6-K
WF International Ltd. (WXM)
UNITEDSTATES
SECURITIESAND EXCHANGE COMMISSION
Washington,D.C. 20549
FORM6-K
REPORT OF FOREIGN PRIVATE ISSUERPURSUANT TO RULE 13a-16 OR 15d-16UNDER THE SECURITIES EXCHANGE ACT OF 1934
For the month of April 2025
Commission File Number: 001-42452
WFInternational Limited
(Exact name of registrant as specified in its charter)
No. 1110, 11th Floor, Unit 1, Building 7, No. 477,Wanxing Road,
Chengdu, Sichuan, China, 610041
(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual reports under cover Form 20-F or Form 40-F.
Form 20-F ☒ Form 40-F ☐
Entry into a Material Definitive Agreement.
On March 31, 2025, WF International Limited, a Cayman Islands exempted company (the “Company”), consummated its initial public offering (“IPO”) of 1,400,000 ordinary shares, par value $0.000001 per share (the “Ordinary Shares”), at a price of $4.00 per share, generating gross proceeds to the Company of $5,600,000 before deducting underwriting discounts and offering expenses. The Company’s Registration Statement on Form F-1 (File No. 333- 275382) for the IPO, originally filed with the U.S. Securities and Exchange Commission (the “Commission”) on November 8, 2023, as amended, was declared effective by the Commission on December 20, 2024. A post-effective amendment to the Registration Statement on Form F-1, filed on February 19, 2025 with the Commission, as amended, was declared effective by the Commission on March 26, 2025.
In connection with the IPO, the Company entered into the following agreements:
| ● | An underwriting agreement, dated March<br> 31, 2025, by and among the Company and The Benchmark Company, LLC and Axiom Capital Management, Inc., as representatives of the underwriters,<br> a copy of which is attached as Exhibit 1.1 hereto and incorporated herein by reference. |
|---|---|
| ● | Representative’s Warrants to purchase an aggregate<br> of 70,000 Ordinary Shares, dated April 2, 2025, a form of which is attached as Exhibit 4.1 hereto and incorporated herein by reference. |
| ● | Indemnification Escrow Agreement, dated April 2, 2025,<br> by and among the Company, Continental Stock |
Transfer & Trust Company, as Escrow Agent, and The Benchmark Company, LLC and Axiom Capital Management, Inc., as representatives of the underwriters, a copy of which is attached as Exhibit 10.1 hereto and incorporated herein by reference.
Other Events.
On April 3, 2025, in connection with the IPO, the Company filed its Amended and Restated Memorandum and Articles of Association with the Registrar of Companies in Cayman Islands, copies of which are attached as Exhibit 3.1 hereto and are incorporated by reference herein.
On March 31, 2025, the Company issued a press release announcing the pricing of the IPO, a copy of which is attached as Exhibit 99.1 to this report.
On April 2, 2025, the Company issued a press release announcing the closing of the IPO, a copy of which is attached as Exhibit 99.2 to this report.
Financial Statements and Exhibits.
The following exhibits are being filed herewith:
* Certain schedules and exhibits have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The registrant agrees to furnish supplementally a copy of any omitted schedule or exhibit to the Commission upon request.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| WF International Limited | |
|---|---|
| By: | /s/ Ke Chen |
| Ke Chen<br><br> <br><br><br> <br>Chief Executive Officer |
Dated: April 4, 2025
EXHIBIT 1.1
UNDERWRITING AGREEMENT
March 31, 2025
The Benchmark Company, LLC
150 East 58th St, 17th Floor
New York, NY 10155
Axiom Capital Management, Inc.
350 Fifth Avenue, Suite 6740
New York, NY 10118
As Representatives of the several Underwriters named on Schedule 1 attached hereto
Ladies and Gentlemen:
The undersigned, WF International Limited, an exempted company incorporated under the laws of the Cayman Islands (the “Company”), hereby confirms its agreement (this “Agreement”) with The Benchmark Company, LLC and Axiom Capital Management, Inc. (each, the “Representative”, and collectively, the “Representatives”) and with the other underwriters, if any, named on Schedule 1 hereto for which the Representatives are acting as Representative (the Representatives and such other underwriters being collectively called the “Underwriters” or, individually, an “Underwriter”) as follows:
1. Purchase and Sale of Shares.
(a) Firm Shares.
(i) Nature and Purchase of Firm Shares.
(A) On the basis of the representations and warranties herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell to the several Underwriters an aggregate of 1,400,000 ordinary shares (“Firm Shares”), par value $0.000001 (the “Ordinary Shares”).
(B) The Underwriters, severally and not jointly, agree to purchase from the Company the number of Firm Shares set forth opposite their respective names on Schedule 1 attached hereto and made a part hereof at a purchase price of $3.72 (the “Purchase Price”) per Firm Share (93% of the public offering price per Firm Share. The Firm Shares are to be offered initially to the public at the offering price set forth on the cover page of the Prospectus (as defined in Section 2(a)(i)(A) hereof).
(ii) Share Payment and Delivery.
(A) Issuance, delivery and payment for the Firm Shares shall be made prior to 2:00 p.m., Eastern time, on the second (2^nd^) Business Day following the date hereof (the “Effective Date”) (or the third (3^rd^) Business Day following the Effective Date if this Agreement is executed after 4:01 p.m., Eastern time) or at such earlier time as shall be agreed upon by the Representatives and the Company, at the offices of ArentFox Schiff LLP, 1717 K Street NW, Washington DC 20006 (“Representatives’ Counsel”), or at such other place (or by electronic transmission) as shall be agreed upon by the Representatives and the Company. The hour and date of delivery and payment for the Firm Shares is called the “Closing Date.”
(B) Payment for the Firm Shares shall be made on the Closing Date by wire transfer in federal (same day) funds, payable to the order of the Company upon delivery of the Firm Shares (in form and substance satisfactory to the Underwriters), for the account of the Underwriters. The securities comprising the Firm Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing prior to the Closing Date. The term “Business Day” means any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions are authorized or obligated by law to close in New York, New York.
(b) Over-Allotment Option.
(i) Option Shares. For the purposes of covering any over-allotments in connection with the distribution and sale of the Ordinary Shares, the Representatives are hereby granted an option (the “Over-Allotment Option”) to purchase, in the aggregate, up to 210,000 Ordinary Shares (15% of the Firm Shares) at the Purchase Price (the “Option Shares” and together with the Firm Shares, the “Shares”). The Firm Shares and the Option Shares are collectively referred to as the “Public Securities.” The Public Securities shall be issued directly by the Company and shall have the rights and privileges described in the Registration Statement, the Pricing Disclosure Package and the Prospectus referred to below. The offering and sale of the Public Securities is hereinafter referred to as the “Offering.”
(ii) Exercise of Over-Allotment Option. The Over-Allotment Option granted pursuant to this Section 1(b) may be exercised by the Representatives as to all (at any time) or any part (from time to time) of the Option Shares within 30 days after the effective date of the Registration Statement. An Underwriter will not be under any obligation to purchase any Option Shares prior to the exercise of the Over-Allotment Option by the Representatives. The Over-Allotment Option granted hereby may be exercised by the giving of oral notice to the Company from the Representatives, which must be confirmed in writing by overnight mail or by email or other electronic transmission setting forth the number of Option Shares to be purchased and the date and time for delivery of and payment for the Option Shares (each, an “OptionClosing Date”), which will not be earlier than one (1) Business Day nor later than three (3) full Business Days after the date of the notice or such other time as shall be agreed upon by the Company and the Representatives, at the offices of the Representatives’ Counsel, or at such other place (including remotely by electronic transmission) as shall be agreed upon by the Company and the Representatives. If such delivery and payment for the Option Shares does not occur on the Closing Date, each Option Closing Date will be as set forth in the notice. Upon exercise of the Over-Allotment Option, the Company will become obligated to convey to the Underwriters, and, subject to the terms and conditions set forth herein, the Underwriters will become obligated to purchase, the number of Option Shares specified in such notice. The Representatives may cancel the Over-Allotment Option at any time prior to the expiration of the Over-Allotment Option by written notice to the Company (except to the extent the Representatives have exercised the Over-Allotment Option in accordance herewith).
(iii) Payment and Delivery. Payment for the Option Shares shall be made on the Option Closing Date by wire transfer in federal (same day) funds, payable to the order of the Company upon delivery of the certificates (in form and substance satisfactory to the Underwriters) representing the Option Shares (or via DWAC) for the account of the Underwriters. The Option Shares shall be registered in such name or names and in such authorized denominations as the Representatives may request in writing prior to the Option Closing Date.
(c) Representatives’ Warrant.
(i) Representatives’ Warrant. The Company hereby agrees to issue to the Representatives (and /or their designees) on the Closing Date warrants for the purchase of an aggregate number of Ordinary Shares equal to 5% of the number of Ordinary Shares issued in the Offering, pursuant to a warrant agreement in the form attached hereto as Exhibit A (the “Representatives’ Warrants”), at an initial exercise price of $4.00, which is equal to 100% of the public offering price for one Ordinary Share. The Representatives’ Warrant and the Ordinary Shares issuable upon exercise of the Representatives’ Warrants are hereinafter referred to together as the “Representatives’Securities.” The Representatives understand and agree that there are significant restrictions pursuant to FINRA Rule 5110 against transferring the Representatives’ Warrants and the underlying securities during the one hundred eighty (180) days after the Effective Date and by its acceptance thereof shall agree that it will not sell, transfer, assign, pledge or hypothecate the Representatives’ Securities, or any portion thereof, or be the subject of any hedging, short sale, derivative, put or call transaction that would result in the effective economic disposition of such securities for a period of one hundred eighty (180) days following the Effective Date to anyone other than (i) an Underwriter or a selected dealer in connection with the Offering, or (ii) a bona fide officer or partner of the Representatives or of any such Underwriter or selected dealer; or as otherwise expressly permitted by Rule 5110(g), and only if any such transferee agrees to the foregoing lock-up restrictions.
(ii) Delivery. Delivery of the Representatives’ Warrant shall be made on the Closing Date or Option Closing Date, as applicable, and shall be issued in the name or names and in such authorized denominations as the Representatives may request.
2. Representations and Warranties of the Company. The Company represents and warrants to the Underwriters as of the Applicable Time (as defined below) and as of the Closing Date, as follows:
(a) Registration Matters.
(i) Pursuant to the Securities Act.
(A) The Company has filed with the U.S. Securities and Exchange Commission (the “Commission”) a registration statement, and an amendment or amendments thereto, on Form F-1 (File No. 333-275382), including any related prospectus or prospectuses, for the registration of the Public Securities and the Representatives’ Securities under the Securities Act of 1933, as amended (the “SecuritiesAct”), which registration statement and amendment or amendments have been prepared by the Company in conformity in all material respects with the requirements of the Securities Act and the rules and regulations of the Commission under the Securities Act (the “SecuritiesAct Regulations”) and will contain all material statements that are required to be stated therein in accordance with the Securities Act and the Securities Act Regulations. Except as the context may otherwise require, such registration statement, as amended, on file with the Commission at the time the registration statement became effective (including the Preliminary Prospectus included in the registration statement, financial statements, schedules, exhibits and all other documents filed as a part thereof or incorporated therein by reference and all information deemed to be a part thereof as of the Effective Date pursuant to paragraph (b) of Rule 430A of the Securities Act Regulations (the “Rule 430A Information”)), is referred to herein as the “RegistrationStatement.” If the Company files any registration statement pursuant to Rule 462(b) of the Securities Act Regulations, then after such filing, the term “Registration Statement” shall include such registration statement filed pursuant to Rule 462(b). The Registration Statement has been declared effective by the Commission on or prior to the date hereof.
(B) Each prospectus used prior to the effectiveness of the Registration Statement, and each prospectus that omitted the Rule 430A Information that was used after such effectiveness and prior to the execution and delivery of this Agreement, is herein called a “PreliminaryProspectus.” The Preliminary Prospectus, subject to completion, dated March 11, 2025, that was included in the Registration Statement immediately prior to the Applicable Time is hereinafter called the “Pricing Prospectus.” The final prospectus in the form first furnished to the Underwriters for use in the Offering is hereinafter called the “Prospectus.” Any reference to the “most recent Preliminary Prospectus” shall be deemed to refer to the latest Preliminary Prospectus included in the Registration Statement.
(C) The term “Pricing Disclosure Package” means (i) the Preliminary Prospectus, as most recently amended or supplemented immediately prior to the Applicable Time (as defined herein), (ii) the Issuer Free Writing Prospectuses (as defined below), if any, identified in Schedule I hereto, (iii) any other Free Writing Prospectus (as defined below) that the parties hereto shall hereafter expressly agree to treat as part of the Pricing Disclosure Package, and (iv) the information included on Schedule 2 of this Agreement.
(D) “ApplicableTime” means 5:00 p.m., Eastern time, on the date of this Agreement.
(E) “IssuerFree Writing Prospectus” means any issuer free writing prospectus, as defined in Rule 433 of the Securities Act Regulations. The term “Free Writing Prospectus” means any free writing prospectus, as defined in Rule 405 of the Securities Act Regulations.
(ii) Pursuant to the Exchange Act. The Company has filed with the Commission a Form 8-A providing for the registration pursuant to Section 12(b) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of the Ordinary Shares. The registration of the Ordinary Shares under the Exchange Act has been declared effective by the Commission on or prior to the date hereof. The Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Ordinary Shares under the Exchange Act, nor has the Company received any notification that the Commission is contemplating terminating such registration.
(b) Stock Exchange Listing. The Ordinary Shares are approved for listing on Nasdaq Capital Market (the “Exchange”) and the Company has taken no action designed to, or likely to have the effect of, delisting the Ordinary Shares from the Exchange, nor has the Company received any notification that the Exchange is contemplating terminating such listing.
(c) No Stop Orders, etc. Neither the Commission nor, to the Company’s knowledge, any state regulatory authority has issued any order preventing or suspending the use of the Registration Statement, any Preliminary Prospectus or the Prospectus or has instituted or, to the Company’s knowledge, threatened to institute, any proceedings with respect to such an order. The Company has complied with each request (if any) from the Commission for additional information.
(d) Organization; Subsidiaries; Good Standing. Each of the Company and each of the Company’s subsidiaries have been duly incorporated and are validly existing as entities in good standing under the laws of jurisdictions of their respective organization, with power and authority to own, lease and operate their respective properties and conduct their respective businesses as described in the Preliminary Prospectus, and have been duly qualified as foreign corporations for the transaction of business and are in good standing under the laws of each other jurisdiction in which they own or lease properties or conduct any business so as to require such qualification, except where the failure so to qualify or be in good standing would not have a Material Adverse Change (as defined in Section 2(f)(i)); all of the issued and outstanding capital stock (or other ownership interests) of such subsidiaries has been validly issued and duly paid in accordance with their respective articles of association and is owned, directly or indirectly, by the Company free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. Unless otherwise set forth, all references in this Section 2 to the “Company” shall include references to all such subsidiaries. Neither the Company nor any subsidiary is in violation or default of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational or charter documents.
(e) Disclosures in Registration Statement.
(i) Compliance with Securities Act and 10b-5 Representation.
(A) Each of the Registration Statement and any post-effective amendment thereto, at the time it became effective, complied in all material respects with the requirements of the Securities Act and the Securities Act Regulations. Each Preliminary Prospectus, including the prospectus filed as part of the Registration Statement as originally filed or as part of any amendment or supplement thereto, and the Prospectus, at the time each was filed with the Commission, complied in all material respects with the requirements of the Securities Act and the Securities Act Regulations. Each Preliminary Prospectus delivered to the Underwriters for use in connection with this Offering and the Prospectus was or will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(B) Neither the Registration Statement nor any amendment thereto, at its respective effective time, contained, contains or will contain an untrue statement of a material fact or omitted, omits or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to the Underwriters’ Information (as defined below).
(C) The Pricing Disclosure Package, as of the Applicable Time, at the Closing Date or at any Option Closing Date, did not, does not, and will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and each Issuer Free Writing Prospectus does not conflict with the information contained in the Registration Statement, any Preliminary Prospectus, or the Prospectus, and each such Issuer Free Writing Prospectus, as supplemented by and taken together with the Preliminary Prospectus as of the Applicable Time, did not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to statements made or statements omitted in reliance upon and in conformity with written information furnished to the Company with respect to the Underwriters by the Representatives expressly for use in the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus, the Pricing Disclosure Package or the Prospectus or any amendment thereof or supplement thereto. The parties acknowledge and agree that such information provided by or on behalf of any Underwriter consists solely of the following disclosure contained in the following paragraphs in the “Underwriting” section of the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus, the Pricing Disclosure Package, or the Prospectus: (i) the names of the several underwriters, (ii) the table of underwriters in the first paragraph of the section; (iii) the third paragraph of the section (iv) the information under the subsections “Discounts, Commissions and Expenses”; “Right First Refusal”; and “Stabilization” (the “Underwriters’ Information”).
(D) Neither the Prospectus nor any amendment or supplement thereto (including any prospectus wrapper), as of its issue date, at the time of any filing with the Commission pursuant to Rule 424(b), or at the Closing Date, included, includes or will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to the Underwriters’ Information.
(ii) Disclosure of Agreements. The agreements and documents described in the Registration Statement, the Pricing Disclosure Package and the Prospectus conform in all material respects to the descriptions thereof contained therein and there are no agreements or other documents required by the Securities Act and the Securities Act Regulations to be described in the Registration Statement, the Pricing Disclosure Package and the Prospectus or to be filed with the Commission as exhibits to the Registration Statement, that have not been so described or filed. Each agreement or other instrument (however characterized or described) to which the Company is a party or by which it is or may be bound or affected and (i) that is referred to in the Registration Statement, the Pricing Disclosure Package and the Prospectus, and (ii) is material to the Company’s business, has been duly authorized and validly executed by the Company, is in full force and effect in all material respects and is enforceable against the Company and, to the Company’s knowledge, the other parties thereto, in accordance with its terms, except (w) for such agreements or instruments for enforceability of which would not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Change, (x) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally, (y) as enforceability of any indemnification or contribution provision may be limited under the federal and state securities laws, and (z) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. None of such agreements or instruments has been assigned by the Company, and neither the Company nor, to the Company’s knowledge, any other party is in material default thereunder and, to the Company’s knowledge, no event has occurred that, with the lapse of time or the giving of notice, or both, would constitute a material default thereunder, except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, or which would not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Change. To the Company’s knowledge, performance by the Company of the material provisions of such agreements or instruments will not result in a violation of any existing applicable law, rule, regulation, judgment, order or decree of any governmental agency or court, domestic or foreign, having jurisdiction over the Company or any of its assets or businesses (each, a “Governmental Entity”), including, without limitation, those relating to environmental laws and regulations, except such violations which would not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Change.
(iii) Prior Securities Transactions. Since the beginning of the last two full fiscal years, no securities of the Company have been sold by the Company or by or on behalf of, or for the benefit of, any person or persons controlling, controlled by or under common control with the Company, except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Preliminary Prospectus.
(iv) Regulations. The disclosures in the Registration Statement, the Pricing Disclosure Package and the Prospectus concerning the effects of federal, state, local and foreign laws, rules and regulations relating to the Company’s business as currently contemplated are correct in all material respects and no other such regulations are required to be disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus which are not so disclosed.
(f) Changes After Dates in Registration Statement.
(i) No Material Adverse Change. Since the respective dates as of which information is given in the Registration Statement, the Pricing Disclosure Package and the Prospectus, except as otherwise specifically stated therein: (i) there has been no material adverse change in the financial position or results of operations of the Company, nor any change or development that, singularly or in the aggregate, would reasonably be expected to involve a material adverse change in or affecting the condition (financial or otherwise), results of operations, business or assets of the Company and its subsidiaries, taken as a whole (a “Material Adverse Change”); (ii) there have been no material transactions entered into by the Company, other than as contemplated pursuant to this Agreement; and (iii) no officer or director of the Company has resigned from any position with the Company.
(ii) Recent Securities Transactions, etc. Subsequent to the respective dates as of which information is given in the Registration Statement, the Pricing Disclosure Package and the Prospectus, and except as may otherwise be indicated or contemplated herein or disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company has not: (i) issued any securities or incurred any liability or obligation, direct or contingent, for borrowed money; or (ii) declared or paid any dividend or made any other distribution on or in respect to its capital stock.
(g) Independent Accountants. To the knowledge of the Company, ZH CPA LLC, during such time as it was engaged by the Company (the “Auditors”), has been and is an independent registered public accounting firm as required by the Securities Act and the Securities Act Regulations and the Public Company Accounting Oversight Board. During such time period in which the Auditors served as the Company’s independent registered public accounting firm, the Auditors did not or have not, during the periods covered by the financial statements included in the Registration Statement, the Pricing Disclosure Package and the Prospectus, provided to the Company any non-audit services, as such term is used in Section 10A(g) of the Exchange Act.
(h) Financial Statements, etc. The financial statements, including the notes thereto and supporting schedules included in the Registration Statement, the Pricing Prospectus and the Prospectus, fairly present in all material respects the financial position and the results of operations of the Company at the dates and for the periods to which they apply; and such financial statements have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments. The financial statements, including the notes thereto and supporting schedules included in the Registration Statement, the Pricing Disclosure Package and the Prospectus, fairly present in all material respects the financial position and the results of operations of the Company at the dates and for the periods to which they apply; and such financial statements have been prepared in conformity with GAAP, consistently applied throughout the periods involved (provided that unaudited interim financial statements are subject to year-end audit adjustments that are not expected to be material in the aggregate and do not contain all footnotes required by GAAP); and the supporting schedules included in the Registration Statement present fairly in all material respects the information required to be stated therein. Except as included therein, no historical or pro forma financial statements are required to be included in the Registration Statement, the Pricing Disclosure Package or the Prospectus under the Securities Act or the Securities Act Regulations. The pro forma and pro forma as adjusted financial information and the related notes, if any, included in the Registration Statement, the Pricing Disclosure Package and the Prospectus have been properly compiled and prepared in accordance with the applicable requirements of the Securities Act and the Securities Act Regulations and present fairly in all material respects the information shown therein, and the assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein. All disclosures contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission), if any, comply with Regulation G of the Exchange Act and Item 10 of Regulation S-K of the Securities Act, to the extent applicable. Each of the Registration Statement, the Pricing Disclosure Package and the Prospectus discloses all material off-balance sheet transactions, arrangements, obligations (including contingent obligations), and other relationships of the Company with unconsolidated entities or other persons that may have a material current or future effect on the Company’s financial condition, changes in financial condition, results of operations, liquidity, capital expenditures, capital resources, or significant components of revenues or expenses. Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, (a) the Company has not incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions other than in the ordinary course of business, (b) the Company has not declared or paid any dividends or made any distribution of any kind with respect to its capital stock, (c) there has not been any change in the capital stock of the Company, and (d) there has not been any Material Adverse Change in the Company’s long-term or short-term debt.
(i) Authorized Capital; Options, etc. The Company had, at the date or dates indicated in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the duly authorized, issued and outstanding share capital as set forth therein. Based on the assumptions stated in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company will have on the Closing Date the adjusted share capital set forth therein. Except as set forth in, or contemplated by, the Registration Statement, the Pricing Disclosure Package and the Prospectus, on the Effective Date, as of the Applicable Time, and on the Closing Date, there will be no share options, warrants, or other rights to purchase or otherwise acquire any authorized, but unissued Ordinary Shares or any security convertible or exercisable into Ordinary Shares, or any contracts or commitments to issue or sell Ordinary Shares or any such options, warrants, rights or convertible securities.
(j) Valid Issuance of Securities, etc.
(i) Outstanding Securities. All issued and outstanding securities of the Company issued prior to the transactions contemplated by this Agreement have been duly authorized, validly issued and duly paid in accordance with their respective articles of association and non-assessable; the holders thereof have no rights of rescission with respect thereto, and are not subject to personal liability by reason of being such holders; and none of such securities were issued in violation of the preemptive rights of any holders of any security of the Company or similar contractual rights granted by the Company. The offers and sales of the issued and outstanding Ordinary Shares were at all relevant times either registered under the Securities Act and the applicable state securities or “blue sky” laws or, based in part on the representations and warranties of the purchasers of such shares, exempt from such registration requirements. The authorized Ordinary Shares and other issued and outstanding securities conform in all material respects to all statements relating thereto contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(ii) Securities Sold Pursuant to this Agreement. The Public Securities and the Representatives’ Securities have been duly authorized for issuance and sale and, when issued and paid for in accordance with this Agreement, will be validly issued, fully paid and non-assessable; the holders thereof are not and will not be subject to personal liability by reason of being such holders; the Public Securities and Representatives’ Securities are not and will not be subject to the preemptive rights of any holders of any security of the Company or similar contractual rights granted by the Company; and all corporate action required to be taken for the authorization, issuance and sale of the Public Securities and Representatives’ Securities has been duly and validly taken. The Public Securities and Representatives’ Securities conform in all material respects to all statements with respect thereto contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(k) Registration Rights of Third Parties. Except as set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus, no holders of any securities of the Company or any rights exercisable for or convertible or exchangeable into securities of the Company have the right to require the Company to register any such securities of the Company under the Securities Act or to include any such securities in a registration statement to be filed by the Company (except for any such rights that have been waived or with respect to securities covered by any effective registration statement).
(l) Validity and Binding Effect of Agreements. This Agreement and the Representatives’ Warrants have been duly and validly authorized by the Company and when executed and delivered, will constitute, the valid and binding agreement of the Company, enforceable against the Company in accordance with its respective terms, except: (i) as such enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, fraudulent transfer, moratorium or similar laws affecting creditors’ rights generally; (ii) as enforceability of any indemnification or contribution provision may be limited under the federal and state securities laws; and (iii) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.
(m) No Conflicts, etc. The execution, delivery and performance by the Company of this Agreement, the Representatives’ Warrant and all ancillary documents, the consummation by the Company of the transactions herein and therein contemplated and the compliance by the Company with the terms hereof and thereof do not and will not, with or without the giving of notice or the lapse of time or both: (i) result in a material breach of, or conflict with any of the terms and provisions of, or constitute a material default under, or result in the creation, modification, termination or imposition of any material lien, charge or encumbrance upon any property or assets of the Company pursuant to the terms of any agreement or instrument to which the Company is a party; (ii) result in any violation of the provisions of the Company’s memorandum and articles of association (as the same may be amended or restated from time to time, the “Charter”); or (iii) violate any existing law, rule, regulation, judgment, order or decree of any Governmental Entity as of the date hereof, except in the case of clauses (i) and (iii) above for any such breaches, conflicts or violations which would not reasonably be expected to result in a Material Adverse Change.
(n) Regulatory. Except as described in the Registration Statement, the Pricing Prospectus and the Prospectus or as would not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Change: (i) the Company has not received notice from any Governmental Entity alleging or asserting noncompliance with any Applicable Laws (as defined in clause (ii) below) or Authorizations (as defined in clause (iii) below); (ii) to the Company’s knowledge, the Company is and has been in material compliance with federal, state or foreign statutes, laws, ordinances, rules and regulations applicable to the Company (collectively, “Applicable Laws”); (iii) to the Company’s knowledge, the Company possesses all licenses, certificates, approvals, clearances, consents, authorizations, qualifications, registrations, permits, and supplements or amendments thereto required by any such Applicable Laws and/or to carry on its businesses as now conducted (“Authorizations”) and such Authorizations are valid and in full force and effect and the Company is not in violation of any term of any such Authorizations, except for any violations which would not reasonably be expected to have a Material Adverse Change; (iv) the Company has not received notice of any claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action from any Governmental Entity or third party alleging that any product, operation or activity is in violation of any Applicable Laws or Authorizations or has any knowledge that any such Governmental Entity or third party is considering any such claim, litigation, arbitration, action, suit, investigation or proceeding, nor, to the Company’s knowledge, has there been any material noncompliance with or violation of any Applicable Laws by the Company that could reasonably be expected to require the issuance of any such communication or result in an investigation, corrective action, or enforcement action by any Governmental Entity; and (v) the Company has not received notice that any Governmental Entity has taken, is taking or intends to take action to limit, suspend, modify or revoke any Authorizations or has any knowledge that any such Governmental Entity has threatened or is considering such action. Neither the Company nor, to the Company’s knowledge, any of its directors, officers, employees or agents has been convicted of any crime under any Applicable Laws.
(o) No Defaults; Violations. No default exists in the due performance and observance of any term, covenant or condition of any material license, contract, indenture, mortgage, deed of trust, note, loan or credit agreement, or any other agreement or instrument evidencing an obligation for borrowed money, or any other material agreement or instrument to which the Company is a party or by which the Company may be bound or to which any of the properties or assets of the Company is subject, except as would not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Change. The Company is not (i) in violation of any term or provision of its Charter, or (ii) except as would not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Change, in violation of any franchise, license, permit, applicable law, rule, regulation, judgment or decree of any Governmental Entity applicable to the Company.
(p) Corporate Power; Licenses; Consents.
(i) Conduct of Business. Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company has all requisite corporate power and authority, and has all necessary authorizations, approvals, orders, licenses, certificates and permits of and from all governmental regulatory officials and bodies that it needs as of the date hereof to conduct its business purpose as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(ii) Transactions Contemplated Herein. The Company has all corporate power and authority to enter into this Agreement and to carry out the provisions and conditions hereof, and all consents, authorizations, approvals and orders required in connection therewith have been obtained. No consent, authorization or order of, and no filing with, any court, government agency or other body is required for the valid issuance, sale and delivery of the Public Securities and the consummation of the transactions and agreements contemplated by this Agreement and as contemplated by the Registration Statement, the Pricing Disclosure Package and the Prospectus, except with respect to applicable federal and state securities laws, the rules and regulations of the Financial Industry Regulatory Authority, Inc. (“FINRA”) and the rules and regulations of the Exchange, and except with respect to such consent, authorization, order or filing that would not reasonably be expected to have a Material Adverse Change.
(q) Litigation; Governmental Proceedings. There is no material action, suit, proceeding, inquiry, arbitration, investigation, litigation or governmental proceeding pending or, to the Company’s knowledge, threatened against, or involving the Company or, to the Company’s knowledge, any executive officer or director which has not been disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus or in connection with the Company’s listing application for the additional listing of the Shares on the Exchange.
(r) Insurance. The Company will carry insurance in such amounts and covering such risks which the Company believes are reasonably adequate and as is customary for companies engaged in similar businesses in similar industries. The Company has no reason to believe that it will not be able (i) to renew its existing insurance coverage as and when such policies expire or (ii) to obtain comparable coverage from similar institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost that would not reasonably be expected to result in a Material Adverse Change.
(s) Transactions Affecting Disclosure to FINRA.
(i) Finder’s Fees. Except as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, there are no claims, payments, arrangements, agreements or understandings relating to the payment of a finder’s, consulting or origination fee by the Company or any executive officer or director of the Company (each, an, “Insider”) with respect to the sale of the Public Securities hereunder or any other arrangements, agreements or understandings of the Company or, to the Company’s knowledge, any of its shareholders that may affect the Underwriters’ compensation, as determined by FINRA.
(ii) Payments Within Six (6) Months. The Company has not made any direct or indirect payments (in cash, securities or otherwise) to: (i) any person, as a finder’s fee, consulting fee or otherwise, in consideration of such person raising capital for the Company or introducing to the Company persons who raised or provided capital to the Company; (ii) any FINRA member; or (iii) any person or entity that has any direct or indirect affiliation or association with any FINRA member, within the 180 days prior to the date of the initial filing of the Registration Statement, other than the payment to the Underwriters as provided hereunder in connection with the Offering.
(iii) Use of Proceeds. None of the net proceeds of the Offering will be paid by the Company to any participating FINRA member or its affiliates, except as specifically authorized herein.
(iv) FINRA Affiliation. There is no (i) officer or director of the Company, (ii) beneficial owner of 10% or more of any class of the Company’s securities or (iii) beneficial owner of the Company’s unregistered equity securities which were acquired during the 180-day period immediately preceding the filing of the Registration Statement that, in each such case, is an affiliate or associated person of a FINRA member participating in the Offering (as determined in accordance with the rules and regulations of FINRA).
(v) Information. To the Company’s knowledge, all information provided by the Company’s officers and directors in their FINRA Questionnaires to Representatives’ Counsel specifically for use by Representatives’ Counsel in connection with its Public Offering System filings (and related disclosure) with FINRA is true, correct and complete in all material respects.
(t) Foreign Corrupt Practices Act. Neither the Company nor, to the Company’s knowledge, any director, officer, agent, employee or affiliate of the Company (acting in such capacity) or any other person acting on behalf of the Company (acting in such capacity), has, directly or indirectly, given or agreed to give any money, gift or similar benefit (other than legal price concessions to customers in the ordinary course of business) to any customer, supplier, employee or agent of a customer or supplier, or official or employee of any governmental agency or instrumentality of any government (domestic or foreign) or any political party or candidate for office (domestic or foreign) or other person who was, is, or may be in a position to help or hinder the business of the Company (or assist it in connection with any actual or proposed transaction) that (i) might subject the Company to any damage or penalty in any civil, criminal or governmental litigation or proceeding, (ii) if not given in the past, might reasonably been expected to have had a Material Adverse Change or (iii) if not continued in the future, might adversely affect the assets, business, operations or prospects of the Company. The Company has taken reasonable steps to ensure that its accounting controls and procedures are sufficient to cause the Company to comply in all material respects with the Foreign Corrupt Practices Act of 1977, as amended.
(u) Compliance with OFAC. Neither the Company nor, to the Company’s knowledge, any director, officer, agent, employee or affiliate of the Company (acting in such capacity) or any other person acting on behalf of the Company (acting in such capacity), is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”).
(v) Money Laundering Laws. The operations of the Company are and have been conducted at all times in compliance in all material respects with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Entity (collectively, the “Money Laundering Laws”); and no action, suit or proceeding by or before any Governmental Entity involving the Company with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(w) Officers’ Certificate. Any certificate signed by any duly authorized officer of the Company and delivered to the Representatives or to Representatives’ Counsel shall be deemed a representation and warranty by the Company to the Underwriters as to the matters covered thereby.
(x) Related Party Transactions. There are no business relationships or related party transactions involving the Company or any other person required to be described in the Registration Statement, the Pricing Disclosure Package and the Prospectus that have not been described as required.
(y) Board of Directors. The qualifications of the persons serving as board members and the overall composition of the board comply with the Exchange Act, the Exchange Act Regulations, the Sarbanes-Oxley Act of 2002 and the rules promulgated thereunder (the “Sarbanes-Oxley Act”) applicable to the Company and the listing rules of the Exchange. At least one member of the Audit Committee of the Board of Directors of the Company qualifies as an “audit committee financial expert,” as such term is defined under Regulation S-K and the listing rules of the Exchange.
(z) Sarbanes-Oxley Compliance.
(i) Disclosure Controls. The Company has developed and currently maintains disclosure controls and procedures that will comply with Rule 13a-15 or 15d-15 under the Exchange Act Regulations applicable to it, and such controls and procedures are effective to ensure that all material information concerning the Company will be made known on a timely basis to the individuals responsible for the preparation of the Company’s Exchange Act filings and other public disclosure documents.
(ii) Compliance. The Company is in compliance with the provisions of the Sarbanes-Oxley Act applicable to it, and has implemented or will implement such programs and taken reasonable steps to ensure the Company’s future compliance (not later than the relevant statutory and regulatory deadlines therefor) with all of the provisions of the Sarbanes-Oxley Act.
(aa) Accounting Controls. The Company maintains systems of “internal control over financial reporting” (as defined under Rules 13a-15 and 15d-15 under the Exchange Act Regulations) that comply in all material respects with the requirements of the Exchange Act and have been designed by, or under the supervision of, its principal executive and principal financial officers, or persons performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, including, but not limited to, internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company is not aware of any material weaknesses
in its internal controls. The Auditors and the Audit Committee of the Board of Directors of the Company have been advised of: (i) all significant deficiencies and material weaknesses, if any, in the design or operation of internal controls over financial reporting which are known to the Company’s management and that have adversely affected or are reasonably likely to adversely affect the Company’ ability to record, process, summarize and report financial information; and (ii) any fraud, if any, known to the Company’s management, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls over financial reporting.
(bb) No Investment Company Status. The Company is not and, after giving effect to the Offering and the application of the proceeds thereof as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, will not be, required to register as an “investment company,” as defined in the Investment Company Act of 1940, as amended.
(cc) No Labor Disputes. No labor dispute with the employees of the Company exists or, to the knowledge of the Company, is imminent.
(dd) Intellectual Property Rights. To the Company’s knowledge, the Company has, or can acquire on reasonable terms, ownership of and/or license to, or otherwise has the right to use, all inventions, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), patents and patent rights trademarks, service marks and trade names, copyrights, (collectively “Intellectual Property”) material to carrying on its businesses as described in the Pricing Prospectus. The Company has not received any correspondence relating to any Intellectual Property, including notice of: (A) infringement or misappropriation of, or conflict with, any Intellectual Property of a third party; (B) asserted rights of others with respect to any Intellectual Property of the Company; (C) assertions that any Intellectual Property of the Company is invalid or otherwise inadequate to protect the interest of the Company, that in each case (if the subject of any unfavorable decision, ruling or finding), individually or in the aggregate, would have or would reasonably be expected to have a Material Adverse Change. There are no third parties who have been able to establish any material rights to any Intellectual Property, except for the retained rights of the owners or licensors of any Intellectual Property that is licensed to the Company. There is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others: (A) challenging the validity, enforceability or scope of any Intellectual Property of the Company in any material respect or (B) challenging the Company’s rights in or to any Intellectual Property in any material respect or (C) that the Company materially infringes, misappropriates or otherwise violates or conflicts with any Intellectual Property or other proprietary rights of others. The Company has complied in all material respects with the terms of each agreement described in the Registration Statement, Pricing Disclosure Package or Prospectus pursuant to which any Intellectual Property is licensed to the Company, and all such agreements related to products currently made or sold by the Company, or to product candidates currently under development, are in full force and effect. All patents issued in the name of, or assigned to, the Company, and all patent applications made by or on behalf of the Company (collectively, the “Company Patents”) have been duly and properly filed, except for such failures to file as would reasonably be expected to result in a Material Adverse Change. The Company is not aware of any material information that was required to be disclosed to the United States Patent and Trademark Office (the “PTO”) but that was not disclosed to the PTO with respect to any issued Company Patent, or that is required to be disclosed and has not yet been disclosed in any pending application in the Company Patents and that would preclude the grant of a patent on such application. To the Company’s knowledge, the Company is the sole owner of the Company Patents.
(ee) Taxes. The Company has filed all returns (as hereinafter defined) required to be filed with taxing authorities prior to the date hereof or has duly obtained extensions of time for the filing thereof. The Company has paid all taxes (as hereinafter defined) shown as due on such returns that were filed and has paid all taxes imposed on or assessed against the Company, except (i) such taxes the Company is challenging in good faith and (ii) for such exceptions as could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Change. The provisions for taxes payable, if any, shown on the financial statements filed with or as part of the Registration Statement are sufficient for all material accrued and unpaid taxes, whether or not disputed, and for all periods to and including the dates of such consolidated financial statements. Except as would not reasonably be expected to result in a Material Adverse Change, (i) no issues have been raised (and are currently pending) by any taxing authority in connection with any of the returns or taxes asserted as due from the Company, and (ii) no waivers of statutes of limitation with respect to the returns or collection of taxes have been given by or requested from the Company. The term “taxes” mean all federal, state, local, foreign and other net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease, service, service use, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property, windfall profits, customs, duties or other taxes, fees, assessments or charges of any kind whatever, together with any interest and any penalties, additions to tax or additional amounts with respect thereto. The term “returns” means all returns, declarations, reports, statements and other documents required to be filed in respect to taxes.
(ff) Employee Benefit Laws. The operations of the Company and its subsidiaries are and have been conducted at all times in material compliance with the Employee Retirement Income Security Act of 1974, as amended, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Employee Benefit Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or its subsidiaries with respect to the Employee Benefit Laws is pending or, to the knowledge of the Company, threatened.
(gg) Compliance with Laws. The Company: (A) to its knowledge, is and at all times has been in compliance with all Applicable Laws, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Change; (B) to its knowledge, has not received any correspondence from any Governmental Entity alleging or asserting noncompliance with any Applicable Laws or any Authorizations; (C) possesses all material Authorizations and such Authorizations are valid and in full force and effect and the Company is not in material violation of any term of any such Authorizations, in each case except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Change; (D) has not received written notice of any claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action from any Governmental Entity or third party alleging that any product operation or activity is in violation of any Applicable Laws or Authorizations and has no knowledge that any such Governmental Entity or third party is considering any such claim, litigation, arbitration, action, suit, investigation or proceeding; (E) has not received written notice that any Governmental Entity has taken, is taking or intends to take action to limit, suspend, modify or revoke any Authorizations; and (F) has filed, obtained, maintained or submitted all material reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required by any Applicable Laws or Authorizations and that all such reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments were complete and correct in all material respects on the date filed (or were corrected or supplemented by a subsequent submission).
(hh) Ineligible Issuer. At the time of filing the Registration Statement and any post-effective amendment thereto, at the time of effectiveness of the Registration Statement and any amendment thereto, at the earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the Securities Act Regulations) of the Public Securities and at the date hereof, the Company was not and is not an “ineligible issuer,” as defined in Rule 405, without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an ineligible issuer.
(ii) Industry Data. The statistical and market-related data included in each of the Registration Statement, the Pricing Disclosure Package and the Prospectus are based on or derived from sources that the Company reasonably and in good faith believes are reliable and accurate or represent the Company’s good faith estimates that are made on the basis of data derived from such sources.
(jj) Forward-Looking Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(kk) Reserved.
(ll) Reserved.
(mm) Margin Securities. The Company owns no “margin securities” as that term is defined in Regulation U of the Board of Governors of the Federal Reserve System (the “Federal Reserve Board”), and none of the proceeds of Offering will be used, directly or indirectly, for the purpose of purchasing or carrying any margin security, for the purpose of reducing or retiring any indebtedness which was originally incurred to purchase or carry any margin security or for any other purpose which might cause any of the Ordinary Shares to be considered a “purpose credit” within the meanings of Regulation T, U or X of the Federal Reserve Board.
(nn) Integration. Neither the Company, nor any of its affiliates, nor any person acting on its or their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause the Offering to be integrated with prior offerings by the Company for purposes of the Securities Act that would require the registration of any such securities issued in such prior offerings under the Securities Act.
(oo) Confidentiality and Non-Competition. To the Company’s knowledge, no director, officer, key employee or consultant of the Company is subject to any confidentiality, non-disclosure, non-competition agreement or non-solicitation agreement with any employer (other than the Company or any subsidiary thereof) or prior employer that could reasonably be expected to materially affect his ability to be and act in his respective capacity of the Company or reasonably be expected to result in a Material Adverse Change.
(pp) Export and Import Laws. The Company, and, to the Company’s knowledge, each of its affiliates, and any director, officer, agent or employee of, or other person associated with or acting on behalf of the Company, has acted at all times in compliance with applicable Export and Import Laws (as defined below) and there are no claims, complaints, charges, investigations or proceedings pending or expected or, to the knowledge of the Company, threatened between the Company or any of its Subsidiaries and any governmental authority under any Export or Import Laws. The term “Export and Import Laws” means the Arms Export Control Act, the International Traffic in Arms Regulations, the Export Administration Act of 1979, as amended, the Export Administration Regulations, and all other laws and regulations of the United States government regulating the provision of services to non-U.S. parties or the export and import of articles or information from and to the United States of America, and all similar laws and regulations of any foreign government regulating the provision of services to parties not of the foreign country or the export and import of articles and information from and to the foreign country to parties not of the foreign country.
(qq) Foreign Private Issuer Status. The Company is a “foreign private issuer” within the meaning of Rule 405 under the Act.
(rr) PRC Representation and Warranties.
(i) Foreign Tax Compliance. Except as otherwise disclosed in the Registration Statement, the Disclosure Package and the Prospectus, no transaction, stamp, capital or other issuance, registration, transaction, transfer or withholding taxes or duties are payable in PRC, Hong Kong or Cayman Islands to any PRC, Hong Kong or Cayman Islands taxing authority in connection with the issuance, sale and delivery of the Public Securities, and the delivery of the Public Securities to or for the account of the Underwriters.
(ii) Compliance with PRC Overseas Investment and Listing Rules and Regulations. Except as otherwise disclosed in the Registration Statement, the Disclosure Package and the Prospectus, the Company and its subsidiaries have taken reasonable steps and requisite steps to cause each of the Company’s principal shareholders, directors and officers that is, or directly or indirectly controlled by, a PRC resident or citizen, to comply with any applicable rules and regulations of relevant PRC government agencies (including but not limited to the Ministry of Commerce, the National Development and Reform Commission, the China Securities Regulatory Commission (“CSRC”)), and the State Administration of Foreign Exchange (“SAFE”)) relating to overseas investment by PRC residents and citizens (collectively, the “PRC Overseas Investment and Listing Rules and Regulations”), including, without limitation, taking reasonable steps to require each such person that is, or is directly or indirectly owned or controlled by, a PRC resident or citizen, to complete any registration, to timely report material changes, and to complete other procedures required by any relevant PRC government agencies under any applicable PRC Oversea Investment and Listing Rules and Regulations.
(iii) M&A Rules. The Company is aware of and has been advised as to the content of the Rules on Mergers and Acquisitions of Domestic Enterprises by Foreign Investors jointly promulgated by the Ministry of Commerce, the State Assets Supervision and Administration Commission, the State Tax Administration, the State Administration for Market Regulation, the CSRC and SAFE on August 8, 2006, and amended on June 22, 2009 (the “M&A Rules”), in particular the relevant provisions thereof that purport to require offshore special purpose vehicles formed for the purpose of obtaining a stock exchange listing outside of the PRC and controlled directly or indirectly by companies or natural persons of the PRC, to obtain the approval of the CSRC prior to the listing and trading of their securities on a stock exchange located outside of the PRC; the Company has received legal advice specifically with respect to the M&A Rules from its PRC counsel and based on such legal advice, the Company confirms with the Underwriters:
(A) Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the issuance and sale of the Public Securities, the listing and trading of the Public Securities on the Nasdaq Capital Market and the consummation of the transactions contemplated by this Agreement are not and will not be, as of the date hereof or at the Closing Date or the Option Closing Date, materially affected by the M&A Rules or any official clarifications, guidance, interpretations or implementation rules in connection with or related to the M&A Rules as amended as of the date hereof (collectively, the “M&A Rules and Related Clarifications”).
(B) Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, as of the date hereof, the M&A Rules and Related Classifications did not and do not require the Company to obtain the approval of the CSRC prior to the issuance and sale of the Public Securities, the listing and trading of the Ordinary Shares on the Nasdaq Capital Market, or the consummation of the transactions contemplated by this Agreement.
(iv) CSRC Overseas Offering and Listing Rules. The Company and its subsidiaries have taken reasonable and requisite steps to comply with the Trial Administrative Measures of Overseas Securities Offering and Listing by Domestic Companies released by the CSRC on February 17, 2023 and effective as of March 31, 2023, and its No. 1 to No. 5 Supporting Guidance Rules, the Notes on the Trial Measures, the Notice on Administration Arrangements for the Filing of Overseas Listings by Domestic Companies and the relevant CSRC Answers to Reporter Questions (collectively, the “CSRC Overseas Offering and Listing Rules”), including, without limitation, to submit and complete the required filing with CSRC in connection with the Offering in accordance with the CSRC Overseas Offering and Listing Rules (the “CSRC Filing”), and to complete other procedures if required by the CSRC or any relevant PRC government agencies under the CSRC Overseas Offering and Listing Rules. The Company has delivered to the Representatives copies of the documents submitted to the CSRC for CSRC Filing purposes (including any amendment or supplement thereto, collectively, the “CSRC Filing Documents,” the CSRC Filing Documents, together with any and all supportive documents evidencing the truthfulness, accuracy and completeness thereof, shall be hereinafter referred to as the “CSRC Filing Materials”), in such quantities and at such places as the Representatives have reasonably requested. The CSRC Filing Documents are identical in content to the copy thereof delivered to the Representatives in connection with the CSRC Filing. Each of the CSRC Filing Materials does not contain any untrue statement of a fact or omit to state a fact required to be stated therein or necessary to make the statements therein not misleading or incomplete. No CSRC Filing Materials include any information that conflicts with the information contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus, including any document incorporated by reference therein that has not been superseded or modified.
3. Covenants of the Company. The Company covenants and agrees as follows:
(a) Amendments to Registration Statement. The Company shall deliver to the Representatives, prior to filing, any amendment or supplement to the Registration Statement or Prospectus proposed to be filed after the Effective Date and not file any such amendment or supplement to which the Representatives shall reasonably object in writing; provided however, that this Section 3(a) shall not be applicable with respect to any supplements to the Registration Statement filed solely for the purpose of supplementing the Registration Statement or Prospectus with a report filed with the Commission by the Company pursuant to the Exchange Act.
(b) Federal Securities Laws.
(i) Compliance. The Company shall comply with the requirements of Rule 430A of the Securities Act Regulations, and will notify the Representatives promptly, and confirm the notice in writing, (i) when any amendment or supplement to the Prospectus shall have been filed; (ii) of the receipt of any comments from the Commission related to the Prospectus or Offering; (iii) of any request by the Commission for any amendment or supplement to the Prospectus or for additional information; (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Public Securities and Representatives’ Securities for offering or sale in any jurisdiction, or of the initiation or, to the Company’s knowledge, threatening, of any proceedings for any of such purposes or of any examination pursuant to Section 8(d) or 8(e) of the Securities Act concerning the Registration Statement; and (v) if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the Offering of the Public Securities and Representatives’ Securities. The Company shall effect all filings required under Rule 424(b) of the Securities Act Regulations, in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and shall take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company shall use its best efforts to prevent the issuance of any stop order, prevention or suspension and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(ii) Continued Compliance. The Company shall comply with the Securities Act, the Securities Act Regulations, the Exchange Act and the Exchange Act Regulations so as to permit the completion of the distribution of the Public Securities as contemplated in this Agreement and in the Registration Statement, the Pricing Disclosure Package and the Prospectus. If at any time when a prospectus relating to the Public Securities is (or, but for the exception afforded by Rule 172 of the Securities Act Regulations (“Rule 172”), would be) required by the Securities Act to be delivered in connection with sales of the Public Securities, any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company, to (i) amend or supplement the Pricing Disclosure Package or the Prospectus in order that the Pricing Disclosure Package or the Prospectus, as the case may be, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser or (ii) amend the Registration Statement or amend or supplement the Pricing Disclosure Package or the Prospectus, as the case may be, in order to comply with the requirements of the Securities Act or the Securities Act Regulations, the Company will promptly (A) give the Representatives notice of such event; (B) prepare any amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement, the Pricing Disclosure Package or the Prospectus comply with such requirements and, a reasonable amount of time prior to any proposed filing or use, furnish the Representatives with copies of any such amendment or supplement and (C) file with the Commission any such amendment or supplement; provided that the Company shall not file or use any such amendment or supplement to which the Representatives or counsel for the Representatives shall reasonably object. The Company will furnish to the Underwriters such number of copies of such amendment or supplement as the Underwriters may reasonably request. The Company has given the Representatives notice of any filings made pursuant to the Exchange Act or the Exchange Act Regulations within 48 hours prior to the Applicable Time. The Company shall give the Representatives notice of its intention to make any such filing from the Applicable Time until the later of the Closing Date and the exercise in full or expiration of the Over-allotment Option specified in Section 1(b) hereof.
(iii) Exchange Act Registration. The Company shall use its commercially reasonable efforts to maintain the registration of the Ordinary Shares under the Exchange Act.
(iv) Free Writing Prospectuses. The Company agrees that, unless it obtains the prior written consent of the Representatives, it shall not make any offer relating to the Public Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus,” or a portion thereof, required to be filed by the Company with the Commission or retained by the Company under Rule 433; provided that the Representatives shall be deemed to have consented to each Issuer Free Writing Prospectus and any “road show that is a written communication” within the meaning of Rule 433(d)(8)(i) that is set forth on Schedule I. The Company represents that it has treated or agrees that it will treat each such free writing prospectus consented to, or deemed consented to, by the Underwriters as an “issuer free writing prospectus,” as defined in Rule 433, and that it has complied and will comply with the applicable requirements of Rule 433 with respect thereto, including timely filing with the Commission where required, legending and record keeping. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Underwriters and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(c) Delivery to the Underwriters of Registration Statements. The Company has delivered or made available or shall deliver or make available to the Representatives and counsel for the Representatives, without charge, signed copies of the Registration Statement as originally filed and each amendment thereto (including exhibits filed therewith) and signed copies of all consents and certificates of experts, and will also deliver to the Underwriters, without charge, a conformed copy of the Registration Statement as originally filed and each amendment thereto (without exhibits) for each of the Underwriters. The copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(d) Delivery to the Underwriters of Prospectuses. The Company has delivered or made available or will deliver or make available to each Underwriter, without charge, as many copies of each Preliminary Prospectus as such Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the Securities Act. The Company will furnish to each Underwriter, without charge, during the period when a prospectus relating to the Public Securities is (or, but for the exception afforded by Rule 172, would be) required to be delivered under the Securities Act, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(e) Events Requiring Notice to the Representatives. During the period when a prospectus relating to the Public Securities is (or, but for the exception afforded by Rule 172, would be) required by the Securities Act to be delivered in connection with sales of the Public Securities, the Company shall notify the Representatives immediately and confirm the notice in writing: (i) of the issuance by the Commission of any stop order or of the initiation, or to the Company’s knowledge, the threatening, of any proceeding for that purpose; (ii) of the issuance by any state securities commission of any proceedings for the suspension of the qualification of the Public Securities for offering or sale in any jurisdiction or of the initiation, or to the Company’s knowledge, the threatening, of any proceeding for that purpose; (iii) of the delivery to the Commission for filing of any amendment or supplement to the Prospectus; (iv) of the receipt of any comments or request for any additional information from the Commission related to the Prospectus; and (v) of the happening of any event during the period described in this Section 3(e) that, in the judgment of the Company, makes any statement of a material fact made in the Pricing Disclosure Package or the Prospectus untrue or that requires the making of any changes in in the Pricing Disclosure Package or the Prospectus in order to make the statements therein, in light of the circumstances under which they were made, not misleading. If the Commission or any state securities commission shall enter a stop order or suspend such qualification at any time, the Company shall use its commercially reasonable efforts to obtain promptly the lifting of such order.
(f) Listing. The Company shall use its commercially reasonable efforts to maintain the listing of the Ordinary Shares on the Exchange for a period of three (3) years.
(g) Transfer Agent. The Company shall maintain a transfer agent and registrar for the Ordinary Shares.
(h) Payment of Expenses.
(i) The Company hereby agrees to pay on each of the Closing Date, all expenses incident to the performance of the obligations of the Company under this Agreement, including, but not limited to: (a) all filing fees and expenses relating to the registration of the Public Securities with the Commission; (b) all FINRA Public Offering filing fees; (c) all fees and expenses relating to the listing of the Public Securities on the Nasdaq Stock Market; (d) all fees, expenses and disbursements relating to the registration or qualification of the Public Securities under the “blue sky” securities laws of such states and other jurisdictions as the Underwriter may reasonably designate (including, without limitation, all filing and registration fees, and the reasonable fees and disbursements of “blue sky” counsel); (e) all fees, expenses and disbursements relating to the registration, qualification or exemption of the Public Securities under the securities laws of such foreign jurisdictions as the Underwriter may reasonably designate; (f) the
costs of all mailing and printing of the Offering documents; (g) transfer and/or stamp taxes, if any, payable upon the transfer of Public Securities from the Company to the Underwriters; (h) the fees and expenses of the Company’s accountants; and (i) all other fees and expenses of the Underwriters, including, without limitation, the fees of Representatives’ Counsel, such fees and expenses not to exceed $182,500. The Representatives may deduct from the net proceeds of the Offering payable to the Company on the Closing Date, the expenses set forth herein (less any amounts previously advanced against such actual reimbursable expense) to be paid by the Company to the Underwriters, provided, however, that in the event that the Offering is terminated, the Company agrees to reimburse the Underwriters pursuant to Section 8(c) hereof.
(ii) Non-accountable Expenses. The Company further agrees that, in addition to the expenses payable pursuant to Section 3(h)(h), on the Closing Date it shall pay to the Representative, by deduction from the net proceeds of the Offering contemplated herein, a non-accountable expense allowance equal to 1.0% of the gross proceeds received by the Company from the sale of the Public Securities.
(i) Application of Net Proceeds. The Company shall apply the net proceeds from the Offering received by it in a manner consistent with the application thereof described under the caption “Use of Proceeds” in the Prospectus.
(j) Rule 158. The Company will timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to its security holders as soon as practicable an earnings statement for the purposes of, and to provide to the Underwriters the benefits contemplated by, Rule 158(a) under Section 11(a) of the Securities Act.
(k) Stabilization. Neither the Company nor, to its knowledge, any of its employees, directors or shareholders (without the consent of the Representatives) has taken or shall take, directly or indirectly, any action designed to or that has constituted or that might reasonably be expected to cause or result in, under Regulation M of the Exchange Act, or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Public Securities.
(l) FINRA. For a period of 90 days from the later of the Closing Date or Option Closing Date, the Company shall advise the Representatives (who shall make an appropriate filing with FINRA) if it is or becomes aware that (i) any officer or director of the Company, (ii) any beneficial owner of 10% or more of any class of the Company’s securities or (iii) any beneficial owner of the Company’s unregistered equity securities which were acquired during the 180 days immediately preceding the filing of the Registration Statement is or becomes an affiliate or associated person of a FINRA member participating in the Offering (as determined in accordance with the rules and regulations of FINRA).
(m) No Fiduciary Duties. The Company acknowledges and agrees that the Underwriters’ responsibility to the Company is solely contractual in nature and that none of the Underwriters or their affiliates or any selling agent shall be deemed to be acting in a fiduciary capacity, or otherwise owes any fiduciary duty to the Company or any of its affiliates in connection with the Offering and the other transactions contemplated by this Agreement.
(n) Reporting Requirements. The Company, during the period when a prospectus relating to the Public Securities is (or, but for the exception afforded by Rule 172, would be) required to be delivered under the Securities Act, will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act and Exchange Act Regulations.
(o) OFAC. The Company will not, directly or indirectly, use the proceeds of the Offering hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(p) Company Lock-Up Agreement. The Company, on behalf of itself and any successor entity, agrees that, without the prior written consent of the Representatives, it will not, for a period of six months after the date of this Agreement (the “Lock-Up Period”), (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of capital stock of the Company or any securities convertible into or exercisable or exchangeable for shares of capital stock of the Company; (ii) file or caused to be filed any registration statement with the Commission relating to the offering of any shares of capital stock of the Company or any securities convertible into or exercisable or exchangeable for shares of capital stock of the Company; or (iii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of capital stock of the Company, whether any such transaction described in clause (i), (ii) or (iii) above is to be settled by delivery of shares of capital stock of the Company or such other securities, in cash or otherwise. The restrictions contained in this Section 3(p) shall not apply to (i) the Ordinary Shares to be sold hereunder and the issuance of the Representatives’ Securities, (ii) the issuance by the Company of Ordinary Shares upon the exercise of a stock option or warrant or the conversion of a security outstanding on the date hereof and disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus, and (iii) the issuance by the Company, or the filing of the Company of a registration statement related thereto, of stock options or shares of capital stock of the Company under any equity compensation plan of the Company; and (iv) securities issued pursuant to acquisitions or strategic transactions approved by a majority of the disinterested directors of the Company, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the Lock-Up Period and provided that any such issuance shall only be to a Person (or to the equity holders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset of in a business synergistic with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital.
