UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of
1934
(Amendment No. 2)*
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 27, 2021
(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 6 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)
OO |
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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
39,134,818 Class A ordinary shares 827,962 Class B ordinary shares (subject to the Securities Lending Agreement) |
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| 8 |
SHARED VOTING POWER 66,000 Class B ordinary shares |
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9
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SOLE DISPOSITIVE POWER
39,134,818 Class A ordinary shares 827,962 Class B ordinary shares (subject to the Securities Lending Agreement) |
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10
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SHARED DISPOSITIVE POWER 66,000 Class B ordinary shares |
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
39,134,818 Class A ordinary shares 893,962 Class B ordinary shares (subject to the Securities Lending Agreement) |
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| 12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see instructions)
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
97.8% of the Class A ordinary shares 1.85% 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) 48,388,727 Class B ordinary shares of the Issuer actually issued and outstanding as of January 26, 2021. |
| CUSIP No. 97727L200 | 13D | Page 3 of 6 Pages |
Item 1. Security and Issuer.
This Amendment No. 2 supplements and amends the Schedule 13D that was originally filed on January 27, 2020, as amended by Amendment No.1 to the Schedule 13D filed on March 16, 2020 (the “Schedule 13D”). This Amendment No. 2 is filed by the Reporting Person in accordance with Rule 13d-2 of the Securities Exchange Act of 1934, as amended, and refers only to information which has materially changed since the filing of the Schedule 13D. The items identified below, or the particular paragraphs of such items which are identified below, are amended as set forth below. Unless otherwise indicated, all capitalized terms used and not defined herein have the respective meanings assigned to them in the Schedule 13D
Item 3. Source or Amount of Funds or Other Consideration.
Item 3 is amended by adding the following:
On February 6, 2016, the Reporting Person and Dourgam Kummer executed an undertaking (the “Share Exchange Undertaking”), pursuant to the terms of which Mr. Kummer has the right to exchange his Class B ordinary shares (“Class B Shares”) of WISeKey International Holding AG (the “Company”) for Class A ordinary shares (“Class A Shares”) of the Company held by the Reporting Person, at an exchange ratio of one Class B Share for five Class A Shares.
Pursuant to the Share Exchange Undertaking, on January 21, 2021, the Reporting Person and Dourgam Kummer entered into a Share Exchange Agreement (the “Share Exchange Agreement”) whereby Mr. Kummer agreed to transfer 626,085 Class A Shares to the Reporting Person, and the Reporting Person agreed to transfer 125,217 Class B Shares to Mr. Kummer (the “Transaction”). The transfer of such shares took place on January 27, 2021. No payment of money was exchanged in connection with the Transaction.
The terms of the Share Exchange Undertaking and the Share Exchange Agreement are incorporated by reference herein.
Item 4. Purpose of Transaction.
Item 4 is amended by adding the following:
The information set forth in Item 3 is hereby incorporated by reference in this Item 4.
The Reporting Person entered into the Transaction pursuant to the Share Exchange Undertaking.
| CUSIP No. 97727L200 | 13D | Page 4 of 6 Pages |
Item 5. Interest in Securities of the Issuer.
Item 5 of the Schedule 13D is deleted in its entirety and replaced with the following:
| (a) | As of the date hereof, Mr. Moreira beneficially owned: (i) 39,134,818 Class A ordinary shares, representing 97.8% of the actually issued and outstanding Class A ordinary shares and (ii) 827,962 Class B ordinary shares held directly by Mr. Moreira (all of which are subject to the Securities Lending Agreement), 44,000 Class B ordinary shares held indirectly by Mr. Moreira by virtue of those shares being held by immediate family members of Mr. Moreira, and 22,000 Class B ordinary shares held indirectly by Mr. Moreira issuable pursuant to options held by immediate family members of Mr. Moreira that are immediately exercisable, representing 1.85% 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 the date hereof, 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: |
(i) 39,134,818 Class A ordinary shares; and (ii) 827,962 Class B ordinary shares (all of which are subject to the Securities Lending Agreement)
| b. | shared power to vote or to direct the vote: 66,000 Class B ordinary shares (22,000 of which are in the form of options to purchase Class B ordinary shares) |
| c. | sole power to dispose or to direct the disposition: |
(i) 39,134,818 Class A ordinary shares; and (ii) 827,962 Class B ordinary shares (all of which are subject to the Securities Lending Agreement)
| d. | shared power to dispose or to direct the disposition: 66,000 Class B ordinary shares (22,000 of which are in the form of options to purchase Class B ordinary shares) |
| (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. |
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.
A copy of the Share Exchange Undertaking is attached hereto as Exhibit 5 and incorporated herein by reference thereto in response to this Item 6.
A copy of the Share Exchange Agreement is attached hereto as Exhibit 6 and incorporated herein by reference thereto in response to this Item 6.
| CUSIP No. 97727L200 | 13D | Page 5 of 6 Pages |
Item 7. Material to Be Filed as Exhibits.
