UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of
1934
(Amendment No. ________)*
WISeKey International Holding AG
(Name of Issuer)
Class A ordinary shares, par value CHF 0.01 per share
Class B ordinary shares, par value CHF 0.05 per share
(Title of Class of Securities)
97727L200**
(CUSIP Number)
Carlos Moreira
c/o
WISeKey International Holding AG
General-Guisan-Strasse 6
CH-6300 Zug, Switzerland
Tel: +41-22-594-3000
Fax: +41-22-594-3001
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
January 16, 2020
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ☐
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
** This CUSIP applies to the American Depositary Shares of the Issuer, each representing five Class B ordinary shares. No CUSIP has been assigned to the Class A ordinary shares or Class B ordinary shares of the Issuer.
The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934, as amended (the "Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
| CUSIP No. 97727L200 | 13D | Page 2 of 7 Pages |
| 1 |
NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Carlos Moreira
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| 2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (see instructions)
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(a) ☐ (b) ☐
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| 3 |
SEC USE ONLY
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| 4 |
SOURCE OF FUNDS (see instructions)
PF |
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| 5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
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☐ | |
| 6 |
CITIZENSHIP OR PLACE OF ORGANIZATION Switzerland |
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NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 |
SOLE VOTING POWER
38,508,733 Class A ordinary shares 953,179 Class B ordinary shares |
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| 8 |
SHARED VOTING POWER 0 |
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9
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SOLE DISPOSITIVE POWER 38,508,733 Class A ordinary shares 953,179 Class B ordinary shares |
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10
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SHARED DISPOSITIVE POWER 0 |
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 38,508,733 Class A ordinary shares 953,179 Class B ordinary shares |
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| 12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see instructions)
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☐ | |
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 96.2% of the Class A ordinary shares 3.1% of the Class B ordinary shares (1) |
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| 14 |
TYPE OF REPORTING PERSON (see instructions) IN |
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| (1) | The percentage of the class of securities beneficially owned by the reporting person is calculated based on (i) 40,021,988 Class A ordinary shares and (ii) 30,789,624 Class B ordinary shares of the Issuer actually issued and outstanding as of January 27, 2020. |
| CUSIP No. 97727L200 | 13D | Page 3 of 7 Pages |
Item 1. Security and Issuer.
This Schedule 13D (the “Schedule 13D”) relates to Class A ordinary shares, par value CH0.01 per share and Class B ordinary shares, par value CH0.05 per share (including the Class B ordinary shares represented by American Depositary Shares) of WISeKey International Holding AG, a company incorporated under the laws of Switzerland (the “Issuer”). The Issuer’s American Depositary Shares (the “ADSs”), each representing five Class B ordinary shares, are listed on the NASDAQ Stock Market under the symbol “WKEY.” The Issuer’s Class B ordinary shares are listed on the Swiss Exchange (“SIX”) under the symbol “WIHN.” Each Class A ordinary share and Class B ordinary share is entitled to one vote per share.
The address of the principal executive office of the Issuer is General-Guisan-Strasse 6, 6300 Zug, Switzerland.
As used in this Schedule 13D, the term “Ordinary Shares” includes Class A ordinary shares and Class B ordinary shares (including the Class B ordinary shares represented by ADSs). Information given in response to each item shall be deemed incorporated by reference in all other items, as applicable.
Item 2. Identity and Background.
| (a) | This Schedule 13D is being filed by Carlos Moreira, pursuant to the Act. |
| (b) | Mr. Moreira’s business address is: |
c/o WISeKey International Holding AG
General-Guisan-Strasse 6
6300 Zug
Switzerland
| (c) | The principal occupation of Mr. Moreira: Chief Executive Officer and Chairman of the Board of Directors of the Issuer. |
| (d) | During the past five years, Mr. Moreira has not been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). |
| (e) | During the past five years, Mr. Moreira has not been a party to any civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. |
| (f) | Mr. Moreira is a citizen of Switzerland. |
Item 3. Source or Amount of Funds or Other Consideration.
In November 2015, Mr. Moreira contributed the full capital amount of the Issuer and acquired 10,000,000 Class A ordinary shares at the time of the incorporation of the Issuer. The funds contributed for this were provided by WiseTrust SA, which, at the time, was 100% owned by Mr. Moreira.
| CUSIP No. 97727L200 | 13D | Page 4 of 7 Pages |
As of March 01, 2016, Mr. Moreira held 100% of the equity interests in WiseTrust SA, a predecessor of the Issuer. On March 02, 2016, Mr. Moreira acquired 30,021,988 Class A ordinary shares in consideration for his contribution of WiseTrust SA shares to the Issuer.