4. Conditions of Underwriters’ Obligations. The obligations of the Underwriters to purchase and pay for the Public Securities, as provided herein, shall be subject to (i) the continuing accuracy of the representations and warranties of the Company as of the date hereof and as of each of the Closing Date, and any Option Closing Date; (ii) the accuracy of the statements of officers of the Company made pursuant to the provisions hereof; (iii) the performance by the Company of its obligations hereunder; and (iv) the following conditions:
(a) Regulatory Matters.
(i) Effectiveness of Registration Statement. The Registration Statement has become effective not later than 5:00 p.m., Eastern time, on the date of this Agreement or such later date and time as shall be consented to in writing by the Representatives, and, at each of the Closing Date and any Option Closing Date, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto shall have been issued under the Securities Act, no order preventing or suspending the use of any Preliminary Prospectus or the Prospectus shall have been issued and no proceedings for any of those purposes have been instituted or are pending or, to the Company’s knowledge, contemplated by the Commission. The Company has complied with each request (if any) from the Commission for additional information. The Prospectus containing the Rule 430A Information shall have been filed with the Commission in the manner and within the time frame required by Rule 424(b) (without reliance on Rule 424(b)(8)) or a post-effective amendment providing such information shall have been filed with, and declared effective by, the Commission in accordance with the requirements of Rule 430A.
(ii) FINRA Clearance. On or before the Closing Date, the Representatives shall have received a letter of no objections from FINRA as to the amount of compensation allowable or payable to the Underwriters as described in the Registration Statement.
(iii) Exchange Stock Market Clearance. On the Closing Date, the Company shall have received notice from the Exchange that it has approved the listing of the Ordinary Shares.
(b) Company Counsel Matters.
(i) Closing Date Opinion of Counsel. On the Closing Date, the Representatives shall have received: (A) the favorable opinion and negative assurance letter of Ellenoff Grossman & Schole LLP, U.S. counsel to the Company, (B) the favorable opinion of Yuan Tai Law Offices, PRC counsel to the Company, and (C) the favorable opinion of Maples and Calder (Hong Kong) LLP, Cayman Island counsel to the Company, each dated the Closing Date and addressed to the Representatives, substantially in form and substance reasonably satisfactory to the Representatives.
(ii) Option Closing Date Opinion of Counsel. On each Option Closing Date, if any, the Representatives shall have received: (A) the favorable opinion and negative assurance letter of Ellenoff Grossman & Schole LLP, U.S. counsel to the Company, (B) the favorable opinion of Yuan Tai Law Offices, PRC counsel to the Company, and (C) the favorable opinion of Maples and Calder (Hong Kong) LLP, Cayman Island counsel to the Company, each dated the Option Closing Date, addressed to the Representatives and in form and substance reasonably satisfactory to the Representatives, confirming as of the Option Closing Date, the statements made by such counsel in its respective opinions delivered on the Closing Date.
(iii) Reliance. In rendering such opinions, such counsel may rely: (i) as to matters involving the application of laws other than the laws of the United States and jurisdictions in which they are admitted, to the extent such counsel deems proper and to the extent specified in such opinion, if at all, upon an opinion or opinions (in form and substance reasonably satisfactory to the Representatives) of other counsel reasonably acceptable to the Representatives, familiar with the applicable laws; and (ii) as to matters of fact, to the extent they deem proper, on certificates or other written statements of officers of the Company and officers of departments of various jurisdictions having custody of documents respecting the corporate existence or good standing of the Company, provided that copies of any such statements or certificates shall be delivered to Representatives’ Counsel if requested.
(c) Comfort Letters.
(i) Comfort Letter. At the time this Agreement is executed the Representatives shall have received a cold comfort letter from the Auditors containing statements and information of the type customarily included in accountants’ comfort letters with respect to the financial statements and certain financial information contained in the Registration Statement, the Pricing Prospectus and the Prospectus, addressed to the Representatives and in form and substance satisfactory in all respects to the Representatives and to the Auditor, dated as of the date of this Agreement.
(ii) Bring-down Comfort Letter. At the Closing Date and on each Option Closing Date (if any), the Representatives shall have received from the Auditors a letter, dated as of the Closing Date or Option Closing Date, as applicable, to the effect that such Auditor reaffirms the statements made in the letter furnished pursuant to Section 4(c)(i), except that with respect to the initial comfort letter the specified date referred to shall be a date not more than three (3) business days prior to the Closing Date.
(d) Officers’ Certificates.
(i) Officers’ Certificate. The Company shall have furnished to the Representatives a certificate, dated the Closing Date and any Option Closing Date, of its Chairman and Chief Executive Officer and its Chief Financial Officer stating (not in an individual capacity) that (i) such officers have carefully examined the Registration Statement, the Pricing Disclosure Package, any Issuer Free Writing Prospectus and the Prospectus and, to their knowledge, the Registration Statement and each amendment thereto, as of the Applicable Time and as of the Closing Date or Option Closing Date, as applicable, did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the Pricing Disclosure Package, as of the Applicable Time and as of the Closing Date or Option Closing Date, as applicable, any Issuer Free Writing Prospectus as of its date and as of the Closing Date or Option Closing Date, as applicable, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of the Closing Date or Option Closing Date, as applicable, did not include any untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Registration Statement, no event has occurred which should have been set forth in a supplement or amendment to the Registration Statement, the Pricing Disclosure Package or the Prospectus, (iii) to their knowledge after reasonable investigation, as of the Closing Date or Option Closing Date, as applicable, the representations and warranties of the Company in this Agreement are true and correct in all material respects (or, in the case of a relevant representation or warranty that contains a materiality concept, true in all respects) and the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date or Option Closing Date, as applicable, and (iv) there has not been, subsequent to the date of the most recent audited financial statements included in the Pricing Disclosure Package, any Material Adverse Change, or any change or development that, singularly or in the aggregate, would reasonably be expected to involve a Material Adverse Change, except as set forth in the Prospectus.
(ii) Secretary’s Certificate. At each of the Closing Date or Option Closing Date, as applicable, the Representatives shall have received a certificate of the Company signed by the Secretary of the Company, dated the Closing Date, or Option Closing Date, as applicable, certifying: (i) that the Charter is true and complete, has not been modified and is in full force and effect; (ii) that the resolutions of the Company’s Board of Directors relating to the Offering are in full force and effect and have not been modified; (iii) the good standing of the Company and its subsidiaries; and (iv) as to the incumbency of the officers of the Company. The documents referred to in such certificate shall be attached to such certificate.
(e) No Material Changes. Prior to and on each of the Closing Date or Option Closing Date, as applicable: (i) there shall have been no Material Adverse Change or any change or development that, singularly or in the aggregate, would reasonably be expected to involve a Material Adverse Change, from the latest dates as of which such condition is set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus; (ii) no action, suit or proceeding, at law or in equity, shall have been pending or threatened against the Company or any Insider before or by any court or federal or state commission, board or other administrative agency wherein an unfavorable decision, ruling or finding would reasonably be expected to result in a Material Adverse Change, except as set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus; (iii) no stop order shall have been issued under the Securities Act and no proceedings therefor shall have been initiated or threatened by the Commission; and (iv) the Registration Statement, the Pricing Disclosure Package and the Prospectus and any amendments or supplements thereto shall contain all material statements which are required to be stated therein in accordance with the Securities Act and the Securities Act Regulations and shall conform in all material respects to the requirements of the Securities Act and the Securities Act Regulations, and neither the Registration Statement, the Pricing Disclosure Package nor the Prospectus nor any amendment or supplement thereto shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(f) Lock-Up Agreements. The Company has caused each of its officers and directors to deliver to the Representatives an executed Lock-Up Agreement, in a form substantially similar to that attached hereto as Exhibit B (the “Lock-Up Agreement”), prior to the execution of this Agreement.
(g) Indemnification Escrow. On the Closing Date, the Company will execute an escrow agreement (the “Escrow Agreement”) with Continental Stock Transfer and Trust, as escrow agent, pursuant to which $300,000 of the proceeds of the Offering (including any accrued interests thereof, if any, the “Escrow Funds”) will be deposited by the Company, in connection with the payments of the Company’s indemnification obligations pursuant to Section 5 hereof. The Escrow Funds that are not subject to an indemnification claim will be returned to the Company on the 36 month anniversary of the Closing Date, in accordance with the terms of the Escrow Agreement. The Company shall pay the reasonable fees and expenses of the escrow agent.
(h) Additional Documents. At the Closing Date or Option Closing Date, as applicable, Representatives’ Counsel shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling Representatives’ Counsel to deliver an opinion to the Underwriters, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Public Securities and Representatives’ Securities as herein contemplated shall be satisfactory in form and substance to the Representatives and Representatives’ Counsel.
5. Indemnification.
(a) Indemnification of the Underwriters. The Company agrees to indemnify and hold harmless each Underwriter, its affiliates and each person controlling such Underwriter (within the meaning of Section 15 of the Securities Act), and the directors, officers, agents and employees of each Underwriter, its affiliates and each such controlling person (each Underwriter, and each such entity or person hereafter is referred to as an “Indemnified Person”) from and against any losses (other than losses of profits), claims, damages, judgments, assessments, costs and other liabilities (collectively, the “Liabilities”), and shall reimburse each Indemnified Person for all fees and
expenses (including the reasonable fees and expenses of counsel for the Indemnified Persons, except as otherwise expressly provided in this Agreement) (collectively, the “Expenses”) and agrees to advance payment of such Expenses as they are incurred by an Indemnified Person in investigating, preparing, pursuing or defending any actions, whether or not any Indemnified Person is a party thereto, arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in (i) the Registration Statement, the Pricing Disclosure Package, any Preliminary Prospectus, the Prospectus or in any Issuer Free Writing Prospectus (as from time to time each may be amended and supplemented); (ii) any materials or information provided to investors by, or with the approval of, the Company in connection with the marketing of the Offering, including any “road show” or investor presentations made to investors by the Company (whether in person or electronically); or (iii) any application or other document or written communication (in this Section 5, collectively called “application”) executed by the Company or based upon written information furnished by the Company in any jurisdiction in order to qualify the Public Securities and Representatives’ Securities under the securities laws thereof or filed with the Commission, any state securities commission or agency, the Exchange or any other national securities exchange; or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, unless such statement or omission was made in reliance upon, and in conformity with, the Underwriters’ Information.
(b) Procedure. Upon receipt by an Indemnified Person of notice of an action against such Indemnified Person with respect to which indemnity may reasonably be expected to be sought under this Agreement, such Indemnified Person shall promptly notify the Company in writing; provided that failure by any Indemnified Person so to notify the Company shall not relieve the Company from any obligation or liability which the Company may have on account of this Section 5 or otherwise to such Indemnified Person, except to the extent the Company is materially prejudiced as a proximate result of such failure. An Indemnified Person shall have the right to require the Company to assume the defense of any such action (including the employment of counsel designated by the Company and reasonably satisfactory to the Representatives). Any Indemnified Person shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless: (i) the Company has failed promptly to assume the defense and employ counsel satisfactory to the Representatives for the benefit of the Underwriters and the other Indemnified Persons or (ii) such Indemnified Person shall have been advised that in the opinion of counsel that there is an actual or potential conflict of interest that prevents (or makes it imprudent for) the counsel engaged by the Company for the purpose of representing the Indemnified Person, to represent both such Indemnified Person and any other person represented or proposed to be represented by such counsel. The Company shall not be liable for the fees and expenses of more than one separate counsel (together with local counsel), representing all Indemnified Persons who are parties to such action, which counsel (together with any local counsel) for the Indemnified Persons shall be selected by the Representatives. The Company shall not be liable for any settlement of any action effected without its written consent (which shall not be unreasonably withheld). In addition, the Company shall not, without the prior written consent of the Underwriters, settle, compromise or consent to the entry of any judgment in or otherwise seek to terminate any pending or threatened action in respect of which advancement, reimbursement, indemnification or contribution may be sought hereunder (whether or not such Indemnified Person is a party thereto) unless such settlement, compromise, consent or termination (i) includes an unconditional release of each Indemnified Person, acceptable to such Indemnified Party, from all Liabilities arising out of such action for which indemnification or contribution may be sought hereunder and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any Indemnified Person. The advancement, reimbursement, indemnification and contribution obligations of the Company required hereby shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as every Liability and Expense is incurred and is due and payable, and in such amounts as fully satisfy each and every Liability and Expense as it is incurred (and in no event later than 30 days following the date of any invoice therefore).
(c) Indemnification of the Company. Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless the Company, its directors, its officers who signed the Registration Statement and persons who control the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all Liabilities, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions made in the Registration Statement, any Preliminary Prospectus, the Pricing Disclosure Package or Prospectus or any amendment or supplement thereto, in reliance upon, and in strict conformity with, the Underwriters’ Information. In case any action shall be brought against the Company or any other person so indemnified based on any Preliminary Prospectus, the Registration Statement, the Pricing Disclosure Package or Prospectus or any amendment or supplement thereto, and in respect of which indemnity may be sought against any Underwriter, such
Underwriter shall have the rights and duties given to the Company, and the Company and each other person so indemnified shall have the rights and duties given to the several Underwriters by the provisions of Section 5(b). The Company agrees promptly to notify the Representatives of the commencement of any litigation or proceedings against the Company or any of its officers, directors or any person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, in connection with the issuance and sale of the Public Securities or in connection with the Registration Statement, the Pricing Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus; provided that failure by the Company so to notify the Representatives shall not relieve any Underwriter from any obligation or liability which such Underwriter may have on account of this Section 5 or otherwise to the Company, except to the extent such Underwriter is materially prejudiced as a proximate result of such failure.
(d) Contribution. If the indemnification provided for in this Section 5 shall for any reason be unavailable to or insufficient to hold harmless an indemnified party under Section 5(a) or 5(c) in respect of any Liabilities and Expenses referred to therein, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such Liabilities and Expenses, (i) in such proportion as shall be appropriate to reflect the relative benefits received by the Company, on the one hand, and each of the Underwriters, on the other hand, from the Offering, or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, on the one hand, and the Underwriters, on the other hand, in connection with the matters as to which such Liabilities or Expenses relate, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and the Underwriters, on the other hand, with respect to such Offering shall be deemed to be in the same proportion as the total proceeds from the Offering purchased under this Agreement (before deducting expenses) received by the Company bear to the total underwriting discount and commissions actually received by the Underwriters in connection with the Offering, in each case as set forth in the table on the cover page of the Prospectus. The relative fault of the Company, on the one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company, on the one hand, or the Underwriters, on the other hand, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement, omission, act or failure to act; provided that the parties hereto agree that the written information furnished to the Company through the Representatives by or on behalf of any Underwriter for use in any Preliminary Prospectus, the Registration Statement, the Pricing Disclosure Package or the Prospectus, or in any amendment or supplement thereto, consists solely of the Underwriters’ Information. The Company and the Underwriters agree that it would not be just and equitable if contributions pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take into account the equitable considerations referred to above in this subsection (d). Notwithstanding the above, no person guilty of fraudulent misrepresentation within the meaning of Section 11(f) of the Securities Act shall be entitled to contribution from a party who was not guilty of fraudulent misrepresentation.
(e) Limitation. The Company also agrees that no Indemnified Person shall have any liability (whether direct or indirect, in contract or tort or otherwise) to the Company for or in connection with advice or services rendered or to be rendered by any Indemnified Person pursuant to this Agreement, the transactions contemplated thereby or any Indemnified Person’s actions or inactions in connection with any such advice, services or transactions, except to the extent that a court of competent jurisdiction has made a finding that Liabilities (and related Expenses) of the Company have resulted primarily from such Indemnified Person’s gross negligence or willful misconduct in connection with any such advice, actions, inactions or services.
(f) Survival. The advancement, reimbursement, indemnity and contribution obligations set forth in this Section 5 shall remain in full force and effect regardless of any termination of, or the completion of any Indemnified Person’s services under or in connection with, this Agreement. Each Indemnified Person is an intended third-party beneficiary of this Section 5, and has the right to enforce the provisions of Section 5 as if he/she/it was a party to this Agreement.
6. Default by an Underwriter.
(a) Default Not Exceeding 10% of Shares. If any Underwriter or Underwriters shall default in its or their obligations to purchase the Shares, and if the number of the Shares with respect to which such default relates does not exceed in the aggregate 10% of the number of Shares that all Underwriters have agreed to purchase hereunder, then such Shares to which the default relates shall be purchased by the non-defaulting Underwriters in proportion to their respective commitments hereunder.
(b) Default Exceeding 10% of Shares. In the event that the default addressed in Section 6(a) relates to more than 10% of the Shares, the Representatives may in their discretion arrange for itself or for another party or parties to purchase such Shares to which such default relates on the terms contained herein. If, within one (1) Business Day after such default relating to more than 10% of the Shares, the Representatives do not arrange for the purchase of such Shares, then the Company shall be entitled to a further period of one (1) Business Day within which to procure another party or parties satisfactory to the Representatives to purchase said Shares on such terms. In the event that neither the Representatives nor the Company arrange for the purchase of the Shares to which a default relates as provided in this Section 6, this Agreement will automatically be terminated by the Representatives or the Company without liability on the part of the Company (except as provided in Sections 3(f) and 5 hereof) or the several Underwriters (except as provided in Section 5 hereof); provided that if any such default occurs with respect to any Option Shares, this Agreement will not terminate in respect of the Firm Shares; and provided, further, that nothing herein shall relieve a defaulting Underwriter of its liability, if any, to the other Underwriters and to the Company for damages occasioned by its default hereunder.
(c) Postponement of Closing Date. In the event that the Shares to which the default relates are to be purchased by the non-defaulting Underwriters, or are to be purchased by another party or parties as aforesaid, the Representatives or the Company shall have the right to postpone the Closing Date for a reasonable period, but not in any event exceeding five (5) Business Days, in order to effect whatever changes may thereby be made necessary in the Registration Statement, the Pricing Disclosure Package or the Prospectus or in any other documents and arrangements, and the Company agrees to file promptly any amendment to the Registration Statement, the Pricing Disclosure Package or the Prospectus that in the opinion of counsel for the Underwriter may thereby be made necessary. The term “Underwriter” as used in this Agreement shall include any party substituted under this Section 6 with like effect as if it had originally been a party to this Agreement with respect to such Securities.
7. Additional Covenants.
(a) Prohibition on Press Releases and Public Announcements. The Company shall not issue press releases or engage in any other publicity, without the Representatives’ prior written consent, for a period ending at 5:00 p.m., Eastern time, on the first (1st) Business Day following the 30th day after the Closing Date, other than normal and customary releases issued in the ordinary course of the Company’s business.
(b) Right of First Refusal. During the period ending 12 months after the Closing Date, if and only if the closing of the purchase of the Firm Shares hereunder actually occurs, the Company grants the Representatives the right of first refusal to act as lead or joint investment bankers, lead or joint book runners, lead or joint placement agents, and/or investment banker/advisor, for each and every future public and private equity and debt offering, including all equity linked financings, and for each proposed or contemplated merger or acquisition transaction whereby the Company will be merged into or acquired by another company or entity, for the Company, or any successor to or any subsidiary of the Company during such period, on customary terms. The Representatives shall have the sole right to determine whether or not any other broker dealer shall have the right to participate in any such offering and the economic terms of any such participation.
8. Effective Date of this Agreement and Termination Thereof.
(a) Effective Date. This Agreement shall become effective when both the Company and the Representatives have executed the same and delivered counterparts of such signatures to the other party.
(b) Termination. The Representatives shall have the right to terminate this Agreement at any time prior to any Closing Date, (i) if any domestic or international event or act or occurrence has materially disrupted, or in Representatives’ opinion will in the immediate future materially disrupt, general securities markets in the United States; or (ii) if trading on the New York Stock Exchange or the Nasdaq Stock Market LLC shall have been suspended or materially limited, or minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices
for securities shall have been required by FINRA or by order of the Commission or any other government authority having jurisdiction; or (iii) if the United States shall have become involved in a new war or an increase in major hostilities; or (iv) if a banking moratorium has been declared by a New York State or federal authority; or (v) if a moratorium on foreign exchange trading has been declared which materially adversely impacts the United States securities markets; or (vi) if the Company shall have sustained a material loss by fire, flood, accident, hurricane, earthquake, theft, sabotage or other calamity or malicious act which, whether or not such loss shall have been insured, will, in the Representatives’ opinion, make it inadvisable to proceed with the delivery of the Shares; or (vii) if the Company is in material breach of its representations, warranties or covenants hereunder; or (viii) in the event the Exchange refuses to initiate trading or ceases trading of the Ordinary Shares in advance of settlement, the Representatives shall have the right to terminate the Offering and return all funds invested in the Offering to the investors; or (ix) if the Representatives shall have become aware after the date hereof of such a Material Adverse Change in the conditions or prospects of the Company, or such adverse material change in general market conditions, in each case, as in the Representatives’ judgment would make it impracticable to proceed with the offering, sale and/or delivery of the Public Securities or to enforce contracts made by the Underwriters for the sale of the Public Securities. Section 5 of this Agreement shall survive any termination of this Agreement.
(c) Expenses. Notwithstanding anything to the contrary in this Agreement, except in the case of a default by the Underwriters pursuant to Section 6(b) above, in the event that this Agreement shall not be carried out for any reason whatsoever, within the time specified herein or any extensions thereof pursuant to the terms herein, the Company shall be obligated to pay to the Underwriters their actual and accountable out-of-pocket expenses related to the transactions contemplated herein then due and payable and upon demand the Company shall pay the full amount thereof to the Representatives on behalf of the Underwriters, up to the amounts set forth in Section 3(h)(h); and provided, however, that such expense cap in no way limits or impairs the indemnification and contribution provisions of this Agreement.
(d) Indemnification. Notwithstanding any contrary provision contained in this Agreement, any election hereunder or any termination of this Agreement, and whether or not this Agreement is otherwise carried out, the provisions of Section 5 shall remain in full force and effect and shall not be in any way affected by, such election or termination or failure to carry out the terms of this Agreement or any part hereof.
(e) Representations, Warranties, Agreements to Survive. All representations, warranties and agreements contained in this Agreement or in certificates of officers of the Company submitted pursuant hereto, shall remain operative and in full force and effect regardless of (i) any investigation made by or on behalf of any Underwriter or its affiliates or selling agents, any person controlling any Underwriter, its officers or directors or any person controlling the Company or (ii) delivery of and payment for the Public Securities.
9. Miscellaneous.
(a) Notices. All communications hereunder, except as herein otherwise specifically provided, shall be in writing and shall be mailed (registered or certified mail, return receipt requested), or personally delivered and shall be deemed given when so delivered or if mailed, three (3) days after such mailing.
If to the Representatives:
The Benchmark Company, LLC
150 East 58th St, 17th Floor
New York, NY 10155
Attention: Richard Messina, President
Axiom Capital Management, Inc.
350 Fifth Avenue, Suite 6740
New York, NY 10118
Attention: Eric Miller, Chief Compliance Officer
If to the Company:
WF International Limited
No. 1110, 11th Floor, Unit 1, Building 7, No. 477, Wanxing Road
Chengdu, Sichuan, China, 610041
Attention: Chief Executive Officer
(b) Headings. The headings contained herein are for the sole purpose of convenience of reference, and shall not in any way limit or affect the meaning or interpretation of any of the terms or provisions of this Agreement.
(c) Amendment. This Agreement may only be amended by a written instrument executed by each of the parties hereto.
(d) Entire Agreement. This Agreement (together with the other agreements and documents being delivered pursuant to or in connection with this Agreement) constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and thereof, and supersedes all prior agreements and understandings of the parties, oral and written, with respect to the subject matter hereof.
(e) Binding Effect. This Agreement shall inure solely to the benefit of and shall be binding upon the Representatives, the Underwriters, each Indemnified Person referred to in Section 5, the Company and the controlling persons, directors and officers referred to in Section 5 hereof, and their respective successors, legal representatives, heirs and assigns, and no other person shall have or be construed to have any legal or equitable right, remedy or claim under or in respect of or by virtue of this Agreement or any provisions herein contained. The term “successors and assigns” shall not include a purchaser, in its capacity as such, of securities from any of the Underwriters.
(f) Governing Law; Consent to Jurisdiction; Trial by Jury. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving effect to conflict of laws principles thereof. The Company hereby agrees that any action, proceeding or claim against it arising out of, or relating in any way to this Agreement (each, a “Related Proceeding”) shall be brought and enforced in the state and federal courts sitting in New York, New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum. To the extent that the Company has or hereafter may acquire any immunity (on the grounds of sovereignty or otherwise) from the jurisdiction of any court or from any legal process with respect to itself or its property, the Company irrevocably waives, to the fullest extent permitted by law, such immunity in respect of any such suit, action or proceeding. The Company hereby irrevocably appoints Puglisi & Associates, with offices at 850 Library Avenue, Suite 204, Newark, DE 19711, as its agent for service of process in any Related Proceeding and agrees that service of process in any such Related Proceeding may be made upon it at the office of such agent. The Company and the Underwriters agree that the prevailing party(ies) in any such action shall be entitled to recover from the other party(ies) all its reasonable attorneys’ fees and expenses relating to such action or proceeding and/or incurred in connection with the preparation therefor as determined in a final judgment by a court of competent jurisdiction. The Company and the Underwriters hereby irrevocably waive, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
(g) Execution in Counterparts. This Agreement may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement, and shall become effective when one or more counterparts has been signed by each of the parties hereto and delivered to each of the other parties hereto. Delivery of a signed counterpart of this Agreement by email/pdf transmission shall constitute valid and sufficient delivery thereof.
(h) Waiver, etc. The failure of any of the parties hereto to at any time enforce any of the provisions of this Agreement shall not be deemed or construed to be a waiver of any such provision, nor to in any way effect the validity of this Agreement or any provision hereof or the right of any of the parties hereto to thereafter enforce each and every provision of this Agreement. No waiver of any breach, non-compliance or non-fulfillment of any of the provisions of this Agreement shall be effective unless set forth in a written instrument executed by the party or parties against whom or which enforcement of such waiver is sought; and no waiver of any such breach, non-compliance or non-fulfillment shall be construed or deemed to be a waiver of any other or subsequent breach, non-compliance or non-fulfillment.
[Signature Page Follows]
[Signature Page]
WF InternationalLimited – Underwriting Agreement
If the foregoing correctly sets forth the understanding between the Underwriters and the Company, please so indicate in the space.
| Very truly yours, | |
|---|---|
| WF INTERNATIONAL LIMITED | |
| By: | /s/ Ke Chen |
| Name: Ke Chen | |
| Title: Chief Executive Officer |
Confirmed as of the date first written above
mentioned, on behalf of itself and as
Representatives of the several Underwriters
named on Schedule 1 hereto:
| The Benchmark Company, LLC | |
|---|---|
| By: | /s/ John J. Borer III |
| Name: John J. Borer III | |
| Title: Senior Managing Director | |
| On behalf of each of the Underwriters | |
| Axiom Capital Management, Inc. | |
| --- | --- |
| By: | /s/ Liam F. Dalton |
| Name: Liam F. Dalton | |
| Title: CEO | |
| On behalf of each of the Underwriters |
SCHEDULE 1
| Underwriter | Total Number of Firm Shares to be Purchased | Total Number of Option Shares to be Purchased | ||
|---|---|---|---|---|
| The Benchmark Company, LLC | 700,000 | 105,000 | ||
| Axiom Capital Management, Inc. | 700,000 | 105,000 | ||
| Total: | 1,400,000 | 210,000 |
SCHEDULE 2
Pricing Information
Number of Firm Shares: 1,400,000
Number of Option Shares: 210,000
Public Offering Price Share: $4.00
Underwriting Discount per Share: $0.28 (7% per Share)
Non-Accountable Expense Allowance per Share: $0.04 (1% per Share)
SCHEDULE I
Issuer Use Free Writing Prospectuses
None.
EXHIBIT A
Form of Representatives’ Warrant
THE REGISTERED HOLDER OF THIS PURCHASE WARRANT BY ITS ACCEPTANCE HEREOF AGREES THAT IT WILL NOT (A) SELL, TRANSFER, ASSIGN, PLEDGE OR HYPOTHECATE THIS PURCHASE WARRANT FOR A PERIOD OF ONE HUNDRED EIGHTY DAYS FOLLOWING [●], 2023, WHICH IS THE COMMENCEMENT DATE OF SALES IN THE COMPANY’S INITIAL PUBLIC OFFERING, TO ANYONE OTHER THAN (I) THE BENCHMARK COMPANY LLC, AXIOM CAPITAL MANAGEMENT, INC. OR AN UNDERWRITER OR SELECTED DEALER IN CONNECTION WITH THE OFFERING FOR WHICH THIS PURCHASE WARRANT WAS ISSUED TO THE UNDERWRITER AS CONSIDERATION IN EACH CASE IN ACCORDANCE WITH FINRA CONDUCT RULE 5110(E)(1), OR (II) THE OFFICERS OR PARTNERS, REGISTERED PERSONS OR AFFILIATES OF THE BENCHMARK COMPANY LLC, AXIOM CAPITAL MANAGEMENT, INC. OR OF ANY SUCH UNDERWRITER OR SELECTED DEALER, IN EACH CASE IN ACCORDANCE WITH FINRA CONDUCT RULE 5110(E)(1); OR (B) CAUSE THIS PURCHASE WARRANT OR THE SECURITIES ISSUABLE HEREUNDER TO BE THE SUBJECT OF ANY HEDGING, SHORT SALE, DERIVATIVE, PUT OR CALL TRANSACTION THAT WOULD RESULT IN THE EFFECTIVE ECONOMIC DISPOSITION OF THIS PURCHASE WARRANT OR THE SECURITIES HEREUNDER FOR A PERIOD OF ONE HUNDRED EIGHTY DAYS FOLLOWING [●], 2023, WHICH IS THE COMMENCEMENT DATE OF SALES IN THE COMPANY’S INITIAL PUBLIC OFFERING, EXCEPT AS PROVIDED FOR IN FINRA RULE 5110(E)(2).
