WeShop Holdings Ltd F-1/A, filed Sep 19, 2025
WeShop Holdings Ltd (WSHP)
As filed with the U.S. Securities and Exchange Commission on September 19, 2025.
No. 333-290275
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1 to
FORM F-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
WeShop Holdings Limited
(Exact name of registrant as specified in its charter)
Not Applicable
(Translation of Registrant’s name into English)
| British Virgin Islands | 7389 | NOT APPLICABLE | ||
| (State or other jurisdiction of | (Primary Standard Industrial | (I.R.S. Employer | ||
| incorporation or organization) | Classification Code Number) | Identification No.) |
Hawk House
22 The Esplanade
Jersey,
JE1 1HH
Channel Islands
+44 (808) 196-8324
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Puglisi & Associates
850 Library Avenue, Suite 204
Newark, Delaware 19711
(302) 738-6680
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies of all communications, including communications sent to agent for service, should be sent to:
Christian O. Nagler, P.C.
Christina M. Thomas
Kirkland & Ellis LLP
601 Lexington Avenue
New York, New York 10022
(212) 446-4800
Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement becomes effective.
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, as amended, or until the registration statement shall become effective on such date as the Securities and Exchange Commission acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
This Amendment No. 1 to the registration statement of WeShop Holdings Limited on Form F-1 (Registration No. 333-290275) is an exhibit-only filing being filed solely to provide a copy of certain exhibits.
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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 8. Exhibits
(a) The following documents are filed as part of this registration statement:
Exhibit No. |
Exhibit | |
| 3.1 | Amended and Restated Memorandum and Articles of Association. | |
| 5.1* | Opinion of Harney Westwood & Riegels (BVI) LP | |
| 10.1# | 2022 Employee Share Option Plan | |
| 10.2** | Publisher Service Agreement between the Registrant and Awin AG, dated as of March 25, 2014. | |
| 10.3** | Partner User Agreement between the Registrant and Impact Radius, dated as of February 22, 2021 | |
| 10.4** | Director and Officer Indemnification Agreement. | |
| 10.5* | Form of Registration Rights Agreement | |
| 21.1** | List of Subsidiaries of the Registrant. | |
| 23.1** | Consent of WithumSmith+Brown, PC, Independent Registered Public Accounting Firm. | |
| 23.2* | Consent of Harney Westwood & Riegels (BVI) LP (included in Exhibit 5.1). | |
| 24.1** | Powers of Attorney (included on signature page). | |
| 107** | Filing Fee Table. |
| * | To be filed by amendment |
| ** | Previously filed |
| # | Indicates management contract or compensatory plan |
Item 9. Undertakings
The undersigned hereby undertakes:
| (a) | 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: |
| (i) | To include any prospectus required by Section 10(a)(3) of the Securities Act, as amended, or the Securities Act. | |
| (ii) | 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; | |
| (iii) | 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. |
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| (2) | That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, 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 to any purchaser, each prospectus filed 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. |
Insofar as indemnification by the registrant for liabilities arising under the Securities Act 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 Securities 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 Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
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 Channel Island of Jersey, on September 19, 2025.
| WeShop Holdings Limited | ||
| By: | /s/ Paul Ellerbeck | |
| Name: | Paul Ellerbeck | |
| Title: | Chief Executive Officer and Director | |
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:
| Name | Title | Date | ||
| /s/ Paul Ellerbeck | ||||
| Paul Ellerbeck | Chief Executive Officer (principal executive officer and Director) | September 19, 2025 | ||
| /s/ Johnny Hickling | ||||
| Johnny Hickling | Chief Financial Officer (principal financial officer and Director) | September 19, 2025 | ||
| * | ||||
| Matthew Behan | Head of Finance (principal accounting officer) | September 19, 2025 | ||
| * | ||||
| John Foley | Chairman of the Board | September 19, 2025 | ||
| * | ||||
| Oliver Egerton-Vernon | Director | September 19, 2025 | ||
| * | ||||
| Andrew Fearon | Director | September 19, 2025 | ||
| * | ||||
| Oana Crisan | Director | September 19, 2025 |
| * By: | /s/ Paul Ellerbeck | |
Paul Ellerbeck |
||
| Attorney-in-Fact |
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Authorized Representative in the United States
| Puglisi & Associates | ||
| By: | /s/ Donald J. Puglisi | |
| Name: | Donald J. Puglisi | |
| Title: | Managing Director | |
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Exhibit 3.1
BVI COMPANY NUMBER: 2046056
BRITISH VIRGIN ISLANDS
BVI BUSINESS COMPANIES ACT 2004
MEMORANDUM OF ASSOCIATION
AND
ARTICLES OF ASSOCIATION
OF
WESHOP HOLDINGS LIMITED
A COMPANY LIMITED BY SHARES
Incorporated on 16th October 2020
Amended and restated on September 19, 2025
TERRITORY OF THE BRITISH VIRGIN ISLANDS THE BVI
BUSINESS COMPANIES ACT 2004
MEMORANDUM OF ASSOCIATION
OF
WESHOP HOLDINGS LIMITED
A COMPANY LIMITED BY SHARES
| 1 | DEFINITIONS AND INTERPRETATION |
| 1.1 | In this Memorandum and the attached Articles, if not inconsistent with the subject or context: |
Act means the BVI Business Companies Act, Revised Edition 2020;
Admission means the admission to trading of the Class A Shares on the Stock Exchange;
Annual General Meeting means a General Meeting which is designated as the Annual General Meeting;
Articles means the attached articles of association of the Company;
Auditor means the person for the time being performing the duties of auditor of the Company;
Board means the board of Directors or the Directors present at a duly convened meeting of the Directors at which a quorum is present;
Business Day means a day other than a Saturday, a Sunday, or a legal holiday or a day on which banking institutions or trust companies are authorised or obligated by law to close in New York City (New York), St Helier (Jersey) or Road Town (BVI);
BVI means British Virgin Islands;
Chair of the Board has the meaning specified in Regulation 15;
Class A Shareholder means a holder of Class A Shares;
Class A Shares means the Class A Ordinary Shares of no par value of the Company;9
Class B Shareholder means a holder of Class B Shares;
Class B Shares means the Class B Ordinary Shares of no par value of the Company;
clear days in relation to the period of notice means that period excluding the day when the notice is given or deemed to be given and the day for which it is given or on which it is to take effect;
Company Broker has the meaning given in Regulation 7.2.4;
Compensation Committee means the compensation committee of the Board established pursuant to the Articles, or any successor committee;
Conflicted Director means (in relation to a Relevant Situation) a Director who has made a submission for authorisation in respect of that Relevant Situation;
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Director means a director of the Company, and includes any person occupying the position of Director, by whatever name called;
Distribution in relation to a distribution by the Company to a Shareholder means the direct or indirect transfer of an asset, other than Shares, to or for the benefit of the Shareholder, or the incurring of a debt to or for the benefit of a Shareholder, in relation to Shares held by a Shareholder, and whether by means of the purchase of an asset, the purchase, redemption or other acquisition of Shares, a transfer of indebtedness or otherwise, and includes a dividend;
electronic means actuated by electric, magnetic, electro-magnetic, electro-chemical or electro-mechanical energy and by electronic means, means by any manner capable of being so actuated and shall include e-mail and/or other data transmission service;
Electronic Transactions Act means the BVI Electronic Transactions Act;
Exchange Act means the U.S. Securities Exchange Act of 1934 or any similar U.S. federal statute and the rules and regulations of the SEC;
Extraordinary General Meeting means any General Meeting which is not an Annual General Meeting;
General Meeting means a meeting of the Shareholders;
held means, in relation to Shares, the Shares entered in the Register of Members as being held by a Shareholder and term holds, holding and holder shall be construed accordingly;
Listing Date means that date on which the Class A Shares are admitted to trading on a Stock Exchange;
Lock-in Period has the meaning given in Regulation 7.2.1;
Memorandum means this memorandum of association of the Company;
Officer means a person appointed to hold an office in the Company;
Orderly Market Period has the meaning given in Regulation 7.2.4;
Ordinary Shares means the Class A Shares and the Class B Shares;
Person includes individuals, corporations, trusts, the estates of deceased individuals, partnerships and unincorporated associations of persons;
present in person means, in the case of an individual, that individual or their lawfully appointed attorney being present in person and, in the case of a corporation, being present by duly authorised representative or lawfully appointed attorney and, in relation to meetings, in person shall be construed accordingly;
Register of Directors has the meaning specified in Regulation 11.10;
Register of Members has the meaning specified in Regulation 3.6;
Registrar means the BVI Registrar of Corporate Affairs;
Relevant Situation means a matter or situation in which a Director has, or can have, a direct or indirect interest that conflicts, or possibly may conflict, with the interests of the Company (including, without limitation, in relation to the exploitation of any property, information or opportunity, whether or not the Company could take advantage of it);
Representative has the meaning specified in Regulation 8.2;
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Resolution of Directors means either:
| (a) | a resolution approved at a duly convened and constituted meeting of Directors or a committee of Directors by the affirmative vote of a majority of the Directors (or in the case of an equality of votes, the casting vote of the Chair of the Board) present at the meeting who voted except that where a Director is given more than one (1) vote, they shall be counted by the number of votes they cast for the purpose of establishing a majority; or | |
| (b) | a resolution consented to in writing or by written electronic communication by a majority of the Directors or a majority of members of a committee of Directors. A written resolution consented to in such manner may consist of several documents including written electronic communication, in like form each signed or assented to by one or more Directors; |
Resolution of Shareholders means either:
| (a) | a resolution approved at a duly convened and constituted General Meeting by the affirmative vote of a majority of in excess of fifty per cent (50%) of the votes of the Shares entitled to vote thereon in respect of which the Shareholders holding the Shares were present at the meeting in person, or by proxy, and being Shares in respect of which the votes were voted, or | |
| (b) | a resolution consented to in writing by a majority of in excess of fifty per cent (50%) of the votes of Shares entitled to vote at a general meeting of the Company in one (1) or more instruments each signed by one (1) or more of the Shareholders; |
Seal means any seal which has been duly adopted as the common seal of the Company;
SEC means the U.S. Securities and Exchange Commission;
Securities means Shares and debt obligations of every kind of the Company, including without limitation options, warrants and rights to acquire Shares or debt obligations;
Securities Act means the U.S. Securities Act of 1933 or any similar U.S. federal statute and the rules and regulations of the SEC;
Share means a share issued or to be issued by the Company;
Shareholder means a Person whose name is entered in the Register of Members as the holder of one or more Shares or fractional Shares;
Stock Exchange means any U.S. national securities exchange on which the Securities are listed for trading, including, but not limited to, The Nasdaq Stock Market LLC, the NYSE MKT LLC, the New York Stock Exchange LLC or any over-the-counter (OTC) market;
Treasury Share means a Share that was previously issued but was repurchased, redeemed or otherwise acquired by the Company and not cancelled;
U.S. means the United States of America; and
written or any term of like import includes information generated, sent, received or stored by electronic, electrical, digital, magnetic, optical, electromagnetic, biometric or photonic means, including electronic data interchange, electronic mail, telegram, telex or telecopy, and in writing shall be construed accordingly.