Item 7 of the Schedule 13D is hereby supplemented as follows:
*Incorporated by reference
| CUSIP No. 97727L200 | 13D | Page 6 of 6 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, 2021 |
Share Exchange Undertaking
dated 6 February 2016
by and between
|
Carlos Moreira
c/o WISeKey International Holding AG General-Guisan-Strasse 6 6300 Zug |
(CM) |
|
WISeKey International Holding AG
General-Guisan-Strasse 6 6300 Zug |
(the Company) |
| and | |
|
Dourgam Kummer
|
(Shareholder)
(CM and the Shareholder, each a Party and together, the Parties) |
2/3
Whereas
| A. | CM holds 40,021,988 Class A Shares, par value CHF 0.01 of WISeKey International Holding AG (the Class A Shares), a corporation organized under the laws of Switzerland with its registered office in Zug, Switzerland (the Company). |
| B. | The Shareholder holds 939,126 registered shares, par value CHF 0.01 of WISeKey SA (WK SA Shares), a corporation organized under the laws of Switzerland with its registered office in Geneva, Switzerland (WK SA). |
| C. | The Company intends to offer to all shareholders of WK SA the right to exchange all of their WK SA Shares into newly issued shares, par value CHF 0.05 (the Class B Shares), of the Company (the Offer I) at an exchange ratio of 5 (five) WK SA Shares for 1 (one) Class B Share. |
| D. | The Shareholder desires to undertake to accept the Offer I with respect to all his/her/its WK SA Shares. |
| E. | CM desires to offer to the Shareholder, subject to the settlement of the Offer I, the right to exchange 125,217 of Shareholder’s Class B Shares with nominal value CHF0.05 into Class A Shares at an exchange ratio of one (1) Class B Share for five (5) Class A Shares and Shareholder desires to accept such offer. |
Now, therefore, the Parties agree as follows:
| 1. | The Shareholder herewith irrevocably undertakes, vis-à-vis the Company, to unconditionally accept the Offer I with respect to all of his/her/its WK SA Shares. |
| 2. | CM herewith irrevocably undertakes to offer to the Shareholder the right to exchange 125,217 of Shareholder’s Class B Shares into Class A Shares at an exchange ratio of one (1) Class B Share for five (5) Class A Shares (the Offer II) and the Shareholder herewith irrevocably undertakes to unconditionally accept the Offer II. |
| 3. | (a) The undertakings of CM and the Shareholder under clause 2 of this Agreement are conditional to all conditions of the Offer I being fulfilled or, where so permitted, waived, and the Offer I being settled and (b) the undertaking of CM under clause 2 of this Agreement is conditional to the Shareholder entering into the shareholder agreement between the Company and the Shareholder in the form as attached hereto as Annex 1. |
| 4. | This Agreement shall be governed by and construed in accordance with the substantive laws of Switzerland. |
| 5. | 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. |
3/3
| /s/ Carlos Moreira | |
| Carlos Moreira | |
| /s/ Peter Ward | |
| WISeKey International Holding AG | |
| /s/ Dourgam Kummer | |
| Dourgam Kummer |
| Share Exchange Agreement | 2 | 6 |
Whereas
| A. | On February 11, 2016, the Company submitted an offer (the Share Exchange Offer) to all holders of registered shares of WISeKey SA, nominal value CHF 0.01 each (the WISeKey SA Shares), to exchange their WISeKey SA Shares for registered shares of the Company, nominal value CHF 0.05 each (the Class B Shares). |
| B. | The Exiting Class A Shareholder has accepted the terms and conditions of the Share Exchange Offer. As a result of such acceptance, the Exiting Class A Shareholder received 125,217 Class B Shares. |
| C. | On February 6, 2016, CM and the Exiting Class A Shareholder executed an undertaking (the Share Exchange Undertaking), pursuant to the terms of which the Exiting Class A Shareholder had the right to exchange his Class B Shares for registered shares of the Company, nominal value CHF 0.01 each (the Class A Shares) held by CM, at an exchange ratio of one Class B Share for five Class A Shares. |
| D. | Concurrently with the execution of the Share Exchange Undertaking, the Company has entered into a shareholder agreement with the Exiting Class A Shareholder (the Shareholder Agreement). According to the terms of the Shareholder Agreement, the transfer of the Class A Shares is restricted, subject to limited exceptions. |
| E. | The Share Exchange Undertaking was settled on or around March 31, 2016. |
| F. | The Exiting Class A Shareholder and all other current holders of Class A Shares, all of which have entered into separate shareholder agreements with the Company, are considered a lock-up or similar group (the Group) within the meaning of article 120 of the Swiss Financial Market Infrastructure Act (the SFMIA) and the regulations promulgated thereunder. Accordingly, the original holders of the Class A Shares have notified the Company and SIX Swiss Exchange Ltd (the SIX) of the formation of a group on March 31, 2016. |
| G. | The Exiting Class A Shareholder desires to exchange his 626,085 Class A Shares for 125,217 Class B Shares, and CM desires to exchange 125,217 Class B Shares for 626,085 Class A Shares, whereby the same exchange ratio shall apply as under the terms of the Share Exchange Undertaking (the Exchange Ratio). |
| H. | The Parties acknowledge that the entry into this share exchange agreement (the Agreement) will trigger disclosure obligations under the SFMIA and applicable regulations. |
Now, therefore, the Parties hereby agree as follows:
| 1. | Transfer of Shares |
