of the board, the president, if any, if the president is a director; or |
| (3) | any other director chosen by the directors if: |
| (a) | neither the chair of the board nor the president, if a director, is present at the meeting within 15 minutes after the time set for holding the meeting; | |
| (b) | neither the chair of the board nor the president, if a director, is willing to chair the meeting; or | |
| (c) | the chair of the board and the president, if a director, have advised the secretary, if any, or any other director, that they will not be present at the meeting. |
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| 18.4 | Meetings by Telephone or Other Communications Medium |
A director may participate in a meeting of the directors or of any committee of the directors in person or by telephone if all directors participating in the meeting, whether in person or by telephone or other communications medium, are able to communicate with each other. A director may participate in a meeting of the directors or of any committee of the directors by a communications medium other than telephone if all directors participating in the meeting, whether in person or by telephone or other communications medium, are able to communicate with each other and if all directors who wish to participate in the meeting agree to such participation. A director who participates in a meeting in a manner contemplated by this Article 18.4 is deemed for all purposes of the Business Corporations Act and these Articles to be present at the meeting and to have agreed to participate in that manner.
| 18.5 | Calling of Meetings |
A director may, and the secretary or an assistant secretary of the Company, if any, on the request of a director must, call a meeting of the directors at any time.
| 18.6 | Notice of Meetings |
Other than for meetings held at regular intervals as determined by the directors pursuant to Article 18.1, reasonable notice of each meeting of the directors, specifying the place, day and time of that meeting must be given to each of the directors and the alternate directors by any method set out in Article 24.1.
| 18.7 | When Notice Not Required |
It is not necessary to give notice of a meeting of the directors to a director or an alternate director if:
| (1) | the meeting is to be held immediately following a meeting of shareholders at which that director was elected or appointed, or is the meeting of the directors at which that director is appointed; or |
| (2) | the director or alternate director, as the case may be, has waived notice of the meeting. |
| 18.8 | Meeting Valid Despite Failure to Give Notice |
The accidental omission to give notice of any meeting of directors to, or the non-receipt of any notice by, any director or alternate director, does not invalidate any proceedings at that meeting.
| 18.9 | Waiver of Notice of Meetings |
Any director or alternate director may send to the Company a document signed by them waiving notice of any past, present or future meeting or meetings of the directors and may at any time withdraw that waiver with respect to meetings held after that withdrawal. After sending a waiver with respect to all future meetings and until that waiver is withdrawn, no notice of any meeting of the directors need be given to that director and, unless the director otherwise requires by notice in writing to the Company, to their alternate director, and all meetings of the directors so held are deemed not to be improperly called or constituted by reason of notice not having been given to such director or alternate director.
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| 18.10 | Quorum |
The quorum necessary for the transaction of the business of the directors may be set by the directors and, if not so set, is deemed to be set at two directors or, if the number of directors is set at one, is deemed to be set at one director, and that director may constitute a meeting.
| 18.11 | Validity of Acts Where Appointment Defective |
An act of a director or officer is not invalid merely because of an irregularity in the election or appointment or a defect in the qualification of that director or officer.
| 18.12 | Consent Resolutions in Writing |
A resolution of the directors or of any committee of the directors may be passed without a meeting:
| (1) | in all cases, if each of the directors entitled to vote on the resolution consents to it in writing; or |
| (2) | in the case of a resolution to approve a contract or transaction in respect of which a director has disclosed that they have or may have a disclosable interest, if each of the other directors who are entitled to vote on the resolution consents to it in writing. |
A consent in writing under this Article may be by signed document, fax, e-mail or any other method of transmitting legibly recorded messages. A consent in writing may be in two or more counterparts which together are deemed to constitute one consent in writing. A resolution of the directors or of any committee of the directors passed in accordance with this Article 18.12 is effective on the date stated in the consent in writing or on the latest date stated on any counterpart and is deemed to be a proceeding at a meeting of directors or of the committee of the directors and to be as valid and effective as if it had been passed at a meeting of the directors or of the committee of the directors that satisfies all the requirements of the Business Corporations Act and all the requirements of these Articles relating to meetings of the directors or of a committee of the directors.
19. Executive and Other Committees
| 19.1 | Appointment and Powers of Executive Committee |
The directors may, by resolution, appoint an executive committee consisting of the director or directors that they consider appropriate, and this committee has, during the intervals between meetings of the board of directors, all of the directors’ powers, except:
| (1) | the power to fill vacancies in the board of directors; |
| (2) | the power to remove a director; |
| (3) | the power to change the membership of, or fill vacancies in, any committee of the directors; and |
| (4) | such other powers, if any, as may be set out in the resolution or any subsequent directors’ resolution. |
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| 19.2 | Appointment and Powers of Other Committees |
The directors may, by resolution:
| (1) | appoint one or more committees (other than the executive committee) consisting of the director or directors that they consider appropriate; |
| (2) | delegate to a committee appointed under paragraph (1) any of the directors’ powers, except: |
| (a) | the power to fill vacancies in the board of directors; | |
| (b) | the power to remove a director; | |
| (c) | the power to change the membership of, or fill vacancies in, any committee of the directors; and | |
| (d) | the power to appoint or remove officers appointed by the directors; and |
| (3) | make any delegation referred to in paragraph (2) subject to the conditions set out in the resolution or any subsequent directors’ resolution. |
| 19.3 | Obligations of Committees |
In the exercise of the powers delegated to a committee appointed under Articles 19.1 or 19.2, the committee must:
| (1) | conform to any rules that may from time to time be imposed on it by the directors; and | |
| (2) | report every act or thing done in exercise of those powers at such times as the directors may require. |
| 19.4 | Powers of Board |
The directors may, at any time, with respect to a committee appointed under Articles 19.1 or 19.2:
| (1) | revoke or alter the authority given to the committee, or override a decision made by the committee, except as to acts done before such revocation, alteration or overriding; |
| (2) | terminate the appointment of, or change the membership of, the committee; and |
| (3) | fill vacancies in the committee. |
| 19.5 | Committee Meetings |
Subject to Article 19.3(1) and unless the directors otherwise provide in the resolution appointing the committee or in any subsequent resolution, with respect to a committee appointed under Articles 19.1 or 19.2:
| (1) | the committee may meet and adjourn as it thinks proper; |
| (2) | the committee may elect a chair of its meetings but, if no chair of a meeting is elected, or if at a meeting the chair of the meeting is not present within 15 minutes after the time set for holding the meeting, the directors present who are members of the committee may choose one of their number to chair the meeting; |
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| (3) | a majority of the members of the committee constitutes a quorum of the committee; and |
| (4) | questions arising at any meeting of the committee are determined by a majority of votes of the members present, and in case of an equality of votes, the chair of the meeting does not have a second or casting vote. |
| 20.1 | Directors May Appoint Officers |
The directors may, from time to time, appoint such officers, if any, as the directors determine and the directors may, at any time, terminate any such appointment.
| 20.2 | Functions, Duties and Powers of Officers |
The directors may, for each officer:
| (1) | determine the functions and duties of the officer; |
| (2) | entrust to and confer on the officer any of the powers exercisable by the directors on such terms and conditions and with such restrictions as the directors think fit; and |
| (3) | revoke, withdraw, alter or vary all or any of the functions, duties and powers of the officer. |
| 20.3 | Qualifications |
An officer is not required to hold a share in the capital of the Company as qualification for their office but must be qualified as required by the Business Corporations Act to become, act or continue to act as an officer. One person may hold more than one position as an officer of the Company. Any person appointed as the chair of the board or as a managing director must be a director. Any other officer need not be a director.
| 20.4 | Remuneration and Terms of Appointment |
All appointments of officers are to be made on the terms and conditions and at the remuneration (whether by way of salary, fee, commission, participation in profits or otherwise) that the directors think fit and are subject to termination at the pleasure of the directors, and an officer, in addition to such remuneration, may receive, after they cease to hold such office or leaves the employment of the Company, a pension or gratuity.
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| 21.1 | Definitions |
In this Article 21:
| (1) | “eligible penalty” means a judgment, penalty or fine awarded or imposed in, or an amount paid in settlement of, an eligible proceeding; |
| (2) | “eligible proceeding” means a legal proceeding or investigative action, whether current, threatened, pending or completed, in which a director, former director or alternate director of the Company (an “eligible party”) or any of the heirs and legal personal representatives of the eligible party, by reason of the eligible party being or having been a director or alternate director of the Company: |
| (a) | is or may be joined as a party; or | |
| (b) | is or may be liable for or in respect of a judgment, penalty or fine in, or expenses related to, the proceeding; |
| (3) | “expenses” has the meaning set out in the Business Corporations Act. |
| 21.2 | Mandatory Indemnification of Directors and Officers and Former Directors and Officers |
The Company must indemnify a director, officer, former director or officer or alternate director of the Company and their heirs and legal personal representatives, as set out in the Business Corporations Act, against all eligible penalties to which such person is or may be liable, and the Company must, after the final disposition of an eligible proceeding, pay the expenses actually and reasonably incurred by such person in respect of that proceeding. Each director, officer, former director and officer and alternate director is deemed to have contracted with the Company on the terms of the indemnity contained in this Article 21.2.
| 21.3 | Mandatory Advancement of Expenses |
The Company must pay, as they are incurred in advance of the final disposition of an eligible proceeding, the expenses actually and reasonably incurred by an eligible party in respect of that proceeding but the Company must first receive from the eligible party a written undertaking that, if it is ultimately determined that the payment of expenses is prohibited by the Business Corporations Act, the eligible party will repay the amounts advanced.
| 21.4 | Indemnification of Other Persons |
The Company may indemnify any other person in accordance with the Business Corporations Act.
| 21.5 | Non-Compliance with Business Corporations Act |
The failure of a director, alternate director or officer of the Company to comply with the Business Corporations Act or these Articles does not invalidate any indemnity to which they are entitled under this Part.
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| 21.6 | Company May Purchase Insurance |
The Company may purchase and maintain insurance for the benefit of any person (or their heirs or legal personal representatives) who:
| (1) | is or was a director, alternate director, officer, employee or agent of the Company; |
| (2) | is or was a director, alternate director, officer, employee or agent of a corporation at a time when the corporation is or was an affiliate of the Company; |
| (3) | at the request of the Company, is or was a director, alternate director, officer, employee or agent of a corporation or of a partnership, trust, joint venture or other unincorporated entity; |
| (4) | at the request of the Company, holds or held a position equivalent to that of a director, alternate director or officer of a partnership, trust, joint venture or other unincorporated entity; |
against any liability incurred by them as such director, alternate director, officer, employee or agent or person who holds or held such equivalent position.
| 22.1 | Payment of Dividends Subject to Special Rights |
The provisions of this Article 22 are subject to the rights, if any, of shareholders holding shares with special rights as to dividends.
| 22.2 | Declaration of Dividends |
The directors may from time to time declare and authorize payment of such dividends as they may deem advisable.
| 22.3 | No Notice Required |
The directors need not give notice to any shareholder of any declaration under Article 22.2.
| 22.4 | Record Date |
The directors may set a date as the record date for the purpose of determining shareholders entitled to receive payment of a dividend. The record date must not precede the date on which the dividend is to be paid by more than two months. If no record date is set, the record date is 5:00 p.m. on the date on which the directors pass the resolution declaring the dividend.
| 22.5 | Manner of Paying Dividend |
A resolution declaring a dividend may direct payment of the dividend wholly or partly by the distribution of specific assets or of fully paid shares or of bonds, debentures or other securities of the Company, or in any one or more of those ways.
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| 22.6 | Settlement of Difficulties |
If any difficulty arises in regard to a distribution under Article 22.5, the directors may settle the difficulty as they deem advisable, and, in particular, may:
| (1) | set the value for distribution of specific assets; |
| (2) | determine that cash payments in substitution for all or any part of the specific assets to which any shareholders are entitled may be made to any shareholders on the basis of the value so fixed in order to adjust the rights of all parties; and |
| (3) | vest any such specific assets in trustees for the persons entitled to the dividend. |
| 22.7 | When Dividend Payable |
Any dividend may be made payable on such date as is fixed by the directors.
| 22.8 | Dividends to be Paid in Accordance with Number of Shares |
All dividends on shares of any class or series of shares must be declared and paid according to the number of such shares held.
| 22.9 | Receipt by Joint Shareholders |
If several persons are joint shareholders of any share, any one of them may give an effective receipt for any dividend, bonus or other money payable in respect of the share.
| 22.10 | Dividend Bears No Interest |
No dividend bears interest against the Company.
| 22.11 | Fractional Dividends |
If a dividend to which a shareholder is entitled includes a fraction of the smallest monetary unit of the currency of the dividend, that fraction may be disregarded in making payment of the dividend and that payment represents full payment of the dividend.
| 22.12 | Payment of Dividends |
Any dividend or other distribution payable in cash in respect of shares may be paid by cheque, made payable to the order of the person to whom it is sent, and mailed to the address of the shareholder, or in the case of joint shareholders, to the address of the joint shareholder who is first named on the central securities register, or to the person and to the address the shareholder or joint shareholders may direct in writing. The mailing of such cheque will, to the extent of the sum represented by the cheque (plus the amount of the tax required by law to be deducted), discharge all liability for the dividend unless such cheque is not paid on presentation or the amount of tax so deducted is not paid to the appropriate taxing authority.
| 22.13 | Capitalization of Surplus |
Notwithstanding anything contained in these Articles, the directors may from time to time capitalize any surplus of the Company and may from time to time issue, as fully paid, shares or any bonds, debentures or other securities of the Company as a dividend representing the surplus or any part of the surplus.
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23. Documents, Records and Reports
| 23.1 | Recording of Financial Affairs |
The directors must cause adequate accounting records to be kept to record properly the financial affairs and condition of the Company and to comply with the Business Corporations Act.
| 23.2 | Inspection of Accounting Records |
Unless the directors determine otherwise, or unless otherwise determined by ordinary resolution, no shareholder of the Company is entitled to inspect or obtain a copy of any accounting records of the Company.
| 24.1 | Method of Giving Notice |
Unless the Business Corporations Act or these Articles provides otherwise, a notice, statement, report or other record required or permitted by the Business Corporations Act or these Articles to be sent by or to a person may be sent by any one of the following methods:
| (1) | prepaid mail addressed to the person at the applicable address for that person as follows: |
| (a) | for a record mailed to a shareholder, the shareholder’s registered address; | |
| (b) | for a record mailed to a director or officer, the prescribed address for mailing shown for the director or officer in the records kept by the Company or the mailing address provided by the recipient for the sending of that record or records of that class; | |
| (c) | in any other case, the mailing address of the intended recipient; |
| (2) | delivery at the applicable address for that person as follows, addressed to the person: |
| (a) | for a record delivered to a shareholder, the shareholder’s registered address; | |
| (b) | for a record delivered to a director or officer, the prescribed address for delivery shown for the director or officer in the records kept by the Company or the delivery address provided by the recipient for the sending of that record or records of that class; | |
| (c) | in any other case, the delivery address of the intended recipient; |
| (3) | fax to the fax number provided by the intended recipient for the sending of that record or records of that class; |
| (4) | e-mail to the e-mail address provided by the intended recipient for the sending of that record or records of that class; or |
| (5) | physical delivery to the intended recipient. |
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| 24.2 | Deemed Receipt of Mailing |
A record that is mailed to a person by ordinary mail to the applicable address for that person referred to in Article 24.1 is deemed to be received by the person to whom it was mailed on the day, Saturdays, Sundays and holidays excepted, following the date of mailing. A record that is delivered to a person or their applicable address is deemed to be received by the person on receipt by that person or delivery to that address. A record that is sent to a person by fax or e-mail is deemed to be received by the person on transmission if sent during business hours at the place of intended receipt by that person and, if not sent during their business hours, on the next business day of the place of intended receipt of that person.
| 24.3 | Certificate of Sending |
A certificate signed by the secretary, if any, or other officer of the Company or of any other corporation acting in that behalf for the Company stating that a notice, statement, report or other record was addressed as required, and sent as permitted, by Article 24.1 is conclusive evidence of that fact.
| 24.4 | Notice to Joint Shareholders |
A notice, statement, report or other record may be provided by the Company to the joint shareholders of a share by providing the notice to the joint shareholder first named in the central securities register in respect of the share.
| 24.5 | Notice to Trustees |
A notice, statement, report or other record may be provided by the Company to the persons entitled to a share in consequence of the death, bankruptcy or incapacity of a shareholder by:
| (1) | mailing the record, addressed to them: |
| (a) | by name, by the title of the legal personal representative of the deceased or incapacitated shareholder, by the title of trustee of the bankrupt shareholder or by any similar description; and | |
| (b) | at the address, if any, supplied to the Company for that purpose by the persons claiming to be so entitled; or |
| (2) | if an address referred to in paragraph (1)(b) has not been supplied to the Company, by giving the notice in a manner in which it might have been given if the death, bankruptcy or incapacity had not occurred. |
| 25.1 | Who May Attest Seal |
Except as provided in Articles 25.2 and 25.3, the Company’s seal, if any, must not be impressed on any record except when that impression is attested by the signatures of:
| (1) | any two directors; |
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| (2) | any officer, together with any director; |
| (3) | if the Company only has one director, that director; or |
| (4) | any one or more directors or officers or persons as may be determined by the directors. |
| 25.2 | Sealing Copies |
For the purpose of certifying under seal a certificate of incumbency of the directors or officers of the Company or a true copy of any resolution or other document, despite Article 25.1, the impression of the seal may be attested by the signature of any director or officer.
| 25.3 | Mechanical Reproduction of Seal |
The directors may authorize the seal to be impressed by third parties on share certificates or bonds, debentures or other securities of the Company as they may determine appropriate from time to time. To enable the seal to be impressed on any share certificates or bonds, debentures or other securities of the Company, whether in definitive or interim form, on which facsimiles of any of the signatures of the directors or officers of the Company are, in accordance with the Business Corporations Act or these Articles, printed or otherwise mechanically reproduced, there may be delivered to the person employed to engrave, lithograph or print such definitive or interim share certificates or bonds, debentures or other securities one or more unmounted dies reproducing the seal and the chair of the board or any senior officer together with the secretary, treasurer, secretary-treasurer, an assistant secretary, an assistant treasurer or an assistant secretary-treasurer may in writing authorize such person to cause the seal to be impressed on such definitive or interim share certificates or bonds, debentures or other securities by the use of such dies. Share certificates or bonds, debentures or other securities to which the seal has been so impressed are for all purposes deemed to be under and to bear the seal impressed on them.
| 26.1 | Definitions |
In this Article 26:
| (1) | “designated security” means: |
| (a) | a voting security of the Company; | |
| (b) | a security of the Company that is not a debt security and that carries a residual right to participate in the earnings of the Company or, on the liquidation or winding up of the Company, in its assets; or | |
| (c) | a security of the Company convertible, directly or indirectly, into a security described in paragraph (a) or (b); |
| (2) | “security” has the meaning assigned in the Securities Act (British Columbia); |
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| (3) | “voting security” means a security of the Company that: |
| (a) | is not a debt security, and | |
| (b) | carries a voting right either under all circumstances or under some circumstances that have occurred and are continuing. |
| 26.2 | Application |
Article 26.3 does not apply to the Company if and for so long as it is a public company or its designated securities are beneficially owned, directly or indirectly, by more than 50 persons or companies, counting any two or more joint registered owners as one beneficial owner, and not counting employees and former employees of the Company or its affiliates.
| 26.3 | Consent Required for Transfer of Shares or Designated Securities |
No share or designated security may be sold, transferred or otherwise disposed of without the consent of the directors and the directors are not required to give any reason for refusing to consent to any such sale, transfer or other disposition.