With the reverse acquisition on March 22, 2016, whereby WISeKey International Holding AG acquired the operations of WISeKey SA, Mr. Moreira converted his shareholding in WISeKey SA into 160,700 Class B ordinary shares.
On March 31, 2016, Mr. Moreira entered into a lock-up agreement whereby Mr. Moreira exchanged 11,421,320 of his Class A ordinary shares for 2,284,264 Class B ordinary shares corresponding to a ratio of 5:1.
During the year 2017, through private share exchange transactions, Mr. Moreira exchanged 1,956,602 Class B ordinary shares into 9,783,015 Class A ordinary shares corresponding to a ratio of 5:1.
On April 24, 2018, Mr. Moreira repaid the Issuer 100,000 Class B ordinary shares as full settlement of the amount due for a short-term loan granted to him by the Issuer in the amount of CHF 472,500 (USD 484,751) on November 03, 2017.
In 2018, a combination of exchange of Class B ordinary shares for Class A ordinary shares and sale of Class B ordinary shares to the company as debt repayment brought Mr. Moreira's shareholding to 38,508,733 Class A ordinary shares and 953,179 Class B ordinary shares as of September 30, 2019.
On September 27, 2019, in connection with Mr. Moreira’s service as an employee of the Issuer and pursuant to an Option Agreement dated September 27, 2019 and the Wisekey Employee Stock Option Plan dated September 29, 2016 (the terms of such agreements are incorporated by reference herein), the Issuer granted Mr. Moreira 693,184 options for the acquisition of an equal number of Class B ordinary shares. The options may be exercised at any time on or before September 26, 2026, at an exercise price per option equal to CHF 0.05 per Class B ordinary share. On January 16, 2020, Mr. Moreira exercised all of these options. The payment of the exercise price was paid from the personal funds of Mr. Moreira.
Item 4. Purpose of Transaction.
The information set forth in Item 3 is hereby incorporated by reference in this Item 4.
Mr. Moreira is the Chief Executive Officer and Chairman of the Board of the Issuer. With the exception of the exercise of the options on January 16, 2020 (as described in Item 3 above), all of the Ordinary Shares beneficially owned by Mr. Moreira were acquired prior to the listing of the Issuer’s ADSs on the NASDAQ Stock Market on December 04, 2019. Mr. Moreira entered into these transactions to acquire and maintain control of the Issuer and for investment purposes.
Mr. Moreira has no present plans or proposals for the disposition of shares beneficially owned by him or for acquisition of additional shares. Mr. Moreira, however, expects to evaluate on a continuing basis his goals and objectives, other business opportunities available to him, and general economic and equity market conditions, as well as the Issuer’s business operations and prospects. Based on such evaluations, Mr. Moreira may change his plans and intentions and may determine to sell or otherwise dispose of some or all of the shares beneficially owned by him or to acquire additional shares. In addition, Mr. Moreira may, from time to time, transfer shares beneficially owned by him for tax or other economic planning purposes.
Except as set forth in this Schedule 13D, the Reporting Person does not have any present plans which relate to or would result in:
(a) The acquisition by any person of additional securities of the Issuer, or the disposition of securities of the Issuer;
| CUSIP No. 97727L200 | 13D | Page 5 of 7 Pages |
(b) An extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Issuer or any of its subsidiaries;
(c) A sale or transfer of a material amount of assets of the Issuer or any of its subsidiaries;
(d) Any change in the present board of directors or management of the Issuer, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the board;
(e) Any material change in the present capitalization or dividend policy of the Issuer;
(f) Any other material change in the Issuer’s business or corporate structure;
(g) Any changes in the Issuer’s charter, bylaws or instruments corresponding thereto or other actions which may impede the acquisition of control of the Issuer by any person;
(h) A class of securities of the Issuer to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association;
(i) A class of equity securities of the Issuer becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Act; or
(j) Any action similar to any of those enumerated above.