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| 1.2 | In the Memorandum and the Articles, unless the context otherwise requires a reference to: |
| (a) | a Regulation is a reference to a regulation of the Articles; | |
| (b) | a Clause is a reference to a clause of the Memorandum; | |
| (c) | voting by Shareholders is a reference to the casting of the votes attached to the Shares held by the Shareholder voting; | |
| (d) | the Act, the Memorandum or the Articles is a reference to the Act or those documents as amended or, in the case of the Act, any re-enactment thereof and any subsidiary legislation made thereunder; | |
| (e) | the singular includes the plural and vice versa; and | |
| (f) | reference to a dollar or dollars (or US$) and to a cent or cents is reference to dollars and cents of the U.S. |
| 1.3 | Any words or expressions defined in the Act unless the context otherwise requires bear the same meaning in the Memorandum and the Articles unless otherwise defined herein. |
| 1.4 | Headings are inserted for convenience only and shall be disregarded in interpreting the Memorandum and the Articles. |
| 2 | NAME |
| 2.1 | The name of the Company is WeShop Holdings Limited. |
| 3 | STATUS |
| 3.1 | The Company is a company limited by Shares. |
| 4 | REGISTERED OFFICE AND REGISTERED AGENT |
| 4.1 | The first registered office of the Company shall be situated at the office of the first Registered Agent at CCS Trustees Limited, Mandar House, 3rd Floor, Johnson’s Ghut, Tortola, British Virgin Islands. |
| 4.2 | The first registered agent of the Company shall be CCS Trustees Limited, of Mandar House, 3rd Floor, Johnson’s Ghut, Tortola, British Virgin Islands. |
| 4.3 | The Company may by Resolution of Shareholders or by Resolution of Directors change the location of its registered office (the “Registered Office”) or change its registered agent. |
| 4.4 | Any change of registered office or registered agent will take effect on the registration by the Registrar of a notice of the change filed by the existing registered agent or a legal practitioner in the BVI acting on behalf of the Company. |
| 4.5 | If at any point the Company does not have a registered agent, it may by Resolution of Shareholders or Resolution of Directors, appoint a registered agent. |
| 5 | CAPACITY AND POWERS |
| 5.1 | Subject to the Act and any other BVI legislation, the Company has, irrespective of corporate benefit: |
| (a) | full capacity to carry on or undertake any business or activity, do any act or enter into any transaction; and | |
| (b) | for the purposes of Clause 5.1(a), full rights, powers and privileges. |
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| 5.2 | For the purposes of section 9(4) of the Act, there are no limitations on the business that the Company may carry on. |
| 6 | NUMBER AND CLASSES OF SHARES |
| 6.1 | The Company is authorised to issue an unlimited number of Shares in two classes as follows: |
| (a) | an unlimited number of Class A Shares; and | |
| (b) | an unlimited number of Class B Shares. |
| 6.2 | The Company may, by Resolution of Directors, issue further classes of Shares. |
| 6.3 | The Company may issue fractional Shares and a fractional Share shall have the corresponding fractional rights, obligations and liabilities of a whole Share of the same class or series of Shares. |
| 6.4 | Shares may be issued in one or more series of Shares as the Directors may by Resolution of Directors determine from time to time. |
| 7 | RIGHTS OF SHARES |
| 7.1 | Each Class A Share confers upon the Class A Shareholder: |
| (a) | the right to notice of and to attend any General Meeting; | |
| (b) | the right to one (1) vote per Class A Share on any Resolution of Shareholders as against each other Class A Share; | |
| (c) | the right to an equal share in any dividend paid by the Company with each other Class A Share; | |
| (d) | the right to an equal share in the distribution of the surplus assets of the Company with each other Class A Share; and | |
| (e) | such other rights and entitlements as may be specified in the Articles. |
| 7.2 | Each Class B Share confers upon the Class B Shareholder: |
| (a) | no right to notice of and to attend any General Meeting; | |
| (b) | no right to vote on any Resolution of Shareholders; | |
| (c) | no right to any dividend paid by the Company; and | |
| (d) | no right to a share in the distribution of the surplus assets of the Company on its liquidation. |
| 7.3 | The Class B Shares shall only be issued to the WeShop Community Trust and/or one or more similar trusts (“Similar Trusts”). |
| 7.4 | The Class B Shares shall automatically convert to Class A Shares on a one-for-one (1:1) basis upon the transfer of a Class B Share by the WeShop Community Trust or a Similar Trust to a Person. |
| 7.5 | The Company may by Resolution of Directors redeem, purchase or otherwise acquire all or any of the Shares subject to Regulation 4 of the Articles. |
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| 8 | VARIATION OF RIGHTS |
| 8.1 | If at any time the Shares are divided into different classes, the rights attached to any class (unless otherwise provided by the terms of issue of the Shares of that class) may only be varied or abrogated, whether or not the Company is in liquidation, with the consent in writing of holders of at least fifty per cent (50%) of the issued Shares of that class or with the sanction of a resolution passed by at least a majority in excess of fifty per cent (50%) of the holders of Shares in that class present in person or by proxy and voting at a separate meeting of the holders of the Shares of that class. |
| 9 | RIGHTS NOT VARIED BY THE ISSUE OF SHARES PARI PASSU |
| 9.1 | The rights conferred upon the holders of the Shares of any class shall not, unless otherwise expressly provided by the terms of issue of the Shares of that class, be deemed to be varied by the creation or issue of further Shares ranking pari passu therewith. |
| 10 | AMENDMENT OF THE MEMORANDUM AND THE ARTICLES |
| 10.1 | The Company may amend the Memorandum or the Articles by Resolution of Shareholders or by Resolution of Directors, save that no amendment may be made by Resolution of Directors: |
| (a) | to restrict the rights or powers of the Shareholders to amend the Memorandum or the Articles; | |
| (b) | to change the percentage of Shareholders required to pass a Resolution of Shareholders to amend the Memorandum or the Articles; | |
| (c) | in circumstances where the Memorandum or the Articles cannot be amended by the Shareholders; or | |
| (d) | to this Clause 10. |
| 10.2 | Any amendment of the Memorandum or the Articles will take effect on the registration by the Registrar of a notice of amendment, or restated Memorandum and Articles, filed by the registered agent. |
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TERRITORY OF THE BRITISH VIRGIN ISLANDS THE BVI BUSINESS COMPANIES ACT 2004 ARTICLES OF ASSOCIATION
OF
WeShop Holdings Limited
A COMPANY LIMITED BY SHARES
| 1. | DISSAPLICATION OF THE ACT |
| 1.1. | Disapplication of the Act |
The following sections of the Act shall not apply to the Company:
| 1.1.1. | section 46 (Pre-emptive rights); | |
| 1.1.2. | section 60 (Process for acquisition of own shares); | |
| 1.1.3. | section 61 (Offer to one or more shareholders); | |
| 1.1.4. | section 62 (Shares redeemed otherwise than at the option of company); and | |
| 1.1.5. | section 175 (Disposition of assets). |
| 2. | REGISTERED SHARES |
| 2.1. | Share Certificates |
Unless and until the Directors resolve to issue share certificates, no share certificate shall be issued, and the records of the shareholdings of each Shareholder shall be in uncertificated book entry form. If the Directors do resolve to issue share certificates in respect of any one (1) or more classes of Shares, then every Shareholder holding such Shares shall be entitled, upon written request only, to a certificate signed by a Director or Officer, or any other person authorised by a Resolution of Directors, or under the Seal specifying the number of Shares held by them and the signature of the Director, Officer or authorised person and the Seal may be facsimiles or affixed by electronic means pursuant to the Electronic Transactions Act.
| 2.2. | Indemnity |
Any Shareholder receiving a share certificate for certificated Shares shall indemnify and hold the Company and its Directors and Officers harmless from any loss or liability which it or they may incur by reason of any wrongful or fraudulent use or representation made by any person by virtue of the possession thereof.
| 2.3. | Replacement |
If a share certificate for certificated Shares is defaced, worn out, lost or destroyed it may be replaced without fee but on such terms (if any) and on satisfactory proof of its loss together with such an indemnity and to payment of any exceptional out-of-pocket expenses of the Company in investigating such evidence and preparing such indemnity as the Board may think fit and, in case of defacement or wearing out, on delivery of the old certificate to the Company.
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| 2.4. | Seal and Signature |
All forms of certificate for Share or loan capital or other Securities (other than letters of allotment, scrip certificates and other like documents) shall be issued under the Seal or in such other manner as the Board may authorise. The Board may by Resolution of Directors determine, either generally or in any particular case or cases, that any signatures on any such certificate need not be autographic but may be affixed to such certificate by some mechanical or electronic means or may be printed thereon or that such certificate need not be signed by any person.
| 2.5. | Joint Holders |
If several Persons are registered as joint holders of any Shares, any one of such Persons may give an effectual receipt for any Distribution.
| 3. | SHARES |
| 3.1. | Pre-Admission |
Prior to Admission, Shares and other Securities may be issued at such times, to such Persons, for such consideration and on such terms as the Directors may by Resolution of Directors determine.
| 3.2. | Post-Admission |
Following Admission, the Directors shall be authorised to issue such number of Shares on such terms as they in their discretion determine by Resolution of Directors.
| 3.3. | Non-Cash Consideration |
In so far as the provisions of Sub-Regulation 3.2apply, such provisions shall not apply to the allotment of any Shares for a consideration other than cash, or to the allotment of any Shares to an employee share scheme.
| 3.4. | Issue |
Subject to the provisions, if any, in the Memorandum (and to any direction that may be given by the Company in General Meeting), the Act and, where applicable, the rules of the Stock Exchange and/or any competent regulatory authority, and without prejudice to any rights attached to any existing Shares, the Directors may allot, issue, grant options over or otherwise dispose of Shares with or without preferred, deferred or other rights or restrictions, whether in regard to a dividend or other distribution, voting, return of capital or otherwise and to such persons, at such times and on such other terms as they think proper, and may also (subject to the Act and the Articles) vary such rights.
| 3.5. | Securities |
The Company may issue Securities, which may be comprised of whole or fractional Shares, rights, options, warrants or convertible securities or securities of similar nature conferring the right upon the holders thereof to subscribe for, purchase or receive any class of Shares or other Securities, upon such terms as the Directors may from time to time determine.
| 3.6. | Consideration Payable in Kind |
A Share may be issued for consideration in any form, including money, a promissory note, or other written obligation to contribute money or property, real property, personal property (including goodwill and know-how), services rendered or a contract for future services.
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| 3.7. | Approval of Consideration in Kind |
No Shares may be issued for a consideration, which is in whole or in part, other than money, unless a Resolution of Directors has been passed stating:
| 3.7.1. | the amount to be credited for the issue of the Shares; and | |
| 3.7.2. | that, in the opinion of the Directors, the present cash value of the non- money consideration and money consideration, if any, is not less than the amount to be credited for the issue of the Shares. |
| 3.8. | No Debt or Liability |
The consideration paid for any Share, whether a par value Share or a no par value Share, shall not be treated as a liability or debt of the Company for the purposes of:
| 3.8.1. | the solvency test in Regulations 4 and 21; and | |
| 3.8.2. | sections 197 and 209 of the Act. |
| 3.9. | Register of Members |
The Company shall keep a register of members (the Register of Members) containing:
| 3.9.1. | the names and addresses of the Persons who hold Shares; | |
| 3.9.2. | the number of each class and series of Shares held by each Shareholder; | |
| 3.9.3. | the date on which the name of each Shareholder was entered in the Register of Members; and | |
| 3.9.4. | the date on which any Person ceased to be a Shareholder. |
| 3.10. | Form of Register of Members |
The Register of Members may be in any such form as the Directors may approve, but if it is in magnetic, electronic or other data storage form, the Company must be able to produce legible evidence of its contents. Until the Directors otherwise determine, the magnetic, electronic or other data storage form shall be the original Register of Members.
| 3.11. | Deemed Issue |
A Share is deemed to be issued when the name of the Shareholder is entered in the Register of Members.
| 3.12. | No Certificate |
Nothing in these Articles shall require title to any Shares or other Securities to be evidenced by a certificate if the Act and the rules of the Stock Exchange permit otherwise.
| 4. | REDEMPTION OF SHARES AND TREASURY SHARES |
| 4.1. | Redemption and Purchase |
Shareholders holding ninety (90%) of the votes of the outstanding Shares entitled to vote may be give a written instruction to the Company directing it to redeem the Shares held by the remaining Shareholders. Upon reciept of the written instruction, the Company shall redeem the Shares specified in the written instruction irrespective of whether or not the Shares are by their terms redeemable.
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| 4.2. | Surrender of Shares |
The Company may acquire its own fully paid Shares for no consideration by way of surrender of the Shares to the Company by the person holding the Share. Any such surrender shall be in writing and signed by the person holding the Shares.
| 4.3. | Solvency Test |
The Company may only offer to purchase, redeem or otherwise acquire Shares if the Resolution of Directors authorising the purchase, redemption or other acquisition contains a statement that the Directors are satisfied, on reasonable grounds, that immediately after the acquisition the value of the Company’s assets will exceed its liabilities and the Company will be able to pay its debts as they fall due.
| 4.4. | Cancellation or Treasury |
Shares that the Company purchases, redeems or otherwise acquires pursuant to this Regulation may be cancelled or held as Treasury Shares except to the extent that such Shares are in excess of fifty per cent (50%) of the issued Shares in which case they shall be cancelled but they shall be available for reissue.
| 4.5. | Rights Suspended |
All rights and obligations attaching to a Treasury Share are suspended and shall not be exercised by the Company while it holds the Share as a Treasury Share.
| 4.6. | Transfer |
Treasury Shares may be transferred by the Company on such terms and conditions (not otherwise inconsistent with the Memorandum and the Articles) as the Company may by Resolution of Directors determine.
| 4.7. | Subsidiary |
Where Shares are held by another body corporate of which the Company holds, directly or indirectly, Shares having more than fifty per cent (50%) of the votes in the election of directors of the other body corporate, all rights and obligations attaching to the Shares held by the other body corporate are suspended and shall not be exercised by the other body corporate.
| 5. | MORTGAGES AND CHARGES OF SHARES |
| 5.1. | Mortgage or Charge |
Shareholders may mortgage or charge their Shares.
| 5.2. | Entry on Register of Members |
There shall be entered in the Register of Members at the written request of the Shareholder:
| 5.2.1. | a statement that the Shares held by them are mortgaged or charged; | |
| 5.2.2. | the name of the mortgagee or chargee; and | |
| 5.2.3. | the date on which the particulars specified in Regulations 5.2.1 and 5.2.2 are entered in the Register of Members. |
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| 5.3. | Cancellation |
Where particulars of a mortgage or charge are entered in the Register of Members, such particulars may be cancelled:
| 5.3.1. | with the written consent of the named mortgagee or chargee or anyone authorised to act on their behalf; or | |
| 5.3.2. | upon evidence satisfactory to the Directors of the discharge of the liability secured by the mortgage or charge and the issue of such indemnities as the Directors shall consider necessary or desirable. |
| 5.4. | No Transfer |
Whilst particulars of a mortgage or charge over Shares are entered in the Register of Members pursuant to this Regulation:
| 5.4.1. | no transfer of any Share the subject of those particulars shall be effected; | |
| 5.4.2. | the Company may not purchase, redeem or otherwise acquire any such Share; and | |
| 5.4.3. | no replacement certificate shall be issued in respect of such Shares, without the written consent of the named mortgagee or chargee. |
| 6. | FORFEITURE |
| 6.1. | Application |
Shares whose issue price is not fully paid on issue are subject to the forfeiture provisions set forth in this Regulation and for this purpose Shares issued for a promissory note, other written obligation to contribute money or property or a contract for future services are deemed to be not fully paid.
| 6.2. | Call Notice |
A written notice of call specifying the date for payment to be made shall be served on the Shareholder who defaults in making payment in respect of the Shares.
| 6.3. | Forfeiture Date |
The written notice of call referred to in Regulation 6.2 shall name a further date not earlier than the expiration of fourteen (14) days from the date of service of the notice on or before which the payment required by the notice is to be made and shall contain a statement that in the event of non-payment at or before the time named in the notice the Shares, or any of them, in respect of which payment is not made will be liable to be forfeited.
| 6.4. | Forfeiture |
Where a written notice of call has been issued pursuant to Regulation 6.4 and the requirements of the notice have not been complied with, the Directors may, at any time before tender of payment, forfeit and cancel the Shares to which the notice relates.
| 6.5. | No Refund |
The Company is under no obligation to refund any moneys to a Shareholder whose Shares have been cancelled pursuant to Regulation 6.4 and that Shareholder shall be discharged from any further obligation to the Company.
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| 7. | TRANSFER OF SHARES |
| 7.1. | Right to Transfer |
Subject to these Articles and the rules or regulations of the Stock Exchange or any relevant rules of the SEC or securities laws (including, but not limited to the Exchange Act), a Shareholder may transfer all or any of their Shares. If the Shares in question were issued in conjunction with rights, options, or warrants issued pursuant to the Articles on terms that one cannot be transferred without the other, the Directors shall refuse to register the transfer of any such Share without evidence satisfactory to them of the like transfer of such option or warrant.
| 7.2. | Lock in period and Orderly Market |
| 7.2.1. | No Shareholder holding shares immediately prior to the Listing Date shall Transfer or otherwise dispose any of their shareholding in the Company during a period of 365 days from the Listing Date (Lock-in-Period). | |
| 7.2.2. | The Lock-in-period shall not apply to: |
| a. | Transfers of Shares by a Shareholder that acquired such Shares after the Listing Date; and | |
| b. | Transfers of Shares in accordance with an exemption granted by the Board of Directors pursuant to Regulation 7.2.3 |
| 7.2.3. | The Board of Directors may, in their sole discretion, waive the Lock-In Period in exceptional circumstances, provided that such waiver is in the best interest of the Company and is approved by a majority vote of the Board. |
| 7.3. | Directors’ Consent |
Shares and Treasury Shares are transferable, subject to the consent of the Directors who may, subject to the terms of issue thereof and the rules or regulations of the Stock Exchange or any relevant rules of the SEC or securities laws (including, but not limited to the Exchange Act), in their absolute discretion, refuse to consent to any transfer and decline to register the transfer without giving any reason.
| 7.4. | Instrument of Transfer. |
The instrument of transfer of any Share shall be in:
| 7.4.1. | any usual or common form; | |
| 7.4.2. | such form as is prescribed by the Stock Exchange; or | |
| 7.4.3. | in any other form as the Directors may determine, | |
| and shall be executed by or on behalf of the transferor (or otherwise as prescribed by the rules and regulations of the Stock Exchange) and if in respect of a nil or partly paid up Share, or if so required by the Directors, shall also be executed on behalf of the transferee. | ||
| 7.5. | Certificates. |
Subject to Regulations 2.2 and 2.3, where the Company has issued a certificate in respect of a Share proposed to be transferred, the transferor shall lodge, with the instrument of transfer, the original certificate relating to the Share being transferred.
| 7.6. | Effective Date. |
The transfer of a Share is effective when the name of the transferee is entered on the Register of Shareholders. Until such time, the transferor shall be deemed to remain a Shareholder.
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| 7.7. | Lost Certificate. |
If the Directors are satisfied that an instrument of transfer relating to Shares has been signed but that the instrument has been lost or destroyed, they may, on receipt of such indemnities as they may require:
| 7.7.1. | accept such evidence of the transfer of Shares as they consider appropriate; and | |
| 7.7.2. | proceed to register the transferee’s name in the Register of Members. |
| 7.8. | Notification of Refusal. |
Where the Directors refuse to register a transfer of a Share, they shall, within two (2) months after the date on which the transfer was lodged with the Company, notify the transferee of the refusal.
| 7.9. | Transfer of Treasury Shares. |
The transfer of Treasury Shares may be for valuable consideration or otherwise, and at a discount to the par value of the Shares.
| 8. | [Intentionally Left Blank] |
| 9. | MEETINGS AND CONSENTS OF SHAREHOLDERS |
| 9.1. | Annual General Meetings |
The Board shall convene and the Company shall hold an Annual General Meeting at least once in each calendar year.
| 9.2. | Extraordinary General Meetings |
Subject to the requirements of the Act and Regulation 9.1, any Director may convene meetings of the Shareholders at such times and in such manner and places within or outside the BVI as the Director considers necessary or desirable.
| 9.3. | Shareholders Convene |
Upon the written request of Shareholders entitled to exercise thirty per cent (30%) or more of the voting rights in respect of the matter for which the meeting is requested (the “Special Meeting Request”) the Directors shall convene a meeting of Shareholders. The Special Meeting Request may consist of several documents in like form each signed by one or more requisitionists (each such requisitionist, a “Requisitioning Member”) and must:
| (a) | be deposited at the Registered Office within sixty (60) days of the earliest such documents being deposited at the Registered Office; | |
| (b) | state the business (including the identity of nominees for election as a Director, if any) proposed to be acted on at the meeting of Members, which shall be limited to the business set forth in the Special Meeting Request received by the Company; | |
| (c) | bear the date of signature of each Member (or duly authorized agent) who is a requisitionist submitting the Special Meeting Request; | |
| (d) | set forth the name and address of each Member submitting the Special Meeting Request, as they appear on the Register of Members; |
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| (e) | contain the information required by Regulation 17.13 with respect to any Director Nomination(s) or with respect to any other business proposed to be presented at the extraordinary general meeting, and as to each Member requesting the meeting and each other person (including any beneficial owner) on whose behalf the Member is acting; | |
| (f) | include documentary evidence that the requisitionists own the Requisite Percent, as of the date, in the case of each Member requisitioning the extraordinary general meeting, that such shareholder’s requisition was signed; provided, however, that if the requisitioning Members are not the beneficial owners of the Shares representing the Requisite Percent, then to be valid, the Special Meeting Request must also include documentary evidence of the number of Shares owned by the beneficial owners on whose behalf the Special Meeting Request is made, as of the date, in the case of each Member requesting the extraordinary general meeting, that such Member’s requisition was signed; and | |
| (g) | otherwise meet the requirements of these Articles. |
A Special Meeting Request shall not be valid, and the Company shall not call an extraordinary general meeting if:
| (a) | the Special Meeting Request relates to a subject that is not a proper subject for action by Members of the Company under the Statute or otherwise involves a violation of any applicable law; | |
| (b) | an item of business that is the same or substantially similar (as determined in good faith by the board of Directors) as was presented at a meeting of Members occurring within ninety (90) days preceding the earliest date of signature on the Special Meeting Request, provided that matters relating to the election or removal of Directors shall not be considered the same or substantially similar to the election of Directors at the immediately preceding annual general meeting of Members; | |
| (c) | the Special Meeting Request is delivered during the period commencing ninety (90) days prior to the anniversary date of the immediately preceding annual general meeting of Members and ending on the date of the next annual general meeting of Members; or | |
| (d) | otherwise meet the requirements of these Articles. |
| 9.4. | Shareholder AGM Business. |
Shareholders seeking to bring business before an Annual General Meeting, or to nominate candidates for appointment as Directors at an Annual General Meeting, must provide written notice of such business to the Company. Such notice must be received at the Company’s principal office no later than the close of business on the ninetieth (120th) day nor earlier than the close of business on the one-hundred and fiftieth (150th) day prior to the anniversary date of the immediately preceding Annual General Meeting.
As to each person whom the Member or Requisitioning Members propose to nominate for appointment as a Director:
| (i) | the name, age, business address and residence address of the nominee; | |
| (ii) | the principal occupation or employment of the nominee; | |
| (iii) | the class and number of Shares or any other securities of the Company that are held of record or are beneficially owned by the nominee and of its affiliates and any derivative positions held or beneficially held by the nominee and of its affiliates; |
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| (iv) | whether and the extent to which any hedging or other transaction or series of transactions has been entered into by or on behalf of the nominee or any of its affiliates with respect to any securities of the Company, and a description of any other agreement, arrangement or understanding (including any short position or any borrowing or lending of any securities), the effect or intent of which is to mitigate loss to, or to manage the risk or benefit of share price changes for, or to increase or decrease the voting power of the nominee or any of its affiliates; | |
| (v) | a description of all agreements, arrangements or understandings between or among the Member or the Requisitioning Members, as applicable, or any of its or their affiliates and each nominee or any of its affiliates and any other person or persons (naming such person or persons) pursuant to which the nominations are to be made by the Member or the Requisitioning Members or concerning the nominee’s potential service as a Director; | |
| (vi) | a written statement executed by the nominee acknowledging that if elected as a Director the nominee will: |
(A) owe fiduciary duties under the Statute with respect to the Company and its Members; and
(B) comply with all applicable corporate governance, conflict of interest, confidentiality, stock ownership and trading and other policies and guidelines of the Company applicable to Directors and in effect during such Person’s term in office as a director;
| (vii) | all information relating to such nominee that is required to be disclosed in solicitations of proxies for appointment of Directors in an appointment contest or otherwise required, in each case pursuant to the Statute or other applicable law, rule or regulation (including, without limitation, such person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if appointed); |
Notice
At least fourteen (14) clear days’ written notice shall be given for every Annual General Meeting and at least seven (7) clear days’ written notice for Extraordinary General Meetings. Notices of Shareholder meetings shall be sent to:
| 9.4.1. | those Shareholders whose names on the date the notice is given appear as Shareholders in the Register of Members and are entitled to vote at the meeting; and | |
| 9.4.2. | the other Directors. |
| 9.5. | Publication of a Notice on a Website. |
Subject to the Act or the rules of the Stock Exchange, a notice of a General Meeting may be published on a website providing the recipient is given separate notice of:
| 9.5.1. | the publication of the notice on the website; | |
| 9.5.2. | the place on the website where the notice may be accessed; | |
| 9.5.3. | how it may be accessed; and | |
| 9.5.4. | the place, date, and time of the General Meeting. |
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| 9.6. | Inability to Access Website. |
If a Member notifies the Company that they are unable for any reason to access the website, the Company must as soon as practicable give notice of the meeting to that Shareholder by any other means permitted by these Articles. This will not affect when that Shareholder is deemed to have received notice of the meeting.
| 9.7. | Time a Website Notice is Deemed to be Given. |
A website notice is deemed to be given when the Shareholder is given notice of its publication.
| 9.8. | Required Duration of Publication on a Website. |
Where the notice of meeting is published on a website, it shall continue to be published in the same place on that website from the date of the notification until at least the conclusion of the meeting to which the notice relates.
| 9.9. | Record Date |
The Director convening a meeting of Shareholders may fix as the record date, for determining those Shareholders that are entitled to vote at the meeting, the date notice is given of the meeting, or such other date as may be specified in the notice, being a date not earlier than the date of the notice.
| 9.10. | Waiver of Notice |
A meeting of Shareholders held in contravention of the requirement to give notice is valid if Shareholders holding at least ninety per cent (90%) of the total voting rights on all the matters to be considered at the meeting have waived notice of the meeting and, for this purpose, the presence of a Shareholder at the meeting shall constitute waiver in relation to all the Shares which that Shareholder holds.
| 9.11. | Failure of Notice |
The inadvertent failure of a Director who convenes a meeting to give notice of a meeting to a Shareholder or another Director, or the fact that a Shareholder or another Director has not received notice, does not invalidate the meeting.
| 9.12. | Proxy |
A Shareholder may be represented at a meeting of Shareholders by a proxy who may speak and vote on behalf of the Shareholder.
| 9.13. | Presentation of Proxy |
The instrument appointing a proxy shall be produced at the place designated for the meeting at least three (3) Business Days before the time for holding the meeting at which the person named in such instrument proposes to vote. The notice of the meeting may specify an alternative or additional place or time at which the proxy shall be presented.
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| 9.14. | Form of Proxy |
The instrument appointing a proxy shall be in substantially the following form or such other form as the chair of the meeting shall accept as properly evidencing the wishes of the Shareholder appointing the proxy.
| WESHOP HOLDINGS LIMITED
I/We being a shareholder of the above company HEREBY APPOINT [ ] of [ ] or failing them [ ] of [ ] to be my/our proxy to speak and vote for me/us at the meeting of shareholders to be held on the [ ] day of [ ] and at any adjournment thereof.
(Any restriction on voting to be inserted here)
Signed this [ ] day of [ ] 20[ ]
Shareholder |
| 9.15. | Joint Ownership |
The following applies where Shares are jointly owned:
| 9.15.1. | if two (2) or more persons hold Shares jointly each of them may be present in person or by proxy at a meeting of Shareholders and may speak as a Shareholder; | |
| 9.15.2. | if only one (1) of the joint owners is present in person or by proxy they may vote on behalf of all joint owners; and | |
| 9.15.3. | if two (2) or more of the joint owners are present in person or by proxy they must vote as one. |
| 9.16. | Conference Facility |
A Shareholder shall be deemed to be present at a meeting of Shareholders if they participate by telephone or other electronic means and all Shareholders participating in the meeting are able to hear each other. In the event that no Shareholders are physically present at the place chosen for any meeting such meeting will be deemed to be held at the location where the chair of the meeting is physically present.
| 9.17. | Quorum |
No business shall be transacted at any meeting of Shareholders unless a quorum is present when the meeting proceeds to business. A meeting of Shareholders is duly constituted if, at the commencement of the meeting, there are present in person or by proxy holders of ten per cent (10%) of the Shares entitled to vote on the resolutions of Shareholders to be considered at the meeting. The absence of a quorum shall not preclude the appointment of a chair in accordance with the provisions of these Articles, which shall not be treated as part of the business of the meeting.
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| 9.18. | No Quorum |
If within two (2) hours from the time appointed for the meeting a quorum is not present, the meeting, if convened upon the requisition of Shareholders, shall be dissolved; in any other case it shall stand adjourned to the next Business Day in the jurisdiction in which the meeting was to have been held at the same time and place or to such other time and place as the Directors may determine, and if at the adjourned meeting there are present within one (1) hour from the time appointed for the meeting in person or by proxy not less than one third (33.33%) of the votes of the Shares or each class or series of Shares entitled to vote on the matters to be considered by the meeting, those present shall constitute a quorum but otherwise the meeting shall be dissolved.
| 9.19. | Chair of Meeting |
At every meeting of Shareholders, the Chair of the Board shall preside as chair of the meeting. If there is no Chair of the Board or if the Chair of the Board is not present at the meeting, the Shareholders present shall choose one (1) of their number to be the chair. If the Shareholders are unable to choose a chair for any reason, then the person representing the greatest number of voting Shares present in person or by proxy at the meeting shall preside as chair failing which the oldest individual Shareholder or representative of a Shareholder present shall take the chair.
| 9.20. | Adjournment |
The chair may, with the consent of the meeting, adjourn any meeting from time to time, and from place to place, but no business shall be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place.
| 9.21. | Polls |
At any meeting of the Shareholders the chair is responsible for deciding in such manner as they consider appropriate whether any resolution proposed has been carried or not and the result of their decision shall be announced to the meeting and recorded in the minutes of the meeting. If the chair has any doubt as to the outcome of the vote on a proposed resolution, they shall cause a poll to be taken of all votes cast upon such resolution. If the chair fails to take a poll then any Shareholder present in person or by proxy who disputes the announcement by the chair of the result of any vote may immediately following such announcement demand that a poll be taken and the chair shall cause a poll to be taken. Any Shareholder present in person or by proxy may demand a poll at any time. If a poll is taken at any meeting, the result shall be announced to the meeting and recorded in the minutes of the meeting.
| 9.22. | Representation of Shareholders |
Subject to the specific provisions contained in this Regulation for the appointment of representatives of Persons other than individuals the right of any individual to speak for or represent a Shareholder shall be determined by the law of the jurisdiction where, and by the documents by which, the Person is constituted or derives its existence. In case of doubt, the Directors may in good faith seek legal advice from any qualified person and unless and until a court of competent jurisdiction shall otherwise rule, the Directors may rely and act upon such advice without incurring any liability to any Shareholder or the Company.
| 9.23. | Legal Persons |
Any Person other than an individual which is a Shareholder may authorise such individual as it thinks fit to act as its representative at any meeting of Shareholders or of any class of Shareholders, and the individual so authorised shall be entitled to exercise the same rights on behalf of the Shareholder which they represent as that Shareholder could exercise if it were an individual.
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| 9.24. | Proxy Evidence |
The chair of any meeting at which a vote is cast by proxy or on behalf of any Person other than an individual may call for a notarially certified copy of such proxy or authority which shall be produced within seven (7) days of being so requested or the votes cast by such proxy or on behalf of such Person shall be disregarded.
| 9.25. | Directors |
Directors may attend and speak at any meeting of Shareholders and at any separate meeting of the holders of any class or series of Shares.
| 9.26. | Resolutions of Shareholders |
Save as where expressly provided otherwise in the Memorandum or Articles, any action which requires a resolution of the Shareholders pursuant to the Act or any other BVI legislation, shall be authorised if approved by Resolution of Shareholders.
| 9.27. | Written Resolutions |
An action that may be taken by the Shareholders at a meeting may, prior to the Listing Date, also be taken by a resolution consented to in writing, without the need for any notice, but if any resolution of the Shareholders is adopted otherwise than by the unanimous written consent of all Shareholders, an announcement including the material terms of such written resolutions will be published by the Company on its website as soon as reasonably practicable after they have taken effect. Upon such publication, any Shareholder that has not consented to such written resolutions will be deemed to have been notified of their contents. The consent may be in the form of counterparts, each counterpart being signed by one (1) or more Shareholders. If the consent is in one (1) or more counterparts, and the counterparts bear different dates, then the resolution shall take effect on the earliest date upon which Shareholders holding a sufficient number of votes of Shares to constitute a resolution of the Shareholders have consented to the resolution by signed counterparts.
| 10. | UNTRACEABLE SHAREHOLDERS |
| 10.1. | Untraceable Shareholders |
When the registered address of any Shareholder appears to the Board to be incorrect or out of date such Shareholder may, if the Board so resolves, be treated as if they had no registered address and the Company will not thereafter be obliged to send to such Shareholder cheques, warrants, notices of meetings or copies of the documents referred to in these Articles; provided that no resolution as aforesaid shall be proposed by the Board until cheques or warrants sent to the registered address of such Shareholder have been returned by the postal service or left uncashed on at least two (2) consecutive occasions or, following one (1) such occasion, reasonable enquiries have failed to establish any new address of such Shareholder.
| 10.2. | Power of Sale |
The Company shall be entitled to sell at the best price reasonably obtainable any Share of a Shareholder or any Share to which a person is entitled by transmission if and provided that:
| 10.2.1. | for a period of twelve (12) years in the course of which at least three (3) dividends have become payable in respect of the Share in question, no cheque or warrant sent by the Company through the post in a prepaid letter addressed to the Shareholder or to the person entitled by transmission to the Share at their address on the Register of Members or the other last known address given by the Shareholder or the person entitled by transmission to which cheques and warrants are to be sent has been cashed and no communication has been received by the Company from the Shareholder or the person entitled by transmission; and |
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| 10.2.2. | the Company has at the expiration of the said period of twelve (12) years by advertisement in both a leading national newspaper and in a newspaper circulating in the area in which the address referred to in Regulation 10.2.1 above is located given notice of its intention to sell such Share; and | |
| 10.2.3. | the Company has not during the further period of three (3) months after the date of the advertisement and prior to the exercise of the power of sale received any communication from the Shareholder or person entitled by transmission. |
| 10.3. | Execution of Sale |
To give effect to any such sale the Company may appoint any person:
| 10.3.1. | in the case of certificated Shares to execute as transferor an instrument of transfer of such Share and such instrument of transfer; and/or | |
| 10.3.2. | in the case of uncertificated Shares to authorise and procure the execution of such transfer in accordance with and subject to the regulations and facilities and requirements of the relevant system concerned and such instrument of transfer and/or transfer shall be as effective as if it had been executed by the registered holder of or person entitled by transmission to such Share. |
The Company shall account to the Shareholder or other person entitled to such Share for the net proceeds of such sale and shall be deemed to be their debtor and not a trustee for them in respect of the same. Any money not accounted for to the Shareholder or other person entitled to such Share shall be carried to a separate account and shall be a permanent debt of the Company provided that such debt shall not incur interest and the Company shall not be required to account for any money earned on the net proceeds. Money carried to such separate account may either be employed in the business of the Company or invested in such investments (other than Shares or its holding company, if any) as the Directors may from time to time think fit.
| 11. | DIRECTORS |
| 11.1. | Number of Directors |
The minimum number of Directors shall be one (1) and there shall be no maximum number.
| 11.2. | Appointment |
The Directors shall be elected by Resolution of Shareholders or by Resolution of Directors.
| 11.3. | Consent to Act |
No person shall be appointed as a Director, alternate Director, or nominated as a reserve Director, of the Company unless they have consented in writing to be a Director, alternate Director or to be nominated as a reserve Director respectively.
| 11.4. | Term of Office |
Subject to Regulation 11.5, each Director holds office for the term, if any, fixed by the Resolution of Shareholders or the Resolution of Directors appointing them, or until their earlier death, resignation, retirement by rotation or removal. If no term is fixed on the appointment of a Director, the Director serves indefinitely until their earlier death, retirement by rotation, resignation or removal.
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| 11.5. | Retirement by Rotation |
The following provisions in relation to the retirement of Directors by rotation shall apply:
| 11.5.1. | at each Annual General Meeting one-third (33.33%) of the Directors for the time being (or, if their number is not a multiple of three (3), the number nearest to but not more than one-third (33.33%)) shall retire from office by rotation; | |
| 11.5.2. | the Directors to retire in every year shall be those subject to retirement by rotation who have been longest in office since their last re-election or appointment. As between persons who become or were last re-elected Directors on the same day, those to retire shall (unless they otherwise agree among themselves) be determined by lot. A retiring Director shall be eligible for re-election; | |
| 11.5.3. | the Company at the Annual General Meeting at which a Director retires under any provision of these Articles may by Resolution of Shareholders fill the office being vacated by electing thereto the retiring Director or some other person eligible for appointment. In default, the retiring Director shall be deemed to have been re-elected except in any of the following cases: |
| a. | where at such Annual General Meeting it is expressly resolved not to fill such office or a resolution for the re-election of such Director is put to the meeting and lost; | |
| b. | where such Director is disqualified under the Act from holding office as a Director or has given notice in writing to the Company that they are unwilling to be re-elected; or | |
| c. | where such Director has attained any retiring age applicable to them as a Director; and |
| 11.5.4. | the retirement shall not have effect until the conclusion of the Annual General Meeting except where a resolution is passed to elect some other person in the place of the retiring Director or a resolution for their re-election is put to the Annual General Meeting and is lost, accordingly a retiring Director who is re-elected or deemed to have been re-elected in office shall be deemed to have continued in their role without a break. |
| 11.6. | Removal from Office |
A Director may be removed from office:
| 11.6.1. | only with cause by the affirmative vote of the holders of at least sixty-six and two-thirds percent (66 2/3%) of the votes of all then outstanding Class A Shares entitled to vote generally at a meeting for the election of directors., by Resolution of Shareholders passed at a meeting of Shareholders called for the purposes of removing the Director or for purposes including the removal of the Director; | |
| 11.6.2. | with or without cause by Resolution of Directors passed at a meeting of Directors called for the purpose of removing the Director or for purposes including the removal of the Director. | |
| “with cause” means means conduct of a director which amounts to fraud or dishonesty. |
| 11.7. | Resignation |
A Director may resign their office by giving written notice of their resignation to the Company and the resignation has effect from the date the notice is received by the Company or from such later date as may be specified in the notice. A Director shall resign forthwith as a Director if they are, or becomes, disqualified from acting as a Director under the Act.
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| 11.8. | Interim Appointment |
The Directors may at any time appoint any person to be a Director either to fill a vacancy or as an addition to the existing Directors. Where the Directors appoint a person as Director to fill a vacancy, the term shall not exceed the term that remained when the person who has ceased to be a Director ceased to hold office.
| 11.9. | Vacancy |
A vacancy in relation to Directors occurs if a Director dies or otherwise ceases to hold office prior to the expiration of their term of office.
| 11.10. | Register of Directors |
The Company shall keep a register of Directors (the Register of Directors) containing such information as may be proscribed by the Act.
| 11.11. | Form of Register of Directors |
The Register of Directors may be kept in any such form as the Directors may approve, but if it is in magnetic, electronic or other data storage form, the Company must be able to produce legible evidence of its contents. Until a Resolution of Directors determining otherwise is passed, the magnetic, electronic or other data storage shall be the original Register of Directors.
| 11.12. | Registrar Filing |
The Company shall file for registration with the Registrar a copy of its Register of Directors (and any changes to the Register of Directors) in accordance with the provisions of the Act.
| 11.13. | Office Remuneration. |
The remuneration to be paid to the Directors, if any, shall be such remuneration as the Directors shall determine. The Directors shall also be entitled to be paid all travelling, hotel, and other expenses properly incurred by them in connection with their attendance at meetings of Directors or committees of Directors, or General Meetings, or separate meetings of the holders of any class of Shares or debentures of the Company, or otherwise in connection with the business of the Company, or to receive a fixed allowance in respect thereof as may be determined by the Directors, or a combination of such methods.
| 11.14. | Additional Remuneration. |
The Directors may by resolution approve additional remuneration to any Director for any services other than their ordinary routine work as a Director. Any fees paid to a Director who is also counsel or solicitor to the Company, or otherwise serves it in a professional capacity shall be in addition to their remuneration as a Director.
| 11.15. | Pensions. |
The Directors, on behalf of the Company, may pay a gratuity or pension or allowance on retirement to any Director who has held any other salaried office or place of profit with the Company or to their widow or dependants and may make contributions to any fund and pay premiums for the purchase or provision of any such gratuity, pension, or allowance.
| 11.16. | No shareholding |
A Director is not required to hold a Share as a qualification to office.
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| 11.17. | Appointment of Alternates |
A Director, by written instrument deposited at the registered office of the Company may from time to time appoint another Director or another person who is not disqualified for appointment as a Director under the Act to be their alternate to:
| 11.17.1. | exercise the appointing Director’s powers; and | |
| 11.17.2. | carry out the appointing Director’s responsibilities, | |
| in relation to the taking of decisions by the Directors in the absence of the appointing Director. | ||
| 11.18. | Consent of Alternate |
No person shall be appointed as an alternate Director unless they have consented in writing to be an alternate Director. The appointment of an alternate Director does not take effect until written notice of the appointment has been deposited at the registered office of the Company.
| 11.19. | Removal of Alternate |
The appointing Director may, at any time, terminate or vary the alternate’s appointment. The termination or variation of the appointment of an alternate Director does not take effect until written notice of the termination or variation has been deposited at the registered office of the Company, save that if a Director shall die or cease to hold the office of Director, the appointment of their alternate shall thereupon cease and terminate immediately without the need of notice.
| 11.20. | Limit on Power |
An alternate Director has no power to appoint an alternate, whether of the appointing Director or of the alternate Director.
| 11.21. | Powers of Alternate |
An alternate Director has the same rights as the appointing Director in relation to any Directors’ meeting and any written resolution of Directors circulated for written consent. Unless stated otherwise in the notice of the appointment of the alternate, or a notice of variation of the appointment, if undue delay or difficulty would be occasioned by giving notice to a Director of a resolution of which their approval is sought in accordance with these Articles their alternate (if any) shall be entitled to signify approval of the same on behalf of that Director. Any exercise by the alternate Director of the appointing Director’s powers in relation to the taking of decisions by the Directors is as effective as if the powers were exercised by the appointing Director. An alternate Director does not act as an agent of or for the appointing Director and is liable for their own acts and omissions as an alternate Director.
| 11.22. | Fees |
The remuneration of an alternate Director (if any) shall be payable out of the remuneration payable to the Director appointing them (if any), as agreed between such alternate Director and the Director appointing them.
| 12. | POWERS OF DIRECTORS |
| 12.1. | Management by Directors |
The business and affairs of the Company shall be managed by, or under the direction or supervision of, the Directors. The Directors have all the powers necessary for managing, and for directing and supervising, the business and affairs of the Company. The Directors may pay all expenses incurred preliminary to and in connection with the incorporation of the Company and may exercise all such powers of the Company as are not by the Act or by the Memorandum or the Articles required to be exercised by the Shareholders.
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| 12.2. | Fiduciary Duties |
Each Director shall exercise their powers for a proper purpose and shall not act or agree to the Company acting in a manner that contravenes the Memorandum, the Articles or the Act. Each Director, in exercising their powers or performing their duties, shall act honestly and in good faith in what the Director believes to be the best interests of the Company.
| 12.3. | Corporate Directors |
Any Director which is a body corporate may appoint any individual as its duly authorised representative for the purpose of representing it at meetings of the Directors, with respect to the signing of consents or otherwise.
| 12.4. | Acting in Vacancy |
The continuing Directors may act notwithstanding any vacancy in their body.
| 12.5. | Borrowings |
The Directors may by Resolution of Directors exercise all the powers of the Company to incur indebtedness, liabilities or obligations and to secure indebtedness, liabilities or obligations whether of the Company or of any third party.
| 12.6. | Negotiable Instruments |
All cheques, promissory notes, drafts, bills of exchange and other negotiable instruments and all receipts for moneys paid to the Company shall be signed, drawn, accepted, endorsed or otherwise executed, as the case may be, in such manner as shall from time to time be determined by Resolution of Directors.
| 12.7. | No Loans to Directors |
The Company has no power to grant loans to the Directors.
| 13. | PROCEEDINGS OF DIRECTORS |
| 13.1. | Calling Meetings |
Any one Director may call a meeting of the Directors by sending a written notice to each other Director.
| 13.2. | Place |
The Directors or any committee thereof may meet at such times and in such manner and places within or outside the BVI as the Directors may determine to be necessary or desirable.
| 13.3. | Conference Facility |
A Director is deemed to be present at a meeting of Directors if they participate by telephone or other electronic means and all Directors participating in the meeting are able to hear each other.
| 13.4. | Notice of Meetings |
A Director shall be given not less than three (3) days’ notice of meetings of Directors, but a meeting of Directors held without three (3) days’ notice having been given to all Directors shall be valid if all the Directors entitled to vote at the meeting who do not attend waive notice of the meeting, and for this purpose the presence of a Director at a meeting shall constitute waiver by that Director. The inadvertent failure to give notice of a meeting to a Director, or the fact that a Director has not received the notice, does not invalidate the meeting.
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| 13.5. | Quorum |
A meeting of Directors is duly constituted for all purposes if at the commencement of the meeting there are present in person or by alternate not less than one-half (50%) of the total number of Directors, unless there are only two (2) Directors in which case the quorum is two (2).
| 13.6. | Sole Director |
If the Company has only one Director the provisions herein contained for meetings of Directors do not apply and such sole Director has full power to represent and act for the Company in all matters as are not by the Act, the Memorandum or the Articles required to be exercised by the Shareholders. In lieu of minutes of a meeting the sole Director shall record in writing and sign a note or memorandum of all matters requiring a Resolution of Directors. Such a note or memorandum constitutes sufficient evidence of such resolution for all purposes.
| 13.7. | Chair |
At meetings of Directors at which the Chair of the Board is present, they shall preside as chair of the meeting. If there is no Chair of the Board or if the Chair of the Board is not present, the Directors present shall choose one of their number to be chair of the meeting.
| 13.8. | Written Resolution |
An action that may be taken by the Directors or a committee of Directors at a meeting may also be taken by a Resolution of Directors or a resolution of a committee of Directors consented to in writing or by written electronic communication by a majority of the members of the committee without the need for any notice. A written resolution consented to in such manner may consist of several documents, including written electronic communication, in like form each signed or assented to by one or more Directors. If the consent is in one or more counterparts, and the counterparts bear different dates, then the resolution shall take effect on the date upon which the last member has consented to the resolution by signed counterparts.
| 13.9. | Conference Call |
A person may participate and vote in a meeting of the Directors or committee of Directors by telephone or other electronic means by means of which all the persons participating in the meeting are able to hear each other. Unless otherwise determined by the Directors the meeting shall be deemed to be held at the place where the chair is at the start of the meeting.
| 13.10. | Minutes |
The Directors shall cause minutes to be made in books kept for the purpose of all appointments of Officers made by the Directors, all proceedings at meetings of the Company or the holders of any class of Shares and of the Directors, and of committees of Directors including the names of the Directors or alternate Directors present at each meeting.
| 13.11. | Presumption of Assent |
A Director who is present at a meeting of the Board at which action on any Company matter is taken shall be presumed to have assented to the action taken unless their dissent shall be entered in the minutes of the meeting or unless they shall file their written dissent from such action with the person acting as the chair or secretary of the meeting before the adjournment thereof. Such right to dissent shall not apply to a Director who voted in favour of such action.
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| 14. | COMMITTEES |
| 14.1. | Creation |
The Directors may establish any committees, local boards, or agencies or appoint any person to be a manager or agent for managing the affairs of the Company and may appoint any person to be a member of such committees or local boards. Any such appointment may be made subject to any conditions the Directors may impose, and may be revoked or altered. Subject to any such conditions, the proceedings of any such committee, local board, or agency shall be governed by the Articles regulating the proceedings of Directors, so far as they are capable of applying.
| 14.2. | Charters |
The Directors may adopt formal written charters for committees. Each of these committees shall be empowered to do all things necessary to exercise the rights of such committee set forth in the Articles and shall have such powers as the Directors may delegate pursuant to the Articles and as required by the rules and regulations of the Stock Exchange, the SEC, and/or any other competent regulatory authority or otherwise under applicable law.
| 14.3. | Delegation |
The Directors have no power to delegate to a committee of Directors any of the following powers:
| 14.3.1. | to amend the Memorandum or the Articles; | |
| 14.3.2. | to designate committees of Directors; | |
| 14.3.3. | to delegate powers to a committee of Directors; | |
| 14.3.4. | to appoint or remove Directors; | |
| 14.3.5. | to appoint or remove an agent; | |
| 14.3.6. | to approve a plan of merger, consolidation or arrangement; | |
| 14.3.7. | to make a declaration of solvency or to approve a liquidation plan; or | |
| 14.3.8. | to make a determination that immediately after a proposed Distribution the value of the Company’s assets will exceed its liabilities and the Company will be able to pay its debts as they fall due. |
| 14.4. | Sub-Delegation |
Regulations 14.3.2 and 14.3.3 do not prevent a committee of Directors, where authorised by the Resolution of Directors appointing such committee or by a subsequent Resolution of Directors, from appointing a sub-committee and delegating powers exercisable by the committee to the sub-committee.
| 14.5. | Committee Proceedings |
The meetings and proceedings of each committee of Directors consisting of two (2) or more Directors shall be governed mutatis mutandis by the provisions of the Articles regulating the proceedings of Directors so far as the same are not superseded by any provisions in the Resolution of Directors establishing the committee.
| 14.6. | Exercise of Powers |
Where the Directors delegate their powers to a committee of Directors they remain responsible for the exercise of that power by the committee, unless they believed on reasonable grounds at all times before the exercise of the power that the committee would exercise the power in conformity with the duties imposed on Directors under the Act.
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| 15. | OFFICERS AND AGENTS |
| 15.1. | Officers |
The Company may by Resolution of Directors appoint Officers at such times as may be considered necessary or expedient. Such Officers may consist of a Chair of the Board, a president and one or more vice-presidents, secretaries and treasurers and such other Officers as may from time to time be considered necessary or expedient. Any number of offices may be held by the same person.
| 15.2. | Duties of Officers |
The Officers shall perform such duties as are prescribed at the time of their appointment subject to any modification in such duties as may be prescribed thereafter by Resolution of Directors. In the absence of any specific prescription of duties it shall be the responsibility of the Chair of the Board to preside at meetings of Directors and Shareholders, the president to manage the day to day affairs of the Company, the vice-presidents to act in order of seniority in the absence of the president but otherwise to perform such duties as may be delegated to them by the president, the secretaries to maintain the Register of Members, minute books and records (other than financial records) of the Company and to ensure compliance with all procedural requirements imposed on the Company by applicable law, and the treasurer to be responsible for the financial affairs of the Company.
| 15.3. | Emoluments |
The emoluments of all Officers shall be fixed by Resolution of Directors.
| 15.4. | Term |
The Officers shall hold office until their successors are duly appointed, but any Officer elected or appointed by the Directors may be removed at any time, with or without cause, by Resolution of Directors. Any vacancy occurring in any office of the Company may be filled by Resolution of Directors.
| 15.5. | Agent |
The Directors may, by Resolution of Directors, appoint any person, including a person who is a Director, to be an agent of the Company.
| 15.6. | Powers of Agent |
An agent of the Company shall have such powers and authority of the Directors, including the power and authority to affix the Seal, as are set forth in the Articles or in the Resolution of Directors appointing the agent, except that no agent has any power or authority with respect to the following:
| 15.6.1. | to amend the Memorandum or the Articles; |
| 15.6.2. | to change the registered office or agent; |
| 15.6.3. | to designate committees of Directors; |
| 15.6.4. | to delegate powers to a committee of Directors; |
| 15.6.5. | to appoint or remove Directors; |
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| 15.6.6. | to appoint or remove an agent; |
| 15.6.7. | to fix emoluments of Directors; |
| 15.6.8. | to approve a plan of merger, consolidation or arrangement; |
| 15.6.9. | to make a declaration of solvency or to approve a liquidation plan; |
| 15.6.10. | to make a determination that immediately after a proposed Distribution the value of the Company’s assets will exceed its liabilities and the Company will be able to pay its debts as they fall due; or |
| 15.6.11. | to authorise the Company to continue as a company incorporated under the laws of a jurisdiction outside the BVI. |
| 15.7. | Delegation of Agency |
The Resolution of Directors appointing an agent may authorise the agent to appoint one or more substitutes or delegates to exercise some or all of the powers conferred on the agent by the Company.
| 15.8. | Removal of Agent |
The Directors may remove an agent appointed by the Company and may revoke or vary a power conferred on them.
| 16. | CONFLICT OF INTERESTS |
| 16.1. | A Conflicted Director shall, forthwith after becoming aware of a Relevant Situation, disclose the Relevant Situation to all other Directors. |
| 16.2. | For the purposes of Regulation 16.1, a disclosure to all other Directors to the effect that a Director is a member, director or officer of another named entity or has a fiduciary relationship with respect to the entity or a named individual and is to be regarded as interested in any transaction which may, after the date of the entry into the transaction or disclosure of the interest, be entered into with that entity or individual, is a sufficient disclosure of interest in relation to that transaction. |
| 16.3. | Subject to any rules or regulations of the Stock Exchange or any laws or regulations governing companies listed on the Stock Exchange, in relation to a Relevant Situation, a Conflicted Director may: |
| 16.3.1. | vote on a matter relating to the Relevant Situation; |
| 16.3.2. | attend a meeting of Directors, or a meeting of a committee of Directors, at which a matter relating to a Relevant Situation arises and be included among the Directors present at the relevant meeting for the purposes of a quorum; and |
| 16.3.3. | sign a document on behalf of the Company, or do any other thing in their capacity as a Director, that relates to the Relevant Situation, |
and, subject to compliance with the Act, the Conflicted Director shall not by reason of their office be accountable to the Company for any benefit which they derive from a Relevant Situation and no such Relevant Situation shall be liable to be avoided on the grounds of any such interest or benefit.
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| 17. | INDEMNIFICATION |
| 17.1. | Indemnity |
Subject to the limitations hereinafter provided the Company shall indemnify against all expenses, including legal fees, and against all judgments, fines and amounts paid in settlement and reasonably incurred in connection with legal, administrative or investigative proceedings any person who:
| 17.1.1. | is or was a party or is threatened to be made a party to any threatened, pending or completed proceedings, whether civil, criminal, administrative or investigative, by reason of the fact that the person is or was a Director; or |
| 17.1.2. | is or was, at the request of the Company, serving as a director of, or in any other capacity, is or was acting for, another body corporate or a partnership, joint venture, trust or other enterprise. |
| 17.2. | Good Faith |
The indemnity in Regulation 17.1 only applies if the person acted honestly and in good faith with a view to the best interests of the Company and, in the case of criminal proceedings, the person had no reasonable cause to believe that their conduct was unlawful.
| 17.3. | Determination of Best Interests |
For the purposes of Regulation 17.2, a Director acts in the best interests of the Company if they act in the best interests of a Shareholder or Shareholders in the circumstances specified in the Act.
| 17.4. | Determination of Good Faith |
The decision of the Directors as to whether the person acted honestly and in good faith and with a view to the best interests of the Company and as to whether the person had no reasonable cause to believe that their conduct was unlawful is, in the absence of fraud, sufficient for the purposes of the Articles, unless a question of law is involved.
| 17.5. | Termination of Proceedings |
The termination of any proceedings by any judgment, order, settlement, conviction or the entering of a nolle prosequi does not, by itself, create a presumption that the person did not act honestly and in good faith and with a view to the best interests of the Company or that the person had reasonable cause to believe that their conduct was unlawful.
| 17.6. | Expenses Paid in Advance – Director |
Expenses, including legal fees, incurred by a Director in defending any legal, administrative or investigative proceedings may be paid by the Company in advance of the final disposition of such proceedings upon receipt of an undertaking by or on behalf of the Director to repay the amount if it shall ultimately be determined that the Director is not entitled to be indemnified by the Company in accordance with Regulation 17.1.
| 17.7. | Expenses Paid in Advance - Former Director |
Expenses, including legal fees, incurred by a former Director in defending any legal, administrative or investigative proceedings may be paid by the Company in advance of the final disposition of such proceedings upon receipt of an undertaking by or on behalf of the former Director to repay the amount if it shall ultimately be determined that the former Director is not entitled to be indemnified by the Company in accordance with Regulation 17.1 and upon such terms and conditions, if any, as the Company deems appropriate.
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| 17.8. | Non-Exclusivity |
The indemnification and advancement of expenses provided by, or granted pursuant to, this Regulation is not exclusive of any other rights to which the person seeking indemnification or advancement of expenses may be entitled under any agreement, resolution of Shareholders, resolution of disinterested Directors or otherwise, both as acting in the person’s official capacity and as to acting in another capacity while serving as a Director.
| 17.9. | Successful Defence |
If a person referred to in Regulation 17.1 has been successful in defence of any proceedings referred to in Regulation 17.1, the person is entitled to be indemnified against all expenses, including legal fees, and against all judgments, fines and amounts paid in settlement and reasonably incurred by the person in connection with the proceedings.
| 17.10. | Insurance |
The Company may purchase and maintain insurance in relation to any person who is or was a Director, Officer or liquidator of the Company, or who at the request of the Company is or was serving as a director, officer or liquidator of, or in any other capacity is or was acting for, another company or a partnership, joint venture, trust or other enterprise, against any liability asserted against the person and incurred by the person in that capacity, whether or not the Company has or would have had the power to indemnify the person against the liability as provided in the Articles.
| 18. | RECORDS |
| 18.1. | Maintenance of Records |
The Company shall keep the following documents at the office of its registered agent:
| 18.1.1. | the Memorandum and the Articles; |
| 18.1.2. | the Register of Members, or a copy of the Register of Members, in accordance with Regulation 3.7; |
| 18.1.3. | the Register of Directors, or a copy of the Register of Directors, in accordance with Regulation 11.10; and |
| 18.1.4. | copies of all notices and other documents filed by the Company with the Registrar in the previous ten (10) years. |
| 18.2. | Original Registers |
Until the Directors determine otherwise by Resolution of Directors the Company shall keep the original Register of Members and original Register of Directors at the office of its registered agent.
| 18.3. | Registers Not Held by Registered Agent |
If the Company maintains only a copy of the Register of Members or a copy of the Register of Directors at the office of its registered agent, it shall:
| 18.3.1. | within 15 days of any change in either register, notify the registered agent in writing of the change; and |
| 18.3.2. | provide the registered agent with a written record of the physical address of the place or places at which the original Register of Members or the original Register of Directors is kept. |
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| 18.4. | Location of Records |
The Company shall keep the following records at the office of its registered agent or at such other place or places, within or outside the BVI, as the Directors may determine:
| 18.4.1. | the records and underlying documentation of the Company; |
| 18.4.2. | minutes of meetings and Resolutions of Shareholders and classes of Shareholders; |
| 18.4.3. | minutes of meetings and Resolutions of Directors and committees of Directors; and |
| 18.4.4. | an impression of the Seal. |
| 18.5. | Records and Underlying Documentation |
The records and underlying documentation of the Company shall be in such form as:
| 18.5.1. | are sufficient to show and explain the Company’s transactions; and |
| 18.5.2. | will, at any time, enable the financial position of the Company to be determined with reasonable accuracy. |
| 18.6. | Retention Periods |
The Company shall retain the records and underlying documentation for a period of at least five (5) years from the date:
| 18.6.1. | of completion of the transaction to which the records and underlying documentation relate; or |
| 18.6.2. | the Company terminates the business relationship to which the records and underlying documentation relate. |
| 18.7. | Records Kept at Place other than Registered Office |
Where the records or underlying documentation are kept at a place or places other than the office of its registered agent, the Company shall provide its registered agent with a written:
| 18.7.1. | record of the physical address of the place at which the records and underlying documentation are kept; and |
| 18.7.2. | record of the name of the person who maintains and controls the Company’s records and underlying documentation. |
| 18.8. | Change in Location of Records |
Where the place or places at which the records or underlying documentation of the Company, or the name of the person who controls the records and underlying documentation change, the Company shall, within fourteen (14) days of the change, provide its registered agent with:
| 18.8.1. | the physical address of the new location of the records and underlying documentation; or |
| 18.8.2. | the name of the new person who maintains and controls the Company’s records and underlying documentation maintained. |
| 18.9. | Co-operation with Registered Agent |
The Company shall provide to its registered agent without delay any records or underlying documentation in respect of the Company that the registered agent requests pursuant to the Act.
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| 18.10. | Electronic Records |
The records kept by the Company under this Regulation shall be in written form or either wholly or partly as electronic records complying with the requirements of the Electronic Transactions Act.
| 19. | REGISTER OF CHARGES |
| 19.1. | Register of Charges |
The Company shall maintain at the office of its registered agent a register of charges in which there shall be entered the following particulars regarding each mortgage, charge and other encumbrance created by the Company:
| 19.1.1. | the date of creation of the charge; |
| 19.1.2. | a short description of the liability secured by the charge; |
| 19.1.3. | a short description of the property charged; |
| 19.1.4. | the name and address of the trustee for the security or, if there is no such trustee, the name and address of the chargee; |
| 19.1.5. | unless the charge is a security to bearer, the name and address of the holder of the charge; and |
| 19.1.6. | details of any prohibition or restriction contained in the instrument creating the charge on the power of the Company to create any future charge ranking in priority to or equally with the charge. |
| 20. | SEAL |
| 20.1. | Seal |
The Company shall have a Seal and may have more than one (1) Seal and references herein to the Seal shall be references to every Seal which shall have been duly adopted by Resolution of Directors. The Directors shall provide for the safe custody of the Seal and for an imprint thereof to be kept at the registered office. Except as otherwise expressly provided herein, the Seal when affixed to any written instrument shall be witnessed and attested to by the signature of any one Director or other person so authorised from time to time by Resolution of Directors. Such authorisation may be before or after the Seal is affixed, may be general or specific and may refer to any number of sealings. The Directors may provide for a facsimile of the Seal and of the signature of any Director or authorised person which may be reproduced by printing or other means on any instrument and it shall have the same force and validity as if the Seal had been affixed to such instrument and the same had been attested to as hereinbefore described.
| 21. | DISTRIBUTIONS |
| 21.1. | Authorisation of Distributions |
The Directors may, by Resolution of Directors, authorise a Distribution at a time and of an amount they think fit if they are satisfied, on reasonable grounds, that, immediately after the Distribution, the value of the Company’s assets will exceed its liabilities and the Company will be able to pay its debts as they fall due.
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| 21.2. | Form of Distribution |
Distributions may be paid in money, Shares, or other property.
| 21.3. | Notice |
Notice of any Distribution that may have been declared shall be given to each Shareholder as specified in Regulation 24.1 and all Distributions unclaimed for three (3) years after having been declared may be forfeited by Resolution of Directors for the benefit of the Company.
| 21.4. | No interest |
No Distributions shall bear interest as against the Company and no Distribution shall be paid on Treasury Shares.
| 22. | ACCOUNTS |
| 22.1. | Accounting Records |
The Company shall keep records that are sufficient to show and explain the Company’s transactions and that will, at any time, enable the financial position of the Company to be determined with reasonable accuracy.
| 22.2. | Inspection |
The accounting records shall be kept at the registered office of the Company or, subject to the Act, at such other place or places as the Board may think fit and shall always be open to inspection by the Officers. No Shareholder (other than an Officer) shall have any right of inspecting any accounting record or book or document of the Company except as conferred by law or authorised by the Board.
| 23. | AUDIT |
| 23.1. | Auditor. |
The Directors may appoint an Auditor who shall hold office until removed from office by resolution of the Directors and may fix their remuneration.
| 23.2. | Access Right. |
Every Auditor shall have a right of access at all times to the books and accounts and vouchers of the Company and shall be entitled to require from the Directors and Officers such information and explanation as may be necessary for any audit.
| 23.3. | Auditor Reports. |
Auditors shall, if so required by the Directors, make a report on the accounts of the Company during their tenure of office at such times as shall be required by the Directors or any meeting of the Shareholders.
| 23.4. | Auditor Remuneration. |
The remuneration of the Auditor shall be fixed by the Audit Committee (if one exists).
| 23.5. | Auditor Vacancy. |
If the office of Auditor becomes vacant by resignation or death of the Auditor, or by their becoming incapable of acting by reason of illness or other disability at a time when their services are required, the Directors shall fill the vacancy and determine the remuneration of such Auditor.
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| 24. | NOTICES |
| 24.1. | Notices to Shareholders |
Notices shall be in writing and may be given by the Company to any Shareholder either personally or by sending it by courier, post, fax or e-mail to them or to their address as shown in the Register of Members (or where the notice is given by e-mail by sending it to the e-mail address provided by such Shareholder). Any notice, if posted from one country to another, is to be sent airmail. E-mail notices may be sent by e-mail text and/or by way of a document attached to an email in portable document format (PDF) or in Microsoft Word format and/or by any other method separately agreed between the Company and its Shareholders.
| 24.2. | Notices to the Company |
Any summons, notice, order, document, process, information or written statement to be served on the Company may be served by leaving it, or by sending it by registered mail addressed to the Company, at its registered office, or by leaving it with, or by sending it by registered mail to, the registered agent of the Company.
| 24.3. | Calculation of Elapsed Time |
Subject to the laws of the BVI, where any period of time is expressed as required for the giving of any notice or in any other case where some other action is required to be undertaken within or omitted from being taken during a specified period of time, the calculation of the requisite period of time will not include the day on which the notice is given (or deemed to be given) or the day on which the event giving rise to the need to take or omit action occurred, but shall include the day on which the period of time expires.
| 24.4. | Deemed Receipt |
Where a notice is sent by courier, service of the notice shall be deemed to be effected by delivery of the notice to a courier company, and shall be deemed to have been received on the third (3rd) day (not including Saturdays or Sundays or public holidays) following the day on which the notice was delivered to the courier. Where a notice is sent by post, service of the notice shall be deemed to be effected by properly addressing, pre-paying and posting a letter containing a notice, and shall be deemed to have been received on the fifth (5th) day (not including Saturdays or Sundays or public holidays) following the day on which the notice was posted. Where a notice is sent by fax, service of the notice shall be deemed to have been received on the same day that it was transmitted. Where a notice is given by e-mail service it shall be deemed to be effected by transmitting the e-mail to the e-mail address provided by the intended recipient and shall be deemed to have been received on the same day that it was sent, and it shall not be necessary for the receipt of the e-mail to be acknowledged by the recipient
| 24.5. | Proof of Service on the Company |
Service of any summons, notice, order, document, process, information or written statement to be served on the Company may be proved by showing that the summons, notice, order, document, process, information or written statement was delivered to the registered office or the registered agent of the Company or that it was sent by courier in such time as to admit to its being delivered to the registered office or the registered agent of the Company within the period prescribed for service and was correctly addressed.
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| 25. | VOLUNTARY LIQUIDATION |
| 25.1. | Voluntary Liquidation |
The Company may by Resolution of Shareholders or, subject to the Act, by Resolution of Directors appoint a voluntary liquidator.
| 26. | CONTINUATION |
| 26.1. | Continuation |
The Company may by Resolution of Shareholders or by a Resolution of Directors continue as a company incorporated under the laws of a jurisdiction outside the BVI in the manner provided under those laws.
| 27. | EXCLUSIVE JURISDICTION AND FORUM |
| 27.1. | Exclusive Jurisdiction. |
Unless the Company consents in writing to the selection of an alternative forum, the courts of the BVI shall have exclusive jurisdiction over any claim or dispute arising out of or in connection with the Memorandum, these Articles or otherwise related in any way to each Shareholder’s shareholding in the Company, including but not limited to:
| 27.1.1. | any derivative action or proceeding brought on behalf of the Company; |
| 27.1.2. | any action asserting a claim of breach of any fiduciary or other duty owed by any current or former Director, Officer, or other employee of the Company to the Company or the Shareholders; |
| 27.1.3. | any action asserting a claim arising pursuant to any provision of the Act, the Memorandum, or the Articles; or |
| 27.1.4. | any action asserting a claim against the Company governed by the “Internal Affairs Doctrine” (as such concept is recognised under the laws of the U.S.). |
| 27.2. | Member Submittance. |
Each Shareholder irrevocably submits to the exclusive jurisdiction of the courts of the BVI over all such claims or disputes.
| 27.3. | Further Remedies. |
Without prejudice to any other rights or remedies that the Company may have, each Shareholder acknowledges that damages alone would not be an adequate remedy for any breach of the selection of the courts of the BVI as exclusive forum and that accordingly the Company shall be entitled, without proof of special damages, to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the selection of the courts of the BVI as exclusive forum.
| 27.4. | U.S. Regulation. |
This Regulation 27 shall not apply to any action or suits brought to enforce any liability or duty created by the Securities Act, as amended, the Exchange Act, or any claim for which the federal district courts of the U.S. are, as a matter of the laws of the U.S., the sole and exclusive forum for determination of such a claim.
| Page 36 |
Exhibit 10.1
WESHOP HOLDINGS LIMITED
SHARE OPTION PLAN
| Approved by resolution of the directors on | 30th June 2022 |
TABLE OF CONTENTS
| 1. | SHARE OPTION PLAN | 4 | |
| 2. | DEFINITIONS AND INTERPRETATION | 4 | |
| 2.1 | Definitions | 4 | |
| 2.2 | Interpretation | 6 | |
| 3. | SHARES SUBJECT TO THE PLAN | 7 | |
| 4. | ADMINISTRATION OF THE PLAN | 7 | |
| 4.1 | Procedure | 7 | |
| 4.2 | Powers of the Administrator | 7 | |
| 4.3 | Effect of Administrator’s Decision | 8 | |
| 5. | EXERCISE PRICE | 8 | |
| 6. | LIMITATIONS | 8 | |
| 6.1 | No Right to continuing Relationship | ||
| 6.2 | Not part of Contract | 8 | |
| 7. | TERM OF PLAN | 8 | |
| 8. | TERM OF OPTION | 8 | |
| 9. | EXERCISE PRICE AND CONSIDERATION | 8 | |
| 9.1 | Exercise Price | 8 | |
| 9.2 | Waiting Period and Exercise Dates | 9 | |
| 9.3 | Form of Consideration | 9 | |
| 2 |
| 10. | EXERCISE AND LAPSE OF OPTIONS | 9 | |
| 10.1 | Procedure on Exercise of an Option | 9 | |
| 10.2 | Termination of Employment Relationship | 10 | |
| 10.3 | Permanent Ill Health, Injury or Disability, Retirement, Redundancy etc. of Optionee | 10 | |
| 10.4 | Death of Optionee while an Employee | 10 | |
| 10.5 | Death of Optionee within ninety (90) days of ceasing to be an Employee | 11 | |
| 10.6 | Renunciation of an Option | 11 | |
| 11. | COMPULSORY SALE | 11 | |
| 12. | NON-TRANSFERABILITY OF OPTIONS | 12 | |
| 13. | ADJUSTMENTS UPON CHANGES IN CAPITALISATION, DISSOLUTION OR LIQUIDATION | 12 | |
| 13.1 | Changes in Capitalisation | 12 | |
| 13.2 | Dissolution or Liquidation | 12 | |
| 13.3 | Application of Rule 7.1 | 12 | |
| 14. | MERGER, TAKEOVER OR OTHER REORGANISATION | 12 | |
| 15. | DATE OF GRANT | 13 | |
| 16. | LOCK-UP PERIOD | 13 | |
| 17. | DRAG-ALONG RIGHTS | 14 | |
| 18. | AMENDMENT AND TERMINATION OF PLAN | 14 | |
| 18.1 | Amendment and T ermination | 14 | |
| 18.2 | Shareholder Approval | 14 | |
| 18.3 | Effect of Amendment or Termination | 14 | |
| 18.4 | Costs | 14 | |
| 18.5 | Books of Account and Records | 15 | |
| 18.6 | Execution on behalf of Optionee | 15 | |
| 19. | LEGAL COMPLIANCE | 15 | |
| 20. | LIABILITY OF COMPANY | 15 | |
| 20.1 | Inability to Obtain Authority | 15 | |
| 20.2 | Grants Exceeding Approved Number of Ordinary Shares | 15 | |
| 21. | AVAILABILITY OF SHARES | 15 | |
| 22. | TAXATION | 15 | |
| 23. | NOTICES | 15 | |
| 24. | GOVERNING LAW | 15 | |
| 3 |
WeShop Holdings Limited
Share Option Plan 2022
| 1. | SHARE OPTION PLAN |
The purpose of the Plan is to encourage and enable the officers, employees and non- employee directors and consultants, advisers and representatives of WeShop Holdings Limited (the “Company”) and its subsidiaries and associated companies, upon whose judgement, initiative and efforts the Company largely depends for the successful conduct of its business, to acquire proprietary interest in the Company in order to assist in: (i) attracting and retaining the best available personnel for positions of substantial responsibility; (ii) providing additional incentive to those persons; and (iii) promoting the success of the business of the Company. Optionees (as defined below) under the Plan will be full or part-time officers, employees and non- employee directors and consultants, advisers and representatives of the Group (as defined below) as are selected from time to time by the Administrator (as defined below) in its sole discretion. officers, employees and non- employee directors and consultants, advisers and representatives.
| 2. | DEFINITIONS AND INTERPRETATION |
| 2.1 | Definitions |
In these Rules, unless the context requires otherwise, the following words and expressions shall have the following meanings:
| “Administrator” | means either the Board or, if applicable, the Remuneration Committee or a similar committee established by the Board performing the functions of the remuneration committee which is comprised of not less than [three] directors; |
| “Applicable Laws” | means the legal requirements relating to the administration of share option plans under any stock exchange or quotation system on which shares in the capital of the Company are listed, traded or quoted and the applicable laws of the British Virgin Islands; |
| “Board” | means the board of directors of the Company for the time being and as constituted from time to time or a duly appointed committee thereof, including, without limiting the generality of the foregoing, the Remuneration Committee; |
| “Company” | means WeShop Holdings Limited, a company incorporated in the British Virgin Islands under number 2046056; |
“Continuous Status as an Employee” |
means that an Employee’s employment relationship with any member of the Group is not interrupted or terminated. Continuous Status as an Employee shall not be considered interrupted in the case of: (i) any leave of absence approved by a member of the Group; or (ii) transfers between locations of the Company or between any other members of the Group, or any successor of the Company. A leave of absence approved by a member of the Group shall include sick leave or any other personal leave; |
| 4 |
| “Contractor” | means a consultant, adviser or representative of a Group Company engaged by way of a contractual agreement or arrangement to provide services to a Group Company; |
| “Contractual Termination” | means that a Contractor’s contractual engagement with any member of the Group is not interrupted or terminated. A contractual engagement shall be considered interrupted if such engagement is subject to: (i) a material breach by the Contractor which has not been remedied (to the extent remediable) within [60] days’ or earlier as may be required by the relevant contract; or (ii) an event of force majeure affecting the Contractor has been persisting for [180] days or more. |
| “Control” | shall have the meaning given to that expression by section 1124 of the United Kingdom’s Corporation Tax Act 2010; |
| “Date of Commencement” | means the date on which the Plan is approved by the Board; |
| “Declaration of Trust” | means a declaration of trust between the relevant Optionee and a nominee company pursuant to which the nominee company shall hold any Ordinary Shares issued upon the exercise of any Option on behalf of the relevant Optionee, in a form approved by the Company; |
| “Employee” | means any person employed by any member of the Group or a director of any member of the Group; |
| “Exercise Price” | the price at which the Optionee may subscribe for or acquire or purchase an Ordinary Share as determined pursuant to Rule 9.1; |
| “Fair Market Value” | means, as of any date, the value of an Ordinary Share determined in good faith by the Administrator provided that in no event shall the Fair Market Value be less than the par value of an Ordinary Share; |
| “Group” | means the Company and any company or companies for the time being under the Control of the Company and any company treated as an associated company for the purposes of the accounts of the Company, and Group Company shall be construed accordingly; |
| “Offer Letter” | means a written notice evidencing certain terms and conditions of an individual Option grant, which forms part of the Option Agreement; |
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| “Option” | means a right to subscribe for or acquire or purchase Ordinary Shares granted pursuant to the Plan; |
| “Option Letter” | means a letter issued by the Company to an Optionee evidencing the terms and conditions of an individual Option grant and subject to the terms and conditions of the Plan; |
| “Optioned Shares” | means Ordinary Shares subject to an Option; |
| “Optionee” | means an Employee or Contractor to whom an Option has been granted in accordance with the Plan and in whom rights under the Plan are still vested or (where the context so requires) the legal personal representatives of such a person; |
| “Ordinary Shares” | means fully paid up Ordinary Shares of $[ ] each in the capital of the Company and “Ordinary Shareholder” shall be construed accordingly; |
| “Parent” | means a “holding company”, whether now or hereafter existing, as such term is defined in section 1159 of the United Kingdom’s Companies Act 2006; |
| “Plan” | means the WeShop Holdings Limited Employee Share Option Plan set out herein and as amended from time to time in accordance with its Rules; |
| “Remuneration Committee” | means any committee of the Board appointed by the Board from time to time for the purpose, inter alia, of the administration of the Plan; |
| “Rules” | means the rules for the administration of the Plan contained herein or which are laid down by the Board and which may be amended by the Board in accordance with the provisions of Rule 13 hereof; |
| “Subsidiary” | means a “subsidiary”, whether now or hereafter existing, as such term is defined in section 1159 of the United Kingdom’s Companies Act 2006; and |
| “Subsisting Option” | means an Option that has not lapsed, been renounced or exercised. |
| 2.2 | Interpretation |
Any reference to a statutory provision shall be deemed to include that provision as the same may from time to time be amended or re-enacted, any reference to a Company share option scheme or plan includes that scheme or plan as the same may be varied from time to time in accordance with its terms, and wherever the context so admits or requires the singular shall include the plural and vice versa and the masculine shall include the feminine.
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| 3. | SHARES SUBJECT TO THE PLAN |
Subject to the provisions of Rule 11, the maximum aggregate number of Ordinary Shares which may be granted under the Plan shall not exceed 9% percent of the Ordinary Shares in issue. If an Option is surrendered or expires or becomes un-exercisable without having been exercised in full, the un-purchased Ordinary Shares which were subject thereto shall become available for future grant or sale under the Plan (unless the Plan has terminated) provided however that Ordinary Shares that have actually been issued under the Plan shall not be returned to the Plan and shall not become available for future distribution under the Plan.
| 4. | ADMINISTRATION OF THE PLAN |
| 4.1 | Procedure |
The Plan shall be administered by the Administrator.
| 4.2 | Powers of the Administrator |
Subject to the Rules, and in the case of the Remuneration Committee, subject to the specific duties delegated by the Board to the Remuneration Committee, and subject to the approval of any relevant authorities, the Administrator shall have the authority, in its absolute discretion:
| (a) | to determine the Fair Market Value of the Ordinary Shares; | |
| (b) | to specify the consideration payable on grant of an Option (if any); | |
| (c) | to select the individuals to whom Options may be granted hereunder; | |
| (d) | to determine whether and to what extent Options are granted hereunder; | |
| (e) | to determine the number of Ordinary Shares to be covered by each Option granted hereunder; | |
| (f) | to approve forms of letter or agreement for use under the Plan; | |
| (g) | to determine the terms and conditions, not inconsistent with the terms of the Plan, of any Option granted hereunder. Such terms and conditions include, but are not limited to, the Exercise Price, the time or times when Options may be exercised (which may be based on performance criteria), any vesting acceleration or waiver of forfeiture restrictions, and any restriction or limitation regarding any Option or the Ordinary Shares relating thereto including any periods of lock-in, based in each case on such factors as the Administrator, in its sole discretion, shall determine; | |
| (h) | if the Fair Market Value of the Ordinary Shares covered by any Options shall have declined since the date the Options were granted, such that the Fair Market Value is lower than the consideration paid by an Optionee for the Options, to either reduce the exercise price of any such Options to the then current Fair Market Value or to institute an option exchange program whereby such Options are surrendered in exchange for Options with a lower exercise price; | |
| (i) | to construe and interpret the terms of the Plan and awards granted pursuant to the Plan; | |
| (j) | to prescribe, amend and rescind rules and regulations relating to the Plan, including rules and regulations relating to sub-plans established for the purpose of qualifying for preferred tax treatment under foreign tax laws; | |
| (k) | to modify or amend each Option (subject to Rule 13.3), including, without limitation, the discretionary authority to extend the post-termination exercisability period of Options longer than is otherwise provided for in the Plan; | |
| (l) | to authorise any person to execute on behalf of the Company any instrument required to effect the grant of an Option previously granted by the Administrator; |
| 7 |
| (m) | to determine the terms and restrictions applicable to Options; and | |
| (n) | to make all other determinations deemed necessary or advisable for administering the Plan. |
| 4.3 | Effect of Administrator’s Decision |
The Administrator’s decisions, determinations and interpretations shall be final and binding on all Optionees and any other holders of Options.
| 5. | EXERCISE PRICE |
The Exercise Price at which Ordinary Shares may be subscribed for on the exercise of an Option granted under the Plan shall be determined by the Administrator at the time the Option is granted but shall not be less than the nominal value of the Ordinary Shares.
| 6. | LIMITATIONS |
| 6.1 | No Right to continuing Relationship |
Neither the Plan nor any Option shall confer upon an Optionee any right with respect to continuing the Optionee’s employment relationship with any member of the Group, nor shall they interfere in any way with the Optionee’s right or the right of any member of the Group to terminate such employment relationship at any time, with or without cause. No person shall be entitled as of right to participate in the Plan.
| 6.2 | Not part of Contract |
The Plan shall not form part of any contract of employment between the Company or any other member of the Group and any Employee. Any benefit to the Employee under the Plan shall not form part of his or her remuneration or count as remuneration for pension fund or other purposes. It shall be a condition of the Plan that in the event of the termination of an Optionee’s Continuous Status as an Employee (for whatever reason) or Contractual Termination (as applicable) he or she shall not be entitled to any compensation whatsoever by reason of any alteration or termination, thereon, of his or her rights or expectations under the Plan
| 7. | TERM OF PLAN |
The Plan shall become effective upon the Commencement Date. It shall continue in effect for a term of [ten (10) years] thereafter unless terminated earlier under Rule 13.
| 8. | TERM OF OPTION |
The term of each Option shall be stated in the Offer Letter; provided however that the term shall be no more than [seven (7)] years from the date of grant.
| 9. | EXERCISE PRICE AND CONSIDERATION |
| 9.1 | Exercise Price |
The per share exercise price for the Ordinary Shares to be issued pursuant to exercise of an Option shall be determined by the Administrator in its absolute discretion, but taking into account applicable tax legislation for relevant Optionees.
| 8 |
| 9.2 | Waiting Period and Exercise Dates |
Unless otherwise agreed by the Administrator at the time an Option is granted, the Option will be subject to vesting over a [four (4) year] period, with [twenty five percent (25%) vesting on the first anniversary of the date of the grant and the remaining seventy five percent (75%) vesting monthly over the remaining thirty six (36) months].
| 9.3 | Form of Consideration |
The Administrator shall determine the acceptable form of consideration for exercising an Option, including the method of payment, subject to compliance with Applicable Laws. Such consideration may consist entirely of:
| (a) | cash; |
| (b) | bank transfer; |
| (c) | delivery of a properly executed exercise notice together with such other documentation as the Administrator and the broker, if applicable, shall require to effect an exercise of the Option and delivery to the Company of the sale proceeds required to pay the Exercise Price; |
| (d) | any combination of the foregoing methods of payment; or |
| (e) | such other consideration and method of payment for the issuance of Ordinary Shares to the extent permitted by Applicable Laws. |
| 10. | EXERCISE AND LAPSE OF OPTIONS |
| 10.1 | Procedure on Exercise of an Option |
| (a) | Any Option granted hereunder shall be exercisable according to the terms of the Plan and at such times and under such conditions as determined by the Administrator and set forth in the Option Agreement. | |
| (b) | An Option may not be exercised for a fraction of an Ordinary Share. | |
| (c) | Any Ordinary Shares allotted on the exercise of an Option shall rank pari passu in all respects with the Ordinary Shares in issue at the date of exercise of such Option and shall participate in all dividends or other distributions which may be declared, made or paid by reference to a record date after such date, but not before. | |
| (d) | Exercising an Option in any manner shall decrease the number of Ordinary Shares thereafter available, both for the purposes of the Plan and for sale under the Option, by the number of Ordinary Shares as to which the Option is exercised. | |
| (e) | The Administrator may, notwithstanding any other provisions of this Plan, make such agreement in relation to the exercisability of any unexercised Options as it shall in its absolute discretion determine. |
| 9 |
| 10.2 | Termination of Employment or Contractual Relationship |
| (a) | Upon termination of an Optionee’s Continuous Status as an Employee or Contractual Termination (as applicable), other than in the circumstances referred to in Rules 10.3, 10.4 or 10.5 or in circumstances were the Optionee is summarily dismissed or is dismissed for misconduct, and such dismissal is not subsequently found to be wrongful dismissal or unfair dismissal, the Optionee may exercise his or her Option, but only within such period of time as is specified in the Offer Letter, and only to the extent that the Optionee was entitled to exercise it at the date of termination (but in no event later than the expiration of the term of such Option as set forth in the Offer Letter). In the absence of a specified time in the Offer Letter, the Option shall remain exercisable for 90 days following termination of the Optionee’s Continuous Status as an Employee or Contractual Termination (as applicable), subject to the provisions of Rule 11. If, at the date of termination, the Optionee is not entitled to exercise his or her entire Option, the Ordinary Shares covered by the unexercisable portion of the Option shall revert to the Plan. If, after termination, the Optionee does not exercise his or her Option within the time specified by the Administrator, the Option shall terminate, and the Ordinary Shares covered by such Option shall revert to the Plan. |
| (b) | Under no circumstances shall an Optionee, on termination of such Optionee’s Continuous Status as an Employee or Contractual Termination (as applicable), be entitled to any compensation for any loss of any right or benefit or prospective right or benefit under the Plan which he might otherwise have enjoyed whether such compensation is claimed by way of damages for wrongful dismissal or other breach of contract or by way of compensation for loss of office or otherwise howsoever. |
| 10.3 | Permanent Ill Health, Injury or Disability, Retirement, Redundancy etc. of Optionee. |
In the event that an Optionee’s Continuous Status as an Employee terminates or Contractual Termination occurs (as applicable) as a result of the Optionee’s permanent ill health, injury or disability, early retirement, dismissal by reason of redundancy or because the company employing or contracting with him or her ceases to be a member of the Group (unless the Optionee is immediately employed by another member of the Group) the Optionee may exercise his or her Option at any time within twelve (12) months from the date of such termination, subject to the provisions of Rule 11, and only to the extent that the Optionee was entitled to exercise it at the date of such termination (but in no event later than the expiration of the term of such Option as set forth in the Offer Letter). If, at the date of such termination, the Optionee is not entitled to exercise his or her entire Option, the Ordinary Shares covered by the unexercisable portion of the Option shall revert to the Plan. If, after such termination, the Optionee does not exercise his or her Option within the time specified herein, the Option shall terminate, and the Ordinary Shares covered by such Option shall revert to the Plan.
| 10.4 | Death of Optionee |
In the event of the death of an Optionee while an Employee or prior to Contractual Termination (as applicable) the Option may be exercised at any time within twelve (12) months following the date of death subject to the provisions of Rule 11, (but in no event later than the expiration of the term of such Option as set forth in the Offer Letter), by the Optionee’s estate or by a person who acquired the right to exercise the Option by bequest or inheritance, but only to the extent that the Optionee was entitled to exercise the Option at the date of death. If, at the time of death, the Optionee was not entitled to exercise his or her entire Option, the Ordinary Shares covered by the unexercisable portion of the Option shall immediately revert to the Plan. If, after death, the Optionee’s estate or a person who acquired the right to exercise the Option by bequest or inheritance does not exercise the Option within the time specified herein, the Option shall terminate, and the Ordinary Shares covered by such Option shall revert to the Plan.
| 10 |
| 10.5 | Death of Optionee within ninety (90) days of ceasing to be an Employee or of Contractual Termination (as applicable) |
In the event of the death of an Optionee within ninety (90) days of ceasing to be an Employee or of Contractual Termination (as applicable), in circumstances where the termination of the Continuous Status as an Employee or Contractual Termination (as applicable) was for one of the reasons to which Rule 10.2 applies, the Option may be exercised at any time within twelve (12) months following the date of death subject to the provisions of Rule 11, (but in no event later than the expiration of the term of such Option as set forth in the Offer Letter), by the Optionee’s estate or by a person who acquired the right to exercise the Option by bequest or inheritance, but only to the extent that the Optionee was entitled to exercise the Option at the date of death. If, at the time of death, the Optionee was not entitled to exercise his or her entire Option, the Ordinary Shares covered by the unexercisable portion of the Option shall immediately revert to the Plan. If, after death, the Optionee’s estate or a person who acquired the right to exercise the Option by bequest or inheritance does not exercise the Option within the time specified herein, the Option shall terminate, and the Ordinary Shares covered by such Option shall revert to the Plan.
| 10.6 | Renunciation of an Option |
An Optionee may at any time renounce his or her Option by serving notice in writing on the Company of his or her intention to so renounce. The renunciation shall be effective from the date of receipt of such notice by the Company, upon which date the Optionee’s Option shall be deemed to have lapsed and the Ordinary Shares covered by such Option shall revert to the Plan.
| 11. | COMPULSORY SALE |
| 11.1 | Notwithstanding the terms of Rules 10.2 to 10.5 hereof, any Optionee who’s Continuous Status as an Employee is terminated or subject to Contractual Termination (as applicable) and any personal representative(s) of any Optionee in whom Shares issued on exercise of an Option vest (or to whom Shares are issued pursuant to an exercise of an Option under Rule 10.5 hereof following the death of an Optionee), shall be required, unless the Board shall in its absolute discretion resolve otherwise, to transfer the Ordinary Shares held by that Optionee or his personal representative(s) to any party nominated by the Board (which may be the Company) at such price for the relevant Ordinary Shares as may be agreed between the Board and the Optionee (or as the case may be his personal representative(s)) or, failing agreement within 30 days, Fair Market Value in respect of such Ordinary Shares (determined with reference to the date of termination). This Rule 11 shall not apply, if at the time of termination of an Optionee’s Continuous Status as an Employee or Contractual Termination (as applicable) or vesting of Shares in or issue of Ordinary Shares to an Optionee’s personal representative(s), any of the share capital of the Company is listed on a recognised stock exchange. |
| 11.2 | Should any Optionee or his personal representative(s) fail to transfer any Ordinary Shares required to be transferred in accordance with Rule 11.1, any member of the Board for the time being of the Company, or some other person duly nominated by the Board for that purpose, shall be deemed to be the Optionee’s duly appointed attorney (or as the case may be the duly appointed attorney of the Optionee’s personal representative(s)) with full power to execute, complete and deliver in his name and on his behalf all documents necessary to give effect to any transfer of Ordinary Shares pursuant thereto. The foregoing appointment shall be deemed to be irrevocable and shall be binding on the Optionee and his personal representatives. Any attorney appointed hereto may receive and give a good discharge for the consideration on behalf of such an Optionee or his personal representative(s). The Board shall forthwith pay the consideration payable in respect of the Ordinary Shares transferred into a separate bank account in the Company’s name and shall hold such money on trust for such Optionee until the Optionee or his personal representative(s) deliver up his certificate(s) for such shares (or an indemnity, in a form reasonably satisfactory to the Board, in respect of any lost certificate) to the Company when the Optionee (or as the case may be a Participant’s personal representative(s)) shall thereupon be paid the consideration received on his behalf. |
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| 12. | NON-TRANSFERABILITY OF OPTIONS |
Unless determined otherwise by the Administrator, an Option shall be personal to the Optionee and, accordingly, shall not be capable of being sold, charged or otherwise encumbered, assigned, transferred or disposed of in any manner other than by will or by the laws of descent or distribution and may be exercised, during the lifetime of the Optionee, only by the Optionee. Any breach of this provision shall entitle the Board to cancel the Option. If the Administrator makes an Option transferable, such Option shall contain such additional terms and conditions as the Administrator deems appropriate.
| 13. | ADJUSTMENTS UPON CHANGES IN CAPITALISATION, DISSOLUTION OR LIQUIDATION |
| 13.1 | Changes in Capitalisation |
Subject to any required action by the shareholders of the Company, the number of Ordinary Shares covered by each outstanding Option, and the number of Ordinary Shares which have been authorised for issuance under the Plan but as to which no Options have yet been granted or which have been returned to the Plan upon cancellation or expiration of an Option, as well as the price per Ordinary Share covered by each such outstanding Option, shall be proportionately adjusted for any increase or decrease in the number of issued Ordinary Shares or ordinary shares in the capital of the Company resulting from a share subdivision, consolidation, scrip dividend, combination or reclassification of Ordinary Shares or ordinary shares in the capital of the Company, or any other increase or decrease in the number of issued Ordinary Shares or ordinary shares in the capital of the Company effected (subject to Applicable Laws) without receipt of consideration by the Company; provided, however, that conversion of any convertible securities of the Company shall not be deemed to have been “effected without receipt of consideration”. Such adjustment shall be made by the Board, whose determination in that respect shall be final, binding and conclusive. Except as expressly provided herein, no issuance by the Company of shares of any class, or securities convertible into shares of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number or price of Ordinary Shares subject to an Option.
| 13.2 | Dissolution or Liquidation |
In the event of the proposed dissolution or liquidation of the Company, to the extent than an Option has not been previously exercised, it will terminate immediately prior to the consummation of such proposed action. The Board may, in the exercise of its sole discretion in such instances, declare that any Option shall terminate as of a date fixed by the Board and give each Optionee the right to exercise his or her Option as to all or any part of the Optioned Shares, including Ordinary Shares as to which the Option would not otherwise be exercisable.
| 13.3 | Application of Rule 7.1 |
The exercise of an Option pursuant to the preceding provisions of this Rule 13 and Rules 10.2 to 10.5 inclusive shall be subject to the provisions of Rule 10.1.
| 14. | MERGER, TAKEOVER OR OTHER REORGANISATION |
| 14.1 | In the event that the Company is a party to a sale of the whole or a substantial part of its assets, a merger, a takeover or other reorganisation (including but not limited to a court sanctioned compromise or arrangement) or there is a proposal to acquire the majority of the issued share capital of the Company (a “Relevant Event”), or the Administrator considers any of such events may occur, the Administrator shall be entitled (without the Optionee’s consent unless the Administrator otherwise requires) at its discretion and notwithstanding any other provision contained in the Scheme: |
| (a) | to request Optionees to exercise all outstanding Options held in relation to the whole or a specified portion of the Optioned Shares to which such Options relate and in respect of which such Options have vested and are exercisable and within such time or times and subject to any other conditions or limitations as the Administrator may at its discretion determine. If an Optionee does not comply with any such request such Options shall lapse and cease to be exercisable upon the expiry of the time specified for exercise by the Administrator; |
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| (b) | to agree that outstanding Options will be assumed or substituted by the surviving company or its Parent (or the acquiring company or its Parent where a takeover or other acquisition occurs) for options which are at the date of the Relevant Event equivalent in value to the Options originally granted under the Plan (as determined by the Administrator) but which relate to shares in the surviving company or its Parent (or the acquiring company or its Parent where a takeover or acquisition occurs); |
| (c) | to arrange for the continuation by the Company of outstanding Options (if the Company is a surviving company or an acquiring company in a takeover or acquisition); |
| (d) | to make payment of a cash settlement to any Optionee of an amount per Optioned Share equal to or in excess of the difference between the amount to be paid for one Share under the terms of the Relevant Event and the Exercise Price applicable to such Optionee’s Option less any taxes, duties, levies or other charges required to be withheld; |
| (e) | to agree to accelerate the vesting and exercisability of any outstanding Options; |
| (f) | to cancel (whether selectively or otherwise) any Options which have not vested at the time of the Relevant Event; and |
| (g) | to otherwise vary the exercise of outstanding Options on such conditions as the Administrator may decide, |
and the Administrator may determine that anyone or any combination of the above shall apply.
| 14.2 | The Company may grant Options under the Plan in substitution for options held by employees of another company or corporation who become employees of the Company, or any Group Company as a result of a merger or consolidation of the employing company or corporation with the Company or any Group Company, or as a result of the acquisition by the Company, or any Group Company of property or shares or stock of the employing company or corporation. The Company may direct that substitute Options be granted on such terms and conditions as the Administrator considers appropriate in such circumstances. |
| 15. | DATE OF GRANT |
The date of grant of an Option shall be, for all purposes, the date on which the Administrator makes the determination granting such Option, or such other later date as is determined by the Administrator. Notice of the determination shall be provided to each Optionee within a reasonable time after the date of such grant and an Option Agreement shall be forwarded to each Optionee for execution and return. No consideration shall be payable by an Optionee for the grant of an Option.
| 16. | LOCK-UP PERIOD |
| 16.1 | Unless otherwise specified in the Option Letter or permitted by this Plan, an Optionee shall not, without the prior written consent of the Company sell or otherwise transfer, any Ordinary Shares in respect of which the Option has been exercised that are held by the Optionee (or his nominees) in the period which is eighteen (18) months following 30 November 2021 (“Lock-Up Period”). If requested by the Company, the Optionee will enter into an agreement regarding his or her compliance with this requirement that will survive the term of the Option Letter. |
| 16.2 | If requested by the Company during the Lock-Up Period, the Optionee shall return all share certificates issued for Ordinary Shares in respect of which the Option has been exercised that are held by the Optionee (or his nominees) to the Company for the duration of the Lock-Up Period. Upon expiry of the Lock-Up Period the Company shall promptly release the share certificates held on trust for the Optionee back to the Optionee (or his nominees). |
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| 16.3 | The Option Letter may specify other restrictions on the transfer of any Ordinary Shares in respect of which the Option has been exercised that are held by an Optionee (or his nominees). |
| 17. | DRAG-ALONG RIGHTS |
| 17.1 | If a Relevant Event is proposed with shall cause a change in Control of the Company that is approved by the Board, an Optionee shall (if applicable) vote for, consent to, raise no objections against and take all actions necessary or desirable to the Company in consummating such change in Control, including, if such change in Control is structured as a merger or consolidation, waiving any rights in connection with such merger or consolidation, or if such change in Control is structured as a sale of equity, agreeing to sell all of the Optionee’s Ordinary Shares and other equity securities on the same terms and conditions approved by and applicable to the other shareholders of the Company, as the case may be. The Optionee grants to the Board with respect to all of the Optionee’s Ordinary Shares held in respect of the exercise of the Option an irrevocable power of attorney (which is deemed to be coupled with an interest) with respect to any shareholder vote or action by written consent solely to effect such change in Control of the Company in compliance with this Rule 17.1. |
| 17.2 | Each Optionee shall cooperate fully (including by waiving any rights to which the Optionee may be entitled under applicable law ) with the purchaser in any such change in Control, and shall execute and deliver all documents (including purchase agreements) and instruments as such purchaser reasonably requests to effect such change in Control, including, without limitation, the making of representations and warranties as to due incorporation, existence and good standing, power and authority of the Optionee, and ownership of the Ordinary Shares held in respect of the exercise of the Option and the granting of all indemnifications and the execution of all agreements (including, without limitation, participating in any escrow arrangements to the extent of their respective pro rata portion) and similar arrangements which the other shareholders of the Company are making or executing. |
| 18. | AMENDMENT AND TERMINATION OF PLAN |
| 18.1 | Amendment and Termination |
The Company in general meeting or the Board may, at any time, resolve not to grant further Options under the Plan but the subsisting rights of Optionees under the Plan shall remain in force. Subject to Rule 18.3 the Board may at any time and from time to time by resolution (and without other formality) amend, alter, augment, suspend or terminate the Plan.
| 18.2 | Shareholder Approval |
The Company shall obtain shareholder approval of any Plan amendment to the extent necessary and desirable to comply with Applicable Laws.
| 18.3 | Effect of Amendment or Termination |
No amendment, alteration, augmentation, suspension or termination of the Plan shall impair the rights of any Optionee, unless mutually agreed otherwise between the Optionee and the Administrator, which agreement must be in writing and signed by the Optionee and the Company.
| 18.4 | Costs |
The Company shall bear the costs of setting up and administering the Plan.
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| 18.5 | Books of Account and Records |
The Company shall maintain all necessary books of account and records relating to the Plan.
| 18.6 | Execution on behalf of Optionee |
The Board shall be entitled to authorise any person to execute on behalf of an Optionee, at the request of the Optionee, any document relating to the Plan insofar as such document is required to be executed pursuant hereto.
| 19. | LEGAL COMPLIANCE |
Ordinary Shares shall not be issued pursuant to the exercise of an Option unless the exercise of such Option and the issuance and delivery of such Ordinary Shares shall comply with Applicable Laws.
| 20. | LIABILITY OF COMPANY |
| 20.1 | Inability to Obtain Authority |
The inability of the Company to obtain authority from any regulatory body having jurisdiction, which authority is deemed by the Company’s solicitors to be necessary to the lawful issuance and sale of any Ordinary Shares hereunder, shall relieve the Company of any liability in respect of the failure to issue or sell such Ordinary Shares as to which such requisite authority shall not have been obtained.
| 20.2 | Grants Exceeding Approved Number of Ordinary Shares |
If the Optioned Share covered by an Option exceeds, as of the date of grant, the number of Ordinary Shares which may be issued under the Plan without additional shareholder approval, such Option shall be void with respect to such excess Optioned Shares, unless shareholder approval of an amendment sufficiently increasing the number of Ordinary Shares subject to the Plan is timely obtained in accordance with Rule 13.2 of the Plan.
| 20.3 | Nothing contained in the Plan or the Rules shall impose any liability whatsoever on the Company to provide tax or legal advice to any Employee or Optionee in connection with the Plan or to discharge any |
tax liabilities arising to any Employee or Optionee.
| 21. | AVAILABILITY OF SHARES |
| 21.1 | Subject to the provisions of this Rule 2121 the Company shall have available at all times sufficient unissued Ordinary Shares necessary to satisfy the Options which have been granted but not exercised. |
| 21.2 | On the exercise of an Option the Board may satisfy the requirement for Ordinary Shares by the allotment of Ordinary Shares, by purchasing Ordinary Shares or by such other means as it may determine. |
| 22. | TAXATION |
| 22.1 | By making an application for Options pursuant to the Plan, an Optionee is deemed to: |
| (a) | acknowledge that the Company has not offered, nor does it have any obligation to provide, any form of tax advice to the Optionee; |
| (b) | acknowledge that the Optionee bears sole responsibility for ensuring that the Participant’s participation in the Scheme is fully in compliance with the Optionee’s obligations under applicable taxation laws and statutes; and |
| (c) | fully indemnify and keep indemnified the Company against any liabilities which may arise in respect of any liability to tax, which may arise as a result of the Optionee’s failure to comply fully with its obligations under relevant taxation laws and statutes or otherwise in respect of the grant of Options to or exercise of Options by the Optionee. |
| 23. | NOTICES |
Any notice or other communication between the Company and an Optionee shall be given by sending the same by post or by personal delivery to, in the case of the Company, its registered office and, in the case of an Optionee, his or her address as notified to the Company, in writing, from time to time.
| 24. | GOVERNING LAW |
Save as otherwise provided in this Plan, this Plan shall be governed by and construed in accordance with the laws of England and Wales.
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