ORDINARY SHARES PURCHASE WARRANT
WF International Limited
| Warrant Shares: [●] | Initial Exercise Date: [●], 2023 |
|---|---|
| Issue Date: [●], 2023 |
THIS ORDINARY SHARES PURCHASE WARRANT (the “Warrant”) certifies that, for value received, [●] or its assignees assigns (the “Holder”) are entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after [●], 2023 (the “Initial Exercise Date”) and on or prior to 5:00 p.m. (New York City time) on [●], 2028 (the “Termination Date”) but not thereafter, to subscribe for and purchase from WF International Limited, a Cayman Islands exempted company with limited liability (the “Company”), up to [●] Ordinary Shares (as defined below)(as subject to adjustment hereunder, the “Warrant Shares”). The purchase price of one Ordinary Share under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
Section 1. Definitions. In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated in this Section 1:
“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Bid Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Ordinary Share is then listed or quoted on a Trading Market, the bid price of the Ordinary Share for the time in question (or the nearest preceding date) on the Trading Market on which the Ordinary Share is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if the OTCQB Venture Market (the “OTCQB”) or the OTCQX Best Market (the “OTCQX”) is not a Trading Market, the volume weighted average price of the Ordinary Share for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable,
(c) if the Ordinary Share is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Ordinary Share are then reported on the Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per Ordinary Share so reported, or (d) in all other cases, the fair market value of one Ordinary Share as determined by an independent appraiser selected in good faith by the Holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
“Board ofDirectors” means the board of directors of the Company.
“BusinessDay” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York generally are open for use by customers on such day.
“Commission” means the United States Securities and Exchange Commission.
“ExchangeAct” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“OrdinaryShare” means the ordinary shares of the Company, $0.000001 par value, and any other class of securities into which such securities may hereafter be reclassified or changed.
“OrdinaryShare Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Ordinary Shares, including, without limitation, any debt, preferred share, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Ordinary Shares.
“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“RegistrationStatement” means the Company’s registration statement on Form F-1 (File No. 333-[●]), as amended.
“SecuritiesAct” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Subsidiary” means any subsidiary of the Company and shall, where applicable, also include any direct or indirect subsidiary of the Company formed or acquired after the date hereof.
“Trading Day” means a day on which the Ordinary Share is traded on a Trading Market.
“Trading Market” means any of the following markets or exchanges on which the Ordinary Share is listed or quoted for trading on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange, OTCQB or OTCQX (or any successors to any of the foregoing).
“TransferAgent” means [●], located at [●], and any successor transfer agent of the Company.
“UnderwritingAgreement” means the underwriting agreement, dated as of [●], 2023 among the Company, The Benchmark Company, LLC and Axiom Capital Management, Inc. as the representatives of the underwriters named therein, as amended, modified or supplemented from time to time in accordance with its terms.
“VWAP” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Ordinary Share is then listed or quoted on a Trading Market, the daily volume weighted average price of the Ordinary Share for such date (or the nearest preceding date) on the Trading Market on which the Ordinary Share is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the Ordinary Share for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Ordinary Share is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Ordinary Share is then reported on the Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per Ordinary Share so reported, or (d) in all other cases, the fair market value of an Ordinary Share as determined by an independent appraiser selected in good faith by the holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
“Warrants” means this Warrant and any new Warrant or Warrants to be issued upon division, combination or partial exercise of this Warrant.
Section 2. Exercise.
a) Exercise of Warrant. Subject to the provisions of Section 2(e) herein, exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on or after the Initial Exercise Date and on or before the Termination Date, by delivery to the Company of a duly executed PDF copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto as Annex A (the “Notice of Exercise”), provided, however, that a Notice of Exercise shall only be deemed to have been delivered to the Company upon the delivery of the aggregate Exercise Price of the Warrant Shares specified in the applicable Notice of Exercise as specified in this Section 2(a). Within the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined in Section 2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the Warrant Shares specified in the applicable Notice of Exercise by wire transfer of immediately available funds or cashier’s check drawn on a United States bank unless the cashless exercise procedure specified in Section 2(c) below is specified in the applicable Notice of Exercise. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise be required. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading Days of the date on which the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise within one (1) Trading Day of receipt of such notice. Notwithstanding the foregoing, with respect to any Notice(s) of Exercise delivered on or prior to 4:00 p.m. (New York City time) on the Trading Date prior to the Initial Exercise Date, which may be delivered at any time after the time of execution of the Underwriting Agreement, the Company agrees to deliver the Warrant Shares subject to such notice(s) by 4:00 p.m. (New York City time) on the Initial Exercise Date and the Initial Exercise Date shall be the Warrant Share Delivery Date for purposes hereunder, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received by such Warrant Share Delivery Date. The Holder and any assignee, by acceptance of thisWarrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the WarrantShares hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated onthe face hereof.
b) Exercise Price. The exercise price per Ordinary Share under this Warrant shall be $[●], subject to adjustment hereunder (the “ExercisePrice”).
c) Cashless Exercise. This Warrant may be exercised, in whole or in part, at such time by means of a “cashless exercise” in which the Holder shall be entitled to receive a number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
| (A) = | as applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of Exercise is (1) both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b)(68) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) at the option of the Holder, either (y) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise or (z) the Bid Price of the Ordinary Share on the principal Trading Market as reported by Bloomberg L.P. as of the time of the Holder’s execution of the applicable Notice of Exercise if such Notice of Exercise is executed during “regular trading hours” on a Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close of “regular trading hours” on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP on the date of the applicable Notice of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered pursuant to Section 2(a) hereof after the close of “regular trading hours” on such Trading Day; |
|---|---|
| (B) = | the Exercise Price of this Warrant, as adjusted hereunder; and |
| (X) = | the number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a cash exercise rather than a cashless exercise. |
If Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the Securities Act, the Warrant Shares shall take on the registered characteristics of the Warrants being exercised. The Company agrees not to take any position contrary to this Section 2(c).
Notwithstanding anything herein to the contrary, on the Termination Date, this Warrant shall be automatically exercised via cashless exercise pursuant to this Section 2(c).
d) Mechanics of Exercise.
i. Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such system and there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant Shares by Holder or (B) this Warrant is being exercised via cashless exercise, and otherwise by physic al delivery of a certificate, registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by the date that is the earliest of (i) three (3) Trading Days after the delivery to the Company of the Notice of Exercise, (ii) two (2) Trading Days after delivery of the aggregate Exercise Price to the Company and (iii) the number of Trading Days comprising the Standard Settlement Period after the delivery to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery Date”). Upon delivery of the Notice of Exercise with payment to the Company of the Exercise Price (or by cashless exercise) the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares. If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery Date, the Company shall pay to the Holder,
in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of the Ordinary Share on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the fifth Trading Day after such liquidated damages begin to accrue) for each Trading Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain a transfer agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Ordinary Share as in effect on the date of delivery of the Notice of Exercise.
ii. Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant.
iii. Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(d)(i) by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv. Compensation for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions of Section 2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, Ordinary Share to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s total purchase price (including brokerage commissions, if any) for the Ordinary Share so purchased exceeds (y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B) at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of Ordinary Shares that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases Ordinary Shares having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of Ordinary Shares with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver Ordinary Shares upon exercise of the Warrant as required pursuant to the terms hereof.
v. No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Exercise Price or round up to the next whole share.
vi. Charges, Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company, and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided, however, that, in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto as Annex B duly executed by the Holder and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
vii. Closing of Books. The Company will not close its shareholder books or records in any manner which prevents the timely exercise of this Warrant, pursuant to the terms hereof.
e) Holder’s Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of Ordinary Shares beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of Ordinary Shares issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of Ordinary Shares which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or nonconverted portion of any other securities of the Company (including, without limitation, any other Ordinary Share Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 2(e), in determining the number of outstanding Ordinary Shares, a Holder may rely on the number of outstanding Ordinary Shares as reflected in (A) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company or the Transfer
Agent setting forth the number of Ordinary Shares outstanding. Upon the written or oral request of a Holder, the Company shall within one Trading Day confirm orally and in writing to the Holder the number of Ordinary Shares then outstanding. In any case, the number of outstanding Ordinary Shares shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties since the date as of which such number of outstanding Ordinary Shares was reported. The “BeneficialOwnership Limitation” shall be 4.99% of the number of Ordinary Shares outstanding immediately after giving effect to the issuance of Ordinary Shares issuable upon exercise of this Warrant. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2(e), provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of Ordinary Shares outstanding immediately after giving effect to the issuance of Ordinary Shares upon exercise of this Warrant held by the Holder and the provisions of this Section 2(e) shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61^st^ day after such notice is delivered to the Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 2(e) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant.
Section 3. Certain Adjustments.
a) Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise makes a distribution or distributions on Ordinary Shares or any other equity or equity equivalent securities payable in Ordinary Shares (which, for avoidance of doubt, shall not include any Ordinary Share issued by the Company upon exercise of this Warrant), (ii) subdivides outstanding Ordinary Shares into a larger number of shares, (iii) combines (including by way of reverse stock split) outstanding Ordinary Shares into a smaller number of shares, or (iv) issues by reclassification of Ordinary Shares any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which the numerator shall be the number of Ordinary Shares (excluding treasury shares, if any) outstanding immediately before such event and of which the denominator shall be the number of Ordinary Shares outstanding immediately after such event, and the number of shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for the determination of shareholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.
b) Reserved.
c) Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants, issues or sells any Ordinary Share Equivalents or rights to purchase stock, warrants, securities or other property pro rata to all (or substantially all) of the record holders of any class of Ordinary Shares (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of Ordinary Shares acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of Ordinary Shares are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that, to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such Ordinary Shares as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
d) Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to all (or substantially all) of holders of Ordinary Shares, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”), at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder had held the number of Ordinary Shares acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of Ordinary Shares are to be determined for the participation in such Distribution (provided, however, that, to the extent that the Holder’s right to participate in any such Distribution would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership of any Ordinary Shares as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
e) Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Ordinary Shares are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Ordinary Shares, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares (not including any Ordinary Shares held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “FundamentalTransaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of Ordinary Shares of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “SuccessorEntity”) to assume in writing all of the obligations of the Company under this Warrant in accordance with the provisions of this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor
Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein.
f) Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes of this Section 3, the number of Ordinary Shares deemed to be issued and outstanding as of a given date shall be the sum of the number of Ordinary Shares (excluding treasury shares, if any) issued and outstanding.
g) Notice to Holder.
i. Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii. Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Ordinary Shares, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Ordinary Shares, (C) the Company shall authorize the granting to all holders of the Ordinary Share rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights, (D) the approval of any shareholders of the Company shall be required in connection with any reclassification of the Ordinary Shares, any consolidation or merger to which the Company (or any of its Subsidiaries) is a party, any sale or transfer of all or substantially all of its assets, or any compulsory share exchange whereby the Ordinary Shares are converted into other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by email to the Holder at its last email address as it shall appear upon the Warrant Register of the Company, at least 20 calendar days prior to the applicable record or effective date hereinafter specified, a notice (unless such information is filed with the Commission, in which case a notice shall not be required) stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Ordinary Shares of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Ordinary Shares of record shall be entitled to exchange their Ordinary Shares for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent that any notice provided in this Warrant constitutes, or contains, material, non-public information regarding the Company or any of the Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Report on Form 8-K. The Holder shall remain entitled to exercise this Warrant during the period commencing on the date of such notice to the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
h) Voluntary Adjustment By Company. Subject to the rules and regulations of the Trading Market, the Company may at any time during the term of this Warrant, subject to the prior written consent of the Holder, reduce the then current Exercise Price to any amount and for any period of time deemed appropriate by the board of directors of the Company.
Section 4. Transfer of Warrant.
a) Transferability. The Holder of this Warrant agrees by its acceptance hereof, that such Holder will not: (a) sell, transfer, assign, pledge or hypothecate this Warrant for a period of one hundred eighty (180) days following [●], 2023 (the “Commencement Date”) to anyone other than: (i) The Benchmark Company, LLC (“Benchmark”), Axiom Capital Management, Inc. (“Axiom”) or a FINRA member participating in the Company’s initial public offering, or (ii) an officer, partner, registered person or affiliate of Benchmark, Axiom or of any such FINRA member, in each case in accordance with FINRA Rule 5110(e)(1), or (b) cause this Warrant or the securities issuable hereunder to be the subject of any hedging, short sale, derivative, put or call transaction that would result in the effective economic disposition of this Warrant or the securities hereunder for a period of one hundred eighty (180) days following the Commencement Date, except as provided for in FINRA Rule 5110(e)(2). After 180 days after the Commencement Date, transfers to others may be made subject to compliance with or exemptions from applicable securities laws. Subject to the foregoing, this Warrant and all rights hereunder are transferable, in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written assignment of this Warrant substantially in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the Company assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant Shares without having a new Warrant issued.
b) New Warrants. If this Warrant is not held in global form through DTC (or any successor depositary), this Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the initial issuance date of this Warrant and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
Section 5. Reserved
Section 6. Miscellaneous.
a) No Rights as Shareholders until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights, dividends or other rights as a shareholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly set forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant to Section 2(c) or to receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv) herein, including if the Company is for any reason unable to issue and deliver Warrant Shares upon exercise of this Warrant as required pursuant to the terms hereof, in no event shall the Company be required to net cash settle an exercise of this Warrant or cash settle in any other form.
b) Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any share certificate relating to the Warrant Shares, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or share certificate, if mutilated, the Company will make and deliver a new Warrant or share certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or share certificate.
c) Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business Day.
d) Authorized Shares.
The Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Ordinary Shares a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant. The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of the Trading Market upon which the Ordinary Shares may be listed. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue).
Except and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its amended and restated memorandum and articles of association or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may be, necessary to enable the Company to perform its obligations under this Warrant.
Before taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory body or bodies having jurisdiction thereof.
e) Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Warrant (whether brought against a party hereto or their respective affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Warrant and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If either party shall commence an action, suit or proceeding to enforce any provisions of this Warrant, the prevailing party in such action, suit or proceeding shall be reimbursed by the other party for their reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding. Notwithstanding the foregoing, nothing in this paragraph shall limit or restrict the federal district court in which a Holder may bring a claim under the federal securities laws.
f) Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
g) Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. No provision of this Warrant shall be construed as a waiver by the Holder of any rights which the Holder may have under the federal securities laws and the rules and regulations of the Commission thereunder. Without limiting any other provision of this Warrant, if the Company willfully and knowingly fails to comply with any provision of this Warrant, which results in any material damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including, but not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
h) Notices. Any and all notices or other communications or deliveries to be provided by the Holders hereunder including, without limitation, any Notice of Exercise, shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier service, addressed to the Company, at [●], Atten: [●], email: [●], or such other email address or address as the Company may specify for such purposes by notice to the Holders, with a copy to Ellenoff Grossman & Schole LLP, 1345 Avenue of the Americas, Attn: Richard I. Anslow, Esq., Email: ranslow@egsllp.com. Any and all notices or other communications or deliveries to be provided by the Company hereunder shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier service addressed to each Holder at the e-mail address or address of such Holder appearing on the books of the Company, with a copy to ArentFox Schiff, LLP, 1717 K Street, NW, Washington, DC 20006, Attn: Ralph De Martino, Esq., Email: ralph.demartino@afslaw.com. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the time of transmission, if such notice or communication is delivered via e-mail at the e-mail address set forth in this Section prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the time of transmission, if such notice or communication is delivered via e-mail at the e-mail address set forth in this Section on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given. To the extent that any notice provided hereunder constitutes, or contains, material, non-public information regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Report on Form 6-K.
i) Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase price of any Ordinary Shares or as a shareholder of the Company, whether such liability is asserted by the Company or by creditors of the Company.
j) Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any action for specific performance that a remedy at law would be adequate.
k) Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable by the Holder or holder of Warrant Shares.
l) Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company, on the one hand, and the Holder, on the other hand.
m) Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
n) Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.
********************
(Signature Page Follows)
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the [●] day of [●], 2023.
| WF International Limited |
|---|
| By: |
| Name: |
| Title: |
ANNEX A
NOTICE OF EXERCISE
| TO: | WF International Limited (the “Company”) |
|---|
(1) The undersigned hereby elects to purchase Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised in full), and tenders herewith payment of the Exercise Price in full, together with all applicable transfer taxes, if any.
(2) Payment shall take the form of (check applicable box):
☐ in lawful money of the United States; or
☐ the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection 2(c), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure set forth in subsection 2(c).
(3) Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
_________________________________
The Warrant Shares shall be delivered to the following DWAC Account Number:
_________________________________
_________________________________
_________________________________
[SIGNATURE OF HOLDER]
Name of Investing Entity:
Signature of Authorized Signatory of Investing Entity:
Name of Authorized Signatory:
Title of Authorized Signatory:
Date:
ANNEX B
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this formand supply required information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to:
| Name: | |
|---|---|
| (Please Print) | |
| Address: | |
| (Please Print) | |
| Phone Number: | |
| Email Address: | |
| Dated: ______, _____ | |
| Holder’s Signature: | |
| --- | |
| Holder’s Address: | |
| (Signature Guaranteed): | Date: _____, ______ |
| --- | --- |
Signature to be guaranteed by an authorized officer of a chartered bank,trust company or medallion guaranteed by an investment dealer who is a member of a recognized stock exchange.
EXHIBIT B
Form of Lock-Up Agreement
______, 2023
The Benchmark Company, LLC
150 East 58^th^ Street, 17^th^ Floor
New York, New York 10155
Axiom Capital Management, Inc.
350 Fifth Avenue, Suite 6740
New York, NY 10118
As Representatives of the several Underwriters
Ladies and Gentlemen:
The undersigned, a holder of ordinary shares, par value $0.000001 (“Shares”) of WF International Limited (the “Company”) understands that you, as Representatives of the several Underwriters, propose to enter into an Underwriting Agreement (the “UnderwritingAgreement”) with the Company, providing for the public offering (the “Public Offering”) by the several Underwriters named a schedule to the Underwriting Agreement (the “Underwriters”), of Shares of the Company (the “Securities”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement.
In consideration of the Underwriters’ agreement to enter into the Underwriting Agreement and to proceed with the Public Offering of the Securities, and for other good and valuable consideration receipt of which is hereby acknowledged, the undersigned hereby agrees for the benefit of the Company, you and the other Underwriters that, without the prior written consent of the Representatives on behalf of the Underwriters, the undersigned will not, during the period commencing on the date hereof and ending six months after the date of the final prospectus (the “Prospectus”) relating to the Public Offering (the “Lock-Up Period”), (1) offer, pledge, sell, contract to sell, grant, lend, or otherwise transfer or dispose of, directly or indirectly, any Shares, any securities convertible into or exercisable or exchangeable for Shares, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”); (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Lock-Up Securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Lock-Up Securities, in cash or otherwise; (3) make any demand for or exercise any right with respect to the registration of any Lock-Up Securities; or (4) publicly disclose the intention to make any offer, sale, pledge or disposition, or to enter into any transaction, swap, hedge or other arrangement relating to any Lock-Up Securities.
Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer Lock-Up Securities without the prior written consent of the Representatives in connection with (a) transactions relating to Lock-Up Securities acquired in open market transactions after the completion of the Public Offering; (b) transfers of Lock-Up Securities as a bona fide gift, by will or intestacy or to a family member or trust for the benefit of a family member (for purposes of this lock-up agreement, “family member” means any relationship by blood, marriage or adoption, not more remote than first cousin); (c) transfers of Lock-Up Securities to a charity or educational institution; or (d) if the undersigned, directly or indirectly, controls a corporation, partnership, limited liability company or other business entity, any transfers of Lock-Up Securities to any shareholder, partner or member of, or owner of similar equity interests in, the undersigned, as the case may be; (e) a sale or surrender to the Company of any options or Shares of the Company underlying options in order to pay the exercise price or taxes associated with the exercise of options; or (f) transfers or distributions pursuant to any bona fide third-party tender offer, merger, consolidation or other similar transaction made to all holders of the Company’s Shares involving a Change of Control of the Company,
provided that in the event that such tender offer, merger, consolidation or other such transaction is not completed, the Lock-Up Securities held by the undersigned shall remain subject to the provisions of this lock-up agreement; provided that in the case of any transfer pursuant to the foregoing clauses (b), (c) or (d), (i) any such transfer shall not involve a disposition for value, (ii) each transferee shall sign and deliver to the Representatives a lock-up agreement substantially in the form of this lock-up agreement and (iii) no filing under Section 16(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) shall be required or shall be voluntarily made. For purposes of this paragraph, the term “Change of Control” shall mean any transaction or series of related transactions pursuant to which any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) becomes the “beneficial owner” (as such term is defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the total voting power of the Shares of the Company on a fully diluted basis. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s Lock-Up Securities except in compliance with this lock-up agreement.
Any release or waiver granted by the Representatives hereunder shall only be effective two (2) business days after the publication date of a press release announcing such release or waiver. The provisions of this paragraph will not apply if (a) the release or waiver is effected solely to permit a transfer of Lock-Up Securities not for consideration and (b) the transferee has agreed in writing to be bound by the same terms described in this lock-up agreement to the extent and for the duration that such terms remain in effect at the time of such transfer.
No provision in this agreement shall be deemed to restrict or prohibit the exercise, exchange or conversion by the undersigned of any securities exercisable or exchangeable for or convertible into Shares, as applicable; provided that the undersigned does not transfer the Shares acquired on such exercise, exchange or conversion during the Lock-Up Period, unless otherwise permitted pursuant to the terms of this lock-up agreement. In addition, no provision herein shall be deemed to restrict or prohibit the entry into or modification of a so-called “10b5-1” plan at any time (other than the entry into or modification of such a plan in such a manner as to cause the sale of any Lock-Up Securities within the Lock-Up Period).
The undersigned understands that the Company and the Underwriters are relying upon this lock-up agreement in proceeding toward consummation of the Public Offering. The undersigned further understands that this lock-up agreement is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives, successors and assigns.
The undersigned understands that, if the Underwriting Agreement is not executed within three months of the date hereof, or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of the Shares to be sold thereunder, then this lock-up agreement shall be void and of no further force or effect.
Whether or not the Public Offering actually occurs depends on a number of factors, including market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement, the terms of which are subject to negotiation between the Company and the Underwriters.
[SIGNATURE PAGE TO FOLLOW]
| Very truly yours, |
|---|
| (Name - Please Print) |
| (Signature) |
| (Name of Signatory, in the case of entities - Please Print) |
| (Title of Signatory, in the case of entities - Please Print) |
| Address: |
EXHIBIT 3.1
THE COMPANIES ACT (AS REVISED)
OF THE CAYMAN ISLANDS
COMPANY LIMITED BY SHARES
AMENDED AND RESTATED
MEMORANDUM AND ARTICLES OF ASSOCIATION
OF
WF International Limited
(Adopted by a Special Resolution passed on 3 November 2023 and effective on 2 April 2025)
THE COMPANIES ACT (AS REVISED)
OF THE CAYMAN ISLANDS
COMPANY LIMITED BY SHARES
AMENDED AND RESTATED
MEMORANDUM OF ASSOCIATION
OF
WF International Limited
(Adopted by a Special Resolution passed on 3 November 2023 and effective on 2 April 2025)
| 1. | The name of the Company is WF International Limited. |
|---|---|
| 2. | The Registered Office of the Company will be at the offices of Ogier Global (Cayman) Limited, 89 Nexus<br>Way, Camana Bay, Grand Cayman, KY1-9009, Cayman Islands, or at such other location within the Cayman Islands as the Directors may from<br>time to time determine. |
| --- | --- |
| 3. | The objects for which the Company is established are unrestricted and the Company shall have full power<br>and authority to carry out any object not prohibited by the Companies Act or any other law of the Cayman Islands. |
| --- | --- |
| 4. | The Company shall have and be capable of exercising all the functions of a natural person of full capacity<br>irrespective of any question of corporate benefit as provided by the Companies Act. |
| --- | --- |
| 5. | The Company will not trade in the Cayman Islands with any person, firm or corporation except in furtherance<br>of the business of the Company carried on outside the Cayman Islands; provided that nothing in this section shall be construed as to prevent<br>the Company effecting and concluding contracts in the Cayman Islands, and exercising in the Cayman Islands all of its powers necessary<br>for the carrying on of its business outside the Cayman Islands. |
| --- | --- |
| 6. | The liability of each Shareholder is limited to the amount, if any, unpaid on the Shares held by such<br>Shareholder. |
| --- | --- |
| 7. | The authorised share capital of the Company is US$50,000 divided into (i) 49,000,000,000 ordinary shares<br>of a par value of US$0.000001 each and (ii) 1,000,000,000 preference shares of a par value of US$0.000001 each. Subject to the Companies<br>Act and the Articles, the Company shall have power to redeem or purchase any of its Shares and to increase or reduce its authorised share<br>capital and to sub-divide or consolidate the said Shares or any of them and to issue all or any part of its capital whether original,<br>redeemed, increased or reduced with or without any preference, priority, special privilege or other rights or subject to any postponement<br>of rights or to any conditions or restrictions whatsoever and so that unless the conditions of issue shall otherwise expressly provide<br>every issue of shares whether stated to be ordinary, preference or otherwise shall be subject to the powers on the part of the Company<br>hereinbefore provided. |
| --- | --- |
| 8. | The Company has the power contained in the Companies Act to deregister in the Cayman Islands and be registered<br>by way of continuation in some other jurisdiction. |
| --- | --- |
| 9. | Capitalised terms that are not defined in this Memorandum of Association bear the same meanings as those<br>given in the Articles of Association of the Company. |
| --- | --- |
2
THE COMPANIES ACT (AS REVISED)
OF THE CAYMAN ISLANDS
COMPANY LIMITED BY SHARES
AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
OF
WF International Limited
(Adopted by a Special Resolution passed on 3 November 2023 and effective on 2 April 2025)
TABLE A
The regulations contained or incorporated in Table ‘A’ in the First Schedule of the Companies Act shall not apply to the Company and the following Articles shall comprise the Articles of Association of the Company.
INTERPRETATION
| 1. | In these Articles the following defined terms will have the meanings ascribed to them, if not inconsistent with the subject or context: |
|---|---|
| “Articles” | means these articles of association of the Company, as from time to time altered or added to in accordance with the Companies Act and these Articles; |
| --- | --- |
| “Board” and “Board of Directors” and “Directors” | means the directors of the Company for the time being, or as the case may be, the directors assembled as a board or as a committee thereof; |
| “Chairperson” | means the chairperson of the Board of Directors; |
| “Commission” | means the Securities and Exchange Commission of the United States of America or any other federal agency for the time being administering the Securities Act; |
| “Company” | means WF International Limited, a Cayman Islands exempted company; |
| “Companies Act” | means the Companies Act (As Revised) of the Cayman Islands and any statutory amendment or re-enactment thereof; |
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| “Company’s Website” | means the main corporate/investor relations website of the Company, the address or domain name of which has been disclosed in any registration statement filed by the Company with the Commission in connection with its initial public offering of Shares, or which has otherwise been notified to Shareholders; |
|---|---|
| “Designated Stock Exchange” | means the stock exchange in the United States on which any Shares are listed for trading; |
| “Designated Stock Exchange Rules” | means the relevant code, rules and regulations, as amended, from time to time, applicable as a result of the original and continued listing of any Shares on the Designated Stock Exchange; |
| “electronic” | has the meaning given to it in the Electronic Transactions Act and any amendment thereto or re-enactments thereof for the time being in force and includes every other law incorporated therewith or substituted therefor; |
| “electronic communication” | means electronic posting to the Company’s Website, transmission to any number, address or internet website or other electronic delivery methods as otherwise decided and approved by not less than two-thirds of the vote of the Board; |
| “Electronic Transactions Act” | means the Electronic Transactions Act (As Revised) of the Cayman Islands and any statutory amendment or re-enactment thereof; |
| “electronic record” | has the meaning given to it in the Electronic Transactions Act and any amendment thereto or re-enactments thereof for the time being in force and includes every other law incorporated therewith or substituted therefor; |
| “Memorandum of Association” | means the memorandum of association of the Company, as amended or substituted from time to time; |
| “Ordinary Resolution” | means a resolution:<br><br> <br><br><br> <br>(a) passed<br> by a simple majority of the votes cast by such Shareholders as, being entitled to do so, vote in person or, where proxies are allowed,<br> by proxy or, in the case of corporations, by their duly authorised representatives, at a general meeting of the Company held in accordance<br> with these Articles; or |
| (b) approved in writing by all of the Shareholders entitled to vote at a general meeting of the Company in one or more instruments each signed by one or more of the Shareholders and the effective date of the resolution so adopted shall be the date on which the instrument, or the last of such instruments, if more than one, is executed; | |
| “Ordinary Shares” | means the ordinary shares in the capital of the Company with a par value of US$0.000001 each; |
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| “paid up” | means paid up as to the par value in respect of the issue of any Shares and includes credited as paid up; |
|---|---|
| “Person” | means any natural person, firm, company, joint venture, partnership, corporation, association or other entity (whether or not having a separate legal personality) or any of them as the context so requires; |
| “preference shares” | means preference shares in the capital of the Company with a par value of US$0.000001 each; |
| “Register” | means the register of Members of the Company maintained in accordance with the Companies Act; |
| “Registered Office” | means the registered office of the Company as required by the Companies Act; |
| “Seal” | means the common seal of the Company (if adopted) including any facsimile thereof; |
| “Secretary” | means any Person appointed by the Directors to perform any of the duties of the secretary of the Company; |
| “Securities Act” | means the Securities Act of 1933 of the United States of America, as amended, or any similar federal statute and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time; |
| “Share” | means a share in the capital of the Company. All references to “Shares” herein shall be deemed to be Shares of any or all classes or series as the context may require. For the avoidance of doubt in these Articles the expression “Share” shall include a fraction of a Share; |
| “Shareholder” or “Member” | means a Person who is registered as the holder of one or more Shares in the Register; |
| “Share Premium Account” | means the share premium account established in accordance with these Articles and the Companies Act; |
| “signed” | means bearing a signature or representation of a signature affixed by mechanical means or an electronic symbol or process attached to or logically associated with an electronic communication and executed or adopted by a Person with the intent to sign the electronic communication; |
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| “Special Resolution” | means a special resolution of the Company passed in<br> accordance with the Companies Act, being a resolution:<br><br> <br><br><br> <br>(a) passed<br> by not less than two-thirds of the votes cast by such Shareholders as, being entitled to do so, vote in person or, where proxies are allowed,<br> by proxy or, in the case of corporations, by their duly authorised representatives, at a general meeting of the Company of which notice<br> specifying the intention to propose the resolution as a special resolution has been duly given; or<br><br> <br><br><br> <br>(b) approved<br> in writing by all of the Shareholders entitled to vote at a general meeting of the Company in one or more instruments each signed by one<br> or more of the Shareholders and the effective date of the special resolution so adopted shall be the date on which the instrument or the<br> last of such instruments, if more than one, is executed; |
|---|---|
| “Treasury Share” | means a Share held in the name of the Company as a treasury share in accordance with the Companies Act; |
| “United States” | means the United States of America, its territories, its possessions and all areas subject to its jurisdiction; and |
| 2. | In these Articles, save where the context requires otherwise: |
| --- | --- |
| (a) | words importing the singular number shall include the plural number and vice versa; |
| --- | --- |
| (b) | words importing the masculine gender only shall include the feminine gender and any Person as the context<br>may require; |
| --- | --- |
| (c) | the word “may” shall be construed as permissive and the word “shall” shall be<br>construed as imperative; |
| --- | --- |
| (d) | reference to a dollar or dollars (or US$) and to a cent or cents is reference to dollars and cents of<br>the United States of America; |
| --- | --- |
| (e) | reference to a statutory enactment shall include reference to any amendment or re-enactment thereof for<br>the time being in force; |
| --- | --- |
| (f) | reference to any determination by the Directors shall be construed as a determination by the Directors<br>in their sole and absolute discretion and shall be applicable either generally or in any particular case; |
| --- | --- |
| (g) | reference to “in writing” shall be construed as written or represented by any means reproducible<br>in writing, including any form of print, lithograph, email, facsimile, photograph or telex or represented by any other substitute or format<br>for storage or transmission for writing including in the form of an electronic record or partly one and partly another; |
| --- | --- |
| (h) | any requirements as to delivery under the Articles include delivery in the form of an electronic record<br>or an electronic communication; |
| --- | --- |
| (i) | any requirements as to execution or signature under the Articles, including the execution of the Articles<br>themselves, can be satisfied in the form of an electronic signature as defined in the Electronic Transaction Act; and |
| --- | --- |
| (j) | Sections 8 and 19(3) of the Electronic Transactions Act shall not apply. |
| --- | --- |
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| 3. | Subject to the last two preceding Articles, any words defined in the Companies Act shall, if not inconsistent<br>with the subject or context, bear the same meaning in these Articles. |
|---|
PRELIMINARY
| 4. | The business of the Company may be conducted as the Directors see fit. |
|---|---|
| 5. | The Registered Office shall be at such address in the Cayman Islands as the Directors may from time to<br>time determine. The Company may in addition establish and maintain such other offices and places of business and agencies in such places<br>as the Directors may from time to time determine. |
| --- | --- |
| 6. | The expenses incurred in the formation of the Company and in connection with the offer for subscription<br>and issue of Shares shall be paid by the Company. Such expenses may be amortised over such period as the Directors may determine and the<br>amount so paid shall be charged against income and/or capital in the accounts of the Company as the Directors shall determine. |
| --- | --- |
| 7. | The Directors shall keep, or cause to be kept, the Register at such place as the Directors may from time<br>to time determine and, in the absence of any such determination, the Register shall be kept at the Registered Office. |
| --- | --- |
SHARES
| 8. | Subject to these Articles, all Shares for the time being unissued shall be under the control of the Directors<br>who may, in their absolute discretion and without the approval of the Members, cause the Company to: |
|---|---|
| (a) | issue, allot and dispose of Shares (including, without limitation, preference shares) (whether in certificated<br>form or non-certificated form) to such Persons, in such manner, on such terms and having such rights and being subject to such restrictions<br>as they may from time to time determine; |
| --- | --- |
| (b) | grant rights over Shares or other securities to be issued in one or more classes or series as they deem<br>necessary or appropriate and determine the designations, powers, preferences, privileges and other rights attaching to such Shares or<br>securities, including dividend rights, voting rights, conversion rights, terms of redemption and liquidation preferences, any or all of<br>which may be greater than the powers, preferences, privileges and rights associated with the then issued and outstanding Shares, at such<br>times and on such other terms as they think proper; and |
| --- | --- |
| (c) | grant options with respect to Shares and issue warrants or similar instruments with respect thereto. |
| --- | --- |
| 9. | The Directors may authorise the division of Shares into any number of classes or series and the different<br>classes or series shall be authorised, established and designated (or re-designated as the case may be) and the variations in the relative<br>rights (including, without limitation, voting, dividend and redemption rights), restrictions, preferences, privileges and payment obligations<br>as between the different classes or series (if any) may be fixed and determined by the Directors or by a Special Resolution. The Directors<br>may issue Shares with such preferred or other rights, all or any of which may be greater than the rights of Ordinary Shares, at such time<br>and on such terms as they may think appropriate. Notwithstanding Article 12, the Directors may issue from time to time, out of the authorised<br>share capital of the Company (other than the authorised but unissued Ordinary Shares), series of preference shares in their absolute discretion<br>and without approval of the Members; provided, however, before any preference shares of any such series are issued, the Directors shall<br>by resolution of Directors determine, with respect to any series of preference shares, the terms and rights of that series, including: |
| --- | --- |
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| (a) | the designation of such series, the number of preference shares to constitute such series and the subscription<br>price thereof if different from the par value thereof; |
|---|---|
| (b) | whether the preference shares of such series shall have voting rights, in addition to any voting rights<br>provided by law, and, if so, the terms of such voting rights, which may be general or limited; |
| --- | --- |
| (c) | the dividends, if any, payable on such series, whether any such dividends shall be cumulative, and, if<br>so, from what dates, the conditions and dates upon which such dividends shall be payable, and the preference or relation which such dividends<br>shall bear to the dividends payable on any shares of any other class or any other series of shares; |
| --- | --- |
| (d) | whether the preference shares of such series shall be subject to redemption by the Company, and, if so,<br>the times, prices and other conditions of such redemption; |
| --- | --- |
| (e) | whether the preference shares of such series shall have any rights to receive any part of the assets available<br>for distribution amongst the Members upon the liquidation of the Company, and, if so, the terms of such liquidation preference, and the<br>relation which such liquidation preference shall bear to the entitlements of the holders of shares of any other class or any other series<br>of shares; |
| --- | --- |
| (f) | whether the preference shares of such series shall be subject to the operation of a retirement or sinking<br>fund and, if so, the extent to and manner in which any such retirement or sinking fund shall be applied to the purchase or redemption<br>of the preference shares of such series for retirement or other corporate purposes and the terms and provisions relative to the operation<br>thereof; |
| --- | --- |
| (g) | whether the preference shares of such series shall be convertible into, or exchangeable for, shares of<br>any other class or any other series of preference shares or any other securities and, if so, the price or prices or the rate or rates<br>of conversion or exchange and the method, if any, of adjusting the same, and any other terms and conditions of conversion or exchange; |
| --- | --- |
| (h) | the limitations and restrictions, if any, to be effective while any preference shares of such series are<br>outstanding upon the payment of dividends or the making of other distributions on, and upon the purchase, redemption or other acquisition<br>by the Company of, the existing shares or shares of any other class of shares or any other series of preference shares; |
| --- | --- |
| (i) | the conditions or restrictions, if any, upon the creation of indebtedness of the Company or upon the issue<br>of any additional shares, including additional shares of such series or of any other class of shares or any other series of preference<br>shares; and |
| --- | --- |
8
| (j) | any other powers, preferences and relative, participating, optional and other special rights, and any<br>qualifications, limitations and restrictions thereof; |
|---|
and, for such purposes, the Directors may reserve an appropriate number of Shares for the time being unissued. The Company shall not issue Shares to bearer.
| 10. | The Company may insofar as may be permitted by law, pay a commission to any Person in consideration of<br>his subscribing or agreeing to subscribe whether absolutely or conditionally for any Shares. Such commissions may be satisfied by the<br>payment of cash or the lodgement of fully or partly paid-up Shares or partly in one way and partly in the other. The Company may also<br>pay such brokerage as may be lawful on any issue of Shares. |
|---|---|
| 11. | The Directors may refuse to accept any application for Shares, and may accept any application in whole<br>or in part, for any reason or for no reason. |
| --- | --- |
MODIFICATION OF RIGHTS
| 12. | Whenever the capital of the Company is divided into different classes or series the rights attached to<br>any such class or series (unless otherwise provided by the terms of issue of the Shares of that class or series) may, subject to these<br>Articles, be varied or abrogated with the consent in writing of the holders of at least two-thirds of the issued Shares of that class<br>or series or with the sanction of a resolution passed by a majority of two-thirds of the votes cast at a separate meeting of the holders<br>of the Shares of that class or series. To every such separate meeting all the provisions of these Articles relating to general meetings<br>of the Company or to the proceedings thereat shall, mutatis mutandis, apply, except that the necessary quorum shall be one or more<br>Persons holding or representing by proxy at least one-third in nominal or par value amount of the issued Shares of the relevant class<br>or series (but so that if at any adjourned meeting of such holders a quorum as above defined is not present in person (or in the case<br>of a corporation, by its duly authorized representative) or by proxy, those Shareholders who are present in person (or in the case of<br>a corporation, by its duly authorized representative) or by proxy shall form a quorum). |
|---|---|
| 13. | The rights conferred upon the holders of the Shares of any class or series issued with preference or other<br>rights shall not, subject to any rights or restrictions for the time being attached to the Shares of that class or series, be deemed to<br>be varied by, inter alia, the creation, allotment or issue of further Shares ranking pari passu with or subsequent to them or the<br>redemption or purchase of any Shares of any class or series by the Company. The rights of the holders of Shares shall not be deemed to<br>be varied by the creation or issue of Shares with preference or other rights including, without limitation, the creation of Shares with<br>enhanced or weighted voting rights. |
| --- | --- |
CERTIFICATES
| 14. | Every Person whose name is entered as a Member in the Register may, without payment and upon its written<br>request, request a certificate within two calendar months after allotment or lodgement of transfer (or within such other period as the<br>conditions of issue shall provide) in the form determined by the Directors. All certificates shall specify the Share or Shares held by<br>that Person, provided that in respect of a Share or Shares held jointly by several Persons the Company shall not be bound to issue more<br>than one certificate, and delivery of a certificate for a Share to one of several joint holders shall be sufficient delivery to all. All<br>certificates for Shares shall be delivered personally or sent through the post addressed to the Member entitled thereto at the Member’s<br>registered address as appearing in the Register. |
|---|
9
| 15. | Every share certificate of the Company shall bear legends required under the applicable laws, including<br>the Securities Act. |
|---|---|
| 16. | Any two or more certificates representing Shares of any one class or series held by any Member may at<br>the Member’s request be cancelled and a single new certificate for such Shares issued in lieu on payment (if the Directors shall<br>so require) of one U.S. dollar (US$1.00) or such smaller sum as the Directors shall determine. |
| --- | --- |
| 17. | If a share certificate shall be damaged or defaced or alleged to have been lost, stolen or destroyed,<br>a new certificate representing the same Shares may be issued to the relevant Member upon request, subject to delivery up of the old certificate<br>or (if alleged to have been lost, stolen or destroyed) compliance with such conditions as to evidence and indemnity and the payment of<br>out-of-pocket expenses of the Company in connection with the request as the Directors may think fit. |
| --- | --- |
| 18. | In the event that Shares are held jointly by several Persons, any request may be made by any one of the<br>joint holders and if so made shall be binding on all of the joint holders. |
| --- | --- |
FRACTIONAL SHARES
| 19. | The Directors may issue fractions of a Share and, if so issued, a fraction of a Share shall be subject<br>to and carry the corresponding fraction of liabilities (whether with respect to nominal or par value, premium, contributions, calls or<br>otherwise), limitations, preferences, privileges, qualifications, restrictions, rights (including, without prejudice to the generality<br>of the foregoing, voting and participation rights) and other attributes of a whole Share. If more than one fraction of a Share of the<br>same class or series is issued to or acquired by the same Shareholder such fractions shall be accumulated. |
|---|
LIEN
| 20. | The Company has a first and paramount lien on every Share (whether or not fully paid) for all amounts<br>(whether presently payable or not) payable at a fixed time or called in respect of that Share. The Company also has a first and paramount<br>lien on every Share registered in the name of a Person indebted or under liability to the Company (whether he is the sole registered holder<br>of a Share or one of two or more joint holders) for all amounts owing by him or his estate to the Company (whether or not presently payable).<br>The Directors may at any time declare a Share to be wholly or in part exempt from the provisions of this Article. The Company’s<br>lien on a Share extends to any amount payable in respect of it, including but not limited to dividends. |
|---|---|
| 21. | The Company may sell, in such manner as the Directors in their absolute discretion think fit, any Share<br>on which the Company has a lien, but no sale shall be made unless an amount in respect of which the lien exists is presently payable nor<br>until the expiration of fourteen calendar days after a notice in writing, demanding payment of such part of the amount in respect of which<br>the lien exists as is presently payable, has been given to the registered holder for the time being of the Share, or the Persons entitled<br>thereto by reason of his death or bankruptcy. |
| --- | --- |
| 22. | For giving effect to any such sale the Directors may authorise a Person to transfer the Shares sold to<br>the purchaser thereof. The purchaser shall be registered as the holder of the Shares comprised in any such transfer and he shall not be<br>bound to see to the application of the purchase money, nor shall his title to the Shares be affected by any irregularity or invalidity<br>in the proceedings in reference to the sale. |
| --- | --- |
10
| 23. | The proceeds of the sale after deduction of expenses, fees and commissions incurred by the Company shall<br>be received by the Company and applied in payment of such part of the amount in respect of which the lien exists as is presently payable,<br>and the residue shall (subject to a like lien for sums not presently payable as existed upon the Shares prior to the sale) be paid to<br>the Person entitled to the Shares immediately prior to the sale. |
|---|
CALLS ON SHARES
| 24. | Subject to the terms of the allotment, the Directors may from time to time make calls upon the Shareholders<br>in respect of any moneys unpaid on their Shares, and each Shareholder shall (subject to receiving at least fourteen calendar days’<br>notice specifying the time or times of payment) pay to the Company at the time or times so specified the amount called on such Shares.<br>A call shall be deemed to have been made at the time when the resolution of the Directors authorising such call was passed. |
|---|---|
| 25. | The joint holders of a Share shall be jointly and severally liable to pay calls in respect thereof. |
| --- | --- |
| 26. | If a sum called in respect of a Share is not paid before or on the day appointed for payment thereof,<br>the Person from whom the sum is due shall pay interest upon the sum at the rate of eight percent per annum from the day appointed for<br>the payment thereof to the time of the actual payment, but the Directors shall be at liberty to waive payment of that interest wholly<br>or in part. |
| --- | --- |
| 27. | The provisions of these Articles as to the liability of joint holders and as to payment of interest shall<br>apply in the case of non-payment of any sum which, by the terms of issue of a Share, becomes payable at a fixed time, whether on account<br>of the amount of the Share, or by way of premium, as if the same had become payable by virtue of a call duly made and notified. |
| --- | --- |
| 28. | The Directors may make arrangements with respect to the issue of partly paid Shares for a difference between<br>the Shareholders, or the particular Shares, in the amount of calls to be paid and in the times of payment. |
| --- | --- |
| 29. | The Directors may, if they think fit, receive from any Shareholder willing to advance the same all or<br>any part of the moneys uncalled and unpaid upon any partly paid Shares held by him, and upon all or any of the moneys so advanced may<br>(until the same would, but for such advance, become presently payable) pay interest at such rate (not exceeding without the sanction of<br>an Ordinary Resolution, eight percent per annum) as may be agreed upon between the Shareholder paying the sum in advance and the Directors.<br>No such sum paid in advance of calls shall entitle the Member paying such sum to any portion of a dividend declared in respect of any<br>period prior to the date upon which such sum would, but for such payment, become presently payable. |
| --- | --- |
FORFEITURE OF SHARES
| 30. | If a Shareholder fails to pay any call or instalment of a call in respect of partly paid Shares on the<br>day appointed for payment, the Directors may, at any time thereafter during such time as any part of such call or instalment remains unpaid,<br>serve a notice on him requiring payment of so much of the call or instalment as is unpaid, together with any interest which may have accrued. |
|---|---|
| 31. | The notice shall name a further day (not earlier than the expiration of fourteen calendar days from the<br>date of the notice) on or before which the payment required by the notice is to be made, and shall state that in the event of non-payment<br>at or before the time appointed, the Shares in respect of which the call was made will be liable to be forfeited. |
| --- | --- |
11
| 32. | If the requirements of any such notice as aforesaid are not complied with, any Share in respect of which<br>the notice has been given may at any time thereafter, before the payment required by notice has been made, be forfeited by a resolution<br>of the Directors to that effect. |
|---|---|
| 33. | A forfeited Share may be sold or otherwise disposed of on such terms and in such manner as the Directors<br>think fit, and at any time before a sale or disposition the forfeiture may be cancelled on such terms as the Directors think fit. |
| --- | --- |
| 34. | A Person whose Shares have been forfeited shall cease to be a Shareholder in respect of the forfeited<br>Shares, but shall, notwithstanding, remain liable to pay to the Company all moneys which at the date of forfeiture were payable by him<br>to the Company in respect of the Shares forfeited, but his liability shall cease if and when the Company receives payment in full of the<br>amount unpaid on the Shares forfeited. |
| --- | --- |
| 35. | A certificate in writing under the hand of a Director that a Share has been duly forfeited on a date stated<br>in the certificate shall be conclusive evidence of the facts in the declaration as against all Persons claiming to be entitled to the<br>Share. |
| --- | --- |
| 36. | The Company may receive the consideration, if any, given for a Share on any sale or disposition thereof<br>pursuant to the provisions of these Articles as to forfeiture and may execute a transfer of the Share in favour of the Person to whom<br>the Share is sold or disposed of and that Person shall be registered as the holder of the Share and shall not be bound to see to the application<br>of the purchase money, if any, nor shall his title to the Shares be affected by any irregularity or invalidity in the proceedings in reference<br>to the disposition or sale. |
| --- | --- |
| 37. | The provisions of these Articles as to forfeiture shall apply in the case of non-payment of any sum which by the terms of issue of<br>a Share becomes due and payable, whether on account of the amount of the Share, or by way of premium, as if the same had been payable<br>by virtue of a call duly made and notified. |
| --- | --- |
TRANSFER OF SHARES
| 38. | The instrument of transfer of any Share shall be in writing and in any usual or common form or such other<br>form as the Directors may, in their absolute discretion, approve and be executed by or on behalf of the transferor and if in respect of<br>a nil or partly paid up Share, or if so required by the Directors, shall also be executed on behalf of the transferee and shall be accompanied<br>by the certificate (if any) of the Shares to which it relates and such other evidence as the Directors may reasonably require to show<br>the right of the transferor to make the transfer. The transferor shall be deemed to remain a Shareholder until the name of the transferee<br>is entered in the Register in respect of the relevant Shares. |
|---|---|
| 39. | (a) The Directors may in their absolute discretion decline to register any transfer of Shares which<br>is not fully paid up or on which the Company has a lien. |
| --- | --- |
| (b) | The Directors may also decline to register any transfer of any Share unless: |
| --- | --- |
12
| (i) | the instrument of transfer is lodged with the Company, accompanied by the certificate for the Shares to<br>which it relates and such other evidence as the Board may reasonably require to show the right of the transferor to make the transfer; |
|---|---|
| (ii) | the instrument of transfer is in respect of only one class or series of Shares; |
| --- | --- |
| (iii) | the instrument of transfer is properly stamped, if required; |
| --- | --- |
| (iv) | in the case of a transfer to joint holders, the number of joint holders to whom the Share is to be transferred<br>does not exceed four; and |
| --- | --- |
| (v) | a fee of such maximum sum as the Designated Stock Exchange may determine to be payable, or such lesser<br>sum as the Board of Directors may from time to time require, is paid to the Company in respect thereof. |
| --- | --- |
| 40. | The registration of transfers may, on ten calendar days’ notice being given by advertisement in<br>such one or more newspapers, by electronic means or by any other means in accordance with the Designated Stock Exchange Rules, be suspended<br>and the Register closed at such times and for such periods as the Directors may, in their absolute discretion, from time to time determine,<br>provided always that such registration of transfer shall not be suspended nor the Register closed for more than thirty calendar days in<br>any calendar year. |
| --- | --- |
| 41. | All instruments of transfer that are registered shall be retained by the Company. If the Directors refuse<br>to register a transfer of any Shares, they shall within three calendar months after the date on which the transfer was lodged with the<br>Company send notice of the refusal to each of the transferor and the transferee. |
| --- | --- |
TRANSMISSION OF SHARES
| 42. | The legal personal representative of a deceased sole holder of a Share shall be the only Person recognised<br>by the Company as having any title to the Share. In the case of a Share registered in the name of two or more holders, the survivors or<br>survivor, or the legal personal representatives of the deceased survivor, shall be the only Person recognised by the Company as having<br>any title to the Share. |
|---|---|
| 43. | Any Person becoming entitled to a Share in consequence of the death or bankruptcy of a Shareholder shall,<br>upon such evidence being produced as may from time to time be required by the Directors, have the right either to be registered as a Shareholder<br>in respect of the Share or, instead of being registered himself, to make such transfer of the Share as the deceased or bankrupt Person<br>could have made; but the Directors shall, in either case, have the same right to decline or suspend registration as they would have had<br>in the case of a transfer of the Share by the deceased or bankrupt Person before the death or bankruptcy. |
| --- | --- |
| 44. | A Person becoming entitled to a Share by reason of the death or bankruptcy of a Shareholder shall be entitled<br>to the same dividends and other advantages to which he would be entitled if he were the registered Shareholder, except that he shall not,<br>before being registered as a Shareholder in respect of the Share, be entitled in respect of it to exercise any right conferred by membership<br>in relation to meetings of the Company, provided however, that the Directors may at any time give notice requiring any such Person to<br>elect either to be registered himself or to transfer the Share, and if the notice is not complied with within ninety calendar days, the<br>Directors may thereafter withhold payment of all dividends, bonuses or other monies payable in respect of the Share until the requirements<br>of the notice have been complied with. |
| --- | --- |
13
REGISTRATION OF EMPOWERING INSTRUMENTS
| 45. | The Company shall be entitled to charge a fee not exceeding one U.S. dollar (US$1.00) on the registration of every probate, letters<br>of administration, certificate of death or marriage, power of attorney, notice in lieu of distringas, or other instrument. |
|---|
ALTERATION OF SHARE CAPITAL
| 46. | The Company may from time to time by Ordinary Resolution increase the share capital by such sum, to be<br>divided into Shares of such classes or series and amount, as the resolution shall prescribe. |
|---|---|
| 47. | The Company may by Ordinary Resolution: |
| --- | --- |
| (a) | increase its share capital by new Shares of such amount as it thinks expedient; |
| --- | --- |
| (b) | consolidate and divide all or any of its share capital into Shares of<br>a larger amount than its existing Shares; |
| --- | --- |
| (c) | subdivide its Shares, or any of them, into Shares of an amount smaller than that fixed by the Memorandum,<br>provided that in the subdivision the proportion between the amount paid and the amount, if any, unpaid on each reduced Share shall be<br>the same as it was in case of the Share from which the reduced Share is derived; and |
| --- | --- |
| (d) | cancel any Shares that, at the date of the passing of the resolution, have not been taken or agreed to<br>be taken by any Person and diminish the amount of its share capital by the amount of the Shares so cancelled. |
| --- | --- |
| 48. | The Company may by Special Resolution reduce its share capital and any capital redemption reserve in any<br>manner authorised by law. |
| --- | --- |
REDEMPTION, PURCHASE AND SURRENDER OF SHARES
| 49. | Subject to the provisions of the Companies Act and these Articles, the Company may: |
|---|---|
| (a) | issue Shares that are to be redeemed or are liable to be redeemed at the option of the Shareholder or<br>the Company. The redemption of Shares shall be effected in such manner and upon such terms as may be determined, before the issue of such<br>Shares, by either the Board or by the Shareholders by Special Resolution; |
| --- | --- |
| (b) | purchase its own Shares (including any redeemable Shares) on such terms and in such manner and terms as<br>have been approved by the Board or by the Members by Ordinary Resolution, or are otherwise authorised by these Articles; and |
| --- | --- |
| (c) | make a payment in respect of the redemption or purchase of its own Shares in any manner permitted by the<br>Companies Act, including out of capital. |
| --- | --- |
| 50. | The purchase of any Share shall not oblige the Company to purchase any other Share other than as may be<br>required pursuant to applicable law and any other contractual obligations of the Company. |
| --- | --- |
14
| 51. | The holder of the Shares being purchased shall be bound to deliver up to the Company the certificate(s)<br>(if any) thereof for cancellation and thereupon the Company shall pay to him the purchase or redemption monies or consideration in respect<br>thereof. |
|---|---|
| 52. | The Directors may accept the surrender for no consideration of any fully paid Share. |
| --- | --- |
TREASURY SHARES
| 53. | The Directors may, prior to the purchase, redemption or surrender of any Share, determine that such Share<br>shall be held as a Treasury Share. |
|---|---|
| 54. | The Directors may determine to cancel a Treasury Share or transfer a Treasury Share on such terms as they<br>think proper (including, without limitation, for nil consideration). |
| --- | --- |
GENERAL MEETINGS
| 55. | All general meetings other than annual general meetings shall be called extraordinary general meetings. |
|---|---|
| 56. | (a) The Company may (but shall not be obliged to) in each calendar year hold a general meeting as its<br>annual general meeting and shall specify the meeting as such in the notices calling it. The annual general meeting shall be held at such<br>time and place as may be determined by the Directors. |
| --- | --- |
| (b) | At these meetings the report of the Directors (if any) shall be presented. |
| --- | --- |
| 57. | (a) The Chairperson or a majority of the Directors may call general meetings, and they shall on a Shareholders’<br>requisition forthwith proceed to convene an extraordinary general meeting of the Company. |
| --- | --- |
| (b) | A Shareholders’ requisition is a requisition of Members holding at the date of deposit of the requisition<br>Shares which carry in aggregate not less than 30% of all votes attaching to all issued and outstanding Shares of the Company that as at<br>the date of the deposit carry the right to vote at general meetings of the Company. |
| --- | --- |
| (c) | The requisition must state the objects of the meeting and must be signed by the requisitionists and deposited<br>at the Registered Office, and may consist of several documents in like form each signed by one or more requisitionists. |
| --- | --- |
| (d) | If there are no Directors as at the date of the deposit of the Shareholders’ requisition, or if<br>the Directors do not within twenty-one calendar days from the date of the deposit of the requisition duly proceed to convene a general<br>meeting to be held within a further twenty-one calendar days, the requisitionists, or any of them representing more than one-half of the<br>total voting rights of all of them, may themselves convene a general meeting, but any meeting so convened shall not be held after the<br>expiration of three calendar months after the expiration of the said twenty-one calendar days. |
| --- | --- |
| (e) | A general meeting convened as aforesaid by requisitionists shall be convened in the same manner as nearly<br>as possible as that in which general meetings are to be convened by Directors. |
| --- | --- |
15
NOTICE OF GENERAL MEETINGS
| 58. | At least five (5) calendar days’ notice shall be given for any general meeting. Every notice shall<br>be exclusive of the day on which it is given or deemed to be given and of the day for which it is given and shall specify the place, the<br>day and the hour of the meeting and the general nature of the business and shall be given in the manner hereinafter mentioned or in such<br>other manner if any as may be prescribed by the Company, provided that a general meeting of the Company shall, whether or not the notice<br>specified in this Article has been given and whether or not the provisions of these Articles regarding general meetings have been complied<br>with, be deemed to have been duly convened if it is so agreed: |
|---|---|
| (a) | in the case of an annual general meeting, by all the Shareholders (or their proxies) entitled to attend<br>and vote thereat; and |
| --- | --- |
| (b) | in the case of an extraordinary general meeting, by two-thirds (2/3rd) of the Shareholders having a right<br>to attend and vote at the meeting, and present in person (or in the case of a corporation, by its duly authorized representative) or by<br>proxy at the meeting. |
| --- | --- |
| 59. | The accidental omission to give notice of a meeting to or the non-receipt of a notice of a meeting by any Shareholder shall not invalidate<br>the proceedings at any meeting. |
| --- | --- |
PROCEEDINGS AT GENERAL MEETINGS
| 60. | No business except for the appointment of a chairperson for the meeting shall be transacted at any general<br>meeting unless a quorum of Shareholders is present at the time when the meeting proceeds to business. One or more Shareholders holding<br>one-third of the Shares in issue present in person (or in the case of a corporation, by its duly authorized representative) or by proxy<br>at the meeting shall be a quorum for all purposes. |
|---|---|
| 61. | If within half an hour from the time appointed for the meeting a quorum is not present, the meeting shall<br>be dissolved. |
| --- | --- |
| 62. | The Chairperson, if any, shall preside as chairperson at every general meeting of the Company. |
| --- | --- |
| 63. | If there is no such Chairperson, or if at any general meeting he is not present within fifteen minutes<br>after the time appointed for holding the meeting or is unwilling to act as chairperson of the meeting, any Director or Person nominated<br>by the Directors shall preside as chairperson of that meeting, failing which the Shareholders present in person (or in the case of a corporation,<br>by its duly authorized representative) or by proxy shall choose any Person present to be chairperson of that meeting. |
| --- | --- |
| 64. | The chairperson of any general meeting at which a quorum is present may with the consent of the meeting<br>(and shall if so directed by the meeting) adjourn the meeting from time to time and from place to place, but no business shall be transacted<br>at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place. When a meeting,<br>or adjourned meeting, is adjourned for fourteen calendar days or more, notice of the adjourned meeting shall be given as in the case of<br>an original meeting. Save as aforesaid it shall not be necessary to give any notice of an adjournment or of the business to be transacted<br>at an adjourned meeting. |
| --- | --- |
16
| 65. | The Directors may cancel or postpone any duly convened general meeting at any time prior to such meeting,<br>except for general meetings requisitioned by the Shareholders in accordance with these Articles, for any reason or for no reason, upon<br>notice in writing to Shareholders. A postponement may be for a stated period of any length or indefinitely as the Directors may determine. |
|---|---|
| 66. | A resolution put to the vote of the meeting shall be decided on a poll. |
| --- | --- |
| 67. | A poll shall be taken as the chairperson of the meeting directs, and the result of the poll shall be deemed<br>to be the resolution of the meeting at which the poll was demanded. |
| --- | --- |
| 68. | All questions submitted to a meeting shall be decided by an Ordinary Resolution except where a greater<br>majority is required by these Articles or by the Companies Act. In the case of an equality of votes, the chairperson of the meeting shall<br>be entitled to a second or casting vote. |
| --- | --- |
| 69. | A poll demanded on the election of a chairperson of the meeting or on a question of adjournment shall<br>be taken forthwith. A poll demanded on any other question shall be taken at such time as the chairperson of the meeting directs. |
| --- | --- |
VOTES OF SHAREHOLDERS
| 70. | Subject to any rights and restrictions for the time being attached to any Share, at a general meeting<br>of the Company, every Shareholder present in person (or in the case of a corporation, by its duly authorized representative) or by proxy<br>at the meeting shall have one (1) vote for each Ordinary Share of which such Shareholder is the holder. |
|---|---|
| 71. | In the case of joint holders the vote of the senior who tenders a vote whether in person or by proxy (or,<br>if a corporation or other non-natural person, by its duly authorised representative or proxy) shall be accepted to the exclusion of the<br>votes of the other joint holders and for this purpose seniority shall be determined by the order in which the names stand in the Register. |
| --- | --- |
| 72. | Shares carrying the right to vote that are held by a Shareholder of unsound mind, or in respect of whom<br>an order has been made by any court having jurisdiction in lunacy, may be voted by his committee, or other Person in the nature of a committee<br>appointed by that court, and any such committee or other Person may vote in respect of such Shares by proxy. |
| --- | --- |
| 73. | No Shareholder shall be entitled to vote at any general meeting of the Company unless all calls, if any,<br>or other sums presently payable by him in respect of Shares carrying the right to vote held by him have been paid. |
| --- | --- |
| 74. | On a poll votes may be given either personally or by proxy. |
| --- | --- |
| 75. | The instrument appointing a proxy shall be in writing under the hand of the appointor or of his attorney<br>duly authorised in writing or, if the appointor is a corporation, either under Seal or under the hand of an officer or attorney duly authorised.<br>A proxy need not be a Shareholder. |
| --- | --- |
| 76. | An instrument appointing a proxy may be in any usual or common form or such other form as the Directors may approve. |
| --- | --- |
| 77. | The instrument appointing a proxy shall be deposited at the Registered Office or at such other place as<br>is specified for that purpose in the notice convening the meeting, or in any instrument of proxy sent out by the Company: |
| --- | --- |
17
| (a) | not less than 48 hours before the time for holding the meeting or adjourned meeting at which the person<br>named in the instrument proposes to vote; or |
|---|---|
| (b) | in the case of a poll taken more than 48 hours after it is demanded, be deposited as aforesaid after the<br>poll has been demanded and not less than 24 hours before the time appointed for the taking of the poll; or |
| --- | --- |
| (c) | where the poll is not taken forthwith but is taken not more than 48 hours after it was demanded be delivered<br>at the meeting at which the poll was demanded to the chairperson of the meeting or to the secretary or to any Director; |
| --- | --- |
provided that the Directors may in the notice convening the meeting, or in an instrument of proxy sent out by the Company, direct that the instrument appointing a proxy may be deposited at such other time (no later than the time for holding the meeting or adjourned meeting) at the Registered Office or at such other place as is specified for that purpose in the notice convening the meeting, or in any instrument of proxy sent out by the Company. The chairperson of the meeting may in any event at his discretion direct that an instrument of proxy shall be deemed to have been duly deposited. An instrument of proxy that is not deposited in the manner permitted shall be invalid.
| 78. | The instrument appointing a proxy shall be deemed to confer authority to demand or join in demanding a<br>poll. |
|---|---|
| 79. | A resolution in writing signed by all the Shareholders for the time being entitled to receive notice of<br>and to attend and vote at general meetings of the Company (or being corporations by their duly authorised representatives) shall be as<br>valid and effective as if the same had been passed at a general meeting of the Company duly convened and held. |
| --- | --- |
CORPORATIONS ACTING BY REPRESENTATIVES AT MEETINGS
| 80. | Any corporation which is a Shareholder or a Director may by resolution of its directors or other governing<br>body authorise such Person as it thinks fit to act as its representative at any meeting of the Company or of any meeting of holders of<br>a class or series or of the Directors or of a committee of Directors, and the Person so authorised shall be entitled to exercise the same<br>powers on behalf of the corporation which he represents as that corporation could exercise if it were an individual Shareholder or Director. |
|---|
CLEARING HOUSES
| 81. | If a recognised clearing house (or its nominee(s)) is a Member of the Company it may, by resolution of<br>its directors or other governing body or by power of attorney, authorise such Person(s) as it thinks fit to act as its representative(s)<br>at any general meeting of the Company or of any class or series of Shareholders provided that, if more than one Person is so authorised,<br>the authorisation shall specify the number and class or series of Shares in respect of which each such Person is so authorised. A Person<br>so authorised pursuant to this Article shall be entitled to exercise the same powers on behalf of the recognised clearing house (or its<br>nominee(s)) which he represents as that recognised clearing house (or its nominee(s)) could exercise if it were an individual Member holding<br>the number and class or series of Shares specified in such authorisation. |
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DIRECTORS
| 82. | Unless otherwise determined by the Company in general meeting, the number of Directors shall not be less<br>than three (3) Directors. |
|---|---|
| 83. | All Directors shall hold office until the expiration of their respective terms of office and until their<br>successors shall have been appointed and qualified. A Director appointed to fill a vacancy resulting from the death, resignation or removal<br>of a Director shall serve for the remainder of the full term of the Director whose death, resignation or removal shall have created such<br>vacancy and until his successor shall have been appointed and qualified. |
| --- | --- |
| 84. | The Company may by Ordinary Resolution appoint any person to be a Director. |
| --- | --- |
| 85. | The Board may, by the affirmative vote of a simple majority of the remaining Directors present and voting<br>at a Board meeting, appoint any person as a Director, to fill a casual vacancy on the Board or as an addition to the existing Board. |
| --- | --- |
| 86. | A Director may be removed from office by Ordinary Resolution, notwithstanding anything in these Articles<br>or in any agreement between the Company and such Director (but without prejudice to any claim for damages under such agreement). A vacancy<br>on the Board created by the removal of a Director under the previous sentence may be filled by Ordinary Resolution or by the affirmative<br>vote of a simple majority of the remaining Directors present and voting at a Board meeting. The notice of any meeting at which a resolution<br>to remove a Director shall be proposed or voted upon must contain a statement of the intention to remove that Director and such notice<br>must be served on that Director not less than ten (10) calendar days before the meeting. Such Director is entitled to attend the meeting<br>and be heard on the motion for his removal. |
| --- | --- |
| 87. | The Board of Directors shall elect and appoint a Chairperson by a majority of the Directors then in office.<br>The period for which the Chairperson will hold office will also be determined by a majority of all of the Directors then in office. The<br>Chairperson shall preside as chairperson at every meeting of the Board of Directors. To the extent the Chairperson is not present at a<br>meeting of the Board of Directors within fifteen minutes after the time appointed for holding the same, the attending Directors may choose<br>one of their number to be the chairperson of the meeting. |
| --- | --- |
| 88. | The Board may, from time to time, and except as required by applicable law or Designated Stock Exchange<br>Rules, adopt, institute, amend, modify or revoke the corporate governance policies or initiatives of the Company and determine on various<br>corporate governance related matters of the Company as the Board shall determine by resolution of Directors from time to time. |
| --- | --- |
| 89. | A Director shall not be required to hold any Shares in the Company by way of qualification. A Director<br>who is not a Member of the Company shall nevertheless be entitled to attend and speak at general meetings. |
| --- | --- |
| 90. | The remuneration of the Directors may be determined by the Directors or by Ordinary Resolution. |
| --- | --- |
| 91. | The Directors shall be entitled to be paid their travelling, hotel and other expenses properly incurred<br>by them in going to, attending and returning from meetings of the Directors, or any committee of the Directors, or general meetings of<br>the Company, or otherwise in connection with the business of the Company, or to receive such fixed allowance in respect thereof as may<br>be determined by the Directors from time to time, or a combination partly of one such method and partly the other. |
| --- | --- |
19
ALTERNATE DIRECTOR OR PROXY
| 92. | Any Director may in writing appoint another Person to be his alternate and, save to the extent provided<br>otherwise in the form of appointment, such alternate shall have authority to sign written resolutions on behalf of the appointing Director,<br>but shall not be required to sign such written resolutions where they have been signed by the appointing director, and to act in such<br>Director’s place at any meeting of the Directors at which the appointing Director is unable to be present. Every such alternate<br>shall be entitled to attend and vote at meetings of the Directors as a Director when the Director appointing him is not personally present<br>and where he is a Director to have a separate vote on behalf of the Director he is representing in addition to his own vote. A Director<br>may at any time in writing revoke the appointment of an alternate appointed by him. Such alternate shall be deemed for all purposes to<br>be a Director and shall not be deemed to be the agent of the Director appointing him. The remuneration of such alternate shall be payable<br>out of the remuneration of the Director appointing him and the proportion thereof shall be agreed between them. |
|---|---|
| 93. | Any Director may appoint any Person, whether or not a Director, to be the proxy of that Director to attend<br>and vote on his behalf, in accordance with instructions given by that Director, or in the absence of such instructions at the discretion<br>of the proxy, at a meeting or meetings of the Directors which that Director is unable to attend personally. The instrument appointing<br>the proxy shall be in writing under the hand of the appointing Director and shall be in any usual or common form or such other form as<br>the Directors may approve, and must be lodged with the chairperson of the meeting of the Directors at which such proxy is to be used,<br>or first used, prior to the commencement of the meeting. |
| --- | --- |
POWERS AND DUTIES OF DIRECTORS
| 94. | Subject to the Companies Act, these Articles and to any resolutions passed in a general meeting, the business<br>of the Company shall be managed by the Directors, who may pay all expenses incurred in setting up and registering the Company and may<br>exercise all powers of the Company. No resolution passed by the Company in general meeting shall invalidate any prior act of the Directors<br>that would have been valid if that resolution had not been passed. |
|---|---|
| 95. | Subject to these Articles, the Directors may from time to time appoint any natural person or corporation,<br>whether or not a Director to hold such office in the Company as the Directors may think necessary for the administration of the Company,<br>including but not limited to, chief executive officer, one or more other executive officers, president, one or more vice presidents, treasurer,<br>assistant treasurer, manager or controller, and for such term and at such remuneration (whether by way of salary or commission or participation<br>in profits or partly in one way and partly in another), and with such powers and duties as the Directors may think fit. Any natural person<br>or corporation so appointed by the Directors may be removed by the Directors. The Directors may also appoint one or more of their number<br>to the office of managing director upon like terms, but any such appointment shall ipso facto terminate if any managing director ceases<br>for any cause to be a Director, or if the Company by Ordinary Resolution resolves that his tenure of office be terminated. |
| --- | --- |
| 96. | The Directors may appoint any natural person or corporation to be a Secretary (and if need be an assistant<br>Secretary or assistant Secretaries) who shall hold office for such term, at such remuneration and upon such conditions and with such powers<br>as they think fit. Any Secretary or assistant Secretary so appointed by the Directors may be removed by the Directors or by the Company<br>by Ordinary Resolution. |
| --- | --- |
20
| 97. | The Directors may delegate any of their powers to committees consisting of such member or members of their body as they think fit;<br>any committee so formed shall in the exercise of the powers so delegated conform to any regulations that may be imposed on it by the Directors. |
|---|---|
| 98. | The Directors may from time to time and at any time by power of attorney (whether under Seal or under<br>hand) or otherwise appoint any company, firm or Person or body of Persons, whether nominated directly or indirectly by the Directors,<br>to be the attorney or attorneys or authorised signatory (any such person being an “Attorney” or “Authorised Signatory”,<br>respectively) of the Company for such purposes and with such powers, authorities and discretion (not exceeding those vested in or exercisable<br>by the Directors under these Articles) and for such period and subject to such conditions as they may think fit, and any such power of<br>attorney or other appointment may contain such provisions for the protection and convenience of Persons dealing with any such Attorney<br>or Authorised Signatory as the Directors may think fit, and may also authorise any such Attorney or Authorised Signatory to delegate all<br>or any of the powers, authorities and discretion vested in him. |
| --- | --- |
| 99. | The Directors may from time to time provide for the management of the affairs of the Company in such manner<br>as they shall think fit and the provisions contained in the three next following Articles shall not limit the general powers conferred<br>by this Article. |
| --- | --- |
| 100. | The Directors from time to time and at any time may establish any committees, local boards or agencies<br>for managing any of the affairs of the Company and may appoint any natural person or corporation to be a member of such committees or<br>local boards and may appoint any managers or agents of the Company and may fix the remuneration of any such natural person or corporation. |
| --- | --- |
| 101. | The Directors from time to time and at any time may delegate to any such committee, local board, manager<br>or agent any of the powers, authorities and discretions for the time being vested in the Directors and may authorise the members for the<br>time being of any such local board, or any of them to fill any vacancies therein and to act notwithstanding vacancies and any such appointment<br>or delegation may be made on such terms and subject to such conditions as the Directors may think fit and the Directors may at any time<br>remove any natural person or corporation so appointed and may annul or vary any such delegation, but no Person dealing in good faith and<br>without notice of any such annulment or variation shall be affected thereby. |
| --- | --- |
| 102. | Any such delegates as aforesaid may be authorised by the Directors to sub-delegate all or any of the powers,<br>authorities, and discretion for the time being vested in them. |
| --- | --- |
BORROWING POWERS OF DIRECTORS
| 103. | The Directors may from time to time at their discretion exercise all the powers of the Company to raise<br>or borrow money and to mortgage or charge its undertaking, property and assets (present and future) and uncalled capital or any part thereof,<br>to issue debentures, debenture stock, bonds and other securities, whether outright or as collateral security for any debt, liability or<br>obligation of the Company or of any third party. |
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21
THE SEAL
| 104. | The Seal shall not be affixed to any instrument except by the authority of a resolution of the Directors<br>provided always that such authority may be given prior to or after the affixing of the Seal and if given after may be in general form<br>confirming a number of affixing of the Seal. The Seal shall be affixed in the presence of a Director or a Secretary (or an assistant Secretary)<br>or in the presence of any one or more Persons as the Directors may appoint for the purpose and every Person as aforesaid shall sign every<br>instrument to which the Seal is so affixed in their presence. |
|---|---|
| 105. | The Company may maintain a facsimile of the Seal in such countries or places as the Directors may appoint<br>and such facsimile Seal shall not be affixed to any instrument except by the authority of a resolution of the Directors provided always<br>that such authority may be given prior to or after the affixing of such facsimile Seal and if given after may be in general form confirming<br>a number of affixing of such facsimile Seal. The facsimile Seal shall be affixed in the presence of such Person or Persons as the Directors<br>shall for this purpose appoint and such Person or Persons as aforesaid shall sign every instrument to which the facsimile Seal is so affixed<br>in their presence and such affixing of the facsimile Seal and signing as aforesaid shall have the same meaning and effect as if the Seal<br>had been affixed in the presence of and the instrument signed by a Director or a Secretary (or an assistant Secretary) or in the presence<br>of any one or more Persons as the Directors may appoint for the purpose. |
| --- | --- |
| 106. | Notwithstanding the foregoing, a Secretary or any assistant Secretary shall have the authority to affix<br>the Seal, or the facsimile Seal, to any instrument for the purposes of attesting authenticity of the matter contained therein but which<br>does not create any obligation binding on the Company. |
| --- | --- |
DISQUALIFICATION OF DIRECTORS
| 107. | The office of Director shall be vacated, if the Director: |
|---|---|
| (a) | becomes bankrupt or makes any arrangement or composition with his creditors; |
| --- | --- |
| (b) | dies or is found to be or becomes of unsound mind; |
| --- | --- |
| (c) | resigns his office by notice in writing to the Company; |
| --- | --- |
| (d) | without special leave of absence from the Board, is absent from meetings of the Board for three consecutive<br>meetings and the Board resolves that his office be vacated; or |
| --- | --- |
| (e) | is removed from office pursuant to any other provision of these Articles. |
| --- | --- |
PROCEEDINGS OF DIRECTORS
| 108. | The Directors may meet together (either within or outside of the Cayman Islands) for the despatch of business,<br>adjourn, and otherwise regulate their meetings and proceedings as they think fit. Questions arising at any meeting shall be decided by<br>a majority of votes. At any meeting of the Directors, each Director present in person or represented by his proxy or alternate shall be<br>entitled to one vote. In case of an equality of votes the Chairperson shall have a second or casting vote. A Director may, and a Secretary<br>or assistant Secretary on the requisition of a Director shall, at any time summon a meeting of the Directors. |
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22
| 109. | A Director may participate in any meeting of the Directors, or of any committee appointed by the Directors<br>of which such Director is a member, by means of telephone or similar communication equipment by way of which all Persons participating<br>in such meeting can communicate with each other and such participation shall be deemed to constitute presence in person at the meeting. |
|---|---|
| 110. | The quorum necessary for the transaction of the business of the Board may be fixed by the Directors, and<br>unless so fixed, the quorum shall be a majority of Directors then in office. A Director represented by proxy or by an alternate Director<br>at any meeting shall be deemed to be present for the purposes of determining whether or not a quorum is present. |
| --- | --- |
| 111. | A Director who is in any way, whether directly or indirectly, interested in a contract or transaction<br>or proposed contract or transaction with the Company shall declare the nature of his interest at a meeting of the Directors. A general<br>notice given to the Directors by any Director to the effect that he is a member of any specified company or firm and is to be regarded<br>as interested in any contract or transaction which may thereafter be made with that company or firm shall be deemed a sufficient declaration<br>of interest in regard to any contract so made or transaction so consummated. Subject to the Designated Stock Exchange Rules, a Director<br>may vote in respect of any contract or transaction or proposed contract or transaction notwithstanding that he may be interested therein<br>and if he does so his vote shall be counted and he may be counted in the quorum at any meeting of the Directors at which any such contract<br>or transaction or proposed contract or transaction shall come before the meeting for consideration. |
| --- | --- |
| 112. | A Director may hold any other office or place of profit under the Company (other than the office of auditor)<br>in conjunction with his office of Director for such period and on such terms (as to remuneration and otherwise) as the Directors may determine<br>and no Director or intending Director shall be disqualified by his office from contracting with the Company either with regard to his<br>tenure of any such other office or place of profit or as vendor, purchaser or otherwise, nor shall any such contract or arrangement entered<br>into by or on behalf of the Company in which any Director is in any way interested be liable to be avoided, nor shall any Director so<br>contracting or being so interested be liable to account to the Company for any profit realised by any such contract or arrangement by<br>reason of such Director holding that office or of the fiduciary relation thereby established. A Director, notwithstanding his interest,<br>may be counted in the quorum present at any meeting of the Directors whereat he or any other Director is appointed to hold any such office<br>or place of profit under the Company or whereat the terms of any such appointment are arranged and he may vote on any such appointment<br>or arrangement. |
| --- | --- |
| 113. | Any Director may act by himself or through his firm in a professional capacity for the Company, and he<br>or his firm shall be entitled to remuneration for professional services as if he were not a Director; provided that nothing herein contained<br>shall authorise a Director or his firm to act as auditor to the Company. |
| --- | --- |
| 114. | The Directors shall cause minutes to be made for the purpose of recording: |
| --- | --- |
| (a) | all appointments of officers made by the Directors; |
| --- | --- |
| (b) | the names of the Directors present at each meeting of the Directors and of any committee of the Directors; and |
| --- | --- |
| (c) | all resolutions and proceedings at all meetings of the Company, and of the Directors and of committees of Directors. |
| --- | --- |
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| 115. | When the chairperson of a meeting of the Directors signs the minutes of such meeting the same shall be<br>deemed to have been duly held notwithstanding that all the Directors have not actually come together or that there may have been a technical<br>defect in the proceedings. |
|---|---|
| 116. | A resolution in writing signed by all the Directors or all the members of a committee of Directors entitled<br>to receive notice of a meeting of Directors or committee of Directors, as the case may be (an alternate Director, subject as provided<br>otherwise in the terms of appointment of the alternate Director, being entitled to sign such a resolution on behalf of his appointer),<br>shall be as valid and effectual as if it had been passed at a duly called and constituted meeting of Directors or committee of Directors,<br>as the case may be. When signed a resolution may consist of several documents each signed by one or more of the Directors or his duly<br>appointed alternate. |
| --- | --- |
| 117. | The continuing Directors may act notwithstanding any vacancy in their body but if and for so long as their<br>number is reduced below the number fixed by or pursuant to these Articles as the necessary quorum of Directors, the continuing Directors<br>may act for the purpose of increasing the number, or of summoning a general meeting of the Company, but for no other purpose. |
| --- | --- |
| 118. | Subject to any regulations imposed on it by the Directors, a committee appointed by the Directors may<br>elect a chairperson of its meetings. If no such chairperson is elected, or if at any meeting the chairperson is not present within fifteen<br>minutes after the time appointed for holding the meeting, the committee members present may choose one of their number to be chairperson<br>of the meeting. |
| --- | --- |
| 119. | A committee appointed by the Directors may meet and adjourn as it thinks proper. Subject to any regulations<br>imposed on it by the Directors, questions arising at any meeting shall be determined by a majority of votes of the committee members present<br>and in case of an equality of votes the chairperson shall have a second or casting vote. |
| --- | --- |
| 120. | All acts done by any meeting of the Directors or of a committee of Directors, or by any Person acting<br>as a Director, shall notwithstanding that it be afterwards discovered that there was some defect in the appointment of any such Director<br>or Person acting as aforesaid, or that they or any of them were disqualified, be as valid as if every such Person had been duly appointed<br>and was qualified to be a Director. |
| --- | --- |
PRESUMPTION OF ASSENT
| 121. | A Director who is present at a meeting of the Board of Directors at which an action on any Company matter<br>is taken shall be presumed to have assented to the action taken unless his dissent shall be entered in the minutes of the meeting or unless<br>he shall file his written dissent from such action with the person acting as the chairperson or secretary of the meeting before the adjournment<br>thereof or shall forward such dissent by registered post to such person immediately after the adjournment of the meeting. Such right to<br>dissent shall not apply to a Director who voted in favour of such action. |
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DIVIDENDS
| 122. | Subject to any rights and restrictions for the time being attached to any Shares, the Directors may from<br>time to time declare dividends (including interim dividends) and other distributions on Shares in issue and authorise payment of the same<br>out of the funds of the Company lawfully available therefor. |
|---|
24
| 123. | Subject to any rights and restrictions for the time being attached to any Shares, the Company by Ordinary<br>Resolution may declare dividends, but no dividend shall exceed the amount recommended by the Directors. |
|---|---|
| 124. | The Directors may, before recommending or declaring any dividend, set aside out of the funds legally available<br>for distribution such sums as they think proper as a reserve or reserves which shall, in the absolute discretion of the Directors, be<br>applicable for meeting contingencies or for equalising dividends or for any other purpose to which those funds may be properly applied,<br>and pending such application may in the absolute discretion of the Directors, either be employed in the business of the Company or be<br>invested in such investments (other than Shares of the Company) as the Directors may from time to time think fit. |
| --- | --- |
| 125. | Any dividend payable in cash to the holder of Shares may be paid in any manner determined by the Directors.<br>If paid by cheque it will be sent by mail addressed to the holder at his address in the Register, or addressed to such person and at such<br>addresses as the holder may direct. Every such cheque or warrant shall, unless the holder or joint holders otherwise direct, be made payable<br>to the order of the holder or, in the case of joint holders, to the order of the holder whose name stands first on the Register in respect<br>of such Shares, and shall be sent at his or their risk and payment of the cheque or warrant by the bank on which it is drawn shall constitute<br>a good discharge to the Company. |
| --- | --- |
| 126. | The Directors may determine that a dividend shall be paid wholly or partly by the distribution of specific<br>assets (which may consist of the shares or securities of any other company) and may settle all questions concerning such distribution.<br>Without limiting the generality of the foregoing, the Directors may fix the value of such specific assets, may determine that cash payment<br>shall be made to some Shareholders in lieu of specific assets and may vest any such specific assets in trustees on such terms as the Directors<br>think fit. |
| --- | --- |
| 127. | Subject to any rights and restrictions for the time being attached to any Shares, all dividends shall<br>be declared and paid according to the amounts paid up on the Shares, but if and for so long as nothing is paid up on any of the Shares<br>dividends may be declared and paid according to the par value of the Shares. No amount paid on a Share in advance of calls shall, while<br>carrying interest, be treated for the purposes of this Article as paid on the Share. |
| --- | --- |
| 128. | If several Persons are registered as joint holders of any Share, any of them may give effective receipts<br>for any dividend or other moneys payable on or in respect of the Share. |
| --- | --- |
| 129. | No dividend shall bear interest against the Company. |
| --- | --- |
| 130. | Any dividend unclaimed after a period of six calendar years from the date of declaration of such dividend<br>may be forfeited by the Board of Directors and, if so forfeited, shall revert to the Company. |
| --- | --- |
ACCOUNTS, AUDIT AND ANNUAL RETURN AND DECLARATION
| 131. | The books of account relating to the Company’s affairs shall be kept in such manner as may be determined<br>from time to time by the Directors. |
|---|---|
| 132. | The books of account shall be kept at the Registered Office, or at such other place or places as the Directors<br>think fit, and shall always be open to the inspection of the Directors. |
| --- | --- |
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| 133. | The Directors may from time to time determine whether and to what extent and at what times and places<br>and under what conditions or regulations the accounts and books of the Company or any of them shall be open to the inspection of Shareholders<br>not being Directors, and no Shareholder (not being a Director) shall have any right to inspect any account or book or document of the<br>Company except as conferred by law or authorised by the Directors or by Ordinary Resolution. |
|---|---|
| 134. | The accounts relating to the Company’s affairs shall be audited in such manner and with such financial<br>year end as may be determined from time to time by the Directors or failing any determination as aforesaid shall not be audited. |
| --- | --- |
| 135. | The Directors may appoint an auditor of the Company who shall hold office until removed from office by<br>a resolution of the Directors and may fix his or their remuneration. |
| --- | --- |
| 136. | Every auditor of the Company shall have a right of access at all times to the books and accounts and vouchers<br>of the Company and shall be entitled to require from the Directors and officers of the Company such information and explanation as may<br>be necessary for the performance of the duties of the auditors. |
| --- | --- |
| 137. | The auditors shall, if so required by the Directors, make a report on the accounts of the Company during<br>their tenure of office at the next annual general meeting following their appointment, and at any time during their term of office, upon<br>request of the Directors or any general meeting of the Members. |
| --- | --- |
| 138. | The Directors in each calendar year shall prepare, or cause to be prepared, an annual return and declaration<br>setting forth the particulars required by the Companies Act and deliver a copy thereof to the Registrar of Companies in the Cayman Islands. |
| --- | --- |
CAPITALISATION OF RESERVES
| 139. | Subject to the Companies Act, the Directors may: |
|---|---|
| (a) | resolve to capitalise an amount standing to the credit of reserves (including a Share Premium Account,<br>capital redemption reserve and profit and loss account), which is available for distribution; |
| --- | --- |
| (b) | appropriate the sum resolved to be capitalised to the Shareholders in proportion to the nominal amount<br>of Shares (whether or not fully paid) held by them respectively and apply that sum on their behalf in or towards: |
| --- | --- |
| (i) | paying up the amounts (if any) for the time being unpaid on Shares held by them respectively, or |
| --- | --- |
| (ii) | paying up in full unissued Shares or debentures of a nominal amount equal to that sum, |
| --- | --- |
and allot the Shares or debentures, credited as fully paid, to the Shareholders (or as they may direct) in those proportions, or partly in one way and partly in the other, but the Share Premium Account, the capital redemption reserve and profits which are not available for distribution may, for the purposes of this Article, only be applied in paying up unissued Shares to be allotted to Shareholders credited as fully paid;
26
| (c) | make any arrangements they think fit to resolve a difficulty arising in the distribution of a capitalised<br>reserve and in particular, without limitation, where Shares or debentures become distributable in fractions the Directors may deal with<br>the fractions as they think fit; |
|---|---|
| (d) | authorise a Person to enter (on behalf of all the Shareholders concerned) into an agreement with the Company<br>providing for either: |
| --- | --- |
| (i) | the allotment to the Shareholders respectively, credited as fully paid, of Shares or debentures to which<br>they may be entitled on the capitalisation, or |
| --- | --- |
| (ii) | the payment by the Company on behalf of the Shareholders (by the application of their respective proportions<br>of the reserves resolved to be capitalised) of the amounts or part of the amounts remaining unpaid on their existing Shares, |
| --- | --- |
and any such agreement made under this authority being effective and binding on all those Shareholders; and
| (e) | generally do all acts and things required to give effect to the resolution. |
|---|---|
| 140. | Notwithstanding any provisions in these Articles, the Directors may resolve to capitalise an amount standing<br>to the credit of reserves (including the share premium account, capital redemption reserve and profit and loss account) or otherwise available<br>for distribution by applying such sum in paying up in full unissued Shares to be allotted and issued to: |
| --- | --- |
| (a) | employees (including Directors) or service providers of the Company or its subsidiaries or group companies<br>upon exercise or vesting of any options or awards granted under any share incentive scheme or employee benefit scheme or other arrangement<br>which relates to such persons that has been adopted or approved by the Directors or the Members; or |
| --- | --- |
| (b) | any trustee of any trust or administrator of any share incentive scheme or employee benefit scheme to<br>whom shares are to be allotted and issued by the Company in connection with the operation of any share incentive scheme or employee benefit<br>scheme or other arrangement which relates to such persons that has been adopted or approved by the Directors or Members. |
| --- | --- |
SHARE PREMIUM ACCOUNT
| 141. | The Directors shall in accordance with the Companies Act establish a Share Premium Account and shall carry<br>to the credit of such account from time to time a sum equal to the amount or value of the premium paid on the issue of any Share. |
|---|---|
| 142. | There shall be debited to any Share Premium Account on the redemption or purchase of a Share the difference<br>between the nominal value of such Share and the redemption or purchase price provided always that at the discretion of the Directors such<br>sum may be paid out of the profits of the Company or, if permitted by the Companies Act, out of capital. |
| --- | --- |
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NOTICES
| 143. | Except as otherwise provided in these Articles, any notice or document may be served by the Company or<br>by the Person entitled to give notice to any Shareholder either personally, or by posting it by airmail or a recognised courier service<br>in a prepaid letter addressed to such Shareholder at his address as appearing in the Register, or by electronic mail to any electronic<br>mail address such Shareholder may have specified in writing for the purpose of such service of notices, or by facsimile to any facsimile<br>number such Shareholder may have specified in writing for the purpose of such service of notices. Notice may also be served by electronic<br>communication in accordance with the rules and regulations of the Designated Stock Exchange, the Securities and Exchange Commission and/or<br>any other competent regulatory authority or by placing it on the Company’s Website. In the case of joint holders of a Share, all<br>notices shall be given to that one of the joint holders whose name stands first in the Register in respect of the joint holding, and notice<br>so given shall be sufficient notice to all the joint holders. |
|---|---|
| 144. | Notices sent from one country to another shall be sent or forwarded by prepaid airmail or a recognised<br>courier service. |
| --- | --- |
| 145. | Any Shareholder present in person (or in the case of a corporation, by its duly authorized representative)<br>or by proxy at any meeting of the Company shall for all purposes be deemed to have received due notice of such meeting and, where requisite,<br>of the purposes for which such meeting was convened. |
| --- | --- |
| 146. | Any notice or other document, if served by: |
| --- | --- |
| (a) | post, shall be deemed to have been served five calendar days after the time when the letter containing<br>the same is posted; |
| --- | --- |
| (b) | facsimile, shall be deemed to have been served upon production by the transmitting facsimile machine of<br>a report confirming transmission of the facsimile in full to the facsimile number of the recipient; |
| --- | --- |
| (c) | recognised courier service, shall be deemed to have been served 48 hours after the time when the letter<br>containing the same is delivered to the courier service; or |
| --- | --- |
| (d) | electronic means, shall be deemed to have been served (i) immediately upon the time of the transmission<br>to the electronic mail address supplied by the Shareholder to the Company or (ii) one hour after the time of its placement on the Company’s<br>Website. |
| --- | --- |
In proving service by post or courier service it shall be sufficient to prove that the letter containing the notice or documents was properly addressed and duly posted or delivered to the courier service.
| 147. | Any notice or document delivered or sent by post to or left at the registered address of any Shareholder<br>in accordance with the terms of these Articles shall notwithstanding that such Shareholder be then dead or bankrupt, and whether or not<br>the Company has notice of his death or bankruptcy, be deemed to have been duly served in respect of any Share registered in the name of<br>such Shareholder as sole or joint holder, unless his name shall at the time of the service of the notice or document have been removed<br>from the Register as the holder of the Share, and such service shall for all purposes be deemed a sufficient service of such notice or<br>document on all Persons interested (whether jointly with or as claiming through or under him) in the Share. |
|---|---|
| 148. | Notice of every general meeting of the Company shall be given to: |
| --- | --- |
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| (a) | all Shareholders holding Shares with the right to receive notice and who have supplied to the Company<br>an address for the giving of notices to them; and |
|---|---|
| (b) | every Person entitled to a Share in consequence of the death or bankruptcy of a Shareholder, who but for his death or bankruptcy would<br>be entitled to receive notice of the meeting. |
| --- | --- |
No other Person shall be entitled to receive notices of general meetings.
INFORMATION
| 149. | Subject to the relevant laws, rules and regulations applicable to the Company, no Member shall be entitled<br>to require discovery of any information in respect of any detail of the Company’s trading or any information which is or may be<br>in the nature of a trade secret or secret process which may relate to the conduct of the business of the Company and which in the opinion<br>of the Board would not be in the interests of the Members of the Company to communicate to the public. |
|---|---|
| 150. | Subject to due compliance with the relevant laws, rules and regulations applicable to the Company, the<br>Board shall be entitled to release or disclose any information in its possession, custody or control regarding the Company or its affairs<br>to any of its Members including, without limitation, information contained in the Register and transfer books of the Company. |
| --- | --- |
INDEMNITY
| 151. | Every Director (including for the purposes of this Article any alternate Director appointed pursuant to<br>the provisions of these Articles), Secretary, assistant Secretary, or other officer for the time being and from time to time of the Company<br>(but not including the Company’s auditors) and the personal representatives of the same (each an “Indemnified Person”)<br>shall be indemnified and secured harmless against all actions, proceedings, costs, charges, expenses, losses, damages or liabilities incurred<br>or sustained by such Indemnified Person, other than by reason of such Indemnified Person’s own dishonesty, wilful default or fraud,<br>in or about the conduct of the Company’s business or affairs (including as a result of any mistake of judgment) or in the execution<br>or discharge of his duties, powers, authorities or discretions, including without prejudice to the generality of the foregoing, any costs,<br>expenses, losses or liabilities incurred by such Indemnified Person in defending (whether successfully or otherwise) any civil proceedings<br>concerning the Company or its affairs in any court whether in the Cayman Islands or elsewhere. |
|---|---|
| 152. | The Company shall advance to each Indemnified Person reasonable attorneys’ fees and other costs<br>and expenses incurred in connection with the defence of any action, suit, proceeding or investigation involving such Indemnified Person<br>for which indemnity will or could be sought. In connection with any advance of any expenses hereunder, the Indemnified Person shall execute<br>an undertaking to repay the advanced amount to the Company if it shall be determined by final judgment or other final adjudication that<br>such Indemnified Person was not entitled to indemnification pursuant to these Articles. If it shall be determined by a final judgment<br>or other final adjudication that such Indemnified Person was not entitled to indemnification with respect to such judgment, costs or expenses,<br>then such party shall not be indemnified with respect to such judgment, costs or expenses and any advancement shall be returned to the<br>Company (without interest) by the Indemnified Person. |
| --- | --- |
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| 153. | The Directors, on behalf of the Company, may purchase and maintain insurance for the benefit of any Director<br>or officer of the Company against any liability which, by virtue of any rule of law, would otherwise attach to such person in respect<br>of any negligence, default, breach of duty or breach of trust of which such person may be guilty in relation to the Company. |
|---|---|
| 154. | No Indemnified Person shall be liable: |
| --- | --- |
| (a) | for the acts, receipts, neglects, defaults or omissions of any other Director or officer or agent of the<br>Company; or |
| --- | --- |
| (b) | for any loss on account of defect of title to any property of the Company; or |
| --- | --- |
| (c) | on account of the insufficiency of any security in or upon which any money of the Company shall be invested;<br>or |
| --- | --- |
| (d) | for any loss incurred through any bank, broker or other similar Person; or |
| --- | --- |
| (e) | for any loss occasioned by any negligence, default, breach of duty, breach of trust, error of judgement<br>or oversight on such Indemnified Person’s part; or |
| --- | --- |
| (f) | for any loss, damage or misfortune whatsoever which may happen in or arise from the execution or discharge<br>of the duties, powers, authorities, or discretions of such Indemnified Person’s office or in relation thereto; |
| --- | --- |
unless the same shall happen through such Indemnified Person’s own dishonesty, willful default or fraud.
FINANCIAL YEAR
| 155. | Unless the Directors otherwise prescribe, the financial year of the Company shall end on September 30^th^<br>in each calendar year and shall begin on October 1^st^ in each calendar year. |
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NON-RECOGNITION OF TRUSTS
| 156. | No Person shall be recognised by the Company as holding any Share upon any trust and the Company shall<br>not, unless required by law, be bound by or be compelled in any way to recognise (even when having notice thereof) any equitable, contingent,<br>future or partial interest in any Share or (except only as otherwise provided by these Articles or as the Companies Act requires) any<br>other right in respect of any Share except an absolute right to the entirety thereof in each Shareholder registered in the Register. |
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WINDING UP
| 157. | If the Company shall be wound up the liquidator may, with the sanction of a Special Resolution of the<br>Company and any other sanction required by the Companies Act, divide amongst the Members in specie or in kind the whole or any part of<br>the assets of the Company (whether they shall consist of property of the same kind or not) and may for that purpose value any assets and<br>determine how the division shall be carried out as between the Members or different classes of Members. The liquidator may, with the like<br>sanction, vest the whole or any part of such assets in trustees upon such trusts for the benefit of the Members as the liquidator, with<br>the like sanction, shall think fit, but so that no Member shall be compelled to accept any asset upon which there is a liability. |
|---|
30
| 158. | If the Company shall be wound up, and the assets available for distribution amongst the Members shall<br>be insufficient to repay the whole of the share capital, such assets shall be distributed so that, as nearly as may be, the losses shall<br>be borne by the Members in proportion to the par value of the Shares held by them. If in a winding up the assets available for distribution<br>amongst the Members shall be more than sufficient to repay the whole of the share capital at the commencement of the winding up, the surplus<br>shall be distributed amongst the Members in proportion to the par value of the Shares held by them at the commencement of the winding<br>up subject to a deduction from those Shares in respect of which there are monies due, of all monies payable to the Company for unpaid<br>calls or otherwise. This Article is without prejudice to the rights of the holders of Shares issued upon special terms and conditions. |
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AMENDMENT OF ARTICLES OF ASSOCIATION
| 159. | Subject to the Companies Act, the Company may at any time and from time to time by Special Resolution<br>alter or amend these Articles in whole or in part. |
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CLOSING OF REGISTER OR FIXING RECORD DATE
| 160. | For the purpose of determining those Shareholders that are entitled to receive notice of, attend or vote<br>at any meeting of Shareholders or any adjournment thereof, or those Shareholders that are entitled to receive payment of any dividend,<br>or in order to make a determination as to who is a Shareholder for any other purpose, the Directors may provide that the Register shall<br>be closed for transfers for a stated period which shall not exceed in any case thirty calendar days in any calendar year. |
|---|---|
| 161. | In lieu of or apart from closing the Register, the Directors may fix in advance a date as the record date<br>for any such determination of those Shareholders that are entitled to receive notice of, attend or vote at a meeting of the Shareholders<br>and for the purpose of determining those Shareholders that are entitled to receive payment of any dividend the Directors may, at or within<br>ninety calendar days prior to the date of declaration of such dividend, fix a subsequent date as the record date for such determination. |
| --- | --- |
| 162. | If the Register is not so closed and no record date is fixed for the determination of those Shareholders<br>entitled to receive notice of, attend or vote at a meeting of Shareholders or those Shareholders that are entitled to receive payment<br>of a dividend, the date on which notice of the meeting is posted or the date on which the resolution of the Directors declaring such dividend<br>is adopted, as the case may be, shall be the record date for such determination of Shareholders. When a determination of those Shareholders<br>that are entitled to receive notice of, attend or vote at a meeting of Shareholders has been made as provided in this Article, such determination<br>shall apply to any adjournment thereof. |
| --- | --- |
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REGISTRATION BY WAY OF CONTINUATION
| 163. | The Company may by Special Resolution resolve to be registered by way of continuation in a jurisdiction<br>outside the Cayman Islands or such other jurisdiction in which it is for the time being incorporated, registered or existing. In furtherance<br>of a resolution adopted pursuant to this Article, the Directors may cause an application to be made to the Registrar of Companies to deregister<br>the Company in the Cayman Islands or such other jurisdiction in which it is for the time being incorporated, registered or existing and<br>may cause all such further steps as they consider appropriate to be taken to effect the transfer by way of continuation of the Company. |
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MERGER AND CONSOLIDATION
| 164. | Subject to the provisions of the Companies Act, the Company shall have the power to merge or consolidate<br>with one or more other constituent companies (as defined in the Companies Act) upon such terms as the Directors may determine and (to<br>the extent required by the Companies Act) with the approval of a Special Resolution. |
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DISCLOSURE
| 165. | The Directors, or any service providers (including the officers, the Secretary and the registered office<br>provider of the Company) specifically authorised by the Directors, shall be entitled to disclose to any regulatory or judicial authority<br>any information regarding the affairs of the Company including without limitation information contained in the Register and books of the<br>Company. |
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32
EXHIBIT 4.1
THE REGISTERED HOLDER OF THIS PURCHASE WARRANT BY ITS ACCEPTANCE HEREOF AGREES THAT IT WILL NOT (A) SELL, TRANSFER, ASSIGN, PLEDGE OR HYPOTHECATE THIS PURCHASE WARRANT FOR A PERIOD OF ONE HUNDRED EIGHTY DAYS FOLLOWING APRIL 2, 2025, WHICH IS THE COMMENCEMENT DATE OF SALES IN THE COMPANY’S INITIAL PUBLIC OFFERING, TO ANYONE OTHER THAN (I) THE BENCHMARK COMPANY LLC, AXIOM CAPITAL MANAGEMENT, INC. OR AN UNDERWRITER OR SELECTED DEALER IN CONNECTION WITH THE OFFERING FOR WHICH THIS PURCHASE WARRANT WAS ISSUED TO THE UNDERWRITER AS CONSIDERATION IN EACH CASE IN ACCORDANCE WITH FINRA CONDUCT RULE 5110(E)(1), OR (II) THE OFFICERS OR PARTNERS, REGISTERED PERSONS OR AFFILIATES OF THE BENCHMARK COMPANY LLC, AXIOM CAPITAL MANAGEMENT, INC. OR OF ANY SUCH UNDERWRITER OR SELECTED DEALER, IN EACH CASE IN ACCORDANCE WITH FINRA CONDUCT RULE 5110(E)(1); OR (B) CAUSE THIS PURCHASE WARRANT OR THE SECURITIES ISSUABLE HEREUNDER TO BE THE SUBJECT OF ANY HEDGING, SHORT SALE, DERIVATIVE, PUT OR CALL TRANSACTION THAT WOULD RESULT IN THE EFFECTIVE ECONOMIC DISPOSITION OF THIS PURCHASE WARRANT OR THE SECURITIES HEREUNDER FOR A PERIOD OF ONE HUNDRED EIGHTY DAYS FOLLOWING MARCH 31, 2025, WHICH IS THE COMMENCEMENT DATE OF SALES IN THE COMPANY’S INITIAL PUBLIC OFFERING, EXCEPT AS PROVIDED FOR IN FINRA RULE 5110(E)(2).
ORDINARY SHARES PURCHASE WARRANT
WF International Limited
| Warrant Shares: [ ] | Initial Exercise Date: April 2, 2025 |
|---|---|
| Issue Date: April 2, 2025 |
THIS ORDINARY SHARES PURCHASE WARRANT (the***”Warrant”) certifies that, for value received, Axiom Capital Management, Inc. or its assignees assigns (the”Holder”) are entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after April 2, 2025 (the”Initial Exercise Date”) and on or prior to 5:00 p.m. (New York City time) on March 31, 2030 (the”Termination Date”) but not thereafter, to subscribe for and purchase from WF International Limited, a Cayman Islands exempted company with limited liability (the”Company”), up to 3,500 Ordinary Shares (as defined below)(as subject to adjustment hereunder, the”Warrant Shares”***). The purchase price of one Ordinary Share under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
Section 1. Definitions. In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated in this Section 1:
“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Bid Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Ordinary Share is then listed or quoted on a Trading Market, the bid price of the Ordinary Share for the time in question (or the nearest preceding date) on the Trading Market on which the Ordinary Share is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if the OTCQB Venture Market (the “OTCQB”) or the OTCQX Best Market (the “OTCQX”) is not a Trading Market, the volume weighted average price of the Ordinary Share for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Ordinary Share is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Ordinary Share are then reported on the Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per Ordinary Share so reported, or (d) in all other cases, the fair market value of one Ordinary Share as determined by an independent appraiser selected in good faith by the Holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
“Board ofDirectors” means the board of directors of the Company.
“BusinessDay” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York generally are open for use by customers on such day.
“Commission” means the United States Securities and Exchange Commission.
“ExchangeAct” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“OrdinaryShare” means the ordinary shares of the Company, $0.000001 par value, and any other class of securities into which such securities may hereafter be reclassified or changed.
“OrdinaryShare Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Ordinary Shares, including, without limitation, any debt, preferred share, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Ordinary Shares.
“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“RegistrationStatement” means the Company’s registration statement on Form F-1 (File No. 333-275382), as amended.
“SecuritiesAct” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Subsidiary” means any subsidiary of the Company and shall, where applicable, also include any direct or indirect subsidiary of the Company formed or acquired after the date hereof.
“Trading Day” means a day on which the Ordinary Share is traded on a Trading Market.
“Trading Market” means any of the following markets or exchanges on which the Ordinary Share is listed or quoted for trading on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange, OTCQB or OTCQX (or any successors to any of the foregoing).
“TransferAgent” means Vstock Transfer, LLC, located at 18 Lafayette Place, Woodmere, NY 11598, and any successor transfer agent of the Company.
“UnderwritingAgreement” means the underwriting agreement, dated as of March 31, 2025 among the Company, The Benchmark Company, LLC and Axiom Capital Management, Inc. as the representatives of the underwriters named therein, as amended, modified or supplemented from time to time in accordance with its terms.
“VWAP” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Ordinary Share is then listed or quoted on a Trading Market, the daily volume weighted average price of the Ordinary Share for such date (or the nearest preceding date) on the Trading Market on which the Ordinary Share is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the Ordinary Share for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Ordinary Share is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Ordinary Share is then reported on the Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per Ordinary Share so reported, or (d) in all other cases, the fair market value of an Ordinary Share as determined by an independent appraiser selected in good faith by the holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
“Warrants” means this Warrant and any new Warrant or Warrants to be issued upon division, combination or partial exercise of this Warrant.
Section 2. Exercise.
a) Exercise of Warrant. Subject to the provisions of Section 2(e) herein, exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on or after the Initial Exercise Date and on or before the Termination Date, by delivery to the Company of a duly executed PDF copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto as Annex A (the***”Notice of Exercise”***), provided, however, that a Notice of Exercise shall only be deemed to have been delivered to the Company upon the delivery of the aggregate Exercise Price of the Warrant Shares specified in the applicable Notice of Exercise as specified in this Section 2(a). Within the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined in Section 2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the Warrant Shares specified in the applicable Notice of Exercise by wire transfer of immediately available funds or cashier’s check drawn on a United States bank unless the cashless exercise procedure specified in Section 2(c) below is specified in the applicable Notice of Exercise. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise be required. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading Days of the date on which the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise within one (1) Trading Day of receipt of such notice. Notwithstanding the foregoing, with respect to any Notice(s) of Exercise delivered on or prior to 4:00 p.m. (New York City time) on the Trading Date prior to the Initial Exercise Date, which may be delivered at any time after the time of execution of the Underwriting Agreement, the Company agrees to deliver the Warrant Shares subject to such notice(s) by 4:00 p.m. (New York City time) on the Initial Exercise Date and the Initial Exercise Date shall be the Warrant Share Delivery Date for purposes hereunder, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received by such Warrant Share Delivery Date.TheHolder and any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, followingthe purchase of a portion of the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at any giventime may be less than the amount stated on the face hereof.
b) Exercise Price. The exercise price per Ordinary Share under this Warrant shall be $4.00, subject to adjustment hereunder (the***”ExercisePrice”***).
c) Cashless Exercise. This Warrant may be exercised, in whole or in part, at such time by means of a “cashless exercise” in which the Holder shall be entitled to receive a number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
| (A) = | as applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of Exercise is (1) both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b)(68) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) at the option of the Holder, either (y) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise or (z) the Bid Price of the Ordinary Share on the principal Trading Market as reported by Bloomberg L.P. as of the time of the Holder’s execution of the applicable Notice of Exercise if such Notice of Exercise is executed during “regular trading hours” on a Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close of “regular trading hours” on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP on the date of the applicable Notice of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered pursuant to Section 2(a) hereof after the close of “regular trading hours” on such Trading Day; |
|---|---|
| (B) = | the Exercise Price of this Warrant, as adjusted hereunder; and |
| (X) = | the number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a cash exercise rather than a cashless exercise. |
If Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the Securities Act, the Warrant Shares shall take on the registered characteristics of the Warrants being exercised. The Company agrees not to take any position contrary to this Section 2(c).
Notwithstanding anything herein to the contrary, on the Termination Date, this Warrant shall be automatically exercised via cashless exercise pursuant to this Section 2(c).
d) Mechanics of Exercise.
i. Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such system and there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant Shares by Holder or (B) this Warrant is being exercised via cashless exercise, and otherwise by physical delivery of a certificate, registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by the date that is the earliest of (i) three (3) Trading Days after the delivery to the Company of the Notice of Exercise, (ii) two (2) Trading Days after delivery of the aggregate Exercise Price to the Company and (iii) the number of Trading Days comprising the Standard Settlement Period after the delivery to the Company of the Notice of Exercise (such date, the***”Warrant Share Delivery Date”). Upon delivery of the Notice of Exercise with payment to the Company of the Exercise Price (or by cashless exercise), the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares. If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of the Ordinary Share on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the fifth Trading Day after such liquidated damages begin to accrue) for each Trading Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain a transfer agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As used herein,”Standard Settlement Period”*** means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Ordinary Share as in effect on the date of delivery of the Notice of Exercise.
ii. Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant.
iii. Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(d)(i) by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv. Compensation for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions of Section 2(d)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, Ordinary Share to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise (a***”Buy-In”***), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s total purchase price (including brokerage commissions, if any) for the Ordinary Share so purchased exceeds (y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B) at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of Ordinary Shares that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases Ordinary Shares having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of Ordinary Shares with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver Ordinary Shares upon exercise of the Warrant as required pursuant to the terms hereof.
v. No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Exercise Price or round up to the next whole share.
vi. Charges, Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company, and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided, however, that, in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto as Annex B duly executed by the Holder and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
vii. Closing of Books. The Company will not close its shareholder books or records in any manner which prevents the timely exercise of this Warrant, pursuant to the terms hereof.
e) Holder’s Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons,”Attribution Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of Ordinary Shares beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of Ordinary Shares issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of Ordinary Shares which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or nonconverted portion of any other securities of the Company (including, without limitation, any other Ordinary Share Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 2(e), in determining the number of outstanding Ordinary Shares, a Holder may rely on the number of outstanding Ordinary Shares as reflected in (A) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company or the Transfer Agent setting forth the number of Ordinary Shares outstanding. Upon the written or oral request of a Holder, the Company shall within one Trading Day confirm orally and in writing to the Holder the number of Ordinary Shares then outstanding. In any case, the number of outstanding Ordinary Shares shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties since the date as of which such number of outstanding Ordinary Shares was reported. The***”Beneficial Ownership Limitation”*** shall be 4.99% of the number of Ordinary Shares outstanding immediately after giving effect to the issuance of Ordinary Shares issuable upon exercise of this Warrant. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2(e), provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of Ordinary Shares outstanding immediately after giving effect to the issuance of Ordinary Shares upon exercise of this Warrant held by the Holder and the provisions of this Section 2(e) shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61^st^ day after such notice is delivered to the Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 2(e) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant.
Section 3. Certain Adjustments.
a) Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise makes a distribution or distributions on Ordinary Shares or any other equity or equity equivalent securities payable in Ordinary Shares (which, for avoidance of doubt, shall not include any Ordinary Share issued by the Company upon exercise of this Warrant), (ii) subdivides outstanding Ordinary Shares into a larger number of shares, (iii) combines (including by way of reverse stock split) outstanding Ordinary Shares into a smaller number of shares, or (iv) issues by reclassification of Ordinary Shares any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which the numerator shall be the number of Ordinary Shares (excluding treasury shares, if any) outstanding immediately before such event and of which the denominator shall be the number of Ordinary Shares outstanding immediately after such event, and the number of shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant shall remain unchanged. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for the determination of shareholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.
b) Reserved.
c) Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants, issues or sells any Ordinary Share Equivalents or rights to purchase stock, warrants, securities or other property pro rata to all (or substantially all) of the record holders of any class of Ordinary Shares (the***”Purchase Rights”***), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of Ordinary Shares acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of Ordinary Shares are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that, to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such Ordinary Shares as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
d) Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to all (or substantially all) of holders of Ordinary Shares, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a***”Distribution”***), at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder had held the number of Ordinary Shares acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of Ordinary Shares are to be determined for the participation in such Distribution (provided, however, that, to the extent that the Holder’s right to participate in any such Distribution would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership of any Ordinary Shares as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
e) Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Ordinary Shares are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Ordinary Shares, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the Ordinary Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Ordinary Shares (not including any Ordinary Shares held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a***”FundamentalTransaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of Ordinary Shares of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the”Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Ordinary Shares for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Ordinary Share in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Ordinary Shares are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the”SuccessorEntity”***) to assume in writing all of the obligations of the Company under this Warrant in accordance with the provisions of this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Ordinary Shares acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein.
f) Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes of this Section 3, the number of Ordinary Shares deemed to be issued and outstanding as of a given date shall be the sum of the number of Ordinary Shares (excluding treasury shares, if any) issued and outstanding.
g) Notice to Holder.
i. Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii. Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Ordinary Shares, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Ordinary Shares, (C) the Company shall authorize the granting to all holders of the Ordinary Share rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights, (D) the approval of any shareholders of the Company shall be required in connection with any reclassification of the Ordinary Shares, any consolidation or merger to which the Company (or any of its Subsidiaries) is a party, any sale or transfer of all or substantially all of its assets, or any compulsory share exchange whereby the Ordinary Shares are converted into other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by email to the Holder at its last email address as it shall appear upon the Warrant Register of the Company, at least 20 calendar days prior to the applicable record or effective date hereinafter specified, a notice (unless such information is filed with the Commission, in which case a notice shall not be required) stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Ordinary Shares of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Ordinary Shares of record shall be entitled to exchange their Ordinary Shares for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent that any notice provided in this Warrant constitutes, or contains, material, non-public information regarding the Company or any of the Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Report on Form 8-K. The Holder shall remain entitled to exercise this Warrant during the period commencing on the date of such notice to the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
h) Voluntary Adjustment By Company. Subject to the rules and regulations of the Trading Market, the Company may at any time during the term of this Warrant, subject to the prior written consent of the Holder, reduce the then current Exercise Price to any amount and for any period of time deemed appropriate by the board of directors of the Company.
Section 4. Transfer of Warrant.
a) Transferability. The Holder of this Warrant agrees by its acceptance hereof, that such Holder will not: (a) sell, transfer, assign, pledge or hypothecate this Warrant for a period of one hundred eighty (180) days following April 2, 2025 (the “Commencement Date”) to anyone other than: (i) The Benchmark Company, LLC (“Benchmark”), Axiom Capital Management, Inc. (“Axiom”) or a FINRA member participating in the Company’s initial public offering, or (ii) an officer, partner, registered person or affiliate of Benchmark, Axiom or of any such FINRA member, in each case in accordance with FINRA Rule 5110(e)(1), or (b) cause this Warrant or the securities issuable hereunder to be the subject of any hedging, short sale, derivative, put or call transaction that would result in the effective economic disposition of this Warrant or the securities hereunder for a period of one hundred eighty (180) days following the Commencement Date, except as provided for in FINRA Rule 5110(e)(2). After 180 days after the Commencement Date, transfers to others may be made subject to compliance with or exemptions from applicable securities laws. Subject to the foregoing, this Warrant and all rights hereunder are transferable, in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written assignment of this Warrant substantially in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant in the name of the assignee or assignees, as applicable, and in the denomination or
denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the Company assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant Shares without having a new Warrant issued.
b) New Warrants. If this Warrant is not held in global form through DTC (or any successor depositary), this Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the initial issuance date of this Warrant and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
Section 5. Reserved
Section 6. Miscellaneous.
a) No Rights as Shareholders until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights, dividends or other rights as a shareholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly set forth in Section 3. Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant to Section 2(c) or to receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv) herein, including if the Company is for any reason unable to issue and deliver Warrant Shares upon exercise of this Warrant as required pursuant to the terms hereof, in no event shall the Company be required to net cash settle an exercise of this Warrant or cash settle in any other form.
b) Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any share certificate relating to the Warrant Shares, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or share certificate, if mutilated, the Company will make and deliver a new Warrant or share certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or share certificate.
c) Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business Day.
d) Authorized Shares.
The Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Ordinary Shares a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant. The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of the Trading Market upon which the Ordinary Shares may be listed. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue).
Except and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its amended and restated memorandum and articles of association or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may be, necessary to enable the Company to perform its obligations under this Warrant.
Before taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory body or bodies having jurisdiction thereof.
e) Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Warrant (whether brought against a party hereto or their respective affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Warrant and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If either party shall commence an action, suit or proceeding to enforce any provisions of this Warrant, the prevailing party in such action, suit or proceeding shall be reimbursed by the other party for their reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding. Notwithstanding the foregoing, nothing in this paragraph shall limit or restrict the federal district court in which a Holder may bring a claim under the federal securities laws.
f) Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
g) Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. No provision of this Warrant shall be construed as a waiver by the Holder of any rights which the Holder may have under the federal securities laws and the rules and regulations of the Commission thereunder. Without limiting any other provision of this Warrant, if the Company willfully and knowingly fails to comply with any provision of this Warrant, which results in any material damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including, but not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
h) Notices. Any and all notices or other communications or deliveries to be provided by the Holders hereunder including, without limitation, any Notice of Exercise, shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier service, addressed to the Company, at No. 1110, 11th Floor, Unit 1, Building 7, No. 477, Wanxing Road, Chengdu, Sichuan, China, 610041, Atten: Chief Executive Officer, or such other email address or address as the Company may specify for such purposes by notice to the Holders, with a copy to Ellenoff Grossman & Schole LLP, 1345 Avenue of the Americas, Attn: Richard I. Anslow, Esq., Email: ranslow@egsllp.com. Any and all notices or other communications or deliveries to be provided by the Company hereunder shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier service addressed to each Holder at the e-mail address or address of such Holder appearing on the books of the Company, with a copy to ArentFox Schiff, LLP, 1717 K Street, NW, Washington, DC 20006, Attn: Ralph De Martino, Esq., Email: ralph.demartino@afslaw.com. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the time of transmission, if such notice or communication is delivered via e-mail at the e-mail address set forth in this Section prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the time of transmission, if such notice or communication is delivered via e-mail at the e-mail address set forth in this Section on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given. To the extent that any notice provided hereunder constitutes, or contains, material, non-public information regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Report on Form 6-K.
i) Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase price of any Ordinary Shares or as a shareholder of the Company, whether such liability is asserted by the Company or by creditors of the Company.
j) Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any action for specific performance that a remedy at law would be adequate.
k) Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable by the Holder or holder of Warrant Shares.
l) Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company, on the one hand, and the Holder, on the other hand.
m) Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
n) Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.
********************
(Signature Page Follows)
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the 2^nd^day of April, 2025.
| WF International Limited | |
|---|---|
| By: | |
| Name: | Ke Chen |
| Title: | Chief Executive Officer |
ANNEX A
NOTICE OF EXERCISE
| TO: | WF International Limited (the “Company”) |
|---|
(1) The undersigned hereby elects to purchase Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised in full), and tenders herewith payment of the Exercise Price in full, together with all applicable transfer taxes, if any.
(2) Payment shall take the form of (check applicable box):
☐ in lawful money of the United States; or
☐ the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection 2(c), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure set forth in subsection 2(c).
(3) Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
_________________________________
The Warrant Shares shall be delivered to the following DWAC Account Number:
_________________________________
_________________________________
_________________________________
[SIGNATURE OF HOLDER]
Name of Investing Entity:
Signature of Authorized Signatory of Investing Entity:
Name of Authorized Signatory:
Title of Authorized Signatory:
Date:
ANNEX B
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this formand supply required information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to:
| Name: | |
|---|---|
| (Please Print) | |
| Address: | |
| (Please Print) | |
| Phone Number: | |
| Email Address: | |
| Dated:___________, ______ | |
| Holder’s<br><br> <br><br><br> <br>Signature: | |
| --- | |
| Holder’s<br><br> <br><br><br> <br>Address: | |
| (Signature Guaranteed): | Date:____________, _____ |
| --- | --- |
Signature to be guaranteed by an authorized officer of a chartered bank,trust company or medallion guaranteed by an investment dealer who is a member of a recognized stock exchange.
EXHIBIT 10.1
INDEMNIFICATION ESCROW AGREEMENT
THISAGREEMENT (this “Agreement”) is made as of April 2, 2025 by and among WF International Limited, a Cayman Islands exempted company (the “Issuer”), the Underwriters whose names and addresses appears on the Information Sheet (as defined herein) attached to this Agreement and Continental Stock Transfer & Trust Company, 1 State Street, 30th Floor, New York, New York 10004 (the “Escrow Agent”). Capitalized terms used herein and not otherwise defined herein shall have the respective meaning set forth in the Underwriting Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, the Issuer has filed with the Securities and Exchange Commission (the “Commission”) a Registration Statement (the “RegistrationStatement”) covering a proposed public offering of its securities (the “Securities”);
WHEREAS, the Underwriters propose, pursuant to the terms of that certain Underwriting Agreement, dated as of March 31, 2025, by and between the Underwriters and the Issuer (the “Underwriting Agreement”) to offer the Securities, as agent for the Issuer, for sale in an initial public offering on a “firm commitment” basis (the “Offering”);
WHEREAS, the Underwriting Agreement contemplates the execution and delivery of this Agreement and the deposit by Issuer at the closing of the Offering with the Escrow Agent of **$**300,000 in proceeds from the Offering (such amount, including any interest earned thereon, the “EscrowAmount”) in order to provide source of funding for certain indemnification obligations of the Issuer pursuant to the Underwriting Agreement, and the parties hereto wish such deposit to be subject to the terms and conditions set forth herein and in the Underwriting Agreement;
WHEREAS, the Issuer and the Underwriters propose to establish an Escrow Account (the “Escrow Account”), to which the Escrow Amount is be deposited, and the Escrow Agent is willing to establish the Escrow Account and the terms thereof are subject to the conditions hereinafter set forth;
NOW,THEREFORE in consideration of the premises and mutual covenants herein contained, the parties hereto hereby agree as follows:
| 1 | Information Sheet.<br> Each capitalized term not otherwise defined in this Agreement shall have the meaning set forth for such term on the information<br> sheet which is attached to this Agreement and is incorporated by reference herein and made a pact hereof (the “Information Sheet”). |
|---|---|
| 2 | Establishment of the Bank Account. |
| --- | --- |
| 2.1 | The Escrow Agent shall establish an non-interest bank account at the branch of JP Morgan Chase selected<br>by the Escrow Agent, and bearing the designation set forth on the Information Sheet (heretofore defined as the “Bank Account”);<br>while the funds are on deposit, the Escrow Agent may earn bank credits or other consideration. The purpose of the Bank Account is for<br>(a) the deposit of the Escrow Amount by the Issuer to the Escrow Agent, (b) the holding of the Escrow Amount and (c) the disbursement<br>of the Escrow Amount, all as described herein. |
| --- | --- |
| 3 | Deposits to the Bank Account. |
| --- | --- |
| 3.1 | In connection with the disbursement of the proceeds from the Offering by the Underwriters, the Issuer<br>shall instruct the Underwriters to deliver to the Escrow Agent, by wire transfer in accordance with the wire transfer instructions set<br>forth on the Information Sheet, the Escrow Amount. Upon the Escrow Agent’s receipt of the Escrow Amount, it shall be credited to<br>the Escrow Account. |
| --- | --- |
| 3.2 | Promptly after receiving the Escrow Amount as described in Section 3.1, the Escrow Agent shall deposit<br>the same into the Bank Account. The Escrow Agent shall cause the Bank to process the Escrow Amount for collection through the banking<br>system. |
| --- | --- |
| 4 | Disbursement from the Bank Account. |
| --- | --- |
| 4.1 | Promptly following the date that is 36 months after the closing of the Offering, the Escrow Agent shall<br>release the remaining balance of the Escrow Account, if any, to the Issuer (subject to withholding as applicable) pursuant to a Joint<br>Release Instruction, in each case, after deduction of such amount that is the subject of all claim notices delivered by the Underwriter<br>to the Issuer in accordance with Section 7 of the Underwriting Agreement. |
| --- | --- |
| 4.2 | In the event that the Underwriter delivers a claim notice in accordance with Section 5 of the Underwriting<br>Agreement on or prior to the day that is 36 months after the closing of the Offering, as applicable, the Escrow Agent shall continue to<br>hold in escrow and shall not release, an amount of funds then held in escrow equal to the lesser of: (i) the amount claimed by the Underwriter<br>which is payable to the Underwriter in accordance with the terms of Section 5 of the Underwriting Agreement (but not in any event in excess<br>of the Escrow Amount); or (ii) the balance of the Escrow Account which is available for release and distribution to the Issuer. The portion<br>of the Escrow Account in excess of the amount specified in clause (i) of the preceding sentence (as may be the subject of one or more<br>timely delivered claim notices) shall be released by the Escrow Agent as specified in Section 4.1 (as may be applicable). With respect<br>to the amounts specified in any such timely delivered claim notices, the Escrow Agent shall promptly disburse funds from the Escrow Account<br>within three (3) Business Days after delivery to the Escrow Agent of: (i) a Joint Release Instruction, as may be directed in such Joint<br>Release Instruction; or (ii) if the Underwriters and the Issuer are unable for any reason to issue a Joint Release Instruction (including<br>in any case in which the Underwriters and the Issuer are unable to agree on the terms of a Joint Release Instruction), within ten (10)<br>Business Days following the request of a party to issue such Joint Release Instruction, as specified in the terms of a Final Determination<br>(as defined herein). |
| --- | --- |
| 4.3 | For purposes of this Agreement: (a) “Business Day” means any day that is not a Saturday,<br>a Sunday or other day on which commercial banks located in New York, New York, are obligated or authorized by applicable law to remain<br>closed for business; (b) “Final Determination” means a final non-appealable order of any court of competent jurisdiction<br>which may be issued, together with (A) a certificate of the prevailing party to the effect that such judgment is final and non-appealable<br>and from a court of competent jurisdiction having proper authority and (B) the written payment instructions of the prevailing party; and<br>(c) “Joint Release Instruction” means a joint written instruction of the Underwriters and the Issuer which is executed<br>by the Underwriters and the Issuer, to the Escrow Agent directing the Escrow Agent to disburse all or a portion of the Escrow Fund, as<br>applicable. |
| --- | --- |
| 4.4 | Upon disbursement of the Escrow Amount pursuant to the terms of this Article 4, the Escrow Agent shall<br>be relieved of all further obligations and released from all liability under this Agreement. It is expressly agreed and understood that<br>in no event shall the aggregate amount of payments made by the Escrow Agent exceed the amount of the Escrow Amount. |
| --- | --- |
| 5 | Rights, Duties and Responsibilities of Escrow Agent. It is understood and agreed that the duties of the Escrow Agent are purely ministerial in nature, and that: |
| --- | --- |
| 5.1 | The Escrow Agent shall not be responsible for or be required to enforce any of the terms or conditions<br>of the Underwriting Agreement or any other agreement between the Underwriters and the Issuer nor shall the Escrow Agent be responsible<br>for the performance by the Underwriters or the Issuer of their respective obligations under this Agreement. |
| --- | --- |
| 5.2 | The Escrow Agent shall be entitled to rely upon the accuracy, act in reliance upon the contents, and assume<br>the genuineness of any notice, instruction, certificate**,** signature, instrument or other document which is given to the Escrow Agent<br>pursuant to this Agreement without the necessity of the Escrow Agent verifying the truth or accuracy thereof. The Escrow Agent shall not<br>be obligated to make any inquiry as to the authority, capacity, existence or identity or any person purporting to give any such notice<br>or instructions or to execute any such certificate, instrument or other document. |
| --- | --- |
| 5.3 | If the Escrow Agent is uncertain as to its duties or rights hereunder or shall receive instructions with<br>respect to the Bank Account, the Escrow Amount which, in its sole determination, are in conflict either with other instructions received<br>by it or with any provision of this Agreement, it shall be entitled to hold the Escrow Amount or a portion thereof, in the Bank Account<br>pending the resolution of such uncertainty to the Escrow Agent’s sole satisfaction, by final judgment of a court or courts of competent<br>jurisdiction or otherwise; or the Escrow Agent, at its sole option, may deposit the Escrow Amount with the Clerk of a court of competent<br>jurisdiction in a proceeding to which all parties in interest are joined. Upon the deposit by the Escrow Agent of the Escrow Amount with<br>the Clerk of any court, the Escrow Agent shall be relieved of all further obligations and released from all liability hereunder. |
| --- | --- |
| 5.4 | The Escrow Agent shall not be liable for any action taken or omitted hereunder, or for the misconduct<br>of any employee, agent or attorney appointed by it, except in the case of willful misconduct or gross negligence. The Escrow Agent shall<br>be entitled to consult with counsel of its own choosing and shall not be Liable for any action taken, suffered or omitted by it in accordance<br>with the advice of such counsel. |
| --- | --- |
| 5.5 | The Escrow Agent shall have no responsibility at any time to ascertain whether or not any security interest<br>exists in the Escrow Amount or any part thereof or to file any statement under the Uniform Commercial Code with respect to the Escrow<br>Amount or any part thereof. |
| --- | --- |
| 6 | Amendment; Resignation. This Agreement may be altered or amended only with the written consent of the Issuer, the Underwriters and the Escrow Agent. |
| --- | --- |
| 6.1 | The Escrow Agent may resign for any reason upon thirty (30) Business Days’ written notice to the<br>Issuer and the Underwriters. Should the Escrow Agent resign as herein provided**,** it shall not be required to make any disbursement<br>or otherwise dispose of the Escrow Amount, but its only duty shall be to hold the Escrow Amount until they clear the banking system for<br>a period of not more than five (5) Business Days following the effective date of such resignation, at which time (a) if a successor escrow<br>agent shall have been appointed and written notice thereof (including the name and address of such successor escrow agent) shall have<br>been given to the resigning Escrow Agent by the Issuer, the Underwriters and such successor escrow agent, then the resigning Escrow Agent<br>shall pay over to the successor escrow agent the Escrow Amount, less any portion thereof previously paid out in accordance with this Agreement;<br>or (b) if the resigning Escrow Agent shall not have received written notice signed by the Issuer, the Underwriters and a successor escrow<br>agent, then the resigning Escrow Agent shall promptly deposit the Escrow Amount with the Clerk of a court of competent jurisdiction in<br>a proceeding to which all parties in interest are joined. Upon the deposit by the Escrow Agent of the Escrow Amount with the Clerk of<br>any court, the Escrow Agent shall be relieved of all further obligations and released from all liability hereunder. Without limiting the<br>provisions of Section 8 hereof, the resigning Escrow Agent shall be entitled to be reimbursed by the Issuer and the Underwriters for any<br>actual and reasonable expenses incurred in connection with its resignation, transfer of the Escrow Amount to a successor escrow agent<br>or distribution of the Escrow Amount pursuant to this Section 6. |
| --- | --- |
| 7 | Representations and Warranties. The Issuer and the Underwriters hereby jointly and severally represent and warrant to the Escrow Agent that: |
| --- | --- |
| 7.1 | No party other than the parties hereto have, or shall have, any lien, claim or security interest in the<br>Escrow Amounts or the Fund or any part thereof. |
| --- | --- |
| 7.2 | No financing statement under the Uniform Commercial Code is on file in any jurisdiction claiming a security<br>interest in or describing (whether specifically or generally) the Escrow Amount or any part thereof. |
| --- | --- |
| 7.3 | All of the information contained in the Information Sheet is, as of the date hereof, and will be, at the<br>time of any disbursement of the Fund, true and correct. |
| --- | --- |
| 7.4 | Reasonable controls have been established and required due diligence performed to comply with “Know<br>Your Customer” regulations, USA Patriot Act, Office of the Foreign Asset Control (OFAC) regulations and the Bank Secrecy Act. |
| --- | --- |
| 8 | Fees and Expenses. The Escrow Agent shall be entitled to the Escrow Agent Fees set forth on the Information Sheet, payable by the Issuer as and when stated therein. In addition, the Issuer agrees to reimburse the Escrow Agent for any reasonable expenses incurred in connection with this Agreement, including, but not limited to, reasonable counsel fees. Upon receipt of the Escrow Amount, the Escrow Agent shall have a lien thereupon to the extent of its fees for services as Escrow Agent. |
| --- | --- |
| 9 | Indemnification and Contribution. |
| --- | --- |
| 9.1 | The Issuer and the Underwriters (collectively referred to as the “Indemnitors”) jointly<br>and severally agree to indemnify the Escrow Agent and its officers, directors, employees, agents and shareholders (collectively referred<br>to as the “ Indemnitees”) against, and hold them harmless of and from, any and all loss, liability, cost, damage and<br>expense, including without limitation, reasonable counsel fees, which the Indemnitees may suffer or incur by reason of any action, claim<br>or proceeding brought by a third party against the Indemnitees arising out of or relating in any way to this Agreement or any transaction<br>to which this Agreement relates, unless such action, claim or proceeding is the result of the willful misconduct or gross negligence of<br>the Indemnitees |
| --- | --- |
| 9.2 | If the indemnification provided for in Section 9.1 is applicable, but for any reason is held to be unavailable,<br>the Indemnitors shall contribute such amounts as are just and equitable to pay, or to reimburse the Indemnitees for, the aggregate of<br>any and all losses, liabilities, costs, damages and expenses, including counsel fees, actually incurred by the Indemnitees as a result<br>of or in connection with, and any amount paid in settlement of, any action, claim or proceeding arising out of or relating in any way<br>to any actions or omissions of the Indemnitors. |
| --- | --- |
| 9.3 | The provisions of this Article 9 shall survive any termination of this Agreement, whether by disbursement<br>of the Escrow Amount, resignation of the Escrow Agent or otherwise. |
| --- | --- |
| 10 | Governing Law and Assignment. This Agreement shall be construed in accordance with and governed by the laws of the State of New York and shall<br> be binding upon the parties hereto and their respective successors and assigns; provided, however, that any assignment or transfer<br> by any party of its rights under this Agreement or with respect to the Escrow Amounts shall be void as against the Escrow Agent unless<br> (a) written notice thereof shall be given to the Escrow Agent; and (b) the Escrow Agent shall have consented in writing to such assignment<br> or transfer. |
| --- | --- |
| 11 | Notices.<br> All notices required to be given in connection with this Agreement shall be sent by registered or certified mail, return receipt<br> requested, or by hand delivery with receipt acknowledged, or by the Express Mail service offered by the United States Post Office,<br> or by electronic transmission; including by way of e-mail (as long as such email is accompanied by a PDF or similar version of the<br> relevant document bearing the signature of an authorized representative for the parties sending the notice) with email confirmation<br> of receipt, and addressed, if to the Issuer or the Underwriters, at their respective addresses set forth on the Information Sheet,<br> and if to the Escrow Agent, at its address set forth above, to the attention of the Trust Department. |
| --- | --- |
| 12 | Severability.<br> If any provision of this Agreement or the application thereof to any person or circumstance shall be determined to be invalid or<br> unenforceable, the remaining provisions of this Agreement or the application of such provision to persons or circumstances other<br> than those to which it is held invalid or unenforceable shall not be affected thereby and shall be valid and enforceable to the fullest<br> extent permitted by law. |
| --- | --- |
| 13 | Execution in Several Counterparts. This Agreement may be executed in several counterparts or by separate instruments, and all of such counterparts<br> and instruments shall constitute one agreement, binding on all of the parties hereto. |
| --- | --- |
| 14 | Entire Agreement.<br> This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes<br> all prior agreements and understandings (written or oral) of the parties in connection therewith. |
| --- | --- |
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day and year first above written.
| THE ISSUER | THE ESCROW AGENT | ||
|---|---|---|---|
| WF International Limited | CONTINENTAL STOCK TRANSFER & | ||
| TRUST COMPANY | |||
| By: | /s/ Ni Jiang | By: | /s/ Francis Wolf |
| Name: Ni Jiang | Name: Francis Wolf | ||
| Title: Vice President | |||
| Title: Chairwoman and Director | |||
| THE UNDERWRITERS | |||
| --- | --- | ||
| The Benchmark Company LLC | |||
| By: | /s/ John J. Borer III | ||
| Name: John J. Borer III | |||
| Title: Senior Managing Director | |||
| Axiom Capital Management, Inc. | |||
| --- | --- | ||
| By: | /s/ Liam F. Dalton | ||
| Name: Liam F. Dalton | |||
| Title: Chief Executive Officer |
EXHIBIT A
ESCROW AGREEMENT INFORMATION SHEET
EXHIBIT 99.1
WF International Limited Announces Pricing of InitialPublic Offering and Listing on the Nasdaq Capital Market
Chengdu, CHINA – March 31, 2025 (GlobeNewswire) -- WF International Limited (the “Company”), an integrated electromechanical solutions company specializing in the supply, installation, fitting-out, and maintenance of HVAC systems, floor heating systems, and water purification systems, today announced the pricing of its initial public offering (the “Offering”) of 1,400,000 ordinary shares at a public offering price of $4.00 per share (the “Offering Price”) to the public. The Company expects to receive aggregate gross proceeds of $5,600,000, before deducting underwriting discounts and other related expenses. The Company’s ordinary shares have been approved for listing on the Nasdaq Capital Market and are expected to begin trading on April 1, 2025, under the ticker symbol “WXM.”
The Company has granted the underwriters a 45-day option to purchase up to an additional 210,000 ordinary shares at the Offering Price, representing 15% of the ordinary shares sold in the Offering.
The Offering is expected to close on April 2, 2025, subject to the satisfaction of customary closing conditions.
The Benchmark Company, LLC and Axiom Capital Management, Inc. are acting as joint book-running managers for the Offering.
A registration statement on Form F-1 relating to the Offering was filed with the U.S. Securities and Exchange Commission (the “SEC”) (File Number: 333-275382), as amended, and was declared effective by the SEC on December 20, 2024. A post-effective amendment to the registration statement on Form F-1 relating to the Offering (File No. 333-275382) was filed with the SEC and was declared effective by the SEC on March 26, 2025. The offering of the securities is being made only by means of a prospectus, forming a part of the registration statement. Electronic copies of the final prospectus relating to the Offering, when available, may be obtained by visiting the SEC’s website located at http://www.sec.gov or by contacting The Benchmark Company, LLC, Attention: Prospectus Department, 150 E. 58th Street, 17th floor, New York, NY 10155, by email at prospectus@benchmarkcompany.com, or by telephone at (212) 312-6700. In addition, a copy of the prospectus relating to the Offering may be obtained via the SEC’s website at www.sec.gov.
Before you invest, you should read the prospectus and other documents the Company has filed or will file with the SEC for more complete information about the Company and the Offering. This press release shall not constitute an offer to sell, or the solicitation of an offer to buy any of the Company’s securities, nor shall such securities be offered or sold in the United States absent registration or an applicable exemption from registration, nor shall there be any offer, solicitation or sale of the Company’s securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or other jurisdiction.
About WF International Limited
WF International Limited specializes in the supply, installation, fitting-out, and maintenance services for HVAC systems, floor heating systems, and water purification systems. With extensive experience serving commercial projects and high-end commercial and residential projects throughout Sichuan, China, the Company has established itself as a trusted provider of premium electromechanical solutions.
The Company’s portfolio includes installations for projects such as the International Finance Square HVAC projects across China, Chengdu Vanke Charm City, Chengdu Raffles Plaza, Chengdu Yinshi Plaza, Chengdu Metro No. Ten Line, and Panzhihua Jinhai Hotel.
Since 2017, WF International has expanded its service offerings to include comprehensive heating and water purification solutions, positioning itself as an integrated supplier of both electromechanical products and installation services for large-scaled commercial projects and commercial real estate development clients that offer high-end fully furnished homes. For more information, please visit our website at www.wf.international.
Forward-Looking Statements
Certain statements in this announcement are forward-looking statements, including, but not limited to, the Company’s proposed Offering. These forward-looking statements involve known and unknown risks and uncertainties and are based on the Company’s current expectations and projections about future events that the Company believes may affect its financial condition, results of operations, business strategy and financial needs, including the expectation that the Offering will be successfully completed. Investors can identify these forward-looking statements by words or phrases such as “may,” “will,” “expect,” “anticipate,” “aim,” “estimate,” “intend,” “plan,” “believe,” “likely,” “potential,” and “continue.” These statements are based on current expectations and projections about future events that may affect our financial condition, results of operations, business strategy, and financial needs. Actual results may differ materially due to risks and uncertainties, including those in our “Risk Factors” section in the registration statement filed with the SEC. These factors include, but are not limited to: the uncertainties related to market conditions, the completion of the Offering on the anticipated terms or at all, industry growth and competition, COVID-19 impacts, supplier and customer dependencies, project execution capabilities, expansion plans, economic and political conditions, and technological changes. Although the Company believes that the expectations expressed in these forward-looking statements are reasonable, it cannot assure you that such expectations will turn out to be correct, and the Company cautions investors that actual results may differ materially from the anticipated results. Investors should not place undue reliance on forward-looking statements. Additional factors are discussed in the Company’s filings with the SEC, which are available for review at www.sec.gov. The Company undertakes no obligation to publicly revise these forward-looking statements to reflect events or circumstances that arise after the date hereof.
Investor Relations Contact:
Matthew Abenante, IRC
President
Strategic Investor Relations, LLC
Tel: 347-947-2093
Email: matthew@strategic-ir.com
EXHIBIT 99.2
WF International Limited Announces Closing of InitialPublic Offering
Chengdu, CHINA – April 2, 2025 (GlobeNewswire) -- WF International Limited (the “Company”) (NASDAQ: WXM), an integrated electromechanical solutions company specializing in the supply, installation, fitting-out, and maintenance of HVAC systems, floor heating systems, and water purification systems, today announced the successful closing of its initial public offering (the “Offering”) of 1,400,000 ordinary shares at a public offering price of $4.00 per share (the “Offering Price”) to the public. The Offering generated total gross proceeds of $5,600,000, before deducting underwriting discounts and other related expenses. The Company’s ordinary shares began trading on the Nasdaq Capital Market on April 1, 2025, under the ticker symbol “WXM.”
In addition, the Company has granted the underwriters a 30-day option to purchase up to an additional 210,000 ordinary shares at the Offering Price, representing 15% of the ordinary shares sold in the Offering.
The Benchmark Company, LLC and Axiom Capital Management, Inc. acted as joint book-running managers for the Offering. Ellenoff Grossman & Schole LLP acted as U.S. counsel to the Company, and ArentFox Schiff LLP acted as U.S. counsel to the underwriters, in connection with the Offering.
A registration statement on Form F-1 relating to the Offering was filed with the U.S. Securities and Exchange Commission (the “SEC”) (File Number: 333-275382), as amended, and was declared effective by the SEC on December 20, 2024. A post-effective amendment to the registration statement on Form F-1 relating to the Offering (File No. 333-275382) was filed with the SEC and was declared effective by the SEC on March 26, 2025. The offering of the securities is being made only by means of a prospectus, forming a part of the registration statement. Electronic copies of the final prospectus relating to the Offering, when available, may be obtained by visiting the SEC’s website located at http://www.sec.gov or by contacting The Benchmark Company, LLC, Attention: Prospectus Department, 150 E. 58th Street, 17th floor, New York, NY 10155, by email at prospectus@benchmarkcompany.com, or by telephone at (212) 312-6700. In addition, a copy of the prospectus relating to the Offering may be obtained via the SEC’s website at www.sec.gov.
Before you invest, you should read the prospectus and other documents the Company has filed or will file with the SEC for more complete information about the Company and the Offering. This press release shall not constitute an offer to sell, or the solicitation of an offer to buy any of the Company’s securities, nor shall such securities be offered or sold in the United States absent registration or an applicable exemption from registration, nor shall there be any offer, solicitation or sale of the Company’s securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or other jurisdiction.
About WF International Limited
WF International Limited specializes in the supply, installation, fitting-out, and maintenance services for HVAC systems, floor heating systems, and water purification systems. With extensive experience serving commercial projects and high-end residential projects throughout Sichuan, China, the Company has established itself as a trusted provider of premium electromechanical solutions.
The Company’s portfolio includes installations for HVAC projects such as the International Finance Squares across China, Chengdu Vanke Charm City, Chengdu Raffles Plaza, Chengdu Yinshi Plaza, Chengdu Metro No. Ten Line, and Panzhihua Jinhai Hotel.
Since 2017, WF International has expanded its service offerings to include comprehensive heating and water purification solutions, positioning itself as an integrated supplier of both electromechanical products and installation services for large-scaled commercial projects and real estate developer clients that offer high-end fully furnished homes. For more information, please visit our website at www.wf.international.
Forward-Looking Statements
Certain statements in this announcement are forward-looking statements, including, but not limited to, the Company’s anticipated use of proceeds of this Offering. Investors can identify these forward-looking statements by words or phrases such as “may,” “will,” “expect,” “anticipate,” “aim,” “estimate,” “intend,” “plan,” “believe,” “likely,” “potential,” and “continue.” These statements are based on current expectations and projections about future events that may affect our financial condition, results of operations, business strategy, and financial needs. Actual results may differ materially due to risks and uncertainties, including those in our “Risk Factors” section in the registration statement filed with the SEC. These factors include, but are not limited to: the uncertainties related to market conditions, industry growth and competition, supplier and customer dependencies, project execution capabilities, expansion plans, economic and political conditions, and technological changes. Additional factors are discussed in the Company’s filings with the SEC, which are available for review at www.sec.gov. Although the Company believes that the expectations expressed in these forward-looking statements are reasonable, it cannot assure you that such expectations will turn out to be correct, and the Company cautions investors that actual results may differ materially from the anticipated results. Investors should not place undue reliance on forward-looking statements. The Company undertakes no obligation to publicly revise these forward-looking statements to reflect events or circumstances that arise after the date hereof.
Investor Relations Contact:
Matthew Abenante, IRC
President
Strategic Investor Relations, LLC
Tel: 347-947-2093
Email: matthew@strategic-ir.com