Item 5. Interest in Securities of the Issuer.
| (a) | As of January 27, 2020, Mr. Moreira beneficially owned: (i) 38,508,733 Class A ordinary shares, representing 96.2% of the actually issued and outstanding Class A ordinary shares, and (ii) 953,179 Class B Ordinary Shares representing 3.1% of the actually issued and outstanding Class B ordinary shares. Each Class A ordinary share and Class B ordinary share is entitled to one vote per share. |
| (b) | As of January 27, 2020, the number of Ordinary Shares that are beneficially owned by Mr. Moreira as to which there is sole or shared power to vote or direct the vote, and sole or shared power to dispose or direct the disposition. |
| a. | sole power to vote or to direct the vote: |
| - | 38,508,733 Class A ordinary shares |
| - | 953,179 Class B ordinary shares |
| b. | shared power to vote or to direct the vote: 0 |
| c. | sole power to dispose or to direct the disposition: |
| - | 38,508,733 Class A ordinary shares |
| - | 953,179 Class B ordinary shares |
| d. | shared power to dispose or to direct the disposition: 0 |
| (c) | Except as set forth in this Schedule 13D, Mr. Moreira has not effected any transactions with respect to the Ordinary Shares of the Issuer within the last 60 days. |
| (d) | No person is known to Mr. Moreira to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, any securities covered by this Schedule13D. |
| (e) | Not applicable. |
| CUSIP No. 97727L200 | 13D | Page 6 of 7 Pages |
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.
The information set forth in or incorporated by reference in Item 2, 3, 4 and 5 of this Schedule 13D is incorporated by reference into this Item 6.
The options granted to Mr. Moreira are governed by the terms of the WISeKey Employee Share Option Plan, dated September 29, 2016 and the Option Agreement dated September 27, 2019. The terms of such agreements are incorporated by reference herein. The Option Agreement provides that 693,184 options were granted to Mr. Moreira, each giving the right to one Class B ordinary share at CHF 0.05 per share. The options are fully vested and exercisable immediately, up until September 26, 2026. The Option Agreement states that the options may be exercised immediately but the Class B ordinary shares obtained cannot be sold immediately: 235,682 Class B ordinary shares can be sold beginning on December 3, 2020; 228,751 Class B ordinary shares can be sold beginning on December 03, 2021; and 228,751 Class B ordinary shares can be sold beginning on December 03, 2022.
Each of the holders of our Class A ordinary shares (including Mr. Moreira) has signed a shareholder agreement with the Issuer pursuant to the terms of which the holder of the Class A ordinary shares undertakes (i) not to create or permit the creation of any encumbrances over the Class A ordinary shares, and (ii) not to transfer the Class A ordinary shares except to a “permitted transferee” (which is defined to include certain family members and affiliates) of the shareholder who in turn agree to be bound by the shareholder agreement or to sign a new shareholder agreement with the Class A ordinary shares. In addition, the holder of the Class A ordinary shares has the right to request the Issuer to convert the Class A ordinary shares into Class B ordinary shares (by putting the requested conversion on the agenda of the next annual meeting of the Issuer’s shareholders). The conversion of Class A ordinary shares into Class B ordinary shares is subject to approval by the Issuer’s shareholders holding Class A ordinary shares and Class B ordinary shares. The holders of Class A ordinary shares who have signed the shareholder agreement have undertaken to vote in favor of requests for conversions of Class A ordinary shares into Class B ordinary shares. Upon conversion, each five (5) Class A ordinary shares are converted into one (1) Class B ordinary share. Once Class A ordinary shares are converted into Class B ordinary shares, such Class B ordinary shares are no longer subject to the restrictions of the shareholder agreement and may be transferred on the same terms as other Class B ordinary shares. Mr. Moreira’s Class A ordinary shares are governed by the terms of a Reconfirmation Agreement with the Issuer dated January 24, 2020. The terms of such agreement are incorporated by reference herein.
Item 7. Material to Be Filed as Exhibits.
| CUSIP No. 97727L200 | 13D | Page 7 of 7 Pages |
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
|
/s/ Carlos Moreira Name: Carlos Moreira |
|
| Date: January 27, 2020 |
Exhibit 1
FORM OF OPTION AGREEMENT 2016
WISEKEY INTERNATIONAL HOLDING LTD STOCK OPTION PLAN
This OPTION AGREEMENT is made on 27/09/2019, by and between WISeKey International Holding Ltd, a Swiss corporation, with its seat in Zug (Zug), Switzerland (the "Company") and MOREIRA Carlos (the "Participant").