27. Special Rights And Restrictions
| 27.1 | Common Shares |
| (1) | The registered holders of the Common shares shall be entitled to receive notice of and to attend at all general meetings of the shareholders of the Company and shall have the right to vote at any such meeting on the basis of one vote for each Common share held. |
| (2) | The registered holders of the Common shares are entitled to receive dividends if and when declared by the Directors out the funds or assets of the Company properly applicable to the payment of dividends. The Directors may at any time declare and authorize the payment of such dividends exclusively to the registered holders of Common shares without declaring any corresponding dividends to the registered holders of Preferred shares. |
| (3) | In the event of the liquidation, dissolution or winding up of the Company or other distribution of the assets of the Company among its shareholders for the purpose of winding up the affairs of the Company, whether voluntary or involuntary, subject to the rights of the holders of the Preferred shares, the registered holders of the Common shares shall be entitled to receive the remaining property and assets of the Company. |
| 27.2 | Preferred Shares |
| (1) | The holders of the Preferred shares shall not, as such, be entitled to receive notice of or to attend or vote at any meetings of shareholders of the Company other than meetings of the holders of the Preferred shares. |
| (2) | The Preferred shares may include one or more series of shares. Subject to the Business Corporations Act, the Directors may from time to time, by resolution, if none of the Preferred shares of the particular series are issued, alter the Articles of the Company and authorize the alteration of the Notice of Articles of the Company, as the case may be, to do one or more of the following: |
| (a) | Determine the maximum number of shares of any of those series of shares that the Company is authorized to issue, determine that there is no such maximum number, or alter any determination made under this Article 27.2(2) or otherwise in relation to a maximum number of those shares; |
| 36 |
| (b) | Create an identifying name by which the shares of any of those series of shares may be identified or alter any identifying name created for those shares; and | |
| (c) | Attach special rights and restrictions to the shares of any of those series of shares or to alter any special rights or restrictions attached to those shares. |
| (3) | The registered holders of the Preferred shares are entitled to receive dividends if and when declared by the Directors out the funds or assets of the Company properly applicable to the payment of dividends. The Directors may at any time declare and authorize the payment of such dividends exclusively to the registered holders of the Preferred shares without declaring any corresponding dividends to the registered holders of the Common shares. |
| (4) | In the event of the liquidation, dissolution or winding up of the Company or other distribution of the assets of the Company among its members for the purpose of winding up the affairs of the Company, whether voluntary or involuntary, the registered holders of the Preferred shares shall be entitled to receive the amount paid up with respect to each Preferred share together with an amount equal to all declared and unpaid dividends on such shares in priority of the Common shares. After payment to the registered holders of the Preferred shares of the amount payable to them as provided for above, they shall not, as such, be entitled to share in any further distribution of the property or assets of the Company. |
The Company has adopted as its Articles the foregoing provisions:
| Full name and Signature of sole shareholder | Date | |
|
March 2, 2017 | ||
| ALAIN GHIAI |
| 37 |
Exhibit 10.1
GlobeX Data SA® Secure Cloud Services
Licensee License Agreement and Program
WHEREAS, This License Agreement (“Agreement”) is made on this 3rd day of April, 2017 (“Effective Date”), by and between GlobeX Data S.A., a Swiss corporation with Registration No. CH-660-2009007-7 (hereinafter referred to as “GDSA”) with principal offices at Rue du Rhône, Geneva GE-1204, Switzerland,
and
GlobeX Data, Inc., a Delaware, USA company with EIN 46-1440118 (hereinafter referred to as “Licensee”) with principal offices at 1420 Fifth Avenue, suite 2200, Seattle, WA 98101, USA;
WHEREAS, GDSA owns, licenses and provides: (i) a subscription-based Secure Cloud Services and management services, being GDSA’s online software and storage system for cloud storage, file mangement and secure communications to be called “the Secure Cloud Storage and Secure Communications Solutions” offered by GDSA worldwide through its Internet site and affiliate partnerships, as further defined below (“Services”) and;
WHEREAS, Licensee desires to market the Services to companies and individuals alike for the express purpose of providing the Services to the customers or end users (“End User”);
NOW THEREFORE, in consideration of the following conditions set forth in this Agreement, the Parties hereto agree as follows:
1. Definitions.
In this Agreement, the following terms shall have the following meanings:
“Confidential Information” means any and all information which is disclosed by GDSA or Licensee to the other Party of this Agreement verbally, electronically, visually, or in a written or other tangible form which is either identified or should be reasonably understood to be confidential or proprietary. Confidential Information includes, but is not limited to, price lists, trade secrets, computer programs, software, formulas, data, inventions, techniques, marketing plans, strategies and forecasts made available by the disclosing party, whether such information relates to GDSA, Licesee or its third party suppliers or licensors. Confidential Information includes without limitation, information regarding the Plan Offerings.
“End User” means a Prospect or Customer, introduced to GDSA by Licesee, that is licensed by GDSA (in its discretion), Licensee or a GDSA approved sub-Licensee of Licensee pursuant to the terms of the End User License Agreement or Terms of Use accepted by the End User to make use of one or more of the Plan Offerings for its own internal use purposes. All End Users are tracked through a persistent cookie or by manual entry by the Licensee to credit the registration back to the Licesee.
“Plan Offerings” or “Software” or “Service” means: (i) the subscription-based service powered by DigitalSafe®, PrivaTalk® or any brand owered by GDSA being GDSA’s Secure Cloud Services Solutions, being those Plan Offerings that Licensee is permitted to offer to Prospects. The Plan Offerings are described at the pricing page of each GDSA powered service, such as https://www.digitalsafe.com/en/pricing as such descriptions may be amended from time-to-time as provided in this Agreement or any custom plan offering agreed upon by GDSA and Licesee. Licensee is entitled to create its own plans in association with GDSA in order to create integration ease.
“Prospect” means an individual, corporation, company, partnership or other entity, who is a customer of Licensee and who may be a potential End User.
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GlobeX Data SA® Secure Cloud Services
Licensee License Agreement and Program
“Licensee Fee” shall mean an amount of the Full Price Service Fee Revenue paid to GDSA by Licensee for so long as this Agreement remains in effect. Full Price shall mean the pricing displayed on www.digitalsafe.com and/or and/or www.digitalsafe.ch and/or at any given time. A custom plan for Licensee can be tailored by GDSA and Licensee together. In all circumstances, the profit sharing shall be split with GDSA as follows:
| 1. | GDSA shall have TEN percent (10%) of gross revenues due to GDSA and Licensee shall have NINETY percent (90%) of gross revenues du to GDSA. | |
| The commission on any Prospect undertaken after the signing of this contract and prior to termination that results in a Sale before or after Termination shall be paid to Licensee for the duration of the Prospect relationship with GDSA. Both GDSA and Licensee shall be bound by the accompanying Mutual Non-disclosure Agreement. |
| a. | Licensee shall provide to GDSA an updated Prospect list within 24hours of the termination notice. | |
| b. | Licensee shall be granted a twelve (12) month extension from the date of termination to secure a sale with all Prospects listed on the Prospect list. | |
| c. | Any Prospect sales achieved during this period from this extension will be paid to the Licensee by GDSA as per the payment terms as outlined in this agreement for the term of the client relationship with GDSA. |
| 2. | For Telecom sales or ISP companies, Licensee shall consult with GDSA before approaching such companies. A different Profit sharing may be applied depending on the pricing discount issued to Telecom or ISP companies. | |
| 3. | All credit card processing fees are at the charge of Licensee if Licensee processes payment. If payments are processed by GDSA, Licensee shall not be charged for credit card processing fees. | |
| 4. | If Licensee collects payments directly from users, all such payments to GDSA are due by Licensee to GDSA within 30 days of invoice date created by GDSA. | |
| 5. | Licensee shall be responsible for Level 1 Customer Support only as defined in this wikipedia definition of Tier 1 or Level 1 support : https://en.wikipedia.org/wiki/Technical_support#Tier_1. GDSA will be responsible for Level 2 Technical Support as defined in this wikipedia definition of Tier 2 or Level 2 support : https://en.wikipedia.org/wiki/Technical_support#Tier_2 . |
“Service Fee Revenue” means the service fees charged by GDSA for either of the Plan Offerings which are actually received by GDSA from a compliant End User or making use of one of the Plan Offerings in accordance with the terms of GDSA’s End User License Agreement and for greater certainty, Service Fee in accordance with the terms of GDSA’s End User License Agreement and for greater certainty, Service Fee Revenue shall not include, applicable taxes, credits to accounts, refunds and/or credit card charge backs.
“Marketing Materials” means creative and collateral content, in standard electronic or similar format, as well as graphics, banners, web-sites, vidéos and other marketing promotional and informative material created by GDSA or any of its affiliated entities.
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GlobeX Data SA® Secure Cloud Services
Licensee License Agreement and Program
2. Appointment of Licesee.
2.1 Grant of License.
On the terms and conditions set out in this Agreement, GDSA hereby grants to Licensee and Licensee hereby accepts from GDSA the following:
| ● | An exclusive, non-transferable license to resell the Plan Offerings to Prospects or any Custom Plan Offering in The United States of America and Canada starting Effective Date for a PERPETUAL period unless terminated by GDSA in accordance with the Terms and Conditions of this Agreement. |
Pursuant to this Agreement, Licensee shall market the Plan Offerings to Prospects. Prospects shall subscribe to the Plan Offerings by entering into an End User License Agreement with GDSA by signing direct contract with the Licensee. Acceptance of a Prospect as an End User shall remain in the full discretion of GDSA and GDSA reserves the right, in its discretion, to terminate an End User License Agreement with any such End User in accordance with the terms of the End User License Agreement. End User Agreements can be “Localized” by Licensee with the final approval and review of GDSA. Should Licensee want to have the absolute right to accept any End User, Licensee shall assume the entire liability of acceptance of End User, especially in regards to local government policies and laws enforced by the authorities governing the laws of said territory under which Licensee sells the Services.
2.2 Grant of License to Trade-mark.
On the terms and conditions contained in this Agreement, GDSA grants to Licensee, a non-exclusive, non-transferable license to use the GDSA’s trade names and trade-marks solely in connection with Licesee’s marketing of the Plan Offerings pursuant to this Agreement, provided that Licensee clearly identifies GDSA’s ownership of such names and/or marks including but not limited to all GlobeX Data® DigitalSafe® PrivaTalk® Securus® Sekur® and related brands and trade names and logomarks. All advertising and marketing materials prepared by Licensee for use in marketing the Plan Offerings must, prior to release by Licesee, shall be delivered to GDSA for review and approval, such approval not to be unreasonably withheld or delayed. Licensee agrees not to use any of GDSA’s trademarks, trade names, service marks, corporate names or logos or those of its affiliates (“Marks”) on any press release, advertising or marketing materials without GDSA’s prior written consent. Licensee agrees not to interfere or cause any third party to interfere with GDSA’s intellectual property rights. Licensee acknowledges that the use of the Marks is limited to the use set forth in this Agreement and that Licensee has not acquired and will not acquire any ownership rights therein. Licensee will not alter the text or graphics in any artwork provided by GDSA. Licensee acknowledges GDSA’s ownership of the Marks and agrees not to challenge such ownership rights and agrees that all use thereof inures to the benefit of GDSA. GDSA has the right to discontinue or alter the form, shape or artwork of the Marks. Licensee will maintain high-quality standards in the use of the Marks and not publish illegal materials or engage in illegal business activities in conjunction with any use of the Marks. Licensee will not use the Marks to disparage GDSA, its products or services, and agrees to abide by these terms and conditions. If Licensee is unable or unwilling to fully comply with these terms and conditions, Licensee’s rights to use any of the Marks will terminate and Licensee will immediately cease all use of the Marks. GDSA reserves the right to review any and all of Licensee’s use of the Marks to determine if such use is in compliance with this policy. Both parties may publicly release information related to this Agreement only with the written consent of the other party for each public statement or document. The right to use GDSA’s trade names and trade-marks terminates upon immediate termination of this Agreement.
2.3 Plan Offering and Trade Names and Trade-Marks.
All right, title and interest in and to the Plan Offerings and all components thereof, together with all right, title and interest in and to the Trade Names and Trade-Marks licensed above, remains with GDSA and its affiliateed companies. Except for the limited license granted above, GDSA reserves all other rights in and to the Plan Offerings and such Trade Names, Trade-Marks and Logo-Marks.
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GlobeX Data SA® Secure Cloud Services
Licensee License Agreement and Program
3. Responsibilities of the Parties.
3.1 Best Efforts.
Licensee agrees to utilize its best efforts to assist and/or introduce the Plan Offerings to potential new and existing End Users and to market and promote the Plan Offerings to achieve the maximum extent of distribution of the Plan Offerings. Should Licensee build any collatéral material such as website, video, brochure or other, GDSA shall advise free of charge on any particulars of the Licensee’s collateral material in regards to GDSA’s trademark and logo usage and or content.
3.2 Standards.
Licensee will maintain high standards of professionalism and will at all times comply with all applicable laws and regulations and refrain from any unethical conduct or any other conduct that could damage the reputation of GDSA or the Plan Offerings. Licensee shall conduct its business so as to maintain and increase the goodwill and reputation of GDSA and the Plan Offerings.
3.3 No Side Letters.
Licensee shall not enter into any separate agreements or side letters with End Users regarding any portion of the subject matter addressed in GDSA’s End User License Agreement. Licensee shall not expand any representations or warranties beyond those expressed in GDSA’s End User License Agreement. Licensee has no authority, and shall not make representations, to bind GDSA to an End User License Agreement. Licensee shall not change or offer to change the contractual and/or financial terms of the End User License Agreement in any manner.
3.4 Marketing Support.
As a means of assisting Licesee, GDSA may, from time-to-time, provide Licensee with creative and collateral content, in standard electronic or similar format, as well as graphics, banners and other marketing promotional and informative material about GDSA and its Plan Offerings (the “Marketing Materials”). All right, title and interest in and to the Marketing Materials shall remain with GDSA (or its affiliated entities). Licensee shall not amend, alter or otherwise change the Marketing Materials without the prior written consent of GDSA.
3.5 Access to End User’s Computer or Computer Systems.
To the extent that an End User provides Licensee with an ability to access End User’s computer or computer systems by making use of the Remote Access, Licensee shall be solely responsible for obtaining any necessary consents and other permissions from the End User. Licensee hereby agrees to indemnify and hold harmless GDSA, its officers, directors, shareholders and third party providers and each of their respective heirs, executors, administrators, legal personal representatives, successors and assigns (collectively, the “Indemnitees”) from and against any and all costs, losses, expenses, claims, damages, actions, causes of action and deficiencies, which any of the Indemnitees may suffer or incur as a result of or arising directly or indirectly out of or in connection with Licensee having access to an End User’s computer or computer systems.
4. Term and Termination
4.1 This Agreement shall remain in full force and effect for a PERPETUAL term (the “Term”), commencing on the Effective Date unless terminated in accordance with this Agreement. If either Party breaches a material provision of this Agreement, the other Party may immediately terminate this Agreement upon written notice to the other Party. Termination under such provision shall have immediate effect.
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GlobeX Data SA® Secure Cloud Services
Licensee License Agreement and Program
GDSA may terminate this Agreement at any time, should Licensee breach any part of this Agreement, upon written notice in accordance with this Agreement. In such case, Licensee will be entitled to invoice and receive from GDSA immediately all amounts due to Licensee by GDSA and so starting from the Termination date. Upon termination of this Agreement for any reason, all licenses granted under this Agreement shall immediately terminate, Licensee shall immediately cease reselling the Plan Offerings and, within five (5) days after such termination, Licenseeshall return all Marketing Materials to GDSA and shall destroy or return all Confidential Information to GDSA, without retaining any copies of such Marketing Materials and Confidential Information. All provisions of this Agreement, which by their nature should reasonably be expected to survive the termination of this Agreement shall survive the termination of this Agreement for any reason, including, without limitation, Sections 2.3, 4, 7, 8, 9, and 10. However, GDSA and Licensee commit to provide best efforts in their businesses in order to continue on a long term business relationship.
4.2 GDSA reserves the right to suspend or terminate Services, or any portion thereof, or terminate this Agreement upon one of the following events:
4.2.1 A breach of this written License Agreement (other than the payment of amounts due hereunder) and Licensee fails to cure such breach within thirty (30) calendar days after written notice of the breach;
4.2.2 A failure by Licensee to pay any amounts due to GDSA under this Agreement;
4.2.3 Licensee suffers any adverse financial change or takes or suffers any action as a result of its indebtedness, including without limitation a voluntary liquidation or period of inactivity, an action in bankruptcy, an assignment for the benefit of creditors, the appointment of a receiver or trustee or the liquidation of all or substantially all of its assets or GDSA determines that Licensee is not creditworthy;
4.2.4 Upon a determination by any governmental authority with jurisdiction over the parties that the provision of the Services under this Agreement is contrary to existing laws, rules or regulations;
4.2.5 The passage of adoption of any law, rule or regulation that in the reasonable judgement of GDSA will make it materially more expensive or difficult to provide the Services under this Agreement.
4.2.6 Either party may terminate the renewal of this Agreement upon thirty (30) days written notice prior to the expiration of the initial or any renewal term. In such case, Licensee will be entitled to invoice and receive from GDSA immediately all amounts due to Licensee by GDSA and so starting from the Termination date.
4.3 Upon the termination of this Agreement for any reason, GDSA will be entitled to immediately cease providing Services to Licesee. All amounts due to GDSA will become immediately due and payable upon such termination. GDSA shall continue to offer services to existing End Users until their membership for services expires. In the case of Termination due to a breach of of this Agreement, Licensee shall not be entitled to any Fees after termination date.
Notwithstanding the termination of this Agreement for any reason, the provisions of this Agreement that by their nature survive termination will continue to apply.
5. Compensation.
All out-of-pocket expenses incurred by Licensee in the process of referring a Prospect and meeting its obligations under this Agreement are the sole responsibility of the Licesee. On a monthly basis, on Licesee’s monthly billing date, GDSA shall credit Licesee’s bank account with the Licensee Fee payable to Licensee in respect of all Service Fee Revenue actually received by GDSA from an End User referred by Licensee in accordance with this Agreement. Licensee Fees shall not be payable in connection with any End User whose right to make use of the Plan Offering has been terminated by GDSA, in its discretion. Licensee Fees shall be credited against storage fees payable by Licensee in connection with Licesee’s own use of the Plan Offering. All payments to Licensee in principle shall be paid once per month as GDSA needs to have free and clear payment from End User’s credit card processing.
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GlobeX Data SA® Secure Cloud Services
Licensee License Agreement and Program
Service Fee Revenue shall be paid, if at all, by the last day of the month following the date that GDSA actually receives payment for a Plan Offering (which payment shall be made on the last day of such month). By way of example, if a Service Fee Revenue payment is on January 10, GDSA would expect to receive payment on or about February 9 (30 days after first payment) and would expect to pay the Licensee on or about March 31st.
Licensee has also the option of collecting funds directly from End User. In this case, payment to GDSA is due ten (10) calendar days from receiving electronic invoice from GDSA and any late payment older than twenty (20) calendar days shall be ground for suspension of all accounts. Invoices shall be sent at the end of each calendar month. Failure of Licenseeto receive GDSA invoice shall not constitute an excuse for non payment to GDSA for Services rendered.
Payments from Licensee to GDSA shall commence for sales started from January 1st 2018.
6. Representations of the Parties.
Each party represents that it has the right to enter into this Agreement. GDSA DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
7. Confidential Information.
GDSA and Licensee acknowledge that during the course of this Agreement, it may acquire information regarding the other Party (“Disclosure Party”) or its affiliates, its business activities and operations or those of its customers and suppliers, and its trade secrets including without limitation its customer lists, prospective customers, rates, network configuration, traffic volume, financial information, computer software, service, processes, methods, knowledge, research, development or other information of a confidential and proprietary nature (hereinafter “Confidential Information”). GDSA and Licensee (“Receiving Party”), who receive the Confidential Information shall hold such information in strict confidence and shall not reveal the same, except for any information which is: (a) generally available to or known to the public; (b) known to such party prior to the negotiations leading to this Agreement; (c) independently developed by such party outside the scope of this Agreement; or (d) lawfully disclosed by or to a third party or tribunal. The Receiving Party may disclose the Confidential Information pursuant to any judicial or governmental request, requirement or order provided, however, The Receiving Party takes all necessary steps to provide prompt and sufficient notice to the Disclosure Party so that the Disclosure Party may contest such request, requirement or order. The Confidential Information of the Disclosure Party shall be safeguarded by the Receiving Party to the same extent that it safeguards its own confidential materials or data relating to its own business and the Receiving Party agrees to limit access to such Confidential Information to employees, agents or representatives who have a need to know such information in order to perform the obligations set forth in this Agreement and further the matter of mutual interest described herein. The parties agree that an impending or existing violation of these confidentiality provisions would cause the Disclosure Party irreparable injury for which it would have no adequate remedy at law, and agree that the Disclosure Party may be entitled to obtain immediate injunctive relief prohibiting such violation, in addition to any rights and remedies available to it. The Receiving Party shall keep Confidential Information in strict confidence and shall not disclose it to any third party. The Receiving Party’s internal disclosure of Confidential Information shall be only to those employees having a need to know such information in connection with this Agreement and only insofar as such persons are bound by a nondisclosure agreement consistent to this Agreement. The Receiving Party shall only use Confidential Information provided to it for purposes of reselling the Plan Offerings in accordance with this Agreement. The Receiving Party shall promptly notify the Disclosure Party of any unauthorized disclosure or use of Confidential Information by any person.
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GlobeX Data SA® Secure Cloud Services
Licensee License Agreement and Program
GDSA guarantees that no data stored by End User in GDSA’s data centre shall be used for any purpose. GDSA has no access to its End User stored data in its data centre. This is a firm company policy and has been firmly rooted into GDSA’s software architecture. Exception to this rule is only made in the event of a serious technical issue and at the demand of the End User for GDSA to try to remedy the technical situation, should there be one.
8. Waranty and Limitation of Liability and Disclaimer of Liability.
Services provided by GDSA hereunder shall be performed in a professional and workmanlike manner and shall substantially conform with the description of Services set forth in the Plan Offerings selected by End User for the duration of the Agreement and any renewals thereof. Should GDSA or Licensee breach this warranty, End User shall so notify Licensee in writing, and Licensee shall use reasonable diligence to remedy such breach within ten (10) days of receipt of End User’s notice.
GDSA WARRANTS THAT ALL DATA STORED IN ITS DATA CENTRE IN SWITZERLAND ARE 99.999% AVAILABLE AT ALL TIME. GDSA ALSO WARRANTS THAT NO ONE IN GDSA WILL ACCESS END USERS DATA STORED IN GDSA DATA CENTRE.
EXCEPT AS PROVIDED IN THIS PARAGRAPH, ALL SERVICES ARE DELIVERED WITHOUT WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS AND ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SOFTWARE. IN NO EVENT SHALL GDSA BE LIABLE TO LICENSEEOR END USER FOR ANY AMOUNT IN EXCESS OF THE FEES ACTUALLY PAID BY END USER TO LICENSEEFOR THE PRECEDING THREE MONTHS FOR SERVICES PROVIDED HEREUNDER. IF THE SOFTWARE AND SERVICES ARE PROVIDED WITHOUT CHARGE, THEN GDSA SHALL HAVE NO LIABILITY TO LICENSEEOR END USER WHATSOEVER. IN NO EVENT SHALL GDSA BE LIABLE TO LICENSEEAND/OR END USER FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR INTERRUPTION OF BUSINESS, LOSS OF DATA, CORRUPTION OF DATA, WHETHER SUCH DAMAGES ARE ALLEGED IN TORT, CONTRACT, INDEMNITY.
LICENSEE AND END USER UNDERSTAND AND AGREE THAT LICENSEE AND END USER DOWNLOAD AND/OR USE THE SOFTWARE AND SERVICE MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SOFTWARE OR SERVICE, AT LICENSEE AND END USER OWN DISCRETION AND RISK AND THAT LICENSEE AND END USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO LICENSEE AND END USER COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF THE SOFTWARE OR SERVICE.
THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE SOFTWARE OR SERVICE, FROM INABILITY TO USE THE SOFTWARE OR SERVICE, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SOFTWARE OR SERVICE (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
THE SOFTWARE AND SERVICE ARE NOT INTENDED FOR USE IN CONNECTION WITH ANY INHERENTLY DANGEROUS APPLICATION THAT COULD RESULT IN DEATH, PERSONAL INJURY, CATASTROPHIC DAMAGE, OR MASS DESTRUCTION, AND LICENSEEAGREES THAT GDSA WILL HAVE NO LIABILITY OF ANY NATURE AS A RESULT OF ANY SUCH USE OF THE SOFTWARE.
The foregoing limitations include and apply to, without limitation, any liability arising out of the performance or failure to perform of any hardware, software, or Internet connection, from any errors, omissions, interruptions in or failure to provide Internet service; from interruptions in web page availability; from the consequences of computer viruses transferred over the Internet or otherwise; or from communication line failure, breach of security due to use of the Internet, or any loss of information or confidentiality due thereto.
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GlobeX Data SA® Secure Cloud Services
Licensee License Agreement and Program
9. Status of the Parties.
It is expressly understood that the parties hereto are acting hereunder as independent contractors and under no circumstances shall any of the employees of one party be deemed to be employees of the other for any purpose. Nothing contained herein will in any way constitute any association, partnership, employment arrangement or joint venture between the Parties hereto, or be construed to evidence the intention of the Parties to establish any such relationship. Neither Party will have the power to bind the other Party or incur obligations on the other Party’s behalf without the other Party’s prior written consent. This Agreement shall not be construed as authority for either party to act on behalf of the other party in any agency or other capacity or to make commitments of any kind for the account of or on behalf of the other party except to the extent and for the purposes expressly provided for and set forth herein. Licensee agrees to be solely responsible for all costs related to its performance under this Agreement.
10. Miscellaneous.
10.1 Governing Law and Jurisdiction.
This Agreement shall be governed by the laws of the Republic and Canton of Geneva, Switzerland and the laws of Switzerland applicable therein. The convention on the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed.
10.2 Severability.
If for any reason any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.
10.3 Successors.
This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns.
10.4 Notices.
Any Notice which either Party hereto may be required or permitted to give to the other Party shall be in writing, and may be delivered personally, by private express courier, by registered, express or certified mail with postage prepaid, by fax or by email, subject to verbal confirmation that such fax or email was received. Any Notice provided to GDSA shall be delivered to GDSA at the following address: Rue du Rhône, 14 Geneva, GE-1204, Switzerland, Attention: CEO or via email at : sales@globexdata.ch. Any Notice provided to Licensee shall be delivered to Licensee at the address set out in the registration information provided by Licesee. Either Party to this Agreement may change its address for purposes of receipt of Notice by providing written Notice of such future change, utilizing the procedures stated herein.
10.5 Further Actions.
Each of the Parties agrees that it shall hereafter execute and deliver such further instruments and do such further acts and things as may be required or useful to carry out the intent and purpose of this Agreement and as are consistent with the terms hereof.
10.6 Assignment.
This Agreement and the appointment of Licensee by GDSA hereunder are personal to Licensee and Licensee shall not have the right or ability to assign or transfer this Agreement (whether by operation of law or otherwise) or subcontract any obligations under this Agreement without the prior written consent of GDSA and any attempted assignment, transfer or subcontracting, without such prior written consent shall be null and void. GDSA may assign or transfer this Agreement or subcontract its obligations under this Agreement without the consent of Licesee. In the case of any merger or transfer in Licesee’s corporate structure, GDSA shall decide at that point to transfer, renew or terminate the License Agreement. GDSA shall not transfer such license to companies it deems as potential competitors to GDSA.
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GlobeX Data SA® Secure Cloud Services
Licensee License Agreement and Program
10.7 Changes to the GlobeX Data SA Secure Cloud Services Licensee Agreement and Program.
This Agreement is subject to the terms and conditions of GDSA’s GlobeX Data SA Secure Cloud Services Licensee Agreement and Program (the “Program”). GDSA reserves the right to make prospective changes to the Program at any time and at its sole discretion upon written notice to Licesee. Changes may include but are not limited to changing the Plan Offering Fees, or the discontinuation of the Program.
10.8 Entire Agreement.
This Agreement constitutes the entire understanding between the Parties with respect to the subject matter hereof and supersedes all prior understandings or agreements between the Parties with respect to such subject matter.
10.9 Set-off.
GDSA shall have the right to satisfy any amount from time to time owing by it to Licensee by way of set-off against any amount from time to time owing by Licensee to GDSA under this Agreement or in respect of any other obligation of Licenseeto GDSA. If Licensee collects funds directly from End User, this clause does not apply.
10.10 Language.
The Parties hereby express their wish that this contract and all related documents be drawn up in English.
10.11 Beta Service.
Licensee acknowledges and agrees that from time to time new and upgraded features and releases shall be offered as a beta version of such Plan Offerings (“Beta Service”) and as such: (a) Licensee acknowledges that the Beta Service is not at the level of performance and compatibility of a final, generally released product offering and may not operate properly, may contain “bugs”, and may be substantially modified by GDSA prior to commercial release; (b) Licesee’s license to or ability to make use of such Beta Service pursuant to this Agreement expires upon availability of a commercial release of that Beta Service from GDSA and (c) Licensee agrees that such Beta Service is provided “as is, where is” without warranty or condition of any kind and GDSA disclaims any liability obligations to Licensee or any End User or any third party of any kind with respect to such Beta Service. Licensee acknowledges that GDSA has not made any representations, promises or guarantees that the Beta Service will ever be announced or made available to anyone in the future. Licensee will be asked to provide feedback regarding the Beta Service and Licensee hereby grants to GDSA a perpetual, royalty-free worldwide license to use and/or incorporate such feedback into any GDSA product or service (including the Beta Service) at any time at the sole discretion of GDSA.
10.11 General Provisions Indemnification.
Licesee, at its own expense, shall defend, indemnify, and hold harmless GDSA, its agents, affiliates, successors, and assigns with respect to any claim or action brought against Licesee, its agents, affiliates, successors, and assigns arising out of or in connection with the operation, condition, or content of End User’s web page, web site, or other Internet graphical or non-graphical interface; any use of Internet facilities conducted or permitted by End User; the conduct of any business, advertising, marketing, or sales in connection therewith; and any negligent or illegal act or omission of End User or any of its agents, contractors, servants, employees, or other users or accesses. Licensee shall promptly notify GDSA of any such claim, shall provide reasonable assistance in connection with the defense and/or settlement thereof, and shall permit GDSA to control the defense and/or settlement thereof. If notified of any allegedly infringing, defamatory, damaging, obscene, illegal, or offensive use or activity, Licensee may (but shall not be required to) investigate the allegation, or refer it to End User or a third party for investigation, and GDSA reserves the right to remove or request the removal of the applicable content from the Web page or any other text or item linked to the Internet. If End User refuses such request, Licensee may, at its option, immediately remove the subject Web page or other text or item from the Internet, suspend the Services provided hereunder, or terminate this Agreement. GDSA shall not be liable for any damages incurred by End User as a result of such action.
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GlobeX Data SA® Secure Cloud Services
Licensee License Agreement and Program
10.12 Waiver.
The failure of either party to give notice of default or to enforce compliance with any of the terms or conditions of this Agreement, the waiver of any term or condition of this Agreement, or the granting of an extension of time for performance, will not constitute a permanent waiver of any term or condition of this Agreement, and this Agreement and each of its provisions will remain at all times in full force and effect until modified by both parties in writing.
10.13 Amendment and Modification.
This Agreement shall not be valid until signed and accepted by a signatory duly authorized to legally bind the parties hereto. No change, amendment, modification, termination or attempted waiver of any of the provisions set forth herein shall be binding unless made in writing and signed by a duly authorized representative of both parties hereto, and no representation, promise, inducement or statement of intention has been made by either party which is not embodied herein.
10.14 Notices.
Any notice, approval, request, authorization, direction or other communication under this Agreement will be given in writing and will be deemed to have been delivered and given for all purposes upon receipt only when mailed first class mail or by nationally recognized overnight courier service, duly addressed and with proper postage, to the address set forth below or such other address as may be provided by the other party in writing for the purpose of receiving such notices including email. All notices required under this Agreement shall be addressed as follows:
If to GDSA:
GlobeX Data SA, Rue du Rhône, 14, Geneva, GE-1204, Switzerland.
Email : sales@globexdata.ch
If to Licesee:
GlobeX Data, Inc., 1420 Fifth Avenue, suite 2200, Seattle, WA 98101, USA.
Email : sales@globexdata.us
10.15 Severability.
If any provision of this Agreement is held invalid or otherwise unenforceable, the enforceability of the remaining provisions shall not be impaired thereby and, in such an event such provisions shall be interpreted so as to best accomplish the intent of the parties within the limits of applicable law.
10.16 Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together will constitute on and the same instrument.
10.17 Entire Agreement.
This Agreement, including any exhibits attached hereto if any, sets forth the entire agreement and understanding of the parties hereto and supersedes and merges any and all prior proposals, negotiations, representations, agreements, arrangements or understandings, both oral and written, relating to the subject matter hereof. The parties hereto have not relied on any proposal, negotiation or representation, whether written or oral, that is not expressly set forth herein.
SIGNATURE PAGE FOLLOWS
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GlobeX Data SA® Secure Cloud Services
Licensee License Agreement and Program
IN WITNESS WHEREOF the parties hereto have entered into this Agreement as of the date first above written.
| FOR GDSA: | GlobeX Data S.A. with Registry No. CH-660-2009007-7 |
By its authorised signatory:
Name: Alain Ghiai
Title: CEO
Date:
| FOR LICESEE: | Globex Data, Inc. With Registry No. with EIN 46-1440118 |
By its authorized signatory:
Name:
Title:
Date:
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Exhibit 10.2
GlobeX Data SA® Secure Cloud Services
Licensee License Agreement and Program
WHEREAS, This License Agreement (“Agreement”) is made on this 7th day of May, 2017 (“Effective Date”), by and between GlobeX Data S.A., a Swiss corporation with Registration No. CH-660-2009007-7 (hereinafter referred to as “GDSA”) with principal offices at Rue du Rhône, Geneva GE-1204, Switzerland,
and
GlobeX Data Ltd., a British Columbia, Canada corporation with Registration No. BC1109261 (hereinafter referred to as “Licensee”) with principal offices at 900-1021 West Hastings Street, Vancouver, BC V6E 0C3, Canada;
WHEREAS, GDSA owns, licenses and provides: (i) a subscription-based Secure Cloud Services and management services, being GDSA’s online software and storage system for cloud storage, file mangement and secure communications to be called “the Secure Cloud Storage and Secure Communications Solutions” offered by GDSA worldwide through its Internet site and affiliate partnerships, as further defined below (“Services”) and;
WHEREAS, Licensee desires to market the Services to companies and individuals alike for the express purpose of providing the Services to the customers or end users (“End User”);
NOW THEREFORE, in consideration of the following conditions set forth in this Agreement, the Parties hereto agree as follows:
1. Definitions.
In this Agreement, the following terms shall have the following meanings:
“Confidential Information” means any and all information which is disclosed by GDSA or Licensee to the other Party of this Agreement verbally, electronically, visually, or in a written or other tangible form which is either identified or should be reasonably understood to be confidential or proprietary. Confidential Information includes, but is not limited to, price lists, trade secrets, computer programs, software, formulas, data, inventions, techniques, marketing plans, strategies and forecasts made available by the disclosing party, whether such information relates to GDSA, Licesee or its third party suppliers or licensors. Confidential Information includes without limitation, information regarding the Plan Offerings.
“End User” means a Prospect or Customer, introduced to GDSA by Licesee, that is licensed by GDSA (in its discretion), Licensee or a GDSA approved sub-Licensee of Licensee pursuant to the terms of the End User License Agreement or Terms of Use accepted by the End User to make use of one or more of the Plan Offerings for its own internal use purposes. All End Users are tracked through a persistent cookie or by manual entry by the Licensee to credit the registration back to the Licesee.
“Plan Offerings” or “Software” or “Service” means: (i) the subscription-based service powered by DigitalSafe®, PrivaTalk® or any brand owered by GDSA being GDSA’s Secure Cloud Services Solutions, being those Plan Offerings that Licensee is permitted to offer to Prospects. The Plan Offerings are described at the pricing page of each GDSA powered service, such as https://www.digitalsafe.com/en/pricing as such descriptions may be amended from time-to-time as provided in this Agreement or any custom plan offering agreed upon by GDSA and Licesee. Licensee is entitled to create its own plans in association with GDSA in order to create integration ease.
“Prospect” means an individual, corporation, company, partnership or other entity, who is a customer of Licensee and who may be a potential End User.
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GlobeX Data SA® Secure Cloud Services
Licensee License Agreement and Program
“Licensee Fee” shall mean an amount of the Full Price Service Fee Revenue paid to GDSA by Licensee for so long as this Agreement remains in effect. Full Price shall mean the pricing displayed on www.digitalsafe.com and/or and/or www.digitalsafe.ch and/or at any given time. A custom plan for Licensee can be tailored by GDSA and Licensee together. In all circumstances, the profit sharing shall be split with GDSA as follows:
| 1. | GDSA shall have TEN percent (10%) of gross revenues due to GDSA and Licensee shall have NINETY percent (90%) of gross revenues du to GDSA. |
The commission on any Prospect undertaken after the signing of this contract and prior to termination that results in a Sale before or after Termination shall be paid to Licensee for the duration of the Prospect relationship with GDSA. Both GDSA and Licensee shall be bound by the accompanying Mutual Non-disclosure Agreement.
| a. | Licensee shall provide to GDSA an updated Prospect list within 24hours of the termination notice. | |
| b. | Licensee shall be granted a twelve (12) month extension from the date of termination to secure a sale with all Prospects listed on the Prospect list. | |
| c. | Any Prospect sales achieved during this period from this extension will be paid to the Licensee by GDSA as per the payment terms as outlined in this agreement for the term of the client relationship with GDSA. |
| 2. | For Telecom sales or ISP companies, Licensee shall consult with GDSA before approaching such companies. A different Profit sharing may be applied depending on the pricing discount issued to Telecom or ISP companies. | |
| 3. | All credit card processing fees are at the charge of Licensee if Licensee processes payment. If payments are processed by GDSA, Licensee shall not be charged for credit card processing fees. | |
| 4. | If Licensee collects payments directly from users, all such payments to GDSA are due by Licensee to GDSA within 30 days of invoice date created by GDSA. | |
| 5. | Licensee shall be responsible for Level 1 Customer Support only as defined in this wikipedia definition of Tier 1 or Level 1 support : https://en.wikipedia.org/wiki/Technical_support#Tier_1. GDSA will be responsible for Level 2 Technical Support as defined in this wikipedia definition of Tier 2 or Level 2 support: https://en.wikipedia.org/wiki/Technical_support#Tier_2. |
“Service Fee Revenue” means the service fees charged by GDSA for either of the Plan Offerings which are actually received by GDSA from a compliant End User or making use of one of the Plan Offerings in accordance with the terms of GDSA’s End User License Agreement and for greater certainty, Service Fee in accordance with the terms of GDSA’s End User License Agreement and for greater certainty, Service Fee Revenue shall not include, applicable taxes, credits to accounts, refunds and/or credit card charge backs.
“Marketing Materials” means creative and collateral content, in standard electronic or similar format, as well as graphics, banners, web-sites, vidéos and other marketing promotional and informative material created by GDSA or any of its affiliated entities.
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GlobeX Data SA® Secure Cloud Services
Licensee License Agreement and Program
2. Appointment of Licesee.
2.1 Grant of License.
On the terms and conditions set out in this Agreement, GDSA hereby grants to Licensee and Licensee hereby accepts from GDSA the following :
| ● | An EXCLUSIVE, TRANSFERABLE license to resell the Plan Offerings to Prospects or any Custom Plan Offering in ALL COUNTRIES EXCEPT, SWITZERLAND, LICHTENSTEIN, THE GRAND-DUCHY of LUXEMBOURG, THE PRINCIPALITY of MONTE-CARLO, THE VATICAN CITY STATE, CANADA and THE UNITED STATES of AMERICA starting Effective Date for a period IN PERPETUITY, unless terminated by GDSA in accordance with the Terms and Conditions of this Agreement. |
Pursuant to this Agreement, Licensee shall market the Plan Offerings to Prospects. Prospects shall subscribe to the Plan Offerings by entering into an End User License Agreement with GDSA by signing direct contract with the Licensee. Acceptance of a Prospect as an End User shall remain in the full discretion of GDSA and GDSA reserves the right, in its discretion, to terminate an End User License Agreement with any such End User in accordance with the terms of the End User License Agreement. End User Agreements can be “Localized” by Licensee with the final approval and review of GDSA. Should Licensee want to have the absolute right to accept any End User, Licensee shall assume the entire liability of acceptance of End User, especially in regards to local government policies and laws enforced by the authorities governing the laws of said territory under which Licensee sells the Services.
2.2 Grant of License to Trade-mark.
On the terms and conditions contained in this Agreement, GDSA grants to Licensee, a non-exclusive, non-transferable license to use the GDSA’s trade names and trade-marks solely in connection with Licesee’s marketing of the Plan Offerings pursuant to this Agreement, provided that Licensee clearly identifies GDSA’s ownership of such names and/or marks including but not limited to all GlobeX Data® DigitalSafe® PrivaTalk® Securus® Sekur® and related brands and trade names and logomarks. All advertising and marketing materials prepared by Licensee for use in marketing the Plan Offerings must, prior to release by Licesee, shall be delivered to GDSA for review and approval, such approval not to be unreasonably withheld or delayed. Licensee agrees not to use any of GDSA’s trademarks, trade names, service marks, corporate names or logos or those of its affiliates (“Marks”) on any press release, advertising or marketing materials without GDSA’s prior written consent. Licensee agrees not to interfere or cause any third party to interfere with GDSA’s intellectual property rights. Licensee acknowledges that the use of the Marks is limited to the use set forth in this Agreement and that Licensee has not acquired and will not acquire any ownership rights therein. Licensee will not alter the text or graphics in any artwork provided by GDSA. Licensee acknowledges GDSA’s ownership of the Marks and agrees not to challenge such ownership rights and agrees that all use thereof inures to the benefit of GDSA. GDSA has the right to discontinue or alter the form, shape or artwork of the Marks. Licensee will maintain high-quality standards in the use of the Marks and not publish illegal materials or engage in illegal business activities in conjunction with any use of the Marks. Licensee will not use the Marks to disparage GDSA, its products or services, and agrees to abide by these terms and conditions. If Licensee is unable or unwilling to fully comply with these terms and conditions, Licensee’s rights to use any of the Marks will terminate and Licensee will immediately cease all use of the Marks. GDSA reserves the right to review any and all of Licensee’s use of the Marks to determine if such use is in compliance with this policy. Both parties may publicly release information related to this Agreement only with the written consent of the other party for each public statement or document. The right to use GDSA’s trade names and trade-marks terminates upon immediate termination of this Agreement.
2.3 Plan Offering and Trade Names and Trade-Marks.
All right, title and interest in and to the Plan Offerings and all components thereof, together with all right, title and interest in and to the Trade Names and Trade-Marks licensed above, remains with GDSA and its affiliateed companies. Except for the limited license granted above, GDSA reserves all other rights in and to the Plan Offerings and such Trade Names, Trade-Marks and Logo-Marks.
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GlobeX Data SA® Secure Cloud Services
Licensee License Agreement and Program
3. Responsibilities of the Parties.
3.1 Best Efforts.
Licensee agrees to utilize its best efforts to assist and/or introduce the Plan Offerings to potential new and existing End Users and to market and promote the Plan Offerings to achieve the maximum extent of distribution of the Plan Offerings. Should Licensee build any collatéral material such as website, video, brochure or other, GDSA shall advise free of charge on any particulars of the Licensee’s collateral material in regards to GDSA’s trademark and logo usage and or content.
3.2 Standards.
Licensee will maintain high standards of professionalism and will at all times comply with all applicable laws and regulations and refrain from any unethical conduct or any other conduct that could damage the reputation of GDSA or the Plan Offerings. Licensee shall conduct its business so as to maintain and increase the goodwill and reputation of GDSA and the Plan Offerings.
3.3 No Side Letters.
Licensee shall not enter into any separate agreements or side letters with End Users regarding any portion of the subject matter addressed in GDSA’s End User License Agreement. Licensee shall not expand any representations or warranties beyond those expressed in GDSA’s End User License Agreement. Licensee has no authority, and shall not make representations, to bind GDSA to an End User License Agreement. Licensee shall not change or offer to change the contractual and/or financial terms of the End User License Agreement in any manner.
3.4 Marketing Support.
As a means of assisting Licesee, GDSA may, from time-to-time, provide Licensee with creative and collateral content, in standard electronic or similar format, as well as graphics, banners and other marketing promotional and informative material about GDSA and its Plan Offerings (the “Marketing Materials”). All right, title and interest in and to the Marketing Materials shall remain with GDSA (or its affiliated entities). Licensee shall not amend, alter or otherwise change the Marketing Materials without the prior written consent of GDSA.
3.5 Access to End User’s Computer or Computer Systems.
To the extent that an End User provides Licensee with an ability to access End User’s computer or computer systems by making use of the Remote Access, Licensee shall be solely responsible for obtaining any necessary consents and other permissions from the End User. Licensee hereby agrees to indemnify and hold harmless GDSA, its officers, directors, shareholders and third party providers and each of their respective heirs, executors, administrators, legal personal representatives, successors and assigns (collectively, the “Indemnitees”) from and against any and all costs, losses, expenses, claims, damages, actions, causes of action and deficiencies, which any of the Indemnitees may suffer or incur as a result of or arising directly or indirectly out of or in connection with Licensee having access to an End User’s computer or computer systems.
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GlobeX Data SA® Secure Cloud Services
Licensee License Agreement and Program
4. Term and Termination
4.1 This Agreement shall remain in full force and effect for a PERPETUAL term (the “Term”), commencing on the Effective Date unless terminated in accordance with this Agreement. If either Party breaches a material provision of this Agreement, the other Party may immediately terminate this Agreement upon written notice to the other Party. Termination under such provision shall have immediate effect.
GDSA may terminate this Agreement at any time, should Licensee breach any part of this Agreement, upon written notice in accordance with this Agreement. In such case, Licensee will be entitled to invoice and receive from GDSA immediately all amounts due to Licensee by GDSA and so starting from the Termination date. Upon termination of this Agreement for any reason, all licenses granted under this Agreement shall immediately terminate, Licensee shall immediately cease reselling the Plan Offerings and, within five (5) days after such termination, Licenseeshall return all Marketing Materials to GDSA and shall destroy or return all Confidential Information to GDSA, without retaining any copies of such Marketing Materials and Confidential Information. All provisions of this Agreement, which by their nature should reasonably be expected to survive the termination of this Agreement shall survive the termination of this Agreement for any reason, including, without limitation, Sections 2.3, 4, 7, 8, 9, and 10. However, GDSA and Licensee commit to provide best efforts in their businesses in order to continue on a long term business relationship.
4.2 GDSA reserves the right to suspend or terminate Services, or any portion thereof, or terminate this Agreement upon one of the following events:
4.2.1 A breach of this written License Agreement (other than the payment of amounts due hereunder) and Licensee fails to cure such breach within thirty (30) calendar days after written notice of the breach;
4.2.2 A failure by Licensee to pay any amounts due to GDSA under this Agreement;
4.2.3 Licensee suffers any adverse financial change or takes or suffers any action as a result of its indebtedness, including without limitation a voluntary liquidation or period of inactivity, an action in bankruptcy, an assignment for the benefit of creditors, the appointment of a receiver or trustee or the liquidation of all or substantially all of its assets or GDSA determines that Licensee is not creditworthy;
4.2.4 Upon a determination by any governmental authority with jurisdiction over the parties that the provision of the Services under this Agreement is contrary to existing laws, rules or regulations;
4.2.5 The passage of adoption of any law, rule or regulation that in the reasonable judgement of GDSA will make it materially more expensive or difficult to provide the Services under this Agreement.
4.2.6 Either party may terminate the renewal of this Agreement upon thirty (30) days written notice prior to the expiration of the initial or any renewal term. In such case, Licensee will be entitled to invoice and receive from GDSA immediately all amounts due to Licensee by GDSA and so starting from the Termination date.
4.3 Upon the termination of this Agreement for any reason, GDSA will be entitled to immediately cease providing Services to Licesee. All amounts due to GDSA will become immediately due and payable upon such termination. GDSA shall continue to offer services to existing End Users until their membership for services expires. In the case of Termination due to a breach of of this Agreement, Licensee shall not be entitled to any Fees after termination date.
Notwithstanding the termination of this Agreement for any reason, the provisions of this Agreement that by their nature survive termination will continue to apply.
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GlobeX Data SA® Secure Cloud Services
Licensee License Agreement and Program
5. Compensation.
All out-of-pocket expenses incurred by Licensee in the process of referring a Prospect and meeting its obligations under this Agreement are the sole responsibility of the Licesee. On a monthly basis, on Licesee’s monthly billing date, GDSA shall credit Licesee’s bank account with the Licensee Fee payable to Licensee in respect of all Service Fee Revenue actually received by GDSA from an End User referred by Licensee in accordance with this Agreement. Licensee Fees shall not be payable in connection with any End User whose right to make use of the Plan Offering has been terminated by GDSA, in its discretion. Licensee Fees shall be credited against storage fees payable by Licensee in connection with Licesee’s own use of the Plan Offering. All payments to Licensee in principle shall be paid once per month as GDSA needs to have free and clear payment from End User’s credit card processing.
Service Fee Revenue shall be paid, if at all, by the last day of the month following the date that GDSA actually receives payment for a Plan Offering (which payment shall be made on the last day of such month). By way of example, if a Service Fee Revenue payment is on January 10, GDSA would expect to receive payment on or about February 9 (30 days after first payment) and would expect to pay the Licensee on or about March 31st.
Licensee has also the option of collecting funds directly from End User. In this case, payment to GDSA is due ten (10) calendar days from receiving electronic invoice from GDSA and any late payment older than twenty (20) calendar days shall be ground for suspension of all accounts. Invoices shall be sent at the end of each calendar month. Failure of Licenseeto receive GDSA invoice shall not constitute an excuse for non payment to GDSA for Services rendered.
Payments from Licensee to GDSA shall commence for sales started from January 1st 2018.
6. Representations of the Parties.
Each party represents that it has the right to enter into this Agreement. GDSA DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
7. Confidential Information.
GDSA and Licensee acknowledge that during the course of this Agreement, it may acquire information regarding the other Party (“Disclosure Party”) or its affiliates, its business activities and operations or those of its customers and suppliers, and its trade secrets including without limitation its customer lists, prospective customers, rates, network configuration, traffic volume, financial information, computer software, service, processes, methods, knowledge, research, development or other information of a confidential and proprietary nature (hereinafter “Confidential Information”). GDSA and Licensee (“Receiving Party”), who receive the Confidential Information shall hold such information in strict confidence and shall not reveal the same, except for any information which is: (a) generally available to or known to the public; (b) known to such party prior to the negotiations leading to this Agreement; (c) independently developed by such party outside the scope of this Agreement; or (d) lawfully disclosed by or to a third party or tribunal. The Receiving Party may disclose the Confidential Information pursuant to any judicial or governmental request, requirement or order provided, however, The Receiving Party takes all necessary steps to provide prompt and sufficient notice to the Disclosure Party so that the Disclosure Party may contest such request, requirement or order. The Confidential Information of the Disclosure Party shall be safeguarded by the Receiving Party to the same extent that it safeguards its own confidential materials or data relating to its own business and the Receiving Party agrees to limit access to such Confidential Information to employees, agents or representatives who have a need to know such information in order to perform the obligations set forth in this Agreement and further the matter of mutual interest described herein. The parties agree that an impending or existing violation of these confidentiality provisions would cause the Disclosure Party irreparable injury for which it would have no adequate remedy at law, and agree that the Disclosure Party may be entitled to obtain immediate injunctive relief prohibiting such violation, in addition to any rights and remedies available to it. The Receiving Party shall keep Confidential Information in strict confidence and shall not disclose it to any third party. The Receiving Party’s internal disclosure of Confidential Information shall be only to those employees having a need to know such information in connection with this Agreement and only insofar as such persons are bound by a nondisclosure agreement consistent to this Agreement. The Receiving Party shall only use Confidential Information provided to it for purposes of reselling the Plan Offerings in accordance with this Agreement. The Receiving Party shall promptly notify the Disclosure Party of any unauthorized disclosure or use of Confidential Information by any person.
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GlobeX Data SA® Secure Cloud Services
Licensee License Agreement and Program
GDSA guarantees that no data stored by End User in GDSA’s data centre shall be used for any purpose. GDSA has no access to its End User stored data in its data centre. This is a firm company policy and has been firmly rooted into GDSA’s software architecture. Exception to this rule is only made in the event of a serious technical issue and at the demand of the End User for GDSA to try to remedy the technical situation, should there be one.
8. Waranty and Limitation of Liability and Disclaimer of Liability.
Services provided by GDSA hereunder shall be performed in a professional and workmanlike manner and shall substantially conform with the description of Services set forth in the Plan Offerings selected by End User for the duration of the Agreement and any renewals thereof. Should GDSA or Licensee breach this warranty, End User shall so notify Licensee in writing, and Licensee shall use reasonable diligence to remedy such breach within ten (10) days of receipt of End User’s notice.
GDSA WARRANTS THAT ALL DATA STORED IN ITS DATA CENTRE IN SWITZERLAND ARE 99.999% AVAILABLE AT ALL TIME. GDSA ALSO WARRANTS THAT NO ONE IN GDSA WILL ACCESS END USERS DATA STORED IN GDSA DATA CENTRE.
EXCEPT AS PROVIDED IN THIS PARAGRAPH, ALL SERVICES ARE DELIVERED WITHOUT WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS AND ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SOFTWARE. IN NO EVENT SHALL GDSA BE LIABLE TO LICENSEEOR END USER FOR ANY AMOUNT IN EXCESS OF THE FEES ACTUALLY PAID BY END USER TO LICENSEEFOR THE PRECEDING THREE MONTHS FOR SERVICES PROVIDED HEREUNDER. IF THE SOFTWARE AND SERVICES ARE PROVIDED WITHOUT CHARGE, THEN GDSA SHALL HAVE NO LIABILITY TO LICENSEEOR END USER WHATSOEVER. IN NO EVENT SHALL GDSA BE LIABLE TO LICENSEEAND/OR END USER FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR INTERRUPTION OF BUSINESS, LOSS OF DATA, CORRUPTION OF DATA, WHETHER SUCH DAMAGES ARE ALLEGED IN TORT, CONTRACT, INDEMNITY.
LICENSEE AND END USER UNDERSTAND AND AGREE THAT LICENSEE AND END USER DOWNLOAD AND/OR USE THE SOFTWARE AND SERVICE MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SOFTWARE OR SERVICE, AT LICENSEE AND END USER OWN DISCRETION AND RISK AND THAT LICENSEE AND END USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO LICENSEE AND END USER COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF THE SOFTWARE OR SERVICE.
THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE SOFTWARE OR SERVICE, FROM INABILITY TO USE THE SOFTWARE OR SERVICE, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SOFTWARE OR SERVICE (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
THE SOFTWARE AND SERVICE ARE NOT INTENDED FOR USE IN CONNECTION WITH ANY INHERENTLY DANGEROUS APPLICATION THAT COULD RESULT IN DEATH, PERSONAL INJURY, CATASTROPHIC DAMAGE, OR MASS DESTRUCTION, AND LICENSEEAGREES THAT GDSA WILL HAVE NO LIABILITY OF ANY NATURE AS A RESULT OF ANY SUCH USE OF THE SOFTWARE.
The foregoing limitations include and apply to, without limitation, any liability arising out of the performance or failure to perform of any hardware, software, or Internet connection, from any errors, omissions, interruptions in or failure to provide Internet service; from interruptions in web page availability; from the consequences of computer viruses transferred over the Internet or otherwise; or from communication line failure, breach of security due to use of the Internet, or any loss of information or confidentiality due thereto.
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GlobeX Data SA® Secure Cloud Services
Licensee License Agreement and Program
9. Status of the Parties.
It is expressly understood that the parties hereto are acting hereunder as independent contractors and under no circumstances shall any of the employees of one party be deemed to be employees of the other for any purpose. Nothing contained herein will in any way constitute any association, partnership, employment arrangement or joint venture between the Parties hereto, or be construed to evidence the intention of the Parties to establish any such relationship. Neither Party will have the power to bind the other Party or incur obligations on the other Party’s behalf without the other Party’s prior written consent. This Agreement shall not be construed as authority for either party to act on behalf of the other party in any agency or other capacity or to make commitments of any kind for the account of or on behalf of the other party except to the extent and for the purposes expressly provided for and set forth herein. Licensee agrees to be solely responsible for all costs related to its performance under this Agreement.
10. Miscellaneous.
10.1 Governing Law and Jurisdiction.
This Agreement shall be governed by the laws of the Republic and Canton of Geneva, Switzerland and the laws of Switzerland applicable therein. The convention on the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed.
10.2 Severability.
If for any reason any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.
10.3 Successors.
This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns.
10.4 Notices.
Any Notice which either Party hereto may be required or permitted to give to the other Party shall be in writing, and may be delivered personally, by private express courier, by registered, express or certified mail with postage prepaid, by fax or by email, subject to verbal confirmation that such fax or email was received. Any Notice provided to GDSA shall be delivered to GDSA at the following address: Rue du Rhône, 14 Geneva, GE-1204, Switzerland, Attention: CEO or via email at : sales@globexdata.ch. Any Notice provided to Licensee shall be delivered to Licensee at the address set out in the registration information provided by Licesee. Either Party to this Agreement may change its address for purposes of receipt of Notice by providing written Notice of such future change, utilizing the procedures stated herein.
10.5 Further Actions.
Each of the Parties agrees that it shall hereafter execute and deliver such further instruments and do such further acts and things as may be required or useful to carry out the intent and purpose of this Agreement and as are consistent with the terms hereof.
10.6 Assignment.
This Agreement and the appointment of Licensee by GDSA hereunder are personal to Licensee and Licensee shall not have the right or ability to assign or transfer this Agreement (whether by operation of law or otherwise) or subcontract any obligations under this Agreement without the prior written consent of GDSA and any attempted assignment, transfer or subcontracting, without such prior written consent shall be null and void. GDSA may assign or transfer this Agreement or subcontract its obligations under this Agreement without the consent of Licesee. In the case of any merger or transfer in Licesee’s corporate structure, GDSA shall decide at that point to transfer, renew or terminate the License Agreement. GDSA shall not transfer such license to companies it deems as potential competitors to GDSA.
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GlobeX Data SA® Secure Cloud Services
Licensee License Agreement and Program
10.7 Changes to the GlobeX Data SA Secure Cloud Services Licensee Agreement and Program.
This Agreement is subject to the terms and conditions of GDSA’s GlobeX Data SA Secure Cloud Services Licensee Agreement and Program (the “Program”). GDSA reserves the right to make prospective changes to the Program at any time and at its sole discretion upon written notice to Licesee. Changes may include but are not limited to changing the Plan Offering Fees, or the discontinuation of the Program.
10.8 Entire Agreement.
This Agreement constitutes the entire understanding between the Parties with respect to the subject matter hereof and supersedes all prior understandings or agreements between the Parties with respect to such subject matter.
10.9 Set-off.
GDSA shall have the right to satisfy any amount from time to time owing by it to Licensee by way of set-off against any amount from time to time owing by Licensee to GDSA under this Agreement or in respect of any other obligation of Licenseeto GDSA. If Licensee collects funds directly from End User, this clause does not apply.
10.10 Language.
The Parties hereby express their wish that this contract and all related documents be drawn up in English.
10.11 Beta Service.
Licensee acknowledges and agrees that from time to time new and upgraded features and releases shall be offered as a beta version of such Plan Offerings (“Beta Service”) and as such: (a) Licensee acknowledges that the Beta Service is not at the level of performance and compatibility of a final, generally released product offering and may not operate properly, may contain “bugs”, and may be substantially modified by GDSA prior to commercial release; (b) Licesee’s license to or ability to make use of such Beta Service pursuant to this Agreement expires upon availability of a commercial release of that Beta Service from GDSA and (c) Licensee agrees that such Beta Service is provided “as is, where is” without warranty or condition of any kind and GDSA disclaims any liability obligations to Licensee or any End User or any third party of any kind with respect to such Beta Service. Licensee acknowledges that GDSA has not made any representations, promises or guarantees that the Beta Service will ever be announced or made available to anyone in the future. Licensee will be asked to provide feedback regarding the Beta Service and Licensee hereby grants to GDSA a perpetual, royalty-free worldwide license to use and/or incorporate such feedback into any GDSA product or service (including the Beta Service) at any time at the sole discretion of GDSA.
10.11 General Provisions Indemnification.
Licesee, at its own expense, shall defend, indemnify, and hold harmless GDSA, its agents, affiliates, successors, and assigns with respect to any claim or action brought against Licesee, its agents, affiliates, successors, and assigns arising out of or in connection with the operation, condition, or content of End User’s web page, web site, or other Internet graphical or non-graphical interface; any use of Internet facilities conducted or permitted by End User; the conduct of any business, advertising, marketing, or sales in connection therewith; and any negligent or illegal act or omission of End User or any of its agents, contractors, servants, employees, or other users or accesses. Licensee shall promptly notify GDSA of any such claim, shall provide reasonable assistance in connection with the defense and/or settlement thereof, and shall permit GDSA to control the defense and/or settlement thereof. If notified of any allegedly infringing, defamatory, damaging, obscene, illegal, or offensive use or activity, Licensee may (but shall not be required to) investigate the allegation, or refer it to End User or a third party for investigation, and GDSA reserves the right to remove or request the removal of the applicable content from the Web page or any other text or item linked to the Internet. If End User refuses such request, Licensee may, at its option, immediately remove the subject Web page or other text or item from the Internet, suspend the Services provided hereunder, or terminate this Agreement. GDSA shall not be liable for any damages incurred by End User as a result of such action.
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GlobeX Data SA® Secure Cloud Services
Licensee License Agreement and Program
10.12 Waiver.
The failure of either party to give notice of default or to enforce compliance with any of the terms or conditions of this Agreement, the waiver of any term or condition of this Agreement, or the granting of an extension of time for performance, will not constitute a permanent waiver of any term or condition of this Agreement, and this Agreement and each of its provisions will remain at all times in full force and effect until modified by both parties in writing.
10.13 Amendment and Modification.
This Agreement shall not be valid until signed and accepted by a signatory duly authorized to legally bind the parties hereto. No change, amendment, modification, termination or attempted waiver of any of the provisions set forth herein shall be binding unless made in writing and signed by a duly authorized representative of both parties hereto, and no representation, promise, inducement or statement of intention has been made by either party which is not embodied herein.
10.14 Notices.
Any notice, approval, request, authorization, direction or other communication under this Agreement will be given in writing and will be deemed to have been delivered and given for all purposes upon receipt only when mailed first class mail or by nationally recognized overnight courier service, duly addressed and with proper postage, to the address set forth below or such other address as may be provided by the other party in writing for the purpose of receiving such notices including email. All notices required under this Agreement shall be addressed as follows:
If to GDSA:
GlobeX Data SA, Rue du Rhône, 14, Geneva, GE-1204, Switzerland.
Email : sales@globexdata.ch
If to Licesee:
GlobeX Data Ltd., 900-1021 West Hastings Street, Vancouver, BC V6E 0C3, Canada.
Email : corporate@globexdatagroup.com
10.15 Severability.
If any provision of this Agreement is held invalid or otherwise unenforceable, the enforceability of the remaining provisions shall not be impaired thereby and, in such an event such provisions shall be interpreted so as to best accomplish the intent of the parties within the limits of applicable law.
10.16 Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together will constitute on and the same instrument.
10.17 Entire Agreement.
This Agreement, including any exhibits attached hereto if any, sets forth the entire agreement and understanding of the parties hereto and supersedes and merges any and all prior proposals, negotiations, representations, agreements, arrangements or understandings, both oral and written, relating to the subject matter hereof. The parties hereto have not relied on any proposal, negotiation or representation, whether written or oral, that is not expressly set forth herein.
SIGNATURE PAGE FOLLOWS
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GlobeX Data SA® Secure Cloud Services
Licensee License Agreement and Program
IN WITNESS WHEREOF the parties hereto have entered into this Agreement as of the date first above written.
| FOR GDSA: | GlobeX Data S.A. with Registry No. CH-660-2009007-7 |
By its authorised signatory:
Name: Alain Ghiai
Title: CEO
Date: May 7th 2017
| FOR LICESEE: | Globex Data Ltd., with Registration No. BC1109261 |
By its authorized signatory:
Name: Henry Sjöman
Title: Director
Date: May 7th 2017
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Exhibit 10.3
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT dated as of March 30, 2018 (herein referred to as this “Agreement”) is entered into by Alain Ghiai (the “Seller”), GlobeX Data, Inc. a Delaware corporation (“GlobeX US”), and GlobeX Data Ltd., a British Columbia corporation (the “Purchaser”).
WHEREAS:
| A. | The Seller is the beneficial and registered holder of a total of 1,500 shares of common stock of GlobeX US (the “GlobeX US Shares”); and |
| B. | The Purchaser wishes to purchase from the Seller, and the Seller wish to sell to the Purchaser, the GlobeX US Shares upon the terms and conditions set forth in this Agreement; |
NOW THEREFORE, in consideration of the premises and mutual covenants and agreements contained in this Agreement and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. INTERPRETATION
| (a) | Definitions. In this Agreement and in the Schedules hereto, unless specifically stated otherwise, and in addition to any of the defined terms set out in the preamble above, the following terms and expressions will have the following meanings: | |
| (b) | “Affiliate” means, with respect to any Person, any other Person that, directly or indirectly, controls, or is controlled by, or is under common control with, that Person. | |
| (c) | “Closing” means the closing of the transactions contemplated in this Agreement. | |
| (d) | “Closing Date” has the meaning set forth in Section 4.1. | |
| (e) | “Closing Deadline” has the meaning set forth in Section 4.1. | |
| (f) | “Consideration Shares” has the meaning set forth in Section 2.1. | |
| (g) | “Encumbrances” means any charge, claim, community or other marital property interest, condition, equitable interest, lien, option, pledge, security interest, mortgage, escrow, right of way, easement, encroachment, servitude, pre-emptive right, right of first option, right of first refusal or similar restriction, including any restriction on use, voting (in the case of any security or equity interest), transfer, receipt of income or exercise of any other attribute of ownership. | |
| (h) | “GlobeX Canada Shares” means the common shares of the Purchaser, without par value. | |
| (i) | “Material Adverse Effect” means a material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of GlobeX US or the Purchaser (as the context may require). | |
| (j) | “Material Adverse Change” shall mean any change that could reasonably be expected to result in a Material Adverse Effect. | |
| (k) | “GlobeX US Shares” shares of common stock of GlobeX Data, Inc. | |
| (l) | “Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, limited partnership, limited liability partnership, joint stock company, government (or agency or subdivision thereof) or other entity of any kind. | |
| (m) | “Proceeding” means any action, arbitration, audit, hearing, investigation, litigation or suit (whether civil, criminal, administrative, judicial or investigative, whether formal or informal, whether public or private) commenced, brought, conducted or heard by or before, or otherwise involving, any court, governmental body or arbitrator. |
2. PURCHASE AND SALE OF GLOBEX US SHARES
2.1. Purchase and Sale of Principal Shares. At the Closing provided for in Section 3.1, the Seller will sell to the Purchaser, and the Purchaser will purchase from the Seller, 1,500 GlobeX US Shares and the Purchaser will issue 25,000,000 common shares of the Purchaser (the “Consideration Shares”).
3. CONDITIONS OF CLOSING
3.1. Conditions Precedent in Favor of the Seller. The obligations of the Seller hereunder in connection with the Closing are subject to the following conditions precedent being met:
| (a) | each of the respective representations and warranties of the Purchaser contained in this Agreement or in any other certificate or document delivered by the Purchaser to the Seller pursuant hereto shall be substantially true and correct as of the date hereof and as of the Closing Date; | |
| (b) | between the date hereof and the Closing Date, there shall have been no Material Adverse Change in the affairs, assets, liabilities or financial condition of the Purchaser; and | |
| (c) | all obligations, covenants and agreements of the Purchaser required to be performed at or prior to the Closing Date shall have been performed. |
3.2. Conditions Precedent in Favor of the Purchaser. The obligations of the Purchaser hereunder in connection with the Closing are subject to the following conditions being met:
| (a) | between the date hereof and the Closing Date, there shall have been no Material Adverse Change in the affairs, assets, liabilities or financial condition of GlobeX US; | |
| (b) | each of the respective representations and warranties of the Seller and GlobeX US contained in this Agreement or in any other certificate or document delivered by the Seller or GlobeX US to the Purchaser pursuant hereto shall be substantially true and correct as of the date hereof and as of the Closing Date; and | |
| (c) | all obligations, covenants and agreements of the Seller and GlobeX US required to be performed at or prior to the Closing Date shall have been performed |
4. CLOSING ARRANGEMENTS
4.1. Closing. Subject to the satisfaction or waiver of all of the conditions precedent to Closing as set out in this Agreement, Closing of the transactions contemplated herein shall take place at such place and time on the Closing Date as may be agreed to by the parties hereto. The Closing Date shall be such date as is agreed upon by the parties hereto, but shall be no later than 5:00 PM (Pacific Time) on ___________ (the “Closing Deadline”). Unless otherwise agreed to by each of the parties hereto, if Closing does not occur on or before the Closing Deadline, this Agreement shall automatically be terminated and of no further force.
4.2. Closing Deliveries of the Seller and GlobeX US. On or prior to the Closing Date, the Seller and GlobeX US shall deliver or cause to be delivered to the Purchaser with a copy of the central securities register of GlobeX US indicating that the GlobeX US Shares have been registered in the name of the Purchaser. At the Purchaser’s request GlobeX US shall provide a copy of a share certificate evidencing the Purchaser’s ownership of the GlobeX US Shares.
4.3. Closing Deliveries of the Purchaser. On or prior to the Closing Date, the Purchaser shall deliver or cause to be delivered to the Seller and GlobeX US with a copy of the central securities register of the Seller indicating that the Consideration Shares have been registered in the name of the Seller name of the Seller or their designate(s). At the Seller’s request the Purchaser shall provide a copy of a share certificate evidencing the Seller’s ownership of the Consideration Shares.
5. WARRANTIES, REPRESENTATIONS AND COVENANTS
5.1. Representations, Warranties and Covenants of GlobeX US and the Seller. The Seller and GlobeX US collectively represent, warrant and covenant to and with the Purchaser as follows, and acknowledge that the Purchaser is relying upon such representations, warranties and covenants in entering into this Agreement and the transactions contemplated hereby:
| (a) | Subsidiaries of GlobeX US. GlobeX US does not have any subsidiaries or agreements of any nature to acquire any subsidiary or to acquire or lease any other business operations and will not, prior to Closing, acquire, or agree to acquire, any subsidiary or other business without the prior written consent of the Purchaser. | |
| (b) | Organization and Qualification of GlobeX US. GlobeX US is an entity duly incorporated or otherwise organized, validly existing and in good standing under laws of the State of Delaware, with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted. GlobeX US has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder and thereunder. | |
| (c) | No Conflicts - GlobeX US. The execution, delivery and performance by GlobeX US of this Agreement, the sale and purchase of the GlobeX US Shares by the Seller to the Purchaser and the consummation by them of the transactions contemplated hereby and thereby do not and will not: (i) conflict with or violate any provision of GlobeX US’s certificate or articles of incorporation or other organizational or charter documents, (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any Encumbrances upon any of the properties or assets of GlobeX US, or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a GlobeX US debt or otherwise) or other understanding to which GlobeX US is a party or by which any property or asset of GlobeX US is bound or affected, or (iii) conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which GlobeX US is subject (including federal and provincial securities laws and regulations), or by which any property or asset of GlobeX US is bound or affected; except in the case of each of clauses (ii) and (iii), such as could not have or reasonably be expected to result in a Material Adverse Effect. | |
| (d) | Filings, Consents and Approvals - GlobeX US. GlobeX US is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, provincial, state, local or other governmental authority or other Person in connection with the execution, delivery and performance by GlobeX US of the transactions contemplated by this Agreement. | |
| (e) | Minute Books – GlobeX US. GlobeX US has delivered to the Purchaser true, accurate, correct and complete copies of each of the minute books of GlobeX US, including, but not limited to, the articles and other constating documents of GlobeX US, current as to the date hereof, and copies of the minutes of all meetings, all written consent resolutions passed by, the directors and shareholders of GlobeX US from the date of GlobeX US’s incorporation to the date hereof. The meetings of the shareholders and directors referred to in such minute books were duly called and held, and the resolutions appearing in such minute books were duly adopted. The signatures appearing on all documents contained in such minute books are the true signatures of the Persons purporting to have signed the same. | |
| (f) | Capitalization – GlobeX US. The authorized capital of GlobeX US consists of an unlimited number of Common shares of which 1,500 common shares, without par value (the “Outstanding GlobeX US Shares”) are, as of the date of this Agreement, issued and are outstanding. Each of the Outstanding GlobeX US Shares has been duly and validly issued, are fully paid and non-assessable and are free and clear of all Encumbrances other than restrictions on transfer as required under applicable securities laws or the constating documents of GlobeX US. Other than pursuant to this Agreement no Person has any agreement or option, including convertible securities, warrants, convertible obligations of any nature, or any right or privilege (whether by law, pre-emptive or contractual) capable of becoming an agreement or option for the purchase, subscription, allotment or issuance of any of the unissued shares in the capital of GlobeX US. There are no shareholder agreements, voting agreements or other similar agreements with respect to GlobeX US’s capital stock to which GlobeX US or the Seller are a party. GlobeX US will not, without the prior written consent of the Purchaser, issue any additional shares from and after the date hereof to the Closing Date or create any options, warrants or rights for any Person to subscribe for any unissued shares in the capital of GlobeX US, other than pursuant to this Agreement. |
| (g) | Authorization; Enforcement – Seller. This Agreement upon delivery will be, duly executed by the Seller and, when delivered in accordance with the terms hereof and thereof, will constitute the valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law. | |
| (h) | No Conflicts - Seller. The execution, delivery and performance by the Seller of this Agreement the sale and purchase of the GlobeX US Shares by the Seller to the Purchaser and the consummation by it of the transactions contemplated hereby and thereby do not and will not: (i) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any Encumbrances upon any of the properties or assets of the Seller or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a debt of the Seller or otherwise) or other understanding to which the Seller is a party or by which any property or asset of the Seller is bound or affected, or (ii) conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Seller is subject (including federal and provincial securities laws and regulations), or by which any property or asset of the Seller is bound or affected; except in the case of each of clauses (i) and (ii), such as could not have or reasonably be expected to result in a Material Adverse Effect. | |
| (i) | Filings, Consents and Approvals - Seller. The Seller is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or other Person in connection with the execution, delivery and performance by the Seller of the transactions contemplated by this Agreement. | |
| (j) | Ownership of GlobeX US Shares. The Seller, holding 100% of the Outstanding GlobeX US Shares, is the sole legal and recorded owner of the GlobeX US Shares are the sole beneficial owners of the Outstanding GlobeX US Shares, with good and marketable title thereto, free and clear of all Encumbrances other than restrictions on transfer as required under applicable securities laws or the constating documents of GlobeX US.: | |
| (k) | Reporting Issuer Status – GlobeX US. GlobeX US is not a “reporting issuer” under the securities laws of any jurisdiction in Canada or the U.S. and is not, to the best of GlobeX US’s and the Seller’s knowledge, after reasonable investigation, required to file periodic or other reports under the securities laws of any other applicable jurisdiction. | |
| (l) | Books and Records – GlobeX US. GlobeX US keeps its books, records and accounting (including, without limitation, those kept for financial reporting and tax purposes) in sufficient detail to present fairly the transactions and dispositions of its assets, liabilities and equities. GlobeX US has not engaged in any transaction, maintained any bank account, or used any funds except for transactions, bank accounts and funds that have been and are reflected in the normally maintained books, records and accounts of GlobeX US. | |
| (m) | Litigation - GlobeX US. There is no current or pending Proceeding, and to the knowledge of GlobeX US and the Seller no Proceeding has been threatened, against or affecting GlobeX US or any of its properties or assets which (i) adversely affects or challenges the legality, validity or enforceability of any this Agreement or the GlobeX US Shares or (ii) could, if there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect in relation to GlobeX US or the GlobeX US Shares. Neither GlobeX US, nor any director or officer thereof, is or has been the subject of any Proceeding involving a claim of violation of or liability under any applicable laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge of GlobeX US or the Seller, there is no pending or contemplated, any investigation by any governmental authority involving GlobeX US or any current or former director or officer of GlobeX US. No provincial or foreign securities authority has issued any cease trade or similar order with respect to the GlobeX US Shares. |
| (n) | Litigation - Seller. There is no current or pending Proceeding, and to the knowledge of GlobeX US and the Seller no Proceeding has been threatened, against or affecting the Seller or any of their properties or assets which (i) adversely affects or challenges the legality, validity or enforceability of this Agreement or the GlobeX US Shares or (ii) could, if there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect in relation to GlobeX US or the GlobeX US Shares. | |
| (o) | Compliance - GlobeX US. GlobeX US is not: (i) in default under or in violation of (and no event has occurred that has not been waived that, with notice or lapse of time or both, would result in a default by GlobeX US under), nor has GlobeX US received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound (whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree, or order of any court, arbitrator or other governmental authority or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental authority, including without limitation all foreign, federal, provincial and local laws relating to taxes, environmental protection, occupational health and safety, product quality and safety and employment and labor matters, except in each case as could not have or reasonably be expected to result in a Material Adverse Effect. | |
| (p) | Regulatory Permits. GlobeX US possesses all certificates, authorizations and permits issued by the appropriate federal, provincial, local or foreign regulatory authorities necessary to carry on its business as currently conducted, except where the failure to possess such permits could not reasonably be expected to result in a Material Adverse Effect (“Material Permits”), and neither GlobeX US nor the Seller have received any notice of proceedings relating to the revocation or modification of any Material Permit. | |
| (q) | Title to Assets. GlobeX US has good and marketable title in all personal property owned by it that is material to the business of GlobeX US, in each case free and clear of all Encumbrances, (i) any other Encumbrances as do not materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by GlobeX US; and (ii) Encumbrances for the payment of federal, provincial, state or other taxes, for which appropriate reserves have been made therefor in accordance with International Financial Reporting Standards and the payment of which is neither delinquent nor subject to penalties. Any real or personal property and facilities held under lease by GlobeX US is held by GlobeX US under valid, subsisting and enforceable leases with which GlobeX US is in material compliance and/or mutually agreed upon arrangements have been reached with the landlord. | |
| (r) | Transactions with Affiliates and Employees. None of the officers, directors or any Affiliate of GlobeX US or the Seller, and to the knowledge of GlobeX US and the Seller, none of the employees of GlobeX US or the Seller, is/are presently a party to any transaction with GlobeX US (other than, in the case of an employee, officer or director, for services as an employee, officer or director or via a corporation controlled by such officer or director) including, without limitation, any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for the rental of real or personal property, to or from, providing for the borrowing of money to or otherwise requiring payments to or from any such officer, director, employee or Affiliate or, to the knowledge of GlobeX US and the Seller, any entity in which any officer, director, employee or Affiliate has a substantial interest or is an officer, director, trustee, stockholder, member or partner. | |
| (s) | Solvency - GlobeX US. GlobeX US and the Seller have no knowledge of any facts or circumstances currently in existence which lead them to believe that GlobeX US will file for reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction within two years from the Closing Date. | |
| (t) | Tax Status. For purposes of this Section 5.1(u), “taxes” shall mean any and all federal, provincial, state, local or foreign taxes, charges, levies, fees, imposts, duties or other assessments, including any interest, penalties and additions imposed thereon. |
| (i) | As of the date hereof, (A) GlobeX US has timely filed all tax returns in connection with any taxes which are required to be filed on or prior to the date hereof, taking into account any extensions of the filing deadlines which have been validly granted to them; and (B) all such returns are true and correct in all material respects. |
| (ii) | GlobeX US has paid all taxes that have become or are due with respect to any period ended on or prior to the date hereof, and have established an adequate reserve therefore on its balance sheet for those taxes not yet due and payable. | |
| (iii) | GlobeX US is not presently under and have not received notice of, any contemplated investigation or audit by the Canada Revenue Agency or any foreign or provincial taxing authority concerning any fiscal year or period ended prior to the date hereof. | |
| (iv) | All taxes required to be withheld on or prior to the date hereof from employees for income taxes, social security taxes, unemployment taxes and other similar withholding taxes have been properly withheld and, if required on or prior to the date hereof, have been deposited with the appropriate governmental agency. |
| (u) | Guarantees of Indebtedness. GlobeX US has not guaranteed any dividend, obligation or indebtedness of any other Person, nor has any other Person guaranteed any dividend, obligation or indebtedness of GlobeX US. |
5.2. Reliance on Exemptions from Prospectus Requirements. The Seller acknowledges that:
| (a) | No securities commission or similar regulatory authority has reviewed or passed on the merits of the Consideration Shares. | |
| (b) | There is no government or other insurance covering the Consideration Shares. | |
| (c) | There are risks associated with the purchase of the Consideration Shares contemplated pursuant to the provisions of this Agreement. | |
| (d) | There are restrictions on the Seller’s ability to resell the Consideration Shares and it is the responsibility of the Seller to find out what those restrictions are and to comply with them before selling the Consideration Shares. | |
| (e) | The Purchaser has advised the Seller that the Purchaser is relying on an exemption from the requirements to provide the Seller with a prospectus and to sell Consideration Shares through a Person registered to sell securities under applicable Canadian securities laws and, as a consequence of acquiring the Consideration Shares pursuant to this exemption, certain protections, rights and remedies provided by the applicable Canadian securities laws, including statutory rights of rescission or damages, will not be available to the Seller. | |
| (f) | Investment Risks. The Seller acknowledge that an investment in the Purchaser is highly speculative, and involves a high degree of risk as the Purchaser is in the early stages of developing its business, and that only Persons who can afford the loss of their entire investment should consider investing in the Purchaser. The Seller acknowledge that the Seller is able to fend for themselves, can bear the economic risk of the Seller’s investment, and has such knowledge and experience in financial or business matters such that the Seller is capable of evaluating the merits and risks of an investment in the Purchaser’s securities as contemplated in this Agreement. | |
| (g) | Full Disclosure. The Seller believe that they have received all the information they consider necessary or appropriate for deciding whether to purchase the Consideration Shares as provided for in this Agreement. The Seller further represent that they have had an opportunity to ask questions and receive answers from the Purchaser regarding the business, properties, prospects and financial condition of the Purchaser. | |
| (h) | Acquisition of Consideration Shares as Principal. The Seller is purchasing the Consideration Shares hereunder as principal for the Seller’s own account and not for the benefit of any other Person, and the Seller is purchasing the Consideration Shares for investment purposes only and has no present intention of distributing or reselling the Consideration Shares. |
5.3. Representations, warranties and covenants of the Purchaser. The Purchaser, hereby represents, warrants and covenants to and with GlobeX US and the Seller as follows, and acknowledges that GlobeX US and the Seller are each relying upon such representations, warranties covenants in entering into this Agreement and the transactions contemplated hereby:
| (a) | Organization and Qualification of Purchaser. The Purchaser is an entity duly incorporated or otherwise organized, validly existing and in good standing under laws of the Province of British Columbia, with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted. The Purchaser is not in violation nor in default of any of the provisions of its articles of incorporation, bylaws or other organizational or charter documents. The Purchaser is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, could not have or reasonably be expected to result in a Material Adverse Effect, and no Proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke or limit or curtail such power and authority or qualification. | |
| (b) | Authorization; Enforcement - Purchaser. The Purchaser has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of each of this Agreement and the consummation by it of the transactions contemplated hereby and thereby have been, or prior to Closing will be, duly authorized by all necessary action on the part of the Purchaser and no further action is required by the Purchaser, the board of directors of the Purchaser or the Purchaser’s stockholders in connection herewith or therewith. This Agreement upon delivery, will be, duly executed by the Purchaser and, when delivered in accordance with the terms hereof and thereof, will constitute the valid and binding obligation of the Purchaser enforceable against the Purchaser in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law. | |
| (c) | No Conflicts - Purchaser. The execution, delivery and performance by the Purchaser of this Agreement, the sale and purchase of the GlobeX US Shares by the Seller to the Purchaser and the consummation by it of the transactions contemplated hereby and thereby do not and will not: (i) conflict with or violate any provision of the Purchaser’s certificate or articles of incorporation, bylaws or other organizational or charter documents, (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any Encumbrance upon any of the properties or assets of the Purchaser, or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a debt of the Purchaser or otherwise) or other understanding to which the Purchaser is a party or by which any property or asset of the Purchaser is bound or affected, or (iii) conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Purchaser is subject (including federal and state securities laws and regulations), or by which any property or asset of the Purchaser is bound or affected; except in the case of each of clauses (ii) and (iii), such as could not have or reasonably be expected to result in a Material Adverse Effect. | |
| (d) | Filings, Consents and Approvals - Purchaser. The Purchaser is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, provincial, local or other governmental authority or other Person in connection with the execution, delivery and performance by the Purchaser of the transactions contemplated by this Agreement. | |
| (e) | Capitalization – Purchaser. The authorized capital of the Purchaser consists of an unlimited number of GlobeX Canada Shares and an unlimited number of preferred shares without par value. | |
| (f) | Issuance of the Consideration Shares. The Consideration Shares are duly authorized and, when issued and paid for, the Consideration Shares will be duly and validly issued, fully paid and non-assessable, free and clear of all Encumbrances imposed by the Purchaser other than restrictions on transfer provided for under applicable securities laws. |
| (g) | Full Disclosure. The Purchaser believes that it has received all the information it considers necessary or appropriate for deciding whether to purchase the GlobeX US Shares as provided for in this Agreement. The Purchaser further represents that it have had an opportunity to ask questions and receive answers from the Seller regarding the business, properties, prospects and financial condition of the Seller. | |
| (h) | Reporting Issuer Status – GlobeX Canada. The Purchaser is not a “reporting issuer” under the securities laws of any jurisdiction in Canada and is not, to the best of the Purchaser’s knowledge, after reasonable investigation, required to file periodic or other reports under the securities laws of any other applicable jurisdiction. |
6. RESALE RESTRICTIONS – CONSIDERATION SHARES
6.1. The Seller acknowledge that the Consideration Shares are being issued pursuant to exemptions from the prospectus requirements of applicable Canadian securities laws and that, as a result, the Consideration Shares will be subject to restrictions on resale imposed by applicable Canadian securities laws.
7. ADDITIONAL COVENANTS OF THE PARTIES
7.1. Assistance with Securities Law Disclosures. GlobeX US and the Seller agree to provide the Purchaser, at the Purchaser’s expense, with such information regarding GlobeX US and the Seller as the Purchaser may reasonably request for the purpose of preparing such reports, schedules, forms, statements or other documents required to be filed, furnished or disclosed by the Purchaser with respect to, or in anticipation of Closing of, the transactions contemplated under this Agreement or under the provisions of applicable securities laws.
8. GENERAL PROVISIONS
| (a) | Further Assurances. Each party to this Agreement shall make, execute, acknowledge and deliver such other instruments and documents, and take all such other actions as may be reasonably required in order to effectuate the purposes of this Agreement and to consummate the transactions contemplated hereby. | |
| (b) | Joint and Several Liability of GlobeX US and Seller. The Purchaser may elect to recover from any one of GlobeX US or the Seller the full amount of any liability of GlobeX US or the Seller under this Agreement, and the Purchaser may bring a separate action against any one of GlobeX US or the Seller with respect to the full amount of any such liability. | |
| (c) | Entire Agreement. This Agreement contains the entire understanding of the parties with respect to the subject matter hereof and thereof and supersedes all prior agreements and understandings, oral or written, with respect to such matters, including, but not limited to, any prior term sheet or letter of intent (including the LOI). | |
| (d) | Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earliest of: (a) the first business date after transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth on the signature pages attached hereto at or prior to 5:30 p.m. (Pacific Time), (b) the second business day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth on the signature pages attached hereto later than 5:30 p.m. (Pacific Time), (c) the date of delivery, if sent by Canadian nationally recognized overnight courier service or (d) upon actual receipt by the party to whom such notice is required to be given. The address for such notices and communications shall be as set forth below, provided that the parties hereto may change such address for notices and communications by providing the other parties hereto with notice in the form and manner set forth in this Section 8(d): |
Alain Ghiai
MNP Tower
900-1021 West Hastings Street
Vancouver, BC V6E 0C3
Email: aghiai@digitalsafe.com
GlobeX Data, Inc.
Attn: Alain Ghiai
[insert U.S. address]
Email: aghiai@digitalsafe.com
GlobeX Data Ltd.
Attn: David K. Ryan
Two Bentall Centre
595 Burrard Street, Suite 1085
Box 201
Vancouver, BC V7X 1M8
Email: david.ryan@hotmail.com
with a copy to the following address:
O’Neill Law Corporation
704 - 595 Howe Street
Vancouver, BC V6C 2T5
Attention: Brian S.R. O’Neill
Fax: 604-687-6650
| (e) | Amendments. Neither this Agreement nor any provision hereof may be amended, waived, discharged or terminated orally, but only by an instrument in writing signed by the party against whom enforcement of the amendment, waiver, discharge or termination is sought. | |
| (f) | Survival. All covenants, agreements, representations and warranties on the part of each of the parties, notwithstanding any investigations or enquiries made by any of the parties prior to the date hereof or the waiver of any condition by any of the parties, shall survive the Closing for a period of one (1) year. | |
| (g) | Action on Business Day. If the date upon which any act or payment hereunder is required to be done or made falls on a day which is not a business day, then such act or payment shall be performed or made on the first business day next following. | |
| (h) | Severability. If any one or more of the provisions of this Agreement should be invalid, illegal or unenforceable in any respect in any jurisdiction, the validity, legality or enforceability of such provision shall not in any way be affected or impaired thereby in any other jurisdiction and the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. | |
| (i) | Successors and Assigns. This Agreement shall enure to the benefit of and be binding upon all parties hereto and their respective heirs, personal representatives, successors and permitted assigns, as the case may be. The parties to this Agreement may not assign this Agreement or any rights or obligations hereunder without the express written consent of each of the other parties hereto. | |
| (j) | Governing Law. This Agreement shall be governed by and be construed in accordance with the laws of the Province of British Columbia and the parties hereto agree to submit to the jurisdiction of the courts of the Province of British Columbia with respect to any legal proceedings arising herefrom. | |
| (k) | Time. Time is of the essence of this Agreement. | |
| (l) | Headings. The headings are inserted solely for convenience of reference and shall not be deemed to restrict or modify the meaning of the Articles to which they pertain. | |
| (m) | Counterparts. This agreement may be executed in one or more counter-parts, each of which so executed shall constitute an original and all of which together shall constitute one and the same agreement. |
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement as of the date first written above.
| GLOBEX DATA LTD. | ||
| Per: | ||
| David K. Ryan, Director | ||
| GLOBEX DATA, INC. | ||
| Per: | ||
| Alain Ghiai, Director | ||
| ALAIN GHIAI | ||
Exhibit 10.4
Addendum to
Addendum to GlobeX Data SA® Secure Cloud Services
Licensee License Agreement and Program
WHEREAS, This Addendum to License Agreement (“Agreement”) is made on this 21st day of July, 2022 (“Effective Date”), is an addition to any other Agreement signed by and between GlobeX Data S.A., a Swiss corporation with Registration No. CH-660-2009007-7 (hereinafter referred to as “GDSA”) with principal offices at Rue du Commerce, 4, Geneva GE-1204, Switzerland,
and
Sekur Private Data Ltd. (f.k.a. GlobeX Data Ltd.), a British Columbia, Canada corporation with Registration No. BC 1109261 (hereinafter referred to as “Licensee”) with principal offices at Fist Canadian Place, 100 King Street West, Suite 5600, Toronto, ON M5X 1C9, Canada;
WHEREAS, GDSA owns, licenses and provides: (i) a subscription-based Secure Cloud Services and management services, being GDSA’s online software and storage system for cloud storage, file mangement and secure communications to be called “the Secure Cloud Storage and Secure Communications Solutions” offered by GDSA worldwide through its Internet site and affiliate partnerships, as further defined below (“Services”) and;
WHEREAS, Licensee desires to market the Services to companies and individuals alike for the express purpose of providing the Services to the customers or end users (“End User”) ;
NOW THEREFORE, in consideration of the following conditions set forth in this Agreement, the Parties hereto agree as follows:
1. Definitions.
In this Agreement, the following terms shall have the following meanings:
“Confidential Information” means any and all information which is disclosed by GDSA or Licensee to the other Party of this Agreement verbally, electronically, visually, or in a written or other tangible form which is either identified or should be reasonably understood to be confidential or proprietary. Confidential Information includes, but is not limited to, price lists, trade secrets, computer programs, software, formulas, data, inventions, techniques, marketing plans, strategies and forecasts made available by the disclosing party, whether such information relates to GDSA, Licesee or its third party suppliers or licensors. Confidential Information includes without limitation, information regarding the Plan Offerings.
“End User” means a Prospect or Customer, introduced to GDSA by Licesee, that is licensed by GDSA (in its discretion), Licensee or a GDSA approved sub-Licensee of Licensee pursuant to the terms of the End User License Agreement or Terms of Use accepted by the End User to make use of one or more of the Plan Offerings for its own internal use purposes. All End Users are tracked through a persistent cookie or by manual entry by the Licensee to credit the registration back to the Licesee.
“Plan Offerings” or “Software” or “Service” means: (i) the subscription-based service powered by DigitalSafe®, PrivaTalk® or any brand owered by GDSA being GDSA’s Secure Cloud Services Solutions, being those Plan Offerings that Licensee is permitted to offer to Prospects. The Plan Offerings are described at the pricing page of each GDSA powered service, such as https://www.digitalsafe.com/en/pricing as such descriptions may be amended from time-to-time as provided in this Agreement or any custom plan offering agreed upon by GDSA and Licesee. Licensee is entitled to create its own plans in association with GDSA in order to create integration ease.
| 1 |
Addendum to
Addendum to GlobeX Data SA® Secure Cloud Services
Licensee License Agreement and Program
“Prospect” means an individual, corporation, company, partnership or other entity, who is a customer of Licensee and who may be a potential End User.
“Licensee Fee” shall mean an amount of the Full Price Service Fee Revenue paid to GDSA by Licensee for so long as this Agreement remains in effect. Full Price shall mean the pricing displayed on www.sekur.com and/or and/or www.sekursuite.com and/or at any given time. A custom plan for Licensee can be tailored by GDSA and Licensee together. In all circumstances, the profit sharing shall be split with GDSA as follows:
| 1. | GDSA shall have TEN percent (10%) of total gross revenues and Licensee shall have NINETY percent (90%) of total gross revenues. |
The commission on any Prospect undertaken after the signing of this contract and prior to termination that results in a Sale before or after Termination shall be paid to Licensee for the duration of the Prospect relationship with GDSA. Both GDSA and Licensee shall be bound by the accompanying Mutual Non-disclosure Agreement.
| a. | Licensee shall provide to GDSA an updated Prospect list within 24hours of the termination notice. | |
| b. | Licensee shall be granted a twelve (12) month extension from the date of termination to secure a sale with all Prospects listed on the Prospect list. | |
| c. | Any Prospect sales achieved during this period from this extension will be paid to the Licensee by GDSA as per the payment terms as outlined in this agreement for the term of the client relationship with GDSA. |
| 2. | Licensee shall be responsible for Level 1 Customer Support only as defined in this wikipedia definition of Tier 1 or Level 1 support : https://en.wikipedia.org/wiki/Technical_support#Tier_1. GDSA will be responsible for Level 2 Technical Support as defined in this wikipedia definition of Tier 2 or Level 2 support : https://en.wikipedia.org/wiki/Technical_support#Tier_2. | |
| 3. | Licensee shall be responsible for all equipment purchases to service its End Users, and shall be responsible for all technical maintenance and improvements of Plan Offerings and data center maintenance for its servers installations. |
“Service Fee Revenue” means the service fees charged by GDSA for either of the Plan Offerings which are actually received by GDSA from a compliant End User or making use of one of the Plan Offerings in accordance with the terms of GDSA’s End User License Agreement and for greater certainty, Service Fee in accordance with the terms of GDSA’s End User License Agreement and for greater certainty, Service Fee Revenue shall not include, applicable taxes, credits to accounts, refunds and/or credit card charge backs.
“Marketing Materials” means creative and collateral content, in standard electronic or similar format, as well as graphics, banners, web-sites, vidéos and other marketing promotional and informative material created by GDSA or any of its affiliated entities.
| 2 |
Addendum to
Addendum to GlobeX Data SA® Secure Cloud Services
Licensee License Agreement and Program
2. Appointment of Licesee.
2.1 Grant of License.
On the terms and conditions set out in this Agreement, GDSA hereby grants to Licensee and Licensee hereby accepts from GDSA the following :
| ● | An exclusive, transferable license to resell the Plan Offerings to Prospects or any Custom Plan Offering WORLDWIDE with the exception listed below, starting Effective Date for a PERPETUAL period unless terminated by GDSA in accordance with the Terms and Conditions of this Agreement. | |
| ● | Exception to worldwide license: Switzerland, except online marketing. Online marketing and sales to Switzerland is allowed under the Worldwide license agreement. Licensee shall not engage with any distributor in Switzerland. |
Pursuant to this Agreement, Licensee shall market the Plan Offerings to Prospects. Prospects shall subscribe to the Plan Offerings by entering into an End User License Agreement with GDSA by signing direct contract with the Licensee. Acceptance of a Prospect as an End User shall remain in the full discretion of GDSA and GDSA reserves the right, in its discretion, to terminate an End User License Agreement with any such End User in accordance with the terms of the End User License Agreement. End User Agreements can be “Localized” by Licensee with the final approval and review of GDSA. Should Licensee want to have the absolute right to accept any End User, Licensee shall assume the entire liability of acceptance of End User, especially in regards to local government policies and laws enforced by the authorities governing the laws of said territory under which Licensee sells the Services.
2.2 Grant of License to Trade-mark.
On the terms and conditions contained in this Agreement, GDSA grants to Licensee, a non-exclusive, non-transferable license to use the GDSA’s trade names and trade-marks solely in connection with Licesee’s marketing of the Plan Offerings pursuant to this Agreement, provided that Licensee clearly identifies GDSA’s ownership of such names and/or marks including but not limited to all GlobeX Data® DigitalSafe® PrivaTalk® Securus® Sekur® and related brands and trade names and logomarks. All advertising and marketing materials prepared by Licensee for use in marketing the Plan Offerings must, prior to release by Licesee, shall be delivered to GDSA for review and approval, such approval not to be unreasonably withheld or delayed. Licensee agrees not to use any of GDSA’s trademarks, trade names, service marks, corporate names or logos or those of its affiliates (“Marks”) on any press release, advertising or marketing materials without GDSA’s prior written consent. Licensee agrees not to interfere or cause any third party to interfere with GDSA’s intellectual property rights. Licensee acknowledges that the use of the Marks is limited to the use set forth in this Agreement and that Licensee has not acquired and will not acquire any ownership rights therein. Licensee will not alter the text or graphics in any artwork provided by GDSA. Licensee acknowledges GDSA’s ownership of the Marks and agrees not to challenge such ownership rights and agrees that all use thereof inures to the benefit of GDSA. GDSA has the right to discontinue or alter the form, shape or artwork of the Marks. Licensee will maintain high-quality standards in the use of the Marks and not publish illegal materials or engage in illegal business activities in conjunction with any use of the Marks. Licensee will not use the Marks to disparage GDSA, its products or services, and agrees to abide by these terms and conditions. If Licensee is unable or unwilling to fully comply with these terms and conditions, Licensee’s rights to use any of the Marks will terminate and Licensee will immediately cease all use of the Marks. GDSA reserves the right to review any and all of Licensee’s use of the Marks to determine if such use is in compliance with this policy. Both parties may publicly release information related to this Agreement only with the written consent of the other party for each public statement or document. The right to use GDSA’s trade names and trade-marks terminates upon immediate termination of this Agreement.
2.3 Plan Offering and Trade Names and Trade-Marks.
All right, title and interest in and to the Plan Offerings and all components thereof, together with all right, title and interest in and to the Trade Names and Trade-Marks licensed above, remains with GDSA and its affiliateed companies. Except for the limited license granted above, GDSA reserves all other rights in and to the Plan Offerings and such Trade Names, Trade-Marks and Logo-Marks.
| 3 |
Addendum to
Addendum to GlobeX Data SA® Secure Cloud Services
Licensee License Agreement and Program
3. Responsibilities of the Parties.
3.1 Best Efforts.
Licensee agrees to utilize its best efforts to assist and/or introduce the Plan Offerings to potential new and existing End Users and to market and promote the Plan Offerings to achieve the maximum extent of distribution of the Plan Offerings. Should Licensee build any collatéral material such as website, video, brochure or other, GDSA shall advise free of charge on any particulars of the Licensee’s collateral material in regards to GDSA’s trademark and logo usage and or content.
3.2 Standards.
Licensee will maintain high standards of professionalism and will at all times comply with all applicable laws and regulations and refrain from any unethical conduct or any other conduct that could damage the reputation of GDSA or the Plan Offerings. Licensee shall conduct its business so as to maintain and increase the goodwill and reputation of GDSA and the Plan Offerings.
3.3 No Side Letters.
Licensee shall not enter into any separate agreements or side letters with End Users regarding any portion of the subject matter addressed in GDSA’s End User License Agreement. Licensee shall not expand any representations or warranties beyond those expressed in GDSA’s End User License Agreement. Licensee has no authority, and shall not make representations, to bind GDSA to an End User License Agreement. Licensee shall not change or offer to change the contractual and/or financial terms of the End User License Agreement in any manner.
3.4 Marketing Support.
As a means of assisting Licesee, GDSA may, from time-to-time, provide Licensee with creative and collateral content, in standard electronic or similar format, as well as graphics, banners and other marketing promotional and informative material about GDSA and its Plan Offerings (the “Marketing Materials”). All right, title and interest in and to the Marketing Materials shall remain with GDSA (or its affiliated entities). Licensee shall not amend, alter or otherwise change the Marketing Materials without the prior written consent of GDSA.
3.5 Access to End User’s Computer or Computer Systems.
To the extent that an End User provides Licensee with an ability to access End User’s computer or computer systems by making use of the Remote Access, Licensee shall be solely responsible for obtaining any necessary consents and other permissions from the End User. Licensee hereby agrees to indemnify and hold harmless GDSA, its officers, directors, shareholders and third party providers and each of their respective heirs, executors, administrators, legal personal representatives, successors and assigns (collectively, the “Indemnitees”) from and against any and all costs, losses, expenses, claims, damages, actions, causes of action and deficiencies, which any of the Indemnitees may suffer or incur as a result of or arising directly or indirectly out of or in connection with Licensee having access to an End User’s computer or computer systems.
4. Term and Termination
4.1 This Agreement shall remain in full force and effect for a PERPETUAL term (the “Term”), commencing on the Effective Date unless terminated in accordance with this Agreement. If either Party breaches a material provision of this Agreement, the other Party may immediately terminate this Agreement upon written notice to the other Party. Termination under such provision shall have immediate effect.
| 4 |
Addendum to
Addendum to GlobeX Data SA® Secure Cloud Services
Licensee License Agreement and Program
GDSA may terminate this Agreement at any time, should Licensee breach any part of this Agreement, upon written notice in accordance with this Agreement. In such case, Licensee will be entitled to invoice and receive from GDSA immediately all amounts due to Licensee by GDSA and so starting from the Termination date. Upon termination of this Agreement for any reason, all licenses granted under this Agreement shall immediately terminate, Licensee shall immediately cease reselling the Plan Offerings and, within five (5) days after such termination, Licensee shall return all Marketing Materials to GDSA and shall destroy or return all Confidential Information to GDSA, without retaining any copies of such Marketing Materials and Confidential Information. All provisions of this Agreement, which by their nature should reasonably be expected to survive the termination of this Agreement shall survive the termination of this Agreement for any reason, including, without limitation, Sections 2.3, 4, 7, 8, 9, and 10. However, GDSA and Licensee commit to provide best efforts in their businesses in order to continue on a long term business relationship.
4.2 GDSA reserves the right to suspend or terminate Services, or any portion thereof, or terminate this Agreement upon one of the following events:
4.2.1 A breach of this written License Agreement (other than the payment of amounts due hereunder) and Licensee fails to cure such breach within thirty (30) calendar days after written notice of the breach;
4.2.2 A failure by Licensee to pay any amounts due to GDSA under this Agreement;
4.2.3 Licensee suffers any adverse financial change or takes or suffers any action as a result of its indebtedness, including without limitation a voluntary liquidation or period of inactivity, an action in bankruptcy, an assignment for the benefit of creditors, the appointment of a receiver or trustee or the liquidation of all or substantially all of its assets or GDSA determines that Licensee is not creditworthy;
4.2.4 Upon a determination by any governmental authority with jurisdiction over the parties that the provision of the Services under this Agreement is contrary to existing laws, rules or regulations;
4.2.5 The passage of adoption of any law, rule or regulation that in the reasonable judgement of GDSA will make it materially more expensive or difficult to provide the Services under this Agreement.
4.2.6 Either party may terminate the renewal of this Agreement upon thirty (30) days written notice prior to the expiration of the initial or any renewal term. In such case, Licensee will be entitled to invoice and receive from GDSA immediately all amounts due to Licensee by GDSA and so starting from the Termination date.
4.3 Upon the termination of this Agreement for any reason, GDSA will be entitled to immediately cease providing Services to Licesee. All amounts due to GDSA will become immediately due and payable upon such termination. GDSA shall continue to offer services to existing End Users until their membership for services expires. In the case of Termination due to a breach of of this Agreement, Licensee shall not be entitled to any Fees after termination date.
Notwithstanding the termination of this Agreement for any reason, the provisions of this Agreement that by their nature survive termination will continue to apply.
| 5 |
Addendum to
Addendum to GlobeX Data SA® Secure Cloud Services
Licensee License Agreement and Program
5. Compensation.
All out-of-pocket expenses incurred by Licensee in the process of referring a Prospect and meeting its obligations under this Agreement are the sole responsibility of the Licesee. On a monthly basis, on Licesee’s monthly billing date, GDSA shall credit Licesee’s bank account with the Licensee Fee payable to Licensee in respect of all Service Fee Revenue actually received by GDSA from an End User referred by Licensee in accordance with this Agreement. Licensee Fees shall not be payable in connection with any End User whose right to make use of the Plan Offering has been terminated by GDSA, in its discretion. Licensee Fees shall be credited against storage fees payable by Licensee in connection with Licesee’s own use of the Plan Offering. All payments to Licensee in principle shall be paid once per month as GDSA needs to have free and clear payment from End User’s credit card processing.
Service Fee Revenue shall be paid, if at all, by the last day of the month following the date that GDSA actually receives payment for a Plan Offering (which payment shall be made on the last day of such month). By way of example, if a Service Fee Revenue payment is on January 10, GDSA would expect to receive payment on or about February 9 (30 days after first payment) and would expect to pay the Licensee on or about March 31st.
Licensee has also the option of collecting funds directly from End User. In this case, payment to GDSA is due ten (10) calendar days from receiving electronic invoice from GDSA and any late payment older than twenty (20) calendar days shall be ground for suspension of all accounts. Invoices shall be sent at the end of each calendar month. Failure of Licenseeto receive GDSA invoice shall not constitute an excuse for non payment to GDSA for Services rendered.
Payments from Licensee to GDSA shall commence for sales started from January 1st 2018.
6. Representations of the Parties.
Each party represents that it has the right to enter into this Agreement. GDSA DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
7. Confidential Information.
GDSA and Licensee acknowledge that during the course of this Agreement, it may acquire information regarding the other Party (“Disclosure Party”) or its affiliates, its business activities and operations or those of its customers and suppliers, and its trade secrets including without limitation its customer lists, prospective customers, rates, network configuration, traffic volume, financial information, computer software, service, processes, methods, knowledge, research, development or other information of a confidential and proprietary nature (hereinafter “Confidential Information”). GDSA and Licensee (“Receiving Party”), who receive the Confidential Information shall hold such information in strict confidence and shall not reveal the same, except for any information which is: (a) generally available to or known to the public; (b) known to such party prior to the negotiations leading to this Agreement; (c) independently developed by such party outside the scope of this Agreement; or (d) lawfully disclosed by or to a third party or tribunal. The Receiving Party may disclose the Confidential Information pursuant to any judicial or governmental request, requirement or order provided, however, The Receiving Party takes all necessary steps to provide prompt and sufficient notice to the Disclosure Party so that the Disclosure Party may contest such request, requirement or order. The Confidential Information of the Disclosure Party shall be safeguarded by the Receiving Party to the same extent that it safeguards its own confidential materials or data relating to its own business and the Receiving Party agrees to limit access to such Confidential Information to employees, agents or representatives who have a need to know such information in order to perform the obligations set forth in this Agreement and further the matter of mutual interest described herein. The parties agree that an impending or existing violation of these confidentiality provisions would cause the Disclosure Party irreparable injury for which it would have no adequate remedy at law, and agree that the Disclosure Party may be entitled to obtain immediate injunctive relief prohibiting such violation, in addition to any rights and remedies available to it. The Receiving Party shall keep Confidential Information in strict confidence and shall not disclose it to any third party. The Receiving Party’s internal disclosure of Confidential Information shall be only to those employees having a need to know such information in connection with this Agreement and only insofar as such persons are bound by a nondisclosure agreement consistent to this Agreement. The Receiving Party shall only use Confidential Information provided to it for purposes of reselling the Plan Offerings in accordance with this Agreement. The Receiving Party shall promptly notify the Disclosure Party of any unauthorized disclosure or use of Confidential Information by any person.
| 6 |
Addendum to
Addendum to GlobeX Data SA® Secure Cloud Services
Licensee License Agreement and Program
GDSA guarantees that no data stored by End User in GDSA’s data centre shall be used for any purpose. GDSA has no access to its End User stored data in its data centre. This is a firm company policy and has been firmly rooted into GDSA’s software architecture. Exception to this rule is only made in the event of a serious technical issue and at the demand of the End User for GDSA to try to remedy the technical situation, should there be one.
8. Waranty and Limitation of Liability and Disclaimer of Liability.
Services provided by GDSA hereunder shall be performed in a professional and workmanlike manner and shall substantially conform with the description of Services set forth in the Plan Offerings selected by End User for the duration of the Agreement and any renewals thereof. Should GDSA or Licensee breach this warranty, End User shall so notify Licensee in writing, and Licensee shall use reasonable diligence to remedy such breach within ten (10) days of receipt of End User’s notice.
GDSA WARRANTS THAT ALL DATA STORED IN ITS DATA CENTRE IN SWITZERLAND ARE 99.999% AVAILABLE AT ALL TIME. GDSA ALSO WARRANTS THAT NO ONE IN GDSA WILL ACCESS END USERS DATA STORED IN GDSA DATA CENTRE.
EXCEPT AS PROVIDED IN THIS PARAGRAPH, ALL SERVICES ARE DELIVERED WITHOUT WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS AND ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SOFTWARE. IN NO EVENT SHALL GDSA BE LIABLE TO LICENSEEOR END USER FOR ANY AMOUNT IN EXCESS OF THE FEES ACTUALLY PAID BY END USER TO LICENSEEFOR THE PRECEDING THREE MONTHS FOR SERVICES PROVIDED HEREUNDER. IF THE SOFTWARE AND SERVICES ARE PROVIDED WITHOUT CHARGE, THEN GDSA SHALL HAVE NO LIABILITY TO LICENSEEOR END USER WHATSOEVER. IN NO EVENT SHALL GDSA BE LIABLE TO LICENSEEAND/OR END USER FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR INTERRUPTION OF BUSINESS, LOSS OF DATA, CORRUPTION OF DATA, WHETHER SUCH DAMAGES ARE ALLEGED IN TORT, CONTRACT, INDEMNITY.
LICENSEE AND END USER UNDERSTAND AND AGREE THAT LICENSEE AND END USER DOWNLOAD AND/OR USE THE SOFTWARE AND SERVICE MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SOFTWARE OR SERVICE, AT LICENSEE AND END USER OWN DISCRETION AND RISK AND THAT LICENSEE AND END USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO LICENSEE AND END USER COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF THE SOFTWARE OR SERVICE.
THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE SOFTWARE OR SERVICE, FROM INABILITY TO USE THE SOFTWARE OR SERVICE, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SOFTWARE OR SERVICE (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
THE SOFTWARE AND SERVICE ARE NOT INTENDED FOR USE IN CONNECTION WITH ANY INHERENTLY DANGEROUS APPLICATION THAT COULD RESULT IN DEATH, PERSONAL INJURY, CATASTROPHIC DAMAGE, OR MASS DESTRUCTION, AND LICENSEEAGREES THAT GDSA WILL HAVE NO LIABILITY OF ANY NATURE AS A RESULT OF ANY SUCH USE OF THE SOFTWARE.
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Addendum to
Addendum to GlobeX Data SA® Secure Cloud Services
Licensee License Agreement and Program
The foregoing limitations include and apply to, without limitation, any liability arising out of the performance or failure to perform of any hardware, software, or Internet connection, from any errors, omissions, interruptions in or failure to provide Internet service; from interruptions in web page availability; from the consequences of computer viruses transferred over the Internet or otherwise; or from communication line failure, breach of security due to use of the Internet, or any loss of information or confidentiality due thereto.
9. Status of the Parties.
It is expressly understood that the parties hereto are acting hereunder as independent contractors and under no circumstances shall any of the employees of one party be deemed to be employees of the other for any purpose. Nothing contained herein will in any way constitute any association, partnership, employment arrangement or joint venture between the Parties hereto, or be construed to evidence the intention of the Parties to establish any such relationship. Neither Party will have the power to bind the other Party or incur obligations on the other Party’s behalf without the other Party’s prior written consent. This Agreement shall not be construed as authority for either party to act on behalf of the other party in any agency or other capacity or to make commitments of any kind for the account of or on behalf of the other party except to the extent and for the purposes expressly provided for and set forth herein. Licensee agrees to be solely responsible for all costs related to its performance under this Agreement.
10. Miscellaneous.
10.1 Governing Law and Jurisdiction.
This Agreement shall be governed by the laws of the Republic and Canton of Geneva, Switzerland and the laws of Switzerland applicable therein. The convention on the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed.
10.2 Severability.
If for any reason any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.
10.3 Successors.
This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns.
10.4 Notices.
Any Notice which either Party hereto may be required or permitted to give to the other Party shall be in writing, and may be delivered personally, by private express courier, by registered, express or certified mail with postage prepaid, by fax or by email, subject to verbal confirmation that such fax or email was received. Any Notice provided to GDSA shall be delivered to GDSA at the following address: Rue du Rhône, 14 Geneva, GE-1204, Switzerland, Attention: CEO or via email at : sales@globexdata.ch. Any Notice provided to Licensee shall be delivered to Licensee at the address set out in the registration information provided by Licesee. Either Party to this Agreement may change its address for purposes of receipt of Notice by providing written Notice of such future change, utilizing the procedures stated herein.
10.5 Further Actions.
Each of the Parties agrees that it shall hereafter execute and deliver such further instruments and do such further acts and things as may be required or useful to carry out the intent and purpose of this Agreement and as are consistent with the terms hereof.
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Addendum to
Addendum to GlobeX Data SA® Secure Cloud Services
Licensee License Agreement and Program
10.6 Assignment.
This Agreement and the appointment of Licensee by GDSA hereunder are personal to Licensee and Licensee shall not have the right or ability to assign or transfer this Agreement (whether by operation of law or otherwise) or subcontract any obligations under this Agreement without the prior written consent of GDSA and any attempted assignment, transfer or subcontracting, without such prior written consent shall be null and void. GDSA may assign or transfer this Agreement or subcontract its obligations under this Agreement without the consent of Licesee. In the case of any merger or transfer in Licesee’s corporate structure, GDSA shall decide at that point to transfer, renew or terminate the License Agreement. GDSA shall not transfer such license to companies it deems as potential competitors to GDSA.
10.7 Changes to the GlobeX Data SA Secure Cloud Services Licensee Agreement and Program.
This Agreement is subject to the terms and conditions of GDSA’s GlobeX Data SA Secure Cloud Services Licensee Agreement and Program (the “Program”). GDSA reserves the right to make prospective changes to the Program at any time and at its sole discretion upon written notice to Licesee. Changes may include but are not limited to changing the Plan Offering Fees, or the discontinuation of the Program.
10.8 Entire Agreement.
This Agreement constitutes the entire understanding between the Parties with respect to the subject matter hereof and supersedes all prior understandings or agreements between the Parties with respect to such subject matter.
10.9 Set-off.
GDSA shall have the right to satisfy any amount from time to time owing by it to Licensee by way of set-off against any amount from time to time owing by Licensee to GDSA under this Agreement or in respect of any other obligation of Licenseeto GDSA. If Licensee collects funds directly from End User, this clause does not apply.
10.10 Language.
The Parties hereby express their wish that this contract and all related documents be drawn up in English.
10.11 Beta Service.
Licensee acknowledges and agrees that from time to time new and upgraded features and releases shall be offered as a beta version of such Plan Offerings (“Beta Service”) and as such: (a) Licensee acknowledges that the Beta Service is not at the level of performance and compatibility of a final, generally released product offering and may not operate properly, may contain “bugs”, and may be substantially modified by GDSA prior to commercial release; (b) Licesee’s license to or ability to make use of such Beta Service pursuant to this Agreement expires upon availability of a commercial release of that Beta Service from GDSA and (c) Licensee agrees that such Beta Service is provided “as is, where is” without warranty or condition of any kind and GDSA disclaims any liability obligations to Licensee or any End User or any third party of any kind with respect to such Beta Service. Licensee acknowledges that GDSA has not made any representations, promises or guarantees that the Beta Service will ever be announced or made available to anyone in the future. Licensee will be asked to provide feedback regarding the Beta Service and Licensee hereby grants to GDSA a perpetual, royalty-free worldwide license to use and/or incorporate such feedback into any GDSA product or service (including the Beta Service) at any time at the sole discretion of GDSA.
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Addendum to
Addendum to GlobeX Data SA® Secure Cloud Services
Licensee License Agreement and Program
10.11 General Provisions Indemnification.
Licesee, at its own expense, shall defend, indemnify, and hold harmless GDSA, its agents, affiliates, successors, and assigns with respect to any claim or action brought against Licesee, its agents, affiliates, successors, and assigns arising out of or in connection with the operation, condition, or content of End User’s web page, web site, or other Internet graphical or non-graphical interface; any use of Internet facilities conducted or permitted by End User; the conduct of any business, advertising, marketing, or sales in connection therewith; and any negligent or illegal act or omission of End User or any of its agents, contractors, servants, employees, or other users or accesses. Licensee shall promptly notify GDSA of any such claim, shall provide reasonable assistance in connection with the defense and/or settlement thereof, and shall permit GDSA to control the defense and/or settlement thereof. If notified of any allegedly infringing, defamatory, damaging, obscene, illegal, or offensive use or activity, Licensee may (but shall not be required to) investigate the allegation, or refer it to End User or a third party for investigation, and GDSA reserves the right to remove or request the removal of the applicable content from the Web page or any other text or item linked to the Internet. If End User refuses such request, Licensee may, at its option, immediately remove the subject Web page or other text or item from the Internet, suspend the Services provided hereunder, or terminate this Agreement. GDSA shall not be liable for any damages incurred by End User as a result of such action.
10.12 Waiver.
The failure of either party to give notice of default or to enforce compliance with any of the terms or conditions of this Agreement, the waiver of any term or condition of this Agreement, or the granting of an extension of time for performance, will not constitute a permanent waiver of any term or condition of this Agreement, and this Agreement and each of its provisions will remain at all times in full force and effect until modified by both parties in writing.
10.13 Amendment and Modification.
This Agreement shall not be valid until signed and accepted by a signatory duly authorized to legally bind the parties hereto. No change, amendment, modification, termination or attempted waiver of any of the provisions set forth herein shall be binding unless made in writing and signed by a duly authorized representative of both parties hereto, and no representation, promise, inducement or statement of intention has been made by either party which is not embodied herein.
10.14 Notices.
Any notice, approval, request, authorization, direction or other communication under this Agreement will be given in writing and will be deemed to have been delivered and given for all purposes upon receipt only when mailed first class mail or by nationally recognized overnight courier service, duly addressed and with proper postage, to the address set forth below or such other address as may be provided by the other party in writing for the purpose of receiving such notices including email. All notices required under this Agreement shall be addressed as follows:
If to GDSA:
GlobeX Data SA, Rue du Commerce 4, Geneva, GE-1204, Switzerland.
Email : aghiai@sekur.ch
If to Licensee:
Sekur Private Data Ltd., Fist Canadian Place, 100 King Street West, Suite 5600, Toronto, ON M5X 1C9, Canada.
Email : corporate@sekurprivatedata.com
10.15 Severability.
If any provision of this Agreement is held invalid or otherwise unenforceable, the enforceability of the remaining provisions shall not be impaired thereby and, in such an event such provisions shall be interpreted so as to best accomplish the intent of the parties within the limits of applicable law.
10.16 Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together will constitute on and the same instrument.
10.17 Entire Agreement.
This Agreement, including any exhibits attached hereto if any, sets forth the entire agreement and understanding of the parties hereto and supersedes and merges any and all prior proposals, negotiations, representations, agreements, arrangements or understandings, both oral and written, relating to the subject matter hereof. The parties hereto have not relied on any proposal, negotiation or representation, whether written or oral, that is not expressly set forth herein.
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Addendum to
Addendum to GlobeX Data SA® Secure Cloud Services
Licensee License Agreement and Program
IN WITNESS WHEREOF the parties hereto have entered into this Agreement as of the date first above written.
| FOR GDSA: | GlobeX Data S.A. with Registry No. CH-660-2009007-7 |
| By its authorised signatory: | ||
| Name: | Alain Ghiai | |
| Title: | CEO | |
| Date: | ||
| FOR LICESEE: | Sekur Private Data Ltd. (f.k.a. GlobeX Data Ltd.), |
| with Registration No. BC 1109261 |
| By its authorized signatory: | ||
| Name: | ||
| Title: | CEO | |
| Date: | ||
| By its authorized signatory: | ||
| Name: | ||
| Title: | CFO | |
| Date: | ||
| 11 |
Exhibit 21.1
LIST OF SUBSIDIARIES
| Name of Subsidiary | Jurisdiction of Incorporation | |
| 1. GlobeX Data Inc. | Delaware |