| (a) | In exchange for the Class B Shares to be transferred by CM in accordance with the terms pursuant to Section 1(b) below, the Exiting Class A Shareholder hereby agrees that he will transfer 626,085 Class A Shares to CM no later than within five SIX trading days of the execution of this Agreement. |
| Share Exchange Agreement | 3 | 6 |
| (b) | In exchange for the Class A Shares to be transferred by the Exiting Class A Shareholder to CM in accordance with the terms pursuant to Section 1(a) above, CM hereby agrees that he will transfer 125,217 Class B Shares to the Exiting Class A Shareholder no later than within five SIX trading days of the execution of this Agreement. |
| (c) | If and to the extent that any other acts or documents are necessary or appropriate to effect the transactions contemplated under Section 1(a) and (b), the Parties shall, upon request by the other Party and without undue delay, do any and all acts and sign, execute and deliver any and all documents that are necessary or appropriate to consummate such transactions. |
| 2. | Consent by the Company |
| (a) | The Company hereby agrees to waive and hereby waives the transfer restrictions pursuant to section 1.2 of the Shareholder Agreement between the Company and the Exiting Class A Shareholder. This Agreement shall be deemed a written amendment to the Shareholder Agreement with the Exiting Class A Shareholder in accordance with article 3.4 of the Shareholder Agreement. |
| (b) | The Shareholder Agreement between the Company and the Exiting Class A Shareholder shall herewith be agreed to be terminated. |
| (c) | CM and the Company declare that they continue to be bound by the Shareholder Agreement between themselves, dated as of February 6, 2016. It shall further be agreed that CM shall be bound by the terms of such Shareholder Agreement with regard to all Class A Shares that CM holds as of the date hereof, including the Class A Shares acquired from the Exiting Class A Shareholder in accordance with the terms of this Agreement. |
| 3. | SIX Disclosure |
Within four SIX trading days after the execution of this Agreement, the Parties will take all steps necessary and appropriate to ensure that the changes to the Group are reported to the SIX and the Company in accordance with applicable laws and regulations.
| 4. | General Provisions |
| 4.1 | Taxes |
All taxes resulting from or relating to the transaction contemplated by this Agreement shall be borne by the Party that is liable for such taxes under applicable law.
| Share Exchange Agreement | 4 | 6 |
| 4.2 | Costs and Expenses |
Each Party shall each bear his own expenses incurred in connection with this Agreement and the transactions contemplated thereunder, including, without limitation, fees of accountants, counsels or other advisers.
| 4.3 | Notices |
All notices or other communications to be given under or in connection with this Agreement shall be made in writing to the following addresses:
| if to CM: | Carlos Moreira |
| if to the Exiting Class A Shareholder: |
Dourgam Kummer
|
| If to the Company: |
Peter Ward
Chief Financial Officer General-Guisan-Strasse 6, 6300 Zug, Switzerland |
or such other address as any of the Parties may notify to the other Party in accordance with the above.
| 4.4 | Amendments and Waivers |
This Agreement may only be modified or amended by a document, signed by all Parties hereto. Any provision contained in this Agreement may only be waived by a document signed by the Party waiving such provision.
| 4.5 | No Assignment |
The Parties shall not assign this Agreement or any rights or obligations hereunder to any third party without prior written consent of the other Parties.
| 4.6 | Severability |
Should any part or provision of this Agreement be held to be invalid or unenforceable by any competent arbitral tribunal, court, governmental or administrative authority having jurisdiction, the other provisions of this Agreement shall nonetheless remain valid. In this case, the Parties shall endeavor to negotiate a substitute provision that best reflects the economic intentions of the Parties without being unenforceable, and shall execute all agreements and documents required in this connection.
| Share Exchange Agreement | 5 | 6 |
| 4.7 | Execution |
| (a) | This Agreement may be executed in a number of counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. |
| (b) | Delivery of an executed counterpart of a signature page of this Agreement by facsimile transmission or e-mail (PDF copy) shall be effective as delivery of a manually executed counterpart of this Agreement. Notwithstanding the foregoing, each Party shall provide the other with a complete set of the original of the executed Agreement. |
| 5. | Governing Law and Dispute Resolution |
| 5.1 | Governing Law |
This Agreement shall be exclusively governed by and construed in accordance with the substantive laws of Switzerland, excluding its conflict of laws principles and excluding the UN Convention on Contracts for the International Sale of Goods.
| 5.2 | Dispute Resolution |
All disputes arising out of or in connection with this agreement shall be resolved exclusively by the competent courts of the city of Zurich (Zurich 1).
[signature page on the next page]
| Share Exchange Agreement | 6 | 6 |
Executed as of the date written on the first page of this Share Exchange Agreement by and between
| Carlos Moreira | Dourgam Kummer |
| /s/Carlos Moreira | /s/ Dourgam Kummer |
| WISeKey International Holding Ltd | |
|
/s/ Peter Ward
Peter Ward
|
/s/ Jean-Philippe Ladisa
Jean-Philippe Ladisa
|