In consideration of the mutual covenants and agreements herein contained and pursuant to the Company's Stock Option Plan dated 1st January 2012, as amended, (the "Plan"), the Company and the Participant agree as follows:
The Company grants to the Participant the following number of Options according to the terms and conditions contained in the Plan and in this Option Agreement:
| Number of Options: | 693' 184 |
| Strike Price: | 0.05 |
| Grant Date: | 27/09/2019 |
| Vesting Date: | In accordance with Article of the Plan and the table below |
| Exercise Period: | From the Vesting Start Date until the Option Term as detailed below: |
| No. of Options | Sale Date | Option Term |
| 0 | From the listing - 12 month | 7 years from date of grant |
| 235'682.60 | Listing + 1 year | 7 years from date of grant |
| 228'750.70 | Listing + 2 years | 7 years from date of grant |
| 228'750.70 | Listing + 3 years | 7 years from date of grant |
The signature of this Option Agreement by the Participant implies his or her express and complete acceptance of the terms set forth in the Plan, in this Option Agreement or in any other document related hereto, including any tax ruling obtained by the Company in connection with the Plan. Furthermore the Participant hereby accepts the powers of the Board of Directors to administer the Plan at its absolute discretion, to complete, interpret and implement the documents herein referred through further documentation to the extent necessary or relevant and to decide on all issues in absolute discretion. The Participant agrees to be bound by the decisions of the Board of Directors.
Page 1 of 2
All notices to the Company shall be delivered to WISeKey International Holding Ltd, General Guisan-Strasse 6, 6300 Zug, Switzerland, attn Stock Option Plan Administrator, and all notices to the Participant may be given to the Participant personally or may be mailed to the Participant c/o WISeKey International Holding Ltd or at such other address as the Participant may designate by written notice to the Company.
This Option Agreement and any related document shall be governed by the substantive laws of Switzerland.
Any dispute, controversy or claim arising out of or in relation with the Plan including the validity, invalidity, breach or termination thereof, shall be finally decided by three arbitrators in accordance with the Swiss Rules of International Arbitration of the Swiss Chambers of Commerce in force on the date when the notice of arbitration is submitted in accordance with said rules. The seat of the arbitration shall be Geneva, Switzerland. The language of arbitration shall be English.
IN WITNESS THEREOF, the parties have executed this Option Agreement in duplicate as of the time and place first above written.
| /s/ Peter Ward | /s/ Carlos Moreira | |
| WISeKey International Holding Ltd | MOREIRA Carlos | |
| 27/09/19 | 27/09/2019 | |
| Date | Date | |
Exhibit 3
| Reconfirmation Agreement | |||
| dated as of January 27, 2020 | |||
| by and between | |||
|
WISeKey International Holding AG
General-Guisan-Strasse 6 6300 Zug, Switzerland |
(the Company) | ||
| and | |||
|
Carlos Moreira 23 Chemin de Calabry 1233 Bernex, Switzerland |
(the Shareholder) | ||
| (the Company and the Shareholder, each a Party and together, the Parties) |
Whereas
| A. | The Shareholder entered on February 6, 2016 into a shareholder agreement (the Shareholder Agreement, or the SHA) with the Company regarding the governance of certain rights and obligations of the Shareholder in his capacity as a holder of 28,600,668 Class A Shares (as defined in the Shareholder Agreement), including a lock-up obligation vis-à-vis the Company |
| B. | Both the Company and the Shareholder are currently not in a possession of the executed copy of the SHA. |
Now, therefore, the Parties agree as follows:
| 1. | Confirmation |
Each of the Company and the Shareholder hereby confirms that it/he is a party to the SHA (in effect as of February 6, 2016). To reestablish the terms and conditions of the SHA applicable as between the Parties, such terms are herewith restated as set out in Annex 1.
| 2. | Governing Law | Jurisdiction |
| 2.1 | Governing Law |
This Agreement shall be governed by and construed in accordance with the substantive laws of Switzerland.
| 2.2 | Dispute Resolution |
All disputes arising out of, in connection with or relating to this Agreement shall be finally resolved under the Rules of Arbitration of the International Chamber of Commerce by three arbitrators appointed in accordance with such rules, whereby each Party shall nominate one arbitrator and the two Party-appointed arbitrators shall nominate the chairperson. The place of the arbitration shall be Zurich. The arbitral proceedings shall be conducted in English.
[signatures on the next page]
| WISeKey International Holding L | |||
| /s/ Peter Ward | /s/ Dourgam Kummer | ||
|
Peter Ward Member of the Board of Directors |
Dourgam Kummer Member of the Board of Directors |
||
| Carlos Moreira | |||
| /s/ Carlos Moreira | |||
Annex 1
| Agreed Restatement of the Shareholder Agreement | |||
| by and between | |||
|
WISeKey International Holding AG
General-Guisan-Strasse 6 6300 Zug, Switzerland |
(the Company) | ||
| and | |||
|
Carlos Moreira 23 Chemin de Calabry 1233 Bernex, Switzerland |
(the Shareholder) | ||
| (the Company and the Shareholder, each a Party and together, the Parties) |
Whereas
| A. | WISeKey International Holding AG is a corporation organized under the laws of Switzerland with its registered office in Zug, Switzerland (the Company). The current share capital of the Company amounts to CHF 100,000, divided into 10,000,000 registered shares, with nominal value of CHF 0.01. |
| B. | The Company intends to adopt a dual class share structure with class A privileged voting shares (Stimmrechtsaktien) with a nominal value of CHF 0.01 (Class A Shares) and class B common shares with a nominal value of CHF 0.05 (Class B Shares). |
| C. | The Parties desire to execute this Shareholder Agreement (the Agreement) to govern certain rights and obligations of the Shareholder as a holder of Class A Shares. |
Now, therefore, the Parties agree as follows:
| 1. | Encumbrance and Transfer Restrictions |
| 1.1 | No Encumbrances |
The Shareholder hereby undertakes not to create or permit to subsist any pledge, lien, encumbrance, charge over or other security interest in, or grant any other rights in or relating to, any of his/her/its Class A Shares.
| 1.2 | Transfer Restrictions |
The Shareholder hereby undertakes not to, directly or indirectly, (1) offer, sell, transfer, convey, grant any option or contract to purchase, purchase any option or contract to sell, grant instruction rights with respect to (Weisungsrechte nach Art. 25 FISA) or otherwise dispose of, or (2) solicit any offers to purchase, otherwise acquire or be entitled to, any of his/her/its Class A Shares or any right associated therewith (the prohibited transactions pursuant to (1) and (2) collectively referred to as a Transfer), except (any Transfer made pursuant to one of the exceptions below a Permitted Transfer and any party acquiring Class A Shares in such a Permitted Transfer a Permitted Transferee):
| (a) | if such Transfer is made by an individual to his/her spouse or immediate family member (or a trust therefor) or a third party for reasonable estate planning purposes, subject only to the relevant transferee agreeing to be bound by, and accede to, this Agreement and the Shareholder remaining jointly and severally liable under this Agreement; and |
| (b) | if such Transfer is made to one or more of Affiliates, subject only to (i) the Affiliate(s) agreeing to be bound by, and accede to, this Agreement and (ii) the Shareholder remaining jointly and severally liable under this Agreement, provided, further, that if an Affiliate ceases to be an Affiliate of the transferring Party, then such Affiliate must immediately retransfer the Shares to the Shareholder. For purposes of this provision, (A) Affiliate shall mean (x) a Person that exercises Control over a second Person or is under Control by it, or (y) any of two or more Persons which are under common Control by the same person, (B) Control shall be deemed to exist if a Person (either alone or with its Affiliates) owns more than half of the voting rights or equity capital of a Person, or is otherwise able to exercise a controlling influence over another Person; and (C) Person shall mean any natural person or a general or limited partnership, a corporation, a business trust, a limited liability company, a trust, an unincorporated organization doing business, a government or any department or agency thereof, a joint venture or any other person or entity doing business; and |
| (c) | if such a Transfer is made after the Conversion of the Class A Shares pursuant to Section 3. |
| 2. | Conversion |
| (a) | The Shareholder shall have the right to request the Company to put on the agenda of the Company’s next annual general meeting, the first time at the 2017 annual general meeting, an item according to which Class A Shares are, at the discretion of the respective holder of Class A Shares, converted into Class B Shares (the Conversion) listed on the SIX. The submission of any such agenda item must comply with all requirements under the Company’s articles of association and applicable law and the adoption of any Conversion is subject to the approval by shareholders in accordance with the requirements of the Company’s articles of association and applicable law. |
| (b) | If a Conversion is included on the agenda of the Company’s annual general meeting by the Board of Directors of the Company, whether based on a request of the Shareholder or any third party that is entitled to such request, the Shareholder herby undertakes to vote her/his/its shares in the Company in favor of the Conversion at the related Company’s shareholder meeting. |
| 3. | Miscellaneous |
| 3.1 | Notice |
All notices or other communications to be given under or in connection with this Agreement shall be in writing and delivered by hand or sent (postage prepaid) by registered, certified or express mail (return receipt requested), overnight courier or facsimile as follows:
| if to Company: |
WISeKey International Holding AG
Attn: Corporate Secretary General-Guisan-Strasse 6 6300 Zug, Switzerland |
|
| if to Shareholder: |
Carlos Moreira 23 Chemin de Calabry 1233 Bernex, Switzerland |
Any notice to be given hereunder shall be deemed to have been duly given, if given prior to the expiry of a term set forth in this Agreement.
| 3.2 | Entire Agreement |
This Agreement constitutes the entire agreement and understanding among the Parties with respect to the subject matter hereof, and supersedes all prior oral or written agreements and understandings of the Parties relating to such subject matter.
| 3.3 | Entry Into Effect |
This Agreement shall become effective as of the date of execution by the Shareholder and the Company. With respect to any party who is a Permitted Transferee acceding to this Agreement after its initial effective date, this Agreement shall become effective as of the date as of which such Permitted Transferee accedes to this Agreement.
| 3.4 | Amendments |
This Agreement may only be modified or amended by a document signed by each Party, except that each Party hereby approves as of the date hereof the accession of any party that has acquired Class A Shares in a Permitted Transfer. Any such accession shall be evidenced by the Permitted Transferee executing the Accession Declaration set forth in Schedule 1.
| 3.5 | Severability |
If any part or provision of this Agreement or the application of any such part or provision to any Party or circumstance shall be held to be invalid, illegal or unenforceable in any respect by any competent arbitral tribunal, court, governmental or administrative authority, (a) such invalidity, illegality or unenforceability shall not affect any other part or provision of this Agreement or the application of such part or provision to any other persons or circumstances, and (b) the Parties shall endeavor to negotiate a substitute provision that best reflects the economic intentions of the Parties without being invalid, illegal or unenforceable, and shall execute all agreements and documents required in this connection. For the avoidance of doubt, this Article 5.5 is not intended to modify or abrogate the authority of the competent arbitral tribunal or court to replace an invalid provision of this Agreement in accordance with Swiss law.
| 3.6 | Binding on Successors |
All of the terms, provisions and conditions of this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, successors and legal representatives.
| 4. | Governing Law | Jurisdiction |
| 4.1 | Governing Law |
This Agreement shall be governed by and construed in accordance with the substantive laws of Switzerland.
| 4.2 | Dispute Resolution |
All disputes arising out of, in connection with or relating to this Agreement shall be finally resolved under the Rules of Arbitration of the International Chamber of Commerce by three arbitrators appointed in accordance with such rules, whereby each Party shall nominate one arbitrator and the two Party-appointed arbitrators shall nominate the chairperson. The place of the arbitration shall be Zurich. The arbitral proceedings shall be conducted in English.
Schedule 1
Accession Declaration
This accession declaration (the Declaration) is made on [Month] [Day], [Year] by [___________] (the New Shareholder).
Whereas, Carlos Moreira and WISeKey International Holding AG, a company duly organized and validly existing under the laws of Switzerland, having its domicile in Zug (the Company), have entered into a shareholder agreement dated [n] (the Shareholder Agreement);
Whereas, Class A Shares in the Company are about to be transferred or issued to the New Shareholder pursuant to and in accordance with the Shareholder Agreement; and
Whereas, the Shareholder Agreement provides that no transfer of Class A Shares shall occur unless the transferee is bound by the terms of the Shareholder Agreement by signing this Declaration;
Now, therefore, the New Shareholder covenants and confirms that [he/she/it] has been supplied with and has read a copy of the Shareholder Agreement and covenants with each of the Parties to the Shareholder Agreement to observe, perform and be bound by all the terms of the Shareholder Agreement and to become a Party to the Shareholder Agreement.
Defined terms used in this Declaration shall have the meaning assigned to such terms in the Shareholder Agreement.
This Declaration shall be governed by and construed in accordance with Swiss substantive law. The arbitration agreement contained in the Shareholder Agreement shall also govern any dispute arising out or related to this Declaration.
Acknowledged and approved:
________________________
Name: