UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16
UNDER THE SECURITIES EXCHANGE ACT OF 1934
For the month of December 2024
Commission File Number: 001-38313
iClick Interactive Asia Group Limited
(Translation of registrant’s name into English)
15/F
Prosperity Millennia Plaza
663 King’s Road, Quarry Bay
Hong Kong S.A.R., People’s Republic of
China
Tel: +852 3700 9000
(Address of principal executive office)
Indicate by check mark whether the registrant files or will file annual
reports under cover of Form 20-F or Form 40-F.
Form 20-F x
Form 40-F ¨
EXHIBIT INDEX
SIGNATURES
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.
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iClick Interactive Asia Group Limited |
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By: |
/s/ Josephine Ngai |
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Name: |
Josephine Ngai |
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Title: |
Chief Financial Officer |
Date: December 19, 2024
Exhibit 99.1
FOR IMMEDIATE RELEASE
iClick Interactive Asia Group Limited to Hold
Extraordinary General Meeting of Shareholders
HONG KONG
— December 19, 2024 — iClick Interactive Asia Group Limited (“iClick” or the “Company”) (NASDAQ:
ICLK) today announced that it will hold an extraordinary general meeting of shareholders (the “EGM”) on January 3, 2025
at 9:00 a.m. (Hong Kong time), or January 2, 2025 at 8:00 p.m. (New York time) at 15/F Prosperity Millennia Plaza, 663
King’s Road, Quarry Bay, Hong Kong, People’s Republic of China, and for any adjournment or postponement thereof. The purpose
of the EGM is for shareholders of the Company to consider, if thought fit, to approve the transactions contemplated in the Agreement and
Plan of Merger (the “Merger Agreement”), dated November 29, 2024, by and among the Company, Overlord Merger Sub Ltd.
(“Merger Sub”), a Cayman Islands exempted company and a direct, wholly owned subsidiary of iClick, and Amber DWM Holding Limited
(“Amber DWM”), a Cayman Islands exempted company and the holding entity of Amber Group's digital wealth management business,
known as Amber Premium. Pursuant to the Merger Agreement, Merger Sub will merge with and into Amber DWM, with Amber DWM continuing as
the surviving entity and becoming a wholly-owned subsidiary of the Company (the “Merger”), and the shareholders of Amber DWM
will exchange all of the issued and outstanding share capital of Amber DWM for a mixture of newly issued Class A and Class B
ordinary shares of the Company on the terms and conditions set forth therein in a transaction exempt from the registration requirements
under the Securities Act of 1933.
Shareholders of the Company will also be asked
to consider and vote on certain additional Merger-related proposals at the EGM, including, among others:
| 1. | THAT the ninth amended and restated memorandum and articles of association of the Company be further amended and restated by
their deletion in their entirety and the substitution of in their place of the tenth amended and restated memorandum and articles of association
of the Company effective immediately prior to the effective time (the “Effective Time”) of the Merger; |
| 2. | THAT the name of the Company be changed from “iClick Interactive Asia Group Limited” to “Amber International
Holding Limited” effective immediately prior to the Effective Time; |
| 3. | THAT immediately prior to the Effective Time, the authorized share capital of the Company be varied as follows: all Class A
ordinary shares of iClick (“ICLK Class A Shares”) and all Class B ordinary shares of iClick (“ICLK Class B
Shares”) the holders of which have delivered a written notice to iClick to convert its ICLK Class B Shares to ICLK Class A
Shares with immediate effect on the closing of the Merger immediately before the Effective Time (such ICLK Class B Shares, the “Converting
ICLK Class B Shares”), in the authorized share capital of the Company (including all issued and outstanding ICLK Class A
Shares and Converting ICLK Class B Shares, and all authorized but unissued ICLK Class A Shares and ICLK Class B Shares)
shall be re-designated as newly issued Class A ordinary shares of iClick (“New Class A Shares”), all ICLK Class B
Shares other than the Converting ICLK Class B Shares shall be re-designated as newly issued Class B ordinary shares of iClick
(“New Class B Shares”) (unless such New Class B Shares are otherwise required to be automatically converted into
New Class A Shares in accordance with the Amendment of M&A (assuming the Amendment of M&A proposal is approved), and the
authorized share capital of the Company shall be US$1,300,000 divided into 1,300,000,000 New Ordinary Shares comprising of (x) 1,191,000,000
New Class A Shares, and (y) 109,000,000 New Class B Shares. |
Holders of the Company’s ordinary shares
whose names are on the register of members of the Company at the close of business in the Cayman Islands on December 18, 2024, are
entitled to notice of, and to vote at, the EGM or any adjournment or postponement thereof in person. Holders of the Company’s American
depositary shares (“ADSs”) at the close of business in New York City on December 18, 2024, are entitled to exercise their
voting rights for the underlying ordinary shares and must act through JP Morgan Chase Bank, N.A., the depositary of the Company’s
ADS program.
The notice of the EGM, which contains the detailed
proposals to be presented at the EGM, and the proxy statement related to the EGM, are being filed today with the U.S. Securities and
Exchange Commission (“SEC”) and can be obtained without charge from the SEC’s website (http://www.sec.gov). These documents
are also available on the Company’s investor relations website at https://ir.i-click.com.
SHAREHOLDERS AND ADS HOLDERS ARE URGED TO READ
CAREFULLY AND IN THEIR ENTIRETY THE PROXY MATERIALS AND OTHER MATERIALS FILED WITH OR FURNISHED TO THE SEC WHEN THEY BECOME AVAILABLE,
AS THEY CONTAIN VOTING INSTRUCTIONS AND IMPORTANT INFORMATION ABOUT THE COMPANY, AMBER DWM, THE MERGER AND RELATED MATTERS.
This press release is not a proxy statement or
solicitation of a proxy, consent or authorization with respect to any securities or in respect of the transactions described above and
shall not constitute an offer to sell or a solicitation of an offer to buy the securities of Amber DWM or the Company, nor shall there
be any sale of any such 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 such state or jurisdiction. No offering of securities shall be made except
by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933, as amended, or an exemption therefrom.
About iClick
Interactive Asia Group Limited
Founded in 2009, iClick Interactive Asia Group
Limited (NASDAQ: ICLK) is a renowned online marketing and enterprise solutions provider in Asia. With its leading proprietary technologies,
iClick’s full suite of data-driven solutions helps brands drive significant business growth and profitability throughout the full
consumer lifecycle. For more information, please visit https://ir.i-click.com.
About Amber Premium
Amber Premium, the business brand behind Amber DWM Holding Limited,
is a leading digital wealth management services platform, offering private banking-level solutions tailored for the dynamic crypto economy
to a premium clientele of esteemed institutions and qualified individuals. It develops, deploys, and supports innovative digital wealth
management products and services for institutions and high-net-worth individuals, and provides institutional-grade access, operations
and support. Amber Premium aims to be the top choice for one-stop digital wealth management services, delivering tailored, secure solutions
that drive growth in the Web3 world.
Safe Harbor Statement
This press release contains certain “forward-looking
statements.” These statements are made under the “safe harbor” provisions of the U.S. Private Securities Litigation
Reform Act of 1995. Statements that are not historical facts, including statements about the pending transactions described herein, and
the parties’ perspectives and expectations, are forward-looking statements. The words “will,” “expect,”
“believe,” “estimate,” “intend,” “plan” and similar expressions indicate forward-looking
statements.
Such forward-looking statements are inherently
uncertain, and shareholders and other potential investors must recognize that actual results may differ materially from the expectations
as a result of a variety of factors. Such forward-looking statements are based upon management's current expectations and include known
and unknown risks, uncertainties and other factors, many of which are hard to predict or control, that may cause the actual results, performance,
or plans to differ materially from any future results, performance or plans expressed or implied by such forward-looking statements. Such
risks and uncertainties include, but are not limited to: (i) risks related to the expected timing and likelihood of completion of
the proposed transaction, including the risk that the transaction may not close due to one or more closing conditions to the transaction
not being satisfied or waived; (ii) the occurrence of any event, change or other circumstances that could give rise to the termination
of the applicable transaction agreements; (iii) the risk that there may be a material adverse change with respect to the financial
position, performance, operations or prospects of the Company, Amber DWM or the combined entity; (iv) risks related to disruption
of management time from ongoing business operations due to the proposed transaction; (v) the risk that any announcements relating
to the proposed transaction could have adverse effects on the market price of the Company's securities; (vi) the risk that the proposed
transaction and its announcement could have an adverse effect on the ability of Amber DWM or the combined entity to retain customers and
retain and hire key personnel and maintain relationships with their suppliers and customers and on their operating results and businesses
generally; (vii) any changes in the business or operating prospects of Amber DWM and the combined entity or their businesses; (viii) changes
in applicable laws and regulations; and (ix) risks relating to Amber DWM's and the combined company’s ability to enhance their
services and products, execute their business strategy, expand their customer base and maintain stable relationship with their business
partners.
A further list and description of risks and uncertainties
can be found in the proxy statement that was filed with the SEC by the Company in connection with the proposed transactions, and other
documents that the parties may file or furnish with the SEC, which you are encouraged to read. Should one or more of these risks or uncertainties
materialize, or should underlying assumptions prove incorrect, actual results may vary materially from those indicated or anticipated
by such forward-looking statements. Accordingly, you are cautioned not to place undue reliance on these forward-looking statements. Forward-looking
statements relate only to the date they were made, and the Company, Amber DWM and their respective subsidiaries and affiliates undertake
no obligation to update forward-looking statements to reflect events or circumstances after the date they were made except as required
by law or applicable regulation.
For investor and media inquiries, please contact:
| In Asia: |
In the United States: |
| iClick Interactive Asia Group Limited |
Core IR |
| Catherine Chau |
Tom Caden |
| Phone: +852 3700 9100 |
Phone: +1-516-222-2560 |
| E-mail: ir@i-click.com |
E-mail: tomc@coreir.com |
Exhibit 99.2
PROXY STATEMENT FOR EXTRAORDINARY GENERAL MEETING
OF
ICLICK INTERACTIVE ASIA GROUP LIMITED
15/F
Prosperity Millennia Plaza
663 King’s Road, Quarry Bay
Hong Kong S.A.R., People’s Republic of
China
Tel: +852 3700 9000
MERGER PROPOSALS—YOUR VOTE IS VERY IMPORTANT
December 19, 2024
Dear iClick Interactive Asia Group Limited Shareholders:
You are cordially invited to an extraordinary general meeting of shareholders
of iClick Interactive Asia Group Limited to be held on January 3, 2025 at 9:00 a.m. (Hong Kong time), or January 2, 2025
at 8:00 p.m. (New York time) at 15/F Prosperity Millennia Plaza, 663 King’s Road, Quarry Bay, Hong Kong, People’s Republic
of China, and for any adjournment or postponement thereof. At the meeting, you will be asked to vote on the important matters described
in detail in the notice of extraordinary general meeting of shareholders and the proxy statement accompanying this letter.
The proxy statement is being provided to you as a shareholder of iClick
Interactive Asia Group Limited (“iClick,” “ListCo,” “ICLK” or the “Company”), in connection
with the proposed merger with Amber DWM Holding Limited, a leading Asian digital wealth management services provider (“Amber DWM”).
At the extraordinary general meeting, you will be asked to vote
on the adoption of an agreement and plan of merger, dated as of November 29, 2024, as it may be amended from time to time (the
“Merger Agreement”), by and among iClick, Overlord Merger Sub Ltd., an exempted company incorporated with limited
liability under the laws of the Cayman Islands and a direct, wholly-owned subsidiary of iCilck (the “Merger Sub”), and
Amber DWM, an exempted company incorporated with limited liability under the laws of the Cayman Islands, pursuant to which Merger
Sub will merge (the “Merger” or “Business Combination”) with and into Amber DWM, with Amber DWM surviving as the surviving entity and becoming a
wholly-owned subsidiary of iClick upon completion of the Merger (the “Surviving Entity”). In consideration of the
Merger, shareholders of Amber DWM will exchange all of the issued and outstanding shares of Amber DWM immediately prior to the
Merger for newly issued Class A ordinary shares of iClick (the “New Class A Shares”) or Class B ordinary
shares of iClick (the “New Class B Shares,” and the New Class B Shares together with the New Class A
Shares, the “New Ordinary Shares”) in a transaction exempt from the registration requirements under the Securities Act
of 1933. Copies of the Merger Agreement and the plan of merger in respect of the Merger (the “plan of merger”) are
attached as Annex A and Annex B, respectively, to the accompanying proxy statement.
The Merger values iClick at an equity value at US$40,000,000 (the “ICLK
Equity Value”) on a fully-diluted basis, and values Amber DWM at an equity value at US$360,000,000 on a fully-diluted basis (the
“DWM Equity Value”), assuming the completion of the DWM Asset Restructuring as described below.
At the time as the Merger becomes effective (the “Effective Time”),
each share of Amber DWM (“DWM Shares”) issued and outstanding immediately prior to the Effective Time will be surrendered
and cancelled in exchange for the right to receive (x) in the case of any DWM Share held by an entity to be formed or designated
which shall be controlled by Mr. Michael Wu (“AB Founder Holdco”), a number of validly issued, fully paid and non-assessable
New Class B Shares, and (y) in all other cases, a number of validly issued, fully paid and non-assessable New Class A Shares,
in each case, equal to (a) the DWM per share value (which is in turn calculated by (i) the DWM Equity Value divided by (ii) the
number of ordinary shares of Amber DWM that are outstanding immediately prior to the Effective Time), divided by (b) the ICLK per
share value (which is in turn calculated by (i) the ICLK Equity Value, divided by (ii) the number of all Class A ordinary
shares of iClick (“ICLK Class A Shares”) and Class B ordinary shares of iClick (“ICLK Class B Shares,”
and together with the ICLK Class A Shares, “ICLK Shares”) that are outstanding immediately prior to the Effective Time
on a fully-diluted basis, assuming the issuance of all ICLK Shares that are required to be issued, but have not been issued as of immediately
prior to the Effective Time, in connection with the acquisition by ICLK of certain share capital of Changyi (Shanghai) Information Technology
Ltd. (the “Per Share Merger Consideration”, and the aggregate number of New Class A Shares and New Class B Shares
to be issued by ListCo, the “Merger Consideration”), except for (x) all ordinary shares of DWM that are owned by iClick,
Amber DWM, Merger Sub or any subsidiary of Amber DWM immediately prior to the Effective Time which shall automatically be canceled and
shall cease to exist, and (y) ordinary shares of Amber DWM issued and outstanding immediately prior to the Effective Time held by
holders who have validly exercised, or have not otherwise lost, their dissenters’ rights for such ordinary shares of Amber DWM in
accordance with Section 238 of the Cayman Islands Companies Act (such ordinary shares of Amber DWM being referred to collectively
as the “Dissenting Shares”, and holders of the Dissenting Shares collectively, the “Dissenting Shareholders”)
shall be cancelled and cease to exist at the Effective Time and the Dissenting Shareholders shall not be entitled to receive the Per Share
Merger Consideration, but instead shall be entitled only to receive the payment of the fair value of such Dissenting Shares held by them
determined in accordance with Section 238 of the Cayman Islands Companies Act.
Upon consummation of the Merger, the existing Amber DWM shareholders
and existing iClick shareholders (including holders of ADSs, the “iClick shareholders” or “ListCo shareholders”))
will own approximately 90% and 10%, respectively, of the outstanding shares of the combined company on a fully diluted and as converted
basis, or 97% and 3% voting power of the combined company, respectively.
Certain existing iClick shareholders (the “Undertaking Shareholders”),
who beneficially owned in the aggregate 11,626,898 ICLK Class A Shares and 4,385,078 ICLK Class B Shares, representing approximately
71% of the total voting power of iClick, have entered into a voting agreement (the “Voting Agreement”), agreeing to vote in
favor of the Merger and other proposals as Amber DWM and iClick may agree as necessary or desirable in connection with the consummation
of the Merger.
In connection with the Merger, each of the shareholders of Amber DWM
as of the date of the Merger Agreement (the “Insider Lock-Up Signatory”) has entered into a lock-up agreement with iClick
(the “Lock Agreement”) pursuant to which they have agreed not to transfer the Shares received in consideration of the Merger
for a period of 12 months following the Closing Date.
The completion of the Merger is subject to the satisfaction of closing
conditions set forth in the Merger Agreement, including, among other things, receipt of the Company’s shareholder approval and regulatory/stock
exchange approvals (if applicable). The Merger Agreement provides for a long-stop date if the Merger is not completed by June 30,
2025. The board of directors of ListCo (the “Board”) reviewed and considered the terms and conditions of the Merger Agreement
and the transactions contemplated by the Merger Agreement, including the Merger. On November 29, 2024, the Board unanimously (a) determined
that the Merger Agreement and the transaction agreements contemplated by the Merger Agreement are fair to and in the best interests of
ListCo and its shareholders, (b) declared it advisable to enter into the Merger Agreement and the transaction agreements contemplated
by the Merger Agreement, (c) authorized and approved the execution, delivery and performance of the Merger Agreement, the plan of
merger and the transactions contemplated by the Merger Agreement and the plan of merger, including the Merger, and (d) resolved to
direct that the authorization and approval of the Merger Agreement, the plan of merger, and the transactions contemplated under the Merger
Agreement, including the Merger, be submitted to a vote at an extraordinary general meeting of the shareholders of ListCo.
After careful consideration, the Board authorized and approved the
Merger Agreement and the plan of merger and recommends that you vote (a) FOR the proposal to authorize and approve the Merger Agreement,
the plan of merger and the transactions contemplated by the Merger Agreement and the plan of merger, including the Merger, (b) FOR
the proposal to adopt the tenth amended and restated memorandum and articles of association of ListCo in the form attached
as Annex C to the accompanying proxy statement, effective immediately prior to the Effective Time (the “Amendment of M&A”);
(c) FOR the proposal to approve the change of the corporate name of ListCo from “iClick Interactive Asia Group Limited”
to “Amber International Holding Limited” effective immediately prior to the Effective Time (the “Change of Name”);
(d) FOR the proposal to approve the variation of the authorized share capital of ListCo effective immediately prior to the Effective
Time (the “Variation of Share Capital”); (e) FOR the proposal to authorize Wing Hong Sammy Hsieh, a director of the Company,
to do all things necessary to give effect to the Merger Agreement, the plan of merger, and the transactions contemplated by the Merger
Agreement and plan of merger, including the Merger and, effective immediately prior to the Effective Time, the Amendment of M&A, the
Change of Name and the Variation of Share Capital; and (f) FOR the proposal to approve the adjournment of the extraordinary general
meeting, if necessary, to permit further solicitation of proxies if there are insufficient proxies received at the time of the extraordinary
general meeting to pass the special resolutions to be proposed at the extraordinary general meeting.
The accompanying proxy statement provides important information
regarding the extraordinary general meeting and a detailed description of the Merger Agreement, the Merger and the other proposals
described above, as well as detailed business and financial information about Amber DWM. You are urged to read carefully the
accompanying proxy statement, the annexes included with the proxy statement and the documents incorporated by reference into the
proxy statement. Please pay particular attention to and read carefully the section “Risk Factors” beginning on page
26 of the accompanying proxy statement. You can also obtain information about iClick from documents that it has previously filed
with the Securities and Exchange Commission.
Regardless of the number of ICLK Shares that you own, your vote is
very important. Even if you plan to attend the extraordinary general meeting in person, we request that you submit your proxy card, the
form of which are attached as Annex E to the accompanying proxy statement, in accordance with the instructions set forth on the proxy
card as promptly as possible. You should simply indicate on your proxy card how you want to vote, sign and date the proxy card, and mail
the proxy card in the enclosed return envelope as soon as possible to ensure that it will be received by ListCo no later than 9:00 a.m. January 1,
2025 (Hong Kong time), or 8:00 p.m. December 31, 2024 (New York time), which is the deadline to lodge your proxy card. The proxy
card is the “instrument appointing a proxy” as referred to in ListCo’s articles of association. Voting at the extraordinary
general meeting will take place by poll voting, as the chairman of the Board (who will also act as chairman of the extraordinary general
meeting) has undertaken to demand poll voting at the meeting. Each holder of ICLK Class A Shares has one vote for each ICLK Class A
Share and each holder of ICLK Class A Shares has twenty (20) votes for each ICLK Class A Share held as of the close of business
in the Cayman Islands on December 18, 2024.
We will instruct JP Morgan Chase Bank, N.A. (the “ADS depositary”)
to deliver to holders of ADS at the close of business in New York City on December 18, 2024, the ADS record date, an ADS proxy card,
the form of which is attached as Annex F to the accompanying proxy statement, and holders of ADS as of the ADS record date will have
the right to instruct the ADS depositary how to vote the ICLK Shares underlying their ADSs at the extraordinary general meeting, subject
to and in accordance with the terms of the amendment No.1 to the deposit agreement dated October 31, 2022, by and among ListCo,
the ADS depositary and the holders and beneficial owners of ADSs issued thereunder (the “deposit agreement”). ADS holders
are strongly urged to sign, complete and return the ADS proxy card to the ADS depositary in accordance with the instructions printed
thereon as soon as possible and, in any event, no later than 9:00 a.m. (New York time) on December 31, 2024 (or if the extraordinary
general meeting is adjourned, such later date as may be notified by the Company or the ADS depositary). As the registered holder of the
ICLK Class A Shares represented by ADSs, the ADS depositary will endeavor to vote (or will endeavor to cause the vote of) the ICLK
Shares it holds on deposit at the extraordinary general meeting in accordance with the voting instructions timely received from holders
of ADSs at the ADS record date.
Holders of ADSs will not be able to attend the extraordinary general
meeting unless they cancel their ADSs and become registered holders of ICLK Class A Shares prior to the close of business in the
Cayman Islands on December 18, 2024, the ICLK Share record date. ADS holders who wish to cancel their ADSs need to make arrangements
to deliver the ADSs to the ADS depositary for cancellation before the close of business in New York City on December 18, 2024 together
with (a) delivery instructions for the corresponding ICLK Class A Shares (name and address of person who will be the registered
holder of the ICLK Class A Shares), and (b) payment of the ADS cancellation fees (US$0.05 per ADS to be cancelled) and any
applicable taxes. If you hold your ADSs in a brokerage, bank or nominee account, please contact your broker, bank or nominee to find
out what actions you need to take to instruct the broker, bank or nominee to cancel the ADSs on your behalf. Upon cancellation of the
ADSs, the ADS depositary will transfer registration of the ICLK Class A Shares to the former ADS holder (or a person designated
by the former ADS holder).
If after the registration of ICLK Shares in your name you wish to
receive a certificate evidencing the ICLK Shares registered in your name, you will need to request the registrar of the ICLK Shares to
issue and mail a certificate to your attention. The ICLK Shares are not listed and cannot be traded on any stock exchange other than
Nasdaq, and in such case only in the form of ADSs. As a result, if you have cancelled your ADSs to attend the extraordinary general
meeting and the Merger is not completed and you wish to be able to sell your ICLK Shares on a stock exchange, you would need to deposit
such ICLK Shares into ListCo’s American depositary shares program for the issuance of the corresponding number of ADSs, subject
to the terms and conditions of applicable law and the deposit agreement, including, among other things, payment of relevant fees of the
ADS depositary for the issuance of ADSs (up to US$0.05 per ADS issued) and any applicable stock transfer taxes (if any) and related charges
pursuant to the deposit agreement.
Completing the proxy card in accordance with the instructions set forth
on the proxy card will not deprive you of your right to attend the extraordinary general meeting and vote your ICLK Shares in person.
Please note, however, that if your ICLK Shares are registered in the name of a broker, bank or other nominee and you wish to vote at the
extraordinary general meeting in person, you must obtain from the registered holder a proxy issued in your name.
If you have any questions or need assistance voting your ICLK Shares,
please contact the Company’s Investor Relations Department at +852-3700-9100 or by email at ir@i-click.com, for Asia, or at +1 516
222 2560 or by email at tomc@coreir.com.
Sincerely,
/s/ Wing Hong Sammy Hsieh
Director, iClick Interactive Asia Group Limited
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of the securities to be issued under the accompanying proxy statement or determined that the accompanying
proxy statement is accurate or complete. Any representation to the contrary is a criminal offense.
The accompanying proxy statement is dated December 19, 2024 and
is first being mailed to iClick shareholders on or about December 19, 2024.
ICLICK INTERACTIVE ASIA GROUP LIMITED
15/F
Prosperity Millennia Plaza
663 King’s Road, Quarry Bay
Hong Kong S.A.R., People’s Republic of
China
Tel: +852 3700 9000
NOTICE OF EXTRAORDINARY GENERAL MEETING OF
SHAREHOLDERS
TO BE HELD ON JANUARY 3, 2025
Notice is hereby given that iClick Interactive Asia Group Limited (“iClick,”
“ListCo,” “ICLK” or the “Company”) will hold an extraordinary general meeting of shareholders on January 3,
2025 at 9:00 a.m. (Hong Kong time), or January 2, 2025 at 8:00 p.m. (New York time) at 15/F Prosperity Millennia Plaza,
663 King’s Road, Quarry Bay, Hong Kong, People’s Republic of China, and for any adjournment or postponement thereof.
Only registered holders of ordinary shares, par value US$0.001 per
share, of the Company (the “ICLK Shares”), whether or not represented by the Company’s American Depositary Shares (the
“ADS”), at the close of business on December 18, 2024 (New York time) (the “Record Date”) or their proxy
holders are entitled to vote at this extraordinary general meeting or any adjournment thereof. Beneficial owners of the ADSs are welcome
to attend this extraordinary general meeting. At the meeting, you will be asked to consider and vote upon the following resolutions:
as special resolutions:
THAT the agreement and plan of merger, dated as of November 29,
2024 (the “Merger Agreement”), by and among the Company, Overlord Merger Sub Ltd. (“Merger Sub”) and Amber DWM
Holding Limited (“Amber DWM”), the plan of merger (the “plan of merger”) required to be registered with the Registrar
of Companies in the Cayman Islands (such plan of merger being substantially in the form attached as Annex A to the accompanying proxy
statement and to be produced and made available for inspection at the extraordinary general meeting) in order to give effect to the merger
(the “Merger”) of Merger Sub with and into Amber DWM, with Amber DWM surviving as a wholly owned subsidiary of the Company
(the “Surviving Entity”), and any and all transactions contemplated by the Merger Agreement and the plan of merger, be authorized
and approved;
THAT the ninth amended and restated memorandum and articles of
association of the Company be further amended and restated by their deletion in their entirety and the substitution of in their place
of the tenth amended and restated memorandum and articles of association of the Company in the form attached as Annex C
to the accompanying proxy statement with effective immediately prior to the effective time (the “Effective Time”) of the Merger
(the “Amendment of M&A”);
THAT the name of the Company be changed from “iClick Interactive
Asia Group Limited” to “Amber International Holding Limited” effective immediately prior to the Effective Time (the
“Change of Name”);
THAT immediately prior to the Effective Time, the authorized share capital
of the Company be varied as follows: all ICLK Class A Shares and all ICLK Class B Shares the holders of which have delivered a written
notice to iClick to convert its ICLK Class B Shares to ICLK Class A Shares with immediate effect on the Closing Date immediately before
the Effective Time (such ICLK Class B Shares, the “Converting ICLK Class B Shares”), in the authorized share capital of the
Company (including all issued and outstanding ICLK Class A Shares and Converting ICLK Class B Shares, and all authorized but unissued
ICLK Class A Shares and ICLK Class B Shares) shall be re-designated as New Class A Shares, all ICLK Class B Shares other than the Converting
ICLK Class B Shares shall be re-designated as New Class B Shares (unless such New Class B Shares are otherwise required to be automatically
converted into New Class A Shares in accordance with the Amendment of M&A (assuming the Amendment of M&A proposal is approved)),
and the authorized share capital of the Company shall be US$1,300,000 divided into 1,300,000,000 New Ordinary Shares comprising of (x)
1,191,000,000 New Class A Shares, and (y) 109,000,000 New Class B Shares (the “Variation of Share Capital”);
as an ordinary resolution:
THAT Wing Hong Sammy Hsieh, a director of the Company, be authorized
to do all things necessary to give effect to the Merger Agreement, the plan of merger, and the transactions contemplated by the Merger
Agreement and the plan of merger, including the Merger and, effective immediately prior to the Effective Time, the Amendment of M&A,
the Change of Name and the Variation of Share Capital.
if necessary, as an ordinary resolution:
THAT the chairman of the extraordinary general meeting be instructed
to adjourn the extraordinary general meeting in order to allow the Company to solicit additional proxies in the event that there are insufficient
proxies received at the time of the extraordinary general meeting to pass the special resolutions to be proposed at the extraordinary
general meeting.
After careful consideration, the board of directors of the Company
(the “Board”) authorized and approved the Merger Agreement and the plan of merger and recommends that you vote (a) FOR
the proposal to authorize and approve the Merger Agreement, the plan of merger and the transactions contemplated by the Merger Agreement
and the plan of merger, including the Merger, (b) FOR the proposal to adopt the tenth amended and restated memorandum and articles
of association of the Company in the form attached as Annex C to the accompanying proxy statement, effective immediately
prior to the Effective Time; (c) FOR the proposal to approve the change of the corporate name of the Company from “iClick Interactive
Asia Group Limited” to “Amber International Holding Limited” effective immediately prior to the Effective Time; (d) FOR
the proposal to approve the variation of the authorized share capital of the Company effective immediately prior to the Effective Time;
(e) FOR the proposal to authorize Wing Hong Sammy Hsieh, a director of the Company, to do all things necessary to give effect to
the Merger Agreement, the plan of merger, and the transactions contemplated by the Merger Agreement and plan of merger, including the
Merger and, effective immediately prior to the Effective Time, the Amendment of M&A, the Change of Name and the Variation of Share
Capital; and (f) FOR the proposal to approve the adjournment of the extraordinary general meeting, if necessary, to permit further
solicitation of proxies if there are insufficient proxies received at the time of the extraordinary general meeting to pass the special
resolutions to be proposed at the extraordinary general meeting.
In order for the Merger to be consummated, the Merger Agreement, the
plan of merger and the transactions contemplated under the Merger Agreement and the plan of merger, including the Merger must be authorized
and approved by a special resolution of the Company passed by a majority of not less than two-thirds of votes cast by shareholders as,
being entitled to do so, vote in person or by proxy or by corporate representative, at the extraordinary general meeting.
As of the date of this proxy statement, the Undertaking Shareholders
beneficially owned in the aggregate 11,626,898 ICLK Class A Shares and 4,385,078 ICLK Class B Shares, representing approximately
71% of the total voting power of the Company. Pursuant to the terms of a voting agreement dated November 29, 2024, by and among the
Undertaking Shareholders, the Company and Amber DWM (the “Voting Agreement”), these ICLK Shares will be voted in favor of
the authorization and approval of the Merger Agreement, the plan of merger and the transactions contemplated by the Merger Agreement and
the plan of merger, including the Merger.
Regardless of the number of ICLK Shares that you own, your vote is
very important. Even if you plan to attend the extraordinary general meeting in person, we request that you submit your proxy card in
accordance with the instructions set forth on the proxy card as promptly as possible. You should simply indicate on your proxy card how
you want to vote, sign and date the proxy card, and mail the proxy card in the enclosed return envelope as soon as possible to ensure
that it will be received by the Company no later than 9:00 a.m. January 1, 2025 (Hong Kong time), or 8:00 p.m. December 31,
2024 (New York time), which is the deadline to lodge your proxy card. The proxy card is the “instrument appointing a proxy”
as referred to in the Company’s articles of association. Voting at the extraordinary general meeting will take place by poll voting,
as the Chairman of the Board of the Company has undertaken to demand poll voting at the meeting. Each holder of ICLK Class A Share
has one vote for each ICLK Class A Share and each holder of ICLK Class B Share has twenty (20) votes for each ICLK Class B
Share held as of the close of business in the Cayman Islands on December 18, 2024.
If you own ADSs, each representing five ICLK Class A Shares,
you will not be able to attend the extraordinary general meeting and you cannot vote at the extraordinary general meeting directly, but
you may instruct JP Morgan Chase Bank, N.A., (the “ADS depositary”) (as the registered holder of the ICLK Class A Shares
underlying the ADSs) how to vote the ICLK Class A Shares underlying your ADSs. We will instruct the ADS depositary to deliver to
holders of ADS at the close of business in New York City on December 18, 2024, the ADS record date, an ADS proxy card, the form
of which is attached as Annex F to the accompanying proxy statement, and holders of ADS as of the ADS record date will have the right
to instruct the ADS depositary how to vote the ICLK Class A Shares underlying their ADSs at the extraordinary general meeting, subject
to and in accordance with the terms of the deposit agreement (defined below). ADS holders are strongly urged to sign, complete and return
the ADS proxy card to the ADS depositary in accordance with the instructions printed thereon as soon as possible and, in any event, no
later than 9:00 a.m. (New York time) on December 31, 2024 (or if the extraordinary general meeting is adjourned, such later
date as may be notified by the Company or the ADS depositary). Pursuant to terms of the Amendment No.1 to the Deposit Agreement (the
“Deposit Agreement”) dated October 31, 2022, by and among ListCo, the ADS depositary and the holders and beneficial
owners of ADSs issued thereunder, the ADS depositary will not vote or attempt to exercise the right to vote any ICLK Shares other than
in accordance with those instructions or deemed instructions. Alternatively, you may vote directly at the extraordinary general meeting
if you surrender your ADSs to the ADS depositary, pay the ADS depositary’s fees required for the cancellation of the ADSs, provide
instructions for the registration of the corresponding ICLK Shares, and certify that you have not given, and will not give, voting instructions
as to the ADSs (or alternatively, you will not vote the ICLK Shares) before the close of business in New York City on December 18,
2024, and become a registered holder of ICLK Shares by the close of business in the Cayman Islands on December 18, 2024. In addition,
if you hold your ADSs through a financial intermediary such as a broker, you must rely on the procedures of the financial intermediary
through which you hold your ADSs if you wish to vote at the extraordinary general meeting.
Completing the proxy card in accordance with the instructions set forth
on the proxy card will not deprive you of your right to attend the extraordinary general meeting and vote your ICLK Shares in person.
Please note, however, that if your ICLK Shares are registered in the name of a broker, bank or other nominee and you wish to vote at the
extraordinary general meeting in person, you must obtain from the registered holder a proxy issued in your name.
If you abstain from voting, fail to cast your vote in person, fail
to complete and return your proxy card in accordance with the instructions set forth on the proxy card, or fail to give voting instructions
to your broker, dealer, commercial bank, trust company or other nominee, your vote will not be counted.
If you receive more than one proxy card because you own ICLK Shares
that are registered in different names, please vote all of your ICLK Shares shown on each of your proxy cards in accordance with the instructions
set forth on each such proxy card.
PLEASE DO NOT SEND YOUR ICLK SHARE CERTIFICATES AT THIS TIME. IF THE
MERGER IS CONSUMMATED, YOU WILL BE SENT INSTRUCTIONS REGARDING THE SURRENDER OF YOUR SHARE CERTIFICATES.
The Merger Agreement, the plan of merger and the transactions contemplated
by the Merger Agreement and the plan of merger, including the Merger are described in the accompanying proxy statement. Copies of the
Merger Agreement and the plan of merger are included as Annex A and Annex B, respectively, to the accompanying proxy statement. We
urge you to read the entire accompanying proxy statement carefully.
Notes:
1. Where there are joint holders of any ICLK Share, any one of such
joint holders may vote, either in person or by proxy, in respect of such ICLK Share as if he or she were solely entitled thereto, but
if more than one of such joint holders are present at any meeting, the vote of the senior holder who tenders a vote, whether in person
or by proxy, will be accepted to the exclusion of the votes of the joint holders. For this purpose, seniority will be determined by the
order in which the names stand in the register of members of the Company in respect of the joint holding.
2. The instrument appointing a proxy must be in writing under the hand
of the appointor or of his or her attorney duly authorized in writing or, if the appointor is a corporation, either under seal or under
the hand of an officer or attorney or other person duly authorized.
3. A proxy need not be a member (registered shareholder) of the Company.
4. The chairman of the extraordinary general meeting may at his or
her discretion direct that a proxy card will be deemed to have been duly deposited where sent by email or telefax upon receipt of email
or telefax confirmation that the signed original thereof has been sent. A proxy card that is not deposited in the manner permitted will
be invalid.
5. Votes given in accordance with the terms of a proxy card will be
valid notwithstanding the previous death or insanity of the principal or revocation of the proxy or of the authority under which the proxy
was executed, or the transfer of the ICLK Share or ICLK Shares in respect of which the proxy is given, unless notice in writing of such
death, insanity, revocation or transfer is received by iClick at iClick’s office at 15/F, Prosperity Millennia Plaza, 663 King’s
Road, Quarry Bay, Hong Kong S.A.R., People’s Republic of China, at least two hours before the commencement of the extraordinary
general meeting, or adjourned meeting at which such proxy is used.
By Order of the Board of Directors,
/s/ Wing Hong Sammy Hsieh
Director, iClick Interactive Asia Group Limited
Hong Kong, People’s Republic of China
December 19, 2024
PROXY STATEMENT
Dated December 19, 2024
SUMMARY VOTING INSTRUCTIONS
Ensure that your ICLK Shares can be voted at the extraordinary general
meeting by submitting your proxy card or by contacting your broker, bank or other nominee.
If your ICLK Shares are registered in the name of a broker,
bank or other nominee: check the voting instruction card forwarded by your broker, bank or other nominee to see which voting
options are available or contact your broker, bank or other nominee in order to obtain directions as to how to ensure that your ICLK
Shares are voted at the extraordinary general meeting.
If your ICLK Shares are registered in your name: submit
your proxy as soon as possible by signing, dating and returning the accompanying proxy card in the enclosed postage-paid envelope, so
that your ICLK Shares can be voted at the extraordinary general meeting in accordance with your instructions.
If you submit your signed proxy card without indicating how you wish
to vote, the ICLK Shares represented by your proxy will be voted in favor of the resolutions to be proposed at the extraordinary general
meeting, unless you appoint a person other than the chairman of the meeting as proxy, in which case the ICLK Shares represented by your
proxy will be voted (or not submitted for voting) as your proxy determines.
If you are an ADS holder, please consult the ADS proxy card attached
as Annex F to this proxy statement to find out how you can vote the ICLK Class A Shares underlying your ADSs.
If you have any questions, require assistance with voting your proxy
card, or need additional copies of proxy material, please contact iClick’s Investor Relations Department at +852-3700-9100 or by
email at ir@i-click.com, for Asia, or at +1 516 222 2560 or by email at tomc@coreir.com.
TABLE OF CONTENTS
| FREQUENTLY USED TERMS |
3 |
| SUMMARY TERM SHEET |
6 |
| FINANCIAL INFORMATION |
17 |
| QUESTIONS AND ANSWERS ABOUT THE EXTRAORDINARY GENERAL MEETING |
18 |
| COMPARATIVE PER iclk SHARE MARKET PRICE AND DIVIDEND INFORMATION |
24 |
| CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS |
25 |
| RISK FACTORS |
26 |
| THE EXTRAORDINARY GENERAL MEETING |
67 |
| PROPOSAL I: THE MERGER PROPOSAL |
71 |
| THE MERGER AGREEMENT |
74 |
| THE VOTING AGREEMENT |
95 |
| PROPOSAL II: THE AMENDMENT PROPOSAL |
96 |
| PROPOSAL III: THE NAME CHANGE PROPOSAL |
97 |
| PROPOSAL IV: THE VARIATION OF SHARE CAPITAL PROPOSAL |
98 |
| PROPOSAL V: THE GENERAL AUTHORIZATION PROPOSAL |
99 |
| PROPOSAL VI: THE ADJOURNMENT PROPOSAL |
100 |
| INFORMATION ABOUT Amber DWM |
101 |
| DIRECTORS AND EXECUTIVE OFFICERS |
125 |
| SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT |
127 |
| MATERIAL TAX CONSEQUENCES OF THE MERGER |
131 |
| WHERE YOU CAN FIND MORE INFORMATION |
135 |
| ANNEX A Agreement and Plan Of Merger |
A-1 |
| ANNEX B Plan of Merger |
B-1 |
| ANNEX C Tenth Amended and Restated Memorandum and Articles of Association of ICLK |
C-1 |
| ANNEX D Voting Agreement |
D-1 |
| ANNEX E Form of Proxy Card |
E-1 |
| ANNEX G Audited Consolidated Financial Information of Amber Dwm |
G-1 |
| ANNEX H Unaudited Pro Forma Consensed Combined Financial Information |
H-1 |
FREQUENTLY
USED TERMS
Unless otherwise stated or unless the context otherwise requires,
(i) “iClick,” “ListCo,” the “Company,” “we,” “us,” and “our”
refers to, as dictated by the context, iClick Interactive Asia Group Limited, either by itself or together with its consolidated subsidiaries
and consolidated variable interest entities prior to the Merger and, following consummation of the Merger, together with iClick (as defined
below); and (ii) “Amber DWM” refers to Amber DWM Holding Limited, which, following consummation of the Merger, will be
a wholly owned subsidiary of iClick.
In addition, the following terms are commonly used throughout this
proxy statement and have the meaning set forth below:
“AB Founder Holdco” means an entity to be formed
or designated which shall be controlled by Mr. Michael Wu.
“ADS” means American depositary share, each representing
five ListCo Ordinary Shares, par value US$0.001 per share, as listed on Nasdaq under the symbol “ICLK.”
“Amber Group” means Amber Global Limited, Amber
DWM’s shareholder and strategic partner.
“Amber Premium” means Amber DWM Holding Limited,
a Cayman Islands holding company, and its subsidiaries.
“Audit Committee” means the audit committee of the
board of directors of iClick.
“Bitcoin” means the first peer-to-peer electronic
cash system of global, decentralized, scarce, digital money as initially introduced in a white paper titled Bitcoin: A Peer-to-Peer Electronic
Cash System by Satoshi Nakamoto.
“blockchain” means a cryptographically secure digital
ledger that maintains a record of all transactions that occur on the network and follows a consensus protocol for confirming new blocks
to be added to the blockchain.
“Board” means the board of directors of iClick.
“Closing” means the closing of the Merger.
“Closing Date” means the date of the Closing.
“Code” means the U.S. Internal Revenue Code of 1986,
as amended.
“crypto” means any cryptography-based market, system,
application, or decentralized network.
“crypto asset” means any digital asset built using
blockchain technology, including cryptocurrencies, stablecoins, and security tokens.
“cryptocurrency” means Bitcoin and alternative coins,
or “altcoins,” launched after the success of Bitcoin. This category of crypto asset is designed to work as a medium of exchange,
store of value, or to power applications and excludes security tokens.
“cryptoeconomy” means a new open financial system
built upon crypto.
“DeFi” means “Decentralized Finance,”
referring to a peer-to-peer software-based network of protocols that can be used to facilitate traditional financial services like borrowing,
lending, trading derivatives, insurance and more through smart contracts.
“DWM Required Regulatory Approvals”
means collectively, (i) the prior approval by the Monetary Authority of Singapore for iClick to become, immediately upon the completion
of the Merger, a “20% controller” (as defined under the Payment Services Act 2019 of Singapore (“PS Act”)) of
Sparrow Tech Private Limited (being a subsidiary of Amber DWM), pursuant to and in accordance with section 28(1) of the PS Act (the
“SG MAS Approval”); (ii) the pre-notification of the transactions to the Virtual Assets and Regulatory Authority of Dubai
in connection with FZE’s initial approval and any such required follow up notifications upon the completion of the Merger as
advised by the Virtual Assets Regulatory Authority; and (iii) the submission to and approval by the Securities and Futures Commission
of Hong Kong for various entities to be approved as substantial shareholders of WhaleFin HK under the Securities and Futures Ordinance
(Cap. 571) in relation to the Type 1 and 7 licences in connection with the transactions, including the DWM Asset Restructuring and the
Merger.
“Exchange Act” means the Securities Exchange Act
of 1934, as amended, and the rules and regulations promulgated thereunder.
“GAAP” means United States generally accepted accounting
principles.
“Houlihan Lokey” means Houlihan Lokey (China) Limited.
“IRS” means the U.S. Internal Revenue Service.
“ICLK Class A Share” means each class A ordinary
shares of iClick, par value US$0.001 per share, with the rights and privileges as set forth in the Ninth Amended and Restated Memorandum
and Articles of Association of iClick, adopted pursuant to a special resolution passed on December 19, 2018.
“ICLK Class B Share” means each class B ordinary
shares of iClick, par value US$0.001 per share, with the rights and privileges as set forth in the Ninth Amended and Restated Memorandum
and Articles of Association of iClick, adopted pursuant to a special resolution passed on December 19, 2018.
“ICLK Required Regulatory Approvals”
means the SG MAS Approval with respect to iClick.
“ICLK Shares” shall mean, prior to the adoption
of the Amendment of M&A, collectively the ICLK Class A Shares and the ICLK Class B Shares, or after the adoption of the
Amendment of M&A, New Ordinary Shares.
“mining” means the process by which new blocks are
created, and thus new transactions are added to the blockchain.
“New Class A Share” means each Class A
ordinary share, par value US$0.001 per share, of iClick, with the rights and privileges as set forth in the Amendment of M&A.
“New Class B Share” means each Class B
ordinary share, par value US$0.001 per share, of iClick, with the rights and privileges as set forth in the Amendment of M&A.
“New Ordinary Shares” shall mean, collectively,
the New Class A Shares and the New Class B Shares.
“ICLK Share Plans” means ListCo’s 2018 Share
Incentive Plan and Post-IPO Share Incentive Plan.
“Nasdaq” means The Nasdaq Stock Market LLC.
“PCAOB” means the Public Company Accounting Oversight
Board.
“SEC” means the United States Securities and Exchange
Commission.
“Securities Act” means the United States Securities
Act of 1933. “Shell Company Report” means the shell company report as may be required to be filed with the SEC in connection
with the Merger pursuant to Rule 13a-19 or Rule 15d-19 under the Exchange Act.
“smart contract” means software that digitally facilitates
or enforces a rules-based agreement or terms between transacting parties.
“stablecoin” means crypto assets designed to minimize
price volatility. A stablecoin is designed to track the price of an underlying asset such as fiat money or an exchange-traded commodity
(such as precious metals or industrial metals), while other stablecoins utilize algorithms that are designed to maintain a relative stable
price of the asset. Stablecoins can be backed by fiat money, physical commodities or other crypto assets.
“staking” means an energy efficient equivalent of
mining. Stakers use their tokens to validate transactions and create blocks. In exchange for this service, stakers earn a reward.
“US$,” “U.S. dollars,” “$,”
or “dollars” means the legal currency of the United States.
“U.S. GAAP” means accounting principles generally
accepted in the United States of America.
“wallet” means a place to store public and private
keys for crypto assets. Wallets are typically software, hardware or paper records.
SUMMARY
TERM SHEET
This summary, together with the questions and answers section that
follows, highlights information included elsewhere in this proxy statement. This summary does not contain all of the information you should
consider before voting on the proposals presented in this proxy statement. You should read the entire proxy statement carefully, including
the annexes attached hereto. For your convenience, we have included cross references to direct you to a more complete description of the
topics described in this summary.
The Companies (See Page 71)
iClick Interactive Asia Group Limited
ListCo is an exempted company with limited liability incorporated under
the laws of the Cayman Islands. ListCo’s principal executive office is located at 15/F, Prosperity Millennia Plaza, 663 King’s
Road, Quarry Bay, Hong Kong S.A.R., People’s Republic of China. ListCo’s telephone number at this address is +852 3700 9000.
ListCo’s registered office in the Cayman Islands is PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands.
ListCo is a renowned online marketing and enterprise solutions provider
in Asia that empowers worldwide brands with full-stack consumer lifecycle solutions.
For a description of ListCo’s history, development, business
and organizational structure, see ListCo’s Annual Report on Form 20-F for the fiscal year ended December 31, 2023, filed
on June 20, 2024, and Form 6-Ks furnished to the SEC on July 19, 2024, September 11, 2024, September 23, 2024,
September 30, 2024 and November 27, 2024, respectively, which are incorporated herein by reference.
Overlord Merger Sub Ltd.
Overlord Merger Sub Ltd. (“Merger Sub”) is an exempted
company with limited liability incorporated under the laws of the Cayman Islands and is directly and wholly-owned by ListCo. Merger Sub
was formed solely for the purpose of engaging in the transactions contemplated by the Merger Agreement (as defined below), including the
Merger (as defined below). The registered office address is the offices of International Corporation Services Ltd, PO Box 472, 2nd Floor,
Harbour Place, 103 South Church Street, George Town, Grand Cayman KY1-1106, Cayman Islands.
Amber DWM Holding Limited
Amber DWM is an exempted company with limited liability incorporated
under the laws of the Cayman Islands. Amber DWM’s principal executive office is located at 1 Wallich Street, #30-02 Guoco Tower,
Singapore 078881. Amber DWM’s telephone number at this address is +65 6022 0228. Amber DWM’s registered office in the Cayman
Islands is located at Maples Corporate Services Limited, PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands.
Amber DWM, operating under the well-known brand “Amber Premium,”
is a leading digital wealth management platform offering private banking-level solutions tailored for the dynamic cryptoeconomy. Serving
a premium clientele of esteemed institutions and qualified individuals, Amber DWM develops and supports innovative digital wealth management
products. Its institutional-grade access and operations make it the top choice for one-stop digital wealth management services, providing
tailored, secure solutions that drive growth in the Web3 economy.
For a more detailed description of Amber DWM’s history, development,
business and organizational structure, see “Information about Amber DWM” beginning on page 101.
The Merger
You are being asked to vote to authorize and approve an agreement and
plan of merger, dated as of November 29, 2024 (the “Merger Agreement”), by and among iClick, Merger Sub and Amber DWM,
pursuant to which Merger Sub will merge with and into Amber DWM, with Amber DWM surviving as the surviving entity and becoming a wholly-owned
subsidiary of iClick upon completion of the Merger (the “Surviving Entity”). In consideration of the Merger, shareholders
of Amber DWM will exchange all of the issued and outstanding shares of Amber DWM immediately prior to the Merger for newly issued New
Class A Shares or New Class B Shares.
Immediately before consummation of the Merger, iClick will change its
name to “Amber International Holding Limited” and adopt the tenth amended and restated memorandum and articles of association
in the form attached as Annex C to this proxy statement. Upon consummation of the Merger, the existing Amber DWM shareholders and existing
iClick shareholders (including holders of ADSs) will own approximately 90% and 10%, respectively, of the outstanding shares of the combined
company on a fully diluted and as converted basis, or 97% and 3% voting power of the combined company, respectively. Copies of the Merger
Agreement and the plan of merger and are attached as Annex A and Annex B, respectively, to this proxy statement. You should read
the Merger Agreement and the plan of merger in their entirety because they, and not this proxy statement, are the principal legal documents
that govern the Merger.
Merger Consideration (See Page 72)
The Merger values iClick at an equity value at US$40,000,000 (the “ICLK
Equity Value”) on a fully-diluted basis, and values Amber DWM at an equity value at US$360,000,000 on a fully-diluted basis (the
“DWM Equity Value”), assuming the completion of the DWM Asset Restructuring as described below.
At the Effective Time, each share of Amber DWM (“DWM Shares”)
issued and outstanding immediately prior to the Effective Time will be surrendered and cancelled in exchange for the right to receive
(x) in the case of any DWM Share held by AB Founder HoldCo, a number of validly issued, fully paid and non-assessable New Class B
Shares, and (y) in all other cases, a number of validly issued, fully paid and non-assessable New Class A Shares, in each case,
equal to (a) the DWM per share value (which is in turn calculated by (i) the DWM Equity Value divided by (ii) the number
of ordinary shares of Amber DWM that are outstanding immediately prior to the Effective Time), divided by (b) the ICLK per share
value (which is in turn calculated by (i) the ICLK Equity Value, divided by (ii) the number of all ICLK Class A Shares
and ICLK Class B Shares (collectively, “ICLK Shares”) that are outstanding immediately prior to the Effective Time on
a fully-diluted basis, assuming the issuance of all ICLK Shares that are required to be issued, but have not been issued as of immediately
prior to the Effective Time, in connection with the acquisition by iClick of certain share capital of Changyi (Shanghai) Information Technology
Ltd.) (the “Per Share Merger Consideration”, and the aggregate number of New Class A Shares and New Class B Shares
to be issued by ListCo, the “Merger Consideration”), except for (x) all ordinary shares of DWM that are owned by iClick,
Amber DWM, Merger Sub or any subsidiary of Amber DWM immediately prior to the Effective Time which shall automatically be canceled and
shall cease to exist, and (y) ordinary shares of Amber DWM issued and outstanding immediately prior to the Effective Time held by
holders who have validly exercised, or have not otherwise lost, their dissenters’ rights for such ordinary shares of Amber DWM in
accordance with Section 238 of the Cayman Islands Companies Act (such ordinary shares of Amber DWM being referred to collectively
as the “Dissenting Shares”, and holders of the Dissenting Shares collectively, the “Dissenting Shareholders”)
shall be cancelled and cease to exist at the Effective Time and the Dissenting Shareholders shall not be entitled to receive the Per Share
Merger Consideration, but instead shall be entitled only to receive the payment of the fair value of such Dissenting Shares held by them
determined in accordance with Section 238 of the Cayman Islands Companies Act.
The ADSs, each representing five (5) ICLK Class A Shares,
are listed on Nasdaq under the symbol “ICLK.” On November 27, 2024, the last trading day prior to the date of the public
announcement of the execution of the Merger Agreement, the closing price per ADS was US$7.10. On December 18, 2024, the last practicable
date prior to the date of the proxy statement, the closing price per ADS was US$8.58.
Treatment of Equity Awards (See Page 72)
Each option, RSU and any other equity award of iClick that is outstanding
and unexercised immediately prior to the Effective Time, whether or not vested or exercisable, shall remain outstanding and shall remain
subject to the terms and conditions of (a) the 2018 Share Incentive Plan, or (b) the Post-IPO Share Incentive Plan (collectively,
the “ICLK Share Plans”), as applicable, and any relevant award agreements applicable to such equity plans. Record Date and
Quorum (See Page 68)
You are entitled to attend and vote at the extraordinary general meeting
if you have ICLK Shares registered in your name in ListCo’s register of members at the close of business in the Cayman Islands
on December 18, 2024, the ICLK Share record date for voting at the extraordinary general meeting. If you own ADSs on December 18,
2024, the ADS record date (and do not convert such ADSs and become a registered holder of the ICLK Shares underlying such ADSs as explained
below), you cannot attend or vote at the extraordinary general meeting directly, but you may instruct the ADS depositary (as the registered
holder of the ICLK Class A Shares underlying the ADSs) on how to vote the ICLK Class A Shares underlying your ADSs. We will
instruct the ADS depositary to deliver to holders of ADS at the close of business in New York City on December 18, 2024, the ADS
record date, an ADS proxy card, the form of which is attached as Annex F to the accompanying proxy statement, and holders of ADS as of
the ADS record date will have the right to instruct the ADS depositary how to vote the ICLK Class A Shares underlying their ADSs
at the extraordinary general meeting, subject to and in accordance with the terms of the deposit agreement. ADS holders are strongly
urged to sign, complete and return the ADS proxy card to the ADS depositary in accordance with the instructions printed thereon as soon
as possible and, in any event, no later than 9:00 a.m. (New York time) on December 31, 2024 (or if the extraordinary general
meeting is adjourned, such later date as may be notified by the Company or the ADS depositary). Alternatively, if you own ADSs on the
ADS record date, you may attend and vote at the extraordinary general meeting by converting your ADSs into ICLK Class A Shares (and
certifying you have not instructed, and will not instruct, the ADS depositary to vote the ICLK Class A Shares represented by your
ADSs) before the close of business in New York City on December 18, 2024 and becoming a registered holder of ICLK Shares prior to
the close of business in the Cayman Islands not later than December 18, 2024, the ICLK Share record date. Each outstanding ICLK
Share on the ICLK Share record date entitles the holder to one vote on each matter submitted to the shareholders for authorization and
approval at the extraordinary general meeting and any adjournment thereof. We expect that, as of the ICLK Share record date, there will
be 44,378,953 ICLK Shares issued and outstanding and entitled to vote at the extraordinary general meeting. If
you have ICLK Shares registered in your name on the ICLK Share record date, the deadline for you to lodge your proxy card and vote is
9:00 a.m. January 1, 2025 (Hong Kong time), or 8:00 p.m. December 31, 2024 (New York time). See “—Procedures
for Voting” below.
Shareholder Vote Required to Authorize and Approve the Merger Agreement
and Plan of Merger (See Page 68)
In order for the Merger to be consummated, the Merger Agreement,
the plan of merger and the Transactions, including the Merger, must be authorized and approved by a special resolution of ListCo
passed by a majority of not less than two-thirds of the votes cast by shareholders as, being entitled to do so, vote in person or by
proxy or by corporate representative, at the extraordinary general meeting.
Based on the number of ICLK Shares we expect to be issued and outstanding
and entitled to vote on the ICLK Share record date, and assuming that all shareholders will be present and vote in person or by proxy
at the extraordinary general meeting, approximately 93,355,378 votes of ICLK Shareholders would need to be voted in favor of the proposal
to authorize and approve the Merger Agreement, the plan of merger and the Transactions, including the Merger, in order for the proposal
to be authorized and approved by a special resolution.
As of the date of this proxy statement, the Undertaking
Shareholders beneficially owned in the aggregate 11,626,898 ICLK Class A Shares and 4,385,078 ICLK Class B Shares,
representing approximately 71% of the total voting power of the Company. See “Security Ownership of Certain Beneficial Owners
and Management” beginning on page 127 for additional information. Pursuant to the terms of the Voting Agreement (as defined
below), these Shares will be voted in favor of the authorization and approval of the Merger Agreement, the plan of merger and the
Transactions, including the Merger, at the extraordinary general meeting of ListCo.
If your ICLK Shares are held in the name of a broker, bank or other
nominee, your broker, bank or other nominee will not vote your ICLK Shares in the absence of specific instructions from you.
Procedures for Voting (See Page 68)
Before voting your ICLK Shares, we encourage you to read this proxy
statement in its entirety, including all of the annexes, attachments, exhibits and materials incorporated by reference, and carefully
consider how the Merger will affect you. To ensure that your ICLK Shares can be voted at the extraordinary general meeting even in the
event that you are unable to attend, please complete the enclosed proxy card in accordance with the instructions set forth on the proxy
card as soon as possible. The deadline for you to lodge your proxy card is 9:00 a.m. January 1, 2025 (Hong Kong time), or 8:00
p.m. December 31, 2024 (New York time).
If you own ADSs as of the close of business in New York City on
December 18, 2024, the ADSs record date (and do not convert such ADSs and become a registered holder of the ICLK Class A
Shares underlying such ADSs as explained below), you cannot attend or vote at the extraordinary general meeting directly, but you
may instruct the ADS depositary (as the registered holder of the ICLK Class A Shares underlying the ADSs) how to vote the ICLK
Class A Shares underlying your ADSs. We will instruct the ADS depositary to deliver to holders of ADS at the close of business
in New York City on December 18, 2024, the ADS record date, an ADS proxy card, the form of which is attached as Annex F to the
accompanying proxy statement, and holders of ADS as of the ADS record date will have the right to instruct the ADS depositary how to
vote the ICLK Class A Shares underlying their ADSs at the extraordinary general meeting, subject to and in accordance with the
terms of the deposit agreement. ADS holders are strongly urged to sign, complete and return the ADS proxy card to the ADS depositary
in accordance with the instructions printed thereon as soon as possible and, in any event, no later than 9:00 a.m. (New York
time) on December 31, 2024 (or if the extraordinary general meeting is adjourned, such later date as may be notified by the
Company or the ADS depositary). Alternatively, you may attend and vote at the extraordinary general meeting if you convert your ADSs
and become a registered holder of ICLK Class A Shares prior to the close of business in the Cayman Islands not later than
December 18, 2024. If you wish to convert your ADSs for the purpose of voting ICLK Class A Shares, you need to make
arrangements to deliver your ADSs to the ADS depositary for conversion before the close of business in New York City on
December 18, 2024 together with (a) delivery instructions for the corresponding ICLK Class A Shares (name and address
of person who will be the registered holder of ICLK Class A Shares), and (b) payment of the ADS cancellation fees (US$0.05
per ADS to be cancelled) and any applicable taxes. If you hold your ADSs in a brokerage, bank or nominee account, please contact
your broker, bank or nominee to find out what actions you need to take to instruct the broker, bank or nominee to convert the ADSs
on your behalf. Upon conversion of the ADSs, the ADS depositary will arrange for J.P. Morgan Chase Bank N.A. Hong Kong, the
custodian holding the ICLK Class A Shares, to transfer registration of the ICLK Class A Shares to the former ADS holder
(or a person designated by the former ADS holder). If after registration of ICLK Shares in your name, you wish to receive a
certificate evidencing the ICLK Shares registered in your name, you will need to request the registrar of the ICLK Shares to issue
and mail a certificate to your attention.
Purposes and Effects of the Merger (See Page 73)
The purpose of the Merger is to enable ListCo to acquire 100% control
of Amber DWM in a transaction in which the holders of securities of Amber DWM will receive New Ordinary Shares.
The ADSs are currently listed on Nasdaq under the symbol “ICLK.”
It is expected that, following the consummation of the Merger, ListCo will maintain its listing on Nasdaq under a new symbol “AMBR.”
Recommendations of the Board (See Page 67)
The Board of ListCo reviewed and considered the terms and conditions
of the Merger Agreement and the transactions contemplated by the Merger Agreement, including the Merger. On November 29, 2024, the
Board unanimously (a) determined that the Merger Agreement and the transaction agreements contemplated by the Merger Agreement are
fair to and in the best interests of ListCo and its shareholders, (b) declared it advisable to enter into the Merger Agreement and
the transaction agreements contemplated by the Merger Agreement, (c) authorized and approved the execution, delivery and performance
of the Merger Agreement, the plan of merger and the transactions contemplated by the Merger Agreement and the plan of merger, including
the Merger, and (d) resolved to direct that the authorization and approval of the Merger Agreement, the plan of merger, and the transactions
contemplated under the Merger Agreement, including the Merger, be submitted to a vote at an extraordinary general meeting of the shareholders
of ListCo.
After careful consideration, the Board authorized and approved the
Merger Agreement and the plan of merger and recommends that you vote (a) FOR the proposal to authorize and approve the Merger Agreement,
the plan of merger and the transactions contemplated by the Merger Agreement and the plan of merger, including the Merger, (b) FOR
the proposal to adopt the tenth amended and restated memorandum and articles of association of ListCo in the form attached
as Annex C to the accompanying proxy statement, effective immediately prior to the Effective Time (the “Amendment of M&A”);
(c) FOR the proposal to approve the change of the corporate name of ListCo from “iClick Interactive Asia Group Limited”
to “Amber International Holding Limited” effective immediately prior to the Effective Time (the “Change of Name”);
(d) FOR the proposal to approve the variation of the authorized share capital of ListCo effective immediately prior to the Effective
Time (the “Variation of Share Capital”); (e) FOR the proposal to authorize Wing Hong Sammy Hsieh, a director of the Company,
to do all things necessary to give effect to the Merger Agreement, the plan of merger, and the transactions contemplated by the Merger
Agreement and plan of merger, including the Merger and, effective immediately prior to the Effective Time, the Amendment of M&A, the
Change of Name and the Variation of Share Capital; and (f) FOR the proposal to approve the adjournment of the extraordinary general
meeting, if necessary, to permit further solicitation of proxies if there are insufficient proxies received at the time of the extraordinary
general meeting to pass the special resolutions to be proposed at the extraordinary general meeting.
Ownership of ListCo Ordinary Shares After the Merger (See Page
72)
Upon completion of the Transactions, the existing Amber DWM shareholders
and existing iClick shareholders (including holders of ADSs) will own approximately 90% and 10%, respectively, of the outstanding shares
of the combined company on a fully diluted and as converted basis, or 97% and 3% voting power of the combined company, respectively. See
“Security Ownership of Certain Beneficial Owners and Management” beginning on page 127 for additional information.
Interests of ListCo Directors and Executive Officers in the Merger
(See Page 73)
In considering the recommendations of the Board to vote for the Merger
Proposal, you should be aware that certain of the current directors and executive officers of ListCo have interests in the Merger that
may be different from, or in addition to, the interests of unaffiliated ListCo shareholders generally and may create potential conflicts
of interest. For example, pursuant to the terms of the Merger Agreement, ListCo’s directors and executive officers may be entitled
to continued indemnification and insurance coverage. The Board was aware of each of these interests in reviewing, considering and negotiating
the terms of the proposed Merger and in recommending that ListCo shareholders approve the adoption of the Merger Agreement.
Conditions to the Merger (See Page 90)
Conditions to Obligations of Each Party’s
Obligations
The respective obligations
of each of iClick, Merger Sub and Amber DWM to effect the Merger and the other transactions contemplated under the Merger Agreement shall
be subject to the satisfaction of each of the following conditions as of the Closing:
| · | At the extraordinary general meeting (including any adjournments thereof),
the approval of the ICLK Shareholder Matters shall have been obtained and shall remain in full force and effect. |
| · | The DWM Required Regulatory Approvals and the ICLK Required Regulatory Approvals shall have been made
or obtained, as applicable, and shall remain effective (such condition, the “Regulatory Approval Condition”),
unless iClick and Amber DWM agree on alternative arrangements in respect of the Regulatory Approval Condition in connection with
alternative arrangements relating to the DWM Asset Restructuring (see “The Merger Agreement—DWM Asset
Restructuring” on page 76). |
| · | No provision of any applicable legal requirement prohibiting, enjoining, restricting or making illegal
the consummation of the transactions contemplated under the Merger Agreement shall be in effect, and no temporary, preliminary or permanent
restraining order enjoining, restricting or making illegal the consummation of the transactions contemplated under the Merger Agreement
shall be in effect. |
| · | Nasdaq approval of the listing application submitted by iClick shall have been obtained. |
| · | No general suspension or material limitation of trading in the ADSs has been imposed or threatened by
the SEC or the Nasdaq. |
| · | Immediately after the Effective Time, the Board shall consist of up to seven
(7) directors, to be designated by Amber DWM in writing at least ten (10) business days prior to the Closing. |
Additional Conditions to Obligations of Amber
DWM
In addition, the obligations of Amber DWM to consummate
and effect the Merger and the other transactions contemplated under the Merger Agreement shall be subject to the satisfaction of each
of the following conditions as of the Closing, any of which may be waived, in writing, exclusively by Amber DWM:
| · | (i) The fundamental representations of each of iClick and Merger Sub
shall be true and correct in all respects on and as of the Closing Date as though made on and as of the Closing Date (except to the extent
that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall
be true and correct in all respects as of such earlier date); and (ii) all other representations and warranties set forth in Article V
of the Merger Agreement shall be true and correct (without giving effect to any limitation as to “materiality” or “ICLK
Material Adverse Effect” or any similar limitation contained herein) on and as of the applicable Closing Date as though made on
and as of the applicable Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier
date, in which case such representation and warranty shall be so true and correct as of such earlier date), except in the case of this
clause (ii), where any failures of such representations and warranties to be so true and correct, individually and in the aggregate, has
not had and is not reasonably likely to have an ICLK Material Adverse Effect. |
| · | Each of iClick and Merger Sub shall have performed or complied with all agreements and covenants required
by the Merger Agreement and the other transaction documents to be performed or complied with by it on or prior to the applicable Closing
Date, in each case in all material respects. |
| · | No ICLK Material Adverse Effect shall have occurred since the date of the Merger Agreement. |
| · | The Cash Level of iClick equals or exceeds US$10 million as of December 31, 2024. |
| · | iClick shall have delivered to Amber DWM a certificate, signed by a duly authorized officer of iClick
and dated as of the Closing Date, certifying as to the matters set forth in the four bullets above. |
| · | The memorandum and articles of association of iClick shall have been amended
and restated in its entirety in the form of the Amendment of M&A and certain shareholders of iClick shall have converted its ICLK
Class B Shares to ICLK Class A Shares. |
Additional Conditions to the Obligations of iClick
and Merger Sub
In addition, the obligations of iClick and Merger Sub
to consummate and effect the Merger and the other transactions contemplated under the Merger Agreement shall be subject to the satisfaction
of each of the following conditions as of the Closing, any of which may be waived, in writing, exclusively by iClick:
| · | (i) The fundamental representations of Amber DWM shall be true and correct in all respects on and
as of the Closing Date as though made on and as of the a Closing Date (except to the extent that any such representation and warranty
expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct in all respects as of
such earlier date); and (ii) all other representations and warranties set forth in Article IV of the Merger Agreement shall
be true and correct (without giving effect to any limitation as to “materiality” or “DWM Material Adverse Effect”
or any similar limitation contained herein) on and as of the Closing Date as though made on and as of the Closing Date (except to the
extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty
shall be so true and correct as of such earlier date), except in the case of this clause (ii), where any failures of such representations
and warranties to be so true and correct, individually and in the aggregate, has not had and is not reasonably likely to have a DWM Material
Adverse Effect. |
| · | DWM shall have performed or complied with all agreements and covenants required by the Merger Agreement
and the other transaction documents to be performed or complied with by it on or prior to the Closing Date, in each case in all material
respects. |
| · | No DWM Material Adverse Effect shall have occurred since the date of the Merger Agreement. |
| · | The Cash Level of Amber DWM equals or exceeds US$10 million as of December 31, 2024. |
| · | The DWM Asset Restructuring (including any reasonable alternative
structure thereof as may be agreed upon by DWM and iClick in accordance with the Merger
Agreement that will provide iClick with substantially the same economic benefits, see “The Merger Agreement—DWM
Asset Restructuring” on page 76) shall have been completed pursuant to the terms of the Merger
Agreement. |
| · | Amber DWM shall have delivered to iClick a certificate, signed by a duly authorized officer of Amber DWM
and dated as of the applicable Closing Date, certifying as to the matters set forth in the five bullets above. |
| · | Amber DWM shall have cause the Binding Undertaking to be delivered. |
No Solicitation (See Page 87)
During the period from the date of the Merger Agreement and continuing
until the earlier of the termination of the Merger Agreement pursuant to its terms and the Closing, Amber DWM shall not, and shall cause
its affiliates not to, and shall direct its and its affiliates’ respective employees, agents, officers, directors, managers, representatives
and advisors (collectively, “Representatives”) not to, directly or indirectly, other than as contemplated by the Merger Agreement
(including the DWM Asset Restructuring or certain capital restructuring of Amber DWM as contemplated under the Merger Agreement (the “DWM
Capital Restructuring”)): (i) solicit, initiate, enter into or continue discussions, negotiations or transactions with, or
encourage or respond to any inquiries or proposals by, or provide any information to, any person (other than the parties hereto and their
respective Representatives) concerning any merger, consolidation, sale of any material portion of the ownership interests and/or assets
of any of the DWM Group Companies, recapitalization of any of the DWM Group Companies or similar transaction involving any of the DWM
Group Companies (each, a “DWM Business Combination”); (ii) enter into any contract regarding, continue or otherwise participate
in any discussions or negotiations regarding, or cooperate in any way that would otherwise reasonably be expected to lead to a DWM Business
Combination; or (iii) commence, continue, renew or respond to any due diligence investigation regarding a DWM Business Combination.
Amber DWM shall, and shall cause its affiliates to, and shall cause its and its affiliates’ respective Representatives to, immediately
cease any and all existing discussions, negotiations or other engagement with any person with respect to any DWM Business Combination.
During the period from the date of the Merger Agreement and continuing
until the earlier of the termination of this Agreement pursuant to its terms and the Closing, iClick and Merger Sub shall not, and shall
cause their respective affiliates not to, and shall direct each of iClick and Merger Sub’s and their affiliates’ respective
Representatives not to, directly or indirectly, other than as contemplated by the Merger Agreement: (i) solicit, initiate, enter
into or continue discussions, negotiations or transactions with, or encourage or respond to any inquiries or proposals by, or provide
any information to, any person (other than the parties to the Merger Agreement and their respective Representatives) concerning any merger,
consolidation, sale of ownership interests or assets of the ICLK Group Companies, recapitalization of the any ICLK Group Company or similar
transaction involving any ICLK Group Company (each, an “ICLK Business Combination”); (ii) enter into any contract regarding,
continue or otherwise participate in any discussions or negotiations regarding, or cooperate in any way that would otherwise reasonably
be expected to lead to an ICLK Business Combination; or (iii) commence, continue, renew or respond to any due diligence investigation
regarding an ICLK Business Combination. iClick and Merger Sub shall, and shall cause their affiliates to, and shall cause each of iClick
and Merger Sub’s and their affiliates’ respective Representatives to, immediately cease any and all existing discussions,
negotiations or other engagement with any person with respect to any ICLK Business Combination.
Termination of the Merger Agreement (See Page 91)
The Merger Agreement may be terminated at any time prior to the Closing:
| · | by mutual written agreement of iClick and Amber DWM at any time; |
| · | by iClick or Amber DWM if the Closing shall not have occurred by June 30, 2025 (the “Outside Date”); provided, however,
that such right to terminate the Merger Agreement as provided in this bullet shall not be available to iClick or Amber DWM if the action
or failure to act of iClick or Merger Sub, on the one hand, or Amber DWM, on the other hand, has been a principal cause of or resulted
in the failure of the Closing to occur on or before the Outside Date and such action or failure to act constitutes a breach of the Merger
Agreement; provided further, that if on the Outside Date, all other conditions to the Closing have been satisfied or waived (other than
those conditions that by their nature are to be satisfied at the Closing, provided that each of such conditions is capable of being satisfied
at the Closing) except for the Regulatory Approval Condition, such party proposing to exercise the termination right shall first engage
in good faith discussion with the other party for a period of no less than five business days on alternative solution to carry out the
commercial intent of the transactions before so terminating the Merger Agreement as provided in this bullet (such termination, the “Outside
Date Termination”); |
| · | by iClick or Amber DWM if a governmental entity shall have issued a final, non-appealable order or taken any other non-appealable
action, in any case having the effect of permanently restraining, enjoining or otherwise prohibiting the transactions contemplated under
the Merger Agreement, including the Merger; provided, however, that such right to terminate the Merger Agreement as provided in this bullet
shall not be available to iClick or Amber DWM if the issuance of such final, non-appealable Order or the taking of such non-appealable
action was due to such party’s failure to comply with any provision of the Merger Agreement (such termination, the “Injunction
Termination”); |
| · | by Amber DWM, upon a breach of any covenant or agreement set forth in the Merger Agreement on the part of any of iClick and Merger
Sub, or if any representation or warranty of any of iClick and Merger Sub shall have become untrue, in either case, such that the conditions
to the Closing would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become
untrue; provided, that if such breach by iClick or Merger Sub is curable by iClick and Merger Sub prior to the Outside Date, then Amber
DWM must first provide written notice of such breach to iClick and may only terminate the Merger Agreement as provided in this bullet,
if such breach remains uncured on the earlier of: (i) thirty (30) days after delivery of written notice from Amber DWM to iClick
of such breach; and (ii) fifteen business days prior to the Outside Date; provided, further, that it being understood that Amber
DWM may not terminate the Merger Agreement pursuant to this bullet if it shall have materially breached the Merger Agreement and such
breach has not been cured (such termination, the “ICLK Breach Termination”); |
| · | by iClick, upon a breach of any covenant or agreement set forth in the Merger Agreement on the part of Amber DWM or if any representation
or warranty of Amber DWM shall have become untrue, in either case such that the conditions to the Closing would not be satisfied as of
the time of such breach or as of the time such representation or warranty shall have become untrue; provided, that if such breach is curable
by Amber DWM prior to the Outside Date, then iClick must first provide written notice of such breach to Amber DWM and may only terminate
the Merger Agreement as provided in this bullet, if such breach remains uncured on the earlier of: (i) thirty (30) days after delivery
of written notice from iClick to Amber DWM of such breach; and (ii) fifteen business days prior to the Outside Date; provided, further,
that it being understood that iClick may not terminate the Merger Agreement pursuant to this bullet if it shall have materially breached
the Merger Agreement and such breach has not been cured (such termination, the “DWM Breach Termination”); or |
| · | by iClick or Amber DWM, if, at the extraordinary general meeting (including any adjournments thereof), the approval of the ICLK Shareholder
Matters is not obtained; provided that iClick may not terminate the Merger Agreement as provided in this bullet if such failure to obtain
the ICLK Shareholder Approval is a result of any breach under the Voting Agreement by any shareholder of iClick who is a party thereto
or any breach by iClick or Merger Sub under the Merger Agreement (such termination, the “Shareholder Vote Termination”). |
In the event of the termination of the Merger Agreement as provided
above, the Merger Agreement shall be of no further force or effect and the transactions contemplated under the Merger Agreement shall
be abandoned, except for and subject to the following: (i) the Merger Agreement’s provisions regarding confidentiality, communications
plan, access to information, notice of termination, effect of termination, termination fees and certain general provisions shall survive
the termination of the Merger Agreement; and (ii) nothing in the Merger Agreement shall relieve any party from liability for any
intentional breach of the Merger Agreement or fraud.
The Voting Agreement (See Page 95)
Concurrent with the execution of the Merger Agreement, the Undertaking
Shareholders who collectively hold 11,626,898 ICLK Class A Shares and 4,385,078 ICLK Class B Shares, representing approximately
71% of the total voting power of the Company as of the date of this proxy statement, have entered into the Voting Agreement, agreeing
to vote or cause to be voted all securities of iClick he, she or it beneficially owns (the “Voting Shares”) in favor of the
ICLK Shareholder Matters and any proposal to adjourn or postpone such meeting of shareholders of ICLK to a later date if there are not
sufficient votes to approve Transactions (including the Merger).
The Undertaking Shareholders also agree to vote or cause to be voted
the Voting Shares against (A) any proposal or offer from any person (other than Amber DWM or any of its affiliates) concerning an
ICLK Business Combination; (B) any action, proposal, transaction or agreement which could reasonably be expected to result in a breach
of any covenant, representation or warranty or any other obligation or agreement of iClick under the Merger Agreement; and (C) except
as contemplated by the Voting Agreement and the other Transaction Agreements, any action, proposal, transaction or agreement that could
reasonably be expected to impede, interfere with, delay, discourage, adversely affect or inhibit the timely consummation of the Transactions
(including the Merger) or the fulfillment of iClick’s conditions under the Merger Agreement or change in any manner the voting rights
of any class of shares of iClick (including any amendments to its governing documents), including, without limitation, any action that
would require the consent of Amber DWM pursuant to the Merger Agreement, except if approved in writing by Amber DWM.
The terms of the Voting Agreement are described in more detail
under the section entitled “The Voting Agreement” beginning on page 95.
Anticipated Accounting Treatment (See Page 73)
The Business Combination will be accounted for as a reverse acquisition
(reverse merger) in accordance with Generally Accepted Accounting Principles in the United States (“U.S. GAAP”).
Material Tax Consequence of the Merger (See Page 131)
For a description of certain material tax consequences of the Merger,
please see “Material Tax Consequences of the Merger” beginning on page 131.
Risk Factors (See Page 26)
You should carefully read this proxy statement carefully, including
its annexes, exhibits, attachments and the other documents referred to or incorporated by reference herein and carefully consider the
factors discussed in “Risk Factors” in connection with your consideration of the Merger before deciding whether to vote for
approval of the proposals contained herein. Below please find a summary of the principal risks that may be relevant, including related
to the Merger, business and industry of Amber Premium, ownership of the ADSs, organized under relevant headings. These risks are discussed
more fully in “Risk Factors.”
Risks Related to Amber Premium’s Business
| · | Amber Premium’s business lines are nascent, unproven and subject to material legal, regulatory, operational, reputational, tax
and other risks in the jurisdictions where Amber Premium operates. |
| · | Amber Premium’s operating results have fluctuated and will significantly fluctuate due to a variety of factors, including
the highly volatile nature of cryptocurrency. |
| · | Due to Amber Premium’s limited operating history, it may be difficult to evaluate its business and future prospects, and Amber
Premium may not be able to achieve or maintain profitability in every given period. |
| · | Amber Premium’s operating results are dependent on the prices of digital assets and volume of transactions that Amber Premium
conducts. If such price or volume declines, Amber Premium’s business, operating results, and financial condition would be adversely
affected. |
| · | A particular digital asset’s status as a “security” in any relevant jurisdiction is subject to a high degree of
uncertainty and if Amber Premium is unable to properly characterize a digital asset, it may be subject to regulatory scrutiny, investigations,
fines, and other penalties, which may adversely affect its business, operating results, and financial condition. |
| · | If Amber Premium fails to develop, maintain and enhance its brand and reputation, its business operating results and financial condition
may be adversely affected. |
| · | Amber Premium may not be able to compete effectively, which could materially and adversely affect its business, financial condition,
results of operations and prospects, as well as its reputation and brands. |
| · | Amber Premium may be subject to inquiries, investigations, and enforcement actions by regulators and governmental authorities worldwide,
including those related to sanctions, export control, and anti-money laundering. |
| · | Amber Premium and its third-party service providers’ failure to safeguard and manage its and its clients’ funds and digital
assets could adversely impact its business, operating results and financial condition. |
| · | If Amber Premium cannot keep pace with rapid industry changes to provide new and innovative products and services, the use of its
products and services, and consequently its revenue, could decline, which could adversely impact its business, operating results, and
financial condition. |
| · | If Amber Premium fails to retain existing clients or attract new clients, or if its clients decrease their level of engagement with
its services and platform, the business, operating results and financial condition of Amber Premium, and after consummation of the Merger,
of ListCo may be significantly harmed. |
| · | Amber DWM is undertaking a series of corporate restructurings, and is subject to significant risks in relation to such transition,
including the risk of losing clients under the WFTL Assigned Contracts. |
| · | Amber Premium’s business is susceptible to risks associated with international operations, including risks associated with difficulties,
delays or failures in obtaining and/or maintaining the regulatory approvals, permissions, authorizations, licenses or consents that may
be required to offer certain products or services in one or more international markets. |
Risks Related to Cryptocurrencies and Digital Assets
| · | The continuing development and acceptance of digital assets and distributed ledger technology are subject to a variety of risks. |
| · | Digital assets represent a new and rapidly evolving industry, and Amber Premium’s business operations and financial performance
have in the past been, and may in the future be, impacted by the acceptance of Bitcoin and other digital assets. |
| · | The prices of digital assets are extraordinarily volatile. |
| · | Due to a lack of familiarity and some negative publicity associated with digital asset-related companies, existing and potential clients,
counterparties and regulators may lose confidence in digital asset management companies. |
| · | Many digital asset transactions are irrevocable and stolen or incorrectly transferred digital assets may be irretrievable. As a result,
any incorrectly executed digital asset transactions could adversely affect Amber Premium’s business operations and financial performance. |
Risks Related to the Merger
| · | Failure to satisfy the conditions to the Closing on a timely basis or at all could cause delay and additional expense or prevent the
Merger from occurring altogether. |
| · | The parties may carry out alternative arrangements in relation to the DWM Asset Restructuring and the Regulatory Approval Condition,
which could cause ListCo and Amber DWM not to realize some or all of the benefits that the parties expect the Merger or the DWM Asset
Restructuring to achieve and could lead to other adverse effect on Listco and Amber DWM. |
| · | Certain of ListCo’s directors, executive officers and major shareholders have interests in the Merger that are different from,
and may potentially conflict with, ListCo’s interests and the interests of its unaffiliated shareholders. |
| · | Amber DWM is not a publicly traded company and does not have a long operating history, making it difficult to determine the fair market
value of Amber DWM or the Merger consideration. |
| · | Prospective financial information regarding Amber DWM and ListCo, including information used as a basis
for determining the fairness of the Merger Consideration, may not prove accurate. |
| · | The Merger Consideration is based on ICLK Equity Value and DWM Equity Value, which will not be adjusted before or at the Closing
to account for the performance of ListCo or Amber DWM. |
| · | Nasdaq may not approve the initial listing application in connection with the Transactions. |
Risks Related to the Ownership of the ICLK Shares or ADSs
| · | The multi-class share structure of ListCo with different voting rights will significantly limit your ability to influence corporate
matters and could discourage others from pursuing any change of control transactions that holders of the ICLK Class A ICLK Shares
and the ADSs may view as beneficial. |
| · | The trading price of the ADSs is likely to be volatile, which could result in substantial losses to investors. |
Controlled Company Exemption (See Page 129)
It is expected that, subject to certain assumptions,
Mr. Michael Wu will have the right to vote 92.9% of the New Ordinary Shares upon consummation of the Merger. As a result, ListCo
will be a “controlled company” as defined under the Nasdaq Stock Market Rules because Mr. Michael Wu will own more
than 50% of ListCo’s total voting power. For so long as ListCo remains a controlled company, it will be permitted to elect to rely,
and may rely, on certain exemptions from corporate governance rules, including an exemption from the rule that a majority of its
board of directors must be independent directors or that it has to establish a nominating committee and a compensation committee composed
entirely of independent directors. As a result, you will not have the same protection afforded to shareholders of companies that are subject
to these corporate governance requirements.
FINANCIAL
INFORMATION
Certain Financial Information about iClick
The audited consolidated financial statements of iClick contained in
its Annual Report on Form 20-F for the year ended December 31, 2023 and the unaudited consolidated financial statements of iClick
contained in its Current Report on Form 6-K for the six months ended June 30, 2024 are incorporated by reference into this proxy
statement.
Certain Financial Information about Amber DWM
In connection with the Merger, Amber DWM is undertaking a series of
corporate restructurings, which is referred to as the DWM Asset Restructuring. See “The Merger Agreement—DWM Asset Restructuring.”
The historical audited consolidated financial information of Amber DWM for the years ended June 30, 2023 and 2024, which has been
prepared without taking into consideration the DWM Asset Restructuring, is included in Annex G to this proxy statement, and is also discussed
in further detail in the section entitled “Management’s Discussion and Analysis of Financial Condition and Results of Operations
of Amber DWM” beginning on page 117 of this proxy statement.
The selected unaudited pro forma financial data of Amber DWM for
the year ended June 30, 2024, which presents the combined financial information of Amber DWM after giving effect to the DWM
Asset Restructuring, is included in the section of this proxy statement entitled “Supplemental Management’s Discussion
and Analysis of Pro Forma Financial Condition and Results of Operations of Amber DWM” beginning on page 121 of this proxy
statement.
QUESTIONS
AND ANSWERS ABOUT THE EXTRAORDINARY GENERAL MEETING
The following questions and answers address briefly some questions
you may have regarding the extraordinary general meeting. These questions and answers may not address all questions that may be important
to you as a holder of ICLIK Shares or as an ADS holder. Please also refer to the more detailed information contained elsewhere in this
proxy statement, the annexes to this proxy statement and the documents referred to or incorporated by reference in this proxy statement.
Why am I receiving this proxy statement?
You are receiving this proxy statement and proxy card because you owned
ICLK shares prior to the close of business in the Cayman Islands on December 18, 2024, the ICLK Share record date, or ADSs, each
representing five ICLK Class A Shares, prior to the close of business in the New York City on December 18, 2024, the ADS record
date. This proxy statement and proxy card relate to our extraordinary general meeting (and any adjournment thereof) and describe the matters
on which we would like you, as a shareholder or a holder of ADSs, to vote.
We are seeking the approval of our shareholders of the proposal to
authorize and approve the Merger Agreement, the plan of merger and the Transactions, including the Merger, at an extraordinary general
meeting or at any adjournment of such extraordinary general meeting. This proxy statement summarizes certain information you need to know
to vote at the extraordinary general meeting. All shareholders are cordially invited to attend the extraordinary general meeting in person.
However, you do not need to attend the extraordinary general meeting to vote your ICLK Shares. Instead, you may simply complete, sign,
date and return the enclosed proxy card.
When and where will the extraordinary general meeting be held?
The extraordinary general meeting will be held on January 3, 2025
at 9:00 a.m. (Hong Kong time), or January 2, 2025 at 8:00 p.m. (New York time) at 15/F Prosperity Millennia Plaza, 663
King’s Road, Quarry Bay, Hong Kong, People’s Republic of China, and for any adjournment or postponement thereof.
What will I be asked to vote upon at the extraordinary general meeting?
At the extraordinary general meeting, you will be asked to vote upon
the following:
| · | as a special resolution, to authorize and approve the Merger Agreement, the plan of merger and the Transactions, including the Merger
(the “Merger Proposal”); |
| · | as a special resolution, to authorize and approve the amendment and restatement of the memorandum and articles of association of ListCo
effective immediately prior to the Effective Time (the “Amendment Proposal”); |
| · | as a special resolution, to authorize and approve the change of the name of the Company from “iClick Interactive Asia Group
Limited” to “Amber International Holding Limited” effective immediately prior to the Effective Time (the “Name
Change Proposal”); |
| · | as a special resolution, to authorize and approve the variation of the authorized share capital of ListCo effectively immediately
prior to the Effective Time (the “Variation of Share Capital Proposal”); |
| · | as a special resolution, to authorize Wing Hong Sammy Hsieh, a director of the Company, to do all things necessary to give effect
to the Merger Agreement, the plan of merger and the Transactions, including the Merger, and in connection with the Amendment Proposal,
Name Change Proposal and Variation of Share Capital Proposal (“General Authorization Proposal”); and |
| · | if necessary, as an ordinary resolution, to adjourn the extraordinary general meeting in order to allow ListCo to solicit additional
proxies in the event that there are insufficient proxies received at the time of the extraordinary general meeting to pass the special
resolution to be proposed at the extraordinary general meeting (the “Adjournment Proposal”). |
What is the Merger Proposal?
The proposal to approve the Merger Agreement, the plan of merger and
the Transactions, including the Merger. Pursuant to the Merger Agreement, the shareholders of Amber DWM will exchange all of the issued
and outstanding share capital of Amber DWM for newly issued shares of iClick on the terms and conditions set forth therein in a transaction
exempt from the registration requirements under the Securities Act of 1933. Upon consummation of the Merger, Amber DWM will become a wholly-owned
subsidiary of iClick.
What will happen if the Merger Proposal is approved by ListCo’s
shareholders?
After the Merger Proposal is approved by the ListCo’s shareholders
and the satisfaction or waiver of all conditions precedent to closing set forth in the Merger Agreement, the Merger will be effected and
Amber DWM will become a wholly owned subsidiary of the ListCo, with former shareholders of Amber DWM owning a majority of ListCo’s
shares.
What is the Amendment Proposal?
The proposal to adopt the tenth amended and restated memorandum and
articles of association of ListCo in the form attached as Annex C to this proxy statement, effective immediately prior
to the Effective Time.
What is the Name Change Proposal?
The proposal to authorize and approve the change of the corporate name
of ListCo from “iClick Interactive Asia Group Limited” to “Amber International Holding Limited” effective immediately
prior to the Effective Time.
What is the Variation of Share Capital Proposal?
Immediately prior to the Effective Time, the authorized share capital
of the Company be varied as follows: all ICLK Class A Shares and Converting ICLK Class B Shares in the authorized share capital of the
Company (including all issued and outstanding ICLK Class A Shares and Converting ICLK Class B Shares, and all authorized but unissued
ICLK Class A Shares and ICLK Class B Shares) shall be re-designated as New Class A Shares, all ICLK Class B Shares other than the Converting
ICLK Class B Shares shall be re-designated as New Class B Shares (unless such New Class B Shares are otherwise required to be automatically
converted into New Class A Shares in accordance with the Amendment of M&A (assuming the Amendment of M&A proposal is approved)),
and the authorized share capital of the Company shall be US$1,300,000 divided into 1,300,000,000 New Ordinary Shares comprising of (x)
1,191,000,000 New Class A Shares, and (y) 109,000,000 New Class B Shares.
What is the General Authorization Proposal?
The proposal to authorize Wing Hong Sammy Hsieh, a director of the
Company, to do all things necessary to give effect to the Merger Agreement, the plan of merger and the Transactions, including the Merger,
and in connection with the Name Change Proposal, Amendment Proposal and Variation of Share Capital Proposal.
What is the Adjournment Proposal?
The proposal to permit ListCo to adjourn the extraordinary general
meeting in order to allow ListCo to solicit additional proxies in the event that there are insufficient proxies received at the time of
the extraordinary general meeting to pass the special resolution to be proposed at the extraordinary general meeting.
What will happen if the Adjournment Proposal is approved by ListCo’s
shareholders?
If there are insufficient proxies received at the time of the extraordinary
general meeting to approve the Merger Proposal, the Amendment Proposal, the Name Change Proposal, the Variation of Share Capital Proposal,
the General Authorization Proposal and the Adjournment Proposal is approved at the extraordinary general meeting, we will be able to
adjourn the extraordinary general meeting for the purpose of soliciting additional proxies to pass the resolution to be proposed at the
extraordinary general meeting. If you have previously submitted a proxy on the proposals discussed in this proxy statement and wish to
revoke it upon adjournment of the extraordinary general meeting, you may do so.
How does the board of directors of iClick recommend that I vote
on the proposals?
After careful consideration, the Board of iClick recommends that you
vote:
FOR the Merger Proposal;
FOR the Amendment Proposal;
FOR the Name Change Proposal;
FOR the Variation of Share Capital Proposal;
FOR the General Authorization Proposal; and
FOR the Adjournment Proposal.
When do you expect the Merger to be completed?
We are working toward completing the Merger as quickly as possible
and currently expect the Merger to close by June 30, 2025. In order to complete the Merger, we must obtain shareholder approval of
the Merger at the extraordinary general meeting and the other closing conditions under the Merger Agreement must be satisfied or waived
in accordance with the Merger Agreement.
What happens if the Merger is not completed?
If ListCo’s shareholders do not authorize and approve the Merger
Agreement, the plan of merger and the Transactions, including the Merger, or if the Merger is not completed for any other reason, ListCo
will remain listed on Nasdaq.
Am I entitled to appraisal or dissenters’ rights in connection
with the Merger Proposal?
No appraisal or dissenters’ rights are available to ListCo’s
shareholders under the Companies Act of the Cayman Islands or ListCo’s memorandum and articles of association in connection with
the types of actions contemplated under the Merger Proposal. As a result, holders of ICLK Shares or ADSs will not have the right to seek
appraisal and payment of the fair value of the ICLK Shares, including those underlying their ADSs.
Do any of ListCo’s directors or executive officers have interests
in the Merger that may differ from those of other shareholders?
Yes. Some of ListCo’s directors or executive officers have
interests in the Merger that may differ from those of other shareholders. See “Proposal I: The Merger Proposal —
Interests of ListCo Directors and Executive Officers in the Merger” beginning on page 73 for a more detailed discussion of how
some of ListCo’s directors and executive officers have interests in the merger that are different from, or in addition to, the
interests of ListCo’s shareholders generally.
Who can vote at the extraordinary general meeting of shareholders
of ListCo? What constitutes a quorum?
Holders of record of ICLK Shares at the close of business in the Cayman
Islands on December 18, 2024, which we refer to as the “record date,” are entitled to notice of and to vote at the extraordinary general
meeting. Holders of record of ICLK Shares on the record date are entitled to one vote per share at the extraordinary general meeting on
(i) the Merger Proposal; (ii) the Amendment Proposal; (iii) the Name Change Proposal; (iv) the Variation of Share
Capital Proposal; (v) the General Authorization Proposal; and (vi) the Adjournment Proposal. Voting at the extraordinary general
meeting will take place by poll voting, as the chairperson of the meeting will demand poll voting at the meeting.
The record date for ADS holders entitled to instruct the ADS depositary
to vote at the extraordinary general meeting is December 18, 2024. Only ADS holders of ListCo at the close of business in New York City on the
ADS record date are entitled to instruct the ADS depositary to vote at the extraordinary general meeting.
The presence, in person, by proxy or by corporate representative,
of two shareholders entitled to vote and present in person or by proxy, or if the shareholder is a legal entity, by its duly authorized
representative, shall constitute a quorum for the extraordinary general meeting. ICLK Class A Shares represented at the extraordinary
general meeting but not voted, including abstentions and broker “non-votes,” will be treated as present at the extraordinary
general meeting for purposes of determining the presence or absence of a quorum for the extraordinary general meeting. ICLK Class A
Shares represented by ADSs for which the ADS depositary votes at the extraordinary general meeting will be counted as present for purposes
of determining the existence of a quorum.
What vote is required to approve each of the proposals?
The approval of the Merger Proposal requires a majority of not
less than two-thirds of the votes cast by iClick shareholders as, being entitled to do so, vote in person or by proxy or by
corporate representative, at the extraordinary general meeting.
The approval of the Amendment Proposal requires a majority of not
less than two-thirds of the votes cast by iClick shareholders as, being entitled to do so, vote in person or by proxy or by
corporate representative, at the extraordinary general meeting.
The approval of the Name Change Proposal requires a majority of
not less than two-thirds of the votes cast by iClick shareholders as, being entitled to do so, vote in person or by proxy or by
corporate representative, at the extraordinary general meeting.
The approval of the Variation of Share Capital Proposal requires
a majority of not less than two-thirds of the votes cast by iClick shareholders as, being entitled to do so, vote in person or by
proxy or by corporate representative, at the extraordinary general meeting.
The approval of the General Authorization Proposal requires a
majority of not less than two-thirds of the votes cast by iClick shareholders as, being entitled to do so, vote in person or by
proxy or by corporate representative, at the extraordinary general meeting.
The approval of the Adjournment Proposal requires a simple majority
of the votes cast by iClick shareholders as, being entitled to do so, vote in person or by proxy or by corporate representative, at the
extraordinary general meeting.
How do I vote or change my vote?
Voting of ICLK Shares
If you own ICLK Shares, you may vote by proxy or in person at the extraordinary
general meeting.
Voting in Person—If you hold ICLK Shares in your
name as a shareholder of record and plan to attend the extraordinary general meeting and wish to vote in person, please bring proof of
identification with you to the extraordinary general meeting. Even if you plan to attend the extraordinary general meeting, we strongly
encourage you to submit a proxy for your ICLK Shares in advance as described below, so your vote will be counted if you later decide not
to attend. If your Shares are held in “street name,” which means your ICLK Shares are held of record by a broker, bank or
other nominee, and you wish to vote at the extraordinary general meeting, you must bring to the extraordinary general meeting a proxy
from the record holder of the ICLK Shares (your broker, bank or nominee) authorizing you to vote at the extraordinary general meeting.
To do this, you should contact your broker, bank or nominee.
Voting by Proxy—If you hold ICLK Shares in your
name as a shareholder of record, then you will receive the notice for the extraordinary general meeting and a proxy card from us. You
may submit a proxy for your ICLK Shares by mail without attending the extraordinary general meeting by completing, signing, dating and
returning the proxy card to ListCo at 15/F, Prosperity Millennia Plaza, 663 King’s Road, Quarry Bay, Hong Kong S.A.R., People’s
Republic of China, Attention: Investor Relations, no later than January 1, 2025 at 9:00 a.m. (Hong Kong time), or December 31,
2024 at 8:00 p.m. (New York time). If you hold ICLK Shares in “street name” through a broker, bank or other nominee,
then you will receive the notice for the extraordinary general meeting from the broker, bank or nominee, along with the broker, bank or
nominee’s voting instructions. You should instruct your broker, bank or other nominee on how to vote your ICLK Shares using the
voting instructions provided. All ICLK Shares represented by properly executed proxies received in time for the extraordinary general
meeting will be voted in the manner specified by the shareholders giving those proxies. Properly executed proxies that do not contain
specific voting instructions will be voted “FOR” the Merger Proposal, “FOR” the Amendment Proposal, the Change
of Name, “FOR” the Variation of Share Capital Proposal, “FOR” the General Authorization Proposal, and “FOR”
the Adjournment Proposal.
Revocation of Proxy—Submitting a proxy on the enclosed form does not preclude a shareholder
from voting in person at the extraordinary general meeting. If you hold your ICLK Shares in your name as shareholder of record, you may
revoke a proxy at any time at least two hours prior to the commencement of the extraordinary general meeting by written notice of revocation
or by subsequently submitting a duly executed proxy with a later date to ListCo’s Investor Relations Department, at 15/F, Prosperity
Millennia Plaza, 663 King’s Road, Quarry Bay, Hong Kong S.A.R., People’s Republic of China, on or before January 3, 2025 at
7:00 a.m. (Hong Kong time), or January 2, 2025 at 6:00 p.m. (New York time), or by attending the extraordinary general meeting and voting
in person. A shareholder of record may revoke a proxy by any of these methods, regardless of the method used to deliver the shareholder’s
previous proxy. Attendance at the extraordinary general meeting without voting will not by itself revoke a proxy. If your ICLK Shares
are held in street name through a broker, bank or other nominee, you must contact your broker, bank or nominee to revoke your proxy.
Voting of ADSs
Voting Instructions—If you own ADSs, you cannot
vote at the meeting directly, but you may instruct the ADS depositary (as the holder of the ICLK Class A Shares underlying your ADSs)
how to vote the ICLK Class A Shares underlying your ADSs. We will instruct the ADS depositary to deliver to holders of ADS at the
close of business in New York City on December 18, 2024, the ADS record date, an ADS proxy card, the form of which is attached as
Annex F to the accompanying proxy statement, and holders of ADS as of the ADS record date will have the right to instruct the ADS depositary
how to vote the ICLK Class A Shares underlying their ADSs at the extraordinary general meeting, subject to and in accordance with
the terms of the deposit agreement. ADS holders are strongly urged to sign, complete and return the ADS proxy card to the ADS depositary
in accordance with the instructions printed thereon and in the depositary notice, as soon as possible and, in any event, no later than
9:00 a.m. (New York time) on December 31, 2024 (or if the extraordinary general meeting is adjourned, such later date as may
be notified by the Company or the ADS depositary). The ADS depositary shall endeavor, in so far as practicable, to vote or cause to be
voted the number of ICLK Class A Shares represented by your ADSs in accordance with your voting instructions.
Revocation of ADS Voting Instructions—Registered
holders of our ADSs who are on the books of the ADS depositary may revise their voting instructions by completing, dating and submitting
a new ADS proxy card to the ADS depositary bearing a later date than the ADS proxy card sought to be revoked to the ADS depositary to
be received any time prior to 9:00 a.m. on December 31, 2024 (New York time).
If you hold your ADSs through a financial intermediary such as a broker,
you must rely on the procedures of the financial intermediary through which you hold your ADSs if you wish to vote. If your ADSs are held
by your broker, bank or other nominee, see below.
If my ICLK Shares or my ADSs are held in a brokerage account, will
my broker vote my ICLK Shares for me?
Your broker, bank or other nominee will only be permitted to vote your
ICLK Shares on your behalf or to give voting instructions with respect to the ICLK Class A Shares underlying your ADSs if you instruct
it how to vote. Therefore, it is important that you promptly follow the directions provided by your broker, bank or nominee regarding
how to instruct it to vote your Shares or the ICLK Class A Shares represented by your ADSs.
How are proxies solicited and what is the cost of soliciting proxies?
This proxy solicitation is being made and paid for by ListCo on
behalf of the Board. ListCo will bear the costs of holding the extraordinary general meeting and the cost of soliciting proxies,
including costs of printing and mailing the proxy card. ListCo’s directors, officers and employees may solicit proxies by
mail, email, telephone, facsimile or other means of communication. These directors, officers and employees will not be paid
additional remuneration for their efforts, but may be reimbursed for out-of-pocket expenses incurred in connection therewith. We
will reimburse the ADS depositary, JP Morgan Chase Bank, N.A., for costs incurred by it in mailing proxy materials to ADS holders in
accordance with the deposit agreement.
What should I do if I receive more than one set of voting materials?
You may receive more than one set of voting materials, including multiple
proxy or voting instruction cards. For example, if you hold your ICLK Shares or ADSs in more than one brokerage account, you will receive
a separate voting instruction card for each brokerage account in which you hold ICLK Shares or ADSs. If you are a holder of record and
your ICLK Shares or ADSs are registered in more than one name, you will receive more than one proxy card. Please submit each proxy card
that you receive.
What do I need to do now?
We urge you to read this proxy statement carefully, including its annexes,
exhibits, attachments and the other documents referred to or incorporated by reference herein and to consider how the Merger affect you
as a shareholder. After you have done so, please vote as soon as possible.
Who can help answer my other questions?
If you have more questions about the Merger Proposal, the Amendment
Proposal, the Name Change Proposal, the Variation of Share Capital Proposal, the General Authorization Proposal, or the Adjournment Proposal,
need assistance in submitting your proxy or voting your ICLK Shares or ADSs, or need additional copies of the proxy card or ADS proxy
card, you should contact ListCo’s Investor Relations Department at +852-3700-9100 or by email at ir@i-click.com, for Asia, or at
+1 516 222 2560 or by email at tomc@coreir.com.
COMPARATIVE
PER iclk SHARE MARKET PRICE AND DIVIDEND INFORMATION
Market Information
iClick listed its ADSs on Nasdaq under the symbol “ICLK”
on December 21, 2017. On November 14, 2022, iClick changed the ratio of the ADS representing its ICLK Class A Shares from one ADS representing
one-half of one ICLK Class A Share to one ADS representing five ICLK Class A Shares. On November 27, 2024, the last trading day prior
to the date of the public announcement of the execution of the Merger Agreement, the closing price per ADS was US$7.10. On December 18,
2024, the last practicable date prior to the date of the proxy statement, the closing price per ADS was US$8.58. The market price of
the ADSs is subject to fluctuation. You are encouraged to obtain current market quotations for the ADS in connection with your voting.
Amber DWM is and will be a privately held company before the Closing
and its securities do not trade on any exchange.
Dividend Policy
iClick has not made any dividend or distribution to its shareholders.
iClick does not have any present plan to pay any cash dividends on the ICLK Shares in the foreseeable future.
Amber DWM intends to retain any future earnings to finance the operation
and expansion of its business, and it does not expect to declare or pay any dividends in the foreseeable future.
CAUTIONARY
STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This proxy statement includes certain statements that may constitute
“forward-looking statements” within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act, related to iClick, Amber DWM and the Merger. All statements other than statements of historical fact are forward-looking statements
for purposes of federal and state securities laws. These statements involve known and unknown risks, uncertainties and other factors which
may cause iClick’s or Amber DWM’s actual results, performance or achievements to be materially different from any future results,
performances or achievements expressed or implied by the forward-looking statements. These risks and uncertainties include, but are not
limited to, the factors described in the section captioned “Risk Factors” below. In some cases, you can identify forward-looking
statements by terms such as “anticipates,” “believes,” “could,” “estimates,” “expects,”
“intends,” “may,” “plans,” “potential,” “predicts,” “projects,”
“should,” “would,” and similar expressions intended to identify forward-looking statements.
Forward-looking statements contained in this proxy statement are based
on current expectations and beliefs concerning the future developments and events and are subject to risks and uncertainties. These forward-looking
statements involve a number of risks, uncertainties, or other assumptions that may cause actual results or performance to be materially
different from those expressed or implied by these forward-looking statements, include, among other things:
| · | uncertainty as to Amber DWM’s ability to continuously develop new technology, services and products and keep up with changes
in the industries that it operates in; |
| · | uncertainty with respect to the expected growth of digital asset wealth management industry and Amber DWM’s future business
development; |
| · | uncertainty regarding Amber DWM’s expected growth in demand and market acceptance, for its products and services; |
| · | uncertainty as to Amber DWM’s ability to protect and enforce its intellectual property rights; |
| · | uncertainty as to Amber DWM’s ability to attract and retain qualified executives and personnel; |
| · | uncertainty around global economy and its effect on Amber DWM’s operations, and Amber DWM’s ability to obtain adequate
financing for its planned capital expenditure requirements; |
| · | uncertainty as to the competition in Amber DWM’s industry; |
| · | uncertainty as to the relevant government policies and regulations relating to Amber DWM’s industry; |
| · | the effect of the announcement of the Transaction on the ability of Amber DWM to maintain relationships with its customers, business
partners and others with whom Amber DWM does business, or on Amber DWM’s operating results and business generally; |
| · | risks that the Merger disrupt current plans and operations; |
| · | the ability of the parties to consummate the Merger on a timely basis or at all; |
| · | uncertainty relating to the satisfaction of the conditions precedent to consummation of the Merger, at all or in a timely manner;
and |
| · | the ability to achieve anticipated benefits of the Merger. |
Forward-looking statements represent our estimates and assumptions
only as of the date of this proxy statement. You should not rely upon forward-looking statements as predictions of future events. You
should read this proxy statement and the documents that we reference and file as exhibits to this proxy statement completely and with
the understanding that our actual future results may be materially different from what we expect, and the Closing may not occur. Except
as required by law, we assume no obligation to update any forward-looking statements publicly, or to update the reasons actual results
could differ materially from those anticipated in any forward-looking statements, even if new information becomes available in the future.
RISK
FACTORS
You should carefully consider the risks described below, and all
of the other information contained in or incorporated by reference into this proxy statement including the matters and risk factors discussed
in ListCo’s Annual Report on Form 20-F for the year ended December 31, 2023 and as further updated from time to time by
ListCo’s subsequent filings with the SEC, which are incorporated by reference into this proxy statement. Any of these risks could
have a material and adverse effect on ListCo’s business, financial condition and results of operations. In any such case, the market
price of the ADSs could decline, and you may lose all or part of your investment. You should read the section entitled “Cautionary
Statement Regarding Forward-Looking Statements” above for a discussion of what types of statements are forward-looking statements,
as well as the significance of such statements in the context of this proxy statement.
Risks Related to Amber Premium’s Business
Amber Premium’s business lines are
nascent, not fully proven by market and subject to material legal, regulatory, operational, reputational, tax and other risks in the jurisdictions
where Amber Premium operates.
Amber Premium originated in 2021 from the
crypto private banking business of Amber Group, and commenced independent operations in the second half of 2023. As a result, Amber
Premium is therefore subject to many of the risks common to early-stage enterprises, including under-capitalization, cash shortages,
limitations with respect to personnel, financial and other resources and lack of revenues, any of which could have a material
adverse effect on it and may force it to reduce or curtail operations. Its business model has not been fully proven and Amber
Premium has limited financial data that can be used to evaluate its current business and future prospects, which subjects it to a
number of uncertainties, including its ability to plan for, model and manage future growth and risks. Its historical revenue growth
should not be considered indicative of its future performance. There is no assurance that Amber Premium will be successful in
achieving a return on shareholders’ investment and the likelihood of success must be considered in light of the early stage of
operations. Even if Amber Premium accomplishes these objectives, Amber Premium may not generate the anticipated positive cash flows
or profits.
Furthermore, Amber Premium’s business lines
are nascent, not fully proven by market and subject to material legal, regulatory, operational, reputational, tax and other risks in every
jurisdiction and are not assured to be profitable. Amber Premium may fail to be able to implement its investment or trading strategies,
develop its business lines or produce a return for its investors. Amber Premium has chosen to pursue a number of different businesses
in this evolving industry and in different jurisdictions. It is possible that some of these businesses or jurisdictions may be difficult
to enter and/or it may become evident that a particular business is not a productive use of capital or time. This could lead it to modify
its businesses and focus.
From time to time, Amber Premium may also launch
new lines of business, offer new products and services within existing lines of business or undertake other strategic projects. There
are substantial risks and uncertainties associated with these efforts and Amber Premium would invest significant capital and resources
in such efforts. Regulatory requirements can affect whether initiatives are able to be brought to market in a manner that is timely and
attractive to its clients. Initial timetables for the development and introduction of new lines of business, products or services and
price and profitability targets may not be met.
Furthermore, its revenues and costs may fluctuate
due to start-up costs associated with new businesses or products and services while revenues may take time to develop, which may adversely
impact its results of operations. If Amber Premium is unable to successfully manage its business while reducing expenses, its ability
to continue in business could depend on the ability to raise sufficient additional capital, obtain sufficient financing and monetizing
assets. The occurrence of any of the foregoing risks would have a material adverse effect on its financial results, business and prospects.
Amber Premium’s operating results
have fluctuated and will significantly fluctuate due to a variety of factors, including the highly volatile nature of
cryptocurrency.
Amber Premium’s leading sources of
revenue are dependent on digital assets and the broader cryptoeconomy. Its operating results have fluctuated and will significantly
fluctuate due to a variety of factors, including the highly volatile nature of cryptocurrency. Significant positive or negative
changes in cryptocurrency asset prices will not necessarily result in similar benefit or impairment to its operating results and
financial condition. Its operating results have fluctuated and will continue to fluctuate significantly as a result of a variety of
factors, many of which are unpredictable and in certain instances are outside of its control, including:
| · | its dependence on product offerings that are dependent on digital asset trading activity, including trading
volume and the prevailing trading prices for digital assets, whose trading prices and volume can be highly volatile; |
| · | its ability to attract, maintain, and grow its client base and engage its clients, especially its ability
to maintain its relationships with certain key account clients; |
| · | changes in the legislative or regulatory environment, or actions by governments or regulators, including
fines, orders, or consent decrees; |
| · | legislative or regulatory changes that impact its ability to offer certain products or services; |
| · | the impact of environmental, social and governance concerns surrounding digital assets; |
| · | pricing for its products and services; |
| · | investments Amber Premium makes in the development of products and services as well as technology offered
to its ecosystem partners, international expansion, and sales and marketing; |
| · | its utilization of and dependence on centralized digital asset trading platforms and over-the-counter
markets that are approved primarily based on its diligence review; |
| · | disputes with its clients or regulators, adverse legal proceedings or regulatory enforcement actions,
judgments, settlements, or other legal proceeding and enforcement-related costs; |
| · | the development and introduction of existing and new products and services by it or its competitors; |
| · | increases in operating expenses that Amber Premium expects to incur to grow and expand its operations
and to remain competitive; |
| · | the timing and amount of non-cash expenses, such as stock-based compensation and asset impairment; |
| · | system failure or outages, including with respect to third-party cryptocurrency networks, decentralized
finance protocols, breaches of security or privacy or any inaccessibility of the third-party cryptocurrency networks or decentralized
finance protocols due to its or third-party actions; |
| · | changes in accounting standards, policies, guidance and interpretations or principles; |
| · | its ability to attract and retain talent; |
| · | its ability to compete with its competitors; and |
| · | general economic conditions in either domestic or international markets. |
For general economic conditions and regulatory
measures that affect digital assets and Amber Premium’s operations, please see “—Risks
Related to Cryptocurrencies and Digital Assets—The prices of digital
assets are extraordinarily volatile.” As a result of these factors, it is difficult for it to forecast growth trends accurately
and its business and future prospects are difficult to evaluate, particularly in the short term. In view of the rapidly evolving nature
of its business and the cryptoeconomy, period-to-period comparisons of its operating results may not be meaningful, and you should not
rely upon them as an indication of future performance.
Due to Amber Premium’s limited operating
history, it may be difficult to evaluate its business and future prospects, and Amber Premium may not be able to achieve or maintain profitability
in every given period.
Amber Premium traced its initial business back
to the crypto private banking business of Amber Group commenced in 2021 and its fully independent operations only started in the second
half of 2023. While Amber Premium’s revenue has grown significantly since its inception, there is no assurance that this growth
rate will continue in future periods and you should not rely on the revenue growth of any given prior quarterly or annual period as an
indication of Amber Premium’s future performance. Amber Premium’s limited operating history and the volatile nature of cryptoeconomy
make it difficult to evaluate its current business and future prospects. Amber Premium has also encountered, and will continue to encounter,
risks and difficulties frequently experienced by growing companies in rapidly changing industries, including achieving market acceptance
of its products and services, attracting and retaining clients, complying with laws and regulations that are subject to evolving interpretations
and application, and increasing competition and expenses as Amber Premium expands its business. Amber Premium cannot be sure that it will
be successful in addressing these and other challenges it may face, and its business may be adversely affected if Amber Premium does not
manage these risks successfully.
Amber Premium’s operating results
are dependent on the prices of digital assets and volume of transactions that Amber Premium conducts. If such price or volume declines,
Amber Premium’s business, operating results, and financial condition would be adversely affected.
Amber Premium primarily generates commissions
and execution fees in connection with the purchase, sale and trading of digital assets by its clients. Depending on product types, Amber
Premium either charges a flat fee or a percentage of the value of each transaction. Declines in the volume of digital asset transactions,
the price of digital assets, or market liquidity for digital assets generally may result in lower total revenue to us.
The price of digital assets and associated demand
for buying, selling, and trading of digital assets have historically been subject to significant volatility. For instance, in 2017, the
value of certain digital assets, including Bitcoin, experienced steep increases in value, followed by a steep decline in 2018. The collapse
of several companies in the digital asset industry such as Celsius, Voyager and FTX in 2022 impacted digital assets prices at various
points throughout the year and digital asset prices continue to be volatile. The price and trading volume of any digital asset is subject
to significant uncertainty and volatility, and may significantly decline in the future, without recovery. Such uncertainty and volatility
depend on a number of factors, including:
| · | market conditions of, and overall sentiment towards, digital assets and the cryptoeconomy, including,
but not limited to, as a result of actions taken by or developments of other companies in the cryptoeconomy (for example, smart contract
hacks or protocol failures encountered by other companies in the cryptoeconomy). See “—Risks Related to Cryptocurrencies and
Digital Assets;” |
| · | changes in liquidity, volume, and trading activities; |
| · | trading activities on digital asset trading platforms worldwide, many of which may be unregulated, and
may include manipulative activities; |
| · | investment and trading activities of highly active retail and institutional users, speculators, miners,
and investors; |
| · | the speed and rate at which cryptocurrency is able to gain adoption as a medium of exchange, utility,
store of value, consumptive asset, security instrument, or other financial assets worldwide, if at all; |
| · | decreased user and investor confidence in digital assets and digital asset platforms; |
| · | negative publicity and events relating to the cryptoeconomy; |
| · | unpredictable social media coverage or “trending” of, or other rumors and market speculation
regarding, digital assets; |
| · | the ability for digital assets to meet user and investor demands; |
| · | the functionality and utility of digital assets and their associated ecosystems and networks, including
digital assets designed for use in various applications; |
| · | consumer preferences and perceived value of digital assets and digital asset markets; |
| · | increased competition from other payment services or other digital assets that exhibit better speed, security,
scalability, or other characteristics; |
| · | regulatory or legislative changes and updates affecting the cryptoeconomy; |
| · | the characterization of digital assets under the laws of various jurisdictions around the world; |
| · | the maintenance, troubleshooting, and development of the blockchain networks underlying digital assets,
including by miners, validators, and developers worldwide; |
| · | the ability for cryptocurrency networks to attract and retain miners or validators to secure and confirm
transactions accurately and efficiently; |
| · | ongoing technological viability and security of digital assets and their associated smart contracts, applications
and networks, including vulnerabilities against hacks and scalability; |
| · | fees and speed associated with processing digital asset transactions, including on the underlying blockchain
networks and on digital asset trading platforms; |
| · | financial strength of market participants; |
| · | the availability and cost of funding and capital; |
| · | the liquidity of digital asset trading platforms; |
| · | interruptions or temporary suspensions or other compulsory restrictions in products or services from or
failures of major digital asset platforms; |
| · | availability of an active derivatives market for various digital assets; |
| · | availability of banking and payment services to support cryptocurrency-related projects; |
| · | level of interest rates and inflation; |
| · | monetary policies of governments, trade restrictions, and fiat currency devaluations; and |
| · | national and international economic and political conditions. |
There is no assurance that any digital asset will
maintain its value or that there will be meaningful levels of trading activities. In the event that the price of digital assets or the
demand for trading digital assets decline, Amber Premium’s business, operating results, and financial condition would be adversely
affected.
A particular digital asset’s status
as a “security” in any relevant jurisdiction is subject to a high degree of uncertainty and if Amber Premium is unable to
properly characterize a digital asset, it may be subject to regulatory scrutiny, investigations, fines, and other penalties, which may
adversely affect its business, operating results, and financial condition.
Several jurisdictions have taken a broad-based
approach to classifying digital assets as “securities,” while other foreign jurisdictions, such as Switzerland, Malta, and
Singapore, have adopted a narrower approach. As a result, certain digital assets may be deemed to be a “security” under the
laws of some jurisdictions but not others. Various jurisdictions may, in the future, adopt additional laws, regulations, or directives
that affect the characterization of digital assets as “securities.” The classification of a digital asset as a security under
applicable law has wide-ranging implications for the regulatory obligations that flow from the offer, sale, trading, and clearing of such
assets.
Amber Premium has procedures to analyze whether
each digital asset that it seeks to transact in could be deemed to be a “security” under applicable laws. Amber Premium’s
procedures do not constitute a legal standard, but rather represent its company-developed metrics, which permits it to make a risk-based
assessment regarding the likelihood that a particular digital asset could be deemed a “security” under applicable laws. Regardless
of its conclusions, Amber Premium could be subject to legal or regulatory action in the event a regulatory authority, or a court were
to determine that a supported digital asset currently offered, sold, or traded on Amber Premium’s platform is a “security”
under applicable laws. Currently, Amber Premium only permits transactions of those digital assets for which it determines there are reasonably
valid arguments to conclude that conducting transactions involving those digital assets would not breach any applicable laws. Amber Premium
believes that its process reflects a comprehensive and thoughtful analysis and is reasonably designed to facilitate consistent application
of available legal guidance to digital assets to facilitate informed risk-based business judgment. However, it recognizes that the application
of securities laws to the specific facts and circumstances of digital assets may be complex and subject to change, and that a listing
determination does not guarantee any conclusion under the relevant securities laws. Amber Premium expects its risk assessment policies
and procedures to continuously evolve to take into account case law, facts, and developments in technology.
There can be no assurances that Amber Premium
will properly characterize any given digital asset as a security or non-security, or that the regulatory authorities, or a court, if the
question was presented to it, would agree with its assessment. If a regulatory authority, or a court were to determine that a supported
digital asset currently offered, sold, or traded on Amber Premium’s platform is a security, Amber Premium would not be able to offer
such digital asset as part of its products or services until it is able to do so in a compliant manner. In addition, Amber Premium could
be subject to judicial or administrative sanctions for failing to offer or sell the digital asset in compliance with the legal requirements,
or for acting as a broker, dealer, or national securities exchange without appropriate registration. Such an action could result in injunctions,
cease and desist orders, as well as civil monetary penalties, fines, and disgorgement, criminal liability, and reputational harm. Clients
that traded such supported digital asset through Amber Premium and suffered trading losses could also seek to rescind such transaction
as the basis that it was conducted in violation of applicable law, which could subject Amber Premium to significant liability. Furthermore,
if Amber Premium removes any assets from its products or services, its decision may be unpopular with users and may reduce its ability
to attract and retain clients.
Further, if Bitcoin, Ethereum, or any other supported
digital asset is deemed to be a security under any jurisdiction, or in a proceeding in a court of law or otherwise, it may have adverse
consequences for such supported digital asset. For instance, all transactions in such supported digital asset would have to be registered
with the relevant authority, or conducted in accordance with an exemption from registration, which could severely limit its liquidity,
usability and transactability. Moreover, the networks on which such supported digital assets are utilized may be required to be regulated
as securities intermediaries, and subject to applicable rules, which could effectively render the network impracticable for its existing
purposes. Further, it could draw negative publicity and a decline in the general acceptance of the digital asset. Also, it may make it
difficult for such supported digital asset to be traded, cleared, and custodied as compared to other digital asset that are not considered
to be securities.
If Amber Premium fails to develop, maintain
and enhance its brand and reputation, its business operating results and financial condition may be adversely affected.
Amber Premium’s brand and reputation are
key assets and a competitive advantage, and maintaining a strong brand and reputation will be an important factor in its success and its
development of its business. Protecting and enhancing its brand depends largely on the success of its marketing efforts, ability to provide
consistent, high-quality, and secure products, services, features, and support. Thus, maintaining, protecting, and enhancing its reputation
is also important to its development plans and relationships with its partners and counterparties. Furthermore, Amber Premium believes
that the importance of its brand and reputation may increase as competition in both the financial services industry and the cryptoeconomy
further intensifies. Its brand and reputation could be harmed if Amber Premium fails to achieve these objectives or if its public image
were to be tarnished by negative publicity, unexpected events, or actions by third parties. Unfavorable publicity regarding, for example,
the quality of or changes to its products and services, litigation or regulatory activity, privacy practices, data security compromises
or breaches, terms of service, employment matters, the use of its products, services, or supported digital assets for illicit or objectionable
ends, the actions of its clients, employees, or the actions of other companies that provide similar services to ours, has in the past,
and could in the future, adversely affect its reputation and its business.
More broadly, because the digital asset and blockchain
technology sectors are relatively nascent, public opinion is underdeveloped and will continue to evolve over time. Unfavorable media coverage
in relation to the cryptoeconomy may adversely impact Amber Premium’s business, its operating results and the value of any investment
in it. Please see “—Risks Related to Cryptocurrencies and
Digital Assets—Due to a lack of familiarity and some negative publicity
associated with digital asset-related companies, existing and potential clients, counterparties and regulators may lose confidence in
digital asset management companies.”
If Amber Premium fails to protect its brand image
or reputation, Amber Premium may experience material adverse effects to the size, demographics, engagement, and loyalty of its clients
and counterparties, resulting in decreased revenue. Any such negative publicity could have an adverse effect on the size, activity, and
loyalty of its clients and counterparties and result in a decrease in revenue, which could adversely affect its business, operating results,
and financial condition. See “—Risks related to Cryptocurrencies
and Digital Assets—Due to a lack of familiarity and some negative
publicity associated with digital asset-related companies, existing and potential clients, counterparties and regulators may lose confidence
in digital asset management companies” for further discussion of these risks.
Amber Premium may not be able to compete
effectively, which could materially and adversely affect its business, financial condition, results of operations and prospects, as well
as its reputation and brands.
The cryptoeconomy is highly innovative, rapidly
evolving, and characterized by experimentation, changing client needs, frequent introductions of new products and services, and subject
to uncertain and evolving industry and regulatory requirements. Amber Premium expects competition to further intensify in the future as
existing players enhance their offerings and new entrants emerge. Amber Premium faces significant competition globally from a variety
of market participants — ranging from crypto-native firms to large traditional financial services providers and financial technology
companies. Particularly, Amber Premium faces competition from several sources, including traditional financial technology and brokerage
firms that have entered the digital asset wealth management market in recent years and offer overlapping features tailored to similar
client segments, companies focused on the digital asset market, some of whom are potentially able to more quickly adapt to market trends,
support a broader range of digital assets, and develop new digital asset-based products and services due to a different standard of regulatory
scrutiny and different internal compliance standards, as well as crypto-focused companies and traditional financial incumbents that offer
point or siloed solutions.
Many innovative start-up companies and larger
companies have made, and continue to make, significant investments in research and development, and Amber Premium expects these companies
to continue to develop similar or superior products and technologies that compete with its products. Further, more traditional financial
and non-financial services businesses may choose to offer digital asset-based services in the future as the industry gains adoption. Its
current and potential competitors may establish cooperative relationships among themselves or with third parties that may further enhance
their resources, or may otherwise have certain competitive advantages over it. Some of its current and potential competitors may have
significantly more financial, technological, marketing and other resources than Amber Premium does and may be able to devote greater resources
to the development, promotion and support of their platforms and service offerings. Its competitors may have longer operating history
and greater brand recognition than it. Additionally, a current or potential competitor may acquire, or form a strategic alliance with,
one or more of its other competitors. Its competitors may be better at developing new products and services, offering more attractive
fees, responding more quickly to new digital asset development and undertaking more extensive and effective marketing campaigns. More
players may enter the digital asset market and intensify the market competition.
In response to competition, Amber Premium may
have to lower and/or adjust the various fees that it charges to its clients or increase its operating expenses and capital expenditures
to attract more clients, which could materially and adversely affect its business, margins and results of operations. If Amber Premium
is not able to compete effectively, its ability to attract and retain clients may be adversely affected, the level of digital transaction
activities and user engagement on its platform may decrease and its market share may be negatively affected, which could materially and
adversely affect its business, financial condition, results of operations and prospects, as well as its reputation and brands.
Amber Premium may be subject to inquiries,
investigations, and enforcement actions by regulators and governmental authorities worldwide, including those related to sanctions, export
control, and anti-money laundering.
As Amber Premium continues to expand its business
worldwide, Amber Premium has become increasingly obligated to comply with the laws, rules, regulations, policies, and legal interpretations
of both the jurisdictions in which Amber Premium operates and those into which Amber Premium offers services on a cross-border basis.
For instance, financial regulators outside the United States have increased their scrutiny of digital asset exchanges over time. Moreover,
laws regulating financial services, the internet, mobile technologies, digital assets, and related technologies outside of the United
States are highly evolving, extensive and often impose different, more specific, or even conflicting obligations on it, as well as broader
liability. In addition, it is required to comply with laws and regulations related to economic sanctions and export controls enforced
by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), the U.S. Department of Commerce’s
Bureau of Industry and Security, and U.S. anti-money laundering and counter-terrorist financing laws and regulations, enforced by FinCEN
and certain state financial services regulators. U.S. sanctions and export control laws and regulations generally restrict dealings by
persons subject to U.S. jurisdiction with certain jurisdictions that are the target of comprehensive embargoes, currently the Crimea Region,
the Donetsk People’s Republic, and the Luhansk People’s Republic of Ukraine, Cuba, Iran, North Korea, and Syria, as well
as with persons, entities, and governments identified on certain prohibited party lists. Nonetheless, there can be no guarantee that Amber
Premium’s compliance program will prevent transactions with particular persons or addresses or prevent every potential violation
of OFAC sanctions. Any present or future government inquiries relating to sanctions could result in negative consequences for Amber Premium,
including costs related to government investigations, financial penalties, and harm to Amber Premium’s reputation. The impact on
Amber Premium related to such matters could be substantial. Although Amber Premium has implemented controls, and is working to implement
additional controls and screening tools designed to prevent sanctions violations, there is no guarantee that it will not inadvertently
provide access to Amber Premium’s products and services to sanctioned parties or jurisdictions in the future.
Regulators worldwide frequently study each other’s
approaches to the regulation of the cryptoeconomy. Consequently, developments in any jurisdiction may influence other jurisdictions. New
developments in one jurisdiction may be extended to additional services and other jurisdictions. As a result, the risks created by any
new law or regulation in one jurisdiction are magnified by the potential that they may be replicated, affecting Amber Premium’s
business in another place or involving another service. Conversely, if regulations diverge worldwide, Amber Premium may face difficulty
adjusting its products, services, and other aspects of Amber Premium’s business with the same effect. These risks are heightened
as Amber Premium faces increased competitive pressure from other similarly situated businesses that engage in regulatory arbitrage to
avoid the compliance costs associated with regulatory changes.
The complexity of international regulatory and
enforcement regimes, coupled with the scope of Amber Premium’s growing operations in Asia, the Middle East and globally and the
evolving global regulatory environment, could result in a single event prompting a large number of overlapping investigations and legal
and regulatory proceedings by multiple government authorities in different jurisdictions. Any of the foregoing could, individually or
in the aggregate, harm Amber Premium’s reputation, damage Amber Premium’s brand and business, and adversely affect Amber Premium’s
operating results and financial condition. Due to the uncertain application of existing laws and regulations, it may be that, despite
Amber Premium’s regulatory and legal analysis concluding that certain products and services are currently unregulated, such products
or services may indeed be subject to financial regulation, licensing, or authorization obligations that Amber Premium has not obtained
or with which it has not complied. As a result, Amber Premium is at a heightened risk of enforcement action, litigation, regulatory, and
legal scrutiny which could lead to sanctions, cease and desist orders, or other penalties and censures which could significantly and adversely
affect Amber Premium’s continued operations and financial condition.
Amber Premium and its third-party service
providers’ failure to safeguard and manage its and its clients’ funds and digital assets could adversely impact its business,
operating results and financial condition.
Amber Premium may from time to time deposit, transfer
and hold in custody with third-party custodians client funds and digital assets. Its policies, procedures, operational controls and controls
over financial reporting are designed to protect it from material risks surrounding commingling of assets, conflicts of interest and the
safeguarding of digital assets and client funds deposited, transferred or held in custody with third-party custodians across jurisdictions.
In addition, its security technology is designed to prevent, detect, and mitigate inappropriate access to its systems, by internal or
external threats.
Furthermore, its know-your-customer (“KYC”)
and onboarding processes are designed to verify the identity of its clients, manage associated risks and prevent offers and sales of some
digital assets and other products and services to certain persons. Amber Premium believes it has developed and maintained administrative,
technical, and physical safeguards designed to comply with applicable legal requirements and industry standards.
As Amber Premium’s business continues to
grow, it must continue to strengthen its associated internal controls and ensure that its third-party custodians and other service providers
do the same. Its success and the success of its product offerings require significant confidence in its and its third-party service providers’
ability to properly custody and manage digital asset balances and handle large and growing transaction volumes and amounts of client funds.
In addition, Amber Premium is dependent on its third-party service providers’ operations, liquidity, and financial condition for
the proper custody, maintenance, use and safekeeping of these client assets. Any material failure by it or such third-party service providers
to maintain the necessary controls, policies, safeguarding procedures, perceived or otherwise, or to manage the digital assets Amber Premium
or they hold for or on behalf of its clients or for its own investment and operating purposes could also adversely impact its business,
operating results, and financial condition. Further, any material failure by it or its third-party service providers to maintain the necessary
controls or to manage client digital assets and funds appropriately and in compliance with applicable regulatory requirements could result
in reputational harm, significant financial losses, lead clients to discontinue or reduce their use of its and its third-party service
providers’ products and services, and result in significant penalties and fines and additional restrictions, which could adversely
impact its business, operating results, and financial condition.
Furthermore, it is possible that hackers, employees
or service providers acting contrary to its or its third-party custodians’ policies, or others could circumvent these safeguards
to improperly access its systems or documents, or the systems or documents of its third-party service providers or agents, and improperly
access, obtain and misuse client digital assets and funds. The methods used to obtain unauthorized access, disable, or degrade service
or sabotage systems are also constantly changing and evolving and may be difficult to anticipate or detect for long periods of time. Its
and its third-party custodians’ insurance coverage for such impropriety is limited and may not cover the extent of loss nor the
nature of such loss, in which case Amber Premium may be liable for the full amount of losses suffered, which could be greater than all
of its assets. Its and its third-party custodians’ ability to maintain insurance is also subject to the insurance carriers’
ongoing underwriting criteria. Any loss of client funds or digital assets could result in a subsequent lapse in insurance coverage, which
could cause a substantial business disruption, adverse reputational impact, inability to compete with its competitors, and regulatory
investigations, inquiries, or actions. Additionally, transactions undertaken through electronic channels may create risks of fraud, hacking,
unauthorized access or acquisition, and other deceptive practices. Any security incident resulting in a compromise of client assets could
result in substantial costs to it and require it to notify impacted clients, and in some cases regulators, of a possible or actual incident,
expose it to regulatory enforcement actions, including substantial fines, limit its ability to provide services, subject it to litigation,
significant financial losses and adversely impact its brand, reputation, business, results of operations, financial condition and prospects.
If Amber Premium cannot keep pace with rapid
industry changes to provide new and innovative products and services, the use of its products and services, and consequently its revenue,
could decline, which could adversely impact its business, operating results, and financial condition.
Amber Premium’s industry, and the cryptoeconomy
generally, has been characterized by many rapid, significant, and disruptive products and services in recent years. These include decentralized
applications, which allow yield farming, staking, token wrapping, governance tokens, innovative programs to attract clients such as transaction
fee mining programs, initiatives to attract traders such as trading competitions, airdrops and giveaways, staking reward programs, and
novel cryptocurrency fundraising and distribution schemes. Amber Premium expects new services and technologies to continue to emerge and
evolve, which may be superior to, or render obsolete, the products and services that Amber Premium currently provides. Amber Premium cannot
predict the effects of new services and technologies on its business. However, its ability to grow its client base and revenue will depend
in part on its ability to innovate and create successful new products and services, both independently and in conjunction with third-parties.
In particular, developing and incorporating new products and services into its business may require substantial expenditures, take considerable
time, and ultimately may not be successful. Any new products or services could fail to attract clients, generate revenue, or perform or
integrate well with third-party applications and platforms. In addition, its ability to adapt and compete with new products and services
may be inhibited by regulatory requirements and general uncertainty in the law, constraints by its banking partners and payment processors,
third-party intellectual property rights, or other factors. Moreover, Amber Premium must continue to enhance its technical infrastructure
and other technology offerings to remain competitive and maintain a platform that has the required functionality, performance, capacity,
security, and speed to attract and retain clients. As a result, Amber Premium expects to expend significant costs and expenses to develop
and upgrade its technical infrastructure to meet the evolving needs of the industry. Its success will depend on its ability to develop
and incorporate new offerings and adapt to technological changes and evolving industry practices. If Amber Premium is unable to do so
in a timely or cost-effective manner, its business and its ability to successfully compete, retain existing clients, and attract new clients
may be adversely affected.
If Amber Premium fails to retain existing
clients or attract new clients, or if its clients decrease their level of engagement with its services and platform, the business, operating
results and financial condition of Amber Premium, and after consummation of the Merger, of ListCo may be significantly harmed.
Amber Premium’s success depends on its ability
to retain existing clients, attract new clients and increase client engagement with its services and platform. In order to achieve this,
Amber Premium must continue to offer leading technologies and ensure that its products and services are secure, reliable and engaging.
It must also expand its products and services, and offer attractive fees. There is no assurance that Amber Premium will be able to continue
to do so to retain its existing clients, attract new clients or keep its clients engaged. A number of factors could negatively affect
client retention, growth and engagement, including:
| · | clients increasingly engage with competing products and services, including products and services that
Amber Premium is unable to offer due to regulatory reasons; |
| · | Amber Premium fails to introduce new and improved products and services, or if it introduces new products
or services that are not favorably received; |
| · | Amber Premium fails to support new and in-demand digital assets or if it elects to support digital assets
with negative reputations; |
| · | there are changes in sentiment about the quality or usefulness of Amber Premium’s products and services
or concerns related to privacy, security, fiat pegging or other factors; |
| · | there are adverse changes in Amber Premium’s products and services that are mandated by legislation,
regulatory authorities, or litigation; |
| · | clients perceive the investment products on Amber Premium’s platform to be poor investment choices,
or experience significant losses in investments made on its platform; |
| · | technical or other problems prevent Amber Premium from delivering its services with the speed, functionality,
security, and reliability that its clients expect; |
| · | cybersecurity incidents, employee or service provider misconduct, or other unforeseen activities cause
losses to Amber Premium or its clients, including losses to assets held by Amber Premium on behalf of its clients; |
| · | modifications to Amber Premium’s pricing model or modifications by its competitors to their pricing
models; |
| · | Amber Premium fails to provide adequate client service; |
| · | regulatory and governmental bodies in countries that Amber Premium targets for expansion express negative
views towards digital wealth management platforms and, more broadly, the cryptoeconomy; and |
| · | Amber Premium or other companies or high-profile figures in its industry are the subject of adverse media
reports or other negative publicity. |
From time to time, certain of these factors have
negatively affected client retention, growth, and engagement to varying degrees. If Amber Premium is unable to maintain or increase its
client base and client engagement, the revenue, business, operating results and financial condition of Amber Premium, and after consummation
of the Merger, of ListCo could be adversely affected. If Amber Premium’s client growth rate slows or declines, it will become increasingly
dependent on its ability to maintain or increase levels of user engagement and monetization in order to drive growth of revenue.
Amber DWM is undertaking a series of corporate
restructurings, and is subject to significant risks in relation to such transition, including the risk of losing clients under the WFTL
Assigned Contracts.
In connection with the Merger, Amber DWM is undertaking
a series of corporate restructurings, which is referred to as the DWM Asset Restructuring. Upon the completion of the DWM Asset Restructuring,
Amber DWM is expected to (i) acquire 100% of the equity interests in WhaleFin Markets Limited, a company incorporated in Hong Kong, from
Amber Group, its shareholder, and (ii) cause Amber Premium FZE, its wholly owned subsidiary, to assume all rights and obligations under
all of the active client contracts to which WhaleFin Technologies Limited is a party. WhaleFin Technologies Limited, a Seychelles-incorporated
wholly owned subsidiary of Amber Group, will remain outside of Amber DWM after the Merger. See “The Merger Agreement—DWM Asset
Restructuring.”
As a result of the DWM Asset Restructuring, Amber
DWM has been and is currently in the process of adjusting its business operations and corporate structure. There is no assurance that
such adjustment will be successful or will result in growth, revenue or profit. Amber DWM may further experience a loss of continuity,
loss of accumulated knowledge or loss of efficiency during the transitional period. Additionally, it is difficult to forecast the full
impact of the DWM Asset Restructuring and it is uncertain whether the DWM Asset Restructuring will eventually be beneficial to Amber DWM.
There can be no assurance that Amber DWM will be able to maintain all of the clients under the WFTL Assigned Contracts after the completion
of the DWM Asset Restructuring. Amber DWM may experience a loss of clients if these clients failed to comply with Amber DWM’s evolving
compliance standards or they decided to terminate their business relationships with Amber DWM due to their own compliance-related considerations.
Amber DWM is also faced with risks and challenges with respect to its ability to:
| · | manage changes in its business operations during the implementation and following the completion of the
DWM Asset Restructuring; |
| · | navigate an evolving and complex regulatory environment; |
| · | improve and maintain its operational efficiency; |
| · | establish, retain and expand its client base; |
| · | successfully market its product and service offerings; |
| · | attract, retain, and motivate talented employees; and |
| · | anticipate and adapt to changing market conditions and demands, including technological developments and
changes in competitive landscape. |
If Amber DWM’s assumptions
regarding these risks and uncertainties, which it uses to plan and operate its business, are incorrect or outdated, or if it does not
address these risks successfully, the results of operations of Amber DWM, and after consummation of the Merger, of ListCo, could differ
materially from expectations, and the business, financial condition and results of operations of Amber DWM, and after consummation of
the Merger, of ListCo could be adversely affected.
Amber Premium’s business is susceptible
to risks associated with international operations, including risks associated with difficulties, delays or failures in obtaining and/or
maintaining the regulatory approvals, permissions, authorizations, licenses or consents that may be required to offer certain products
or services in one or more international markets.
Amber Premium currently has subsidiaries in jurisdictions,
such as Singapore, Hong Kong, and Dubai. Amber Premium plans to enter into or increase its presence in additional markets around the world,
and any inability or failure to adequately exploit opportunities for international expansion, may harm its business and adversely affect
its revenue. Amber Premium’s ability to manage its business and conduct its operations internationally requires considerable management
attention and resources and is subject to particular challenges of supporting a rapidly growing business in an environment of diverse
cultures, languages, customs, tax laws, legal systems, alternate dispute systems and regulatory systems. As Amber Premium continues to
expand its business and client base internationally, Amber Premium will be increasingly susceptible to risks associated with international
operations. These risks and challenges include:
| · | difficulties, delays or failures in obtaining and/or maintaining the regulatory approvals, permissions,
authorizations, licenses or consents that may be required to offer certain products or services in one or more international markets.
For example, Amber Premium may not be able to obtain the final regulatory approvals for its license applications in Dubai and Hong Kong
in a timely manner, or at all; |
| · | difficulty establishing and managing international operations and the increased operations, travel, infrastructure
and legal and compliance costs associated with locations in different countries or regions; |
| · | the need to understand and comply with local laws, regulations and customs in multiple jurisdictions,
including laws and regulations governing broker-dealer practices, some of which may be different from, or conflict with, those of other
jurisdictions, and which might not permit it to operate its business or collect revenues in the same manner as Amber Premium does in such
other jurisdictions; |
| · | its interpretations of local laws and regulations, which may be subject to challenge by local regulators; |
| · | difficulties in managing multiple regulatory relationships across different jurisdictions on complex legal
and regulatory matters; |
| · | if Amber Premium was to engage in any merger or acquisition activity internationally, this is complex
and would be new for it and subject to additional regulatory scrutiny; |
| · | the need to vary products, pricing and margins to effectively compete in international markets; |
| · | the need to adapt and localize products for specific countries, including obtaining rights to third-party
intellectual property used in each country; |
| · | increased competition from local providers of similar products and services; |
| · | the challenge of positioning its products and services to meet a demand in the local market (also known
as “product-market fit”); |
| · | the ability to obtain, maintain, protect, defend and enforce intellectual property rights abroad; |
| · | the need to offer client support and other aspects of its offering (including websites, articles, blog
posts and client support documentation) in various languages; |
| · | compliance with anti-bribery laws, such as the Foreign Corrupt Practices Act and equivalent anti-bribery
and anti-corruption requirements in local markets, by it, its employees and its business partners, and the potential for increased complexity
due to the requirements on it as a group to follow multiple rule sets; |
| · | complexity and other risks associated with current and future legal requirements in other countries, including
laws, rules, regulations and other legal requirements related to cybersecurity and data privacy frameworks and labor and employment laws; |
| · | the need to enter into new business partnerships with third-party service providers in order to provide
products and services in the local market, which Amber Premium may rely upon to be able to provide such products and services or to meet
certain regulatory obligations; |
| · | varying levels of internet technology adoption and infrastructure, and increased or varying network and
hosting service provider costs and differences in technology service delivery in different countries; |
| · | fluctuations in currency exchange rates and the requirements of currency control regulations, which might
restrict or prohibit conversion of other currencies into its reporting currency; |
| · | taxation of its international earnings and potentially adverse tax consequences due to requirements of
or changes in the income and other tax laws of the jurisdictions in which Amber Premium operates; and |
| · | political or social unrest or economic instability in a specific country or region in which Amber Premium
operates. |
Amber Premium may not be able to penetrate or
successfully operate in the markets Amber Premium chooses to enter. In addition, Amber Premium may incur significant expenses as a result
of its international expansion, and Amber Premium may not be successful. Amber Premium may launch products that lack local product-market
fit, face local competition from pre-existing companies offering similar products and/or face limited brand recognition in certain parts
of the world, any of which could lead to non-acceptance or delayed acceptance of its products and services by clients in new markets.
Product adoption and growth rates may vary significantly across different markets. Amber Premium is subject to income taxes and other
taxes in the jurisdictions where Amber Premium transacts or conducts business, and such laws and tax rates vary by jurisdiction. Amber
Premium is subject to review and audit by local and foreign tax authorities. Such tax authorities may disagree with tax positions Amber
Premium takes, and if any such tax authority were to successfully challenge any such position, its financial condition or results of operations
could be materially and adversely affected. Its failure to successfully manage these risks, or any failure to quickly exploit any opportunity
for international expansion could harm its international operations in the markets Amber Premium chooses to enter and have an adverse
effect on its business, financial condition and results of operations.
The wealth management products that Amber
Premium distributes involve various risks and failure to identify or fully appreciate such risks may negatively affect its reputation,
client relationships, results of operations and financial conditions.
Amber Premium offers its clients access to a comprehensive
suite of digital wealth management products, catering to the different investment targets and risk preferences of its clients. These products
often have complex structures and involve various risks, including default risks, interest risks, liquidity risks, market risks, counterparty
risks, fraud risks and other risks. In addition, Amber Premium is subject to regulations in relation to digital assets and wealth management
products distributed in different jurisdictions, and there is no assurance that its operations will be deemed as being in full compliance
with such regulations at all times.
Amber Premium’s success in distributing
digital wealth management products depends, in part, on its ability to successfully identify the risks associated with such products and
services, and failure to identify or fully appreciate such risks may negatively affect its reputation, client relationships, results of
operations and financial conditions. Although Amber Premium generally does not guarantee the principal or the return of the wealth management
products available through its platform and does not bear any liabilities for any loss to capital invested in the products, Amber Premium
must be cautious of the selection of the financial products it offers and must accurately describe the risks associated with those products
for its clients. Although Amber Premium enforces and implements strict risk management policies and procedures, such risk management policies
and procedures may not be fully effective in mitigating the risk exposure for all of its clients in all market environments or covering
all types of risks. If Amber Premium fails to identify and fully appreciate the risks associated with the financial products it offers,
or fails to disclose such risks to its clients, or if its clients suffer financial losses or other damages resulting from the financial
products it offers, its reputation, client relationships, results of operations and financial conditions will be materially and adversely
affected.
Amber Premium is not obligated to hedge
its exposures, and, if Amber Premium does, hedging transactions may be ineffective or reduce its overall performance.
Amber Premium is not obligated to, and sometimes
may not, hedge its exposures. However, from time to time, Amber Premium may use a variety of financial instruments and derivatives, such
as options, swaps, and forward contracts, for risk management purposes, including to: protect against possible changes in the market value
of its investment or trading assets resulting from fluctuations in cryptocurrency markets or securities markets and changes in interest
rates; protect its unrealized gains in the value of its investments or trading assets; facilitate the sale of any such assets; enhance
or preserve returns, spreads or gains on any trade or investment; hedge the interest-rate or currency-exchange risk on any of its liabilities
or assets; protect against any increase in the price of any assets that Amber Premium anticipates purchasing at a later date; or to any
other end that Amber Premium deems appropriate. The success of any hedging activities by it will depend, in part, on its ability to correctly
assess the degree of correlation between the performance of the instruments used in the hedging strategy and the performance of the assets
being hedged. Since the characteristics of many assets change as markets change or time passes, the success of its hedging strategy will
also be subject to its ability to continually recalculate, readjust and execute hedges in an efficient and timely manner. In addition,
while Amber Premium may enter into hedging transactions with the view to reducing risk, in certain circumstances such transactions may
actually increase risk or result in a poorer overall performance for it than if Amber Premium had not engaged in such hedging transactions.
Amber Premium may make, or otherwise be
subject to, trade errors.
Errors may occur with respect to trades Amber
Premium executed on clients’ behalf. Trade errors can result from a variety of situations, including, for example, when the wrong
investment is purchased or sold or when the wrong quantity is purchased or sold or when the execution price is wrong. Trade errors frequently
result in losses, which could be material. Errors may result in disputes with clients and thus negatively impact Amber Premium’s
reputation or lead to its financial losses. To the extent that an error is caused by a third party, Amber Premium may seek to recover
any losses associated with the error, although there may be contractual limitations on any third party’s liability with respect
to such error.
Amber Premium’s trading orders may
not be timely executed.
Amber Premium helps its clients establish and
maintain an overall market position in a combination of financial instruments in the digital asset market. Amber Premium’s trading
orders may not be executed in a timely and efficient manner because of various circumstances, including, for example, trading volume surges
or systems failures attributable to it or its counterparties, brokers, dealers, agents or other service providers. In such an event, Amber
Premium might only be able to acquire or dispose of some, but not all, of the components of the positions on its clients’ behalf,
or if the overall positions were to need adjustments, Amber Premium might not be able to make such adjustments on its clients’ behalf.
As a result, Amber Premium would not be able to achieve its desired market position, which may result in a loss for its clients. In addition,
Amber Premium can be expected to rely heavily on electronic execution systems (and may rely on new systems and technology in the future),
which may be subject to certain systemic limitations or mistakes, causing the interruption of trading orders made by it on its clients’
behalf. Failure to execute orders may lead to disputes and financial losses.
Amber Premium provides collateralized loans
to its clients, which exposes it to credit risks and may cause it to incur financial or reputational harm.
Amber Premium provides collateralized loans to
certain clients secured by their digital asset holdings, which exposes Amber Premium to the risk of its borrowers’ inability to
repay such loans or the depreciation of the value of the collateralized assets. In the future, Amber Premium may enter into credit arrangements
with financial institutions to obtain more capital. Any termination or interruption in the financial institutions’ ability to lend
to Amber Premium could interrupt its ability to provide capital to qualified clients to the extent it relies on such credit lines to continue
to offer or to grow such products. Further, Amber Premium’s credit approval process, pricing, loss forecasting, and scoring models
may contain errors or may not adequately assess creditworthiness of its borrowers, or may be otherwise ineffective, resulting in incorrect
approvals or denials of loans. It is also possible that loan applicants could provide false or incorrect information. While Amber Premium
has procedures in place to manage its credit risk, such as conducting due diligence on its clients and running stress test simulations
to monitor and manage exposures, including any exposures resulting from loans collateralized with digital assets, Amber Premium remains
subject to risks associated with its borrowers’ creditworthiness, the flucation of the collateral value, and its approval process.
Borrower loan loss rates may be significantly
affected by economic downturns or general economic conditions beyond Amber Premium’s control and beyond the control of individual
borrowers. In particular, loss rates on loans may increase due to factors such as prevailing market conditions in the cryptoeconomy, the
price of Bitcoin and other digital assets, which have experienced significant fluctuations, the amount of liquidity in the markets, and
other factors. Borrowers may seek protection under bankruptcy law or similar laws. If a borrower of a loan files for bankruptcy (or becomes
the subject of an involuntary petition), a stay may go into effect that will automatically put any pending collection actions on the loan
on hold and prevent further collection action absent bankruptcy court approval. The efficacy of Amber Premium’s security interest
in client collateral may not be guaranteed under applicable laws and regulations and therefore Amber Premium may be exposed to loss in
the event of a client default, even if it appears to be secured against such default. While Amber Premium has not incurred any material
losses to date, if any of the foregoing events were to occur, its reputation and relationships with borrowers, and its financial results,
could be harmed.
Amber Premium’s products and services
may be exploited to facilitate illegal activity such as fraud, money laundering, gambling, tax evasion, and scams. If any of Amber Premium’s
clients use its services to further such illegal activities, its business could be adversely affected.
Amber Premium’s products and services may
be exploited to facilitate illegal activity including fraud, money laundering, gambling, tax evasion, and scams. Amber Premium or its
partners may be specifically targeted by individuals seeking to conduct fraudulent transfers, and it may be difficult or impossible for
Amber Premium to detect and avoid such transactions in certain circumstances. The use of Amber Premium’s products and services for
illegal or improper purposes could subject it to claims, individual and class action lawsuits, and government and regulatory investigations,
prosecutions, enforcement actions, inquiries, or requests that could result in liability and reputational harm for it. Moreover, certain
activity that may be legal in one jurisdiction may be illegal in another jurisdiction, and certain activities that are at one time legal
may in the future be deemed illegal in the same jurisdiction. As a result, there is significant uncertainty and cost associated with detecting
and monitoring transactions for compliance with local laws. In the event that a client is found responsible for intentionally or inadvertently
violating the laws in any jurisdiction, Amber Premium may be subject to governmental inquiries, enforcement actions, prosecuted, or otherwise
held secondarily liable for aiding or facilitating such activities. Changes in law have also increased the penalties for money transmitters
for certain illegal activities, and government authorities may consider increased or additional penalties from time to time. Owners of
intellectual property rights or government authorities may seek to bring legal action against money transmitters, including Amber Premium,
for involvement in the sale of infringing or allegedly infringing items. Any threatened or resulting claims could result in reputational
harm, and any resulting liabilities, loss of transaction volume, or increased costs could harm Amber Premium’s business.
Moreover, while fiat currencies can be used to
facilitate illegal activities, digital assets are relatively new and, in many jurisdictions, may be lightly regulated or largely unregulated.
Many types of digital assets have characteristics, such as the speed with which digital currency transactions can be conducted, the ability
to conduct transactions without the involvement of regulated intermediaries, the ability to engage in transactions across multiple jurisdictions,
the irreversible nature of certain digital asset transactions, and encryption technology that anonymizes these transactions, that make
digital assets susceptible to use in illegal activity. Regulatory authorities and law enforcement agencies around the world have taken
and continue to take legal action against persons and entities alleged to be engaged in fraudulent schemes or other illicit activity involving
digital assets.
While Amber Premium believes that its risk management
and compliance framework is designed to detect significant illicit activities conducted by its potential or existing clients, it cannot
ensure that it will be able to detect all illegal activity on its platform. If any of its clients use its products and services to further
such illegal activities, its business could be adversely affected.
Amber Premium’s compliance and risk
management methods might not be effective and may result in outcomes that could adversely affect its reputation, operating results, and
financial condition.
Amber Premium’s ability to comply with applicable
complex and evolving laws, regulations, and rules is largely dependent on the establishment and maintenance of its compliance, audit,
and reporting systems, as well as its ability to attract and retain qualified compliance and other risk management personnel. While Amber
Premium has devoted significant resources to develop policies and procedures to identify, monitor, and manage its risks, and expect to
continue to do so in the future, Amber Premium cannot assure you that its policies and procedures will always be effective. Amber Premium’s
risk management policies and procedures rely on a combination of technical and human controls and supervision that are subject to error
and failure. Some of Amber Premium’s methods for managing risk are discretionary by nature and are based on internally developed
controls and observed historical market behavior, and also involve reliance on standard industry practices. These methods may not adequately
prevent losses, particularly as they relate to extreme market movements, which may be significantly greater than historical fluctuations
in the market. Amber Premium’s risk management policies and procedures also may not adequately prevent losses due to technical errors
if its testing and quality control practices are not effective in preventing failures. In addition, Amber Premium may elect to adjust
its risk management policies and procedures to allow for an increase in risk tolerance, which could expose it to the risk of greater losses.
Regulators periodically review Amber Premium’s
compliance with its own policies and procedures and with a variety of laws and regulations. Amber Premium has received in the past and
may from time to time receive examination reports requiring it to enhance certain practices with respect to its compliance program, including
due diligence, training, monitoring, reporting, and recordkeeping. It may from time to time in the future receive additional examination
reports citing violations of rules and regulations and inadequacies in existing compliance programs. If Amber Premium fails to comply
with these, or do not adequately remediate certain findings, regulators could take a variety of actions that could impair its ability
to conduct its business, including delaying, denying, withdrawing, or conditioning approval of certain products and services. In addition,
Amber Premium faces the risk of significant intervention by regulatory authorities, including extensive examination and surveillance activities.
In the case of non-compliance or alleged non-compliance, Amber Premium could be subject to investigations and proceedings that may result
in substantial penalties or civil lawsuits, including by clients. Any of these outcomes would adversely affect Amber Premium’s reputation
and brand and business, operating results, and financial condition. Some of these outcomes could adversely affect Amber Premium’s
ability to conduct its business.
Cyberattacks and security breaches of Amber
Premium’s system, or those impacting its clients or third parties, could adversely impact its brand and reputation and its business,
operating results, and financial condition.
Amber Premium’s business involves the collection,
storage, processing, and transmission of confidential information, client, employee, service provider, and other personal data, as well
as information required to access client assets. As a result, any actual or perceived security breach of Amber Premium or its third-party
partners may:
| · | harm its reputation and brand; |
| · | result in its systems or services being unavailable and interrupt its operations; |
| · | result in improper disclosure of data and violations of applicable privacy and other laws; |
| · | result in significant regulatory scrutiny, investigations, fines, penalties, and other legal, regulatory,
and financial exposure; |
| · | cause it to incur significant remediation costs; |
| · | lead to theft or irretrievable loss of Amber Premium’s or its clients’ fiat currencies or
digital assets; |
| · | reduce client confidence in, or decreased use of, its products and services; |
| · | divert the attention of management from the operation of its business; |
| · | result in significant compensation or contractual penalties from Amber Premium to its clients or third
parties as a result of losses to them or claims by them; and |
| · | adversely affect its business and operating results. |
Further, any actual or perceived breach or cybersecurity
attack directed at other financial institutions or digital asset companies, whether or not Amber Premium is directly impacted, could lead
to a general loss of client confidence in the cryptoeconomy or in the use of technology to conduct financial transactions, which could
negatively impact Amber Premium, including the market perception of the effectiveness of its security measures and technology infrastructure.
An increasing number of organizations, including
large merchants, businesses, technology companies, and financial institutions, as well as government institutions, have disclosed breaches
of their information security systems, some of which have involved sophisticated and highly targeted attacks, including on their websites,
mobile applications, and infrastructure.
Attacks upon systems across a variety of industries,
including the digital asset industry, are increasing in their frequency, persistence, and sophistication, and, in many cases, are being
conducted by sophisticated, well-funded, and organized groups and individuals, including state actors. The techniques used to obtain unauthorized,
improper, or illegal access to systems and information (including clients’ personal data and digital assets), disable or degrade
services, or sabotage systems are constantly evolving, may be difficult to detect quickly, and often are not recognized or detected until
after they have been launched against a target. These attacks may occur on Amber Premium’s systems or those of its third-party service
providers or partners. Certain types of cyberattacks could harm Amber Premium even if its systems are left undisturbed. For example, attacks
may be designed to deceive employees and service providers into releasing control of Amber Premium’s systems to a hacker, while
others may aim to introduce computer viruses or malware into its systems with a view to stealing confidential or proprietary data. Additionally,
certain threats are designed to remain dormant or undetectable until launched against a target and Amber Premium may not be able to implement
adequate preventative measures.
Although Amber Premium has developed systems and
processes designed to protect the data it manages, prevents data loss and other security breaches, effectively responds to known and
potential risks, and expects to continue to expend significant resources to bolster these protections, there can be no assurance that
these security measures will provide absolute security or prevent breaches or attacks. Amber Premium has experienced from time to time,
and may experience in the future, breaches of its security measures due to human error, malfeasance, insider threats, system errors or
vulnerabilities, or other irregularities. Unauthorized parties have attempted, and Amber Premium expects that they will continue to attempt,
to gain access to its systems and facilities, as well as those of its clients, partners, and third-party service providers, through various
means, including hacking, social engineering, phishing, and attempting to fraudulently induce individuals (including employees, service
providers, and its clients) into disclosing usernames, passwords, payment card information, or other sensitive information, which may
in turn be used to access its information technology systems and clients’ digital assets. Threats can come from a variety of sources,
including criminal hackers, hacktivists, state-sponsored intrusions, industrial espionage, and insiders. Certain threat actors may be
supported by significant financial and technological resources, making them even more sophisticated and difficult to detect. Further,
there has been an increase in such activities as a result of the novel coronavirus, or COVID-19, pandemic. As a result, Amber Premium’s
costs and the resources it devotes to protecting against these advanced threats and their consequences may continue to increase over
time.
Amber Premium’s trading activities may
expose it to counterparty credit risks.
Credit risk is the risk that a counterparty will
be unable or unwilling to satisfy payment or delivery obligations when due. Amber Premium is exposed to the risk that third parties,
including trading counterparties, clearing agents, trading platforms, decentralized finance protocols, custodians, administrators and
other financial intermediaries that may owe it money, securities or other assets will not perform their obligations. Any of these parties
might default on their obligations to it because of bankruptcy, lack of liquidity, operational failure or other reasons, in which event
Amber Premium may lose all or substantially all of the value of any such investment or trading transaction. When Amber Premium trades
on digital asset trading platforms that specialize in digital asset futures and derivatives, Amber Premium is exposed to the credit risk
of that digital asset trading platform.
In derivatives, Amber Premium may invest in options
on digital assets. Purchasing and writing put and call options are highly specialized activities that entail greater-than-ordinary investment
risks. An uncovered call writer’s loss is theoretically unlimited. Unlike exchange-traded options, which are standardized with
respect to the underlying instrument, expiration date, contract size and strike price, the terms of over-the- counter options (options
not traded on exchanges) are generally established through negotiation with the other party to the option contract. While this type of
arrangement allows greater flexibility to tailor an option, over-the-counter options generally involve greater credit risk than exchange-traded
options, which are guaranteed by the clearing organization of the exchanges where they are traded. As of the date of this document, the
availability of exchange-traded and over-the-counter options on digital assets is extremely limited, so terms may be unfavorable in comparison
to those available for more firmly established types of options.
The failure or bankruptcy of any of its centralized
clearing agents (or futures commission merchants) could result in a substantial loss of its assets. If a centralized clearing agent is
unable to satisfy a substantial deficit in a client account, its other clients may be subject to risk of loss of their funds in the event
of that centralized clearing agent’s bankruptcy. In such an event, the centralized clearing agent’s clients, such as it,
are entitled to recover, even in respect of property specifically traceable to them, only a proportional share of all property available
for distribution to all of that centralized clearing agent’s clients.
Amber Premium’s operations are reliant
on technology provided by third parties which are out of its direct control.
Certain aspects of Amber Premium’s operations
are reliant on technology, including hardware, software and telecommunications systems. Significant parts of the technology used in the
management of each client may be provided by third parties and are therefore beyond its direct control. Forecasting, trade execution,
data gathering, risk management, portfolio management, information technology infrastructure and support, compliance and accounting systems
all are designed to depend upon a high degree of automation and computerization. Although Amber Premium seeks, on an ongoing basis, to
ensure adequate backups of software and hardware where possible and will attempt to conduct adequate due diligence and monitoring of
providers, if such efforts are unsuccessful or inadequate, software or hardware errors or failures may result in errors, data loss and/or
failures in trade execution, risk management, portfolio management, compliance or accounting. Errors or failures may also result in the
inaccuracy of data and reporting or the unavailability of data or vulnerability of data to the risk of loss or theft. Errors may occur
gradually and once in the code may be very hard to detect and can potentially affect results over a long period of time. If an unforeseeable
software or hardware malfunction or problem is caused by a defect, virus or other outside force, a client may be materially adversely
affected.
In particular, Amber Premium may rely on cloud (including
private and public cloud-based) technology for certain operations, including data storage. Cloud-based technology, like any electronic
data storage or processing technology, is not fail-safe. It may be subject to certain defects, failures or interruptions of service beyond
its direct control. It is also possible that such technology could be compromised by a third party, including through the use of malicious
software or programs, such as viruses, which may expose the Company and a client to theft (of data or other assets) and/or significant
business interruption. In addition, a software provider may cease operations or be relatively thinly capitalized and its and a client’s
ability to be made whole after any loss may be compromised as a result.
Amber Premium’s business relies on third-party
service providers and subjects it to risks that Amber Premium may not be able to control or remediate.
Amber Premium’s operations could be interrupted
if its third-party service providers experience operational or other systems difficulties, terminate their services or fail to comply
with regulations. Amber Premium outsources some of its operational activities and accordingly depend on relationships with many third-party
service providers. Specifically, Amber Premium relies on third parties for certain services, including, but not limited to, legal, accounting,
custodying and other financial operations, trade related activity, IT infrastructure and systems, trade reconciliation, and margin
and collateral movement. Amber Premium’s business depends on the successful and uninterrupted functioning of its information technology
and telecommunications systems and third-party service providers. The failure of these systems, a cybersecurity breach involving any
of its third-party service providers or the termination or change in terms of a third-party software license or service agreement on
which any of these systems is based could interrupt its operations. Because its information technology and telecommunications systems
interface with and depend on third-party systems, Amber Premium could experience service denials if demand for such services exceeds
capacity or such third-party systems fail or experience interruptions. Replacing vendors or addressing other issues with its third-party
service providers could entail significant delay, expense and disruption of service. As a result, if these third-party service providers
experience difficulties, are subject to cybersecurity breaches, or terminate their services, and Amber Premium is unable to replace them
with other service providers, particularly on a timely basis, its operations could be interrupted. If an interruption were to continue
for a significant period, its business, financial condition and results of operations could be adversely affected. Should Amber Premium
be required to replace third-party service providers, it may be at a higher cost to it, which could adversely affect its business, financial
condition and results of operations.
Any inability to maintain adequate relationships
with third-party banks and trading venues with respect to, and any inability to settle client trades related to, Amber Premium’s
cryptocurrency offerings, may adversely affect Amber Premium’s business, financial condition and results of operations.
The cryptocurrency market operates 24 hours a day,
seven days a week. The cryptocurrency market does not have a centralized clearinghouse, and transactions in cryptocurrencies rely on
direct settlements between third parties after trades are executed. Accordingly, Amber Premium relies on third-party banks to facilitate
cash settlements between clients and Amber Premium and rely on the ability of its trading venues to complete cryptocurrency settlements.
In addition, Amber Premium must maintain cash assets in its bank accounts sufficient to meet the working capital needs of its business,
which includes deploying available working capital to facilitate cash settlements between Amber Premium and its clients and certain trading
venues. If third-party banks or trading venues have operational failures and cannot perform and facilitate Amber Premium’s routine
cash and cryptocurrency settlement transactions, Amber Premium will be unable to support normal cryptocurrency trading operations and
these disruptions could have an adverse impact on its business, financial condition and results of operations. Similarly, if Amber Premium
fails to maintain cash assets in its bank accounts sufficient to meet the working capital needs of its business and necessary to complete
routine cash settlements related to its trading activity, such failure could impair its ability to support normal trading operations
and these disruptions could have an adverse impact on Amber Premium’s business, financial condition and results of operations.
Amber Premium may also be harmed by the loss of
any of its banking partners and trading venues. As a result of the many regulations applicable to cryptocurrencies or the risks of digital
assets generally, many financial institutions have decided, and other financials may in the future decide, to not provide bank accounts
(or access to bank accounts), payments services or other financial services to companies providing cryptocurrency products, including
Amber Premium. Similarly, a number of such companies have had their existing bank accounts closed by their banks. Banks may refuse to
provide bank accounts and other banking services to digital asset-related companies, including Amber Premium, for a number of reasons,
such as perceived compliance risks or costs. Any inability to procure or keep banking services would have a material and adverse effect
on Amber Premium.
Similarly, continued general banking difficulties
may decrease the utility or value of digital assets or harm public perception of those assets. In addition to banks, other third-party
service providers including accountants, lawyers and insurance providers may also decline to provide services to companies engaged in
digital asset-related businesses because of the perceived risk profile associated with such businesses or the lack of regulatory certainty.
Consequently, if Amber Premium or its trading venues cannot maintain sufficient relationships with the banks that provide these services,
banking regulators restrict or prohibit banking of cryptocurrency businesses, or if these banks impose significant operational restrictions,
it may be difficult for Amber Premium to find alternative business partners, which may result in a disruption of Amber Premium’s
business and could have an adverse impact on Amber Premium’s reputation, financial condition and results of operations.
Amber Premium may make acquisitions and investments,
which could require significant management attention, disrupt its business, result in dilution to its shareholders, and adversely affect
its financial results.
As part of Amber Premium’s business strategy,
it looks for potential opportunities to make acquisitions to add specialized employees, complementary companies, products, services,
licenses, or technologies. Amber Premium routinely conducts discussions and evaluates opportunities for possible acquisitions, strategic
investments, entries into new businesses, joint ventures, and other transactions. For example, in 2022, Amber Premium expanded its capabilities
through the acquisition of Sparrow Holdings Pte. Ltd., a Singapore-based wealth management firm. In the future, Amber Premium may not
be able to find any suitable acquisition and investment candidates, and Amber Premium may not be able to complete acquisitions or make
investments on favorable terms, if at all. In some cases, the costs of such acquisitions may be substantial, and there is no assurance
that Amber Premium will receive a favorable return on investment for its acquisitions. Amber Premium may in the future be required to
write off assets it has acquired.
In addition, if Amber Premium fails to successfully
close or integrate any acquisitions, or integrate the products or technologies associated with such acquisitions into Amber Premium,
its total revenue and operating results could be adversely affected. Amber Premium’s ability to acquire and integrate companies,
products, services, licenses, or technologies in a successful manner is unproven. Any integration process may require significant time
and resources, and Amber Premium may not be able to manage the process successfully, including successfully securing regulatory approvals
which may be required to close the transaction and/or to continue to operate the target firm’s business or products in a manner
that is useful to it. Amber Premium may not successfully evaluate or utilize the acquired products, services, technology, or personnel,
or accurately forecast the financial impact of an acquisition, including accounting charges. Amber Premium may have to pay cash, incur
debt, or issue equity securities to pay for any such acquisition, any of which could adversely affect its financial results. The new
issuance of equity to finance any such acquisitions could result in dilution to its shareholders. The incurrence of substantial indebtedness
could also result in increased fixed obligations and may include covenants or other restrictions that would impede Amber Premium’s
ability to manage its operations.
Fluctuations in currency exchange rates could
harm Amber Premium’s operating results and financial condition.
Revenue generated and expenses incurred from Amber
Premium’s international operations are often denominated in the currencies of the local countries. Accordingly, changes in the
value of foreign currencies relative to the U.S. dollar can affect its revenue and operating results reflected in its U.S. dollar-denominated
financial statements. Its financial results are also subject to changes in exchange rates that impact the settlement of transactions
in non-local currencies. As a result, it could be more difficult to detect underlying trends in its business and operating results. Even
if Amber Premium uses derivative instruments to hedge exposure to fluctuations in foreign currency exchange rates, the use of such hedging
activities may not offset any or more than a portion of the adverse financial effects of unfavorable movements in foreign exchange rates
over the limited time the hedges are in place, and may introduce additional risks if Amber Premium is unable to structure effective hedges
with such instruments.
In the event that Amber Premium’s employees,
contractors or any of its affiliates engage in misconduct or commit errors, it may materially adversely impact Amber Premium’s
business, operating results and its reputation.
Misconduct or error by Amber Premium’s employees
or its business partners could subject it to legal liability, financial losses, and regulatory sanctions and could seriously harm its
reputation and negatively affect its business. Such misconduct could include engaging in improper or unauthorized transactions or activities,
misappropriation of client funds, insider trading and misappropriation of information, failing to supervise other employees or service
providers, improperly using confidential information, as well as improper trading activity such as spoofing, layering, wash trading,
manipulation and front-running.
Amber Premium’s reputation is critical to
maintaining and developing relationships with existing and prospective investors, as well as the numerous third parties with which Amber
Premium or a client does business. In recent years, there have been a number of highly publicized cases involving fraud, conflicts of
interest or other misconduct by individuals in the financial services industry, and in particular the digital assets sector, and there
is a risk that an employee of or contractor to Amber Premium or any of its affiliates could engage in misconduct that adversely affects
the investment strategies implemented by Amber Premium, or that an employee or contractor of a service provider could engage in such
misconduct. It is not always possible to deter such misconduct, and the precautions Amber Premium (or any service provider) takes to
detect and prevent such misconduct may not be effective in all cases. Misconduct by such individuals, or even unsubstantiated allegations
of such misconduct, could result in both direct financial harm to Amber Premium and a client, as well as harm to the reputations of Amber
Premium and the client, or, in certain circumstances, lead to increased skepticism of the digital asset markets generally, which would
have a materially adverse effect on a client.
Amber Premium obtains and processes sensitive
client data. Any real or perceived improper use of, disclosure of, or access to such data could harm its reputation, as well as have
an adverse effect on its business.
Amber Premium obtains and processes sensitive data,
including personal data related to its clients and their transactions, such as their names, addresses, trading data, tax identification,
and bank account information. Amber Premium faces risks, including to its reputation, in the handling and protection of this data, and
these risks will increase as its business continues to expand. International laws and regulations governing privacy, data protection,
and e-commerce transactions require it to safeguard its clients’, employees’, and service providers’ personal data.
In particular, Amber Premium faces a number of challenges relating to data from transactions and other activities during the course of
its business operations, including:
| · | protecting
the data in and hosted on its system, including against attacks on its system by external
parties or misbehavior by its employees; |
| · | addressing
concerns related to privacy, security and other factors; and |
| · | complying
with applicable laws, rules and regulations relating to the collection, storage, use,
transfer, disclosure and security of personal information, including any requests from regulatory
and government authorities relating to such data. |
In particular, if Amber Premium fails to secure
its client’s identity and protect their identity-specific data, such as their addresses and contact information, its clients may
be vulnerable to harassments, and their assets may also be put at risk due to data leakages. As a result, Amber Premium may be held liable
for these incidents, and its clients may feel insecure and cease to use its services. In addition, any system or technological failure
or compromise of its technology system that results in unauthorized access to or release of any personal data of its clients or proprietary
information of its business operations could significantly harm its reputation and/or result in litigation, regulatory investigations
and penalties against it.
While Amber Premium has adopted a rigorous and comprehensive
policy for the collection, processing, storage and other aspects of data use and privacy and taken necessary measures to comply with
all applicable data privacy and protection laws and regulations, Amber Premium cannot guarantee the effectiveness of these policies and
measures undertaken by it, or business partners on its platform. Despite the absence of any material cybersecurity breach and its continuous
efforts to comply with its internal policies as well as applicable laws and regulations, any failure or perceived failure to comply with
all applicable data privacy and protection laws and regulations, any failure or perceived failure of its business partners to do so,
or any failure or perceived failure of its employees to comply with its internal control measures, may result in negative publicity and
legal proceedings or regulatory actions against it, and could result in fines, revocation of licenses, suspension of business operations
or other penalties or liabilities, which may in turn damage its reputation, discourage current and potential shippers and truckers from
using its services, and subject it to fines and damages, which could have a material adverse effect on its business and results of operations.
Amber Premium is subject to governmental regulation
and other legal obligations related to data privacy, data protection and information security. If Amber Premium is unable to comply with
these laws and regulations, it may be subject to governmental enforcement actions, litigation, fines and penalties or adverse publicity.
Amber Premium’s collection, use and processing
of its clients’ personal data and transaction data are governed by data privacy laws and regulations enacted in Singapore, Hong
Kong, Dubai and other jurisdictions such as the U.S. or EU to the extent applicable. These data privacy laws and regulations are complex,
continue to evolve, and on occasion may be inconsistent among jurisdictions, leading to uncertainties in interpreting such laws. It is
possible that these laws, regulations and requirements may be interpreted and applied in a manner that is inconsistent with Amber Premium’s
existing information processing practices. In addition, many of these laws are significantly litigated and/or subject to regulatory enforcement.
Regulatory bodies may also enact or adopt new laws and regulations concerning data privacy, data retention, data transfer, and data protection.
Such laws may continue to restrict or dictate how Amber Premium collects, maintains, combines and disseminates information and could
have a material adverse effect on its business, results of operations, financial condition and prospects.
In the United States, there are numerous federal
and state laws and regulations that could apply to Amber Premium’s operations or the operations of its partners, including data
breach notification laws, financial information and other data privacy laws, and consumer protection laws and regulations (for example,
Section 5 of the Federal Trade Commission Act) that govern the collection, use, disclosure, and protection of personal information.
In addition, the General Data Protection Regulation (the “GDPR”), which went into effect in the European Union on May 25,
2018, applies to the collection, use, retention, security, processing, and transfer of personal data of individuals in the European Economic
Area (“EEA”) and the United Kingdom, which could further add to Amber Premium’s compliance costs and limit how it processes
information.
Any actual or perceived failure by Amber Premium
or the third parties with whom it works to comply with data privacy laws, regulations, guidelines, rules or industry standards,
or any security incident that results in the unauthorized release or transfer of personally identifiable information, may result in governmental
enforcement actions and investigations, fines and penalties, litigation and/or adverse publicity, which could harm Amber Premium’s
reputation and have a material adverse effect on Amber Premium’s business, reputation, results of operations, financial condition
and prospects.
Any significant disruption in Amber Premium’s
products and services, in its information technology systems, or in any of the blockchain networks it works with, including events beyond
its control, could result in a loss of clients or funds and adversely impact its brand and reputation and its business, operating results,
and financial condition.
Amber Premium’s reputation and ability to
attract and retain clients and grow its business depends on its ability to operate its service at high levels of reliability, scalability,
and performance. Amber Premium’s systems, the systems of its third-party service providers and partners, and certain digital asset
and blockchain networks have experienced from time to time, and may experience in the future service interruptions or degradation because
of hardware and software defects or malfunctions, distributed denial-of-service and other cyberattacks, insider threats, break-ins, sabotage,
human error, vandalism, earthquakes, hurricanes, floods, fires, and other natural disasters, power losses, disruptions in telecommunications
services, fraud, military or political conflicts, terrorist attacks, computer viruses or other malware, or other events. If any of Amber
Premium’s systems, or those of its third-party service providers, are disrupted for any reason, Amber Premium’s products
and services may fail, resulting in unanticipated disruptions, slower response times and delays in its clients’ transaction execution
and processing, failed settlement of transactions, incomplete or inaccurate accounting, recording or processing of transactions, unauthorized
trades, loss of client information, increased demand on limited client support resources, client claims, complaints with regulatory organizations,
lawsuits, or enforcement actions. A prolonged interruption in the availability or reduction in the availability, speed, or functionality
of Amber Premium’s products and services could harm its business. Significant or persistent interruptions in Amber Premium’s
services could cause current or potential clients or partners to believe that its systems are unreliable, leading them to switch to its
competitors or to avoid or reduce the use of its products and services, and could permanently harm its reputation and brands. Moreover,
to the extent that any system failure or similar event results in damages to its clients or their business partners, these clients or
partners could seek significant compensation or contractual penalties from Amber Premium for their losses, and those claims, even if
unsuccessful, would likely be time-consuming and costly for Amber Premium to address.
Because Amber Premium is a regulated financial institution
in certain jurisdictions, interruptions have resulted and in the future may result in regulatory scrutiny, and significant or persistent
interruptions could lead to significant fines and penalties, and mandatory and costly changes to its business practices, and ultimately
could cause it to lose existing licenses or banking relationships that it needs to operate or prevent or delay it from obtaining additional
licenses that may be required for its business.
In addition, Amber Premium is continually improving
and upgrading its information systems and technologies. Implementation of new systems and technologies is complex, expensive, time-consuming,
and may not be successful. If Amber Premium fails to timely and successfully implement new information systems and technologies, or improvements
or upgrades to existing information systems and technologies, or if such systems and technologies do not operate as intended, it could
have an adverse impact on its business, internal controls (including internal controls over financial reporting), operating results,
and financial condition.
Information technology is a critical aspect
in the efficient operation of Amber Premium’s business, failure to maintain or improve its information technology infrastructure
could harm its business and prospects.
The efficient and reliable operation of its business
depends on its information technology systems. Amber Premium is continuously upgrading its platform to provide increased scale, improved
performance, additional capacity and additional built-in functionality, including functionality related to security. Adopting new services
and maintaining and upgrading its information technology infrastructure require significant investment of time and resources. Any failure
to maintain and improve its information technology infrastructure could result in unanticipated system disruptions, slower response times,
impaired clients experience, delays in reporting accurate operating and financial information and failures in risk management. The risks
of these events occurring are even higher during certain periods of peak usage and activity when digital assets transactions are higher.
In addition, much of the software and interfaces Amber Premium uses are internally developed and proprietary technology. If Amber Premium
experiences problems with the functionality and effectiveness of its software, interfaces or platform, such as undetected errors or defects,
or are unable to maintain and continuously improve its information technology infrastructure to handle its business needs, its business,
financial condition, results of operations and prospects, as well as its reputation and brand, could be materially and adversely affected.
In addition, Amber Premium may face technical issues in connection with the integration of supported digital assets and the underlying
digital asset networks of these supported digital assets. For details, please see “—Risks Related to Cryptocurrencies and
Digital Assets—From time to time, Amber Premium may encounter technical issues in connection with the integration of supported
digital assets and changes or upgrades to the underlying digital asset networks of supported cryptocurrencies or protocols, and more
broadly, such changes or upgrades may be delayed or unsuccessful, any of which could materially and adversely affect Amber Premium’s
investments and trading strategies, Amber Premium’s financial condition and results of operations.”
Amber Premium has been in the past and may
continue to be subject to potential liability in connection with pending or threatened legal proceedings and other matters, which could
adversely affect its business or financial results.
From time to time, Amber Premium has become and
may in the future become a party to various legal or administrative proceedings arising in the ordinary course of its business, including
claims arising from its digital asset products and services. See “Business — Legal Proceedings.” Amber Premium may
also be subject to potential liability in connection with pending or threatened legal proceedings arising from breach of contract claims,
anti-competition claims and other matters.
These proceedings, investigations, claims and complaints
could be initiated or asserted under or on the basis of a variety of laws in different jurisdictions, including data protection and privacy
laws, consumer protection laws, labor and employment laws, anti-monopoly or competition laws, intellectual property laws, securities
laws, financial services laws, tort laws, contract laws and property laws. There is no guarantee that Amber Premium will be successful
in defending itself in legal and administrative actions or in asserting its rights under various laws. If Amber Premium fails to defend
itself in these actions, Amber Premium may be subject to restrictions, fines or penalties that will materially and adversely affect its
operations. Even if Amber Premium is successful in its attempt to defend itself in legal and regulatory actions or to assert its rights
under various laws and regulations, the process of communicating with relevant regulators, defending itself and enforcing its rights
against the various parties involved may be expensive, time-consuming and ultimately futile. These actions could expose it to negative
publicity, substantial monetary damages and legal defense costs, injunctive relief and criminal and civil fines and penalties, including
but not limited to suspension or revocation of licenses to conduct business.
Amber Premium’s business depends substantially
on the continuing efforts of its directors, executive officers, senior management, key employees and qualified personnel, and its operations
may be severely disrupted if Amber Premium loses their services.
Amber Premium’s future success depends substantially
on the continuing efforts of its directors, executive officers, senior management, and key employees and qualified personnel. In particular,
Amber Premium relies on the leadership, expertise, experience and vision of its directors and senior management team. If one or more
of its directors, executive officers, senior management, key employees or qualified personnel were unable or unwilling to continue their
services with it, whether due to resignation, accident, health condition, family considerations or any other reason, Amber Premium might
not be able to find their successors, in a timely manner, or at all due to talent shortage in the digital asset industry. The size and
scope of its digital wealth management business also require it to hire and retain a wide range of capable and experienced personnel
who can adapt to a dynamic, competitive and challenging business environment. Amber Premium will need to continue to attract and retain
experienced and capable personnel at all levels. Since the digital asset industry is characterized by high demand and intense competition
for talent, Amber Premium cannot assure you that Amber Premium will be able to attract or retain qualified management or other highly
skilled employees.
Amber Premium does not have key man insurance for
its directors, executive officers, senior management or other key employees. If any of its key employees terminate his or her services
or otherwise becomes unable to provide continuous services to it, its business, financial condition and results of operations may be
materially and adversely affected and Amber Premium may incur additional expenses to recruit, train and retain qualified personnel. Each
of its executive officers and key employees has entered into an employment agreement with a non-compete clause with it. However, these
agreements may be breached by the counterparties, and there may not be adequate and timely remedies available to it to compensate its
losses arising from the breach. Amber Premium cannot assure you that Amber Premium would be able to enforce these non-compete clauses.
If any of its executive officers or key employees joins a competitor or forms a competing company, Amber Premium may lose clients, know-hows
and key professionals and staff members.
Amber Premium may not be able to prevent others
from unauthorized use of its intellectual property and Amber Premium may be subject to intellectual property infringement claims, either
of which could harm its business and competitive position.
Amber Premium relies on a combination of patents,
trademarks, copyrights, trade secrets and confidentiality agreements to protect its proprietary rights. Amber Premium has invested significant
resources to develop these intellectual properties. However, any of its intellectual property rights could be challenged, invalidated
or circumvented, or such intellectual property may not be sufficient to provide it with competitive advantages. In addition, other parties
may misappropriate its intellectual property rights, which would cause it to suffer economic or reputational damage. Because of the rapid
pace of technological change, there can be no assurance that all of its proprietary technologies and similar intellectual property will
be patented in a timely or cost-effective manner, or at all. Furthermore, parts of its business rely on technologies developed or licensed
by other parties, or co-developed with other parties, including open source software, and Amber Premium may not be able to obtain or
continue to obtain licenses and technologies from these other parties on reasonable terms, or at all.
Meanwhile, its operations or any aspects of its
business could infringe upon or otherwise violate trademarks, copyrights, know-how, proprietary technologies or other intellectual property
rights held by other parties. Amber Premium may be from time to time in the future subject to legal proceedings and claims relating to
the intellectual property rights of others. In addition, other parties’ trademarks, copyrights, know-how, proprietary technologies
or other intellectual property rights may be infringed by its services or other aspects of its business without its awareness. Holders
of such intellectual property rights may seek to enforce such intellectual property rights against it in the jurisdictions where Amber
Premium operates. If any infringement claims are brought against it, Amber Premium may be forced to divert management’s time and
other resources from its business and operations to defend against these claims, regardless of their merits.
Any financial or economic crisis, or perceived
threat of such a crisis may materially and adversely affect Amber Premium’s business, prospects, financial condition and results
of operation.
Any prolonged slowdown in the global economy may
have a negative impact on Amber Premium’s business, financial condition and results of operations. In particular, general economic
factors and conditions in the United States or worldwide, may affect the digital asset industry in general. The global macroeconomic
environment is facing challenges. There is considerable uncertainty over the long-term effects of the expansionary monetary and fiscal
policies adopted by the central banks and financial authorities of some of the world’s leading economies, including the United
States. There have been concerns over the downturn in economic output caused by the COVID-19 outbreak. Any prolonged slowdown in economic
development might lead to tighter credit markets, increased market volatility, sudden drops in business and consumer confidence and dramatic
changes in business and consumer behaviors. These adverse economic effects could negatively affect the digital asset industry, resulting
in reduced digital assets transactions Amber Premium handles and as well as financial difficulty among clients, which would otherwise
materially and adversely affect its business results of operations and financial condition.
Amber Premium may be adversely affected by
natural disasters, pandemics, and other catastrophic events, and by man-made problems such as terrorism, that could disrupt its business
operations, and its business continuity and disaster recovery plans may not adequately protect it from a serious disaster.
Natural disasters or other catastrophic events may
also cause damage or disruption to Amber Premium’s operations, international commerce, and the global economy, and could have an
adverse effect on its business, operating results, and financial condition. Amber Premium’s business operations are subject to
interruption by natural disasters, fire, power shortages, and other events beyond its control. In addition, Amber Premium’s global
operations expose it to risks associated with public health crises, such as pandemics and epidemics, which could harm its business and
cause its operating results to suffer. For example, the COVID-19 pandemic and the related precautionary measures that Amber Premium adopted
have in the past resulted, and could in the future result, in difficulties or changes to its client support, or create operational or
other challenges, any of which could adversely impact its business and operating results. Further, acts of terrorism, labor activism
or unrest, and other geopolitical unrest, including ongoing regional conflicts around the world, could cause disruptions in its business
or the businesses of its partners or the economy as a whole. In the event of a natural disaster, including a major earthquake, blizzard,
or hurricane, or a catastrophic event such as a fire, power loss, or telecommunications failure, it may be unable to continue its operations
and may endure system interruptions, reputational harm, delays in development of its products and services, lengthy interruptions in
service, breaches of data security, and loss of critical data, all of which could have an adverse effect on its future operating results.
Additionally, all the aforementioned risks may be further increased if Amber Premium does not implement a disaster recovery plan or its
partners’ disaster recovery plans prove to be inadequate. To the extent natural disasters or other catastrophic events concurrently
impact data centers Amber Premium relies on in connection with private key restoration, clients will experience significant delays in
withdrawing funds, or in the extreme Amber Premium may suffer loss of client funds.
The nature of Amber Premium’s business
requires the application of complex financial accounting and tax rules, and there is limited guidance from accounting standard setting
bodies and taxing authorities. If financial accounting standards undergo significant changes or taxing authorities announce new tax rules,
Amber Premium’s operating results could be adversely affected.
The accounting rules and regulations that Amber
Premium must comply with are complex and subject to interpretation by the International Accounting Standards Board and various bodies
formed to promulgate and interpret appropriate accounting principles. A change in these principles or interpretations could have a significant
effect on Amber Premium’s reported financial results and may even affect the reporting of transactions completed before the announcement
or effectiveness of a change. In addition, there has been limited precedent for the financial accounting of digital assets and related
valuation and revenue recognition standards. As such, there remains significant uncertainty on how companies should account for digital
asset transactions, digital assets and related revenue. Furthermore, there has been limited guidance from taxing authorities on treatment
of digital assets and revenue therefrom. Uncertainties in or changes to regulatory or financial accounting standards could result in
the need to change Amber Premium’s accounting methods and restate its financial statements and impair its ability to provide timely
and accurate financial information, which could adversely affect its financial statements, result in a loss of investor confidence, and
more generally impact its business, operating results, and financial condition.
The obligation to disclose information publicly
may put Amber DWM at a disadvantage to its competitors that are private companies.
After consummation of the Merger, Amber DWM will
be a wholly owned subsidiary of ListCo, which is a publicly listed company in the United States. As a publicly listed company, ListCo
will be required to file periodic reports with the SEC upon the occurrence of matters that are material to itself and its shareholders.
In some cases, as one of the subsidiaries of ListCo, Amber DWM may need to disclose material agreements or results of financial operations
that it would not be required to disclose if ListCo was a private company. Amber DWM’s competitors may have access to this information,
which would otherwise be confidential. This may give such competitors advantages in competing with Amber DWM. Similarly, as the subsidiary
of a U.S.-listed public company, Amber DWM will be governed by U.S. laws which its non-publicly traded competitors are not required to
follow. To the extent compliance with U.S. laws increases Amber DWM’s expenses or decreases its competitiveness against such companies,
the consummation of the Merger could affect the results of operations of Amber DWM.
Amber Premium’s management team has
limited experience managing a public company.
After consummation of the Merger, ListCo will be
managed by the management team of Amber Premium’s. Most members of Amber Premium’s management team have not previously served
as management of a publicly traded company and may not have experience complying with the increasingly complex laws pertaining to public
companies. Amber Premium’s management team may not successfully or efficiently manage ListCo which is a public company and subject
to significant regulatory oversight and reporting obligations under the federal securities laws as well as the continuous scrutiny of
securities analysts and investors. These new obligations and constituents will require significant attention from Amber Premium’s
management and could divert their attention away from the day-to-day management of its business, which could adversely affect the business
and financial performance of Amber Premium, and after consummation of the Merger, of ListCo.
Risks Related to Cryptocurrencies and Digital
Assets
The continuing development and acceptance
of digital assets and distributed ledger technology are subject to a variety of risks.
Cryptocurrencies, such as Bitcoin, and the other
types of digital assets in which Amber Premium invests and trades involve a new and rapidly evolving industry of which blockchain technology
is a prominent, but not unique, part. The growth of the digital asset industry in general, and distributed ledger technology that supports
digital assets, is subject to a high degree of uncertainty. The factors affecting the further development of the digital asset industry,
as well as distributed ledger technology, include:
| · | continued
worldwide growth in the adoption and use of digital assets; |
| · | the
limited operating histories of many cryptocurrency networks, which have not been validated
in production and are still in the process of developing and making significant decisions
that will affect the design, supply, issuance, functionality, and governance of their respective
digital assets and underlying blockchain networks; |
| · | government
and quasi-government regulation of digital assets and their use, or restrictions on or regulation
of access to and operation of applicable distributed ledger technology or systems that facilitate
their issuance and secondary trading; |
| · | the
taxation, and tax-related reporting, of transactions involving digital assets by the United
States and other jurisdictions; |
| · | the
maintenance and development of the open-source software protocols of certain blockchain networks
used to support digital assets; |
| · | advancements
in technology, including computing power, that may adversely affect the respective cryptocurrency
networks, render existing distributed ledger technology obsolete, inefficient, or fail to
remediate or introduce new bugs and security risks; |
| · | the
use of the networks supporting digital assets for developing smart contracts and distributed
applications; |
| · | development
of new technologies for mining and staking and the rewards and transaction fees for miners
or validators on digital asset networks; |
| · | changes
in consumer demographics and public tastes and preferences; |
| · | the
availability and popularity of other forms or methods of buying and selling goods and services,
including new means of using fiat currencies; and |
| · | general
economic conditions and the regulatory environment relating to digital assets. |
Many digital asset networks, including Bitcoin and
Ethereum, operate on open-source protocols maintained by groups of core developers. The open-source structure of these network protocols
means that certain core developers and other contributors may not be compensated, either directly or indirectly, for their contributions
in maintaining and developing the network protocol. A failure to properly monitor and upgrade network protocol could damage digital asset
networks. As these network protocols are not sold and their use does not generate revenues for development teams, core developers may
not be directly compensated for maintaining and updating the network protocols. Consequently, developers may lack a financial incentive
to maintain or develop the network, and the core developers may lack the resources to adequately address emerging issues with the networks.
There can be no guarantee that developer support will continue or be sufficient in the future. To the extent that material issues arise
with certain digital asset network protocols and the core developers and open-source contributors are unable or unwilling to address
the issues adequately or in a timely manner, such digital asset networks, and any corresponding digital assets held may be adversely
affected.
Digital assets represent a new and
rapidly evolving industry, and Amber Premium’s business operations and financial performance have in the past been, and may in the
future be impacted by the acceptance of Bitcoin and other digital assets.
Digital assets built on blockchain technology were
only introduced in 2008 and remain in the early stages of development. The Bitcoin network was first launched in 2009 and Bitcoins were
the first cryptographic digital assets created to gain global adoption and critical mass. Cryptographic and algorithmic protocols governing
the issuance of digital assets represent a new and rapidly evolving industry that is subject to a variety of factors that are difficult
to evaluate. Because Amber Premium’s results of operations may be closely correlated with the acceptance and perception of Bitcoin
and/or other digital assets, the realization of one or more of the following risks could materially adversely affect Amber Premium’s
business operations and financial performance:
| · | Bitcoins
have only recently become selectively accepted as a means of payment by some retail and commercial
outlets, and use of Bitcoins by consumers to pay such retail and commercial outlets remains
limited. Banks and other established financial institutions may refuse to process funds for
Bitcoin transactions; process wire transfers to or from digital asset trading platforms,
Bitcoin-related companies or service providers; or maintain accounts for persons or entities
transacting in Bitcoin. As a result, the prices of Bitcoins are to some extent still significantly
impacted by speculators and miners, thus contributing to price volatility that makes retailers
less likely to accept it as a form of payment in the future. |
| · | Banks
may not provide banking services, or may cut off banking services, to businesses that provide
digital asset-related services or that accept digital assets as payment, which could dampen
liquidity in the market and damage the public perception of digital assets generally or any
one digital asset in particular, such as Bitcoin, and their or its utility as a payment system,
which could decrease the price of digital assets generally or individually. |
| · | Certain
privacy-preserving features have been or are expected to be introduced to some digital asset
networks and digital asset trading platforms or businesses that facilitate transactions in
digital assets, including Bitcoin may be at an increased risk of having banking services
cut off if there is a concern that these features interfere with the performance of anti-money
laundering duties and economic sanctions checks. |
| · | Users,
developers and miners may otherwise switch to or adopt certain digital assets at the expense
of their engagement with other digital asset networks, which may negatively impact those
networks, including the Bitcoin network. |
| · | In
August 2017, the Bitcoin network underwent a hard fork that resulted in the creation
of a new digital asset network called Bitcoin Cash. This hard fork was contentious, and as
a result some users of the Bitcoin Cash network may harbor ill will toward the Bitcoin network.
Any future hard fork could be similarly contentious and some users may attempt to negatively
impact the use or adoption of the Bitcoin network or other digital asset networks, as may
those involved in contentious hard forks of other digital assets. |
Digital assets are a new asset class and represent
a technological innovation and they are subject to a high degree of uncertainty. The adoption of digital assets will require growth in
usage and in the blockchain technology generally for various applications. Adoption of digital assets will also require greater regulatory
clarity. A lack of expansion in use of digital assets and blockchain technologies would adversely affect Amber Premium’s financial
performance. In addition, there is no assurance that digital assets generally will maintain their value over the long term. The value
of digital assets is subject to risks related to Amber Premium’s use. If growth in the use of digital assets generally occurs in
the near or medium term, there is no assurance that such use will continue to grow over the long term. A contraction in use of digital
assets may result in increased volatility or a reduction in digital asset prices, which would materially and adversely affect Amber Premium’s
business, operating results, and financial condition.
The prices of digital assets are extraordinarily
volatile.
Values of digital assets have historically been
highly volatile. The value of cryptocurrencies is based in part on market adoption and future expectations, which may or may not be realized.
Fluctuations in the price of various cryptocurrencies may cause uncertainty in the market and could negatively impact trading volumes
of cryptocurrencies, which would adversely affect the success of its business, financial condition and results of operations. A significant
portion of demand for digital assets is generated by speculators and investors seeking to profit from the short- or long-term holding
of these assets. Speculation regarding future appreciation in the value of a digital asset may inflate and make more volatile the price
of that digital asset.
Several factors may affect the price of digital
assets, particularly cryptocurrencies, including, but not limited to:
| · | Global
cryptocurrency supply and demand, which can be influenced by the growth or decline of retail
merchants’ and commercial businesses’ acceptance of cryptocurrencies as payment
for goods and services, the security of online digital asset trading platforms and digital
wallets that hold cryptocurrencies, the perception that the use and holding of digital currencies
is safe and secure and regulatory restrictions on their use. |
| · | The
development and launch timeline of new digital asset networks, and forthcoming upgrades like
proto-danksharding designed to improve network scalability. |
| · | Changes
in the software, software requirements or hardware requirements underlying a blockchain network,
such as a fork. Forks in the future are likely to occur and there is no assurance that such
a fork would not result in a sustained decline in the market price of cryptocurrencies. |
| · | Changes
in the rights, obligations, incentives or rewards for the various participants in a blockchain
network. For digital assets that rely on miners or validators, sophisticated miner groups
may become unduly influential over time if system or bandwidth requirements become too high.
Where a single personality or entity exerts an outsize influence, an adverse event impacting
that individual or entity, such as an insolvency proceeding, could result in a reduction
in the price of a digital assets. |
| · | Concentration
of ownership in certain digital assets by an individual or small group of holders or those
within one or a small number of jurisdictions. Large sales or distributions by such holders
could have an adverse effect on the market price of such digital assets. |
| · | The
maintenance and development of the software protocol of cryptocurrencies. |
| · | Digital
asset trading platforms’ deposit and withdrawal policies and practices, liquidity on
such trading platforms and interruptions in service from or failures of such trading platforms. |
| · | Regulatory
measures, if any, that affect the use and value of digital assets. |
| · | The
taxation, and tax-related reporting, of transactions involving digital assets by the United
States and other jurisdictions. |
| · | Competition
for and among various cryptocurrencies that exist and market preferences and expectations
with respect to adoption of individual currencies. |
| · | Actual
or perceived manipulation of the markets for cryptocurrencies. |
| · | Actual
or perceived threats that cryptocurrencies and related activities such as mining have adverse
effects on the environment or are tied to illegal activities, or on the other hand, the correlation
of the price of certain digital assets to the price of Bitcoin in particular. |
| · | Social
media posts and other public communications by high-profile individuals relating to specific
cryptocurrencies, or listing or other business decisions by cryptocurrency companies relating
to specific cryptocurrencies. |
| · | Investors’
expectations with respect to the rate of inflation, in the economy, monetary policies of
governments, trade restrictions and currency devaluations and revaluations. |
| · | Investors’
overall confidence in the digital asset ecosystem and the safety and reliability of digital
asset trading platforms. |
| · | Activities
of stablecoin issuers, the ability of stablecoin issuers to substitute underlying assets
to back the stablecoins or the decline in value of those underlying assets and future actions
relating to the regulatory or accounting treatment of stablecoins. |
Additionally, some purportedly decentralized digital
assets may be more centralized than widely believed, or may become more centralized over time, increasing the risk that an adverse event
impacting an individual personality or entity could result in a reduction in the price of digital assets. While digital assets networks
are typically decentralized and do not need to rely on any single government or institution to create, transmit and determine value,
in reality a single personality or entity may have the ability to exert centralized authority over a network.
There are also volatility risks related to stablecoins,
which are designed to have a relatively stable price that aligns with the price of an underlying physical asset, most commonly a fiat
currency, such as U.S. dollars, or an exchange-traded commodity. The stability of a stablecoin results from the underlying assets backing
the stablecoin that are held by the stablecoin’s issuer in segregated or omnibus accounts, among other factors such as the ability
of a holder to redeem the stablecoin from its issuer for the underlying asset. The issuers of certain stablecoins currently retain broad
discretion to determine the composition and amounts of assets held in the issuers’ accounts backing those stablecoins, and to substitute
assets other than the fiat currency that is initially deposited. The composition of backing assets varies considerably across popular
stablecoins, with some stablecoins backed entirely by off-chain assets including cash or short-term, highly liquid assets, and others
backed by assets significantly less liquid than cash or cash equivalents. For example, Circle, which issues USDC, reports that it holds
cash and short-term cash equivalents to back its USDC stablecoins. Meanwhile, Tether, which issues USDT, publishes a report on a quarterly
basis which includes a breakdown of the consolidated total assets comprising its reserves backing USDT as of a given reporting date,
and according to such reports, its reserves have included commercial paper and certificates of deposit, cash and bank deposits, reverse
repo notes, money market funds, treasury bills, secured loans, corporate bonds, funds and precious metals, and other investments (including
digital tokens), and Tether reserves the right to redeem USDT by making in-kind redemptions of any assets held in its reserves. As a
result of the discretion afforded to certain stablecoin issuers to determine the composition and amounts of assets held in the issuers’
accounts backing those stablecoins, there is a risk that an issuer may be unable to liquidate enough backing assets if it were to face
mass redemptions of its stablecoin, which could cause the price of the stablecoin to deviate from the price of the underlying fiat currency
or other asset with which the stablecoin is designed to align in price. In extreme cases, such as a request to immediately redeem all
or substantially all of a particular stablecoin in circulation, even stablecoins backed by reserves comprised primarily of cash and cash
equivalents may be subject to instability or an inability of the stablecoin issuer to meet all redemption requests, as the market for
short-dated U.S. government obligations might not be sufficiently price stable. Market participants have increasingly shown concern about
the actual underlying liquidity and reserves for dollar stablecoins, such as USDT and USDC. For example, according to reports, Circle
had more than US$3 billion of its USDC reserve funds temporarily locked in Silicon Valley Bank when such bank was placed into FDIC receivership
in March 2023. Although these funds were ultimately made available, concerns related to Circle’s access to these funds caused
USDC to temporarily fall below its US$1.00 peg, and the total market capitalization of USDC decreased following this temporary depegging.
If a stablecoin issuer were to fail to honor its redemption obligations, this could undermine public confidence in stablecoins and in
digital assets more broadly, which could have a widespread impact on the cryptoeconomy, causing the prices of other stablecoins and digital
assets to become more volatile.
Because stablecoins purport to be backed by underlying
reserve assets, a fundamental issue in the event of the bankruptcy or insolvency of the issuer of a given stablecoin is which party possesses
beneficial ownership of the underlying reserve assets: the holder of the stablecoin, or the issuer. If a particular stablecoin were structured
in a manner that entitles its holder only to a contractual right to payment from the issuer (even if such payments are to be derived
from the underlying assets), then the assets underlying the stablecoins may be considered to be the property of the issuer’s bankruptcy
estate, such that all of the issuer’s creditors would be entitled to their pro rata share of such assets, with the stablecoin holder
being treated as an unsecured creditor of the issuer. In such an event, if the issuer were to have insufficient funds or assets to satisfy
the claims of its creditors, then the holder of a stablecoin would likely receive only a partial recovery, and not the full purported
value of its stablecoin holdings. Conversely, if a particular stablecoin were structured in a manner that entitles its holder to absolute
beneficial ownership of the underlying reserve assets, whereby the issuer holds bare legal title to the underlying assets but has no
beneficial interest or property rights in such assets, then the holders would likely have a stronger claim on the underlying assets in
the event of a bankruptcy or insolvency of the issuer. However, due to the novelty of stablecoins, courts have not yet considered the
treatment of underlying reserve assets in the context of a bankruptcy or insolvency of a stablecoin issuer, and there can be no certainty
as to a court’s determination in such circumstances.
Some digital assets may be more difficult to value
than other investments because such assets may not have a liquid or transparent trading market. For example, some digital asset trading
platforms have created their own digital assets and used them in opaque and potentially fraudulent manners to facilitate transactions
and trading relationships. In certain circumstances, such digital assets are thinly traded, making it difficult to ascertain the true
value of such assets. Amber Premium may not be able to sell a digital asset promptly or at a reasonable time or price. Although there
may be an institutional market for certain digital assets, it is not possible to predict exactly how the market for such assets will
develop or whether it will continue to exist. A digital asset that was liquid at the time of purchase may subsequently become illiquid,
and its value may decline as a result. In addition, transaction costs are generally higher for digital assets.
There is no assurance that cryptocurrencies will
maintain their long-term value in terms of purchasing power in the future, or that acceptance of cryptocurrency payments by mainstream
retail merchants and commercial businesses will continue to grow. Only a limited number of cryptocurrencies, including Bitcoin, have
become sometimes accepted as a means of payment for some goods and services, and use of cryptocurrencies by consumers to pay at retail
and commercial outlets remains very limited. In part, this is because cryptocurrencies face significant scaling obstacles that can lead
to high fees or slow transaction settlement times and attempts to increase the volume of transactions may not be effective. A lack of
expansion by cryptocurrencies into retail and commercial markets, or a contraction of such limited use as has developed to date, may
result in increased volatility or a reduction in the value of that cryptocurrency or cryptocurrencies generally, which has in the past,
and could materially and adversely affect Amber Premium’s business, operating results, and financial condition.
Due to a lack of familiarity and some negative
publicity associated with digital asset-related companies, existing and potential clients, counterparties and regulators may lose confidence
in digital asset management companies.
Since the inception of the cryptoeconomy, numerous
digital asset-related companies have been sued, investigated, or shut down due to fraud, manipulative practices, business failure, and
security breaches. In many of these instances, clients of these companies were not compensated or made whole for their losses. For example,
in February 2021, Bitfinex settled a long-running legal dispute with the State of New York related to Bitfinex’s alleged misuse
of over US$800 million of client assets and, in October 2023, hackers were reported to have stolen US$570 million from the BNB Smart
Chain, a blockchain linked with Binance, one of the world’s largest digital asset trading platforms. Further, in 2022 and 2023,
each of Celsius Networks, Voyager Digital, Three Arrows Capital, FTX and Genesis declared bankruptcy. In particular, in November 2022,
FTX—which was at the time one of the world’s largest and most popular digital asset trading platforms—became insolvent,
and it was revealed that the platform had been misusing client assets, resulting in a loss of confidence in participants of the cryptoeconomy
and negative publicity surrounding digital assets more broadly.
Further, in June 2023, the SEC initiated lawsuits
against Coinbase and Binance alleging, among other things, that such firms were operating as unregistered securities exchanges in the
United States, and identifying a number of digital assets that the SEC alleges to be unregistered securities. In addition, in November 2023,
the SEC filed a complaint against Kraken and brought similar charges, including an allegation that Kraken operated as an unregistered
securities exchange, brokerage and clearing agency. In November 2023, Binance pleaded guilty to the U.S. Justice Department’s
investigations into violations relating to the BSA, failure to register as a money transmitting business and the International Emergency
Economic Powers Act, and the founder of Binance pleaded guilty to failing to maintain an effective AML program in violation of the BSA.
As part of the settlement, Binance separately reached resolutions with the CFTC, FinCEN and OFAC; however, its case against the SEC’s
allegations remains ongoing, and Coinbase and Kraken have also denied the SEC’s allegations. The outcome of these lawsuits, their
effect on the broader cryptoeconomy and the reputational impact on industry participants, remain uncertain.
In addition, there have been reports that a significant
amount of trading volume on digital asset trading platforms is fabricated and false in nature, with a specific focus on unregulated platforms
located outside the United States. Such reports may indicate that the market for digital asset trading platform activities is significantly
smaller than otherwise understood.
Negative perception, a lack of stability and standardized
regulation in the cryptoeconomy, and the closure or temporary shutdown of digital asset trading platforms due to fraud, business failure,
hackers or malware, or government mandated regulation, and associated losses suffered by clients may reduce confidence in the cryptoeconomy
and result in greater volatility of the prices of assets, including significant depreciation in value. Any of these events could have
an adverse impact on Amber Premium’s reputation, business, operating results, and financial condition.
Many digital asset transactions are irrevocable
and stolen or incorrectly transferred digital assets may be irretrievable. As a result, any incorrectly executed digital asset transactions
could adversely affect Amber Premium’s business operations and financial performance.
Digital asset transactions are typically not reversible
without the consent and active participation of the recipient of the transaction. Once a transaction has been verified and recorded in
a block that is added to the blockchain, an incorrect transfer or theft of a digital asset generally will not be reversible and Amber
Premium may not be capable of seeking compensation for any such transfer or theft. Although transfers of digital assets that Amber Premium
holds and/or that are custodied on behalf of its clients will regularly be made to or from Amber Premium’s custody accounts, it
is possible that, through computer or human error, or through theft or criminal action, such digital assets could be transferred from
Amber Premium’s custody accounts in incorrect amounts or to unauthorized third parties, or to uncontrolled accounts.
Such events have occurred in connection with digital
assets in the past. For example, in September 2014, the digital asset trading platform Huobi announced that it had sent approximately
900 Bitcoins and 8,000 Litecoins (worth approximately US$400,000 at the prevailing market prices at the time) to the wrong clients.
To the extent that Amber Premium is unable to seek
a corrective transaction with such third party or is incapable of identifying the third party which has received such digital assets
through error or theft, Amber Premium will be unable to revert or otherwise recover incorrectly transferred digital assets. Amber Premium
will also be unable to convert or recover the digital assets transferred to uncontrolled accounts. To the extent that Amber Premium is
unable to seek redress for such error or theft, such loss could have a material adverse effect on Amber Premium’s reputation, business,
operating results, and financial condition.
Political or economic crises may motivate
large-scale sales of digital assets, which would result in a reduction in values and materially and adversely affect it.
Cryptocurrencies, as an alternative to fiat currencies
that are backed by central governments, are subject to supply and demand forces based upon the desirability of an alternative, decentralized
means of buying and selling goods and services, and it is unclear how such supply and demand will be impacted by geopolitical events.
For example, political or economic crises could motivate large-scale acquisitions or sales of digital assets either globally, regionally
or locally. Large-scale sales of certain digital assets would result in a reduction in their value and could materially and adversely
affect Amber Premium’s business, operating results, and financial condition.
The value of cryptocurrencies and other digital
assets may be subject to momentum pricing risk.
Momentum pricing typically is associated with growth
stocks and other assets whose valuation, as determined by the investing public, accounts for anticipated future appreciation in value.
Cryptocurrency and other digital asset market prices are determined primarily using data from various digital asset trading platforms,
over-the-counter markets, and derivative platforms. Momentum pricing may have resulted, and may continue to result, in speculation regarding
future appreciation in the value of cryptocurrencies and other digital assets, inflating and making their market prices more volatile,
and such effects may be material and adverse. As a result, cryptocurrencies and other digital assets may be more likely to fluctuate
in value due to changing investor confidence in future appreciation (or depreciation) in their market prices, which could adversely materially
affect the value of Amber Premium’s cryptocurrency and other digital asset inventory.
Blockchain networks, digital assets and the
digital asset trading platforms on which these assets are traded are dependent on internet and other blockchain infrastructure and susceptible
to system failures, security risks and rapid technological change.
The success of cryptocurrency-based blockchain and
other digital asset platforms will depend on the continued development of a stable public infrastructure, with the necessary speed, data
capacity and security, and the timely development of complementary products such as high-speed modems for providing reliable internet
access and services. Digital assets have experienced, and are expected to continue to experience, significant growth in the number of
users and amount of content. Blockchains will continue to be increasingly interconnected with other blockchains and real-world applications.
As services and applications continue to be built on top of blockchains, they will place increased reliance on third-party infrastructure
providers, including in connection with cross-chain bridges and messaging, liquidity providers, wallets, data feeds and oracles. Reliance
on any of these third-parties introduces additional risks and points of failure. There is no assurance that the relevant digital asset
infrastructure will continue to be able to support the demands placed on it by this continued growth or that the performance or reliability
of the technology will not be adversely affected by this continued growth. There is also no assurance that the infrastructure or complementary
products or services necessary to make digital assets a viable product for their intended use will be developed in a timely manner, or
that such development will not result in the requirement of incurring substantial costs to adapt to changing technologies. The failure
of these technologies or platforms or their development could materially and adversely affect its investment and trading strategies,
the value of its assets and the value of any investment in it. Any number of technical changes, software upgrades, soft or hard forks,
cybersecurity incidents or other changes to the underlying blockchain network may occur from time to time, causing incompatibility, technical
issues, disruptions or security weaknesses to its systems. If Amber Premium is unable to identify, troubleshoot and resolve any such
issues successfully, Amber Premium may no longer be able to support such cryptocurrency, its clients’ assets may be frozen or lost,
the security of its hot or cold wallets may be compromised and its systems and technical infrastructure may be affected, all of which
could adversely impact the success of Amber Premium’s business, financial condition and results of operations. Cryptocurrencies
are created, issued, transmitted, and stored according to protocols run by computers in the cryptocurrency network. It is possible these
protocols have undiscovered flaws or could be subject to network scale attacks which could result in losses to it. Advancements in quantum
computing could break the cryptographic rules of protocols which support certain of Amber Premium’s assets.
From time to time, Amber Premium may encounter
technical issues in connection with the integration of supported digital assets and changes or upgrades to the underlying digital asset
networks of supported cryptocurrencies or protocols, and more broadly, such changes or upgrades may be delayed or unsuccessful, any of
which could materially and adversely affect Amber Premium’s investments and trading strategies, Amber Premium’s financial
condition and results of operations.
In order to support any digital asset, a variety
of front and back-end technical and development work is required to implement in Amber Premium’s wallet, custody, trading, and
other solutions for its clients, and to integrate such supported digital asset with its existing technical infrastructure. For certain
digital assets, a significant amount of development work is required and there is no guarantee that Amber Premium will be able to support
successfully any existing or future digital asset. In addition, such integration may introduce software errors or weaknesses into Amber
Premium’s products and existing infrastructure. Even if such integration is initially successful, any number of technical changes,
software upgrades, soft or hard forks, cybersecurity incidents, or other changes to the underlying blockchain network may occur from
time to time, causing incompatibility, technical issues, disruptions, or security weaknesses to Amber Premium’s products and existing
infrastructure. If Amber Premium is unable to identify, troubleshoot and resolve any such issues successfully, it may no longer be able
to support such digital asset, its clients’ assets may be frozen or lost, the security of its hot, warm, or cold wallets may be
compromised, and its technical infrastructure may be affected, all of which could adversely impact its business.
Rising adoption of blockchain networks leads to
network congestion, as space on decentralized ledgers is inherently scarce. From a design standpoint, striking a balance between security,
decentralization, and scalability (or transactional throughput) is subject of great debate among innovators and has led to the creation
of a variety of networks that make different trade-offs to achieve different outcomes. If network congestion rises to the point where
transaction fees make it prohibitively expensive for average users to operate on the network, those users may stop using the network,
and application developers may seek to build on other networks where users can afford to transact.
Any number of anticipated or unforeseen technical
changes or software upgrades, soft or hard forks, cybersecurity incidents or other changes to the underlying blockchain network may cause
incompatibility, technical issues, disruptions or security weaknesses to Amber Premium’s systems. If Amber Premium or its third-party
providers are unable to identify, troubleshoot and resolve any such issues successfully, Amber Premium may no longer be able to support
such cryptocurrency, its clients’ assets may be frozen or lost, and Amber Premium’s technical infrastructure may be affected,
all of which could adversely impact the success of Amber Premium’s business, financial condition and results of operations.
Changes in the governance of a digital asset
network may not receive sufficient support from users and miners, which may negatively affect that digital asset network’s ability
to grow and respond to challenges.
The governance of decentralized networks, such as
the Bitcoin and Ethereum networks, is by voluntary consensus and open competition. As a result, there may be a lack of consensus or clarity
on the governance of any particular decentralized digital asset network, which may stymie such network’s utility and ability to
grow and face challenges. The foregoing notwithstanding, the protocols for some decentralized networks, such as the Bitcoin network,
are informally managed by a group of core developers that propose amendments to the relevant network’s source code. Core developers’
roles evolve over time, largely based on self-determined participation. If a significant majority of users and miners adopt amendments
to a decentralized network based on the proposals of such core developers, such network will be subject to new protocols that may adversely
affect the value of the relevant digital asset. As a result of the foregoing, Amber Premium may be difficult to find solutions or marshal
sufficient effort to overcome any future problems, especially long-term problems, on digital asset networks.
A temporary or permanent “fork”
could adversely affect Amber Premium’s business operations and financial conditions.
Many public blockchain networks, including the Bitcoin
network, operate using open-source protocols, meaning that any user can download the software, modify it and then propose that the users
and miners of Bitcoin, for example, adopt the modification. The development team for a network might propose and implement amendments
to a network’s source code through software upgrades altering the original protocol, including fundamental ideas such as the irreversibility
of transactions and limitations on the validation of blockchain software distributed ledgers. Such changes to original protocols and
software could materially and adversely affect Amber Premium’s business, operating results, and financial condition.
When a modification is introduced and a substantial
majority of users and miners consent to the modification, the change is implemented and the network remains uninterrupted. However, if
less than a substantial majority of users and miners consent to the proposed modification, and the modification is not compatible with
the software prior to its modification, the consequence would be what is known as a “hard fork” of the Bitcoin network, with
one group running the pre-modified software and the other running the modified software. The effect of such a fork would be the existence
of two versions of Bitcoin running in parallel, yet lacking interchangeability. Both Bitcoin and Ethereum networks have experienced “forks”
in recent years. A fork can lead to a disruption of networks and its information technology systems, which can further lead to temporary
or even permanent loss of client assets. For example, in August 2017, Bitcoin “forked” into Bitcoin and a new digital
asset, Bitcoin Cash, as a result of a several-year dispute over how to increase the rate of transactions that the Bitcoin network can
process.
Forks may also occur as a network community’s
response to a significant security breach. For example, in June 2016, an anonymous hacker exploited a smart contract running on
the Ethereum network to syphon approximately US$60 million of ETH held by the DAO, a distributed autonomous organization, into a segregated
account. In response to the hack, most participants in the Ethereum community elected to adopt a “fork” that effectively
reversed the hack. However, a minority of users continued to develop the original blockchain, now referred to as “Ethereum Classic”
with the digital asset on that blockchain now referred to as Ether Classic, or ETC. ETC now trades on several digital asset trading platforms.
A fork may also occur as a result of an unintentional
or unanticipated software flaw in the various versions of otherwise compatible software that users run. Such a fork could lead to users
and miners abandoning the digital asset with the flawed software. It is possible, however, that a substantial number of users and miners
could adopt an incompatible version of the digital asset while resisting community-led efforts to merge the two chains. This could result
in a permanent fork, as in the case of Ether and Ether Classic.
In addition, many developers have previously initiated
hard forks in the Bitcoin blockchain to launch new digital assets, such as Bitcoin Cash, Bitcoin Gold, Bitcoin Silver and Bitcoin Diamond.
Later, the Bitcoin Cash blockchain was again forked to launch a new digital asset, Bitcoin Satoshi’s Vision. To the extent such
digital assets compete with a digital asset held by Amber Premium or its clients, such competition could impact demand for such digital
asset and could adversely impact Amber Premium’s business operations and financial condition. Furthermore, a hard fork can lead
to new security concerns. For example, when the Ethereum and Ethereum Classic networks split in July 2016, replay attacks, in which
transactions from one network were rebroadcast to nefarious effect on the other network, plagued Ethereum trading platforms through at
least October 2016. An Ethereum trading platform announced in July 2016 that it had lost 40,000 Ether Classic, worth about
US$100,000 at that time, as a result of replay attacks. Another possible result of a hard fork is an inherent decrease in the level of
security due to significant amounts of mining power remaining on one network or migrating instead to the new forked network. After a
hard fork, it may become easier for an individual miner or mining pool’s hashing power to exceed 50% of the processing power of
the digital asset network that retained or attracted less mining power, thereby making digital assets that rely on proof-of-work more
susceptible to attack.
A hard fork may adversely affect the price of the
digital asset at the time of announcement or adoption. For example, the announcement of a hard fork could lead to increased demand for
the pre-fork digital asset, in anticipation that ownership of the pre-fork digital asset would entitle holders to a new digital asset
following the fork. The increased demand for the pre-fork digital asset may cause the price of the digital asset to rise. After the hard
fork, it is possible the aggregate price of the two versions of the digital asset running in parallel would be less than the price of
the digital asset immediately prior to the fork.
The Ethereum network is in the process of implementing
software upgrades and other changes to its protocol. For example, in September 2022, the Ethereum network activated the long-awaited
“Merge” upgrade. The Merge effectively swapped Ethereum’s consensus mechanism away from proof-of-work to proof-of-stake.
A digital asset network’s consensus mechanism is a material aspect of its source code, and any failure to properly implement such
a change could have a material adverse effect on the value of digital assets that rely on the Ethereum network, including some of which
Amber Premium or its clients hold. Although the Merge appears to be successful thus far, it is possible that the Merge introduced a currently
undiscovered error or vulnerability. It is expected that further developments and forks for the Ethereum network are forthcoming.
Any future forks could adversely affect Amber Premium’s
business operations and financial conditions.
If a malicious actor or botnet obtains control
of more than 50% of the processing power on a digital asset network, or otherwise obtains control over a digital asset network through
its influence over core developers or otherwise, such actor or botnet could manipulate the blockchain of such digital asset to adversely
affect its ability to operate.
If a malicious actor or botnet (a volunteer or hacked
collection of computers controlled by networked software coordinating the actions of the computers) obtains a majority of hash rate on
a proof-of-work system, or otherwise controls a sizeable portion of supply in a proof-of-stake system, it can maliciously disrupt the
blockchain, either by halting functionality, censoring transactions, or even double-spending coins. If such an actor or botnet obtains
a majority of the processing power dedicated to mining on a particular digital asset network, it may be able to alter the relevant blockchain
on which transactions in that digital asset rely by constructing fraudulent blocks or preventing certain transactions from completing
in a timely manner, or at all. The malicious actor or botnet could also control, exclude or modify the ordering of transactions. Although
the malicious actor or botnet would not be able to generate new tokens or transactions using such control, it could “double-spend”
its own tokens (i.e., spend the same tokens in more than one transaction) and prevent the confirmation of other users’ transactions
for so long as it maintained control. To the extent that such malicious actor or botnet did not yield its control of the processing power
on the relevant digital asset network or the digital asset community did not reject the fraudulent blocks as malicious, reversing any
changes made to the relevant blockchain may not be possible. Further, a malicious actor or botnet could create a flood of transactions
in order to slow down the relevant digital asset network.
For example, in August 2020, the Ethereum Classic
Network was the target of two double-spend attacks by an unknown actor or actors that gained more than 50% of the processing power of
the Ethereum Classic Network. The attack resulted in reorganizations of the Ethereum Classic Blockchain that allowed the attacker or
attackers to reverse previously recorded transactions in excess of over US$5.0 million and US$1.0 million.
Further, a malicious actor or botnet could create
a flood of transactions in order to slow down the relevant digital asset network. For example, on June 2, 2018, the Horizen network
was the target of a double-spend attack by an unknown actor that gained more than 50% of the processing power of the Horizen network.
The attack was the result of delayed submission of blocks to the Horizen network. The core developers of Zen have since begun to implement
mitigation procedures to significantly increase the difficulty of attacks of this nature by introducing a penalty for delayed block submissions.
The crossing of the 50% threshold indicates a greater
risk that a single mining pool or small group of mining pools could exert authority over the validation of digital asset transactions,
and this risk is heightened if over 50% of the processing power on the network falls within the jurisdiction of a single governmental
authority. To the extent that such events occur on the network of a digital asset that Amber Premium or its clients hold, if the network
participants, including any core developers and administrators of mining pools, do not ensure greater decentralization of mining processing
power of such network, the feasibility of a malicious actor obtaining control of the processing power on such network will increase,
which may adversely affect Amber Premium’s business.
A malicious actor may also obtain control over the
Bitcoin network through its influence over core developers by gaining direct control over a core developer or an otherwise influential
programmer. To the extent that the Bitcoin ecosystem does not grow, the possibility that a malicious actor may be able to obtain control
of the processing power on the Bitcoin network in this manner will remain heightened.
Any of the above events could materially and adversely
affect Amber Premium’s business, operating results, and financial condition.
The theft, loss, or destruction of private
keys required to access any digital assets held in custody for Amber Premium’s own account or for its clients may be irreversible.
If Amber Premium is unable to access its private keys or if it experiences a hack or other data loss relating to its ability to access
any digital assets, it could cause regulatory scrutiny, reputational harm, and other losses.
Digital assets are generally controllable only by
the possessor of the unique private key relating to the digital wallet in which the digital assets are held. While blockchain protocols
typically require public addresses to be published when used in a transaction, private keys must be safeguarded and kept private in order
to prevent a third party from accessing the digital assets held in such a wallet. To the extent that any of the private keys relating
to Amber Premium’s wallets containing digital assets held for its own account or for its clients is lost, destroyed, or otherwise
compromised or unavailable, and no backup of the private key is accessible, Amber Premium will be unable to access the digital assets
held in the related wallet. Further, Amber Premium cannot provide assurance that its wallets will not be hacked or compromised. Digital
assets and blockchain technologies have been, and may in the future be, subject to security breaches, hacking, or other malicious activities.
Any loss of private keys relating to, or hack or other compromise of, digital wallets used to store Amber Premium’s clients’
digital assets could adversely affect Amber Premium’s clients’ ability to access or sell their digital assets, require it
to reimburse its clients for their losses, and subject Amber Premium to significant financial losses in addition to losing clients trust
in it and its products. As such, any loss of private keys due to a hack, employee or service provider misconduct or error, or other compromise
by third parties could hurt Amber Premium’s brand and reputation, result in significant losses, and adversely impact its business.
The total value of digital assets in Amber Premium’s possession and control is significantly greater than the total value of insurance
coverage that would compensate Amber Premium in the event of theft or other loss of funds, which could cause Amber Premium’s business,
operating results, and financial condition to be adversely impacted in the event of such uninsured loss.
Adverse developments affecting financial institutions
could adversely affect Amber Premium’s industry and business.
Adverse developments that affect financial institutions,
such as events involving liquidity that are rumored or actual, have in the past and may in the future lead to bank failures and market-wide
liquidity problems. For example, on March 10, 2023, Silicon Valley Bank was closed by the California Department of Financial Protection
and Innovation, which appointed the FDIC as receiver. Similarly, on March 12, 2023, the New York Department of Financial Services
took possession of Signature Bank and appointed the FDIC as receiver of the bank. The U.S. Department of the Treasury, the Federal Reserve
and the FDIC released a statement that indicated the FDIC would complete its resolution of Silicon Valley Bank and Signature in a manner
that fully protects all depositors. The U.S. Department of Treasury, FDIC and Federal Reserve Board also announced a program to provide
up to US$25 billion of loans to financial institutions secured by certain of such government securities held by financial institutions
to mitigate the risk of potential losses on the sale of such instruments, widespread demands for client withdrawals or other liquidity
needs of financial institutions. Amber Premium has diverse banking relationships with most of Amber Premium’s deposits at large,
systemically important financial institutions. To the extent that Amber Premium has deposited funds with banking institutions that fail
and are not otherwise protected, Amber Premium would lose the amount of its deposits over the then current FDIC insurance limit. The
loss of Amber Premium’s deposits could reduce the amount of cash Amber Premium has available to operate its business and have an
adverse impact on its business, financial condition and results of operations.
Amber Premium offers DeFi products to its
clients and its clients may suffer losses if the DeFi protocols, or its activities thereon, do not function as expected.
Amber Premium offers DeFi products to its clients.
DeFi protocols achieve their purposes through self-executing smart contracts. Some of these DeFi protocols allow users to, for example,
transfer digital assets to a pool from which other users can borrow without requiring an intermediate party to facilitate these transactions.
Digital assets transferred to a pool generally earn interest to the lender, based on the rates at which borrowers repay the loan, and
can generally be withdrawn with no restrictions. However, these DeFi protocols pose heightened regulatory concerns and are subject to
various risks, including the risk that the underlying smart contract is insecure, the risk that borrowers may default and the lender
will not be able to recover its digital assets, the risk that any underlying collateral may experience significant volatility, and the
risk that certain core developers with protocol administration rights can make unauthorized or harmful changes to the underlying smart
contract. If any of these risks materialize, Amber Premium’s clients’ digital assets in these DeFi protocols may be adversely
impacted, and Amber Premium’s reputation, business operations and financial condition may be adversely affected.
Amber Premium currently offers products involving,
and expect to continue to support, certain smart contract-based digital assets. If the underlying smart contracts for these digital assets
do not operate as expected, they could lose value and Amber Premium’s businesses could be adversely affected.
Amber Premium currently offers products involving,
and expect to continue to support, various digital assets that represent units of value on smart contracts deployed on a third party
blockchain. Smart contracts are programs that store and transfer value and execute automatically when certain conditions are met. Since
smart contracts typically cannot be stopped or reversed, vulnerabilities in their programming and design can have damaging, and even
permanent, ramifications. For instance, in April 2018, a batch overflow bug was found in many Ethereum-based ERC20-compatible smart
contract tokens that allowed hackers to create a large number of smart contract tokens, causing multiple digital asset platforms worldwide
to shut down ERC20-compatible token trading. Similarly, in March 2020, a design flaw in the MakerDAO smart contract caused forced
liquidations of digital assets at significantly discounted prices, resulting in millions of dollars of losses to users who had deposited
digital assets into the smart contract. If any such vulnerabilities or flaws come to fruition, smart contract-based digital assets may
suffer negative publicity, be exposed to security vulnerabilities, decline significantly in value, and lose liquidity over a short period
of time. As smart contract-based digital assets continue to develop and evolve, Amber Premium may be subject to unintended or unforeseen
regulatory risks and regulatory actions, which may be inconsistently applied across jurisdictions.
In some cases, smart contracts can be controlled
by one or more “admin keys” or users with special privileges, or “super users.” These users have the ability
to unilaterally make changes to the smart contract, enable or disable features on the smart contract, change how the smart contract receives
external inputs and data, and make other changes to the smart contract. For smart contracts that hold a pool of assets, these users may
also be able to extract funds from the pool, liquidate assets held in the pool, or take other actions that decrease the value of the
assets held by the smart contract in reserves. Even for digital assets that have adopted a decentralized governance mechanism, such as
smart contracts that are governed by the holders of a governance token, such governance tokens can be concentrated in the hands of a
small group of core community members, who would be able to make similar changes unilaterally to the smart contract. If any such super
user or group of core members unilaterally make adverse changes to a smart contract, the design, functionality, features and value of
the smart contract, its related digital assets may be harmed. In addition, assets held by the smart contract in reserves may be stolen,
misused, burnt, locked up or otherwise become unusable and irrecoverable. These super users can also become targets of hackers and malicious
attackers. If an attacker is able to access or obtain the super user privileges of a smart contract, or if a smart contract’s super-users
or core community members take actions that adversely affects the smart contract, its clients who hold and transact in the affected digital
assets may experience decreased functionality and value of the applicable digital assets, up to and including a total loss of the value
of such digital assets. Although Amber Premium does not control these smart contracts, any such events could cause clients to seek damages
against Amber Premium for their losses, result in reputational damage to it, or in other ways adversely impact Amber Premium’s
business.
Risks Related to the Merger
Failure to satisfy the conditions to the Closing of the Merger
on a timely basis or at all could cause delay and additional expense or prevent the Merger from occurring altogether.
The Merger Agreement contains conditions to Closing that must be fulfilled
(or, as permitted by law and in accordance with the Merger Agreement, waived by the parties) in order to complete the Merger. Several
of these conditions, such as obtaining the DWM Required Regulatory Approvals, the ICLK Required Regulatory
Approvals, shareholder approval of ListCo and Nasdaq’s approval for the continued listing of the ListCo and completion of
the DWM Asset Restructuring, are partially or largely outside of the control and timing of Amber DWM or ListCo and may be driven by factors
unrelated to the Merger or the parties thereto. The Merger Agreement may be terminated by Amber DWM or ListCo if the Closing does not
occur by June 30, 2025. Should satisfaction of these conditions take longer than the parties anticipate, or if any condition is
not met by such date, the parties will need to mutually agree to either postpone the Closing until the condition(s) are met or to
waive or amend the condition. If a Closing condition cannot be met on a timely basis, or the parties are unable to agree on a waiver
or amendment, the Closing may be delayed or the Merger Agreement may be terminated, subject to the terms and conditions contained therein.
There can be no assurance that the conditions to the Closing will be satisfied or waived or that the Merger will be completed. Any delay
in completing the Merger could cause Amber DWM and ListCo not to realize some or all of the benefits that the parties expect the Merger
to achieve. Furthermore, the parties will fail to realize any benefits of the Merger should the Closing not occur, and in such event,
each party will be subject to the go-forward risks of its respective business, potential reputational and economic harm that may result
from a failure to consummate the Merger, and the economic burden of fees and expenses associated with the Merger Agreement.
In any event, any prolonged uncertainty as to whether the Merger will
be consummated could lead to a material and adverse effect on the business, financial condition and results of operations of ListCo and
Amber DWM.
The parties may carry out alternative arrangements in relation
to the DWM Asset Restructuring and the Regulatory Approval Condition, which could cause ListCo and Amber DWM not to realize some or all
of the benefits that the parties expect the Merger or the DWM Asset Restructuring to achieve and could lead to other adverse effect on
Listco and Amber DWM.
The DWM Asset Restructuring contemplates certain regulatory licenses
and approvals to be obtained prior to the consummation of the DWM Asset Restructuring. Pursuant to the Merger Agreement, iClick and Amber
DWM agree to discuss in good faith a reasonable alternative structure to consummate the DWM Asset Restructuring that will provide iClick
with substantially the same economic benefits upon the Closing and the other transactions contemplated under the Merger Agreement, to
be implemented under certain circumstances where one or more of the Restructuring Requisite Approvals fails to be obtained. In the event
that iClick and Amber DWM agree upon such alternative structure to consummate the DWM Asset Restructuring, the parties may also agree
on alternative arrangements in respect to the Regulatory Approval Condition, including the waiver or modification of the Regulatory Approval
Condition in respect of one or more license or approval related to the Restructuring Requisite Approvals. See “The Merger Agreement
— DWM Asset Restructuring” on page 76.
While the iClick and Amber DWM intend to discuss in good faith on
acceptable alternative structure or solution under such circumstances, there is no guarantee that the parties will reach an agreement
on an acceptable alternative structure or solution under such circumstances, and even if the parties agree on an alternative structure
or solution, it could cause iClick and Amber DWM not to realize some or all of the benefits that the parties expect the Merger or the
DWM Asset Restructuring to achieve. The necessity of negotiating or adopting an alternative structure may also result in unforeseen costs,
delays and uncertainty in consummating the Merger and could lead to a material and adverse effect on the business, financial condition
and results of operations of iClick and Amber DWM. While iClick and Amber DWM intend to take steps necessary and appropriate to prevent
or mitigate any such negative impact on the expected benefits of the Merger or the DWM Asset Restructuring, the costs, delays and uncertainty
in consummating the Merger, or the adverse effect on the business, financial condition and results of operations of iClick and Amber
DWM, there is no guarantee that such steps will successful.
Certain of ListCo’s directors, executive officers and
major shareholders have interests in the Merger that are different from, and may potentially conflict with, ListCo’s interests
and the interests of its unaffiliated shareholders.
Certain of ListCo’s directors, executive officers and major
shareholders have interests in the Merger that may be different from, or in addition to, the interests of unaffiliated shareholders and
that may create potential conflicts of interest. For example, pursuant to the terms of the Merger Agreement, ListCo’s directors
and executive officers may be entitled to continued indemnification and insurance coverage. See “Proposal I: the Merger Proposal
— Interests of ListCo Directors and Executive Officers in the Merger” beginning on page 73.
Amber DWM is not a publicly traded company and does not have
a long operating history, making it difficult to determine the fair market value of Amber DWM or the Merger consideration.
Amber DWM’s shares are and have been privately held and are
not currently traded on any public market. In addition, Amber DWM commenced its operations in 2021 as the crypto private banking business
of Amber Group and does not have a long operating history. As a result, it is difficult to determine the fair market value of Amber DWM
or of its shares. Any estimate of the fair market value of Amber DWM or any Amber DWM share is only an estimate and depends on multiple
variables, including market activity, the impact of the Merger, and other factors, that could positively or negatively affect such values.
Any change in Amber DWM’s financial condition or results of operations may cause significant variations in the price of its shares.
The Board has engaged Houlihan Lokey to provide a fairness
opinion as to whether, as of the date of such opinion, the DWM Equity Value in connection with the Merger is fair to the Company
from a financial point of view. This opinion is subject to numerous assumptions and factors, including certain information relating
to the historical, current and future operations, financial condition and prospects of Amber DWM made available to Houlihan Lokey by
Amber DWM.
The Merger Consideration is based on ICLK Equity Value and DWM
Equity Value, which will not be adjusted before or at the Closing to account for the performance of ListCo or Amber DWM.
The aggregate number of New Ordinary Share to be issued as Merger
consideration is based on the ICLK Equity Value and DWM Equity Value, which equity value is fixed amount that will not be adjusted before
or at the Closing, including if the performance of ListCo’s business improves or Amber DWM’s business deteriorates in the
period after the execution of the Merger Agreement and before the Closing.
Nasdaq may not approve the initial listing application in connection
with the Transactions.
It is a closing condition to the Merger that (i) Nasdaq approval
of the listing application submitted by Listco shall have been obtained, and (ii) no general suspension or material limitation of
trading in the ADSs has been imposed or threatened by the SEC or Nasdaq. The Merger Agreement also requires that until the Closing, Listco
shall remain listed as a public company on Nasdaq, in compliance with any applicable Nasdaq rules and regulations, and that the
ADSs remain listed on Nasdaq.
If ListCo could not satisfy the conditions for continued listing on
Nasdaq, ListCo’s securities would be delisted and subject to suspension. The suspension and delisting of the ADSs would lead to
decreases in analyst coverage and market-making activity relating to the ICLK Shares, as well as reduced information about trading prices
and volume. As a result, it could become significantly more difficult for ListCo’s shareholders to sell their ICLK Shares at prices
comparable to those in effect prior to delisting or at all.
Each party is subject to business uncertainties and contractual
restrictions while the Merger is pending, which could adversely affect each party’s business and operations.
In connection with the pendency of the Merger, it is possible that
some customers, suppliers and other business partners with whom ListCo and/or Amber DWM has a business relationship may delay or defer
certain business decisions or might decide to seek to terminate, change or renegotiate their relationships with ListCo or Amber DWM,
as the case may be, as a result of the Merger or otherwise, which could negatively affect ListCo’s or Amber DWM’s business,
regardless of whether the Merger is completed. The pending transaction could also divert management time and resources that could otherwise
have been devoted to other opportunities that may have been beneficial to Amber DWM or ListCo.
Under the terms of the Merger Agreement, ListCo and Amber DWM are
subject to certain restrictions on the conduct of their respective businesses prior to the Closing which may adversely affect their ability
to execute certain of its business strategies. Such limitations could adversely affect ListCo’s or Amber DWM’s business and
operations.
The Company has not obtained, and does not expect to obtain,
an updated fairness opinion from Houlihan Lokey reflecting changes in circumstances that may have occurred
since the signing of the Merger Agreement.
The fairness opinion prepared by Houlihan Lokey were based on information
made available to Houlihan Lokey as of the date of the fairness opinion, which may have changed, or may change, after the date of such
opinion. The Company has not obtained an updated fairness opinion from Houlihan Lokey or from any other party as of the date of this
proxy statement and does not expect to obtain an updated version prior to consummation of the Merger. Changes in the operations and prospects
of the Company or Amber DWM, general market and economic conditions and other factors which may be beyond the control of the Company
and Amber DWM, and on which they were based, may have altered the prices or values of ICLK Shares or the ADSs or shares of Amber DWM
since the date of such fairness opinion, or may alter such values and prices by the time the Merger is completed.
Risks Related to the Ownership of the Shares or ADSs
The dual-class share structure of ListCo with different voting
rights will significantly limit your ability to influence corporate matters and could discourage others from pursuing any change of control
transactions that holders of the New Class A Shares and the ADSs may view as beneficial.
Upon consummation of the Merger, in respect of matters requiring the
votes of shareholders of ListCo, holders of New Class A Shares are entitled to one vote per New Class A Share while holders
of New Class B Shares are entitled to thirty (30) votes per New Class B Share. Each New Class B Share is convertible into
one New Class A Shares at any time by the holder thereof, while New Class A Shares are not convertible into New Class B
Share under any circumstances. The dual-class share structure of ListCo with different voting rights will significantly limit your ability
to influence corporate matters and could discourage others from pursuing any change of control transactions that holders of the New Class A
Shares and the ADSs may view as beneficial.
Upon consummation of the Merger, Mr. Michael Wu is expected to
beneficially own 310,562,426 New Class A Shares and 36,318,335 New Class B Shares, which account for an aggregate of 92.9%
of the voting power represented by all the issued and outstanding shares of ListCo. As a result of the dual-class share structure and
the concentration of ownership, Mr. Michael Wu and any future holder of New Class B Shares will have considerable influence
over matters such as decisions regarding mergers and consolidations, election of directors, amendments to organizational documents, and
other significant corporate actions. Mr. Michael Wu and any future holder of New Class B Shares may have interests that differ
from the interests of the other shareholders of ListCo and may vote its New Ordinary Share in ways with which other shareholders may
disagree or which may be adverse to such other shareholders’ interests. This concentrated ownership may have the effect of delaying,
preventing or deterring a change in control of ListCo, could deprive its shareholders of an opportunity to receive a premium for their
New Class A Shares as part of a sale of ListCo, and could have a negative effect on the market price of the New Class A Shares
or the ADSs.
The trading price of the ADSs is likely to be volatile, which
could result in substantial losses to investors.
The trading price of the ADSs has fluctuated significantly since the
announcement of the proposed Merger and will continue to be volatile and could fluctuate widely. Many factors that are beyond the control
of Amber DWM and ListCo may materially adversely affect the market price and marketability of the ADSs and ListCo’s ability to
raise capital through equity financings. These factors include the following:
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regulatory developments affecting Amber DWM or its industry; |
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status of the Transactions and satisfaction of conditions precedent to the closing
of the Transactions; |
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variations in Amber DWM’s or ListCo’s revenues, earnings, cash flow
and data related to its operations; |
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changes in market condition, market potential and competitive landscape; |
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announcements of new investments, acquisitions, strategic partnerships or joint
ventures by Amber DWM or its competitors; |
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fluctuations in global and middle Eastern economies; |
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changes in financial estimates by securities analysts; |
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adverse publicity about Amber DWM or its industry; |
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additions or departures of key personnel and senior management; |
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release of lock-up or other transfer restrictions on ListCo’s outstanding
equity securities or sales of additional equity securities; and |
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potential litigation or regulatory investigations. |
In the past, shareholders of public companies have often brought securities
class action suits against those companies following periods of instability in the market price of their securities. If ListCo were involved
in a class action suit, it could divert a significant amount of ListCo management’s attention and other resources from its business
and operations and require it to incur significant expenses to defend the suit, which could harm its results of operations. Any such
class action suit, whether or not successful, could harm ListCo’s reputation and restrict its ability to raise capital in the future.
In addition, if a claim is successfully made against ListCo, it may be required to pay significant damages, which could have a material
adverse effect on its financial condition and results of operations.
ListCo will be a “controlled company” within the
meaning of the Nasdaq Stock Market Rules upon consummation of the Merger and, as a result, may rely on exemptions from certain corporate
governance requirements that provide protection to shareholders of other companies.
It is expected that, subject to certain assumptions, Mr. Michael
Wu will have the right to vote 92.9% of the New Ordinary Shares upon consummation of the Merger. As a result, ListCo will be a “controlled
company” as defined under the Nasdaq Stock Market Rules as set forth in Listing Rule 5605(b), because Mr. Michael
Wu will own more than 50% of ListCo’s total voting power. For so long as ListCo remains a controlled company, it will be permitted
to elect to rely, and may rely, on certain exemptions from corporate governance rules, including an exemption from the rule that
a majority of its board of directors must be independent directors or that it has to establish a nominating committee and a compensation
committee composed entirely of independent directors. As a result, you will not have the same protection afforded to shareholders of
companies that are subject to these corporate governance requirements. Even if ListCo ceases to be a controlled company, it may still
rely on exemptions available to foreign private issuers, including being able to adopt home country practices in relation to corporate
governance matters. See “—ListCo is a foreign private issuer within the meaning of the rules under the Exchange Act,
and as such it will be exempt from certain provisions applicable to U.S. domestic public companies.”
ListCo will not pay dividends for the foreseeable future, you
must rely on price appreciation of the ADSs for return on your investment.
It is intended for ListCo to retain any future earnings to finance
the operation and expansion of its business, and it does not expect to declare or pay any dividends in the foreseeable future. As a result,
you may only receive a return on your investment in the ADSs if the market price of the ADSs increases.
ListCo may be a passive foreign investment company for United
States federal income tax purposes, which could result in adverse United States federal income tax consequences to United States investors
in the ADSs or ordinary shares.
A non-U.S. corporation will be a “passive foreign investment
company,” or “PFIC,” if, in any taxable year, either (a) 75% or more of its gross income for such year consists of certain
types of “passive” income or (b) 50% or more of the average quarterly value of its assets (as determined on the basis of fair
market value) during such year produce or are held for the production of passive income (the “asset test”). Goodwill is treated
as an active asset under the PFIC rules to the extent attributable to activities that produce active income for these purposes. ListCo
will be treated as owning its proportionate share of the assets and earning its proportionate share of the income of any other corporation
in which it owns, directly or indirectly, 25% or more (by value) of the stock. Although the law in this regard is not entirely clear,
ListCo treats its consolidated variable interest entities as being owned by it for U.S. federal income tax purposes because it controls
their management decisions and will be entitled to substantially all of the economic benefits associated with these entities.
Based on its financial statements, the manner in which it conducts
its business, the trading price of its ADSs, the value and nature of its assets and the sources and nature of its income, ListCo believes
it was a PFIC for its prior taxable year, and there is a significant risk that it will be a PFIC for its current taxable year. Following
the Merger, the annual PFIC income and asset tests in respect of ListCo will be applied based on the assets and activities of the combined
business. Based on the projected composition of ListCo’s income and assets, ListCo believes there is a significant risk that it
will be a PFIC in the taxable year that includes the date of the Merger.
The determination of whether ListCo is a PFIC is made annually after
the close of each taxable year. This determination is based on the facts and circumstances at that time, some of which may be beyond ListCo’s
control, such as the amount and composition of its income and the valuation and composition of its assets, including goodwill and other
intangible assets, as implied by the market price of its ADSs and ordinary shares. In particular, because the value of ListCo’s
assets for purposes of the asset test may be determined by reference to the market price of its ADSs, fluctuations in the market price
of its ADSs and/or ordinary shares may cause ListCo to be a PFIC in the current or subsequent taxable years. In addition, the composition
of ListCo’s income and assets will also be affected by how, and how quickly, it uses its liquid assets. As the PFIC tests must be
applied at the end of each year, and the composition of ListCo’s income and assets and the value of its assets may change over time,
there can be no assurance that ListCo will not be a PFIC for any year in which a U.S. Holder holds its stock.
If ListCo is a PFIC in any taxable year, U.S. Holders (as defined in
“Material United States Federal Income Tax Consequences to U.S. Holders of ICLK”) may incur significantly increased U.S. income
tax on gain recognized on the sale or other disposition of the ADSs or ordinary shares and on the receipt of distributions on the ADSs
or ordinary shares to the extent such gain or distribution is treated as an “excess distribution” under the U.S. federal income
tax rules, and may be subject to burdensome reporting requirements. Further, if ListCo is a PFIC for any year during which a U.S. Holder
holds its ADSs or ordinary shares, the U.S. Holder generally will be required to continue to treat ListCo as a PFIC for all succeeding
years during which the U.S. Holder holds ListCo’s ADSs or ordinary shares, even if ListCo no longer satisfies the tests described
above, unless the U.S. Holder makes a special “purging” election on U.S. Internal Revenue Service (“IRS”) Form
8621. For more information, see “Material United States Federal Income Tax Consequences to U.S. Holders of ICLK”. U.S. Holders
are urged to consult their own tax advisors regarding the U.S. federal income tax consequences of holding ordinary shares or ADSs in a
PFIC.
Substantial future sales or perceived sales of the ICLK Shares
or ADSs in the public market could cause the price of the ADSs to decline.
Sales of the ICLK Shares or ADSs, either in the public market or through
private placement, or the perception that these sales could occur, could cause the market price of the ADSs to decline. In connection
with the Transactions, each of the existing shareholders of Amber DWM has entered into a lock-up agreement with the Company pursuant
to which they have agreed not to transfer the shares received in consideration of the Merger for a period of 12 months following the
Closing. Any or all of these securities may be released prior to the expiration of the lock-up period at the discretion of a majority
of the directors of Listco then in office. To the extent shares are released before the expiration of the lock-up period and sold into
the market, the market price of the ADSs could decline. It cannot be predicted what effect, if any, market sales of securities held by
ListCo’s significant shareholders or any other shareholder or the availability of these securities for future sale will have on
the market price of the ADSs.
You may face difficulties in protecting your interests, and
your ability to protect your rights through U.S. courts may be limited, because ListCo is incorporated under Cayman Islands law.
ListCo is an exempted company incorporated under the laws of the Cayman
Islands with limited liability. ListCo’s corporate affairs are governed by its amended and restated memorandum and articles of
association (or the second amended and restated memorandum and articles of association of ListCo upon consummation of the Merger), the
Companies Act (As Revised) of the Cayman Islands and the common law of the Cayman Islands. The rights of shareholders to take action
against ListCo and its directors, actions by minority shareholders and the fiduciary duties of ListCo directors under Cayman Islands
law are to a large extent governed by the common law of the Cayman Islands. The common law of the Cayman Islands is derived in part from
comparatively limited judicial precedent in the Cayman Islands as well as from the English common law, which are generally of persuasive
authority, but are not binding, on a court in the Cayman Islands. The rights of ListCo shareholders and the fiduciary duties of ListCo
directors under Cayman Islands law are not as clearly established as they would be under statutes or judicial precedent in some jurisdictions
in the United States. In particular, the Cayman Islands has a different body of securities laws than the United States, and provide significantly
less protection to investors. In addition, Cayman Islands companies may not have the standing to initiate a shareholder derivative action
in a federal court of the United States. There is no statutory recognition in the Cayman Islands of judgments obtained in the United
States, although the courts of the Cayman Islands will in certain circumstances, recognize and enforce a non-penal judgment of a foreign
court of competent jurisdiction without retrial on the merits.
Shareholders of Cayman Islands exempted companies like ListCo have
no general rights under Cayman Islands law to inspect corporate records (other than the amended and restated memorandum and articles
of association, the register of mortgages and charges, and copies of any special resolutions passed by our shareholders) or to obtain
copies of lists of shareholders of these companies. ListCo directors have discretion under its amended and restated memorandum and articles
of association (or the second amended and restated memorandum and articles of association of ListCo), to determine whether or not, and
under what conditions, ListCo’s corporate records may be inspected by its shareholders, but are not obliged to make them available
to ListCo shareholders. This may make it more difficult for you to obtain the information needed to establish any facts necessary for
a shareholder resolution or to solicit proxies from other shareholders in connection with a proxy contest.
Certain corporate governance practices in the Cayman Islands differ
significantly from requirements for companies incorporated in other jurisdictions such as the U.S. If ListCo chooses to follow its home
country practice in the future, ListCo shareholders may be afforded less protection than they otherwise would under rules and regulations
applicable to U.S. domestic issuers.
As a result of all of the above, public shareholders may have greater
difficulty in protecting their interests in the face of actions taken by ListCo’s management, members of the board of directors
or controlling shareholders than they would as public shareholders of a company incorporated in the United States.
If securities or industry analysts do not publish research or
publish inaccurate or unfavorable research about ListCo’s business, the market price for the ADS and trading volume could decline.
The trading market for the ADSs will depend in part on the research
and reports that securities or industry analysts publish about ListCo or its business. If research analysts do not establish and maintain
adequate research coverage or if one or more of the analysts who cover ListCo downgrade the ADSs or publish inaccurate or unfavorable
research about its business, the market price for the ADSs would likely decline. If one or more of these analysts cease coverage of ListCo
or fail to publish reports on ListCo regularly, ListCo could lose visibility in the financial markets, which, in turn, could cause the
market price or trading volume for our ordinary shares to decline.
ListCo is a foreign private issuer within the meaning of the
rules under the Exchange Act, and as such it will be exempt from certain provisions applicable to U.S. domestic public companies.
ListCo is currently qualified as a foreign private issuer under the
Exchange Act and is expected to continue to qualify as such upon consummation of the Merger, and exempt from certain provisions of the
securities rules and regulations in the United States that are applicable to U.S. domestic issuers, including:
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the rules under the Exchange Act requiring the filing with the SEC of quarterly
reports on Form 10-Q or current reports on Form 8-K; |
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the sections of the Exchange Act regulating the solicitation of proxies, consents,
or authorizations in respect of a security registered under the Exchange Act; |
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the sections of the Exchange Act requiring insiders to file public reports of their
stock ownership and trading activities and liability for insiders who profit from trades made in a short period of time; and |
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the selective disclosure rules by issuers of material nonpublic information
under Regulation FD promulgated by SEC. |
ListCo is and will continue to be required to file an annual report
on Form 20-F within four months of the end of each fiscal year. However, the information ListCo will be required to file with or
furnish to the SEC will be less extensive and less timely compared to that required to be filed with the SEC by U.S. domestic issuers.
For example, U.S. domestic issuers are required to file annual reports within 60 to 90 days from the end of each fiscal year. As a result,
you may not be afforded the same protections or information that would be made available to you were you investing in a U.S. domestic
issuer.
If ListCo fails to implement or maintain an effective system
of internal controls in the future, ListCo may be unable to accurately report its financial condition or results of operations, which
may adversely affect investor confidence in ListCo and, as a result, the market price of the ADSs.
Amber DWM has been a private company since its inception and, as such,
it has not had the internal control and financial reporting requirements that are required of a publicly traded company. Upon consummation
of the Merger, Amber DWM will be operating as wholly owned subsidiary of ListCo, which is a public company in the United States subject
to the Sarbanes-Oxley Act of 2002. Section 404 of the Sarbanes-Oxley Act of 2002, or Section 404, will require that ListCo includes a
report from management on its internal control over financial reporting as of the end of the fiscal year, or the ListCo’s independent
registered public accounting firm to attest to and report on the effectiveness of its internal control over financial reporting. The management
or the independent registered public accounting firm of ListCo may conclude that its internal control over financial reporting is not
effective.
The management of ListCo may conclude that its internal control over
financial reporting is not effective. Moreover, even if its management concludes that its internal control over financial reporting is
effective, ListCo’s independent registered public accounting firm, after conducting its own independent testing, may issue a report
that is qualified if it is not satisfied with ListCo’s internal controls or the level at which its controls are documented, designed,
operated, or reviewed, or if it interprets the relevant requirements differently from ListCo. It may be unable to timely complete its
evaluation testing and any required remediation. In addition, the requirements such as maintaining effective disclosure controls and procedures
and internal controls over financial reporting may place a strain on the ListCo’s systems and resources.
After consummation of the Merger, ListCo may identify certain deficiencies
in its internal control over financial reporting in the course of preparing its consolidated financial statements. There can be no assurance
as to when these deficiencies will be remediated or that additional deficiencies, which may be significant, or material weaknesses will
not arise in the future. Any failure to remediate deficiencies, or the development of new deficiencies or material weaknesses in ListCo’s
internal control over financial reporting, could result in material misstatements in ListCo’s financial statements, which in turn
could have a material adverse effect on ListCo’s financial condition.
Ineffective internal control over financial reporting could expose
ListCo to increased risk of fraud or misuse of corporate assets or inaccurate reporting of financial conditions and results of operations
and subject ListCo to potential delisting from the stock exchange on which ListCo is listed, regulatory investigations and civil or criminal
sanctions. ListCo may also be required to restate its financial statements from prior periods. If ListCo fails to achieve and maintain
an effective internal control environment, it could suffer material misstatements in its financial statements and fail to meet its reporting
obligations, which would likely cause investors to lose confidence in ListCo’s reported financial information. This could in turn
limit ListCo’s access to capital markets, result in deterioration in its financial condition and results of operations, and lead
to a decline in the market price of the ADSs.
THE
EXTRAORDINARY GENERAL MEETING
Time, Place and Purpose of the Extraordinary General Meeting
This proxy statement is being furnished to our shareholders as part
of the solicitation of proxies by the Board of Directors for use at the extraordinary general meeting to be held at our office, located
at 15/F Prosperity Millennia Plaza, 663 King’s Road, Quarry Bay, Hong Kong, People’s Republic of China, on January 3,
2025 at 9:00 a.m. (Hong Kong time), or January 2, 2025 at 8:00 p.m. (New York time), and for any adjournment or postponement
thereof.
The purpose of the extraordinary general meeting is for our shareholders
to consider and vote upon:
| (i) | the Merger Proposal (“Proposal I”); |
| (ii) | the Amendment Proposal (“Proposal II”); |
| (iii) | the Name Change Proposal (“Proposal III”); |
| (iv) | the Variation of Share Capital Proposal (“Proposal
IV”); |
| (v) | the General Authorization Proposal (“Proposal V”);
and |
| (vi) | the Adjournment Proposal (“Proposal VI”). |
Recommendations of the Board
The Board of ListCo reviewed and considered the terms and conditions
of the Merger Agreement and the transactions contemplated by the Merger Agreement, including the Merger. On November 29, 2024, the
Board unanimously (a) determined that the Merger Agreement and the transaction agreements contemplated by the Merger Agreement are
fair to and in the best interests of ListCo and its shareholders, (b) declared it advisable to enter into the Merger Agreement and
the transaction agreements contemplated by the Merger Agreement, (c) authorized and approved the execution, delivery and performance
of the Merger Agreement, the plan of merger and the transactions contemplated by the Merger Agreement and the plan of merger, including
the Merger, and (d) resolved to direct that the authorization and approval of the Merger Agreement, the plan of merger, and the
transactions contemplated under the Merger Agreement, including the Merger, be submitted to a vote at an extraordinary general meeting
of the shareholders of ListCo.
After careful consideration, the Board of ListCo authorized and
approved the Merger Agreement and the plan of merger and recommends that you vote (a) FOR the proposal to authorize and approve the Merger
Agreement, the plan of merger and the transactions contemplated by the Merger Agreement and the plan of merger, including the Merger,
(b) FOR the proposal to adopt the tenth amended and restated memorandum and articles of association of ListCo in the form attached as
Annex C to the accompanying proxy statement, effective immediately prior to the Effective Time (the “Amendment of M&A”);
(b) FOR the proposal to approve the change of the corporate name of ListCo from “iClick Interactive Asia Group Limited” to
“Amber International Holding Limited” effective immediately prior to the Effective Time (the “Change of Name”);
(c) FOR the proposal to approve the variation of the authorized share capital of ListCo effective immediately prior to the Effective
Time (the “Variation of Share Capital”); (d) FOR the proposal to authorize Wing Hong Sammy Hsieh, a director of the Company,
to do all things necessary to give effect to the Merger Agreement, the plan of merger, and the transactions contemplated by the Merger
Agreement and plan of merger, including the Merger and, effective immediately prior to the Effective Time, the Amendment of M&A,
the Change of Name and the Variation of Share Capital; and (f) FOR the proposal to approve the adjournment of the extraordinary general
meeting, if necessary, to permit further solicitation of proxies if there are insufficient proxies received at the time of the extraordinary
general meeting to pass the special resolutions to be proposed at the extraordinary general meeting.
Record Date and Quorum
You are entitled to attend and vote at the extraordinary general meeting
if you have ICLK Shares registered in your name in ListCo’s register of members at the close of business in the Cayman Islands
on December 18, 2024, the ICLK Share record date for voting at the extraordinary general meeting. If you own ADSs on December 18,
2024, the ADS record date (and do not convert such ADSs and become a registered holder of the ICLK Class A Shares underlying such
ADSs as explained below), you cannot attend or vote at the extraordinary general meeting directly, but you may instruct the ADS depositary
(as the registered holder of the ICLK Class A Shares underlying the ADSs) on how to vote the ICLK Class A Shares underlying
your ADSs. We will instruct the ADS depositary to deliver to holders of ADS at the close of business in New York City on December 18,
2024, the ADS record date, an ADS proxy card, the form of which is attached as Annex F to the accompanying proxy statement, and holders
of ADS as of the ADS record date will have the right to instruct the ADS depositary how to vote the ICLK Class A Shares underlying
their ADSs at the extraordinary general meeting, subject to and in accordance with the terms of the deposit agreement. ADS holders are
strongly urged to sign, complete and return the ADS proxy card to the ADS depositary in accordance with the instructions printed thereon
as soon as possible and, in any event, no later than 9:00 a.m. (New York time) on December 31, 2024 (or if the extraordinary
general meeting is adjourned, such later date as may be notified by the Company or the ADS depositary). Alternatively, if you own ADSs
on the ADS record date, you may attend and vote at the extraordinary general meeting by converting your ADSs into ICLK Class A Shares
(and certifying you have not instructed, and will not instruct, the ADS depositary to vote the ICLK Class A Shares represented by
your ADSs) before the close of business in New York City on December 18, 2024 and becoming a registered holder of ICLK Shares prior
to the close of business in the Cayman Islands not later than December 18, 2024, the ICLK Share record date. Each outstanding ICLK
Share on the ICLK Share record date entitles the holder to one vote on each matter submitted to the shareholders for authorization and
approval at the extraordinary general meeting and any adjournment thereof. We expect that, as of the ICLK Share record date, there will
be 39,344,526 ICLK Class A Shares and 5,034,427 ICLK Class B Shares issued and outstanding and entitled to vote at the extraordinary
general meeting, respectively. If you have ICLK Shares registered in your name on the ICLK Share record date, the deadline for you to
lodge your proxy card and vote is 9:00 a.m. January 1, 2025 (Hong Kong time), or 8:00 p.m. December 31, 2024 (New
York time). See “—Procedures for Voting” below.
Shareholder Vote Required to Authorize and Approve the Merger Agreement
and Plan of Merger
In order for the Merger to be consummated, the Merger Agreement, the
plan of merger and the transactions contemplated by the Merger Agreement and the plan of merger, including the Merger, must be authorized
and approved by a special resolution of ListCo passed by a majority of not less than two-thirds of votes cast by shareholders as, being
entitled to do so, vote in person or by proxy or by corporate representative, at the extraordinary general meeting.
Based on the number of ICLK Shares we expect to be issued and outstanding
and entitled to vote on the ICLK Share record date, and assuming that all shareholders will be present and vote in person or by proxy
at the extraordinary general meeting, approximately 93,355,378 votes of ICLK Shareholders would need to be voted in favor of the proposal
to authorize and approve the merger agreement, the plan of merger and the transactions contemplated by the merger agreement and the plan
of merger, including the Merger, in order for the proposal to be authorized and approved by a special resolution.
As of the date of this proxy statement, the Undertaking Shareholders
beneficially owned in the aggregate 11,626,898 ICLK Class A Shares and 4,385,078 ICLK Class B Shares, representing approximately
71% of the total voting power of the Company. See “Security Ownership of Certain Beneficial Owners and Management” beginning
on page 127 for additional information. Pursuant to the terms of the Voting Agreement, these ICLK Shares will be voted in favor
of the authorization and approval of the Merger Agreement, the plan of merger and the transactions contemplated by the Merger Agreement,
including the Merger, at the extraordinary general meeting of ListCo.
If your ICLK Shares are held in the name of a broker, bank or other
nominee, your broker, bank or other nominee will not vote your ICLK Shares in the absence of specific instructions from you.
Procedures for Voting
ICLK Shares
Holders of record of our Shares may vote their ICLK Shares by attending
the extraordinary general meeting and voting their ICLK Shares in person, or by completing the enclosed proxy card in accordance with
the instructions set forth on the proxy card. The deadline to lodge your proxy card is 9:00 a.m. January 1, 2025 (Hong Kong
time), or 8:00 p.m. December 31, 2024 (New York time).
Shareholders who hold their ICLK Shares in “street name,”
meaning in the name of a bank, broker or other person who is the record holder, must either direct the record holder of their ICLK Shares
how to vote their ICLK Shares or obtain a proxy from the record holder to vote their ICLK Shares at the extraordinary general meeting.
Shareholders who have questions or requests for assistance in completing
and submitting proxy cards should contact ListCo’s Investor Relations Department at +852-3700-9100 or by email at ir@i-click.com,
for Asia, or at +1 516 222 2560 or by email at tomc@coreir.com.
ADSs
If you own ADSs as of the close of business in New York City on December
18, 2024, the ADSs record date (and do not convert such ADSs and become a registered holder of the ICLK Class A Shares underlying such
ADSs as explained below), you cannot attend or vote at the extraordinary general meeting directly, but you may instruct the ADS depositary
(as the registered holder of the ICLK Class A Shares underlying the ADSs) how to vote the ICLK Class A Shares underlying your ADSs. We
will instruct the ADS depositary to deliver to holders of ADS at the close of business in New York City on December 18, 2024, the ADS
record date, an ADS proxy card, the form of which is attached as Annex F to the accompanying proxy statement, and holders of ADS as of
the ADS record date will have the right to instruct the ADS depositary how to vote the ICLK Class A Shares underlying their ADSs at the
extraordinary general meeting, subject to and in accordance with the terms of the deposit agreement. ADS holders are strongly urged to
sign, complete and return the ADS proxy card to the ADS depositary in accordance with the instructions printed thereon as soon as possible
and, in any event, no later than 9:00 a.m. (New York time) on December 31, 2024 (or if the extraordinary general meeting is adjourned,
such later date as may be notified by the Company or the ADS depositary). Alternatively, you may attend and vote at the extraordinary
general meeting if you convert your ADSs and become a registered holder of ICLK Class A Shares prior to the close of business in the Cayman
Islands not later than December 18, 2024. If you wish to convert your ADSs for the purpose of voting ICLK Class A Shares, you need to
make arrangements to deliver your ADSs to the ADS depositary for conversion before the close of business in New York City on December
18, 2024 together with (a) delivery instructions for the corresponding ICLK Class A Shares (name and address of person who will be the
registered holder of ICLK Class A Shares), and (b) payment of the ADS cancellation fees (US$0.05 per ADS to be cancelled) and any applicable
taxes. If you hold your ADSs in a brokerage, bank or nominee account, please contact your broker, bank or nominee to find out what actions
you need to take to instruct the broker, bank or nominee to convert the ADSs on your behalf. Upon conversion of the ADSs, the ADS depositary
will arrange for J.P. Morgan Chase Bank N.A. Hong Kong, the custodian holding the ICLK Class A Shares, to transfer registration of the
ICLK Class A Shares to the former ADS holder (or a person designated by the former ADS holder). If after registration of ICLK Shares in
your name, you wish to receive a certificate evidencing the ICLK Shares registered in your name, you will need to request the registrar
of the ICLK Shares to issue and mail a certificate to your attention.
Voting of Proxies and Failure to Vote
All ICLK Shares represented by valid proxies will be voted at the
extraordinary general meeting in the manner specified by the holder. If a shareholder returns a properly signed proxy card but does not
indicate how the shareholder wants to vote, ICLK Shares represented by that proxy card will be voted FOR the approval of the Merger
Proposal, FOR the approval of the Amendment Proposal, FOR the approval of the Name Change Proposal, FOR the Variation of Share Capital
Proposal, FOR the approval of the General Authorization Proposal, and FOR the approval of the Adjournment Proposal.
Brokers or other nominees who hold our ICLK Shares in “street
name” for customers who are the beneficial owners of such ICLK Shares may not give a proxy to vote those customers’ Shares
in the absence of specific instructions from those customers.
ICLK Shares represented at the extraordinary general meeting but not
voted, including abstentions and broker “non-votes,” will be treated as present at the extraordinary general meeting for
purposes of determining the presence or absence of a quorum for the extraordinary general meeting.
ICLK Class A Shares represented by ADSs for which (i) the
ADS depositary timely receives voting instructions from the ADS holders which fail to specify the manner in which the ADS depositary
is to vote the ICLK Class A Shares represented by such ADSs or (ii) the ADS depositary has not received voting instructions
by 9:00 a.m. (New York time) on December 31, 2024, in each case, will not be counted for purposes of determining the presence
or absence of a quorum for the extraordinary general meeting or voted at the extraordinary general meeting.
Revocability of Proxies
Holders of our ICLK Shares may revoke their proxies in one of three
ways:
First, a shareholder can deliver written notice of revocation to our
Investor Relations Department at 15/F Prosperity Millennia Plaza, 663 King’s Road, Quarry Bay, Hong Kong, People’s Republic
of China at any time at least two hours prior to the commencement of the extraordinary general meeting;
Second, a shareholder can complete, date and submit a new proxy card
bearing a later date than the proxy card sought to be revoked to ListCo no later than 9:00 a.m. January 1, 2025 (Hong Kong
time), or 8:00 p.m. December 31, 2024 (New York time); or
Third, a shareholder can attend the meeting and vote in person. Attendance,
by itself, will not revoke a proxy. It will only be revoked if the shareholder actually votes at the extraordinary general meeting.
If a shareholder has instructed a broker to vote the shareholder’s
ICLK Shares, the shareholder must follow directions received from the broker to change those instructions.
Registered holders of our ADSs who are on the books of the ADS depositary
may revise their voting instructions by completing, dating and submitting a new ADS proxy card to the ADS depositary bearing a later
date than the ADS proxy card sought to be revoked to the ADS depositary to be received any time prior to 9:00 a.m. (New York time)
on December 31, 2024.
If you hold your ADSs through a broker, bank or nominee and you have
instructed your broker, bank or nominee to give ADS voting instructions to the ADS depositary, you must follow the directions of your
broker, bank or nominee to change those instructions.
Solicitation of Proxies
This proxy solicitation is being made and paid for by iClick on behalf
of the Board. iClick will bear the costs of holding the extraordinary general meeting and the cost of soliciting proxies, including costs
of printing and mailing the proxy card. Our directors, officers and employees may solicit proxies by mail, email, telephone, facsimile
or other means of communication. These directors, officers and employees will not be paid additional remuneration for their efforts,
but may be reimbursed for out-of-pocket expenses incurred in connection therewith. We will reimburse the ADS depositary, JP Morgan Chase
Bank, N.A., for costs incurred by it in mailing proxy materials to ADS holders in accordance with the deposit agreement.
Internet Availability of Proxy Materials
The notice and the proxy card for the extraordinary general meeting
will first be mailed on or about December 19, 2024 (New York time) to all shareholders entitled to vote at the extraordinary general
meeting. We are providing this notice to inform you that the proxy materials are available at the “Investors” section of
iClick’s corporate website at https://ir.i-click.com/.
Questions and Additional Information
If you have more questions about the Merger Proposal, the Amendment
Proposal, the Name Change Proposal, the Variation of Capital Proposal, the General Authorization Proposal or the Adjournment Proposal,
need assistance in submitting your proxy or voting your ICLK Shares or ADS, or need additional copies of the proxy card or ADS proxy
card, you should contact the Company’s Investor Relations Department at +852-3700-9100 or by email at ir@i-click.com, for Asia,
or at +1 516 222 2560 or by email at tomc@coreir.com.
PROPOSAL
I: THE MERGER PROPOSAL
General
This proxy statement is being provided to ListCo shareholders in connection
with the solicitation of proxies by the Board to be voted at the extraordinary general meeting and at any adjournments or postponements
of the general meeting. At the extraordinary general meeting, ListCo shareholders will be asked to, among other things, approve the Merger
Agreement. The Merger Agreement provides for the merger of Merger Sub with and into Amber DWM, with Amber DWM continuing as the surviving
entity and a wholly-owned subsidiary of ListCo.
The Merger will not be consummated unless ListCo shareholders approve
the Merger Agreement. A copy of the Merger Agreement is attached as Annex A to this proxy statement. You are urged to read the
Merger Agreement in its entirety because it is the principal legal document that governs the Merger. For additional information about
the Merger Agreement, see “The Merger Agreement” below.
The Companies
iClick Interactive Asia Group Limited
ListCo is an exempted company with limited liability incorporated
under the laws of the Cayman Islands. ListCo’s principal executive office is located at 15/F, Prosperity Millennia Plaza 663 King’s
Road, Quarry Bay, Hong Kong S.A.R., People’s Republic of China. ListCo’s telephone number at this address is +852 3700 9000.
ListCo’s registered office in the Cayman Islands is PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands.
ListCo is a renowned online marketing and enterprise solutions provider
in Asia that empowers worldwide brands with full-stack consumer lifecycle solutions.
For a description of ListCo’s history, development, business
and organizational structure, see ListCo’s Annual Report on Form 20-F for the fiscal year ended December 31, 2023, filed
on June 20, 2024, which is incorporated herein by reference. Please see “Where You Can Find More Information” beginning
on page 135 for a description of how to obtain a copy of such Annual Report.
Overlord Merger Sub Ltd.
Overlord Merger Sub Ltd. (“Merger Sub”) is an exempted
company with limited liability incorporated under the laws of the Cayman Islands and is directly and wholly-owned by ListCo. Merger Sub
was formed solely for the purpose of engaging in the transactions contemplated by the Merger Agreement (as defined below), including
the Merger (as defined below). The registered office address is the offices of International Corporation Services Ltd, PO Box 472, 2nd
Floor, Harbour Place, 103 South Church Street, George Town, Grand Cayman KY1-1106, Cayman Islands.
Amber DWM Holding Limited
Amber DWM is an exempted company with limited liability incorporated
under the laws of the Cayman Islands. Amber DWM’s principal executive office is located at 1 Wallich Street, #30-02 Guoco Tower,
Singapore 078881. Amber DWM’s telephone number at this address is +65 6022 0228. Amber DWM’s registered office in the Cayman
Islands is located at Maples Corporate Services Limited, PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands.
Amber DWM, operating under the well-known brand “Amber Premium,”
is a leading digital wealth management platform offering private banking-level solutions tailored for the dynamic cryptoeconomy. Serving
a premium clientele of esteemed institutions and qualified individuals, Amber DWM develops and supports innovative digital wealth management
products. Its institutional-grade access and operations make it the top choice for one-stop digital wealth management services, providing
tailored, secure solutions that drive growth in the Web3 economy.
For a more detailed description of Amber DWM’s history, development,
business and organizational structure, see “Information about Amber DWM” beginning on page 101.
Vote Required
Assuming that a quorum is present at the extraordinary general meeting,
approval of the Merger Agreement requires a majority of not less than two-thirds of votes cast by shareholders as, being entitled to
do so, vote in person or by proxy or by corporate representative, at the extraordinary general meeting.
Merger Consideration
The Merger values iClick at an equity value at US$40,000,000 (the
“ICLK Equity Value”) on a fully-diluted basis, and values Amber DWM at an equity value at US$360,000,000 on a fully-diluted
basis (the “DWM Equity Value”), assuming the completion of the DWM Asset Restructuring as described below.
At the Effective Time, each share of Amber DWM (“DWM Shares”)
issued and outstanding immediately prior to the Effective Time will be surrendered and cancelled in exchange for the right to receive
(x) in the case of any DWM Share held by AB Founder HoldCo, a number of validly issued, fully paid and non-assessable New Class B
Shares, and (y) in all other cases, a number of validly issued, fully paid and non-assessable New Class A Shares, in each case,
equal to (a) the DWM per share value (which is in turn calculated by (i) the DWM Equity Value divided by (ii) the number
of ordinary shares of Amber DWM that are outstanding immediately prior to the Effective Time), divided by (b) the ICLK per share
value (which is in turn calculated by (i) the ICLK Equity Value, divided by (ii) the number of all ICLK Class A Shares
and ICLK Class B Shares (collectively, “ICLK Shares”) that are outstanding immediately prior to the Effective Time on
a fully-diluted basis, assuming the issuance of all ICLK Shares that are required to be issued, but have not been issued as of immediately
prior to the Effective Time, in connection with the acquisition by ICLK of certain share capital of Changyi (Shanghai) Information Technology
Ltd.) (the “Per Share Merger Consideration”, and the aggregate number of New Class A Shares and New Class B Shares
to be issued by ListCo, the “Merger Consideration”), except for (x) all ordinary shares of DWM that are owned by iClick,
Amber DWM, Merger Sub or any subsidiary of Amber DWM immediately prior to the Effective Time which shall automatically be canceled and
shall cease to exist, and (y) ordinary shares of Amber DWM issued and outstanding immediately prior to the Effective Time held by
holders who have validly exercised, or have not otherwise lost, their dissenters’ rights for such ordinary shares of Amber DWM
in accordance with Section 238 of the Cayman Islands Companies Act (such ordinary shares of Amber DWM being referred to collectively
as the “Dissenting Shares”, and holders of the Dissenting Shares collectively, the “Dissenting Shareholders”)
shall be cancelled and cease to exist at the Effective Time and the Dissenting Shareholders shall not be entitled to receive the Per
Share Merger Consideration, but instead shall be entitled only to receive the payment of the fair value of such Dissenting Shares held
by them determined in accordance with Section 238 of the Cayman Islands Companies Act.
The ADSs, each representing five (5) ICLK Class A Shares,
are listed on Nasdaq under the symbol “ICLK.” On November 27, 2024, the last trading day prior to the date of the public
announcement of the execution of the Merger Agreement, the closing price per ADS was US$7.10. On December 18, 2024, the last practicable
date prior to the date of the proxy statement, the closing price per ADS was US$8.58.
Fairness Opinion of the Board’s Financial Advisor
The Board retained Houlihan Lokey as its financial advisor in
connection with the Merger. Houlihan Lokey issued a fairness opinion as to whether, as of the date of such opinion, the DWM
Equity Value in connection with the Merger is fair to the Company from a financial point of view. This opinion is subject to numerous assumptions and factors, including
certain information relating to the historical, current and future operations, financial condition and prospects of Amber DWM made
available to Houlihan Lokey by Amber DWM.
Treatment of Equity Awards
Each option, RSU and any other equity award of iClick that is outstanding
and unexercised immediately prior to the Effective Time, whether or not vested or exercisable, shall remain outstanding and shall remain
subject to the terms and conditions of (a) the 2018 Share Incentive Plan, or (b) the Post-IPO Share Incentive Plan (collectively,
the “ICLK Share Plans”), as applicable. and any relevant award agreements applicable to such equity plans.
Ownership of New Ordinary Shares After the Merger
Upon completion of the transactions contemplated by the Merger Agreement,
the existing Amber DWM shareholders and existing ListCo shareholders (including holders of ADSs) will own approximately 90% and 10%,
respectively, of the outstanding shares of the combined company, representing approximately 97% and 3%, of the voting power of the combined
company, respectively. See “Security Ownership of Certain Beneficial Owners and Management” beginning on page 127 for
additional information.
Purposes and Effects of the Merger
The purpose of the Merger is to enable ListCo to acquire 100% control
of Amber DWM in a transaction in which the holders of securities of Amber DWM will receive New Ordinary Shares. The ADSs are currently
listed on Nasdaq under the symbol “ICLK.” It is expected that, following the consummation of the Merger, ListCo will maintain
its listing on Nasdaq under a new symbol “AMBR.”
Interests of ListCo Directors and Executive Officers in the Merger
In considering the recommendations of the Board to vote for the Merger
Proposal, you should be aware that certain of the current directors and executive officers of ListCo have interests in the Merger that
may be different from, or in addition to, the interests of unaffiliated ListCo shareholders generally and may create potential conflicts
of interest. For example, pursuant to the terms of the Merger Agreement, ListCo’s directors and executive officers may be entitled
to continued indemnification and insurance coverage. The Board was aware of each of these interests in reviewing, considering and negotiating
the terms of the proposed Merger and in recommending that ListCo shareholders approve the adoption of the Merger Agreement.
Anticipated Accounting Treatment
The Business Combination will be accounted for
as a reverse acquisition (reverse merger) in accordance with Generally Accepted Accounting Principles in the United States (“U.S.
GAAP”). Under this method of accounting, the Company will be treated as the “acquired” company for financial reporting
purposes.
No Appraisal or Dissenters’ Rights
No appraisal or dissenters’ rights are available to our shareholders
under the Companies Act of the Cayman Islands or ListCo’s memorandum and articles of association in connection with the types of
actions contemplated under the Merger Proposal. As a result, holders of our ICLK Shares or ADSs will not have the right to seek appraisal
and payment of the fair value of the ICLK Shares, including those underlying their ADSs.
Recommendation of ListCo’s Board of Directors
The Board has determined that the Merger and the other transactions
contemplated by the Merger Agreement are fair to, advisable and in the best interests of ListCo and its shareholders, authorized and
approved the Merger Agreement and the plan of merger and recommends that the ListCo shareholders vote “FOR” the Merger Proposal.
THE
MERGER AGREEMENT
The summary of the material terms and conditions of the Merger
Agreement below and elsewhere in this proxy statement is qualified in its entirety by the Merger Agreement, the full text of which was
included as Annex A to, and incorporated by reference into, this proxy statement. This summary does not purport to be complete and
may not contain all the information about the Merger Agreement that is important to you. You are encouraged to read the Merger Agreement
in its entirety because it is the principal legal document that governs the Merger.
The representations and warranties contained in the Merger Agreement
were made only for the purposes of the Merger Agreement as of the specific dates therein and were made solely for the benefit of the
parties to the Merger Agreement. The representations and warranties contained in the Merger Agreement may be subject to limitations agreed
upon by the parties to the Merger Agreement and are qualified by information in confidential disclosure schedules delivered connection
with the signing of the Merger Agreement. These confidential disclosure schedules contain information that modifies, qualifies and creates
exceptions to the representations and warranties set forth in the Merger Agreement. Moreover, certain representations and warranties
in the Merger Agreement may be subject to a standard of materiality provided for in the Merger Agreement and have been used for the purpose
of allocating risk among the parties, rather than establishing matters of fact. Investors should not rely on the representations, warranties
and covenants or any descriptions thereof as characterizations of the actual state of facts or condition of Amber DWM or ListCo. Moreover,
information concerning the subject matter of the representations and warranties may change after the date of the Merger Agreement, which
subsequent information may or may not be fully reflected in ListCo’s public disclosure.
For the foregoing reasons, the representations, warranties, covenants
and agreements and any descriptions of those Merger Agreement provisions in this proxy statement should not be read as characterizations
of the actual state of facts or condition of Amber DWM or ListCo. Moreover, such provisions or descriptions should be read only in conjunction
with the other information provided elsewhere in this proxy statement or incorporated by reference into this proxy statement.
Structure and Consummation of the Merger
The Merger Agreement provides for the merger of Merger Sub with and
into Amber DWM upon the terms and subject to the conditions set forth in the Merger Agreement and in accordance with the applicable provisions
of the Cayman Islands Companies Act, whereupon Merger Sub will be struck off the register of companies in the Cayman Islands and the
separate corporate existence of Merger Sub will cease and Amber DWM will continue its existence as the surviving company. As a result
of the Merger, Amber DWM will become a wholly owned subsidiary of ListCo.
The Closing will occur by electronic exchange of documents and signatures
on the tenth (10th) business day after satisfaction or waiver of the conditions to the Merger (other than those conditions
that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of each such condition), or at such
other time, date and place as iClick and Amber DWM may mutually agree in writing. The date on which the Closing actually takes place
is referred to herein as the “Closing Date”. On the Closing Date, the applicable parties shall cause the Merger to
be consummated by executing and filing a plan of merger for the Merger in accordance with the relevant provisions of the Cayman Islands
Companies Act, substantially in the form attached as Annex B to the proxy statement (the “Plan of Merger”), with
the Registrar of Companies of the Cayman Islands.
We currently expect that the Merger will be consummated by June 30,
2025, after all conditions to the Merger have been satisfied or waived. We cannot specify when, or assure you that, all conditions to
the Merger will be satisfied or waived; however, we intend to complete the Merger as promptly as practicable.
Memorandum and Articles of Association; Directors and Officers
of ListCo after Closing
Immediately before the Effective Time, ListCo will change its name
to “Amber International Holding Limited” (the “Name Change”) and adopt the tenth amended and restated memorandum
and articles of association (the “Amendment of M&A”) in the form attached as Annex C to the proxy statement, concurrently
with which (a) the authorized share capital of iClick shall become US$1,300,000 divided into 1,300,000,000 shares comprising of (i) 1,191,000,000
Class A ordinary shares of a par value of US$0.001 each (each a “New Class A Share”) and (ii) 109,000,000 Class B ordinary
shares of a par value of US$0.001 each (each a “New Class B Share”), and (b) all Class A ordinary shares of iClick
immediately prior to the adoption of the Amendment of M&A, par value US$0.001 per share (each a “ICLK Class A Share”)
and all Class B ordinary shares of ICLK immediately prior to the adoption of the Amendment of M&A, par value US$0.001 per share (each
a “ICLK Class B Share”) the holders of which have delivered a written notice to iClick to convert its ICLK Class B
Shares to ICLK Class A Shares with immediate effect on the Closing Date immediately before the Effective Time (such ICLK Class B Shares,
the “Converting ICLK Class B Shares”), in the authorized share capital of iClick (including all issued and outstanding
ICLK Class A Shares and Converting ICLK Class B Shares, and all authorized but unissued ICLK Class A Shares and ICLK Class B Shares) shall
be re-designated as New Class A Shares, and all ICLK Class B Shares other than the Converting ICLK Class B Shares shall be re-designated
as New Class B Shares (unless such New Class B Shares are otherwise required to be automatically converted into New Class A Shares in
accordance with the Amendment of M&A (assuming the Amendment of M&A proposal is approved)) (collectively, the “Variation
of Share Capital”).
iClick has agreed to take all necessary action prior to the Effective
Time such that (a) each director of iClick in office immediately prior to the Effective Time shall cease to be a director immediately
following the Effective Time (including by causing each such director to tender an irrevocable resignation as a director, effective as
of the Effective Time) and (b) the Board, immediately after the Effective Time, shall consist of seven (7) directors, all of
which will be designated in writing by DWM at least ten (10) business days prior to the Closing (each, a “ListCo Director”),
with one ListCo Director being the chairman of the Board.
iClick has agreed to take all necessary action prior to the Effective
Time such that (i) each officer of iClick in office immediately prior to the Effective Time shall cease to be an officer immediately
following the Effective Time and (ii) such individuals designated in writing by DWM be appointed the officers of ListCo as of the
Effective Time until the earlier of their death, resignation or removal or until their respective successors are duly elected or appointed;
provided that, certain employees of iClick, including its Chief Financial Officer, Ms. Josephine Ngai, will be offered an
opportunity to remain employed by the applicable ICLK Group Company from the Effective Time to the first anniversary of the Effective
Time, on terms no less favorable than the terms of his or her employment immediately prior to the Effective Time.
Merger Consideration
The Merger values iClick at an equity value at US$40,000,000 (the
“ICLK Equity Value”) on a fully-diluted basis, and values Amber DWM at an equity value at US$360,000,000 on a fully-diluted
basis (the “DWM Equity Value”), assuming the completion of the DWM Asset Restructuring as described below.
At the Effective Time, each share of Amber DWM (“DWM Shares”)
issued and outstanding immediately prior to the Effective Time will be surrendered and cancelled in exchange for the right to receive
(x) in the case of any DWM Share held by AB Founder HoldCo, a number of validly issued, fully paid and non-assessable New Class B
Shares, and (y) in all other cases, a number of validly issued, fully paid and non-assessable New Class A Shares, in each case,
equal to (a) the DWM per share value (which is in turn calculated by (i) the DWM Equity Value divided by (ii) the
number of ordinary shares of Amber DWM that are outstanding immediately prior to the Effective Time), divided by (b) the
ICLK per share value (which is in turn calculated by (i) the ICLK Equity Value, divided by (ii) the number of all ICLK
Class A Shares and ICLK Class B Shares (collectively, “ICLK Shares”) that are outstanding immediately prior
to the Effective Time on a fully-diluted basis, assuming the issuance of all ICLK Shares that are required to be issued, but have not
been issued as of immediately prior to the Effective Time, in connection with the acquisition by ICLK of certain share capital of Changyi
(Shanghai) Information Technology Ltd.) (the “Per Share Merger Consideration”, and the aggregate number of New Class A
Shares and New Class B Shares to be issued by ListCo, the “Merger Consideration”), except for (x) all ordinary
shares of DWM that are owned by iClick, Amber DWM, Merger Sub or any subsidiary of Amber DWM immediately prior to the Effective Time
which shall automatically be canceled and shall cease to exist, and (y) ordinary shares of Amber DWM issued and outstanding immediately
prior to the Effective Time held by holders who have validly exercised, or have not otherwise lost, their dissenters’ rights for
such ordinary shares of Amber DWM in accordance with Section 238 of the Cayman Islands Companies Act (such ordinary shares of Amber
DWM being referred to collectively as the “Dissenting Shares”, and holders of the Dissenting Shares collectively,
the “Dissenting Shareholders”) shall be cancelled and cease to exist at the Effective Time and the Dissenting Shareholders
shall not be entitled to receive the Per Share Merger Consideration, but instead shall be entitled only to receive the payment of the
fair value of such Dissenting Shares held by them determined in accordance with Section 238 of the Cayman Islands Companies Act.
The ADSs, each representing five (5) ICLK Class A Shares,
are listed on Nasdaq under the symbol “ICLK.” On November 27, 2024, the last trading day prior to the date of the public
announcement of the execution of the Merger Agreement, the closing price per ADS was US$7.10. On December 18, 2024, the last practicable
date prior to the date of the proxy statement, the closing price per ADS was US$8.58.
Treatment of Equity Awards of iClick
Each option, RSU and any other equity award of iClick that is outstanding
and unexercised immediately prior to the Effective Time, whether or not vested or exercisable, shall remain outstanding and shall remain
subject to the terms and conditions of (a) the 2018 Share Incentive Plan, or (b) the Post-IPO Share Incentive Plan (collectively,
the “ICLK Share Plans”), as applicable, and any relevant award agreements applicable to such equity plans.
DWM Asset Restructuring
Pursuant to the Merger Agreement, Amber DWM agrees to (i) acquire
100% of the equity interests in WhaleFin Markets Limited (“WhaleFin HK”), a company incorporated in Hong Kong, from Amber
Global Limited, a Cayman Islands exempted company, for a consideration of US$1 (the “WhaleFin HK Equity Transfer”), and (b) cause
its subsidiary Amber Premium FZE (“FZE”) to assume all rights and obligations under all of the customer contracts
to which WFTL is a party (the “WFTL Assigned Contracts”) (the “WFTL Contract Assignment”, and collectively with
the WhaleFin HK Equity Transfer, the “DWM Asset Restructuring”).
Amber DWM shall cause WhaleFin HK to obtain (i) the license to
operate a virtual asset trading platform under section 1 of Part 1 of Schedule 3B to the Anti-Money Laundering and Counter-Terrorist
Financing Ordinance (Cap. 615 of the Laws of Hong Kong), and (ii) the license to conduct Type 1 (dealing in securities) and Type
7 (providing automated trading services) regulated activities under the Securities and Futures Ordinance (Cap. 571 of the Laws of Hong
Kong) (together, the “HK Licenses”). The WhaleFin HK Equity Transfer shall be consummated after the obtaining of the
HK Licenses by WhaleFin HK, and shall be conditioned upon any requisite approval by the Securities and Futures Commission of Hong Kong
on the WhaleFin HK Equity Transfer (together with the HK Licenses, the “HK Approvals”).
The consummation of the FZE Assignment shall be conditioned upon the
obtaining by FZE of the Virtual Asset Service Provider license from the Virtual Assets and Regulatory Authority of Dubai (“VARA”,
together with the HK Approvals, the “Restructuring Requisite Approvals”).
The completion of the DWM Asset Restructuring is a condition to the
obligations of iClick and Merger Sub to consummate and effect the Merger and the other transactions contemplated under the Merger Agreement,
which may be waived by iClick. Amber DWM and iClick also agree to discuss in good faith a reasonable alternative structure to consummate
the DWM Asset Restructuring that will provide iClick with substantially the same economic benefits upon the Closing and the other transactions
contemplated under the Merger Agreement, to be implemented in the event that (i) the DWM Asset Restructuring has not been completed
due to the failure to obtain one or more of the Restructuring Requisite Approvals, and (ii) all other conditions to the Closing
have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing, provided that each
of such conditions is capable of being satisfied at the Closing). In the event that iClick and Amber DWM agree upon such alternative
structure to consummate the DWM Asset Restructuring, the parties may also agree on alternative arrangements in respect to the Regulatory
Approval Condition, including the waiver or modification of the Regulatory Approval Condition in respect of one or more license or approval
related to the Restructuring Requisite Approvals.
Representations and Warranties
The Merger Agreement contains a number of representations and warranties
made by Amber DWM that are subject in certain cases to exceptions and qualifications contained in the Merger Agreement or in the Amber
DWM confidential disclosure schedule delivered to iClick in connection with the execution of the Merger Agreement (the “DWM
Disclosure Letter”). The representations and warranties (subject to their respective qualifications as provided in the Merger
Agreement) made by Amber DWM to iClick and Merger Sub include the following, among other things:
| · | corporate
organization, qualification to do business, good standing, corporate power and compliance
with organizational documents of Amber DWM; |
| · | capitalization,
corporate organization, qualification to do business, good standing, corporate power and
compliance with organizational documents of the subsidiaries of Amber DWM; |
| · | good,
exclusive and marketable title of Amber DWM and its subsidiaries (including WhaleFin HK and
its subsidiaries, collectively, the “DWM Group Companies”) to such assets, rights
and properties necessary to perform obligations under the WFTL Assigned Contracts in all
material respects; |
| · | capitalization
of Amber DWM; |
| · | due
authorization, execution and validity of the Merger Agreement and other transaction documents; |
| · | absence
of any violation, conflict or breach of agreements, or any conflict with or violation of
organizational documents or laws, as a result of the execution, delivery or performance of
the Merger Agreement and other transaction documents, and consummation of the transactions; |
| · | governmental
consents and approvals for the Merger and other transactions; |
| · | compliance
with laws and possession of approvals; |
| · | investor
status of each shareholder of Amber DWM who is to receive Merger Consideration; |
| · | financial
statements and internal control; |
| · | absence
of undisclosed liabilities; |
| · | absence
of certain changes or events; |
| · | employee
benefit plans and labor matters; |
| · | real
property and tangible property matters; |
| · | fees
payable to finders or brokers in connection with the Merger and other transactions; |
| · | data
privacy and cybersecurity; |
| · | interested
party transactions; |
| · | accuracy
of certain information supplied; |
| · | compliance
with anti-bribery and anti-corruption laws; |
| · | compliance
with international trade laws and sanctions laws; |
| · | completion
of the DWM Asset Restructuring as of the Closing and the possession of required material
licenses and approvals to operate the business of the DWM Group Companies afterwards; and |
| · | no
additional representations and warranties. |
Certain of these representations and warranties are qualified as to
“materiality” or “DWM Material Adverse Effect.” For purposes of the Merger Agreement, “DWM Material
Adverse Effect” means any state of facts, development, change, circumstance, occurrence, event or effect, that, individually
or in the aggregate, has had, or would reasonably be expected to have, a material adverse effect on (a) the business, assets, liabilities,
financial condition or results of operations of the DWM Group Companies, taken as a whole (assuming the completion of the DWM Asset Restructuring),
or (b) the ability of DWM to consummate the transactions by the Outside Date; provided, however, that in no event will any of the
following (or the effect of any of the following), alone or in combination, be taken into account in determining whether a DWM Material
Adverse Effect pursuant to clause (a) has occurred: acts of war, sabotage, cyberattacks, civil unrest or terrorism, or any escalation
or worsening of any such acts of war, sabotage, cyberattacks, civil unrest or terrorism, or changes in global, national, regional, state
or local political or social conditions; (ii) earthquakes, hurricanes, tornados, pandemics or other natural or man-made disasters;
(iii) changes attributable to the public announcement, performance or pendency of the transactions (including the impact thereof
on relationships with customers, suppliers or employees); (iv) changes or proposed changes in applicable legal requirements, regulations
or interpretations thereof or decisions by courts or any governmental entity after the date of the Merger Agreement; (v) changes
in applicable accounting principles (or any interpretation thereof) after the date of the Merger Agreement; (vi) general economic,
regulatory or tax conditions, including changes in the credit, debt, securities or financial markets (including changes in interest or
exchange rates) after the date of the Merger Agreement; (vii) events or conditions generally affecting the industries and markets
in which the DWM Group Companies operate; (viii) any failure to meet any projections, forecasts, guidance, estimates or financial
or operating predictions of revenue, earnings, cash flow or cash position, provided that this clause (viii) shall not prevent a
determination that the underlying facts and circumstances resulting in such failure has resulted in a DWM Material Adverse Effect; or
(ix) any actions (A) required to be taken, or required not to be taken, pursuant to the terms of the Merger Agreement or (B) taken
with the prior written consent of or at the prior written request of iClick or Merger Sub; provided, however, that if any state of facts,
developments, changes, circumstances, occurrences, events or effects related to clauses (i), (ii), (iv), (v), (vi) or (vii) above
disproportionately and adversely affect the business, assets, financial condition or results of operations of the DWM Group Companies,
taken as a whole, relative to similarly situated companies in the industries in which the DWM Group Companies conduct their respective
operations, then such incremental disproportionate impact may be taken into account (unless otherwise excluded) in determining whether
a DWM Material Adverse Effect has occurred.
The Merger Agreement contains a number of representations and warranties
made by iClick and Merger Sub that are subject in certain cases to exceptions and qualifications contained in the Merger Agreement, in
iClick’s confidential disclosure schedule delivered to Amber DWM concurrently with the execution of the Merger Agreement (the “ICLK
Disclosure Letter”), or in certain filings filed or furnished with the SEC. The representations and warranties (subject to
their respective qualifications as provided in the Merger Agreement) made by iClick and Merger Sub to Amber DWM include the following,
among other things:
| · | corporate
organization, qualification to do business, good standing, corporate power and compliance
with organizational documents of iClick and Merger Sub; |
| · | capitalization,
corporate organization, qualification to do business, good standing, corporate power and
compliance with organizational documents of the subsidiaries of iClick; |
| · | capitalization
of iClick; |
| · | due
authorization of issuance of the Merger Consideration; |
| · | due
authorization, execution and validity of the Merger Agreement and other transaction documents; |
| · | absence
of any violation, conflict or breach of agreements, or any conflict with or violation of
organizational documents or laws, as a result of the execution, delivery or performance of
the Merger Agreement and other transaction documents, and consummation of the transactions; |
| · | governmental
consents and approvals for the Merger and other transactions; |
| · | compliance
with laws and possession of approvals; |
| · | SEC
reports and financial statements; |
| · | disclosure
control and internal control; |
| · | absence
of undisclosed liabilities; |
| · | absence
of certain changes or events; |
| · | employee
benefit plans and labor matters; |
| · | real
property and tangible property matters; |
| · | fees
payable to finders or brokers in connection with the Merger and other transactions; |
| · | data
privacy and cybersecurity; |
| · | interested
party transactions; |
| · | accuracy
of certain information supplied; |
| · | compliance
with anti-bribery and anti-corruption laws; |
| · | compliance
with international trade laws and sanctions laws; |
| · | iClick’s
listing on Nasdaq; |
| · | the
disposal of certain businesses of iClick that occurred prior to the execution of the Merger
Agreement; and |
| · | no
additional representations and warranties. |
Certain of these representations and warranties are qualified as to
“materiality” or “ICLK Material Adverse Effect.” For purposes of the Merger Agreement, “ICLK Material
Adverse Effect” means any state of facts, development, change, circumstance, occurrence, event or effect, that, individually
or in the aggregate, has had, or would reasonably be expected to have, a material adverse effect on (a) the business, assets, liabilities,
financial condition or results of operations of the operations of iClick and its subsidiaries (the “ICLK Group Companies”),
taken as a whole; or (b) the ability of iClick or Merger Sub to consummate the transactions by the Outside Date; provided, however,
that in no event will any of the following (or the effect of any of the following), alone or in combination, be taken into account in
determining whether an ICLK Material Adverse Effect pursuant to clause (a) has occurred: (i) acts of war, sabotage, cyberattacks,
civil unrest or terrorism, or any escalation or worsening of any such acts of war, sabotage, cyberattacks, civil unrest or terrorism,
or changes in global, national, regional, state or local political or social conditions; (ii) earthquakes, hurricanes, tornados,
pandemics or other natural or man-made disasters; changes attributable to the public announcement, performance or pendency of the transactions
(including the impact thereof on relationships with customers, suppliers or employees); (iv) changes or proposed changes in applicable
legal requirements, regulations or interpretations thereof or decisions by courts or any governmental entity after the date of the Merger
Agreement; (v) changes in applicable accounting principles (or any interpretation thereof) after the date of the Merger Agreement;
(vi) general economic, regulatory or tax conditions, including changes in the credit, debt, securities or financial markets (including
changes in interest or exchange rates) after the date of the Merger Agreement; (vii) events or conditions generally affecting the
industries and markets in which the ICLK Group Companies operate; (viii) any failure to meet any projections, forecasts, guidance,
estimates or financial or operating predictions of revenue, earnings, cash flow or cash position, provided that this clause (viii) shall
not prevent a determination that the underlying facts and circumstances resulting in such failure has resulted in an ICLK Material Adverse
Effect; or (ix) any actions (A) required to be taken, or required not to be taken, pursuant to the terms of the Merger Agreement
or (B) taken with the prior written consent of or at the prior written request of Amber DWM; provided, however, that if any state
of facts, developments, changes, circumstances, occurrences, events or effects related to clauses (i), (ii), (iv), (v), (vi) or
(vii) above disproportionately and adversely affect the business, assets, financial condition or results of operations of the ICLK
Group Companies, taken as a whole, relative to similarly situated companies in the industries in which the ICLK Group Companies conduct
their respective operations, then such incremental disproportionate impact may be taken into account (unless otherwise excluded) in determining
whether an ICLK Material Adverse Effect has occurred.
Conduct of Business Prior to the Closing
Except (a) as expressly contemplated by the Merger Agreement
or any other Transaction Agreements (including as contemplated by the DWM Asset Restructuring and the DWM Capital Restructuring, each
in a manner in accordance with the terms of this Agreement), (b) as required by applicable legal requirements, (c) as requested
by or consented to in writing by iClick (which consent shall not be unreasonably withheld, delayed or conditioned), or (d) as set
forth in the DWM Disclosure Letter, during the period from the date of the Merger Agreement until the earlier of (i) the Effective
Time and (ii) the termination of the Merger Agreement (such period, the “Interim Period”), DWM (x) shall, and shall
cause each of the DWM group companies to, conduct its business in the ordinary course of business consistent with past practice and in
accordance with applicable legal requirements, (y) shall not, and shall cause each of the DWM group companies not to:
| · | (I) increase
the maximum aggregate number of DWM Shares which may be issued pursuant to any DWM Share
Plan as of the date hereof or otherwise amend any DWM Share Plan, (II) without prior
written notification to ICLK, hire or terminate any employee, or, (III) except as otherwise
required by any DWM employee benefit plan as in effect on the date of the Merger Agreement
or applicable legal requirements: (i) increase in any manner the compensation or benefits
payable, or to become payable to, any current or former employee, director or independent
contractor, except for (A) individual increases of not more than 20% in the base salary
or wage rate of any current employee who has annual base compensation of less than US$100,000
in the ordinary course of business, (B) the payment of annual bonuses and other short-term
incentive compensation in the ordinary course of business (including with respect to the
determination of the achievement of any applicable performance objectives, whether qualitative
or quantitative) consistent with past practice, (C) increases of compensation for employees
who change jobs, (D) increases of compensation to reflect market adjustments on the
basis of objective data and (E) increases of compensation to adjust for gender equity
as needed; (ii) grant or pay any severance or change in control pay or benefits to,
or otherwise increase the severance or change in control pay or benefits of, any current
or former employee, director or independent contractor, other than the payment of severance
in the ordinary course of business; (iii) establish, adopt, enter into, amend or terminate
any collective bargaining agreement, DWM’s employee benefit plan or any employee benefit
plan, policy, program, agreement, trust or arrangement that would have constituted a DWM’s
employee benefit plan if it had been in effect on the date of the Merger Agreement; (iv) take
any action to accelerate the vesting or payment of, or otherwise fund or secure the payment
of, any compensation or benefits under any DWM’s employee benefit plan or otherwise;
or (v) grant any equity or equity-based compensation awards; |
| · | (i) transfer,
sell, assign, license (other than non-exclusive licenses granted to employees, contractors,
suppliers, vendors, distributors or customers in the ordinary course of business in object
code form, for the use by such customers of the DWM Group Companies’ products or services
or the provision of services by such contractors, suppliers, vendors, or distributors to
the DWM Group Companies) any DWM Owned IP (as defined in the Merger Agreement) material to
the DWM Group Companies; (ii) subject any DWM Owned IP material to the DWM Group Companies
to a lien (other than Permitted Liens (as defined in the Merger Agreement)); (iii) abandon,
let lapse or fail to maintain or renew any DWM Registered IP (as defined in the Merger Agreement)
(other than DWM Registered IP that (x) is not material to the DWM Group Companies or
(y) is expiring at the end of its natural statutory term) or (iv) subject or agree
to subject any DWM Code (as defined in the Merger Agreement) material to the DWM Group Companies
to the terms of any Open Source Software license and engage in certain activities with respect
to such material DWM Code; |
| · | except
for transactions solely among the DWM Group Companies: (i) declare, set aside or pay
any dividends on or make any other distributions (whether in cash, stock, equity securities
or property) in respect of any share capital or otherwise, or split, combine or reclassify
any share capital or issue or authorize the issuance of any other securities in respect of,
in lieu of or in substitution for any share capital or reorganization, recapitalization,
exchange of shares or other like change with respect to any share capital; (ii) repurchase,
redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any membership
interests, share capital or any other equity interests, as applicable, in any DWM Group Company
(other than repurchases, redemptions or other acquisitions of equity interests from directors,
officers or employees in accordance with the terms of any equity incentive plan or such person’s
employment, grant or subscription agreement, in each case, in accordance with such DWM Group
Company’s governing documents and such plan or agreement, as in effect as of the date
of the Merger Agreement); or (iii) grant, issue, sell or otherwise dispose, or authorize
to issue, sell, or otherwise dispose any membership interests, share capital or any other
equity interests (such as stock options, stock units, restricted stock or other contracts
for the purchase or acquisition of such share capital), as applicable, in any DWM Group Company; |
| · | amend
its governing documents; |
| · | except
in the ordinary course of business: (i) merge, consolidate or combine any DWM Group
Company with a third party; or (ii) acquire or agree to acquire by merging or consolidating
with, purchasing a majority of the equity interest in or all or substantially all of the
assets of, or by any other manner, any third-party business or corporation, partnership,
association or other business organization or division thereof, to the extent the aggregate
transaction value of such investments and acquisitions exceeds US$1,000,000; |
| · | voluntarily
dispose of or amend any DWM Real Property Lease (as defined in the Merger Agreement) other
than in the ordinary course of business or as would not reasonably be expected to be material
to the DWM Group Companies, individually or in the aggregate; |
| · | other
than with respect to the DWM Real Property Leases (as defined in the Merger Agreement) and
intellectual property, voluntarily sell, lease, license, sublicense, abandon, divest, transfer,
cancel, abandon or permit to lapse or expire, dedicate to the public, or otherwise dispose
of, or agree to do any of the foregoing, or otherwise dispose of assets or properties material
to the DWM Group Companies, other than in the ordinary course of business or pursuant to
contracts existing on the date of the Merger Agreement; |
| · | (i) make,
create any loans, advances or capital contributions to, or investments in, any person other
than any of the DWM Group Companies and other than advances for business expenses and loans
or advances to customers and suppliers in the ordinary course of business; (ii) create,
incur, assume, guarantee or otherwise become liable for, any indebtedness incurred after
the date of the Merger Agreement in excess of US$500,000, other than such indebtedness incurred
in the ordinary course of business and guarantees of any indebtedness of any DWM Group Companies
that does not and will not reasonably be expected to result in or give rise to any rights
of consent, termination, amendment, acceleration (including any forced repurchase or put
right) or cancellation by any person in connection with the transactions contemplated under
the Merger Agreement; (iii) except in the ordinary course of business, create any liens
on any material property or material assets of any of the DWM Group Companies in connection
with any indebtedness thereof (other than Permitted Liens); or (iv) cancel or forgive
any indebtedness owed to any of the DWM Group Companies other than ordinary course compromises
of amounts owed to the DWM Group Companies by their respective customers; |
| · | compromise,
settle or agree to settle any legal proceeding involving payments by any DWM Group Company
of US$500,000 or more, or that imposes any material non-monetary obligations on a DWM Group
Company (excluding, for the avoidance of doubt, confidentiality, non-disparagement or other
similar obligations incidental thereto), in each case, other than certain disclosed litigation; |
| · | except
in the ordinary course of business or as would not reasonably be expected to be material
to the DWM Group Companies, individually or in the aggregate: (A) modify, amend in a
manner that is adverse to the applicable DWM Group Company or terminate any DWM Material
Contract (as defined in the Merger Agreement); (B) enter into any contract that would
have been a DWM Material Contract (as defined in the Merger Agreement), had it been entered
into prior to the date of the Merger Agreement; or (C) waive, delay the exercise of,
release or assign any material rights or claims under any DWM Material Contract (as defined
in the Merger Agreement) (other than assignments among the DWM Group Companies); |
| · | except
as required by applicable accounting principles (or any interpretation thereof) or applicable
legal requirements (including to obtain compliance with PCAOB auditing standards), make any
material change in accounting methods, principles or practices; |
| · | make,
change or revoke any material tax election, change (or request to change) any material method
of accounting for tax purposes, file any amended material tax return, settle or compromise
any material tax liability, enter into any material closing agreement with respect to any
tax or surrender any right to claim a material refund of taxes, consent to any extension
or waiver of the limitations period applicable to any material tax claim or assessment, or
enter into any tax indemnity, tax sharing or tax allocation agreement (other than commercial
agreements entered into in the ordinary course of business and the principal purpose of which
is not related to taxes); |
| · | authorize,
recommend, propose or announce an intention to adopt a plan of complete or partial liquidation,
restructuring, recapitalization, dissolution or winding-up of any DWM Group Company; |
| · | subject
to the first bullet above, enter into or amend any agreement with, or pay, distribute or
advance any assets or property to, any of its officers, directors, shareholders or other
affiliates (other than DWM Group Companies), other than (i) payments or distributions
relating to obligations in respect of arm’s-length commercial transactions, (ii) reimbursement
for reasonable expenses incurred in connection with any of the DWM Group Companies and (iii) employment
arrangements entered into in the ordinary course; |
| · | engage
in any material new line of business; |
| · | amend
any provision of its privacy policies in any material respect or in any manner adverse to
any of the DWM Group Companies (other than changes required to conform to applicable privacy
laws); or |
| · | agree
in writing or otherwise agree, commit or resolve to take any of the foregoing actions. |
Notwithstanding anything in the Merger Agreement to the contrary,
(i) nothing set forth in the Merger Agreement shall give any other party, directly or indirectly, the right to control or direct
the operations of any DWM Group Company and (ii) nothing set forth in the Merger Agreement shall prohibit, or otherwise restrict
the ability of Amber from paying any DWM Transaction Costs (as defined in the Merger Agreement), in each case, prior to the Closing.
Except (a) as expressly contemplated by the Merger Agreement
or any other Transaction Agreements, (b) as required by applicable legal requirements, (c) as requested by or consented to
in writing by Amber DWM (which consent shall not be unreasonably withheld, delayed or conditioned), or (d) as set forth in the ICLK
Disclosure Letter, during the Interim Period, iClick (x) shall, and shall cause each of the ICLK Group Companies to, conduct its
business in the ordinary course of business consistent with past practice and in accordance with applicable legal requirements, (y) shall
not, and shall cause each of the ICLK Group Companies not to:
| · | (I) increase
the maximum aggregate number of ICLK Ordinary Shares which may be issued pursuant to any
ICLK Share Plan as of the date of the Merger Agreement or otherwise amend any ICLK Share
Plan, (II) without prior written notification to DWM, hire or terminate any employee,
or, (III) except as otherwise required by any ICLK Share Plan as in effect on the date
of the Merger Agreement or applicable legal requirements: (i) increase the total compensation,
bonuses or benefits payable, or to become payable to, current and former employee, director
and independent contractor by more than 10% in the aggregate as compared to that of the most
recent fiscal year; (ii) grant or pay any severance or change in control pay or benefits
to, or otherwise increase the severance or change in control pay or benefits of, any current
or former employee, director or independent contractor, other than the payment of severance
in the ordinary course of business; (iii) establish, adopt, enter into, amend or terminate
any collective bargaining agreement, iClick’s employee benefit plan or any employee
benefit plan, policy, program, agreement, trust or arrangement that would have constituted
ICLK employee benefit plan if it had been in effect on the date of the Merger Agreement;
(iv) take any action to accelerate the vesting or payment of, or otherwise fund or secure
the payment of, any compensation or benefits under any of iClick’s employee benefit
plans or otherwise; (v) grant any equity or equity-based compensation awards other than
as permitted under the ICLK Share Plan; |
| · | (i) transfer,
sell, assign, license (other than non-exclusive licenses granted to employees, contractors,
suppliers, vendors, distributors or customers in the ordinary course of business in object
code form, for the use by such customers of the ICLK group companies’ products or services
or the provision of services by such contractors, suppliers, vendors, or distributors to
the ICLK group companies) any ICLK Owned IP (as defined in the Merger Agreement); (ii) subject
any ICLK Owned IP to a lien (other than Permitted Liens as defined in the Merger Agreement);
(iii) abandon, let lapse or fail to maintain or renew any ICLK Owned IP (as defined
in the Merger Agreement) (other than ICLK Owned IP that is not material to the ICLK group
companies) or (iv) subject or agree to subject any ICLK Code (as defined in the Merger
Agreement) to the terms of any Open Source Software license; |
| · | except
for transactions solely among the ICLK Group Companies wholly owned by ICLK directly or indirectly,
(i) declare, set aside or pay any dividends on or make any other distributions (whether
in cash, stock, equity securities or property) in respect of any capital stock or otherwise,
or split, combine or reclassify any capital stock or issue or authorize the issuance of any
other securities in respect of, in lieu of or in substitution for any capital stock or reorganization,
recapitalization, exchange of shares or other like change with respect to any share capital;
(ii) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise
acquire, any membership interests, capital stock or any other equity interests, as applicable,
in any ICLK Group Company (other than repurchases, redemptions or other acquisitions of equity
interests from directors, officers or employees in accordance with the terms of any ICLK
Share Plan or such person’s employment, grant or subscription agreement, in each case,
in accordance with such ICLK Group Company’s governing documents and such plan or agreement,
as in effect as of the date of the Merger Agreement); or (iii) grant, issue, sell or
otherwise dispose, or authorize to issue, sell, or otherwise dispose any membership interests,
capital stock or any other equity interests (such as stock options, stock units, restricted
stock or other contracts for the purchase or acquisition of such capital stock), as applicable,
in any ICLK Group Company (other than any grants, issuances or sales made to directors, officers
or employees in accordance with the terms of any ICLK Share Plan or such person’s employment,
grant or subscription agreement, in each case, in accordance with such ICLK Group Company’s
governing documents and such plan or agreement, as in effect as of the date of the Merger
Agreement); |
| · | amend
its governing documents; |
| · | except
in the ordinary course of business: (i) merge, consolidate or combine any ICLK Group
Company with a third party; or (ii) acquire or agree to acquire by merging or consolidating
with, purchasing a majority of the equity interest in or all or substantially all of the
assets of, or by any other manner, any third-party business or corporation, partnership,
association or other business organization or division thereof, to the extent the aggregate
transaction value of such investments and acquisitions exceeds $1,000,000; |
| · | voluntarily
dispose of or amend any ICLK Real Property Lease (as defined in the Merger Agreement) other
than in the ordinary course of business or as would not reasonably be expected to be material
to the ICLK Group Companies, individually or in the aggregate; |
| · | other
than with respect to the ICLK Real Property Leases (as defined in the Merger Agreement) and
intellectual property, voluntarily sell, lease, license, sublicense, abandon, divest, transfer,
cancel, abandon or permit to lapse or expire, dedicate to the public, or otherwise dispose
of, or agree to do any of the foregoing, or otherwise dispose of assets or properties material
to the ICLK Group Companies, other than in the ordinary course of business or pursuant to
contracts existing on the date of the Merger Agreement; |
| · | (i) make,
create any loans, advances or capital contributions to, or investments in, any person other
than any of the ICLK Group Companies and other than advances for business expenses and loans
or advances to customers and suppliers in the ordinary course of business; (ii) create,
incur, assume, guarantee or otherwise become liable for, any indebtedness incurred after
the date hereof in excess of US$500,000 other than such indebtedness incurred in the ordinary
course of business and guarantees of any indebtedness of any ICLK Group Companies wholly
owned by ICLK directly or indirectly that does not and will not reasonably be expected to
result in or give rise to any rights of consent, termination, amendment, acceleration (including
any forced repurchase or put right) or cancellation by any Person in connection with the
Transactions; (iii) except in the ordinary course of business, create any liens on any
material property or material assets of any of the ICLK Group Companies in connection with
any indebtedness thereof (other than Permitted Liens as defined in the Merger Agreement);
or (iv) cancel or forgive any indebtedness owed to any of the ICLK Group Companies other
than ordinary course compromises of amounts owed to the ICLK Group Companies by their respective
customers; |
| · | compromise,
settle or agree to settle any legal proceeding involving payments by any ICLK Group Company
of US$500,000 or more, or that imposes any material non-monetary obligations on an ICLK Group
Company (excluding, for the avoidance of doubt, confidentiality, non-disparagement or other
similar obligations incidental thereto), in each case, other than certain disclosed litigation; |
| · | except
in the ordinary course of business or as would not reasonably be expected to be material
to the ICLK Group Companies, individually or in the aggregate: (A) modify, amend in
a manner that is adverse to the applicable ICLK Group Company or terminate any ICLK Material
Contract (as defined in the Merger Agreement); (B) enter into any contract that would
have been a ICLK Material Contract (as defined in the Merger Agreement), had it been entered
into prior to the date of the Merger Agreement; or (C) waive, delay the exercise of,
release or assign any material rights or claims under any ICLK Material Contract (as defined
in the Merger Agreement) (other than assignments among the ICLK Group Companies); |
| · | except
as required by applicable accounting principles (or any interpretation thereof) or applicable
legal requirements (including to obtain compliance with PCAOB auditing standards), make any
material change in accounting methods, principles or practices; |
| · | make,
change or revoke any material tax election, change (or request to change) any material method
of accounting for tax purposes, file any amended material tax Return, settle or compromise
any material tax liability, enter into any material closing agreement with respect to any
tax or surrender any right to claim a material refund of taxes, consent to any extension
or waiver of the limitations period applicable to any material tax claim or assessment, or
enter into any tax indemnity, tax sharing or tax allocation agreement (other than commercial
agreements entered into in the ordinary course of business and the principal purpose of which
is not related to taxes); |
| · | authorize,
recommend, propose or announce an intention to adopt a plan of complete or partial liquidation,
restructuring, recapitalization, dissolution or winding-up of any ICLK Group Company; |
| · | subject
to the first bullet above, enter into or amend any agreement with, or pay, distribute or
advance any assets or property to, any of its officers, directors, shareholders or other
affiliates (other than ICLK Group Companies wholly owned by ICLK directly or indirectly),
other than (i) payments or distributions relating to obligations in respect of arm’s-length
commercial transactions, (ii) reimbursement for reasonable expenses incurred in connection
with any of the ICLK Group Companies, and (iii) employment arrangements entered into
in the ordinary course; |
| · | engage
in any material new line of business; |
| · | amend
any provision of its privacy policies in any material respect or in any manner adverse to
any of the ICLK Group Companies (other than changes required to conform to applicable privacy
laws); |
| · | convert
into RMB any cash held by the ICLK Group Companies in USD or any currency other than RMB,
except for such conversion in the ordinary course of business consistent with past practices
or for purposes of repaying indebtedness repayable in RMB but in each case only to the extent
necessary; or |
| · | agree
in writing or otherwise agree, commit or resolve to take any of the foregoing actions. |
Notwithstanding anything in the Merger Agreement to the contrary,
(i) nothing set forth in the Merger Agreement shall give any other party, directly or indirectly, the right to control or direct
the operations of any ICLK Group Company and (ii) nothing set forth in the Merger Agreement shall prohibit, or otherwise restrict
the ability of, any ICLK Group Company from paying any ICLK Transaction Costs (as defined in the Merger Agreement), in each case, prior
to the Closing.
Proxy Statement; Extraordinary general meeting; Shareholder Approvals
As promptly as practicable following the execution and delivery of
the Merger Agreement (and in any event no later than December 31, 2024, subject to the timely provision by DWM and its affiliates
of requisite information, materials and comment, including the requisite financial statements (including relevant pro forma financial
information), in each case in relation to DWM Group Companies), iClick shall prepare and furnish with the SEC a proxy statement of iClick
for the purpose of soliciting proxies from holders of ICLK Class A Shares and ICLK Class B Shares to vote at the Extraordinary
general meeting (as defined below) in favor of: (1) the approval and adoption of the Merger Agreement and the transactions contemplated
under the Merger Agreement (including the Merger); (2) the adoption of the Amendment of M&A (and the Variation of Share Capital
and the Name Change); and (3) any other proposals the parties deem necessary or desirable to consummate the transactions (collectively,
the “ICLK Shareholder Matters”). Without the prior written consent of DWM (such consent not to be unreasonably withheld,
conditioned or delayed), the ICLK Shareholder Matters shall be the only matters (other than procedural matters) which iClick shall propose
to be acted on by iClick shareholders at the Extraordinary general meeting. The proxy statement will comply as to form and substance
with the applicable legal requirements. iClick shall furnish the proxy statement with the SEC and cause the proxy statement to be mailed
to its shareholders of record, as of the record date to be established by the Board as promptly as practicable following the filing of
the proxy statement (such date, the “Proxy Filing Date”).
In the preparation of the proxy statement, iClick will make available
to Amber DWM drafts of the proxy statement and any other documents to be filed or furnished with the SEC that relate to the transactions,
both preliminary and final, and any amendment or supplement to the proxy statement or such other document and will provide Amber DWM
with a reasonable opportunity to comment on such drafts and shall consider such comments in good faith. In connection with the transactions
contemplated under the Merger Agreement, iClick shall not file or furnish any such documents with, or respond to any comments or requests
from, the SEC without the prior written consent of Amber DWM (such consent not to be unreasonably withheld, conditioned or delayed).
iClick will advise Amber DWM promptly (and in any event within one business day) after it receives notice thereof, of: (A) the time
when the proxy statement has been furnished with the SEC; (B) the furnishing of any supplement or amendment to the proxy statement;
and (C) requests by the SEC for additional information relating to the proxy statement, in each case of (A), (B) and (C), together
with a copy of the proxy statement, supplement or amendment thereto, or such request, as applicable.
iClick shall make all necessary filings with respect to the transactions
under the Securities Act, the Exchange Act and applicable “blue sky” laws, and any rules and regulations thereunder.
Amber DWM agrees to use reasonable best efforts to timely provide iClick with all information in its possession concerning (a) the
business, management, operations and financial condition of itself and its subsidiaries and (b) officers, directors, employees,
shareholders, and other equity holders and such other matters, in each case, reasonably requested by iClick for inclusion in the proxy
statement. Each of iClick and Amber DWM shall cause the directors, officers and employees of itself or its subsidiaries to be reasonably
available to iClick and its counsel, auditors and other advisors in connection with the drafting of the proxy statement.
iClick shall, as promptly as practicable following the Proxy Filing
Date, establish a record date (which date shall be agreed with Amber DWM) for, duly call and give notice of an extraordinary general
meeting of iClick shareholders (the “Extraordinary general meeting”), which will include a class vote of the shareholders
of the ICLK Class B Shares. iClick shall convene and hold the Extraordinary general meeting for the purpose of obtaining the approval
of the ICLK Shareholder Matters, which meeting shall be held not more than thirty-five (35) days after the date on which iClick mails
the proxy statement to its shareholders. iClick shall use reasonable best efforts to obtain the approval of the ICLK Shareholder Matters
at the Extraordinary general meeting, including by soliciting proxies as promptly as practicable in accordance with applicable legal
requirements for the purpose of seeking the approval of the ICLK Shareholder Matters. Notwithstanding anything to the contrary contained
in the Merger Agreement, iClick shall be entitled to (and in the case of the following clauses (ii) or (iii), at the request of
Amber DWM, iClick shall) postpone or adjourn the Extraordinary general meeting: (i) to ensure that any supplement or amendment to
the proxy statement that the Board has determined in good faith is required by applicable legal requirements is disclosed to iClick shareholders
and for such supplement or amendment to be promptly disseminated to iClick shareholders with sufficient time prior to the Extraordinary
general meeting for iClick shareholders to consider the disclosures contained in such supplement or amendment; (ii) if, as of the
time for which the Extraordinary general meeting is originally scheduled (as set forth in the proxy statement), there are insufficient
iClick shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business to be conducted at
the Extraordinary general meeting; or (iii) in order to solicit additional proxies from shareholders for purposes of obtaining approval
of the ICLK Shareholder Matters; provided, that in the event of a postponement or adjournment pursuant to clauses (i), (ii), or (iii),
the Extraordinary general meeting shall be reconvened as promptly as practicable following such time as the matters described in such
clauses have been resolved; provided, further, that, without the consent of Amber DWM (such consent not to be unreasonably withheld,
conditioned or delayed), in no event shall iClick postpone or adjourn the Extraordinary general meeting for more than fifteen (15) days
later than the most recently postponed or adjourned meeting; provided, further, that in no event shall iClick be permitted to postpone
or adjourn the Extraordinary general meeting more than three times or reconvene the Extraordinary general meeting on a date that is later
than fifteen (15) business days prior to the Outside Date.
Subject to the proviso in the immediately following sentence, iClick
shall include the recommendation of the Board that the shareholders of iClick vote to approve the ICLK Shareholder Matters (the “ICLK
Board Recommendation”) in the proxy statement. The Board shall not (and no committee or subgroup thereof shall) change,
withdraw, revoke, withhold, qualify or modify, or publicly propose to change, withdraw, revoke, withhold, qualify or modify, the ICLK
Board Recommendation (a “Change in Recommendation”); provided, however, that the Board may make a Change in Recommendation
if it determines in good faith, after consultation with its independent financial advisor and outside legal counsel, that a failure to
make a Change in Recommendation would constitute a breach by the Board of its fiduciary obligations to iClick shareholders under applicable
legal requirements. iClick agrees that its obligation to establish a record date for, duly call, give notice of, convene and hold the
Extraordinary general meeting for the purpose of seeking approval of the ICLK Shareholder Matters shall not be affected by any Change
in Recommendation, and iClick agrees to establish a record date for, duly call, give notice of, convene and hold the Extraordinary general
meeting and submit for the approval of its shareholders the matters contemplated by the proxy statement, regardless of whether or not
there shall have occurred any Change in Recommendation.
Listing Application and Listing Status
ICLK shall submit an initial listing application for the ADSs representing
the New Class A Shares to be approved for listing on the Nasdaq Stock Market (“Nasdaq”). Amber DWM shall cooperate with
iClick in a timely manner in connection with such listing application.
iClick shall, from the date of the Merger Agreement through the Closing,
ensure that iClick remains listed as a public company on Nasdaq, in compliance with any applicable Nasdaq rules and regulations,
and that the ADSs remain listed on Nasdaq, and keep current and timely file all reports or information required to be filed or furnished
with the SEC and otherwise comply in all material respects with its reporting obligations under applicable legal requirements.
No Solicitation
During the period from the date of the Merger Agreement and continuing
until the earlier of the termination of the Merger Agreement pursuant to its terms and the Closing, Amber DWM shall not, and shall cause
its affiliates not to, and shall direct its and its affiliates’ respective employees, agents, officers, directors, managers, representatives
and advisors (collectively, “Representatives”) not to, directly or indirectly, other than as contemplated by the Merger
Agreement (including the DWM Asset Restructuring or certain capital restructuring of Amber DWM as contemplated under the Merger Agreement
(the “DWM Capital Restructuring”)): (i) solicit, initiate, enter into or continue discussions, negotiations or
transactions with, or encourage or respond to any inquiries or proposals by, or provide any information to, any person (other than the
parties hereto and their respective Representatives) concerning any merger, consolidation, sale of any material portion of the ownership
interests and/or assets of any of the DWM Group Companies, recapitalization of any of the DWM Group Companies or similar transaction
involving any of the DWM Group Companies (each, a “DWM Business Combination”); (ii) enter into any contract regarding,
continue or otherwise participate in any discussions or negotiations regarding, or cooperate in any way that would otherwise reasonably
be expected to lead to a DWM Business Combination; or (iii) commence, continue, renew or respond to any due diligence investigation
regarding a DWM Business Combination. Amber DWM shall, and shall cause its affiliates to, and shall cause its and its affiliates’
respective Representatives to, immediately cease any and all existing discussions, negotiations or other engagement with any person with
respect to any DWM Business Combination.
During the period from the date of this Agreement and continuing until
the earlier of the termination of this Agreement pursuant to its terms and the Closing, iClick and Merger Sub shall not, and shall cause
their respective affiliates not to, and shall direct each of iClick and Merger Sub’s and their affiliates’ respective Representatives
not to, directly or indirectly, other than as contemplated by the Merger Agreement: (i) solicit, initiate, enter into or continue
discussions, negotiations or transactions with, or encourage or respond to any inquiries or proposals by, or provide any information
to, any person (other than the parties to the Merger Agreement and their respective Representatives) concerning any merger, consolidation,
sale of ownership interests or assets of the ICLK Group Companies, recapitalization of the any ICLK Group Company or similar transaction
involving any ICLK Group Company (each, an “ICLK Business Combination”); (ii) enter into any contract regarding,
continue or otherwise participate in any discussions or negotiations regarding, or cooperate in any way that would otherwise reasonably
be expected to lead to an ICLK Business Combination; or (iii) commence, continue, renew or respond to any due diligence investigation
regarding an ICLK Business Combination. iClick and Merger Sub shall, and shall cause their affiliates to, and shall cause each of iClick
and Merger Sub’s and their affiliates’ respective Representatives to, immediately cease any and all existing discussions,
negotiations or other engagement with any person with respect to any ICLK Business Combination.
Director and Officer Indemnification and Insurance
iClick agrees that all rights to exculpation, indemnification and
advancement of expenses now existing in favor of the current or former directors or officers, as the case may be, of any DWM Group Company
(each, together with such person’s heirs, executors or administrators, an “DWM D&O Indemnified Party”),
as provided in their respective governing documents, shall survive the Closing and shall continue in full force and effect. For a period
of six years following the Closing Date, ListCo shall cause each DWM Group Company to maintain in effect the exculpation, indemnification
and advancement of expenses provisions of its governing documents as in effect immediately prior to the Closing Date, and iClick shall,
and shall cause the DWM Group Companies to, not amend, repeal or otherwise modify any such provisions in any manner that would adversely
affect the rights thereunder of any DWM D&O Indemnified Party; provided, however, that all rights to indemnification
or advancement of expenses in respect of any legal proceedings pending or asserted or any claim made within such period shall continue
until the disposition of such legal proceeding or resolution of such claim.
Prior to the Closing, Amber DWM shall use its commercially reasonable
efforts to obtain a “tail” or “runoff” directors’ and officers’ liability insurance policy (the “DWM
D&O Tail”) or alternatively an annual ongoing directors’ and officers’ liability insurance, in each case, in
respect of acts or omissions occurring prior to the Effective Time covering each such person that is a director or officer of a DWM Group
Company currently covered by Amber DWM’s and its affiliates’ directors’ and officers’ liability insurance policies
on terms with respect to coverage and amounts as commercially practicable under market conditions at such time.
iClick agrees that all rights to exculpation, indemnification and
advancement of expenses now existing in favor of the current or former directors or officers, as the case may be, of iClick (each, together
with such person’s heirs, executors or administrators, an “ICLK D&O Indemnified Party”), as provided in
its governing documents, shall survive the Closing and shall continue in full force and effect. For a period of six years from the Closing
Date, ListCo shall maintain in effect the exculpation, indemnification and advancement of expenses provisions of ListCo’s governing
documents as in effect immediately after the Closing Date, and ListCo shall not amend, repeal or otherwise modify any such provisions
in any manner that would adversely affect the rights thereunder of any ICLK D&O Indemnified Party; provided, however,
that all rights to indemnification or advancement of expenses in respect of any legal proceedings pending or asserted or any claim made
within such period shall continue until the disposition of such legal proceeding or resolution of such claim.
Prior to the Closing, iClick shall purchase a “tail” or
“runoff” directors’ and officers’ liability insurance policy (the “ICLK D&O Tail”) in
respect of acts or omissions occurring prior to the Effective Time covering each such person that is a director or officer of iClick
currently covered by iClick and its affiliates’ directors’ and officers’ liability insurance policies on terms with
respect to coverage, deductibles and amounts no less favorable than those of such policy in effect on the date of the Merger Agreement
(or as commercially practicable under market conditions at such time) for the six-year period following the Closing.
Reasonable Best Efforts
Each of iClick, Merger Sub and Amber DWM agrees to use reasonable
best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties
in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the
Merger and the other transactions, including using reasonable best efforts to accomplish the following: (i) the taking of all commercially
reasonable acts necessary to cause the conditions precedent set forth in the Merger Agreement to be satisfied; (ii) the obtaining
of all necessary waivers, consents, approvals, orders and authorizations from governmental entities and the making of all necessary registrations,
declarations and filings with governmental entities, and the taking of all commercially reasonable steps as may be necessary to avoid
any legal proceeding against the Merger Agreement or any of the transactions contemplated by the Merger Agreement; (iii) the obtaining
of all consents, approvals or waivers from third parties set forth on the DWM Disclosure Letter; (iv) the obtaining of all consents,
approvals or waivers from third parties set forth on the ICLK Disclosure Letter; (v) the defending of any legal proceeding challenging
the Merger Agreement or the consummation of the transactions, including seeking to have any stay or temporary restraining order entered
by any court or other governmental entity vacated or reversed; and (vi) the execution or delivery of any additional instruments
reasonably necessary to consummate, and to fully carry out the purposes of, the transactions.
Each of the parties shall use its reasonable best efforts to take,
or cause to be taken, all actions, and to do, or cause to be done, all things reasonably necessary, proper or advisable to, in the case
of DWM, submit, make or obtain, as applicable, the DWM Required Regulatory Approvals, and, in the case of the ICLK Parties, submit, make
or obtain, as applicable, the ICLK Required Regulatory Approvals, and use its reasonable best efforts to assist and cooperate with the
other parties in the foregoing efforts. Each party shall, subject to applicable legal requirements, use reasonable endeavours to, (i) timely
furnish to such other party such necessary information and reasonable assistance as such other party may reasonably request in connection
with the preparation of, application for, or carrying out of any required approval, authorization, consent, order, filing, registration
or notification and (ii) keep the other party timely and reasonably informed of any developments, meetings or discussions with any
governmental entity in respect of any such approval, authorization, consent, order, filing, registration or notification, including the
ICLK Required Regulatory Approval or the DWM Required Regulatory Approval, as applicable. Notwithstanding the foregoing, Amber DWM or
iClick or any of their respective affiliates will not be obligated to accept any conditions, restrictions, undertakings or commitments
imposed by a competent governmental entity in connection with any DWM Required Regulatory Approval or ICLK Required Regulatory Approval
that would have a material adverse effect on the ability of such person to continue to conduct its business following the Closing substantially
in the manner conducted in the 12-month period prior to the date hereof.
Other Agreements
Pursuant to the Merger Agreement, the parties have also agreed to
certain additional covenants relating to, among others, the following:
| · | No
later than the Closing, Amber DWM shall cause Amber Global Limited or a designee thereof
with financial capacity (other than any DWM Group Company) to provide a binding undertaking
(the “Binding Undertaking”) to Sparrow Tech Private Limited, a subsidiary
of Amber DWM, to the effect that Amber Global Limited or such designee shall be responsible
for, and shall indemnify Sparrow Tech Private Limited against, any liabilities and losses
resulted from certain litigation where Sparrow Tech Private Limited is a party. |
| · | Beginning
on the date of the Merger Agreement and ending on the second anniversary thereof, each party
agrees to maintain in confidence any non-public information received from the other parties,
and to use such non-public information only for purposes of consummating the transactions,
subject to exceptions set forth in the Merger Agreement. Notwithstanding anything to the
contrary, this confidentiality obligation shall terminate and be of no further force or effect
upon the Closing. |
| · | iClick
and Amber DWM shall reasonably cooperate to create and implement a communications plan regarding
the transactions promptly following the date of the Merger Agreement. Notwithstanding the
foregoing, none of the parties or any of their respective affiliates will make any public
announcement or issue any public communication regarding the Merger Agreement, the other
transaction documents or the transactions or any matter related to the foregoing, without
the prior written consent of iClick and Amber DWM (such consents, in either case, not to
be unreasonably withheld, conditioned or delayed), subject to exceptions set forth in the
Merger Agreement. |
| · | Each
of Amber DWM and iClick will afford the other party and its Representatives reasonable access
during normal business hours, upon reasonable advance written notice, to the properties,
books, records and personnel of such party and its subsidiaries during the period prior to
the Closing to obtain all information concerning the business, including the status of business
development efforts, properties, results of operations and personnel of such party and its
subsidiaries, as the other party may reasonably request in connection with the consummation
of the transactions; provided, however, that any such access shall be conducted
in a manner not to materially interfere with the businesses or operations of such party or
its subsidiaries. |
| · | Each
of the party will promptly provide the other parties with prompt written notice of: (a) any
event, development or condition of which it obtains knowledge that: (i) is reasonably
likely to cause any of the conditions to closing as set forth in the Merger Agreement not
to be satisfied; (ii) would require any amendment or supplement to the proxy statement;
or (b) the receipt of written notice from any person alleging that the consent of such
person may be required in connection with the transactions. |
| · | The
transfer, documentary, sales, use, stamp, registration, excise, recording, registration value
added and other such similar taxes and fees (including any penalties and interest) that become
payable in connection with or by reason of the execution of the Merger Agreement and the
transactions contemplated under the Merger Agreement (but excluding the other transaction
documents) (collectively, “Transfer Taxes”) shall be borne and paid by
iClick, provided that, for the avoidance of doubt, iClick shall not bear and pay/reimburse
the Transfer Taxes of DWM (including those in connection with the DWM Asset Restructuring
or the DWM Capital Restructuring) in the event that the Closing does not occur. |
| · | Within
ten (10) Business Days after December 31, 2024 (or such other date as agreed by
iClick and Amber DWM), each of iClick and Amber DWM shall deliver to the other party the
calculation of the level of its cash and cash equivalent after deducting certain indebtedness
as specified in the Merger Agreement as of December 31, 2024 (the “Cash Level”). |
Conditions to the Merger
Conditions to Obligations of Each Party’s Obligations
The respective obligations of each of iClick, Merger Sub and Amber
DWM to effect the Merger and the other transactions contemplated under the Merger Agreement shall be subject to the satisfaction of each
of the following conditions as of the Closing:
| · | At the extraordinary general meeting (including any adjournments thereof), the approval of the ICLK Shareholder Matters shall have
been obtained and shall remain in full force and effect. |
| · | The Regulatory Approval Condition, unless iClick and Amber DWM agree on alternative arrangements in respect of the Regulatory Approval
Condition in connection with alternative arrangements relating to the DWM Asset Restructuring (see “—DWM Asset Restructuring”
on page 76). |
| · | No provision of any applicable legal requirement prohibiting, enjoining, restricting or making illegal the consummation of the transactions
contemplated under the Merger Agreement shall be in effect, and no temporary, preliminary or permanent restraining order enjoining, restricting
or making illegal the consummation of the transactions contemplated under the Merger Agreement shall be in effect. |
| · | Nasdaq approval of the listing application submitted by iClick shall have been obtained. |
| · | No general suspension or material limitation of trading in the ADSs has been imposed or threatened by the SEC or the Nasdaq. |
| · | Immediately after the Effective Time, the Board shall consist of up to seven (7) directors, to be designated by Amber DWM in
writing at least ten (10) business days prior to the Closing. |
Additional Conditions to Obligations of Amber DWM
In addition, the obligations of Amber DWM to consummate and effect
the Merger and the other transactions contemplated under the Merger Agreement shall be subject to the satisfaction of each of the following
conditions as of the Closing, any of which may be waived, in writing, exclusively by Amber DWM:
| · | (i) The fundamental representations of each of iClick and Merger Sub shall be true and correct in all respects on and as of the
Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks
as of an earlier date, in which case such representation and warranty shall be true and correct in all respects as of such earlier date);
and (ii) all other representations and warranties set forth in Article V of the Merger Agreement shall be true and correct (without
giving effect to any limitation as to “materiality” or “ICLK Material Adverse Effect” or any similar limitation
contained herein) on and as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation
and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be so true and correct as of
such earlier date), except in the case of this clause (ii), where any failures of such representations and warranties to be so true and
correct, individually and in the aggregate, has not had and is not reasonably likely to have an ICLK Material Adverse Effect. |
| · | Each of iClick and Merger Sub shall have performed or complied with all agreements and covenants required by the Merger Agreement
and the other transaction documents to be performed or complied with by it on or prior to the applicable Closing Date, in each case in
all material respects. |
| · | No ICLK Material Adverse Effect shall have occurred since the date of the Merger Agreement. |
| · | The Cash Level of iClick equals or exceeds US$10 million as of December 31, 2024. |
| · | iClick shall have delivered to Amber DWM a certificate, signed by a duly authorized officer of iClick and dated as of the Closing
Date, certifying as to the matters set forth in the four bullets above. |
| · | The memorandum and articles of association of iClick shall have been amended and restated in its entirety in the form of the Amendment
of M&A and certain shareholders of iClick shall have converted its ICLK Class B Shares to ICLK Class A Shares. |
Additional Conditions to the Obligations of iClick and Merger
Sub
In addition, the obligations of iClick and Merger Sub to consummate
and effect the Merger and the other transactions contemplated under the Merger Agreement shall be subject to the satisfaction of each
of the following conditions as of the Closing, any of which may be waived, in writing, exclusively by iClick:
| · | (i) The fundamental representations of Amber DWM shall be true and correct in all respects on and as of the Closing Date as though
made on and as of the a Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier
date, in which case such representation and warranty shall be true and correct in all respects as of such earlier date); and (ii) all
other representations and warranties set forth in Article IV of the Merger Agreement shall be true and correct (without giving effect
to any limitation as to “materiality” or “DWM Material Adverse Effect” or any similar limitation contained herein)
on and as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty
expressly speaks as of an earlier date, in which case such representation and warranty shall be so true and correct as of such earlier
date), except in the case of this clause (ii), where any failures of such representations and warranties to be so true and correct, individually
and in the aggregate, has not had and is not reasonably likely to have a DWM Material Adverse Effect. |
| · | DWM shall have performed or complied with all agreements and covenants required by the Merger Agreement and the other transaction
documents to be performed or complied with by it on or prior to the Closing Date, in each case in all material respects. |
| · | No DWM Material Adverse Effect shall have occurred since the date of the Merger Agreement. |
| · | The Cash Level of Amber DWM equals or exceeds US$10 million as of December 31, 2024. |
| · | The DWM Asset Restructuring (including any reasonable alternative structure thereof as may be
agreed upon by DWM and iClick in accordance with the Merger Agreement that will provide iClick with
substantially the same economic benefits, see “—DWM Asset Restructuring” on page 76)
shall have been completed pursuant to the terms of the Merger Agreement. |
| · | Amber DWM shall have delivered to iClick a certificate, signed by a duly authorized officer of Amber DWM and dated as of the applicable
Closing Date, certifying as to the matters set forth in the five bullets above. |
| · | Amber DWM shall have cause the Binding Undertaking to be delivered. |
Termination of the Merger Agreement
The Merger Agreement may be terminated at any time prior to the Closing:
| · | by mutual written agreement of iClick and Amber DWM at any time; |
| · | by iClick or Amber DWM if the Closing shall not have occurred by June 30, 2025 (the “Outside Date”); provided, however,
that such right to terminate the Merger Agreement as provided in this bullet shall not be available to iClick or Amber DWM if the action
or failure to act of iClick or Merger Sub, on the one hand, or Amber DWM, on the other hand, has been a principal cause of or resulted
in the failure of the Closing to occur on or before the Outside Date and such action or failure to act constitutes a breach of the Merger
Agreement; provided further, that if on the Outside Date, all other conditions to the Closing have been satisfied or waived (other than
those conditions that by their nature are to be satisfied at the Closing, provided that each of such conditions is capable of being satisfied
at the Closing) except for the Regulatory Approval Condition, such party proposing to exercise the termination right shall first engage
in good faith discussion with the other party for a period of no less than five business days on alternative solution to carry out the
commercial intent of the transactions before so terminating the Merger Agreement as provided in this bullet; |
| · | by iClick or Amber DWM if a governmental entity shall have issued a final, non-appealable order or taken any other non-appealable
action, in any case having the effect of permanently restraining, enjoining or otherwise prohibiting the transactions contemplated under
the Merger Agreement, including the Merger; provided, however, that such right to terminate the Merger Agreement as provided in this bullet
shall not be available to iClick or Amber DWM if the issuance of such final, non-appealable Order or the taking of such non-appealable
action was due to such party’s failure to comply with any provision of the Merger Agreement (such termination, the “Injunction
Termination”); |
| · | by Amber DWM, upon a breach of any covenant or agreement set forth in the Merger Agreement on the part of any of iClick and Merger
Sub, or if any representation or warranty of any of iClick and Merger Sub shall have become untrue, in either case, such that the conditions
to the Closing would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become
untrue; provided, that if such breach by iClick or Merger Sub is curable by iClick and Merger Sub prior to the Outside Date, then Amber
DWM must first provide written notice of such breach to iClick and may only terminate the Merger Agreement as provided in this bullet,
if such breach remains uncured on the earlier of: (i) thirty (30) days after delivery of written notice from Amber DWM to iClick
of such breach; and (ii) fifteen business days prior to the Outside Date; provided, further, that it being understood that Amber
DWM may not terminate the Merger Agreement pursuant to this bullet if it shall have materially breached the Merger Agreement and such
breach has not been cured (such termination, the “ICLK Breach Termination”); |
| · | by iClick, upon a breach of any covenant or agreement set forth in the Merger Agreement on the part of Amber DWM or if any representation
or warranty of Amber DWM shall have become untrue, in either case such that the conditions to the Closing would not be satisfied as of
the time of such breach or as of the time such representation or warranty shall have become untrue; provided, that if such breach is curable
by Amber DWM prior to the Outside Date, then iClick must first provide written notice of such breach to Amber DWM and may only terminate
the Merger Agreement as provided in this bullet, if such breach remains uncured on the earlier of: (i) thirty (30) days after delivery
of written notice from iClick to Amber DWM of such breach; and (ii) fifteen business days prior to the Outside Date; provided, further,
that it being understood that iClick may not terminate the Merger Agreement pursuant to this bullet if it shall have materially breached
the Merger Agreement and such breach has not been cured (such termination, the “DWM Breach Termination”); or |
| · | by iClick or Amber DWM, if, at the Extraordinary general meeting (including any adjournments thereof), the approval of the ICLK Shareholder
Matters is not obtained; provided that iClick may not terminate the Merger Agreement as provided in this bullet if such failure to obtain
the ICLK Shareholder Approval is a result of any breach under the Voting Agreement by any shareholder of iClick who is a party thereto
or any breach by iClick or Merger Sub under the Merger Agreement (such termination, the “Shareholder Vote Termination”). |
In the event of the termination of the Merger Agreement as provided
above, the Merger Agreement shall be of no further force or effect and the transactions contemplated under the Merger Agreement shall
be abandoned, except for and subject to the following: (i) the Merger Agreement’s provisions regarding confidentiality, communications
plan, access to information, notice of termination, effect of termination, termination fees and certain general provisions shall survive
the termination of the Merger Agreement; and (ii) nothing in the Merger Agreement shall relieve any party from liability for any
intentional breach of the Merger Agreement or fraud.
Termination Fee
iClick is required to pay Amber DWM a termination fee of US$1,200,000
if the Merger Agreement is terminated: (i) by Amber DWM pursuant to the ICLK Breach Termination, (ii) pursuant to the Outside
Date Termination if all conditions to Closing have been satisfied or waived but iClick or Merger Sub failed to take necessary steps on
its part to effect the Closing prior to the earlier of the Outside Date and 20 business days after the anticipated Closing Date, or (iii) pursuant
to the Shareholder Vote Termination.
Amber DWM is required to pay iClick a termination fee of US$1,200,000,
if the Merger Agreement is terminated: (i) by iClick pursuant to the DWM Breach Termination, (ii) pursuant to the Outside Date
Termination if all conditions to Closing have been satisfied or waived but Amber DWM failed to take necessary steps on its part to effect
the Closing prior to the earlier of the Outside Date and 20 business days after the anticipated Closing Date, or (iii) pursuant to
the Injunction Termination, but solely with respect to such order or action permanently restraining, enjoining or otherwise prohibiting
the DWM Asset Restructuring.
Expenses
Following the Closing, ListCo shall pay or cause to be paid all DWM
Transaction Costs (as defined in the Merger Agreement), Mutual Transaction Costs (as defined in the Merger Agreement) and ICLK Transaction
Costs (as defined in the Merger Agreement) to the extent unpaid as of the Closing Date. For the avoidance of doubt, to the extent that
any such Transaction Costs have been paid prior to the Closing Date, following the Closing, iClick shall reimburse each applicable payor
for the amount of such paid Transaction Costs.
Following any termination of the Merger Agreement without the Closing
having occurred, (i) iClick shall be responsible to pay, or cause to be paid, the ICLK Transaction Costs, (ii) Amber DWM shall
be responsible to pay, or cause to be paid, the DWM Transaction Costs, and (iii) Amber DWM shall be responsible to pay, or cause
to be paid, the Mutual Transaction Costs, provided that, if in connection with such termination the ICLK Termination Fee is payable, then
iClick shall be responsible to pay, or cause to be paid, the Mutual Transaction Costs.
Except as otherwise expressly provided in the Merger Agreement or the
other transaction documents, whether or not the transactions are consummated, each party will pay its own costs and expenses incurred
in anticipation of, relating to and in connection with the negotiation and execution of the Merger Agreement and the transaction documents
and the consummation of the transactions.
Other Remedies; Specific Performance
Except as otherwise provided in the Merger Agreement, prior to the
Closing, any and all remedies therein expressly conferred upon a party will be deemed cumulative with and not exclusive of any other remedy
conferred hereby, or by law or equity upon such party, and the exercise by a party of any one remedy will not preclude the exercise of
any other remedy.
Each of the parties shall be entitled to enforce specifically the terms
and provisions of the Merger Agreement in any court having jurisdiction and immediate injunctive relief to prevent breaches of the Merger
Agreement, without the necessity of proving the inadequacy of money damages as a remedy and without bond or other security being required,
this being in addition to any other remedy to which they are entitled at law or in equity.
The existence of any other remedy contemplated by the Merger Agreement
does not diminish the availability of specific performance of the obligations thereunder or any other injunctive relief. Each party further
agrees that in the event of any action by any other party for specific performance or injunctive relief, it will not assert that a remedy
at law or other remedy would be adequate or that specific performance or injunctive relief in respect of such breach or violation should
not be available on the grounds that money damages are adequate or any other grounds.
Amendments; Extension; Waiver
The Merger Agreement may be amended by the parties at any time by execution
of an instrument in writing signed on behalf of each of the parties.
At any time prior to the Closing, iClick (on behalf of and only with
respect to iClick and Merger Sub) or Amber DWM may, to the extent not prohibited by applicable legal requirements: (a) extend the
time for the performance of any of the obligations of another party; (b) waive any inaccuracies in the representations and warranties
made by another party contained in the Merger Agreement or in any document delivered by another party pursuant thereto; and (c) waive
compliance with any of the agreements or conditions contained in the Merger Agreement. Any agreement on the part of a party to any such
extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party. Delay in exercising any
right under the Merger Agreement shall not constitute a waiver of such right.
THE
VOTING AGREEMENT
The following
is a summary of the material terms and conditions of the Voting Agreement. This summary may not contain all the information
about the Voting Agreement that is important to you. This summary is qualified in its entirety by reference to the Voting Agreement attached
as Annex D to, and incorporated by reference into, this proxy statement.
Concurrent with the execution of the Merger Agreement, the Undertaking
Shareholders who collectively hold 11,626,898 ICLK Class A Shares and 4,385,078 ICLK Class B Shares, representing approximately
71% of the total voting power of the Company as of the date of this proxy statement, have entered into the Voting Agreement, agreeing
to vote or cause to be voted all securities of iClick he, she or it beneficially owns (the “Voting Shares”) in favor
of the ICLK Shareholder Matters and any proposal to adjourn or postpone such meeting of shareholders of ICLK to a later date if there
are not sufficient votes to approve Transactions (including the Merger).
The Undertaking Shareholders also agree to vote or cause to be voted
the Voting Shares against (A) any proposal or offer from any person (other than Amber DWM or any of its affiliates) concerning an
ICLK Business Combination; (B) any action, proposal, transaction or agreement which could reasonably be expected to result in a breach
of any covenant, representation or warranty or any other obligation or agreement of iClick under the Merger Agreement; and (C) except
as contemplated by the Voting Agreement and the other Transaction Agreements, any action, proposal, transaction or agreement that could
reasonably be expected to impede, interfere with, delay, discourage, adversely affect or inhibit the timely consummation of the Transactions
(including the Merger) or the fulfillment of iClick’s conditions under the Merger Agreement or change in any manner the voting rights
of any class of shares of iClick (including any amendments to its governing documents), including, without limitation, any action that
would require the consent of Amber DWM pursuant to the Merger Agreement, except if approved in writing by Amber DWM.
Transfer Restrictions
Each Undertaking Shareholder agrees that during the term of the Voting
Agreement, such Undertaking Shareholder will not, directly or indirectly, transfer (including by operation of law), sell, tender, grant,
offer, exchange, assign, pledge, charge, create any lien on, or otherwise dispose of (including by gift, tender or exchange offer, merger
or operation of law), or encumber or create or permit to exist any lien on (“Transfer”) any of his, her or its Voting
Shares or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, any of his, her or its Voting
Shares or such Undertaking Shareholder’s voting or economic interest therein. Any attempted Transfer of Voting Shares or any interest
therein in violation of this section shall be null and void. This section shall not prohibit a Transfer of Voting Shares by any Undertaking
Shareholder to (a) any investment fund or other entity controlled or managed by or under common management or control with such Undertaking
Shareholder or affiliates thereof, (b) to another corporation, partnership, limited liability company, trust or other business entity
that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of such Undertaking Shareholder,
or (c) if such Undertaking Shareholder is a corporation, limited liability company, partnership, trust or other entity, any stockholder,
member, partner or trust beneficiary as part of a distribution; provided, however, that a Transfer referred to in this sentence
shall be permitted only if, as a precondition to such Transfer, the transferee agrees in a writing, satisfactory in form and substance
to iClick and Amber DWM to be bound by all of the terms of the Voting Agreement as an Undertaking Shareholder.
Termination
The Voting Agreement terminates automatically upon the earlier to occur
of (a) the Closing and (b) the date on which the Merger Agreement is terminated for any reason in accordance with its terms.
Upon termination of the Voting Agreement, no party shall have any further rights, obligations or liabilities under the Voting Agreement;
provided, that nothing shall relieve any party of liability for any breach of the Voting Agreement occurring prior to termination and
certain provisions shall survive any termination of the Voting Agreement.
PROPOSAL
II: THE AMENDMENT PROPOSAL
The Amendment
Proposal would amend and restate ListCo’s existing memorandum and articles of association by their deletion in their entirety and
the substitution of in their place of the tenth amended and restated memorandum and articles of association of ListCo in the form
attached as Annex C to the accompanying proxy statement, with effective immediately prior to the Effective Time.
Required Vote
Approval of
the Amendment Proposal requires a majority of not less than two-thirds of the votes cast by iClick shareholders as, being entitled
to do so, vote in person or by proxy or by corporate representative, at the extraordinary general meeting.
Recommendation of Our Board of Directors
OUR BOARD OF DIRECTORS RECOMMENDS THAT ICLICK SHAREHOLDERS VOTE
“FOR” PROPOSAL II, THE AMENDMENT PROPOSAL.
PROPOSAL
III: THE NAME CHANGE PROPOSAL
The Name Change Proposal would change the name of the Company from
“iClick Interactive Asia Group Limited” to “Amber International Holding Limited” effective immediately prior to
the Effective Time.
Required Vote
Approval of the Name Change Proposal requires at majority of not less
than two-thirds of votes cast by iClick shareholders as, being entitled to do so, vote in person or by proxy or by corporate representative,
at the extraordinary general meeting.
Recommendation of Our Board of Directors
OUR BOARD OF DIRECTORS RECOMMENDS THAT ICLICK SHAREHOLDERS VOTE
“FOR” PROPOSAL III, THE NAME CHANGE PROPOSAL.
PROPOSAL
IV: THE VARIATION OF SHARE CAPITAL PROPOSAL
The Various
of Share Capital Proposal would, subject to and conditional upon the Merger becoming effective, effective immediately prior to the Effective
Time, vary the authorized share capital of the Company as follows: all ICLK Class A Shares and Converting ICLK Class B Shares in
the authorized share capital of the Company (including all issued and outstanding ICLK Class A Shares and Converting ICLK Class B Shares,
and all authorized but unissued ICLK Class A Shares and ICLK Class B Shares) shall be re-designated as New Class A Shares, all ICLK Class
B Shares other than the Converting ICLK Class B Shares shall be re-designated as New Class B Shares (unless such New Class B Shares are
otherwise required to be automatically converted into New Class A Shares in accordance with the Amendment of M&A (assuming the Amendment
of M&A proposal is approved)), and the authorized share capital of the Company shall be US$1,300,000 divided into 1,300,000,000 shares
comprising of (x) 1,191,000,000 New Class A Shares, and (y) 109,000,000 New Class B Shares.
Required Vote
Approval of
the Variation of Share Capital Proposal requires a majority of not less than two-thirds of the votes cast by iClick shareholders
as, being entitled to do so, vote in person or by proxy or by corporate representative, at the extraordinary general meeting.
Recommendation of Our Board of Directors
OUR BOARD OF DIRECTORS RECOMMENDS THAT ICLICK SHAREHOLDERS VOTE
“FOR” PROPOSAL IV, THE VARIATION OF SHARE CAPITAL PROPOSAL.
PROPOSAL
V: THE GENERAL AUTHORIZATION PROPOSAL
The General Authorization Proposal would authorize Wing Hong Sammy
Hsieh, a director of the Company, to do all things necessary to give effect to the Merger Agreement, the plan of merger, and the transactions
contemplated by the Merger Agreement and the plan of merger, including the Merger and, effective immediately prior to the Effective Time,
the Change of Name, the Variation of Share Capital and the Amendment of M&A.
Required Vote
Approval of
the General Authorization Proposal requires a majority of not less than two-thirds of the votes cast by iClick shareholders entitled to
vote, voting in person or by proxy or by corporate representative, at the extraordinary general meeting.
Recommendation of Our Board of Directors
OUR BOARD OF DIRECTORS RECOMMENDS THAT ICLICK SHAREHOLDERS VOTE
“FOR” PROPOSAL V, THE GENERAL AUTHORIZATION PROPOSAL.
PROPOSAL
VI: THE ADJOURNMENT PROPOSAL
The Adjournment Proposal would authorize the chairperson of the extraordinary
general meeting to adjourn the extraordinary general meeting for the purpose of soliciting additional proxies in the event that, at the
extraordinary general meeting, insufficient proxies are received in favor of the Merger Proposal, the Amendment Proposal, the Name Change
Proposal, the Variation of Share Capital Proposal and the General Authorization Proposal at the extraordinary general meeting before any
vote is taken thereon. If the Adjournment Proposal is approved, we will be able to adjourn the extraordinary general meeting for the purpose
of soliciting additional proxies to approve the Merger Proposal, the Amendment Proposal, the Name Change Proposal, the Variation of Share
Capital Proposal and the General Authorization Proposal. If you have previously submitted a proxy on the proposals discussed in this proxy
statement and wish to revoke it upon adjournment of the extraordinary general meeting, you may do so.
Vote Required for Approval
The approval of the Adjournment Proposal requires a simple majority
of the votes cast by iClick shareholders entitled to vote, voting in person or by proxy or by corporate representative, at the extraordinary
general meeting.
ICLL Shares represented at the extraordinary general meeting but not
voted, including abstentions and broker “non-votes,” will be treated as present at the extraordinary general meeting for purposes
of determining the presence or absence of a quorum for the extraordinary general meeting. ICLK Class A Shares represented by ADSs for
which the ADS depositary votes at the extraordinary general meeting will be counted as present for purposes of determining the existence
of a quorum.
Recommendation of Our Board of Directors
OUR BOARD OF DIRECTORS RECOMMENDS THAT ICLICK SHAREHOLDERS VOTE
“FOR” PROPOSAL VI, THE ADJOURNMENT PROPOSAL.
INFORMATION
ABOUT Amber DWM
Corporate History and Structure
Amber DWM traced its operations
back to 2021 when Amber Group commenced its crypto private banking business. In November 2023, Amber DWM Holding Limited was established
in the Cayman Islands as Amber DWM’s holding company, marking the formal independent operations of Amber DWM. As of the date of
this document, Amber DWM has operating subsidiaries in Singapore, Hong Kong and Dubai.
Amber DWM has a track record
of successful organic growth and strategic acquisitions, as evidenced by the following corporate milestones:
| · | In 2021, Amber Group launched a private banking desk, which later evolved into Amber DWM, to meet the
growing demands of high-net-worth individuals and institutional clients seeking customized wealth management solutions for their digital
assets. |
| · | In 2022, Amber Group expanded its capabilities through the acquisition of Sparrow Holdings Pte. Ltd.,
a Singapore-based wealth management firm. This acquisition enhanced its service offerings and provided Amber DWM with a key license in
Singapore, the Major Payment Institution License, or MPI License, for Digital Payment Token services. |
| · | Amber DWM formally commenced its operations as an independent business unit in the second half of 2023.
With its own compliance and operation teams, Amber DWM was able to focus on delivering innovative wealth management solutions, while benefitting
from the support of other business segments of Amber Group. |
| · | Amber DWM continued its global expansion momentum and successfully secured a series of regulatory approvals
in key financial hubs around the world. These approvals enable Amber DWM to offer a range of wealth management products and services tailored
to meet the sophisticated needs of its global clientele. See “Business—Licenses.” |
| · | In February 2024, Amber DWM completed its first round of independent financing, raising a total of
US$10.5 million from a group of crypto-savvy investors. With this strategic support, Amber DWM is poised to become a top choice in the
digital wealth management market. |
In connection with the Merger,
Amber DWM is undertaking a series of corporate restructurings, which is referred to as the DWM Asset Restructuring. Upon the completion
of the DWM Asset Restructuring, Amber DWM is expected to (i) acquire 100% of the equity interests in WhaleFin Markets Limited, a company
incorporated in Hong Kong, from Amber Group, its shareholder, and (ii) cause Amber Premium FZE, its wholly owned subsidiary, to assume
all rights and obligations under all of the active client contracts to which WhaleFin Technologies Limited is a party. WhaleFin Technologies
Limited, a Seychelles-incorporated wholly owned subsidiary of Amber Group, will remain outside of Amber DWM after the Merger. See “The
Merger Agreement—DWM Asset Restructuring.”
The following diagram illustrates
the corporate structure of Amber DWM including its principal subsidiaries, upon the completion of the DWM Asset Restructuring:
Industry Overview
The digital asset wealth management industry, a
rapidly growing segment within the broader cryptoeconomy and financial services sector, is experiencing significant expansion fueled by
the increasing mainstream adoption of digital assets. This surge is particularly evident among institutional investors and high-net-worth
individuals seeking sophisticated solutions for managing their digital asset portfolios.
Amber Premium identifies several key trends driving
the digital asset wealth management industry:
| 1. | Increased Adoption of Digital Assets as a New Asset Class. |
Since 2020, there has been a notable increase in
institutional interest in digital assets. This interest has expanded beyond speculative short-term trading towards incorporating digital
assets into diversified, medium- to long-term investment strategies. A pivotal milestone was the October 2021 launch of the ProShares
Bitcoin Strategy ETF, an exchange-traded fund (“ETF”) linked to Bitcoin futures, approved by the SEC, the trading volume
of which exceeded US$1 billion on its first day of launch. This marked a turning point for digital asset vehicles and their influence
on the market.
Building on this momentum, major financial institutions,
such as Fidelity Investments and BNY Mellon, announced their entry into the custody business, laying ground for broad-based investment
in digital assets. The landscape further evolved in January 2024 when the SEC approved the first batch of spot Bitcoin ETFs, allowing
ETFs to hold actual Bitcoin rather than derivatives. This landmark decision catalyzed a significant increase in investor participation,
particularly among institutional players previously hesitant to engage with digital assets, thus broadening the market’s reach and
reinforcing Bitcoin’s legitimacy as an asset class. Within less than a year after the approval, the Bitcoin ETFs’ assets under
management reached approximately US$104 billion as of November 21, 2024, and are on track to surpass gold ETFs in net assets, according
to news from Cointelegraph.
Globally, regulatory frameworks in key financial
hubs, such as Hong Kong, Singapore and Dubai, are becoming more supportive, fostering safe and compliant digital asset investments. Additionally,
digital assets’ low correlation with traditional asset classes and Bitcoin’s finite supply have bolstered their appeal as
hedges against inflation and economic instability, attracting risk-conscious investors.
| 2. | Significant Growth Amid Market Cycles and Volatility. |
The digital asset industry has demonstrated resilience
through multiple market cycles. Despite a downturn following Bitcoin’s November 2021 peak, driven by economic challenges and
the collapse of key platforms, the market has shown strong signs of recovery more recently. As of June 30, 2024, the total global
digital asset market capitalization surged to approximately US$2.4 trillion from approximately US$934.1 billion as of June 30, 2022,
according to market data published on CoinGecko.
This recovery has strengthened the industry by
distinguishing resilient players and reinforcing investor confidence in the long-term potential of digital assets. Institutional and high-net-worth
investors remain optimistic, with a Frost & Sullivan market research report commissioned by Amber Premium (the “Frost &
Sullivan report”) indicating that 64% of surveyed investors believe digital assets should comprise over 5% of their portfolios.
The number of global cryptocurrency owners also grew by 34.7% to approximately 617 million in June 2024 from approximately 432 million
in January 2023, according to research reports published by Crypto.com, reflecting widespread adoption and optimism for the
long-term potential of digital assets.
| 3. | Continuous Innovations in Digital Asset Products |
Innovation continues to play a pivotal role in
attracting a broader clientele and enhancing service offerings within the digital asset wealth management space. The development of products
such as crypto-linked ETFs and derivatives has created accessible pathways for investors to gain exposure to this alternative asset class
without directly holding volatile assets. Additionally, DeFi platforms have introduced opportunities for yield farming, staking, and lending,
presenting novel ways for investors to grow their digital asset holdings passively. The tokenization of real-world assets, such as real
estate and art, on blockchain platforms enables fractional ownership and greater liquidity, further expanding investment possibilities.
These innovations not only diversify the digital
asset market but also attract more individuals and financial institutions, especially those exploring alternative investment strategies.
This is evidenced by an EY-Parthenon survey conducted in March 2024 showing that 94% of surveyed institutional investors believe
in the long-term value of blockchain technology and/or digital assets, with 68% having invested or planning to invest in Bitcoin ETFs,
and 50% interested in tokenized assets. The growing demands from these sophisticated investors will likely drive continuous growth of
the digital asset wealth management market. Notably, the development of these innovative products necessitates a collaborative approach,
blending traditional finance expertise with crypto-native insights to create cutting-edge offerings that meet the evolving needs of investors.
| 4. | Expansive and Largely Untapped Addressable Market |
According to an Institutional Investor survey,
commissioned by Coinbase, as of November 2023, 64% of institutional investors surveyed expect to increase allocations to digital
assets in the next three years. The borderless nature of digital assets allows wealth management firms to tap into a global client base
irrespective of geographical constraints. In addition, in many developing countries, where traditional banking systems are less robust,
digital assets offer an attractive alternative for wealth preservation and growth.
The digital assets landscape presents an expansive
market opportunity for Amber Premium, driven by increasing institutional adoption of blockchain technology, sustained venture capital
investment and emerging regulatory clarity. Industry projections from the Frost & Sullivan report indicate that the global digital
asset wealth management sector will reach US$479 billion by 2028, growing at a compound annual rate of 16.1% from 2023, nearly triple
the projected global total wealth growth rate of 5.6%. Amber Premium also believes this market potential remains largely untapped, with
significant growth prospects as blockchain technology increasingly facilitates broader commerce and trade.
| 5. | Demand for Integrated and Customized Service |
Institutional investors and high-net-worth individuals
are increasingly demanding integrated and personalized digital asset wealth management solutions tailored to their unique and sophisticated
financial goals. While interest in digital assets continues to surge among institutional investors and high-net-worth individuals, many
find themselves challenged by the complexity of available financial products and the intricacies of the digital asset ecosystem. This
complexity, coupled with the need to navigate specialized legal and tax considerations, has created strong demand for expert guidance
and customized investment strategies. Despite the proliferation of retail-focused platforms, the Frost & Sullivan report highlights
a significant gap in services tailored for institutional and high-net-worth clients. These sophisticated investors require specialized
solutions that account for their unique risk profiles, investment objectives and desired levels of portfolio customization. Amber Premium
has positioned itself to address this market need by offering comprehensive wealth management solutions that combine deep blockchain expertise
with personalized service. Through this approach, it helps premium clients navigate the evolving digital assets landscape while providing
the tailored investment strategies and sophisticated guidance they require.
BUSINESS
In connection with the Merger, Amber DWM is
undertaking a series of corporate restructurings, which is referred to as the DWM Asset Restructuring. The following business description
presents the Amber Premium business on a pro forma basis after giving effect to the DWM Asset Restructuring.
Vision
To be the top choice for one-stop
digital asset wealth management services, delivering tailored, secure solutions that drive growth in the Web3 world— your ultimate
solution for crypto.
Overview
Amber Premium is a leading
digital asset wealth management platform strategically positioned within the rapidly expanding digital asset market. Originally established
in 2021 as Amber Group’s crypto private banking business, it formally commenced its operations as an independent business unit in
the second half of 2023. With its comprehensive suite of innovative, secure and client-focused solutions, Amber Premium caters to the
unique needs of institutional investors and high-net-worth individuals.
The digital asset market has
experienced significant growth, with total market capitalization surging from approximately US$934.1 billion as of June 30, 2022
to approximately US$2.4 trillion as of June 30, 2024, according to market data published on CoinGecko. This growth is fueled by increasing
institutional adoption of digital assets, the rapid development of DeFi and the emergence of Web3 technologies. As traditional financial
institutions, hedge funds, family offices and high-net-worth individuals increasingly integrate digital assets into their portfolios,
the demand for sophisticated wealth management solutions has intensified. Amber Premium has positioned itself to address these market
needs by merging blockchain expertise with financial acumen and Web3 innovation, serving both traditional investors entering the digital
space and established participants in the cryptoeconomy.
Central to Amber Premium’s
value proposition is its distinctive “1+N” premium service model, delivering tailored, integrated wealth management solutions.
Each client is supported by a dedicated relationship manager alongside a team of specialists, ensuring a seamless and highly personalized
experience. This model, paired with a user-friendly interface and robust client support, sets Amber Premium apart by fostering client
trust and satisfaction.
Amber Premium’s product
offerings span the entire digital asset investment lifecycle, including fiat on/off ramp services, OTC trading and execution services,
standard earn and structured products, DeFi yield enhanced products and strategic funds. These offerings are enhanced by innovative financial
products co-developed with Amber Group, leveraging their extensive expertise in asset management and blockchain infrastructure.
Amber Premium operates
within a strict regulatory and compliance framework, adhering to applicable laws and regulations in key financial hubs
globally. It prioritizes security and transparency, employing advanced cybersecurity measures, robust risk management
systems and compliance with global regulations. This unwavering commitment ensures the secure custody of assets and adherence to
legal requirements.
On a pro forma basis, after giving effect to the
DWM Asset Restructuring, as of June 30, 2024, Amber Premium had a total client asset balance of approximately US$1 billion, serving over
2,000 active clients who had conducted at least one transaction on its platform during the six months ended June 30, 2024. This represents
a rapid 138% growth in total client asset balance, rising from US$474 million as of June 30, 2023. These results highlight Amber Premium’s
ability to scale effectively in a rapidly growing industry while maintaining a focus on security, transparency and client satisfaction.
With its sound regulatory foundation, advanced technology and a client-first approach, Amber Premium is well positioned to lead the digital
asset wealth management industry into its next phase of growth and innovation.
“1+N” Premium Service Model
Central to Amber Premium’s
offering is the innovative “1+N” premium service model. This client-first approach pairs each client with a dedicated relationship
manager (the “1”) supported by a team of domain experts (the “N”), delivering tailored services
across the entire digital asset wealth management lifecycle.
The diagram below illustrates
Amber Premium’s “1+N” team services at each stage of client’s journey in digital asset wealth management:
This model ensures that every
client interaction is seamless, personalized and supported by industry-leading expertise, encompassing:
| · | Onboarding – A smooth and secure onboarding process led by relationship managers,
supported by compliance and operation teams. This ensures strict adherence to KYC protocols and global regulatory requirements; |
| · | Fiat On/Off Ramp Services – Expert management of fiat-to-digital currency conversions,
overseen by operation teams to ensure efficient and secure transactions with minimal friction; |
| · | Trading Desk Support – Around-the-clock access to a dedicated trading desk that provides
tailored execution strategies and portfolio optimization, essential for navigating volatile digital asset markets; |
| · | Wealth Planning and Advisory – Investment experts who craft bespoke wealth planning
strategies, aligning with individual client goals and utilizing sophisticated analytics for optimal portfolio performance; |
| · | Legal & Compliance Oversight – Legal and compliance teams that ensure all
activities comply with global regulatory frameworks, providing peace of mind and maintaining the highest standards of integrity throughout
the client relationship; |
| · | Risk Management – A robust risk management framework, integrated into all stages of
the client journey, which assesses and mitigates operational, financial and market risks. This ensures that client assets are protected
in a dynamic and evolving market landscape; |
| · | Web3 Security – A Web3 security team that safeguards client data and assets, leveraging
cutting-edge cybersecurity infrastructure and proprietary tools and addressing emerging threats within the cryptoeconomy; and |
| · | Ongoing Engagement – Regular portfolio reviews and transparent reporting that build
trust and enhance decision-making. Relationship managers, supported by operation and investment teams, provide clients with detailed performance
insights and recommendations to meet their evolving objectives. |
This integrated approach allows
Amber Premium to offer a high level of personalized service while ensuring that clients’ needs are met in an efficient, secure and
compliant manner.
Full Spectrum Product Offerings
Amber Premium operates at
the forefront of digital asset wealth management, providing a comprehensive suite of products catering to a wide range of risk preferences
and liquidity requirements. Its offerings cover the entire digital asset investment lifecycle, enabling seamless access to digital asset
markets, ongoing portfolio management and secondary market liquidity. Amber Premium’s core product offerings are as follows:
Frictionless Fiat On/Off Ramp Services
Amber Premium provides industry-leading
fiat on/off ramp services that offer clients a secure and efficient gateway into the digital assets ecosystem. By partnering with trusted
banking institutions worldwide, Amber Premium ensures a secure and compliant environment for transferring assets from fiat financial systems
into the cryptoeconomy. These solutions operate efficiently, typically on a T+1 basis, with the capability to achieve T+0 in certain scenarios,
demonstrating the capacity to manage substantial market activity. Amber Premium offers competitive exchange rates designed to optimize
client gains, typically charging a conversion fee based on transaction volume.
OTC Trading and Execution Services
Amber Premium offers over-the-counter
(“OTC”) trading solutions that provide both individual and institutional clients with seamless access to global liquidity
pools and personalized execution with no hidden fees. The 24/7 global desk supports both mainstream and long-tail cryptocurrency trading.
Amber Premium’s execution services employ automated strategies and advanced order execution methods, such as Volume Weighted Average
Price (“VWAP”) and Time Weighted Average Price (“TWAP”), ensuring efficient access to global market
liquidity. Amber Premium charges a commission fee based on the total notional volume.
Standard Earn/Structured Products
Amber Premium provides a range
of earn and structured products, tailored to varying investment needs:
| · | Earn Products – Amber Premium’s earn products support a variety of currencies,
including major cryptocurrencies like Bitcoin and Ethereum, as well as stablecoins such as USDC and USDT. These offerings include both
flexible and fixed options: |
| o | Flexible Earn Products – The flexible earn product allows clients to earn daily interest
with adaptable tenors and flexible withdrawals. |
| o | Fixed Earn Products – The fixed earn product supports up to ten currencies with customizable
tenors for stable interest income and can also be used as collateral for in-venue loans in mainstream currencies. |
| · | Structured Products – For clients with more sophisticated investment needs, Amber
Premium offers dual cryptocurrency products featuring structured option strategies, enabling investors to capitalize on market fluctuations
with customizable strike prices and flexible tenors. |
All earn and structured products
offered by Amber Premium are managed by the Asset Management division of Amber Group, which acts as the investment manager to ensure professional
oversight and optimized returns. For its earn products, Amber Premium currently earns a sales commission based on the subscribed amount
for distributing these products from Amber Group. For its structured products, Amber Premium typically shares a portion of the investment
gains clients earn on such products.
DeFi Yield Enhance Products
Amber Premium’s DeFi
yield enhanced products are designed to capture substantial early-stage returns from decentralized finance and Web3 projects. Through
Amber Premium’s extensive network, clients gain access to a range of incentives and airdrops, supported by robust on-chain security
measures to protect their assets.
The DeFi yield product enhances
returns through staking rewards and airdrops from leading projects, while Amber Premium also offers DeFi fund products that allow clients
to earn from selected high-potential projects. Committed to collaborating with leading initiatives in the DeFi space, Amber Premium’s
team meticulously evaluates each project and its associated smart contracts to maximize safety and potential returns. By leveraging comprehensive
analysis, clients can navigate the complex DeFi landscape and identify promising investment opportunities aligned with their financial
goals.
Amber Premium typically shares
a portion of the investment gains clients earn on such products.
Strategic Funds
Amber Premium offers a suite
of regulated and audited funds designed to meet the diverse needs of clients, accommodating both risk-tolerant and conservative investors,
while ensuring transparency and security. Below is a summary of each fund’s unique approaches and targets:
| · | Finomenon Fund – Managed by a licensed investment management company jointly founded
by Amber Group and its shareholders, the Finomenon Funds include: |
| o | Finomenon Fund (Carbon) – This fund employs a “Top 10 Currency Strategy,”
focusing on established mainstream currencies. Its goal is to achieve long-term gains through active management, leveraging insights from
traditional currency markets. |
| o | Finomenon Fund (Lithium) – Similar to the Carbon fund, this fund utilizes a
“Growth Currency Strategy.” It targets smaller, emerging currencies with significant growth potential in bull markets, aiming
to capture profits in high-volatility environments. This approach offers potentially substantial returns for investors willing to embrace
associated risks. |
| · | Amber Eco Fund – The Amber Eco Fund is designed for investors interested in
the primary market. It strategically invests in fast-growing and high-potential projects, focusing on innovative technologies and providing
exposure to cutting-edge developments. Managed by Amber Labs, the investment arm of Amber Group and an affiliate of Amber Premium, the
fund seeks opportunities that align with emerging trends in the market. |
Amber Premium earns a sales
commission based on the subscribed amount for distributing these products from the asset management company and Amber Labs.
Other Services
In addition to its core offerings,
Amber Premium provides a suite of additional services designed to meet the diverse needs of its clients:
| · | Collateralized Lending – Amber Premium’s lending desk provides 24/7 access to
reliable financing through collateralized loans in major cryptocurrencies and stablecoins. Flexible terms and amounts are offered, along
with automatic position replenishment to mitigate liquidation risks, and quick funding at competitive rates. |
| · | Amber Visa Card – The Amber Visa Card is a virtual payment card that allows clients
to utilize their digital assets for direct transactions. It integrates with major payment platforms, including Apple Pay, Google Pay and
PayPal. |
Technology and Innovation
Amber Premium leverages cutting-edge
technology to stay at the forefront of the rapidly evolving digital asset space. It integrates the latest advancements in blockchain technology
with traditional financial services, creating a seamless and efficient platform for its clients. Amber Premium’s commitment to technology
and innovation ensures that clients have access to secure and user-friendly tools and products that meet the demands of today’s
digital economy.
Amber Premium has achieved
technological advancements in the following key areas:
| · | Proprietary
Platforms – Amber Premium has developed proprietary digital platforms that
enable clients to manage their portfolios securely and efficiently. These platforms include
mobile apps and web interfaces with real-time updates, market analytics and secure transaction
execution. Designed with a sleek and user-friendly interface, these platforms ensure accessibility
and ease of use for both institutional and high-net-worth individual clients. |
| · | Web3
Integration – As the Web3 ecosystem continues to grow, Amber Premium integrates
DeFi capabilities into its offerings, which includes access to yield enhanced products, staking
rewards and airdrops from leading Web3 projects. By staying ahead of the curve in Web3 technology,
Amber Premium provides its clients with new, lucrative opportunities within the DeFi space. |
| · | Web3
Tools – Amber Premium uses state-of-the-art blockchain security measures, including
advanced encryption, cold and hot wallet storage solutions and multi-factor authentication.
This robust infrastructure ensures the safety of client assets and personal data, positioning
Amber Premium as a trusted player in the digital asset industry. |
| · | AI
and Data Analytics – Amber Premium utilizes artificial intelligence and advanced
data analytics to enhance its investment strategies and risk management processes. By leveraging
data, Amber Premium is able to predict market trends, optimize portfolio management and improve
decision-making processes for clients. |
Amber Premium’s Clients and Client Support
As of June 30, 2024,
Amber Premium served a community of over 2,000 active clients who had conducted at least one transaction on its platform during the six
months ended June 30, 2024, including institutional clients and high-net-worth individuals. Its institutional clients comprise sophisticated
players across the financial landscape, from established family offices and hedge funds to forward-thinking venture capital firms and
crypto-native institutions. Its individual client base consists of high-net-worth and ultra-high-net-worth individuals who
are shaping the future of digital asset investments.
At the heart of Amber Premium’s
service model is deep client engagement, powered by dedicated relationship managers who understand each client’s unique investment
philosophy and objectives. These managers maintain regular strategic dialogue with clients, gathering insights that not only enhance Amber
Premium’s service delivery but also inform its product development roadmap. The clients are more than just users — they are
partners whose strategic vision and investment approaches actively contribute to advancing the cryptoeconomy.
Amber Premium’s Risk Management
Amber Premium has developed
a comprehensive risk management framework that prioritizes security, compliance and monitoring of the digital assets it holds on behalf
of its clients and for its operating purposes.
| · | Comprehensive client on-boarding and ongoing monitoring – Amber Premium’s KYC
program encompasses key components such as client due diligence, risk assessments, enhanced reviews for high-risk clients and name screening
against global sanctions list. Following the client onboarding process, Amber Premium monitors client profiles and transaction activities
to detect and address suspicious behaviors, ensuring compliance with regulatory requirements across its operating jurisdictions. Amber
Premium leverages a combination of proprietary tools and external partnerships to analyze blockchain-based transactions in real-time while
overseeing deposits, withdrawals and trades within its ecosystem. This comprehensive setup enables Amber Premium to swiftly respond to
emerging threats in the cryptoeconomy, develop tailored scenarios and typologies for specific transaction patterns, and maintain the flexibility
necessary to support new products and services effectively. |
| · | State-of-art cybersecurity and cryptography technology – Amber Premium prioritizes
the security of client assets and data by employing best-in-class cybersecurity measures. In collaboration with Amber Group, Amber Premium
has attained multiple globally recognized certifications in cybersecurity and information security, including ISO 27001, demonstrating
their robust approach to securing data and mitigating cyber threats. Amber Group and Amber Premium further align their practices with
the National Institute of Standards and Technology (“NIST”) Cybersecurity Framework, ensuring a structured and proactive
approach to managing risks. Complementing their cybersecurity focus, Amber Group and Amber Premium have also achieved certifications in
privacy protection, such as ISO 27701 and ISO 29151, and conforms to the NIST Privacy Framework. These accomplishments, combined with
its Service Organization Control (“SOC”) 2 Type II compliance, exemplify Amber Premium’s comprehensive capabilities
in protecting information and highlight its unwavering dedication to upholding the highest standards of security, privacy and regulatory
compliance. To further enhance asset security, Amber Group and Amber Premium employ a Hardware Security Module solution to manage a combination
of cold (air-gapped) and hot wallets. This approach ensures the secure storage and protection of idle crypto assets, providing robust
security and peace of mind for clients. See “—Synergistic Collaborations with Amber Group” for more details of the relationship
and collaborations between Amber Premium and Amber Group. |
| · | Advanced risk management framework – Amber Premium has implemented a sophisticated,
technology-driven risk management system designed to effectively identify, assess and mitigate risks across its operations while ensuring
full compliance with applicable laws and regulations. Its risk and compliance teams collaborate closely, working together to review and
address credit, operational, compliance and enterprise risks. Guidelines and measures are continuously updated to reflect evolving regulatory
requirements and industry best practices. For example, Amber Premium has clear and efficient mechanisms of managing various types of risks,
and has established related policies to standardize the processes to identify, evaluate, report and mitigate potential risks. The risk
team holds regular meetings to evaluate current risk management status and develop mitigation plans for potential risks. To enhance internal
controls and operational integrity, Amber Premium conducts annual internal audits in partnership with reputable third-party auditors.
These audits cover daily operations, financial and accounting practices and overall business management, ensuring the organization’s
processes remain effective and resilient. Additionally, Amber Premium has established various specialized internal committees, each dedicated
to critical aspects of the organization’s functions. This structure ensures strategic alignment, informed decision-making and effective
oversight across all areas of its business. |
Synergistic Collaborations with Amber Group
Amber Premium commenced its
operations in 2021 as the crypto private banking business of Amber Group, and transitioned to operate independently in the second half
of 2023. Amber Group, a shareholder of the ListCo upon the Merger Closing, is a leading digital financial services provider that offers
a diverse range of complementary businesses, including digital asset management business, digital asset advisory, liquidity, investment &
research business and digital asset infrastructure business.
While Amber Premium believes
its core advantage lies in its innovative products and premium services, collaboration with Amber Group brings significant strategic value
to Amber Premium, and vice versa. Amber Premium cooperates with various segments within Amber Group across a number of areas. For instance,
the Asset Management division of Amber Group offers an array of earn, structured and fund products, helping Amber Premium’s clients
optimize their digital asset investments. Amber Premium and the Asset Management division also jointly develop financial products, such
as derivatives or specialty funds, tailored to the unique needs of these clients. Meanwhile, the Advisory, Liquidity, Investment &
Research segment, or externally known as Amber Labs, identifies early-stage digital asset companies, presenting investment opportunities
to Amber Premium’s clients. It also supports the token design and fundraising activity for these clients. The Infrastructure segment
via RigSec, an advanced self-custody technology solution, at Amber Group provides Amber Premium with secure hot and cold wallet infrastructure,
ensuring the safe custody of client assets.
Amber Premium believes it
enjoys the following synergies from its mutually beneficial cooperation with Amber Group:
| · | Unified Branding and Market Positioning – Amber Premium benefits from Amber
Group’s strong brand recognition and industry expertise. The association with Amber Group allows Amber Premium to leverage its
established market position and win the trust of a larger pool of potential clients. |
| · | Shared Infrastructure and Resources – Amber Premium taps into Amber Group’s
advanced technological infrastructure, including its blockchain solutions and digital asset custody services. This shared
infrastructure ensures that Amber Premium’s clients benefit from robust, secure and scalable platforms. |
| · | Cross-selling and Referral Opportunities – As part of the Amber Group ecosystem,
Amber Premium has the opportunity to cross-sell its services to Amber Group’s existing clients, while also attracting new
clients through Amber Group’s extensive network in the digital asset and traditional financial sectors. |
| · | Collaborative Product Development – Amber Premium and Amber Group collaborate on
the development of innovative products, such as structured investment strategies and DeFi yield enhanced products. This
collaboration enables Amber Premium to stay ahead of market trends and provide its clients with cutting-edge investment
opportunities. |
Following the Merger, Amber
Premium anticipates continued collaboration with Amber Group, which it expects to enhance its service offerings, diversify revenue streams,
and expand its client base.
Amber Premium’s Marketing and Branding
Amber Premium has developed
a strong brand presence in the digital asset wealth management space, driven by a client-centric approach and high-quality service delivery.
Amber Premium’s marketing efforts are focusing on building trust, fostering long-term relationships and positioning itself as the
go-to provider of digital asset wealth management services. It adopts the following key marketing and branding strategies:
| · | Referral-based Growth – Amber Premium has grown its client base primarily through
referrals from satisfied clients. By focusing on delivering quality services and personalized solutions, Amber Premium has
established a reputation for excellence, leading to organic growth. |
| · | Targeted Events and Sponsorships – Amber Premium sponsors and organizes exclusive
events, seminars and webinars targeted at high-net-worth individuals, institutions and family offices interested in digital assets.
These events foster thought leadership and position Amber Premium as a trusted partner in the digital asset wealth management
industry. |
| · | Cross-marketing with Amber Group – Amber Premium engages in cross-marketing
initiatives with Amber Group, its shareholder and strategic partner, allowing both entities to promote their products and services
and facilitate client referrals. Through joint campaigns, both Amber Premium and Amber Group reach a broader audience of potential
clients across digital asset and traditional finance sectors. |
| · | Educational Content and Thought Leadership – Amber Premium invests in educating
its clients through content marketing, offering insights on digital asset trends, investment strategies and Web3 technologies. This
positions Amber Premium as a knowledgeable leader in the space, helping to attract informed investors. |
Licenses
After the DWM Asset Restructuring,
Amber Premium has subsidiaries in Singapore, Dubai and Hong Kong and is therefore subject to the relevant regulatory requirements and
restrictions in Singapore, Dubai and Hong Kong.
Amber DWM’s wholly owned
subsidiary in Singapore, Sparrow Tech Private Limited, holds a Major Payment Institution License (“MPI License”) issued
by the Monetary Authority of Singapore (“MAS”) to conduct the Digital Payment Token Service (“DPT Services”).
This license has no expiry date and will remain valid unless it lapses upon the occurrence of certain prescribed events, is suspended
or revoked by the MAS, or is surrendered to the MAS. In connection with its MPI License, Sparrow Tech Private Limited is required to comply
with the regulatory requirements applicable to MPI License holders offering DPT services. Sparrow Tech Private Limited is also obligated
to establish and implement appropriate policies, procedures, systems and controls to comply with the applicable regulatory mandates. For
details, see “—Government Regulations—Singapore.”
Amber DWM’s wholly owned
subsidiary in Dubai, Amber Premium FZE, is in the process of applying for a license with the Virtual Assets Regulatory Authority (“VARA”)
of Dubai to conduct the following activities in or from the Emirate of Dubai (excluding DIFC) in relation to “Virtual Assets”:
(i) Broker-Dealer Services, (ii) Asset Management and Investment Services, and (iii) Lending and Borrowing Services, each
as defined in the Virtual Assets and Related Activities Regulations 2023, as amended (“VARA Regulations”). As of the
date of this proxy statement, Amber Premium FZE has obtained an initial approval from VARA to conduct the above activities. However,
until VARA grants the full license, Amber Premium FZE is not permitted to conduct any activities within the Emirate of Dubai.
In connection with its initial approval, Amber Premium FZE is required to comply with the regulatory requirements imposed by VARA
from time to time. For details, see “—Government Regulations—Dubai.” Once Amber Premium FZE receives its license
from VARA, Amber Premium FZE will be able to conduct the activities in accordance with its license and in compliance with the regulatory
requirements imposed by VARA.
Amber DWM conducts its business
in Hong Kong and is therefore subject to the relevant regulatory requirements and restrictions in Hong Kong. In particular, upon the completion
of the DWM Asset Restructuring, WhaleFin Markets Limited will become a wholly owned subsidiary of Amber DWM. Its business falls within
the scope of a “VA Service” as defined under section 1 of Part 1 of Schedule 3B to the Anti-Money Laundering and Counter-Terrorist
Financing Ordinance (Cap. 615 of the Laws of Hong Kong) (“AMLO”). The products handled by WhaleFin Markets Limited
may be non-security tokens (which fall within the definition of “virtual assets” under section 53ZRA of the AMLO), or security
tokens (which fall within the definition of “securities” under the Securities and Futures Ordinance (Cap. 571 of the Laws
of Hong Kong) (“SFO”)). As such, WhaleFin Markets Limited is in the process of applying for (i) a license to operate
a virtual asset trading platform under the AMLO (“AMLO License,” and “AMLO Licensing Regime”), and
(ii) a license to carry on the Type 1 (dealing in securities) and the Type 7 (providing automated trading services) regulated activities
under the SFO (“SFO License,” and “SFO Licensing Regime”). Given that the crypto products potentially
handled by virtual asset trading platforms can, as a practical matter, be difficult to characterize as either “virtual assets”
or “securities,” to avoid contravention of the AMLO Licensing Regime and/or the SFO Licensing Regime, and to ensure business
continuity, the Securities and Futures Commission (“SFC”) strongly encourages virtual asset trading platforms to be
licensed under both regimes.
WhaleFin Markets Limited currently
enjoys the benefit of a transitional arrangement under the AMLO Licensing Regime as it was providing a “VA Service” in relation
to non-security tokens before such regime became effective law in March 2023, and has received a written notice from the SFC that
it is deemed to be licensed for the AMLO License pursuant to Schedule 3G to the AMLO (“Deemed AMLO License”).
In connection with its Deemed
AMLO License, WhaleFin Markets Limited is required to comply with the regulatory requirements attached to the AMLO License. Upon WhaleFin
Markets Limited being granted its AMLO License and SFO License, its regulatory obligations will not change materially. For details, see
“—Government Regulations—Hong Kong.”
Intellectual Property
As of the date of this document,
Amber Premium does not have intellectual property rights that are material to its business.
Properties
As of the date of this document,
Amber Premium leased office facilities globally, totaling approximately 200 square meters, including 100 square meters for its corporate
headquarters in Singapore and 100 square meters for its office in Hong Kong. These office spaces are leased from independent third parties,
and Amber Premium plans to renew its leases from time to time as needed.
Amber Premium believes that
its existing facilities are sufficient to meet its current operational needs, and it will secure additional facilities, primarily through
leasing arrangements, to support its future growth and expansion.
Competition
Amber Premium operates in
a highly innovative and rapidly evolving industry, where competition is expected to further intensify in the future as existing players
enhance their offerings and new entrants emerge. Amber Premium faces significant competition globally from a variety of market participants
— ranging from crypto-native firms to large traditional financial services providers and financial technology companies. Amber Premium
faces competition from the following sources:
| · | traditional financial technology and brokerage firms that have entered the digital asset wealth management
market in recent years and offer overlapping features tailored to similar client segments; |
| · | companies focused on the digital asset market, some of whom are potentially able to more quickly adapt
to market trends, support a broader range of digital assets, and develop new digital asset-based products and services due to a different
standard of regulatory scrutiny and different internal compliance standards; and |
| · | crypto-focused companies and traditional financial incumbents that offer point or siloed solutions. |
Amber Premium positions itself
as a comprehensive digital asset wealth management service provider across a number of platforms and products in the digital asset wealth
management industry and distinguishes itself by targeting high-net-worth individuals and institutional clients and offering integrated
and customized services to cater to their intricate digital asset wealth management needs. In addition, Amber Premium has established
a unique position in the market by successfully securing a series of regulatory approvals in key financial hubs around the world. See
“—Licenses.” Amber Premium’s ability to quickly and continuously innovate to provide products and services to
its clients that are native to the cryptoeconomy, and launch additional products and services further separates itself from its competition.
See “Risk Factors—Risks Related to Amber Premium’s Business—Amber Premium may not be able to compete effectively,
which could materially and adversely affect its business, financial condition, results of operations and prospects, as well as its reputation
and brands” for a more comprehensive description of risks related to competition.
Employees
Upon the consummation of the
DWM Asset Restructuring, Amber Premium will employ 69 employees in Singapore and Hong Kong. The following table sets forth a breakdown
of Amber Premium’s employees by function upon the consummation of the DWM Asset Restructuring:
| | |
Number of Employees | | |
% | |
| Trading and Operations | |
| 17 | | |
| 24.6 | |
| Technology and Development | |
| 13 | | |
| 18.8 | |
| Sales and Marketing | |
| 13 | | |
| 18.8 | |
| General and Administration | |
| 26 | | |
| 37.7 | |
| Total | |
| 69 | | |
| 100.0 | |
Due to certain regulatory
and contractual considerations, approximately 80 individuals dedicated to Amber Premium will remain with Amber Group following the completion
of the DWM Asset Restructuring. These individuals will continue their exclusive work for Amber Premium under a service agreement between
Amber Premium and Amber Group. Amber Premium plans to gradually integrate these individuals into its own workforces after the Closing.
See “—Synergistic Collaborations with Amber Group” for more details of the relationship and collaborations between Amber
Premium and Amber Group.
Amber Premium’s success
is driven by its ability to attract, motivate, train and retain qualified talent. Amber Premium believes it offers its employees competitive
compensation packages and fosters an environment that encourages professional growth and self-development. As a result, Amber Premium
has consistently attracted and retained skilled personnel while maintaining a stable and experienced core management team.
Amber Premium is required
to provide its employees with social security benefits in accordance with applicable regulations and internal policies. Amber Premium
enters into standard labor contracts with its employees to cover matters including confidentiality arrangements and impose non-compete
restricted periods in accordance with common market practice. Amber Premium believes that it maintains a good working relationship with
its employees, and it has not experienced any major labor disputes. None of its employees are represented by labor unions.
Legal Proceedings
Amber Premium is currently
not a party to any material legal or administrative proceedings or regulatory actions. Amber Premium may from time to time be subject
to various legal or administrative claims and proceedings arising in the ordinary course of business. Litigation or any other legal or
administrative proceeding, regardless of the outcome, is likely to result in substantial costs and diversion of Amber Premium’s
resources, including its management’s time and attention.
Government Regulations
Set forth below is a summary
of the most significant rules and regulations that affect Amber Premium’s business activities in the jurisdictions where it
operates.
Singapore
The Payment Services Act 2019
(“PS Act”) is the principal legislation that regulates Sparrow Tech Private Limited’s activities. The PS Act
is read with the Payment Services Regulations 2019 (“PSR”), the main subsidiary legislation that effects the objectives
of the PS Act.
The PS Act and PSR regulate
the licensing and ongoing conduct of business requirements for Sparrow Tech Private Limited, in areas such as, among others, (1) financial
and operational requirements, (2) having a permanent place of business or registered office in Singapore, (3) notifying the
MAS upon the occurrence of certain prescribed events, (4) prohibitions from carrying on certain businesses, and (5) safeguarding
of customer assets.
Sparrow Tech Private Limited
is also subject to:
| · | the MAS’ supervisory powers under the PS Act, for example, in relation to (1) inspections and
investigations, (2) emergency powers, and (3) assistance to foreign regulatory authorities; and |
| · | various regulatory instruments issued under the PS Act, in the form of notices, guidelines and circulars.
These regulatory instruments set out requirements and the MAS’ expectations around key areas such as (1) reporting of suspicious
activities and incidents of fraud, (2) periodic submission of regulatory returns, (3) conduct, (4) disclosure and communications,
and (5) consumer protection safeguards. |
For completeness,
Sparrow Tech Private Limited is also subject to:
| · | the Financial Services and Markets Act 2022 (“FSM Act”), an omnibus legislation for
the financial sector, and its subsidiary legislations. The FSM Act is partially in force, with the remaining phases targeted to be implemented
by end 2024. While Sparrow Tech Private Limited is not subject to the licensing regime under the FSM Act, there are various powers under
the FSM Act that can be exercised by the MAS, which would apply to Sparrow Tech Private Limited. There are also various notices and guidelines
issued pursuant to the FSM Act, for example, around (1) anti-money laundering and countering the financing of terrorism, (2) technology
risk management, and (3) cyber hygiene; |
| · | other regulatory instruments issued by the MAS, which apply across different classes of financial institutions,
for example, around (1) risk management, (2) individual accountability and conduct, and (3) delivering fair dealing outcomes
to customers; and |
| · | sanctions rules and regulations under Singapore law. |
Dubai
In connection with its initial
approval from VARA, Amber Premium FZE is required to comply with the following regulations:
| · | The VARA Regulations; and |
| · | The Regulations on the Marketing of Virtual Assets and Related Activities 2024 (“Marketing Regulations”). |
| Additionally, Amber Premium FZE must adhere to the VARA
rulebooks, including: |
| · | the
compliance and risk management rulebook; |
| · | the
technology and information rulebook; |
| · | the
market conduct rulebook; |
| · | the
lending and borrowing services rulebook; |
| · | the
broker-dealer services rulebook; and |
| · | the
virtual asset management and investment services rulebook; |
| as
well as any regulatory guidance issued by VARA from time to time. |
These regulations and rulebooks
cover matters such as, but not limited to, anti-money laundering compliance, conduct of business requirements, mandatory personnel requirements,
reporting requirements to VARA, financial returns and capital requirements, ongoing notification requirements, risk management compliance,
consumer protection measures, safeguarding customer assets and financial and operational requirements.
Hong Kong
In connection with its Deemed
AMLO License, WhaleFin Markets Limited is required to comply with the vast majority of the regulatory requirements attached to an AMLO
License. Such requirements are set out in the AMLO and the SFC’s Guidelines for Virtual Asset Trading Platform Operators (“VATP
Guidelines”). These requirements cover five broad categories, as set out below:
| · | Conduct of business requirements – The VATP Guidelines set out customary financial
services regulatory conduct of business principles which WhaleFin Markets Limited must comply with when providing a “VA Service”
in Hong Kong. Such principles are cast in broad terms to include the requirement to: |
| a. | act honestly, fairly, with due skill care and diligence, and in the best interest of clients and the market; |
| b. | avoid conflicts of interest and ensure that clients are fairly treated; |
| c. | assess the risk tolerance level and risk profile of clients before providing services; and |
| d. | properly account for and adequately safeguard client assets. |
| · | Custody of client assets requirements – WhaleFin Markets Limited is required to appoint
a wholly owned Hong Kong-incorporated subsidiary who is licensed as a so-called “Trust or Company Service Provider” under
the AMLO to hold and safeguard its client assets on its behalf (“Associated Entity”). WhaleFin Markets Limited’s
Associated Entity is Amber Custodian Services Limited (License No. TC007861). |
| · | Personnel requirements – WhaleFin Markets Limited must ensure that its senior management
are fit and proper and are sufficiently involved on a day-to-day basis in order to have adequate management oversight of WhaleFin Markets
Limited’s business. WhaleFin Markets Limited is also required to appoint an eligible auditor to perform the auditing function in
relation to its “VA Service” business. |
| · | Financial returns and capital requirements – The AMLO and the VATP Guidelines contain
granular requirements in relation to the minimum paid-up share capital and liquid capital that must be maintained by WhaleFin Markets
Limited. WhaleFin Markets Limited also has to comply with requirements relating to regular financial returns and reporting to the SFC. |
| · | Ongoing notification requirements – WhaleFin Markets Limited is required to keep the
SFC abreast of developments in relation to, amongst other things, its key personnel and business. As such, the AMLO and the VATP Guidelines
include detailed requirements relating to the triggers and timings for pre- and/or post-event regulatory notifications that have to be
provided to the SFC. |
Upon WhaleFin Markets Limited
being granted its AMLO License and SFO License, its regulatory obligations will not change materially save for the fact that WhaleFin
Markets Limited will also have to comply with the requirements set out in the VATP Guidelines when providing “VA Services”
in relation to security tokens.
MANAGEMENT’S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS OF AMBER DWM
In
connection with the Merger, Amber DWM is undertaking the DWM Asset Restructuring. See “The Merger Agreement—DWM Asset Restructuring.”
The following discussion and analysis relates to the historical financial condition and results of operations of Amber DWM and does not
take into consideration the DWM Asset Restructuring. Accordingly, the following discussion and analysis of the financial condition and
results of operations should be read in combination with the selected unaudited pro forma financial data of Amber DWM for the year ended
June 30, 2024, which presents the combined financial information of Amber DWM after giving effect to the DWM Asset Restructuring, included
in the section of this proxy statement entitled “Supplemental Management’s Discussion and Analysis of Pro Forma Financial
Condition and Results of Operations of Amber DWM.” The following discussion and analysis of the financial condition
and results of operations should also be read together with Amber DWM’s audited consolidated financial statements, together with
related notes thereto, included elsewhere in this proxy statement. In addition, the discussion and analysis should be read together with
the section of this proxy statement entitled “Business” and the unaudited pro forma combined financial information for the
year ended June 30, 2024 (included in Annex H to this proxy statement), which has been prepared to give effect to the Merger. The following
discussion contains forward-looking statements that involve risks, uncertainties, and assumptions. See the section entitled “Cautionary
Statement Regarding Forward-Looking Statements.” Actual results and timing of selected events may differ materially from those
anticipated in the forward-looking statements as a result of various factors, including those set forth under the section entitled “Risk
Factors” or elsewhere in this proxy statement.
Results of Operations
The following table sets forth
a summary of Amber DWM’s consolidated results of operations for the periods presented, both in absolute amount and as a percentage
of its revenues for the periods presented. This information should be read together with its consolidated financial statements and related
notes included elsewhere in this proxy statement. The results of operations in any period are not necessarily indicative of Amber DWM’s
future trends.
| | |
For the Year Ended June 30, | |
| | |
2023 | | |
2024 | |
| | |
US$ | | |
% | | |
US$ | | |
% | |
| Revenue | |
| 1,111,361 | | |
| 100.0 | | |
| 3,548,213 | | |
| 100.0 | |
| Cost of revenue | |
| (814,161 | ) | |
| (73.3 | ) | |
| (1,984,984 | ) | |
| (55.9 | ) |
| Gross profit | |
| 297,200 | | |
| 26.7 | | |
| 1,563,229 | | |
| 44.1 | |
| Other income | |
| 71,708 | | |
| 6.5 | | |
| 169,714 | | |
| 4.8 | |
| Technology and development expenses | |
| (331,631 | ) | |
| (29.8 | ) | |
| (353,319 | ) | |
| (10.0 | ) |
| Sales and marketing expenses | |
| (8,391 | ) | |
| (0.8 | ) | |
| (7,294 | ) | |
| (0.2 | ) |
| General and administrative expenses | |
| (2,292,834 | ) | |
| (206.3 | ) | |
| (5,234,748 | ) | |
| (147.5 | ) |
| Finance costs | |
| (86,084 | ) | |
| (7.7 | ) | |
| (81,623 | ) | |
| (2.3 | ) |
| Total operating expenses | |
| (2,718,940 | ) | |
| (244.6 | ) | |
| (5,676,984 | ) | |
| (160.0 | ) |
| Operating loss | |
| (2,350,032 | ) | |
| (211.5 | ) | |
| (3,944,041 | ) | |
| (111.2 | ) |
| Realized change in fair value of digital assets – related parties’ loans | |
| 58,421 | | |
| 5.3 | | |
| 508,491 | | |
| 14.3 | |
| Realized change in fair value of digital assets | |
| 226,552 | | |
| 20.4 | | |
| (339,897 | ) | |
| (9.6 | ) |
| Unrealized change in fair value of digital assets – related parties’ loans | |
| (5,430,850 | ) | |
| (488.7 | ) | |
| (12,181,220 | ) | |
| (343.3 | ) |
| Unrealized change in fair value of digital assets | |
| (304,947 | ) | |
| (27.4 | ) | |
| (192,881 | ) | |
| (5.4 | ) |
| Total other expenses | |
| (5,450,824 | ) | |
| (490.5 | ) | |
| (12,205,507 | ) | |
| (344.0 | ) |
| Loss before income tax | |
| (7,800,856 | ) | |
| (701.9 | ) | |
| (16,149,548 | ) | |
| (455.1 | ) |
| Income tax expense | |
| - | | |
| - | | |
| - | | |
| - | |
| Loss for the year, representing total comprehensive loss for the year | |
| (7,800,856 | ) | |
| (701.9 | ) | |
| (16,149,548 | ) | |
| (455.1 | ) |
Loss per share attributable to
owners of the Company Basic and diluted | |
| 195.0 | | |
| | | |
| 395.7 | | |
| | |
Weighted
average number of ordinary shares Basic and diluted | |
| 40,000 | | |
| | | |
| 40,808 | | |
| | |
Year ended June 30, 2023 compared to year ended June 30,
2024
Revenue
Amber DWM’s total revenue
consists of conversion fees, finance income and advisory fees. In connection with its fiat on/off-ramp services, Amber DWM earns conversion
fee when clients transfer or withdraw funds and/or digital assets from its platform, and performs conversion between fiat currencies and
digital assets. Amber DWM earns finance income mainly from premiums earned on structured products as well as interests earned from digital
asset lending arrangements. Amber DWM also earns advisory fees when providing wealth management services to clients.
The following table presents
the breakdown of Amber DWM’s total revenues, both in absolute amounts and as percentages of its total revenues for the periods presented.
| | |
For the Year Ended June 30, | |
| | |
2023 | | |
2024 | |
| | |
US$ | | |
% | | |
US$ | | |
% | |
| Conversion fees | |
| 271,025 | | |
| 24.4 | | |
| 1,497,054 | | |
| 42.2 | |
| Finance income | |
| 840,336 | | |
| 75.6 | | |
| 1,988,365 | | |
| 56.0 | |
| Advisory fees | |
| - | | |
| - | | |
| 62,794 | | |
| 1.8 | |
| Total revenue | |
| 1,111,361 | | |
| 100.0 | | |
| 3,548,213 | | |
| 100.0 | |
Amber DWM’s revenue
increased by 219.3% from US$1.1 million for the year ended June 30, 2023 to US$3.5 million for the year ended June 30, 2024.
This increase was primarily attributable to the increases in its conversion fees and finance income.
Amber DWM’s revenue
from conversion fees increased by 452.4% from US$0.3 million for the year ended June 30, 2023 to US$1.5 million for the year ended
June 30, 2024, primarily due to the growth in Amber DWM’s business following the acquisition of the MPI license in November 2022
through its acquisition of Sparrow Tech Private Limited as well as the recovery in the crypto market. Amber DWM’s number of clients
increased by 120.8% from 269 as of June 30, 2023 to 594 as of June 30, 2024. The trading volume handled by Amber DWM increased
by 371.9% from US$140.4 million for the year ended June 30, 2023 to US$662.6 million for the year ended June 30, 2024. Amber
DWM’s total client asset balance increased by 93.5% from US$21.7 million as of June 30, 2023 to US$42.0 million as of June 30,
2024.
Amber DWM’s revenue
from finance income increased by 136.6% from US$0.8 million for the year ended June 30, 2023 to US$2.0 million for the year ended
June 30, 2024, primarily due to the growth in Amber DWM’s structured product business.
Amber DWM recognized advisory
fees of US$62.8 thousand for the year ended June 30, 2024.
Cost of revenue
Amber DWM’s cost of
revenues mainly consists of interests and premium costs paid to clients as well as the premium costs associated with managing the risks
of the underlying assets of Amber DWM’s structured products when acting on a principal basis.
Amber DWM’s cost of
revenue increased by 143.8% from US$0.8 million for the year ended June 30, 2023 to US$2.0 million for the year ended June 30,
2024, primarily due to the growth in Amber DWM’s structured product business.
Gross profit
As a result of the foregoing,
Amber DWM’s gross profit increased from US$0.3 million for the year ended June 30, 2023 to US$1.6 million for the year ended
June 30, 2024. Amber DWM’s gross profit margin improved from 26.7% to 44.1% during the same periods, primarily because of Amber
DWM’s rapid business expansion.
Other income
Amber DWM’s other income
mainly consists of government grants, net foreign exchange differences, fair value gain on FVPL, service income, interest income and others.
Amber DWM’s other income increased by 136.7%, from US$71.7 thousand for the year ended June 30, 2023 to US$169.7 thousand for
the year ended June 30, 2024, primarily due to the increases in service income, interest income and others, which are partially offset
by a decrease in government grants.
Operating expenses
Amber DWM’s total operating
expenses consist of technology and development expenses, sales and marketing expenses, general and administrative expenses and finance
costs. Amber DWM’s total operating expenses increased by 108.8% from US$2.7 million for the year ended June 30, 2023 to US$5.7
million for the year ended June 30, 2024.
Technology and development
expenses. Amber DWM’s technology and development expenses primarily consist of technology infrastructure expenses, software
services expenses incurred in operating, maintaining, and enhancing its platform and in developing new products and services. Amber DWM’s
technology and development expenses increased by 6.5% from US$0.3 million for the year ended June 30, 2023 to US$0.4 million for
the year ended June 30, 2024.
Sales and marketing expenses.
Amber DWM’s sales and marketing expenses primarily consist of branding and marketing expenses. Amber DWM’s sales and marketing
expenses decreased by 13.1% from US$8.4 thousand for the year ended June 30, 2023 to US$7.3 thousand for the year ended June 30,
2024.
General and administrative
expenses. Amber DWM’s general and administrative expenses primarily consist of personnel expenses, office supplies and maintenance,
and other corporate related expenses. Amber DWM’s general and administrative expenses increased by 128.3% from US$2.3 million for
the year ended June 30, 2023 to US$5.2 million for the year ended June 30, 2024. Amber DWM has strategically expanded its personnel
headcount since it formally commenced its operations as an independent business unit in the second half of 2023.
Finance costs. Amber
DWM’s finance costs consist of interest expense on lease liabilities and related parties. Amber DWM’s finance costs decreased
by 5.2% from US$86.1 thousand for the year ended June 30, 2023 to US$81.6 thousand for the year ended June 30, 2024, primarily
due to a decrease in interest expense on lease liabilities.
Other expenses
Amber DWM’s total other
expenses consist of realized and unrealized change in fair value of digital assets. Amber DWM’s total other expenses increased by
123.9% from US$5.5 million for the year ended June 30, 2023 to US$12.2 million for the year ended June 30, 2024.
Amber DWM’s total realized
change in fair value of digital assets represents changes in the prices of digital assets traded in Amber DWM’s ordinary course
of business and changes in the prices of Bitcoins and Ethereums borrowed from or repaid to related parties by Amber DWM. Its total realized
change in fair value of digital assets decreased by 40.8% from US$285.0 thousand for the year ended June 30, 2023 to US$168.6 thousand
for the year ended June 30, 2024.
Amber DWM’s total unrealized
change in fair value of digital assets mainly represents changes in the prices of Bitcoins and Ethereums loaned to Amber DWM by Amber
Group in connection with the acquisition of Sparrow Holdings Pte. Ltd. in 2022, which have not been repaid as of the date of this document.
Its total unrealized change in fair value of digital assets increased by 115.7% from US$5.7 million for the year ended June 30, 2023
to US$12.4 million for the year ended June 30, 2024, primarily due to the significant increase in Bitcoin and Ethereum prices.
Income tax expense
As of June 30, 2024,
Amber DWM was still in accumulated loss position and incurred nil current income tax expense for the years ended June 30, 2023 and
2024.
Net loss
As a result of the foregoing,
Amber DWM incurred a net loss of US$16.1 million for the year ended June 30, 2024, as compared to a net loss of US$7.8 million for
the year ended June 30, 2023.
SUPPLEMENTAL MANAGEMENT’S DISCUSSION AND
ANALYSIS OF PRO FORMA FINANCIAL CONDITION AND RESULTS OF OPERATIONS OF AMBER DWM
In addition to the Management’s
Discussion and Analysis of Financial Condition and Results of Operations based on Amber DWM’s audited consolidated financial statements,
the following includes a supplemental analysis of operations discussion reflecting unaudited pro forma financial information, which has
been prepared to illustrate the pro forma effect of the completion of a series of corporate restructuring Amber DWM is undertaking in connection
with the Merger, which is referred to as the DWM Asset Restructuring.
The unaudited pro forma condensed
combined financial information for the year ended June 30, 2024 of Amber DWM combines the historical statements of operations of
Amber DWM and certain business elements that are identified for integration into Amber DWM upon the consummation of the DWM Asset Restructuring
for such period on a pro forma basis as if the DWM Asset Restructuring had been consummated on July 1, 2023, the beginning of the
period presented.
The unaudited pro forma condensed
combined financial information may not be useful in predicting the future financial condition and results of operations of Amber DWM upon
the completion of the DWM Asset Restructuring. The actual financial position and results of operations may differ significantly from the
pro forma amounts reflected herein due to a variety of factors.
The historical financial information
of Amber DWM was derived from Amber DWM’s audited consolidated financial statements included in Annex G to this proxy statement,
which is also discussed in further detail in the section entitled “Management’s Discussion and Analysis of Financial Condition
and Results of Operations of Amber DWM” beginning on page 117 of this proxy statement. The historical financial information
of certain business elements that are identified for integration into Amber DWM upon the consummation of the DWM Asset Restructuring was
derived from the independent factual finding report on assets and liabilities of such business elements as of June 30, 2024 and its related
income and expense attributable to operations for the year ended June 30, 2024.
Amber DWM began
transitioning from the crypto private banking business of Amber Group to an independent business unit in the second half of
2023. As a result, historical financial information of certain business elements that are identified for integration into Amber DWM
upon the consummation of the DWM Asset Restructuring is not available for the year ended June 30, 2023. As a result, the pro
forma results of operations giving effect to the DWM Asset Restructuring for the year ended June 30, 2023 are also
unavailable.
Pro forma revenue
Amber DWM’s pro forma
total revenue consists of conversion fees, commissions, finance income and other revenue. The following table sets forth a breakdown of
Amber DWM’s pro forma total revenue:
| | |
For the year ended June 30, 2024 | |
| | |
Amber DWM
Historical | | |
Certain
Business
Elements
Identified for
Integration | | |
Inter-company
Adjustments | | |
Unaudited
Pro Forma | |
| | |
US$ | | |
US$ | | |
US$ | | |
US$ | |
| Pro forma revenue: | |
| | |
| | |
| | |
| |
| Conversion fees | |
| 1,497,054 | | |
| 10,091,808 | | |
| (58,690 | ) | |
| 11,530,172 | |
| Commissions | |
| — | | |
| 12,022,202 | | |
| 477,756 | | |
| 12,499,958 | |
| Finance income | |
| 1,988,365 | | |
| 2,315,552 | | |
| (554,833 | ) | |
| 3,749,084 | |
| Other revenue | |
| 62,794 | | |
| 446,404 | | |
| — | | |
| 509,198 | |
| Pro forma total revenue | |
| 3,548,213 | | |
| 24,875,966 | | |
| (135,767 | ) | |
| 28,288,412 | |
Conversion fees. Amber
DWM’s pro forma conversion fees primarily consist of conversion fees earned from the provision of fiat on/off ramp services and
transaction fees earned from the provision of OTC trading and execution services and Amber Visa Card services.
Commissions. Amber
DWM’s pro forma commissions primarily consist of commission, rebates and spread earned from its standard earn and structured products,
DeFi yield enhanced products and strategic funds.
Finance income. Amber
DWM’s pro forma finance income primarily consists of interests earned from collateralized lending and premiums earned on structured
products on a principal basis.
Other revenue. Amber
DWM’s pro forma other revenue primarily consists of service fees, investment revenue and advisory fees.
For the year ended June 30,
2024, on a pro forma basis, Amber DWM’s revenue was US$28.3 million.
Pro forma cost of revenue
| | | |
For the year ended June 30, 2024 | |
| | | |
Amber DWM
Historical | | |
Certain
Business
Elements
Identified for
Integration | | |
Inter-company
Adjustments | | |
Unaudited
Pro Forma | |
| | | |
US$ | | |
US$ | | |
US$ | | |
US$ | |
| Cost of revenue | | |
| (1,984,984 | ) | |
| (7,651,115 | ) | |
| 135,767 | | |
| (9,500,332 | ) |
For the year ended June 30,
2024, on a pro forma basis, Amber DWM’s cost of revenue was US$9.5 million. Amber DWM’s pro forma cost of revenue primarily
consists of interests and premium costs paid to clients and the premium costs associated with managing the risks of the underlying assets
of Amber DWM’s structured products when acting on a principal basis, commissions paid to business partners and other transactions
fees. After the completion of the DWM Asset Restructuring, Amber DWM expects its cost of revenue will continue to increase in absolute
dollar amounts and vary from period to period as a percentage of revenues as Amber DWM continues to invest in its business and expand
the reach of its platform.
Pro forma operating expenses
Amber DWM’s pro forma
total operating expenses consist of technology and development expenses, sales and marketing expenses, general and administrative expenses
and finance costs. The following table sets forth a breakdown of Amber DWM’s pro forma operating expenses:
| | |
For the year ended June 30, 2024 | |
| | |
Amber DWM
Historical | | |
Certain
Business
Elements
Identified for
Integration | | |
Inter-company
Adjustments | | |
Unaudited
Pro Forma | |
| | |
US$ | | |
US$ | | |
US$ | | |
US$ | |
| Pro forma operating expenses: | |
| | | |
| | | |
| | | |
| | |
| Technology and development expenses | |
| (353,319 | ) | |
| (5,121,881 | ) | |
| — | | |
| (5,475,200 | ) |
| Sales and marketing expenses | |
| (7,294 | ) | |
| (89,532 | ) | |
| — | | |
| (96,826 | ) |
| General and administrative expenses | |
| (5,234,748 | ) | |
| (9,639,577 | ) | |
| — | | |
| (14,874,325 | ) |
| Finance costs | |
| (81,623 | ) | |
| — | | |
| — | | |
| (81,623 | ) |
| Pro forma total operating expenses | |
| (5,676,984 | ) | |
| (14,850,990 | ) | |
| — | | |
| (20,527,974 | ) |
For the year ended June 30,
2024, on a pro forma basis, Amber DWM’s total operating expenses were US$20.5 million.
Technology and development
expenses. Amber DWM’s pro forma technology and development expenses primarily consist of technology infrastructure expenses,
software services expenses incurred in operating, maintaining, and enhancing its platform and in developing new products and services.
After the completion of the DWM Asset Restructuring, Amber DWM expects its technology and development expenses to increase in absolute
amounts in the foreseeable future, as Amber DWM continues to enhance its technology infrastructure and scale its business.
Sales and marketing expenses.
Amber DWM’s pro forma sales and marketing expenses primarily consist of branding and marketing expenses. After the completion of
the DWM Asset Restructuring, Amber DWM expects its sales and marketing expenses to increase in absolute amounts, as Amber DWM continues
to strengthen its brand recognition and expand its client base.
General and administrative
expenses. Amber DWM’s pro forma general and administrative expenses primarily consist of personnel expenses, office supplies
and maintenance, and other corporate related expenses. After the completion of the DWM Asset Restructuring, Amber DWM expects its general
and administrative expenses to increase modestly in absolute amounts and over time decrease as a percentage of pro forma revenue as Amber
DWM continues to scale its business.
Finance costs. Amber
DWM’s pro forma finance costs consist of interest expenses on lease liabilities and related parties.
Other income/(expenses)
Amber DWM’s pro forma
other income/(expenses) consist of other expenses, realized and unrealized change in fair value of digital assets. The following table
sets forth a breakdown of Amber DWM’s pro forma other income/(expenses):
| | |
For the year ended June 30, 2024 | |
| | |
Amber DWM
Historical | | |
Certain
Business
Elements
Identified for
integration | | |
Inter-company
Adjustments | | |
Unaudited
Pro Forma | |
| | |
US$ | | |
US$ | | |
US$ | | |
US$ | |
| Other income/(expenses): | |
| | | |
| | | |
| | | |
| | |
| Interest income | |
| — | | |
| — | | |
| — | | |
| — | |
| Interest expenses | |
| — | | |
| — | | |
| — | | |
| — | |
| Other expenses | |
| — | | |
| (4,431 | ) | |
| — | | |
| (4,431 | ) |
| Realized change in fair value of digital assets | |
| 168,594 | | |
| — | | |
| — | | |
| 168,594 | |
| Unrealized change in fair value of digital assets | |
| (12,374,101 | ) | |
| 56,448 | | |
| — | | |
| (12,317,653 | ) |
| Total other income/(expenses), net | |
| (12,205,507 | ) | |
| 52,017 | | |
| — | | |
| (12,153,490 | ) |
For the year ended June 30,
2024, on a pro forma basis, Amber DWM’s total other expenses were US$12.2 million.
Realized change in fair
value of digital assets. Amber DWM’s pro forma realized change in fair value of digital assets represents changes in the prices
of digital assets traded in Amber DWM’s ordinary course of business and changes in the prices of Bitcoins and Ethereums borrowed
from or repaid to related parties by Amber DWM. After the completion of the DWM Asset Restructuring, Amber DWM expects its realized change
in fair value of digital assets to remain relatively modest due to its corporate policy to mainly hold stablecoins.
Unrealized change in fair
value of digital assets. Amber DWM’s pro forma unrealized change in fair value of digital assets primarily represents changes
in the prices of Bitcoins and Ethereums loaned to Amber DWM by Amber Group in connection with the acquisition of Sparrow Holdings Pte.
Ltd. in 2022. After the completion of the DWM Asset Restructuring, Amber DWM expects a significant decrease in unrealized change in fair
value of digital assets, as Bitcoins and Ethereums loaned from Amber Group will be forgiven by Amber Group prior to the Closing.
Pro forma net income/(loss)
| | |
For the year ended June 30, 2024 | |
| | |
Amber DWM
Historical | | |
Certain
Business
Elements
Identified for
Integration | | |
Inter-company
Adjustments | | |
Unaudited
Pro Forma | |
| | |
US$ | | |
US$ | | |
US$ | | |
US$ | |
| Income/(loss) before income taxes | |
| (16,149,548 | ) | |
| 2,425,878 | | |
| — | | |
| (13,723,670 | ) |
| Income taxes benefit/(expenses) | |
| — | | |
| — | | |
| — | | |
| — | |
| Net income/(loss) | |
| (16,149,548 | ) | |
| 2,425,878 | | |
| — | | |
| (13,723,670 | ) |
As a result of the foregoing,
Amber DWM incurred a pro forma net loss of US$13.7 million for the year ended June 30, 2024.
DIRECTORS
AND EXECUTIVE OFFICERS
In
accordance with Section 7.12 of the Merger Agreement, immediately after the Effective Time, the board of directors of ListCo shall
consist of no more than seven (7) directors, all of which will be designated by Amber DWM at least ten (10) business days prior
to the Closing.
The
following table provides certain information about those persons who are expected to serve as directors and executive officers of ListCo
following the consummation of the Merger.
|
Directors and
Executive Officers |
|
Age |
|
Position/Title |
| Michael Wu |
|
35 |
|
Chairman of the Board |
| Wayne Huo |
|
35 |
|
Chief Executive Officer and Director |
| Wing Hong Sammy Hsieh |
|
51 |
|
Director |
| Lub Bun Chong |
|
57 |
|
Director |
| Philip Kan |
|
69 |
|
Director |
| Winson Ip Wing Wai |
|
46 |
|
Director |
| Josephine Ngai Yuk Chun |
|
48 |
|
Chief Financial Officer |
| Terence Li |
|
47 |
|
Chief Strategy Officer |
Michael
Wu will be appointed as chairman of the board of directors of ListCo following the consummation of the Merger. Mr. Wu is a co-founder
of Amber Group and has served as its chief executive officer since the founding of Amber Group, and as a director of Amber DWM since February 2024.
Prior to founding Amber Group, Mr. Wu served as a portfolio manager at Arete Capital Partners from March 2017 to September 2017.
Prior to that, he served as an FX & rates trader at Morgan Stanley from June 2013 to February 2017. Mr. Wu received
his bachelor’s degree in economics from Dartmouth College in 2013.
Wayne
Huo will be appointed as chief executive officer and a director of ListCo following the consummation of the Merger. Mr. Huo is
a co-founder of Amber Group and has served as its chief operating officer since the founding of Amber Group. Mr. Huo has also served
as a director of Amber DWM since February 2024 and as its chief executive officer since November 2024. Prior to founding Amber
Group, Mr. Huo served as an FX option trader at Morgan Stanley from February 2014 to August 2015. Mr. Huo received
his bachelor’s degree in applied mathematics, finance & economics from University of Toronto in 2012 and his master’s
degree in mathematical finance from New York University in 2013.
Wing
Hong Sammy Hsieh is a director and co-founder of ICLK and served as the chief executive officer of ICLK from 2009 to 2019. Mr. Hsieh
is currently an independent director of Black Spade Acquisition II Co (NASDAQ: BSII). Prior to founding ICLK, Mr. Hsieh held senior positions in a number of prominent technology companies.
Mr. Hsieh was general manager for Asia Pacific at Efficient Frontier (now an Adobe company), a leading digital performance marketing
company in 2008. Prior to that, Mr. Hsieh was a director of Search Marketing at Yahoo Hong Kong during 2000 to 2008, during which
he oversaw the business operations, including sales, marketing, business development and product management. Mr. Hsieh also held
various sales and marketing positions at the LVMH Group and British American Tobacco earlier in his career. Mr. Hsieh received his
bachelor’s degree in economics from the University of California, Los Angeles.
Lub
Bun Chong has served as a director of ICLK since July 2019. Mr. Chong is currently a partner of C Consultancy Limited, a
Hong Kong-based corporate and financial advisory firm which specializes in the advertising, digital and media sectors of China and Southeast
Asia. Prior to founding C Consultancy Limited, he was the chief financial officer and the director of mergers and acquisitions of Clear
Media (00100.HK), and the chief financial officer of Focus Media (002027.SZ). Mr. Chong previously worked at PricewaterhouseCoopers
in China, Hong Kong and Singapore during the 1990s. Mr. Chong is the author of “Managing a Chinese Partner” (published
by Palgrave Macmillan) and a contributor of China articles to reputable publications. Mr. Chong received his bachelor’s degree
of accountancy from National University of Singapore and his MBA degree with merit from Manchester Business School. Mr. Chong is
a chartered accountant in Singapore.
Philip
Kan has served as a director of ICLK since January 2021. Mr. Kan has extensive experience in management, finance, banking,
capital market, information technology, risk management, corporate governance and corporate development. Mr. Kan has been the responsible
officer, director and the senior management of several financial institutions regulated by the Securities and Futures Commission of Hong
Kong since 2003. Mr. Kan was the founder and a director of Galileo Capital Group Ltd (HKEX:8029) from July 2000 to October 2008,
a boutique corporate finance house providing services in co-sponsoring IPOs, shares placement, M&A, assets management and financial
advisory. Prior to founding Galileo Capital Group Ltd, Mr. Kan held senior positions in a number of prominent companies. Mr. Kan
was the senior vice president for First Pacific Bank Limited, oversees the centralized banking services units (i.e. processing support
units) and the Information Technology Division of the Bank. Prior to that, Mr. Kan was the manager of Systems & Operations
at HSBC from 1987 to 1992. Mr. Kan also held various management positions at the AIG Finance (HK) Ltd, General Electric Co and Bank
of America earlier in his career. In July 2022, Mr. Kan was awarded Medal of Honour (M.H.) by the Hong Kong S.A.R. government.
Mr. Kan received his MBA degree from Henley Management College, Brunel University in the United Kingdom.
Winson
Ip Wing Wai has served as a director of ICLK since June 2024. Mr. Ip has more than 20 years of experience in financial and
operational management, compliance and ESG management, investment, merger and acquisition, investor relations, accounting and auditing.
Currently, he is an independent non-executive director and the chairperson of the audit committee of Deewin Tianxia Co., Ltd (2418.HK)
from 2021. He was an independent non-executive director and an audit committee member of 8088 Investment Holdings Limited (8088.HK) from
2020 to 2022. He served as an executive director of Beijing Beida Jade Bird Universal Sci-Tech Company Limited (8095.HK) and then served
as a non-executive director of Beijing Beida Jade Bird Universal Sci-Tech Company Limited from 2018 to 2021. He has held multiple leadership
positions, including as the chief financial officer at Sincere Watch (Hong Kong) Limited (444.HK) from 2020 to 2021, the chief financial
officer and company secretary of Huili Resources (Group) Limited (1303.HK) from 2011 to 2019, and the vice president of King Stone Energy
Group Limited (663.HK) from 2010 to now. He had also worked at KPMG. He obtained his bachelor of business administration in accounting
from The Hong Kong University of Science and Technology in 2000 and is currently a member of the Hong Kong Institute of Certified Public
Accountants.
Josephine
Ngai Yuk Chun has served as chief financial officer of ICLK since March, 2024. Before that,
Ms. Ngai was a vice president, finance and group financial controller of ICLK. Ms. Ngai has been an independent director of Man Shun
Group (Holdings) Limited (HKEX:1746) since June 2024. Prior to joining iClick, Ms. Ngai served in auditing capacity at Big Four accounting
firm and senior management roles in conglomerates listed on the Hong Kong Stock Exchange. She received a bachelor’s degree in accounting
from the Hong Kong Polytechnic University and an EMBA degree from the Chinese University of Hong Kong. Ms. Ngai is a Member of the Hong
Kong Institute of Certified Public Accountants.
Terence Li has
served as chief strategy advisor of ICLK since January 2022. He served as director and chief financial officer of ICLK from 2019 to 2022,
and head of finance of ICLK in 2018. Mr. Li has approximately 21 years of experience in financial management, investment, and business
operations. Prior to joining us, Mr. Li served in management roles and advisory capacities at several start-ups, in addition to financial
management and fundraising roles. Mr. Li was a Vice President with our Series A investor, Sumitomo Corporation Equity Asia, and served
on our board of directors between 2009 and 2013. Mr. Li also worked at PricewaterhouseCoopers, specializing in M&A due diligence
and cross border tax and deal structuring projects. Mr. Li received his bachelor’s degree in accounting from the HK Polytechnic
University and an MBA with Distinction and Dean’s List honors from Oxford University’s Saïd Business School. Mr. Li
is a Fellow Member of ACCA, a Member of HKICPA, and a Chartered Financial Analyst.
As
of the date of this proxy statement, Mr. Wing Hong Sammy Hsieh, Mr. Lub Bun Chong, Mr. Philip Kan and Mr. Winson Ip Wing Wai currently
serve as directors of ICLK and are expected to remain on the board of directors of ListCo following the consummation of the Merger. Ms.
Josephine Ngai Yuk Chun currently serves as Chief Financial Officer of ICLK and is expected to remain as Chief Financial Officer of ListCo
following the consummation of the Merger.
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Security Ownership of ICLK
The following table sets
forth information with respect to the beneficial ownership of the ICLK Shares as of the date of this proxy statement by:
| · | each of the directors and executive officers of ICLK; and |
| · | each person known to us to own beneficially more than 5% of total outstanding ICLK Shares. |
The calculations in the table
below are based on 44,378,953 ICLK Shares outstanding as of the date of this proxy statement, comprising (i) 39,344,526 ICLK Class A
Shares, excluding the 3,011,704 ICLK Class A Shares held by JPMorgan Chase Bank N.A., our depositary, underlying the unvested restricted
Class A ordinary shares units under the Post-IPO Share Incentive Plan of iClick, and (ii) 5,034,427 ICLK Class B Shares
outstanding.
Beneficial ownership is determined
in accordance with the rules and regulations of the SEC. In computing the number of shares beneficially owned by a person and the
percentage ownership of that person, we have included shares that the person has the right to acquire within 60 days after the date of
this proxy statement, including through the exercise of any option, warrant or other right or the conversion of any other security. These
shares, however, are not included in the computation of the percentage ownership of any other person.
| | |
Ordinary Shares Beneficially Owned | |
|
| | |
Class A | | |
Class B | | |
| | |
| |
|
| |
|
| | |
Ordinary | | |
Ordinary | | |
| | |
| |
|
Aggregate | |
|
| | |
Shares | | |
Shares | | |
Total Ordinary Shares | |
|
Voting | |
|
| | |
Number | | |
Number | | |
Number | | |
% | |
|
Power % | |
|
| Directors and Executive Officers: | |
| | | |
| | | |
| | | |
| | |
|
| | |
|
| Wing Hong Sammy Hsieh(1) | |
| 241,295 | | |
| 2,282,815 | | |
| 2,524,110 | | |
| 5.7 | % |
|
| 32.8 | % |
|
| Jian Tang(2) | |
| 424,200 | | |
| 2,102,263 | | |
| 2,526,463 | | |
| 5.7 | % |
|
| 30.3 | % |
|
| Lub Bun Chong | |
| (i) | | |
| — | | |
| (i) | | |
| (i) | % |
|
| (i) | % |
|
| Dylan Huang | |
| (i) | | |
| — | | |
| (i) | | |
| (i) | % |
|
| (i) | % |
|
| Philip Kan | |
| (i) | | |
| — | | |
| (i) | | |
| (i) | % |
|
| (i) | % |
|
| Winson Ip Wing Wai | |
| — | | |
| — | | |
| — | | |
| — | |
|
| — | |
|
| Josephine Ngai Yuk Chun | |
| (i) | | |
| — | | |
| (i) | | |
| (i) | % |
|
| (i) | % |
|
| All directors and executive officers as a group | |
| 755,180 | | |
| 4,385,078 | | |
| 5,140,258 | | |
| 11.6 | % |
|
| 63.2 | % |
|
| | |
| | | |
| | | |
| | | |
| | |
|
| | |
|
| Principal Shareholders: | |
| | | |
| | | |
| | | |
| | |
|
| | |
|
| Bubinga Holdings Limited(1) | |
| — | | |
| 2,282,815 | | |
| 2,282,815 | | |
| 5.1 | % |
|
| 32.6 | % |
|
| Igomax Inc.(3) | |
| 396,295 | | |
| 2,102,263 | | |
| 2,498,558 | | |
| 5.6 | % |
|
| 30.3 | % |
|
| Baozun Inc.(4) | |
| 1,235,730 | | |
| 649,349 | | |
| 1,885,079 | | |
| 4.2 | % |
|
| 10.2 | % |
|
| Creative Big Limited(5) | |
| 2,549,415 | | |
| — | | |
| 2,549,415 | | |
| 5.7 | % |
|
| 1.8 | % |
|
| Integrated Asset Management (Asia) Ltd.(6) | |
| 4,876,050 | | |
| — | | |
| 4,876,050 | | |
| 11.0 | % |
|
| 3.5 | % |
|
| Marine Central Limited(7) | |
| 2,564,103 | | |
| — | | |
| 2,564,103 | | |
| 5.8 | % |
|
| 1.8 | % |
|
| TIAA-CREF Investment Management, LLC, Teachers Advisors, LLC, College Retirement Equities Fund-Stock Account and Nuveen Asset Management, LLC(8) | |
| 3,716,555 | | |
| — | | |
| 3,716,555 | | |
| 8.4 | % |
|
| 2.7 | % |
|
Notes:
| (i) | Less than 1% of our total outstanding shares. |
| †† | For
each person and group included in this column, percentage ownership is calculated by dividing the number of ordinary shares beneficially
owned by such person or group, including shares that such person or group has the right to acquire within 60 days as of the date of this
proxy statement, by the sum of (1) 44,378,953, which is the total number of ICLK Shares outstanding as of the date of this proxy
statement; and (2) the number of ordinary shares that such person or group has the right to acquire within 60 days as of the date
of this proxy statement. |
| †† | For each person
and group included in this column, percentage of voting power is calculated by dividing the voting power beneficially owned by such
person or group by the voting power of all of ICLK Class A Shares and ICLK Class B Shares as a single class. Each holder ICLK
Class A Shares is entitled to one vote per ICLK Class A Share and each holder of ICLK Class B Shares is entitled to 20
votes per ICLK Class B Share on all matters submitted to them for a vote. ICLK Class A Shares and ICLK Class B Shares
vote together as a single class on all matters submitted to a vote of iClick shareholders, except as may otherwise be required by law.
ICLK Class B Shares are convertible at any time by the holder thereof into ICLK Class A Shares on a one-for-one basis. |
| (1) | Represents (a) 2,282,815 ICLK Class B Shares held by Bubinga Holdings Limited, a British Virgin
Islands company wholly owned by Mr. Wing Hong Sammy Hsieh, and (b) 241,295 ICLK Class A Shares held by Mr. Hsieh.
The registered office address of Bubinga Holdings Limited is Vistra Corporate Services Centre, Wickhams Cay II, Road Town, Tortola, VG1110,
British Virgin Islands. The address of Mr. Wing Hong Sammy Hsieh is 15/F, Prosperity Millennia Plaza, 663 King’s Road, Quarry
Bay, Hong Kong S.A.R. |
| (2) | Represents (a) 2,102,263 ICLK Class B Shares held by Igomax Inc., a British Virgin Islands company
wholly owned by Mr. Jian Tang, (b) 27,905 ICLK Class A Shares that are issuable upon exercise of options held in trust
by Mr. Tang on behalf of certain consultants of OptAim, and (c) 396,295 ICLK Class A Shares held by Igomax Inc.. |
| (3) | Represents (a) 2,102,263 ICLK Class B Shares held by Igomax Inc., a British Virgin Islands company
wholly owned by Mr. Jian Tang, and (b) 396,295 ICLK Class A Shares held by Igomax Inc. |
| (4) | Represents (a) 1,235,730 ICLK Class A Shares in the form of 247,146 ADSs and (b) 649,349
ICLK Class B Shares. |
| (5) | Represents 2,549,415 ICLK Class A Shares held by Creative Big Limited, as reported in the Schedule
13D filed on December 1, 2023. Creative Big Limited is a company incorporated in the British Virgin Islands. These ordinary shares
were issued for acquisition of Optimal Power Limited. Mr. Kenny Sin Nang Chiu is the sole shareholder and the sole director of Creative
Big Limited. The principal business office of Creative Big Limited is Flat 23B, Block 6, Hanley Villa, 22 Yau Lai Road, Yau Kom Tau, Tsuen
Wan, Hong Kong S.A.R. |
| (6) | Represents 4,876,050 ICLK Class A Shares directly held by Integrated Asset Management (Asia) Ltd.,
a company incorporated in the British Virgin Island, as reported in the Schedule 13D filed on November 29, 2023. Mr. Yam Tak
Cheung is the sole shareholder and the sole director of Integrated Asset Management (Asia) Ltd. The principal business office of Integrated
Asset Management (Asia) Ltd. is 21/F, 88 Gloucester Road, Wan Chai, Hong Kong S.A.R. |
| (7) | Represents 2,564,103 ICLK Class A Shares held by Marine Central Limited, as reported in the Schedule
13D/A filed on November 27, 2023. Mr. Jianjun Huang is the majority shareholder and the sole director of Marine Central Limited,
who possesses power to direct the voting and disposition of the shares beneficially owned by Marine Central Limited. |
| (8) | Represents aggregate 3,716,555 ICLK Class A Shares held by TIAA-CREF Investment Management, LLC,
Teachers Advisors, LLC, College Retirement Equities Fund-Stock Account and Nuveen Asset Management, LLC, as reported in the Schedule 13G
filed on February 14, 2024. |
To our knowledge, as of the date of this proxy statement, 27,237,207,
or 61.4% of ICLK Shares were held by one record holder in the United States, which was JPMorgan Chase Bank, N.A., the depositary of our
ADS program. The number of beneficial owners of our ADSs in the United States is likely to be much larger than the number of record holders
of our ordinary shares in the United States.
Security Ownership of Amber DWM
The following table sets
forth information with respect to beneficial ownership of Amber DWM’s ordinary shares as of the date of this proxy statement by:
(i) each of its directors and executive officers, (ii) all directors and executive officers as a group, and (iii) each
person who is known by it to own beneficially 5% or more of its outstanding ordinary shares.
Beneficial ownership is determined
in accordance with the rules of the SEC and includes voting or investment power with respect to, or the power to receive the economic
benefit of ownership of, the securities. In computing the number of shares beneficially owned by a person and the percentage ownership
of that person, Amber DWM has included shares that the person has the right to acquire within 60 days, including through the exercise
of any option or other right or the conversion of any other security. However, these shares are not included in the computation of the
percentage ownership of any other person.
The calculations in the table
below are based on 42,100 Amber DWM ordinary shares outstanding as of the date of this proxy statement, assuming the automatic conversion
of 2,100 Series A preferred shares into 2,100 ordinary shares on a one-for-one-basis.
| | |
Ordinary Shares
Beneficially Owned | | |
Percentage of Aggregate
Voting Power† | |
| Directors and Executive Officers:* | |
| | | |
| | |
| Michael Wu (1) | |
| 40,000 | | |
| 95.0 | % |
| Yi Bao | |
| — | | |
| — | |
| Wayne Huo | |
| — | | |
| — | |
| All Directors and Executive Officers as a Group | |
| 40,000 | | |
| 95.0 | % |
| Principal Shareholders: | |
| | | |
| | |
| Amber Global Limited (1) | |
| 40,000 | | |
| 95.0 | % |
| * | Unless otherwise indicated in the footnotes, the business address
of Amber DWM’s directors and executive officers is 1 Wallich Street, #30-02 Guoco Tower, Singapore 078881. |
| † | For each person and group included in this column, percentage
ownership is calculated by dividing the number of ordinary shares beneficially owned by such person or group, including shares that such
person or group has the right to acquire within 60 days after the date of this proxy statement, by the sum of (i) the total number of
ordinary shares issued and outstanding as of the date of this proxy statement, and (ii) the number of ordinary shares that such person
or group has the right to acquire beneficial ownership within 60 days after the date of this proxy statement. |
| (1) | Represents 40,000 Amber DWM ordinary shares held by Amber Global
Limited. Mr. Michael Wu is deemed to be a beneficial owner of all the shares held Amber Global Limited by virtue of his entitlement to
appoint a majority of the board of directors of Amber Global Limited. Amber Global Limited is a Cayman Islands company with its registered
address at Vistra (Cayman) Limited, P.O. Box 31119, Grand Pavilion, Hibiscus Way, 802 West Bay Road, Grand Cayman, KY1-1205, Cayman Island. |
Pro Forma Security Ownership of ListCo upon Consummation of the
Merger
Subject to certain assumptions,
the following table sets forth information with respect to beneficial ownership of ListCo after completion of the DWM Capital Restructuring
and upon the consummation of the Merger by: (i) each of its directors and executive officers, (ii) all directors and executive
officers as a group, and (iii) each person expected to beneficially own 5% or more of its outstanding ordinary shares.
Beneficial ownership is determined
in accordance with the rules of the SEC and includes voting or investment power with respect to, or the power to receive the economic
benefit of ownership of, the securities. In computing the number of shares beneficially owned by a person and the percentage ownership
of that person, Amber DWM has included shares that the person has the right to acquire within 60 days after the Closing, including through
the exercise of any option or other right or the conversion of any other security. However, these shares are not included in the computation
of the percentage ownership of any other person.
The
total number of ListCo ordinary shares outstanding after completion of the DWM Capital Restructuring and upon the consummation of the
Merger will be 453,981,880 New Ordinary Shares, comprising of 417,663,545 New Class A Shares and 36,318,335 New Class B Shares, which
is based upon (i) all ICLK Class A Shares and ICLK Class B Shares in the authorized share capital of ICLK to be re-designated as New
Ordinary Shares immediately prior to the Effective Time, assuming no issuance of ICLK ordinary shares or equity incentives between the
signing of the Merger Agreement to immediately prior to the Effective Time, (ii) 18,711 Amber DWM ordinary shares to be held by AB Founder
HoldCo, which will be issued to AB Founder HoldCo as part of the DWM Capital Restructuring and converted into 36,318,335 New Class B
Shares immediately prior to the Effective Time, and (iii) 191,789 issued and outstanding Amber DWM ordinary shares (including
(a) 120,000 Amber DWM ordinary shares to be issued to Amber Global Limited before the issuance of shares pursuant to the DWM Capital
Restructuring, (b) 6,300 Amber DWM Series A preferred shares to be issued to
existing holders of Amber DWM Series A preferred shares before the issuance of shares pursuant to the DWM Capital Restructuring and to
be re-designated as 6,300 Amber DWM ordinary shares immediately prior to the Effective Time, and (c) 23,389 Amber DWM ordinary shares
to be issued to one or more employee incentive holding entities to be formed after the date of the Merger Agreement as part of the DWM
Capital Restructuring) to be converted into 372,265,357 New Class A Shares immediately prior to the Effective Time.
| |
|
|
Ordinary
Shares Beneficially Owned |
| |
|
|
Class A
Ordinary
Shares |
|
|
|
Class B
Ordinary
Shares |
|
|
|
Percentage
of
Total
Ordinary
Shares |
|
|
|
Percentage
of
Aggregate
Voting
Power† |
|
| Directors
and Executive Officers:* |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Michael
Wu |
|
|
310,562,426 |
|
|
|
36,318,335 |
|
|
|
76.4 |
% |
|
|
92.9 |
% |
| Amber
Global Limited (1) |
|
|
310,562,426 |
|
|
|
— |
|
|
|
68.4 |
% |
|
|
20.6 |
% |
| AB
Founder HoldCo (2) |
|
|
— |
|
|
|
36,318,335 |
|
|
|
8.0 |
% |
|
|
72.3 |
% |
| Wayne
Huo |
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
| Wing
Hong Sammy Hsieh |
|
|
(i) |
|
|
|
— |
|
|
|
(i) |
% |
|
|
(i) |
% |
| Lub
Bun Chong |
|
|
(i) |
|
|
|
— |
|
|
|
(i) |
% |
|
|
(i) |
% |
| Philip
Kan |
|
|
(i) |
|
|
|
— |
|
|
|
(i) |
% |
|
|
(i) |
% |
| Winson
Ip Wing Wai |
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
| Josephine
Ngai Yuk Chun |
|
|
(i) |
|
|
|
— |
|
|
|
(i) |
% |
|
|
(i) |
% |
| Terence
Li |
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
| All
Directors and Executive Officers as a Group |
|
|
313,170,221 |
|
|
|
36,318,335 |
|
|
|
77.0 |
% |
|
|
93.1 |
% |
| Principal
Shareholders: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Amber
Global Limited (1) |
|
|
310,562,426 |
|
|
|
— |
|
|
|
68.4 |
% |
|
|
20.6 |
% |
| AB
Founder HoldCo (2) |
|
|
— |
|
|
|
36,318,335 |
|
|
|
8.0 |
% |
|
|
72.3 |
% |
Notes:
| (i) | Less than 1% of our total outstanding
shares. |
| * |
The business address of Mr. Michael Wu and Mr. Wayne Huo is 1 Wallich Street, #30-02 Guoco Tower, Singapore 078881. The business address
of Mr. Wing Hong Sammy Hsieh, Mr. Lub Bun Chong, Mr. Philip Kan and Mr. Winson Ip Wing Wai is 15/F, Prosperity Millennia Plaza, 663 King’s
Road, Quarry Bay, Hong Kong S.A.R. |
| † |
For each person and group included in this column, percentage of voting power is calculated by dividing the voting power beneficially owned by such person or group by the voting power of all of New Class A Shares and New Class B Shares as a single class. In respect of matters requiring a shareholder vote, each New Class A Share will be entitled to one vote, and each New Class B Share will be entitled to 30 votes upon the Closing. Each New Class B Share will be convertible into one New Class A Share at any time by the holder thereof. New Class A Shares will not be convertible into New Class B Shares under any circumstances. |
| (1) |
Represents 310,562,426 New Class A Shares to be held by Amber Global Limited upon the consummation of the Merger. Mr. Michael Wu is deemed to be a beneficial owner of all the shares held by Amber Global Limited by virtue of his entitlement to appoint a majority of the board of directors of Amber Global Limited. Amber Global Limited is a Cayman Islands company with its registered address at Vistra (Cayman) Limited, P.O. Box 31119, Grand Pavilion, Hibiscus Way, 802 West Bay Road, Grand Cayman, KY1-1205, Cayman Islands. |
| (2) |
Represents 36,318,335 New Class B Shares to be held by AB Founder HoldCo, an entity to be formed or designated prior to the Effective Time which shall be controlled by Mr. Michael Wu. |
MATERIAL TAX CONSEQUENCES
OF THE MERGER
Material U.S. Federal Income Tax Consequences to U.S. Holders
of ICLK
General
The following is a general discussion of the material U.S. federal
income tax consequences to U.S. Holders (as defined below) of ICLK Shares or ADSs as a result of the exchange of all of the issued and
outstanding share capital of ListCo for a mixture of newly issued New Class A Shares and New Class B Shares (the “Exchange”).
This discussion is based on provisions of the Internal Revenue Code
of 1986, as amended (the “Code”), and regulations, rulings and judicial interpretations thereof, in force as of the date hereof.
Those authorities may be changed at any time, perhaps retroactively, so as to result in U.S. federal income tax consequences different
from those summarized below.
No ruling has been requested or will be obtained from the IRS regarding
the U.S. federal income tax consequences of the Exchange or any other transaction described herein; thus, there can be no assurance that
the IRS will not challenge the U.S. federal income tax treatment described below or that, if challenged, such treatment will be sustained
by a court.
This summary is not a comprehensive discussion of all of the tax considerations
that may be relevant to a particular investor’s decision to purchase, hold, or dispose of ICLK Shares or ADSs. In particular, this
summary is directed only to U.S. Holders that hold ICLK Shares or ADSs as capital assets and does not address all of the tax consequences
to U.S. Holders who may be subject to special tax rules, such as banks, brokers or dealers in securities or currencies, traders in securities
electing to mark to market, financial institutions, life insurance companies, tax exempt entities, partnerships (including any entities
treated as partnerships for U.S. tax purposes) and the partners therein, holders that own or are treated as owning 10% or more of our
shares (measured by voting power or value), persons holding ICLK Shares or ADSs as part of a hedging or conversion transaction or a straddle,
or persons whose functional currency is not the U.S. dollar. Moreover, this summary does not address state, local or non-U.S. taxes, the
U.S. federal estate or gift taxes, the Medicare contribution tax applicable to net investment income, or the alternative minimum tax consequences
of acquiring, holding or disposing of ICLK Shares or ADSs.
For purposes of this proxy statement/prospectus, a “U.S. Holder”
is a beneficial owner of ICLK Shares or ADSs that is a citizen or resident of the United States or a U.S. domestic corporation or that
otherwise is subject to U.S. federal income taxation on a net income basis in respect of such ICLK Shares or ADSs.
THIS SUMMARY DOES NOT PURPORT TO BE A COMPREHENSIVE ANALYSIS OR DESCRIPTION
OF ALL POTENTIAL U.S. FEDERAL INCOME TAX CONSEQUENCES OF THE EXCHANGE. U.S. HOLDERS OF ICLK SHARES OR ADSS SHOULD CONSULT WITH THEIR TAX
ADVISORS REGARDING THE PARTICULAR TAX CONSEQUENCES TO THEM OF THE EXCHANGE AND OF THE OWNERSHIP AND DISPOSITION OF ICLK SECURITIES AFTER
THE EXCHANGE, INCLUDING THE APPLICABILITY AND EFFECTS OF U.S. FEDERAL, STATE, LOCAL, AND OTHER TAX LAWS.
ADSs
In general, if you are a U.S. Holder of ADSs, you will be treated,
for U.S. federal income tax purposes, as the beneficial owner of the underlying ordinary shares that are represented by those ADSs.
Tax Consequences of the Exchange
The Exchange is expected to qualify as a “reorganization”
within the meaning of Section 368(a)(1)(E) of the Code. Subject to the discussion below under “Passive Foreign Investment Company
Rules,” assuming that the Exchange qualifies as a reorganization within the meaning of Section 368(a)(1)(E) of the Code, a U.S.
Holder that exchanges its ICLK Shares or ADSs for New Class A Shares or New Class B Shares should generally not recognize gain or loss
on such exchange; the aggregate adjusted tax basis of a U.S. Holder in the New Class A Shares or New Class B Shares received as a result
of the Exchange should equal the aggregate adjusted tax basis of the ICLK Shares or ADSs surrendered in the Exchange; and a U.S. Holder’s
holding period for the New Class A Shares or New Class B Shares received in the exchange should include the holding period for the ICLK
Shares or ADSs surrendered in the exchange.
U.S. Holders should consult their own tax advisors as to the
particular consequences to them of the Exchange of ICLK Shares for a mixture of newly issued New Class A Shares or New
Class B Shares pursuant to the Exchange and the qualification of the Exchange as a tax-free reorganization.
Passive Foreign Investment Company Rules
Special U.S. tax rules apply to companies that are considered to be
PFICs. A non-U.S. corporation will be classified as a PFIC in a particular taxable year if either:
| · | 75 percent or more of its gross income for the taxable year is passive income; or |
| · | the average percentage of the value of its assets that produce or are held for the production of passive income is at least 50 percent. |
For this purpose, cash generally is treated as a passive asset. Goodwill
is treated as an active asset under the PFIC rules to the extent attributable to activities that produce active income. ListCo will be
treated as owning its proportionate share of the assets and earning its proportionate share of the income of any other corporation in
which it owns, directly or indirectly, 25% or more (by value) of the stock. Although the law in this regard is not entirely clear, ListCo
treats its consolidated variable interest entities as being owned by it for U.S. federal income tax purposes because it controls their
management decisions and is entitled to substantially all of the economic benefits associated with these entities.
Based on its financial statements, the manner in which it conducts
its business, the trading price of its ADSs, the value and nature of its assets and the sources and nature of its income, ListCo believes
it was a PFIC for its prior taxable year. Additionally, there is a significant risk that it will be a PFIC for its current taxable year.
Following the Merger, the annual PFIC income and asset tests in respect of ListCo will be applied based on the assets and activities of
the combined business. Based on the projected composition of ListCo’s income and assets, ListCo believes there is a significant
risk that it will be a PFIC in the taxable year that includes the date of the Merger.
The determination of whether ListCo is a PFIC is made annually after
the close of each taxable year. This determination is based on the facts and circumstances at that time, some of which may be beyond ListCo’s
control, such as the amount and composition of its income and the valuation and composition of its assets, including goodwill and other
intangible assets, as implied by the market price of its ADSs and ordinary shares. In particular, because the value of ListCo’s
assets for purposes of the asset test may be determined by reference to the market price of its ADSs, fluctuations in the market price
of its ADSs and/or ordinary shares may cause ListCo to be a PFIC for the current or subsequent taxable years. In addition, the composition
of ListCo’s income and assets will also be affected by how, and how quickly, it uses its liquid assets. If ListCo determines not
to deploy significant amounts of cash for active purposes, or if it were determined that ListCo does not own the stock of the consolidated
variable interest entities for U.S. federal income tax purposes, its risk of being a PFIC may substantially increase.
In the event that ListCo is classified as a PFIC in any year and a
U.S. Holder does not make a mark-to-market election, as described below, the holder will be subject to a special tax at ordinary income
tax rates on “excess distributions” (generally, any distributions that a U.S. Holder receives in a taxable year that are greater
than 125 percent of the average annual distributions that such U.S. Holder has received in the preceding three taxable years, or its holding
period, if shorter), as well as any gain that such U.S. Holder recognizes on the sale of ListCo’s ordinary shares or ADSs. Under
these rules, (a) the excess distribution or gain will be allocated ratably over the U.S. Holder’s holding period for the shares,
(b) the amount allocated to the current taxable year and any taxable year prior to the first taxable year in which we are a PFIC will
be taxed as ordinary income, and (c) the amount allocated to each of the other taxable years will be subject to tax at the highest rate
of tax in effect for the applicable class of taxpayer for that year, and an interest charge for the deemed deferral benefit will be imposed
with respect to the resulting tax attributable to each such other taxable year. Additionally, dividends paid by ListCo will not be eligible
for the special reduced rate of taxes for “qualified dividends.” If ListCo is classified as a PFIC for any taxable year in
which a U.S. Holder owns its ordinary shares or ADSs, ListCo will generally continue to be treated as a PFIC with respect to the U.S.
Holder for all succeeding years during which the U.S. Holder owns ListCo’s ordinary shares or ADSs, even if ListCo ceases to meet
the threshold requirements for PFIC status (unless the U.S. Holder makes a special “purging” election on IRS Form 8621 with
respect to ListCo’s ordinary shares or ADSs once ListCo is no longer a PFIC). Classification as a PFIC may also have other adverse
tax consequences, including, in the case of individuals, the denial of a step-up in the basis of his or her ordinary shares or ADSs at
death. U.S. Holders are urged to consult their own tax advisors about the application of the PFIC rules to ListCo.
If ListCo is a PFIC for any taxable year during which a U.S. Holder
holds its ordinary shares or ADSs and ListCo has any direct, and in certain circumstances, indirect subsidiaries that are PFICs (each
a “Subsidiary PFIC”), the U.S. Holder will be treated as owning its pro rata share of the stock of each Subsidiary PFIC for
purposes of the application of these rules, and the U.S. Holder generally would be subject to similar rules with respect to distributions
to ListCo by, and dispositions by ListCo of the stock of, any Subsidiary PFIC.
If ListCo is a PFIC for any taxable year, in lieu of being subject
to the general rules discussed above, a U.S. Holder may elect to mark its ordinary shares or ADSs to market, provided that the ordinary
shares or ADSs are considered “marketable.” The ordinary shares or ADSs will be marketable if they are regularly traded on
certain U.S. stock exchanges, including the NASDAQ Global Market, or on a non-U.S. stock exchange if (i) the exchange is regulated or
supervised by a governmental authority in the country in which the exchange is located; (ii) the exchange has trading volume, listing,
financial disclosure, surveillance and other requirements designed to prevent fraudulent and manipulative acts and practices, remove impediments
to, and perfect the mechanism of, a free and open, fair and orderly, market and to protect investors; (iii) the laws of the country in
which the exchange is located and the rules of the exchange ensure that these requirements are actually enforced; and (iv) the rules of
the exchange ensure active trading during any calendar year during which they are traded, other than in de minimis quantities, on at least
15 days during each calendar quarter. It should be noted that only the ADSs, and not the ordinary shares, are listed on the NASDAQ Global
Market, and the ordinary shares themselves are not listed on any stock exchange. Consequently, a mark-to-market election is not expected
to be available for a U.S. Holder that holds ordinary shares that are not represented by ADSs.
If the U.S. Holder makes this mark-to-market election with respect
to its ADSs, the holder will be required in any year in which ListCo is a PFIC to include as ordinary income the excess of the fair market
value of the ADSs at year-end over the holder’s basis in those ADSs. If, at the end of the U.S. Holder’s taxable year for
a year in which ListCo was a PFIC, the holder's basis in the ADSs exceeds their fair market value, the holder will be entitled to deduct
the excess as an ordinary loss, but only to the extent of the holder's net mark-to-market gains from previous years. The holder's adjusted
tax basis in the ADSs will be adjusted to reflect any income or loss recognized under these rules. In addition, any gain the U.S. Holder
recognizes upon the sale of the holder's ADSs will be taxed as ordinary income in the year of sale, and any loss will be treated as an
ordinary loss to the extent of the U.S. Holder's net mark-to-market gains from previous years. Once made, the election cannot be revoked
without the consent of the IRS unless the ADSs cease to be marketable.
A U.S. Holder will not, however, be able to make a mark-to-market election
with respect to the stock of any Subsidiary PFIC. Therefore, the U.S. Holder would continue to be subject to the excess distribution rules
with respect to any of ListCo’s subsidiaries that are PFICs, any distributions received by ListCo from a subsidiary that is a PFIC
and any gain recognized by us upon a sale of equity interests in a subsidiary that is a PFIC, even if the U.S. Holder has made a mark-to-market
election with respect to ListCo’s ADSs. The interaction of the mark-to-market rules and the rules governing lower-tier PFICs is
complex and uncertain.
In some cases, a shareholder of a PFIC may be subject to alternative
treatment by making a valid qualified electing fund election, or QEF election. If a QEF election is made, such U.S. Holder generally will
be required to include in income on a current basis its pro rata share of the PFIC’s ordinary income and net capital gains, regardless
of whether or not such earnings and gains are actually distributed to such U.S. Holder. To make a QEF election, the PFIC must provide
shareholders with certain information compiled according to U.S. federal income tax principles. ListCo does not intend, however, to prepare
or provide the information that would enable U.S. Holders to make QEF elections.
A U.S. Holder that owns an equity interest in a PFIC generally must
annually file IRS Form 8621, and may be required to file other IRS forms. A failure to file one or more of these forms as required may
toll the running of the statute of limitations in respect of each of the U.S. Holder's taxable years for which such form is required to
be filed. As a result, the taxable years with respect to which the U.S. Holder fails to file the form may remain open to assessment by
the IRS indefinitely, until the form is filed.
U.S. Holders should consult their own tax advisors regarding the U.S.
federal income tax considerations discussed above and the availability and desirability of making a mark-to-market election.
Cayman Island Tax Consequences
The Cayman Islands currently levies no taxes on individuals or corporations
based upon profits, income, gains or appreciation and there is no taxation in the nature of inheritance tax or estate duty. There are
no other taxes likely to be material to holders of the ICLK Shares or ADSs levied by the government of the Cayman Islands except for stamp
duties which may be applicable on instruments executed in, or after execution brought within the jurisdiction of, the Cayman Islands.
The Cayman Islands is not party to any double tax treaties that are applicable to any payments made to or by our company.
No taxes, fees or charges will be payable (either by direct assessment
or withholding) to the Cayman Islands government or other taxing authority in the Cayman Islands under the laws of the Cayman Islands
in respect of the Merger consideration or the receipt of the Merger consideration by ListCo shareholders or Amber DWM shareholders under
the terms of the Merger Agreement. This is subject to the qualifications that (1) Cayman Islands stamp duty may be payable if any
original transaction documents, including the Merger Agreement, are brought to or executed in the Cayman Islands; and (2) registration
fees will be payable to the Cayman Islands Registrar of Companies to register the plan of merger and other filings required in connection
with the Merger.
WHERE YOU CAN FIND MORE
INFORMATION
ListCo is subject to the reporting requirements of the Exchange Act
applicable to foreign private issuers and files annual reports with and furnishes current reports on Form 6-K to the SEC. The information
we file or furnish is also available free of charge on the SEC’s website at http://www.sec.gov.
The reports and other information that we file with the SEC are also
available in the “Investors” section of the ListCo’s website at https://ir.i-click.com/. The information provided on
our website is not part of this proxy statement, and is not incorporated into this proxy statement by reference.
Requests for copies of our filings should be directed to our Investor Relations Department, at the address and phone numbers provided
in this proxy statement.
THIS PROXY STATEMENT DOES NOT CONSTITUTE THE SOLICITATION OF A
PROXY IN ANY JURISDICTION TO OR FROM ANY PERSON TO WHOM OR FROM WHOM IT IS UNLAWFUL TO MAKE SUCH PROXY SOLICITATION IN THAT JURISDICTION.
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROXY STATEMENT TO VOTE YOUR ICLK SHARES AT THE
EXTRAORDINARY GENERAL MEETING. THE PARTIES HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH INFORMATION THAT IS DIFFERENT FROM WHAT IS
CONTAINED IN THIS PROXY STATEMENT.
THIS PROXY STATEMENT IS DATED DECEMBER 19, 2024. YOU SHOULD NOT
ASSUME THAT THE INFORMATION CONTAINED IN THIS PROXY STATEMENT IS ACCURATE AS OF ANY DATE OTHER THAN THAT DATE, AND THE MAILING OF THIS
PROXY STATEMENT TO SHAREHOLDERS DOES NOT CREATE ANY IMPLICATION TO THE CONTRARY.
ANNEX A
Agreement and Plan of Merger
EXECUTION VERSION
CONFIDENTIAL
AGREEMENT
AND PLAN OF MERGER
by and among
iClick
Interactive Asia Group Limited,
OVERLORD
MERGER SUB LTD.
and
Amber
DWM Holding Limited,
dated as of November 29, 2024
TABLE OF CONTENTS
| Article I
DEFINITIONS |
3 |
| |
|
| 1.1 |
Defined Terms |
3 |
| |
|
|
| Article II
THE MERGER |
23 |
| |
|
| 2.1 |
Pre-Closing Actions |
23 |
| 2.2 |
The Merger |
23 |
| 2.3 |
Closing |
23 |
| 2.4 |
Effective Time |
24 |
| 2.5 |
Effect of Merger |
24 |
| 2.6 |
Governing Documents |
24 |
| 2.7 |
Directors and Officers |
24 |
| |
|
|
| Article III
TREATMENT OF SECURITIES |
25 |
| |
|
| 3.1 |
Treatment of Shares |
25 |
| 3.2 |
Treatment of ICLK Equity Awards |
25 |
| 3.3 |
Dissenting Shares |
26 |
| 3.4 |
Exchange Procedures |
26 |
| 3.5 |
Issuance of the Closing Number of Securities |
26 |
| 3.6 |
ICLK Closing Certificate |
27 |
| 3.7 |
Closing Calculations |
27 |
| 3.8 |
Withholding Taxes |
28 |
| 3.9 |
Taking of Necessary Action; Further Action |
28 |
| |
|
|
| Article IV
REPRESENTATIONS AND WARRANTIES OF DWM |
28 |
| |
|
| 4.1 |
Organization and Qualification |
28 |
| 4.2 |
DWM Subsidiaries |
29 |
| 4.3 |
Capitalization of DWM |
30 |
| 4.4 |
Authority Relative to this Agreement |
31 |
| 4.5 |
No Conflict; Required Filings and Consents |
31 |
| 4.6 |
Compliance; Approvals |
32 |
| 4.7 |
Financial Statements |
33 |
| 4.8 |
No Undisclosed Liabilities |
34 |
| 4.9 |
Absence of Certain Changes or Events |
34 |
| 4.10 |
Litigation |
34 |
| 4.11 |
Employee Benefit Plans |
35 |
| 4.12 |
Labor Matters |
36 |
| 4.13 |
Real Property; Tangible Property |
38 |
| 4.14 |
Taxes |
39 |
| 4.15 |
Brokers; Third Party Expenses |
40 |
| 4.16 |
Intellectual Property |
41 |
| 4.17 |
Data Privacy and Cybersecurity |
42 |
| 4.18 |
Agreements, Contracts and Commitments |
43 |
| 4.19 |
Insurance |
45 |
| 4.20 |
Interested Party Transactions |
46 |
| 4.21 |
Information Supplied |
46 |
| 4.22 |
Anti-Bribery; Anti-Corruption |
46 |
| 4.23 |
International Trade; Sanctions |
47 |
| 4.24 |
DWM Asset Restructuring |
48 |
| 4.25 |
Disclaimer of Other Warranties |
49 |
| |
|
|
| Article V
REPRESENTATIONS AND WARRANTIES OF ICLK AND MERGER SUB |
50 |
| |
|
| 5.1 |
Organization and Qualification |
50 |
| 5.2 |
ICLK Subsidiaries |
50 |
| 5.3 |
Capitalization |
51 |
| 5.4 |
Authority Relative to this Agreement |
53 |
| 5.5 |
No Conflict; Required Filings and Consents |
53 |
| 5.6 |
Compliance; Approvals |
54 |
| 5.7 |
ICLK SEC Reports and Financial Statements |
55 |
| 5.8 |
Absence of Certain Changes or Events |
57 |
| 5.9 |
Litigation |
57 |
| 5.10 |
Employee Benefit Plans |
57 |
| 5.11 |
Labor Matters |
59 |
| 5.12 |
Real Properties; Tangible Property |
60 |
| 5.13 |
Taxes |
62 |
| 5.14 |
Brokers |
63 |
| 5.15 |
Intellectual Property |
63 |
| 5.16 |
Data Privacy and Cybersecurity |
65 |
| 5.17 |
Agreements, Contracts and Commitments |
66 |
| 5.18 |
Insurance |
68 |
| 5.19 |
Interested Party Transactions |
68 |
| 5.20 |
Information Supplied |
68 |
| 5.21 |
Anti-Bribery; Anti-Corruption |
69 |
| 5.22 |
International Trade; Sanctions |
70 |
| 5.23 |
ICLK Listing |
70 |
| 5.24 |
Disposal of Certain Business |
71 |
| 5.25 |
Disclaimer of Other Warranties |
71 |
| |
|
|
| Article VI
CONDUCT PRIOR TO THE CLOSING |
72 |
| |
|
| 6.1 |
Conduct of Business by DWM Group Companies |
72 |
| 6.2 |
Conduct of Business by the ICLK Group Companies |
75 |
| 6.3 |
Requests for Consent |
78 |
| |
|
|
| Article VII
ADDITIONAL AGREEMENTS |
79 |
| |
|
| 7.1 |
Proxy Statement; Special Meeting; Shareholder Approvals |
79 |
| 7.2 |
Listing Application; Listing |
81 |
| 7.3 |
Certain Regulatory Matters |
82 |
| 7.4 |
Other Filings; Press Release |
83 |
| 7.5 |
Confidentiality; Communications Plan; Access to Information |
83 |
| 7.6 |
Reasonable Best Efforts |
85 |
| 7.7 |
Certain Deliverables |
85 |
| 7.8 |
Disclosure of Certain Matters |
85 |
| 7.9 |
No Solicitation |
86 |
| 7.10 |
Director and Officer Indemnification and Insurance |
87 |
| 7.11 |
Tax Matters |
89 |
| 7.12 |
Board of Directors; Officer |
89 |
| 7.13 |
DWM Asset Restructuring |
90 |
| 7.14 |
Financial Requirement |
90 |
| |
|
|
| Article VIII
CONDITIONS TO THE TRANSACTION |
91 |
| |
|
| 8.1 |
Conditions to Obligations of Each Party’s Obligations |
91 |
| 8.2 |
Additional Conditions to Obligations of DWM |
92 |
| 8.3 |
Additional Conditions to the Obligations of ICLK |
92 |
| Article IX
TERMINATION |
93 |
| |
|
| 9.1 |
Termination |
93 |
| 9.2 |
Notice of Termination; Effect of Termination |
94 |
| 9.3 |
Termination Fee |
95 |
| |
|
|
| Article X
NO SURVIVAL |
97 |
| |
|
| 10.1 |
No Survival |
97 |
| |
|
|
| Article XI
GENERAL PROVISIONS |
98 |
| |
|
| 11.1 |
Notices |
98 |
| 11.2 |
Interpretation |
99 |
| 11.3 |
Counterparts; Electronic Delivery |
100 |
| 11.4 |
Entire Agreement; Third Party Beneficiaries |
100 |
| 11.5 |
Severability |
101 |
| 11.6 |
Other Remedies; Specific Performance |
101 |
| 11.7 |
Governing Law |
101 |
| 11.8 |
Consent to Jurisdiction; Waiver of Jury Trial |
102 |
| 11.9 |
Rules of Construction |
103 |
| 11.10 |
Expenses |
103 |
| 11.11 |
Assignment |
103 |
| 11.12 |
Amendment |
103 |
| 11.13 |
Extension; Waiver |
104 |
| 11.14 |
No Recourse |
104 |
| 11.15 |
Disclosure Letters and Exhibits |
104 |
EXHIBITS
| Exhibit A |
Form of Lock-Up Agreement |
| Exhibit B |
Form of Plan of Merger |
| Exhibit C |
Form of ICLK A&R MAA |
| Exhibit D |
Form of DWM Third A&R MAA |
| Schedule 1 |
DWM Asset Restructuring Plan |
| Schedule 2 |
ICLK Indebtedness |
| Schedule 3 |
DWM Indebtedness
|
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER is made and
entered into as of November 29, 2024 (this “Agreement”), by and among (a) iClick Interactive Asia Group
Limited, a Cayman Islands exempted company with limited liability (“ICLK”), (b) Overlord Merger Sub Ltd., a Cayman
Islands exempted company with limited liability and a direct, wholly owned subsidiary of ICLK (“Merger Sub”), and
(c) Amber DWM Holding Limited, a Cayman Islands exempted company with limited liability (“DWM”). Each of ICLK,
Merger Sub, and DWM will individually be referred to herein as a “Party” and, collectively, as the “Parties”.
RECITALS
WHEREAS, ICLK
is a company listed on the Nasdaq Stock Market (“Nasdaq”);
WHEREAS,
in anticipation of the Merger (as defined below), ICLK has caused Merger Sub to be formed;
WHEREAS,
DWM intends to, in accordance with the DWM Asset Restructuring Plan, (a) acquire 100% of the equity interests in WhaleFin Markets
Limited (“WhaleFin HK”), a company incorporated in Hong Kong (the “WhaleFin HK Equity Transfer”)
from Amber Global Limited, a Cayman Islands exempted company (“AB”), and (b) assume or cause one or more of its
Subsidiaries (as defined below) to assume all rights and obligations under the WFTL Assigned Contracts (as defined below) (the “WFTL
Contract Assignment”, and the transactions contemplated in clauses (a) and (b), together, the “DWM Asset Restructuring”);
WHEREAS, ICLK
has completed the Marketing Solutions Disposal on or prior to the date hereof;
WHEREAS,
the Parties intend to effect the Merger upon the terms and conditions set forth in this Agreement whereby Merger Sub shall be merged
with and into DWM (the “Merger”), with DWM being the Surviving Sub (as defined below) and becoming a direct wholly
owned subsidiary of ICLK;
WHEREAS,
it is contemplated that upon the Closing, ICLK shall be renamed as “Amber International Holding Limited” in connection
with the adoption of the ICLK A&R MAA (as defined below), and shall trade publicly on the Nasdaq under a new ticker symbol as designated
by DWM;
WHEREAS,
the board of directors of ICLK (the “ICLK Board”) has unanimously (a) determined that it is fair to, and in the
best interests of, ICLK and its shareholders, for ICLK to enter into this Agreement and to consummate the Transactions contemplated
under this Agreement, including the Merger, (b) approved the execution, delivery and performance of this Agreement and the consummation
of the Transactions contemplated under this Agreement, including the Merger, and (c) determined to recommend that the shareholders
of ICLK vote to approve the ICLK Shareholder Matters (as defined below) (the “ICLK Board Recommendation”);
WHEREAS,
the board of directors of DWM has unanimously (a) determined that it is fair to, and in the best interests of, DWM and its shareholders,
for DWM to enter into this Agreement and to consummate the Transactions contemplated under this Agreement, including the Merger, the
DWM Asset Restructuring and the DWM Capital Restructuring, (b) approved the execution, delivery and performance of this Agreement
and the consummation of the Transactions contemplated under this Agreement, including the Merger, the DWM Asset Restructuring and the
DWM Capital Restructuring, and (c) determined to recommend that the shareholders of DWM approve the execution, delivery and performance
of this Agreement and the Plan of Merger by DWM and the consummation of the Transactions contemplated under this Agreement and the Plan
of Merger, including the Merger, the DWM Asset Restructuring and the DWM Capital Restructuring;
WHEREAS,
the shareholders of DWM have adopted applicable resolutions dated as of or prior to the date hereof approving the execution, delivery
and performance of this Agreement and the Plan of Merger by DWM and the consummation by DWM of the Transactions contemplated under this
Agreement and the Plan of Merger, including the Merger, the DWM Asset Restructuring and the DWM Capital Restructuring;
WHEREAS,
the board of directors of Merger Sub has unanimously (a) determined that it is fair to, and in the best interests of, Merger Sub
and its shareholder, for Merger to enter into this Agreement and to consummate the Transactions contemplated under this Agreement, including
the Merger, (b) approved the execution, delivery and performance of this Agreement and the consummation of the Transactions contemplated
under this Agreement, including the Merger, and (c) determined to recommend that the sole shareholder of Merger Sub approve the
execution, delivery and performance of this Agreement and the Plan of Merger by Merger Sub and the consummation of the Transactions contemplated
under this Agreement and the Plan of Merger, including the Merger;
WHEREAS, ICLK,
as the sole shareholder of Merger Sub, has approved the execution, delivery and performance of this Agreement and the Plan of Merger
by Merger Sub and the consummation by Merger Sub of the Transactions contemplated under this Agreement and the Plan of Merger, including
the Merger;
WHEREAS,
as a condition to the willingness of, and an inducement to, DWM to enter into this Agreement, contemporaneously with the execution and
delivery of this Agreement, certain shareholders of ICLK holding as of the date hereof no less than two-thirds (2/3) of the aggregate
voting power of ICLK are entering into a voting agreement (as may be amended or restated, the “ICLK Voting Agreement”)
agreeing to vote as shareholder of ICLK in favor of the ICLK Shareholder Matters pursuant to the terms and conditions of the ICLK Voting
Agreement; and
WHEREAS,
as a condition to the willingness of, and an inducement to each of the Parties to enter into this Agreement, contemporaneously with the
execution and delivery of this Agreement, AB is entering into a lock-up agreement with ICLK, in substantially the form attached hereto
as Exhibit A (as may be amended or restated, the “Lock-Up Agreement”) with respect to the New Ordinary
Shares that will be held by AB on or immediately after the Effective Time.
NOW,
THEREFORE, in consideration of the covenants, promises and representations set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
Article I
DEFINITIONS
1.1 Defined
Terms. For purposes of this Agreement, the following capitalized terms have the following meanings:
“AB” shall have the meaning
set forth in the Recitals hereto.
“AB Founder Holdco” means an
entity to be formed or designated which shall be controlled by Mr. Michael Wu.
“Accounting Principles” means,
with respect to the DWM Group Companies, IFRS, and, with respect to ICLK Group Companies, U.S. GAAP, in each case as in effect at
the date of the financial statement to which it refers or if there is no such reference, then the same accounting principles, practices,
procedures, policies and methods (with consistent classifications, judgments, elections, inclusions, exclusions and valuation and estimation
methodologies) used and applied by the relevant Person in the preparation of the latest audited financial statements of such Person.
“DWM Accounting Principles” and “ICLK Accounting Principles” shall be construed accordingly.
“Additional ICLK SEC Reports”
shall have the meaning set forth in Section 5.7(a).
“ADS” means the American depositary
shares of ICLK, each representing five (5) ICLK Class A Shares.
“Affiliate” shall mean, as
applied to any Person, any other Person directly or indirectly controlling, controlled by or under direct or indirect common control
with, such Person. For purposes of this definition, “control” (including with correlative meanings, the terms “controlling,”
“controlled by” and “under common control with”), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership
of voting securities, by contract or otherwise.
“Agreement” shall have the
meaning set forth in the Preamble hereto.
“Anti-Money Laundering and Anti-Corruption
Laws” shall have the meaning set forth in Section 4.22(a).
“Approvals” shall have the
meaning set forth in Section 4.6.
“Arbitrator” shall have the
meaning set forth in Section 11.8(a).
“Business Day” shall mean any
day other than a Saturday, a Sunday or other day on which commercial banks in New York, the PRC, Hong Kong, Singapore or the Cayman Islands
are authorized or required by Legal Requirements to close.
“Cash and Cash Equivalents”
as of a specified time with respect to any Person means the cash, cash equivalents, checks received but not cleared and deposits in transit
of such Person, less Restricted Cash and any cash overdrafts, issued but uncleared checks or other negative balances.
“Cayman Companies Act” means
the Companies Act (as revised) of the Cayman Islands.
“Cayman Registrar” means the
Registrar of Companies of the Cayman Islands.
“Change in Recommendation”
shall have the meaning set forth in Section 7.1(c).
“Closing” shall have the meaning
set forth in Section 2.3.
“Closing Date” shall have the
meaning set forth in Section 2.3.
“Closing Payments Schedule”
shall have the meaning set forth in Section 3.7.
“Code” shall mean the Internal
Revenue Code of 1986, as amended.
“Copyrights”
shall have the meaning set forth in the definition of “Intellectual Property” in Section 1.1.
“Contract” shall mean any contract,
subcontract, agreement, indenture, note, bond, loan or credit agreement, instrument, lease, mortgage, deed of trust, license, sublicense,
commitment, guaranty or other legally binding commitment, arrangement or understanding, whether written or oral, in each case, as amended
and supplemented from time to time and including all schedules, annexes and exhibits thereto.
“COVID-19” shall mean SARS-CoV-2
or COVID-19, and any evolutions or mutations thereof or other epidemics, pandemics or widespread disease outbreaks.
“CSRC” means the China Securities
Regulatory Commission.
“Customs & International Trade
Authorizations” shall mean any and all licenses, license exceptions, notification requirements, registrations and approvals
required pursuant to the Customs & International Trade Laws for the lawful export, deemed export, re-export, deemed re-export
transfer or import of items subject to the Customs & International Trade Laws.
“Customs & International Trade
Laws” shall mean any applicable import, customs and trade, export and anti-boycott laws, rules, or regulations of any jurisdiction
in which any ICLK Group Company or DWM Group Company is incorporated or does business, including, but not limited to: (a) the laws,
rules, and regulations administered or enforced by U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, the
U.S. Department of Commerce (including the Bureau of Industry and Security and the International Trade Administration), the U.S. International
Trade Commission, the U.S. Department of State (including the Directorate of Defense Trade Controls) and their predecessor agencies;
(b) the Tariff Act of 1930, as amended; (c) the Export Administration Act of 1979, as amended; (d) the Export Control
Reform Act of 2018; (e) the Export Administration Regulations, including related restrictions with regard to transactions involving
Persons on the U.S. Department of Commerce Denied Persons List, Unverified List or Entity List; (f) the Arms Export Control Act,
as amended; (g) the International Traffic in Arms Regulations, including related restrictions with regard to transactions involving
Persons on the Debarred List; (h) the Foreign Trade Regulations pursuant to 15 C.F.R. Part 30; (i) the anti-boycott laws,
rules and regulations administered by the U.S. Department of Commerce; and (j) the anti-boycott laws, rules and regulations
administered by the U.S. Department of the Treasury.
“Designated Persons” shall
have the meaning set forth in Section 6.3(a).
“Dissenting Shareholders” shall
have the meaning set forth in Section 3.3.
“Dissenting Shares” shall have
the meaning set forth in Section 3.3.
“Domain Names” shall have the
meaning set forth in the definition of “Intellectual Property” in Section 1.1.
“DWM” shall have the meaning
set forth in the Preamble hereto.
“DWM
Asset Restructuring Plan” shall have the meaning set forth in Section 7.13(a).
“DWM Asset Restructuring” shall
have the meaning set forth in the Recitals hereto.
“DWM Audited Financial Statements”
shall have the meaning set forth in Section 4.7(a).
“DWM Business Combination”
shall have the meaning set forth in Section 7.9(a).
“DWM Capital Restructuring”
shall mean, the issuance of DWM Shares (i) in an amount representing approximately 11% of the total share capital of DWM as of immediately
following the DWM Capital Restructuring (but prior to the Effective Time), to one or more employee incentive holding entities to be formed
after the date hereof, and (ii) in an amount representing approximately 9% of the total share capital of DWM as of immediately following
the DWM Capital Restructuring (but prior to the Effective Time), to the AB Founder HoldCo, in each case of (i) and (ii), to be consummated
no later than immediately prior to the Closing.
“DWM
Cash Level” means (i)the amount of Cash and Cash Equivalents of the DWM Group Companies, minus (ii) the amount
of the Indebtedness of the DWM Group Companies, in each case, determined on a consolidated basis as of the specified time and measured
in accordance with the DWM Accounting Principles.
“DWM Code” shall mean all material
proprietary Software owned by any DWM Group Company.
“DWM
Contributor” shall have the meaning set forth in Section 4.16(f).
“DWM
Contributor Agreement” shall have the meaning set forth in Section 4.16(f).
“DWM D&O Indemnified Party”
shall have the meaning set forth in Section 7.10(a)(i).
“DWM D&O Tail” shall have
the meaning set forth in Section 7.10(a)(ii).
“DWM Data” shall have the meaning
set forth in Section 4.16(g).
“DWM Disclosure Letter” shall
have the meaning set forth in the preamble to Article IV.
“DWM Employee Benefit Plan”
shall mean each Employee Benefit Plan, which any DWM Group Company sponsors, maintains or contributes to, or to which any DWM Group Company
is obligated to sponsor, maintain or contribute, for the benefit of its current or former employees, individuals who provide services
and are compensated as contractors or directors, or with respect to which any DWM Group Company may have any obligation or liability.
For the avoidance of doubt, the DWM Capital Restructuring and the DWM Shares issued pursuant to the DWM Capital Restructuring shall not
be deemed as a DWM Employee Benefit Plan.
“DWM Equity Value” shall mean
$360,000,000.00.
“DWM Financial Statements”
shall have the meaning set forth in Section 4.7(a).
“DWM Group” shall have the
meaning set forth in Section 9.3(d).
“DWM Group Companies” shall
mean DWM and all of its direct and indirect Subsidiaries as of the relevant time, provided that WhaleFin HK and all of its direct
and indirect Subsidiaries (including Amber Custodian Services Limited) shall for all purposes of this definition (unless expressly provided
otherwise) be deemed DWM Group Companies.
“DWM Insider” shall have the
meaning set forth in Section 4.20.
“DWM Insurance Policies” shall
have the meaning set forth in Section 4.19.
“DWM IT Systems” means the
IT Systems of the DWM Group Companies.
“DWM Leased Properties” shall
have the meaning set forth in Section 4.13(b).
“DWM Material Adverse Effect”
shall mean any state of facts, development, change, circumstance, occurrence, event or effect, that, individually or in the aggregate,
has had, or would reasonably be expected to have, a material adverse effect on (a) the business, assets, liabilities, financial
condition or results of operations of the DWM Group Companies, taken as a whole (assuming the completion of the DWM Asset Restructuring),
or (b) the ability of DWM to consummate the Transactions by the Outside Date; provided, however, that in
no event will any of the following (or the effect of any of the following), alone or in combination, be taken into account in determining
whether a DWM Material Adverse Effect pursuant to clause (a) has occurred: (i) acts of war, sabotage, cyberattacks, civil unrest
or terrorism, or any escalation or worsening of any such acts of war, sabotage, cyberattacks, civil unrest or terrorism, or changes in
global, national, regional, state or local political or social conditions; (ii) earthquakes, hurricanes, tornados, pandemics or
other natural or man-made disasters; (iii) changes attributable to the public announcement, performance or pendency of the
Transactions (including the impact thereof on relationships with customers, suppliers or employees); (iv) changes or proposed changes
in applicable Legal Requirements, regulations or interpretations thereof or decisions by courts or any Governmental Entity after the
date of this Agreement; (v) changes in DWM Accounting Principles (or any interpretation thereof) after the date of this Agreement;
(vi) general economic, regulatory or tax conditions, including changes in the credit, debt, securities or financial markets (including
changes in interest or exchange rates) after the date of this Agreement; (vii) events or conditions generally affecting the industries
and markets in which the DWM Group Companies operate; (viii) any failure to meet any projections, forecasts, guidance, estimates
or financial or operating predictions of revenue, earnings, cash flow or cash position, provided that this clause (viii) shall
not prevent a determination that the underlying facts and circumstances resulting in such failure has resulted in a DWM Material Adverse
Effect; or (ix) any actions (A) required to be taken, or required not to be taken, pursuant to the terms of this Agreement
or (B) taken with the prior written consent of or at the prior written request of any ICLK Party; provided, however,
that if any state of facts, developments, changes, circumstances, occurrences, events or effects related to clauses (i), (ii), (iv),
(v), (vi) or (vii) above disproportionately and adversely affect the business, assets, financial condition or results of operations
of the DWM Group Companies, taken as a whole, relative to similarly situated companies in the industries in which the DWM Group Companies
conduct their respective operations, then such incremental disproportionate impact shall be taken into account (unless otherwise excluded)
in determining whether a DWM Material Adverse Effect has occurred.
“DWM Material Contract” shall
have the meaning set forth in Section 4.18(a).
“DWM Material Customers” shall
have the meaning set forth in Section 4.18(a).
“DWM Material Suppliers” shall
have the meaning set forth in Section 4.18(a).
“DWM Owned IP” shall mean all
Intellectual Property owned or purported to be owned by any of the DWM Group Companies.
“DWM Per Share Value” shall
mean an amount equal to (a) the DWM Equity Value divided by (b) the number of Outstanding DWM Equity Securities.
“DWM
Privacy Requirements” means the Privacy Requirements of the DWM Group Companies.
“DWM Real Property Leases”
shall have the meaning set forth in Section 4.13(b).
“DWM Security Incidents” shall
have the meaning set forth in Section 4.17(b).
“DWM Third A&R MAA” shall
have the meaning set forth in Section 2.6.
“DWM Registered IP” shall have
the meaning set forth in Section 4.16(a).
“DWM Required Regulatory Approvals”
shall have the meaning set forth in Section 4.5(b).
“DWM Shares” shall mean the
ordinary shares of DWM, par value US$0.000025 per share and the series A preference shares of DWM, par value US$0.000025 per share.
“DWM Subsidiaries” shall have
the meaning set forth in Section 4.2(a).
“DWM Termination Fee” shall
have the meaning set forth in Section 9.3(b).
“DWM Transaction Costs” shall
mean (a) all fees, costs and expenses (including fees of outside advisors) incurred by or on behalf of any DWM Group Company or
AB prior to and through the Closing Date in connection with the negotiation, preparation or execution of this Agreement, the other Transaction
Agreements or the consummation of the Transactions including any such amounts that are triggered by or become payable as a result of
the Closing; (b) all transaction, deal, brokerage, financial advisory or any similar fees payable by or on behalf of the DWM Group
Companies or AB in connection with the consummation of the Transactions; and (c) all costs, fees and expenses related to the DWM
D&O Tail, in each case of (a) to (c), actually and reasonably incurred; provided that, the Mutual Transaction Costs,
regardless of when paid, and whether or not due and payable as of the Closing, shall not be “DWM Transaction Costs” for purpose
of this Agreement; provided further that, all costs, fees and expenses related to the DWM Asset Restructuring and DWM Capital
Restructuring, regardless of when paid, and whether or not due and payable as of the Closing, shall not be “DWM Transaction Costs”
for purpose of this Agreement and shall, for the avoidance of doubt, be borne solely by Persons who are neither DWM Group Companies nor
ICLK Group Companies.
“DWM Unaudited Financial Statements”
shall have the meaning set forth in Section 4.7(a).
“Effective Time” shall have
the meaning set forth in Section 2.4(b).
“Employee Benefit Plan” shall
mean each “employee benefit plan” (within the meaning of Section 3(3) of ERISA, whether or not subject to ERISA)
and each other retirement, supplemental retirement, deferred compensation, employment, bonus, incentive compensation, stock purchase,
employee stock ownership, equity-based, phantom-equity, profit-sharing, severance, termination protection, change in control, retention,
employee loan, retiree medical or life insurance, educational, employee assistance, fringe benefit and all other employee benefit plan,
policy, agreement, program or arrangement, whether oral or written, in each case other than any statutory benefit plan to the extent
mandated by Legal Requirements.
“Enterprise
Solutions Disposal” shall mean the ICLK Group Companies’ disposal of the enterprise solutions business in the
PRC pursuant to the share purchase agreement dated July 19, 2024, by and among Tetris Media Limited, Optimix Media Asia Limited
and BeihaiOne Limited.
“Excluded DWM Shares” shall
have the meaning set forth in Section 3.1(a).
“Exchange Act” shall mean the
United States Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Financial
Requirement” means (a) with respect to ICLK, on December 31, 2024, the ICLK Cash Level equals or exceeds $10,000,000;
and (b) with respect to DWM, on December 31, 2024, the DWM Cash Level equals or exceeds $10,000,000.
“Fundamental Representations”
shall mean:
(a) in the case of DWM, the representations
and warranties contained in Section 4.1 (Organization and Qualification) (other than Section 4.1(c)); the second
sentence of Section 4.2(a) (DWM Subsidiaries); Section 4.2(e) (DWM Subsidiaries); Section 4.3
(Capitalization of DWM); Section 4.4 (Authority Relative to this Agreement); Section 4.5(a)(i) (No Conflict;
Required Filings and Consents); Section 4.6(b) (Compliance; Approvals) and Section 4.15 (Brokers; Third
Party Expenses); and
(b) in the case of the ICLK Parties, the
representations and warranties contained in Section 5.1 (Organization and Qualification) (other than Section 5.1(c));
the second sentence of Section 5.2(a) (ICLK Subsidiaries); Section 5.2(e) (ICLK Subsidiaries); Section 5.3
(Capitalization); Section 5.4 (Authority Relative to this Agreement); Section 5.5(a)(i) (No Conflict;
Required Filings and Consents); and Section 5.14 (Brokers; Third Party Expenses).
“Governing Documents” shall
mean the legal documents by which any Person (other than an individual) establishes its legal existence or which govern its internal
affairs, including, as applicable, certificates of incorporation or formation, memorandum and articles of association, bylaws, limited
partnership agreements and limited liability company operating agreements.
“Governmental Entity” shall
mean: (a) any federal, provincial, state, local, municipal, foreign, national or international court, governmental commission, government
or governmental authority, department, regulatory or administrative agency, board, bureau, agency or instrumentality, tribunal, arbitrator
or arbitral body (public or private), or similar body; (b) any self-regulatory organization; (c) any stock exchange on which
the securities of any Party of its Affiliates are listed; or (d) any political subdivision of any of the foregoing.
“HKIAC” shall have the meaning
set forth in Section 11.8(a).
“HKIAC Rules” shall have the
meaning set forth in Section 11.8(a).
“HL Valuation Costs” shall
mean service fees and reimbursements of Houlihan Lokey in connection with the valuation services provided by Houlihan Lokey in connection
with the Transactions that are reasonably incurred.
“ICLK” shall have the meaning
set forth in the Preamble hereto.
“ICLK A&R MAA” shall have
the meaning set forth in Section 2.1(b).
“ICLK Board” shall have the
meaning set forth in the Recitals hereto.
“ICLK Board Recommendation”
shall have the meaning set forth the Recitals hereto.
“ICLK Business Combination”
shall have the meaning set forth in Section 7.9(b).
“ICLK Cash Level” means (a) the
amount of the Cash and Cash Equivalents of the ICLK Group Companies, minus (b) the amount of the Indebtedness of the ICLK Group
Companies, in each case, determined on a consolidated basis as of the specified time and measured in accordance with the ICLK Accounting
Principles.
“ICLK Charter” means the Ninth
Amended and Restated Memorandum and Articles of Association of ICLK, adopted pursuant to a special resolution passed on December 19,
2018.
“ICLK Class A Shares”
means the class A ordinary shares of ICLK, par value US$0.001 per share, with the rights and privileges as set forth in the ICLK Charter.
“ICLK Class B Shares”
means the class B ordinary shares of ICLK, par value US$0.001 per share, with the rights and privileges as set forth in the ICLK Charter.
“ICLK Class B Share Conversion”
shall have the meaning set forth in Section 2.1(a).
“ICLK Closing Certificate”
shall have the meaning set forth in Section 3.6.
“ICLK Contributor” shall have
the meaning set forth in Section 5.15(f).
“ICLK Contributor Agreement”
shall have the meaning set forth in Section 5.15(f).
“ICLK D&O Indemnified Party”
shall have the meaning set forth in Section 7.10(b)(i).
“ICLK D&O Tail” shall have
the meaning set forth in Section 7.10(b)(ii).
“ICLK
Data” shall have the meaning set forth in Section 5.15(g).
“ICLK Director” shall have
the meaning set forth in Section 7.12(a).
“ICLK Disclosure Letter” shall
have the meaning set forth in the preamble to Article V.
“ICLK Employee Benefit Plan”
shall mean each Employee Benefit Plan, which any ICLK Group Company sponsors, maintains or contributes to, or to which any ICLK Group
Company is obligated to sponsor, maintain or contribute, for the benefit of its current or former employees, individuals who provide
services and are compensated as contractors or directors, or with respect to which any ICLK Group Company may have any obligation or
liability, including the ICLK Share Plans.
“ICLK Equity Awards” means
an option, restricted share, restricted share unit or other types of award, in the form of cash or otherwise, including any ICLK Options
and ICLK RSUs.
“ICLK Equity Value” means $40,000,000.
“ICLK Financial Statements”
shall have the meaning set forth in Section 5.7(c).
“ICLK Group” shall have the
meaning set forth in Section 9.3(d).
“ICLK Group Companies” shall
mean ICLK and all of its direct and indirect Subsidiaries (including Merger Sub) as of the relevant time.
“ICLK Insider” shall have the
meaning set forth in Section 5.19.
“ICLK Insurance Policies” shall
have the meaning set forth in Section 5.18.
“ICLK
IT Systems” shall mean the IT Systems of the ICLK Group Companies.
“ICLK Leased Properties” shall
have the meaning set forth in Section 5.12(b).
“ICLK Material Adverse Effect”
shall mean any state of facts, development, change, circumstance, occurrence, event or effect, that, individually or in the aggregate,
has had, or would reasonably be expected to have, a material adverse effect on (a) the business, assets, liabilities, financial
condition or results of operations of ICLK Group Companies, taken as a whole; or (b) the ability of ICLK or Merger Sub to consummate
the Transactions by the Outside Date; provided, however, that in no event will any of the following (or the effect of any
of the following), alone or in combination, be taken into account in determining whether an ICLK Material Adverse Effect pursuant to
clause (a) has occurred: (i) acts of war, sabotage, cyberattacks, civil unrest or terrorism, or any escalation or worsening
of any such acts of war, sabotage, cyberattacks, civil unrest or terrorism, or changes in global, national, regional, state or local
political or social conditions; (ii) earthquakes, hurricanes, tornadoes, pandemics or other natural or man-made disasters; (iii) changes
attributable to the public announcement, performance or pendency of the Transactions (including the impact thereof on relationships with
customers, suppliers or employees); (iv) changes or proposed changes in applicable Legal Requirements, regulations or interpretations
thereof or decisions by courts or any Governmental Entity after the date of this Agreement; (v) changes in ICLK Accounting Principles
(or any interpretation thereof) after the date of this Agreement; (vi) general economic, regulatory or tax conditions, including
changes in the credit, debt, securities or financial markets (including changes in interest or exchange rates) after the date of this
Agreement; (vii) events or conditions generally affecting the industries and markets in which the ICLK Group Companies operate;
(viii) any failure to meet any projections, forecasts, guidance, estimates or financial or operating predictions of revenue, earnings,
cash flow or cash position, provided that this clause (viii) shall not prevent a determination that the underlying facts
and circumstances resulting in such failure has resulted in an ICLK Material Adverse Effect; or (ix) any actions (A) required
to be taken, or required not to be taken, pursuant to the terms of this Agreement or (B) taken with the prior written consent of
or at the prior written request of DWM; provided, however, that if any state of facts, developments, changes, circumstances,
occurrences, events or effects related to clauses (i), (ii), (iv), (v), (vi) or (vii) above disproportionately and adversely
affect the business, assets, financial condition or results of operations of the ICLK Group Companies, taken as a whole, relative to
similarly situated companies in the industries in which the ICLK Group Companies conduct their respective operations, then such incremental
disproportionate impact shall be taken into account (unless otherwise excluded) in determining whether an ICLK Material Adverse Effect
has occurred.
“ICLK Material Contract” shall
have the meaning set forth in Section 5.17(a).
“ICLK Material Customers” shall
have the meaning set forth in Section 5.17(a).
“ICLK Material Suppliers” shall
have the meaning set forth in Section 5.17(a)(ii).
“ICLK Option” means an option
to purchase ICLK Class A Shares granted under the ICLK Share Plans in accordance with the terms thereof, whether or not such option
has become vested on or prior to the Closing Date.
“ICLK Owned IP” shall mean
all Intellectual Property owned or purported to be owned by any of the ICLK Group Companies.
“ICLK Parties” shall mean ICLK
and Merger Sub, and each an “ICLK Party”.
“ICLK Per Share Value” shall
mean an amount equal to (a) the ICLK Equity Value, divided by (b) the number of Outstanding ICLK Equity Securities.
“ICLK
Privacy Requirements” means the Privacy Requirements of the ICLK Group Companies.
“ICLK Real Property Leases”
shall have the meaning set forth in Section 5.12(b).
“ICLK Registered IP” shall
have the meaning set forth in Section 5.15(a).
“ICLK Required Regulatory Approvals”
shall have the meaning set forth in Section 5.5(b).
“ICLK RSU” means a restricted
share unit granted under the ICLK Share Plans in accordance with the terms thereof, whether or not such restricted share unit has become
vested on or prior to the Closing Date.
“ICLK SEC Reports” shall have
the meaning set forth in Section 5.7(a).
“ICLK Security Incidents” shall
have the meaning set forth in Section 5.16(b).
“ICLK Share Plans” means, collectively,
(a) the 2018 Share Incentive Plan of ICLK, which replaced ICLK’s 2010 Share Incentive Plan in its entirety, and (b) the
Post-IPO Share Incentive Plan of ICLK, which was previously named as the 2017 Share Incentive Plan (each as amended from time to time),
and a “ICLK Share Plan” means any one of the foregoing plans.
“ICLK Shareholder Approval”
shall mean approval of the ICLK Shareholder Matters by Special Resolution, or such other standard as may be applicable to a specific
ICLK Shareholder Matter, in accordance with the Proxy Statement and ICLK’s Governing Documents.
“ICLK Shareholder Matters”
shall have the meaning set forth in Section 7.1(a)(i).
“ICLK Shares” shall mean, prior
to the adoption of the ICLK A&R MAA pursuant to the terms hereof, collectively the ICLK Class A Shares and the ICLK Class B
Shares, or after the adoption of the ICLK A&R MAA pursuant to the terms hereof, New Ordinary Shares.
“ICLK Subsidiaries” shall have
the meaning set forth in Section 5.2(a).
“ICLK
Termination Fee” shall have the meaning set forth in Section 9.3(a).
“ICLK Transaction Costs” shall
mean (a) all fees, costs and expenses (including fees of outside advisors) incurred by or on behalf of any ICLK Group Company prior
to and through the Closing Date in connection with the negotiation, preparation and execution of this Agreement, the other Transaction
Agreements and the consummation of the Transactions including any such amounts that are triggered by or become payable as a result of
the Closing; (b) all transaction, deal, brokerage, financial advisory or any similar fees payable by or on behalf of any ICLK Group
Company in connection with the consummation of the Transactions; and (c) all costs, fees and expenses related to the ICLK D&O
Tail, in each case of (a) to (c), actually and reasonably incurred; provided that, the Mutual Transaction Costs, regardless
of when paid, and whether or not due and payable as of the Closing, shall not be “ICLK Transaction Costs” for purpose of
this Agreement.
“ICLK Voting Agreement” shall
have the meaning set forth in the Recitals hereto.
“IFRS” shall mean the International
Financial Reporting Standards.
“Incidental Inbound License”
shall mean any (a) non-exclusive license for third party Software that is in the nature of a “shrink-wrap” or “click-wrap”
license agreement or otherwise for non-customized, off-the-shelf Software that is in object code form and generally commercially available
under standard terms and conditions for which the total upfront and annual fees or other payments are less than $500,000; or (b) Contract
with a non-exclusive license that is merely ancillary or incidental to the transaction contemplated in such Contract, the commercial
purpose of which is primarily for something other than such license, such as a Contract to purchase or lease equipment (e.g.,
a photocopier, computer or mobile phone) that also contains an inbound non-exclusive license of embedded third party Intellectual Property.
“Indebtedness” shall mean,
as of the relevant time means, without duplication, with respect to any Person, all of the following (without duplication or double-counting):
(a) any indebtedness for borrowed money;
(b) any obligations evidenced by bonds, debentures,
notes or other similar instruments;
(c) any obligations to pay the deferred or
unpaid purchase price of property, stock or services or other assets, including any earn-out or other contingent payments;
(d) any obligations as lessee under capitalized
leases (as categorized in the DWM Financial Statements or ICLK Financial Statements, as applicable, or required to be capitalized in
accordance with the applicable Accounting Principles);
(e) any obligations, contingent or otherwise,
by which such Person assured a creditor against loss, including under acceptance, letters of credit or similar facilities to the extent
drawn;
(f) any obligations for (i) amounts
due to employees of such Person for employee reimbursement, (ii) capital expenditure payables and (iii) individual income tax
refund payable;
(g) any obligations in respect of (i) accrued
severance and accrued bonuses, (ii) unfunded or underfunded pension or pension-like liabilities and any unfunded or underfunded
post-retirement and post-employment benefits, including in respect of retiree medical or welfare benefits, or (iii) unfunded or
underfunded deferred compensation plans, Contracts or arrangements, and, in each case, the employer portion of any payroll, social security,
employment or other similar Taxes and “tax gross-up” payments, if any, due or payable as a result of or in connection with
any of the indebtedness described in sub-clauses (i), (ii) and (iii);
(h) any debt or inventory financing, discounting
or factoring or sale or loan arrangement of such Person the purpose of which is to raise money or provide finance or credit;
(i) any unpaid but accrued corporate income
tax;
(j) any overdue payable balance which is
in excess of the contract payment term or inconsistent with the normal payment cycle, including but not limited to the payables for goods
purchased, rents, employee cost, and capex;
(k) any liabilities under any currency or
interest swap or other interest or currency protection, hedging or financial futures transaction or arrangement;
(l) the net liability of such Person in respect
of all Taxes incurred on transactions and profits up to the Closing Date after the deduction of tax payments and instalments or prepayments
made in advance of the Closing Date;
(m) deferred revenue;
(n) any guaranty of any of the foregoing;
(o) any accrued interest, penalties, breakage
costs, consent payments, fees, charges and premiums (including redemption premiums) in respect of any of the foregoing;
(p) any prepayment premiums and penalties
actually due and payable, and any other fees, expenses, indemnities and other amounts actually payable as a result of the prepayment
or discharge of any of the foregoing; and
(q) solely with respect to the ICLK Group Companies,
each item as set forth on Schedule 2 hereto, and solely with respect to the DWM Group Companies, each item as set forth on Schedule 3
hereto.
Notwithstanding anything to the contrary above,
(i) with respect to items (b) to (p), to the extent such indebtedness or liabilities are normal and recurring and are incurred
in the ordinary course of business consistent with past practice of the relevant DWM Group Company or ICLK Group Company, as applicable,
and (ii) Transaction Costs, shall not constitute “Indebtedness” of either DWM Group Companies or ICLK Group Companies,
and the items described on Section 1.1(a) of the ICLK Disclosure Schedule shall not constitute “Indebtedness” of
ICLK Group Companies.
“Intellectual Property” shall
mean all intellectual property rights or other similar proprietary rights throughout the world, whether protected, created or arising
under the laws of the United States or any other jurisdiction, whether registered or unregistered, including such rights in and to: (a) all
patents (whether utility or design) and patent applications, invention disclosures, provisional patent applications and similar filings
and any and all substitutions, divisionals, continuations, continuations-in-part, reissues, renewals, extensions and reexaminations thereof
(“Patents”); (b) all copyrights, published and unpublished works of authorship (whether or not copyrightable),
including any applications, registrations and renewals of the foregoing, including literary works (including Software), pictorial and
graphic works (“Copyrights”); (c) all trademarks, service marks, trade names, brand names, trade dress, logos,
slogans, corporate names, certification marks and other indications of origin, together with the goodwill associated with any of the
foregoing, along with all applications, registrations, renewals and extensions thereof (“Trademarks”); (d) all
Internet domain names, URLs, IP addresses and social media accounts (“Domain Names”); (e) trade secrets
and other proprietary or confidential know-how and information, including confidential technology, discoveries, inventions (whether patentable
or unpatentable) and improvements, formulae, business, technical, engineering or financial information, research and development information,
techniques, designs, drawings, procedures, processes, algorithms, models and formulations, whether or not patentable or copyrightable
(collectively, “Trade Secrets”); (f) database rights; (g) Software and (h) rights of publicity.
“IT
Systems” means, with respect to a Person, collectively, all computerized, automated, information technology or similar
systems, platforms and networks owned by, leased, licensed, or used by, or on behalf of, or under the control of such Person, respectively,
including Software, hardware, data processing and storage, record keeping, communications, telecommunications, network equipment, peripherals,
information technology, mobile and other platforms.
“Knowledge” shall mean the
actual knowledge or awareness as to a specified fact or event of: (a) with respect to DWM, the individuals listed on Schedule
1.1(b) of the DWM Disclosure Letter; and (b) with respect to any ICLK Party, the individuals listed on Schedule 1.1(b) of
the ICLK Disclosure Letter.
“Legal Proceeding” shall mean
any action, suit, hearing, claim, charge, audit, lawsuit, litigation, inquiry, arbitration or proceeding (in each case, whether civil,
criminal or administrative or at law or in equity) by or before a Governmental Entity.
“Legal Requirements” shall
mean any federal, state, local, municipal, foreign or other law, statute, constitution, treaty, principle of common law, resolution,
ordinance, code, edict, decree, rule, regulation, ruling, injunction, judgment, Order, assessment, writ or other legal requirement, administrative
policy or guidance, or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority
of any Governmental Entity.
“Liabilities” means any and
all liabilities, Indebtedness, Legal Proceedings or obligations of any nature (whether absolute, accrued, contingent or otherwise,
whether known or unknown, whether direct or indirect, whether matured or unmatured and whether due or to become due), including Tax liabilities
due or to become due.
“Lien” shall mean any mortgage,
pledge, security interest, encumbrance, lien, restriction, adverse claim, or charge of any kind (including, any conditional sale or other
title retention agreement or lease in the nature thereof, any agreement to give any security interest and any restriction relating to
use, quiet enjoyment, voting, transfer, receipt of income or exercise of any other attribute of ownership).
“Listing Application” shall
have the meaning set forth in Section 7.2(a).
“Lock-Up Agreement” and “Lock-Up
Agreements” shall have the meaning set forth in the Recitals hereto.
“Material DWM Real Property Leases”
shall have the meaning set forth in Section 4.18(a).
“Material ICLK Real Property Leases”
shall have the meaning set forth in Section 5.17(a).
“Marketing Solutions Disposal”
means the ICLK Group Companies’ disposal of the demand side marketing solutions business in the PRC pursuant to the share purchase
agreement, dated as of September 11, 2024, by and among Digital Marketing Group Limited, Optimix Media Asia Limited and SiAct Inc.,
as set forth in the form 6-K filed by ICLK with the SEC on September 11, 2024.
“Merger” shall have the meaning
set forth in the Recitals hereto.
“Merger Consideration” shall
have the meaning set forth in Section 3.1(b).
“Merger Sub” shall have the
meaning set forth in the Preamble hereto.
“Mutual Transaction Costs”
shall mean (a) Regulatory Filing Fees, (b) the HL Valuation Costs, and (c) the WWC AUP Audit Costs, in each case actually
and reasonably incurred.
“Nasdaq” shall have the meaning
set forth in the Recitals hereto.
“New Class A Shares” shall
mean the class A ordinary shares of ICLK, par value US$0.001 per share, with the rights and privileges as set forth in the ICLK A&R
MAA.
“New Class B Shares” shall
mean the class B ordinary shares of ICLK, par value US$0.001 per share, with the rights and privileges as set forth in the ICLK A&R
MAA.
“New Ordinary Shares” shall
mean, collectively, the New Class A Shares and the New Class B Shares.
“OFAC” shall mean the Office
of Foreign Assets Control of the U.S. Department of the Treasury.
“Open
Source Software” shall mean any Software (in source or object code form) that is licensed, distributed or conveyed (a) as
“free software” (as defined by the Free Software Foundation); (b) as “open source software” or pursuant
to any license identified as an “open source license” by the Open Source Initiative (www.opensource.org/licenses)
or other license that substantially conforms to the Open Source Definition (opensource.org/osd) (including but not limited to any code
or library licensed under the GNU Affero General Public License, GNU General Public License, GNU Lesser General Public License, Mozilla
Public License, BSD License, Apache Software License, Microsoft Shared Source License, Common Public License, Artistic License, Netscape
Public License, Sun Community Source License, or Sun Industry Standards License); or (c) under a license or other agreement that
requires as a condition of its use, modification, conveyance or distribution that it, or other Software into which such Software
is incorporated or with which such Software is combined or distributed or that is derived from or links to such Software, (i) be
disclosed, distributed, made available, offered, licensed or delivered in source code form, (ii) be licensed for the purpose of
making derivative works, or (iii) be subject to any restriction on the consideration to be charged for the distribution or licensing
thereof.
“Order” shall mean any award,
injunction, judgment, regulatory or supervisory mandate, order, writ, decree or ruling entered, issued, made, or rendered by any Governmental
Entity that possesses competent jurisdiction.
“Outside Date” shall have the
meaning set forth in Section 9.1(b).
“Outstanding DWM Equity Securities”
shall mean the DWM Shares outstanding immediately prior to the Effective Time, but after the consummation of the DWM Capital Restructuring.
“Outstanding
ICLK Equity Securities” shall mean all ICLK Shares outstanding immediately prior to the Effective Time, treating for such purpose
(i) all issued and outstanding options, warrants, and other equity securities (including ICLK Equity Awards) convertible into or
exercisable or exchangeable for ICLK Shares (whether or not by their terms then currently convertible, exercisable, or exchangeable),
as having been so converted, exercised, or exchanged for the maximum number of ICLK Shares permitted thereunder and (ii) all
ICLK Shares that are required to be issued, but have not been issued as of immediately prior to the Effective Time, in connection with
the acquisition by ICLK of certain share capital of Changyi (Shanghai) Information Technology Ltd., as having been so issued and outstanding.
“Parties” shall have the meaning
set forth in the Preamble hereto.
“Party” shall have the meaning
set forth in the Preamble hereto.
“Patents”
shall have the meaning set forth in the definition of “Intellectual Property” in Section 1.1.
“PCAOB” shall mean the Public
Company Accounting Oversight Board.
“Per Share Merger Consideration”
shall have the meaning set forth in Section 3.1(b).
“Permitted Lien” shall mean
(a) Liens for Taxes not yet delinquent or for Taxes that are being contested in good faith by appropriate proceedings and that are
sufficiently reserved for on the financial statements in accordance with applicable Accounting Principles; (b) statutory and contractual
Liens of landlords with respect to leased real property; (c) Liens of carriers, warehousemen, mechanics, materialmen and repairmen
and the like incurred in the ordinary course of business and (i) not yet delinquent, or (ii) that are being contested in good
faith through appropriate proceedings; (d) in the case of leased real property, zoning, building, or other restrictions, variances,
covenants, rights of way, encumbrances, easements and other irregularities in title, to the extent they do not, individually or in the
aggregate, interfere in any material respect with the present use of or occupancy of the affected parcel by any of the DWM Group Companies
or ICLK Group Companies, as applicable; (e) Liens securing the Indebtedness of any of the DWM Group Companies or ICLK Group Companies,
as applicable; (f) non-exclusive licenses granted under Intellectual Property to contractors, suppliers, vendors, distributors or
customers in the ordinary course of business in object code form, for the use by such customers of the DWM Group Companies’ or
ICLK Group Companies’, as applicable, products or services or the provision of services by such contractors, suppliers, vendors,
or distributors to the DWM Group Companies or ICLK Group Companies, as applicable; (g) purchase money Liens and Liens securing rental
payments in connection with capital lease obligations of any of the DWM Group Companies or ICLK Group Companies, as applicable; and (h) all
exceptions, restrictions, easements, imperfections of title, charges, rights-of-way and other Liens of record that do not materially
interfere with the present use and value of the assets of the DWM Group Companies or ICLK Group Companies, as applicable and the rights
under the DWM Real Property Leases or ICLK Real Property Leases, as applicable, taken as a whole and do not result in a material liability
to the DWM Group Companies or ICLK Group Companies, as applicable.
“Person” shall mean any individual,
corporation (including any non-profit corporation), general partnership, limited partnership, limited liability partnership, joint venture,
estate, trust, company (including any limited liability company or joint stock company), firm or other enterprise, association, organization,
entity or Governmental Entity.
“Personal
Information” means any information that (a) is defined as “personal data,” “personally identifiable
information,” “personal information”, “personal data” or any other similar or equivalent term under any
applicable Legal Requirement (including applicable Legal Requirements governing data protection, privacy or data security), and/or (b) identifies
or is reasonably capable of identifying a natural Person, including any such information that constitutes an individual’s name,
street address, telephone number, e-mail address, photograph, social security number or tax identification number, driver’s license
number, passport number, credit card number, bank information, or customer or account number, biometric identifiers (including video
or photographic images, fingerprints and voice biometric data relating to natural persons), health-related information or data.
“Plan of Merger” shall have
the meaning set forth in Section 2.4(a).
“PRC” means the People’s
Republic of China, but solely for the purposes of this Agreement, excluding the Hong Kong Special Administrative Region, the Macau Special
Administrative Region and Taiwan.
“Principal Parties” means,
collectively, ICLK and DWM, and each, a “Principal Party”.
“Privacy
Laws” means any and all applicable Legal Requirements (including of any applicable foreign jurisdiction) relating to the receipt,
collection, compilation, use, storage, processing, sharing, safeguarding, security (both technical and physical), disposal, destruction,
disclosure or transfer (including cross-border) of Personal Information, including the Children’s Online Privacy Protection
Act, the California Consumer Privacy Act of 2018 (as amended by the California Privacy Rights Act of 2020), the Family Educational Rights
and Privacy Act, the Federal Trade Commission Act, the General Data Protection Regulation (EU) 2016/679 on the protection of individuals
with regard to the processing of Personal Information and on the free movement of such data and all laws implementing it (including as
it was retained as domestic law in the United Kingdom following the United Kingdom’s exit from the European Union), the Illinois
Biometric Information Privacy Act, Section 5 of the Federal Trade Commission Act, the Controlling the Assault of Non-Solicited
Pornography and Marketing Act of 2003, state data breach notification Legal Requirements, state data security Legal Requirements, state
social security number protection Legal Requirements, and any and all applicable Legal Requirements and binding industry standards relating
to data protection, information security, cybercrime, breach notification, social security number protection, outbound communications
and/or electronic marketing (including e-mail marketing, telemarketing and text messaging), use of electronic data and privacy matters.
“Privacy Requirements” means,
with respect to DWM or ICLK (as applicable), (a) the DWM Group Companies’ or ICLK Group Companies’ posted written policies
with respect to Personal Information, (b) applicable Privacy Laws and binding industry standards, (c) and applicable requirements
relating to the collection, use, privacy, security or protection of Personal Information under any Contracts binding upon the DWM Group
Companies or ICLK Group Companies.
“Process” together with its
cognates, shall mean any operation or set of operations which is performed upon Personal Information, by any means, such as collection,
recording, acquisition, organization, storage, retention, adaptation, alteration, retrieval, consultation, use, disclosure by transmission,
dissemination or otherwise making available, alignment or combination, blocking, erasure, deletion, disposal or destruction.
“Proxy Filing Date” shall have
the meaning set forth in Section 7.1(a)(i).
“Proxy Statement” shall have
the meaning set forth in Section 7.1(a)(i).
“Receiving Principal Party”
shall have the meaning set forth in Section 6.3(a).
“Reference Date” shall mean
July 1, 2022.
“Reference Exchange Rate” as
of a specified date means the USD:CNY Central Parity
Rate last published by People’s Bank of
China and its subsidiary China Foreign Exchange Trade System & National Interbank Funding Center (or any other successor thereof)
as of such date.
“Regulatory Filing Fees” shall
mean fees, costs and expenses reasonably incurred in connection with the filings, submissions, consents, approvals, authorizations and
permits required under applicable Legal Requirements in connection with the Transactions.
“Related Parties” shall mean,
with respect to a Person, such Person’s former, current and future direct or indirect equityholders, controlling Persons, shareholders,
optionholders, members, general or limited partners, Affiliates, Representatives, and each of their respective successors and assigns.
“Representatives” shall have
the meaning set forth in Section 7.9(a).
“Requesting Principal Party”
shall have the meaning set forth in Section 6.3(a).
“Restricted Cash” as of a specified
time with respect to any Person means any cash or cash equivalents as of such specified time that is not freely usable by such Person
or any of its Subsidiaries because it is subject to restrictions, limitations or Taxes on use or distribution by Legal Requirements,
contract or otherwise; provided that a total amount of cash or cash equivalents up to the aggregate outstanding amount of Indebtedness
of such Person as of such specified time that are required to be repaid or settled in RMB shall not be deemed to be Restricted Cash solely
because it is subject to applicable foreign exchange or currency control Legal Requirements; provided further that, any cash or
cash equivalents shall not be deemed to be Restricted Cash if the restrictions and/or limitations thereon are imposed in connection with
securing an Indebtedness of such Person.
“RMB” means Renminbi, the legal
currency of the PRC.
“Sanctioned Country” shall
mean, at any time, a country or territory which is the subject or target of comprehensive Sanctions (at the time of this Agreement, the
Crimea, so-called Donetsk People’s Republic and so-called Luhansk People’s Republic regions of Ukraine, the non-Ukrainian
government-controlled areas of the Zaporizhzhia and Kherson regions of Ukraine, Cuba, Iran, North Korea, and Syria).
“Sanctioned Person” shall mean
any Person that is the target of any Sanctions, including without limitation, (a) any Person listed on any Sanctions-related list
of designated Persons maintained by the United States (including OFAC and the U.S. Department of State), the United Nations Security
Council, the European Union or any European Union member state, the United Kingdom (including His Majesty’s Treasury), or Switzerland;
(b) any Person that is located, organized or resident in a Sanctioned Country; (c) any Person owned 50% or more, directly or
indirectly, or controlled by or acting for or on behalf of any such Person or Persons described in the foregoing clauses (a) - (b);
or (d) any Person otherwise subject to Sanctions.
“Sanctions” shall mean economic
or financial sanctions or trade embargoes imposed, administered or enforced by the United States (including OFAC and the U.S. Department
of State), the United Nations Security Council, the European Union or any European Union member state, the United Kingdom (including
His Majesty’s Treasury), or Switzerland.
“SEC” shall mean the United
States Securities and Exchange Commission.
“Section 721” means Section 721
of the Defense Production Act of 1950, as amended, codified at 50 U.S.C. § 4565, and the regulations promulgated by CFIUS thereunder,
codified at 31 C.F.R. Part 800, et seq.
“Securities Act” shall mean
the United States Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Software” shall mean any and
all computer programs (whether in source code, object code, human readable form or other form), applications (including mobile applications)
and computerized databases in any form, including software platforms, libraries, algorithms, user interfaces, application programming
interfaces, firmware, middleware, development tools, templates and menus.
“Solvent” shall mean with respect
to any Person as of any date of determination, that (a) at fair valuations, the sum of such Person’s liabilities on a consolidated
basis (including contingent liabilities) is less than the sum of such Person’s assets on a consolidated basis, (b) such Person
is not engaged or about to engage in a business or transaction contemplated as of the date hereof for which such Person has, on a consolidated
basis, unreasonably small capital, and (c) such Person has not incurred and does not intend to incur, or reasonably believes that
it will incur, debts beyond its ability to pay such debts as they become absolute and mature in the ordinary course of business. For
purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all
of the facts and circumstances existing at such time, represents a reasonable estimate of the amount that would reasonably be expected
to become an actual and matured liability.
“Special Meeting” shall have
the meaning set forth in Section 7.1(b).
“Special Resolution” shall
have the meaning given to it in the Cayman Companies Act.
“Subsidiary” shall mean, with
respect to any Person, any other Person of which: (a) if a corporation, a majority of the total voting power of shares of capital
stock or share capital entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers,
or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries
of that Person or a combination thereof; (b) if a partnership, limited liability company or other business entity, a majority of
the partnership or other similar ownership interests thereof is at the time owned or controlled, directly or indirectly, by that Person
or one or more Subsidiaries of that Person or a combination thereof; or (c) in any case, such Person controls the management thereof.
“Surviving Sub” shall have
the meaning set forth in Section 2.2(a).
“Tax” or “Taxes”
shall mean: (a) any and all U.S. federal, state, local and non-U.S. taxes, including, without limitation, gross receipts, income,
profits, license, sales, use, estimated, occupation, value added, ad valorem, transfer, franchise, withholding, payroll, recapture, net
worth, employment, excise and property taxes, assessments, stamp, environmental, registration, governmental charges, duties, levies and
other similar charges, in each case, imposed by a Governmental Entity (whether disputed or not), together with all interest, penalties
and additions imposed by a Governmental Entity with respect to any such amounts and (b) any liability in respect of any items described
in clause (a) payable by reason of Contract, transferee liability, operation of law or having been a member of a consolidated,
combined, unitary or affiliated group or otherwise.
“Tax Return” shall mean any
return, declaration, report, form, claim for refund, or information return or statement relating to Taxes that is filed or required to
be filed with a Governmental Entity, including any schedule or attachment thereto and any amendment thereof.
“Token” means any digital token,
coin, cryptocurrency or any other similar digital asset, whether or not classified as “securities” under securities laws
of the U.S. or any or any applicable other jurisdictions.
“Trademarks” shall have the
meaning set forth in the definition of “Intellectual Property” in Section 1.1.
“Trade Secrets” shall have
the meaning set forth in the definition of “Intellectual Property” in Section 1.1.
“Transaction Agreements” shall
mean this Agreement, the ICLK Voting Agreements, the Lock-Up Agreements, the ICLK A&R MAA and all the agreements documents, instruments
and certificates entered into in connection herewith or therewith and any and all exhibits and schedules thereto.
“Transaction Costs” shall mean
the DWM Transaction Costs plus the ICLK Transaction Costs plus the Mutual Transaction Costs.
“Transactions” shall mean the
transactions contemplated by this Agreement, including the Merger and the transactions contemplated by the other Transaction Agreements.
“Transfer Taxes” shall have
the meaning set forth in Section 7.11.
“U.S. GAAP” shall mean the
U.S. generally accepted accounting principles.
“US$” or “USD”
shall mean U.S. dollars, the legal currency of the United States.
“WARN Act” shall have the meaning
set forth in Section 4.12(f).
“WFTL” means WhaleFin Technologies
Limited, a company incorporated in Seychelles and a wholly owned Subsidiary of AB.
“WFTL Assigned Contracts” shall
have the meaning set forth in the Recitals hereto.
“WFTL Contract Assignment”
shall have the meaning set forth in the Recitals hereto.
“WhaleFin HK” shall have the
meaning set forth in the Recitals hereto.
“WhaleFin HK Equity Transfer”
shall have the meaning set forth in the Recitals hereto.
“WWC AUP Audit Costs” shall
mean service fees and reimbursements of WWC in connection with the AUP audit services provided by WWC in connection with the Transactions
that are reasonably incurred.
Article II
THE MERGER
2.1 Pre-Closing
Actions. On the Closing Date, immediately before the Effective Time, the following actions shall take place or be effected (in the
order set forth in this Section 2.1):
(a) Except
for such holder listed on Schedule 2.1(a) of the ICLK Disclosure Letter, each holder of the ICLK Class B Shares shall
deliver a written notice to ICLK to convert its ICLK Class B Shares to ICLK Class A Shares with immediate effect (the “ICLK
Class B Share Conversion”).
(b) The
tenth amended and restated memorandum and articles of association of ICLK in the form set forth in Exhibit C hereto (the
“ICLK A&R MAA”) shall be adopted and become effective.
(c) Simultaneously
with the adoption of the ICLK A&R MAA:
(i) all
ICLK Class A Shares and ICLK Class B Shares in the authorized share capital of ICLK (including all issued and outstanding
ICLK Class A Shares and ICLK Class B Shares, and all authorized but unissued ICLK Class A Shares and ICLK Class B
Shares) shall be re-designated as New Class A Shares, and the authorized share capital of ICLK shall be US$1,300,000 divided into
1,300,000,000 shares comprising of (x) 1,191,000,000 New Class A Shares, and (y) 109,000,000 New Class B Shares; and
(ii) ICLK
shall be renamed as “Amber International Holding Limited” as provided in the ICLK A&R MAA.
2.2 The
Merger.
(a) At
the Effective Time, Merger Sub will be merged with and into DWM upon the terms and subject to the conditions set forth in this Agreement
and in accordance with the applicable provisions of the Cayman Companies Act, whereupon Merger Sub will be struck off the register
of companies in the Cayman Islands and the separate corporate existence of Merger Sub will cease and DWM will continue its existence
as the surviving company (the “Surviving Sub”). As a result of the Merger, the Surviving Sub will become a wholly
owned subsidiary of ICLK.
(b) From
and after the Effective Time, the Surviving Sub will possess all the rights, powers, privileges and franchises and be subject to all
of the obligations, liabilities and duties of DWM and Merger Sub, all as provided under section 236(1) of the Cayman Companies Act.
2.3 Closing.
Unless this Agreement has been terminated and the Transactions herein contemplated have been abandoned pursuant to Article IX
of this Agreement, and subject to the satisfaction or waiver of the conditions set forth in Article VIII of this Agreement,
the consummation of the Transactions contemplated under this Agreement, including the Merger (the “Closing”), will
occur by electronic exchange of documents and signatures on the tenth (10th) Business Days after satisfaction or waiver of
the conditions set forth in Article VIII (other than those conditions that by their nature are to be satisfied at the Closing,
but subject to the satisfaction or waiver of each such condition), or at such other time, date and place as the Principal Parties may
mutually agree in writing. The date on which the Closing actually takes place is referred to herein as the “Closing Date”.
2.4 Effective
Time.
(a) On
the Closing Date, the applicable Parties shall cause the Merger to be consummated by executing and filing a plan of merger for the Merger
in accordance with the relevant provisions of the Cayman Companies Act, in substantially the form of Exhibit B attached hereto
(the “Plan of Merger”), with the Cayman Registrar.
(b) The
Merger shall become effective on the date the Plan of Merger is duly filed with and registered by the Cayman Registrar or on such later
date as is agreed between the Principal Parties and specified in the Plan of Merger; provided that such later date shall not be
a date later than the ninetieth day after the date when the Plan of Merger is filed and registered with the Cayman Registrar (such time
as the Merger becomes effective being the “Effective Time”).
2.5 Effect
of Merger. At the Effective Time, the effect of the Merger will be as provided in this Agreement, the Plan of Merger and the applicable
provisions of the Cayman Companies Act. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time,
all the property, rights and privileges of DWM and Merger Sub shall vest in the Surviving Sub, and all debts, liabilities, obligations
and duties of DWM and Merger Sub shall become debts, liabilities, obligations and duties of the Surviving Sub.
2.6 Governing
Documents. At the Effective Time, by virtue of the Merger, the existing memorandum and articles of association of the Surviving Sub
shall be amended and restated by the deletion of the then-current memorandum and articles of association of the Surviving Sub in their
entirety and the substitution in their place of the third amended and restated memorandum and articles of association of the Surviving
Sub attached at Exhibit D (“DWM Third A&R MAA”) until thereafter changed or amended as provided therein
or by applicable law.
2.7 Directors
and Officers.
(a) Until
successors are duly elected or appointed and qualified in accordance with applicable law and the Governing Documents of ICLK, the directors
and officers of ICLK from and after the Effective Time shall be appointed pursuant to Section 7.12 hereof.
(b) Until
successors are duly elected or appointed and qualified in accordance with applicable law and the Governing Documents of the Surviving
Sub, the directors and officers of DWM immediately prior to the Effective Time shall be the directors and officers of the Surviving Sub.
Article III
TREATMENT OF SECURITIES
3.1 Treatment
of Shares. DWM shall cause the DWM Capital Restructuring to be consummated no later than immediately prior to the Effective Time.
At the Effective Time, by virtue of the Merger and without any further action on the part of any Party or any other Person:
(a) Treatment
of Excluded DWM Shares. All DWM Shares that are owned by ICLK, DWM, Merger Sub or any DWM Group Company immediately prior to the
Effective Time (the “Excluded DWM Shares”) shall automatically be surrendered and canceled and shall cease
to exist, and no New Ordinary Share or other consideration shall be delivered or deliverable in exchange therefor and each holder of
any such Excluded DWM Shares shall cease to have any rights with respect thereto.
(b) Treatment
of DWM Shares. Each DWM Share issued and outstanding as of immediately prior to the Effective Time (including such DWM Shares issued
in the DWM Capital Restructuring, but excluding Dissenting Shares, which shall be treated in the manner set forth in Section 3.3,
and the Excluded DWM Shares being cancelled pursuant to Section 3.1(a)), by virtue of the Merger and upon the terms and subject
to the conditions set forth in this Agreement, shall be converted into and shall for all purposes represent only the right to receive
(x) in the case of any DWM Share held by AB Founder HoldCo, a number of validly issued, fully paid and non-assessable New Class B
Shares, and (y) in all other cases, a number of validly issued, fully paid and non-assessable New Class A Shares, in each case
of (x) and (y), equal to (i) the DWM Per Share Value, divided by (ii) the ICLK Per Share Value (such New Class B
Shares and New Class A Shares, as applicable, the “Per Share Merger Consideration”, and the aggregate amount
of New Ordinary Shares to be issued pursuant to this Section 3.1(b), the “Merger Consideration”). All
of the DWM Shares converted into the right to receive the Merger Consideration pursuant to this Section 3.1(b) shall
no longer be outstanding and shall cease to exist, and each holder of such DWM Shares issued and outstanding as of immediately prior
to the Effective Time shall thereafter cease to have any rights with respect to such securities, except the right to receive the Per
Share Merger Consideration without interest.
(c) Treatment
of Merger Sub Shares. Each ordinary share of Merger Sub issued and outstanding immediately prior to the Effective Time shall
be converted into one validly issued, fully paid and non-assessable ordinary share of the Surviving Sub, which shall constitute the only
issued and outstanding share capital of the Surviving Sub following the Effective Time.
3.2 Treatment
of ICLK Equity Awards. Each ICLK Option, ICLK RSU and any other ICLK Equity Award that is outstanding and unexercised immediately
prior to the Effective Time, whether or not vested or exercisable, shall remain outstanding and shall remain subject to the terms and
conditions of the ICLK Share Plans, and any relevant award agreements applicable to such equity plans. At or prior to the Effective Time, ICLK
and the board of directors (including any committee) thereof, as applicable, shall adopt any resolutions and take any and all actions
that may be necessary to effectuate the provisions of this Section 3.2.
3.3 Dissenting
Shares.
Notwithstanding
any provision of this Agreement to the contrary and to the extent available under the Cayman Companies Act, including Section 3.1,
DWM Shares issued and outstanding immediately prior to the Effective Time held by holders who have validly exercised, or have not otherwise
lost, their dissenters’ rights for such DWM Shares in accordance with this Section 3.3 and Section 238 of the
Cayman Companies Act and otherwise complied with all of the provisions of the Cayman Companies Act relevant to the exercise and perfection
of dissenters’ rights (such DWM Shares being referred to collectively as the “Dissenting Shares” until such
time as such holder fails to perfect or otherwise loses such holder’s dissenter’s rights under the Cayman Companies Act with
respect to such DWM Shares, and holders of the Dissenting Shares collectively, the “Dissenting Shareholders”) shall
be cancelled and cease to exist at the Effective Time and the Dissenting Shareholders shall not be entitled to receive the Per Share
Merger Consideration, but instead shall be entitled only to receive the payment of the fair value of such Dissenting Shares held by them
determined in accordance with Section 238 of the Cayman Companies Act and such other rights as are granted by the Companies Act;
provided, however, that if, after the Effective Time, any Dissenting Shareholder fails to validly exercise or perfect,
withdraws or loses such holder’s right to appraisal pursuant to this Section 3.3 and Section 238 of the Cayman
Companies Act or if a court of competent jurisdiction shall determine that such Dissenting Shareholder is not entitled to the relief
provided by Section 238 of the Cayman Companies Act, such DWM Shares shall be treated as if they had been cancelled and ceased to
exist and they had been converted as of the Effective Time into the right to receive the Per Share Merger Consideration, if any, to which
such Dissenting Shareholder is entitled pursuant to Section 3.1, without interest thereon. DWM shall provide ICLK
prompt written notice of any written objections to the Merger or other demands received by DWM for the exercise of dissenter rights in
respect of the Merger or appraisal of DWM Shares according to the Cayman Companies Act, any written withdrawal of any such objection
or demand and any other written demand, notice or instrument delivered to DWM prior to the Effective Time pursuant to the Cayman Companies
Act that relates to such objection or demand, and ICLK shall be consulted with respect to all material negotiations and proceedings with
respect to such objection or demands. Except with the prior written consent of ICLK, DWM shall not make any payment with respect to,
or settle or offer to settle, any such objection or demands.
3.4 Exchange
Procedures. On the Closing Date, ICLK shall issue to each holder who is, immediately prior to the Effective Time (but after
the consummation of DWM Capital Restructuring), a registered holder of DWM Shares (other than Dissenting Shares and the Excluded DWM
Shares) (such holders, the “Existing DWM Shareholders”) the Merger Consideration in respect of the DWM Shares held
by such Existing DWM Shareholder, credited as fully paid, in accordance with the terms of this Agreement. Following the Effective Time, ICLK
shall, upon the request by any shareholder of ICLK, promptly deliver to such shareholder of ICLK an excerpt of the register of members
of ICLK or such other document that evidences the share ownership in ICLK of such shareholder.
3.5 Issuance
of the Closing Number of Securities.
(a) Notwithstanding
anything in this Agreement to the contrary, no fraction of an New Ordinary Share will be issued by virtue of the Merger, and the Persons
who would otherwise be entitled to a fraction of an New Ordinary Share (after aggregating all fractional shares of New Ordinary Shares
that otherwise would be received by such Person) shall receive from ICLK, in lieu of such fractional share: (i) one New Ordinary
Share if the aggregate amount of fractional shares of New Ordinary Shares such Person would otherwise be entitled to is equal to or exceeds
0.50; or (ii) no New Ordinary Share if the aggregate amount of fractional shares of New Ordinary Shares such Person would otherwise
be entitled to is less than 0.50.
(b) The
number of New Ordinary Shares that each Person is entitled to receive as a result of the Merger and as otherwise contemplated by this
Agreement shall be adjusted to reflect appropriately the effect of any share sub-division, share consolidation, share dividend or distribution
(including any dividend or distribution of securities convertible into New Ordinary Shares), extraordinary cash dividend, reorganization,
recapitalization, reclassification, combination, exchange of shares or other like change with respect to New Ordinary Shares occurring
on or after the date hereof and prior to the Closing.
3.6 ICLK
Closing Certificate. Not later than three (3) Business Days prior to the Closing Date, ICLK shall deliver to DWM a written
certificate (the “ICLK Closing Certificate”) setting forth: (a) the estimated amount of ICLK Transaction Costs
as of the Closing, which shall include the respective paid and unpaid amounts and wire transfer instructions for the payment thereof;
(b) reasonable relevant supporting documentation used by ICLK in calculating such estimated amounts of the ICLK Transaction Costs;
and (c) a certificate of the Chief Financial Officer of ICLK certifying that the estimates set forth in the ICLK Closing Certificate
have been prepared in good faith and in accordance with this Agreement and the other Transaction Agreements. DWM and its Representatives
shall have a reasonable opportunity to review and to discuss with ICLK and its Representatives the documentation provided pursuant to
this Section 3.6 and any relevant books and records. ICLK and its Representatives shall reasonably assist DWM and its Representatives
in their review of the documentation. DWM shall be entitled (but not obligated) to rely in all respects on the ICLK Closing Certificate.
3.7 Closing
Calculations. No later than three (3) Business Days prior to the Closing Date, DWM shall deliver to ICLK a schedule (the “Closing
Payments Schedule”) setting forth: (a) the calculation of the Merger Consideration and the allocation of the Merger Consideration
among the holders of DWM Shares of immediately prior to the Closing including the legal name and registered address of each such holder;
(b) the estimated amount of DWM Transaction Costs and Mutual Transaction Costs as of the Closing, which shall include the respective
paid and unpaid amounts and wire transfer instructions for the payment thereof; (c) reasonable relevant supporting documentation
used by DWM in calculating such estimated amounts of the DWM Transaction Costs and the Mutual Transaction Costs; and (d) a certificate
of the highest ranking financial officer of DWM certifying that the estimates set forth in the Closing Payments Schedule have been prepared
in good faith and in accordance with this Agreement and the other Transaction Agreements. ICLK and its Representatives shall reasonably
assist DWM and its Representatives in the calculation of the estimated amount of the Mutual Transaction Costs. ICLK and its Representatives
shall have a reasonable opportunity to review and to discuss with DWM and its Representatives the documentation provided pursuant to
this Section 3.7 and any relevant books and records of the DWM Group Companies. DWM and its Representatives shall
reasonably assist ICLK and its Representatives in its review of the documentation. ICLK and Merger Sub will be entitled (but not obligated)
to rely in all respects upon the Closing Payments Schedule.
3.8 Withholding
Taxes. Notwithstanding anything in this Agreement to the contrary, DWM, ICLK and their respective Affiliates shall be entitled
to deduct and withhold from any payments payable pursuant to this Agreement any amount required to be deducted and withheld with respect
to the making of such payment under applicable Legal Requirements. If any deduction or withholding is so required in connection with
any such payments, such Person shall cause the applicable withholding agent to provide written notice to the Person in respect of which
such deduction and withholding is to be made of the amounts to be deducted and withheld as soon as reasonably practicable (and shall
use commercially reasonable efforts to do so at least five (5) days prior to such payment). Each Party shall use reasonable efforts
to (a) avail itself of any available exemptions from, or any refunds, credits or other recovery of, any such Tax deductions and
withholdings and shall cooperate with the other Parties in providing any information and documentation that may be necessary to obtain
such exemptions, refunds, credits or other recovery and (b) eliminate or minimize the amount of any such Tax deductions and withholdings.
To the extent that amounts are so deducted and withheld and paid over to the appropriate Governmental Entity in accordance with applicable
Legal Requirements, such deducted and withheld amounts shall be treated for all purposes of this Agreement as having been paid to the
Person in respect of which such deduction and withholding was made.
3.9 Taking
of Necessary Action; Further Action. If, at any time after the Effective Time, any further action is necessary or desirable to carry
out the purposes of this Agreement and to vest the Surviving Sub following the Merger with full right, title and possession to and of
all assets, property, rights, privileges, powers and franchises of DWM and Merger Sub (as provided under section 236(1) of the Cayman
Companies Act), the officers, directors, managers and members, as applicable (or their designees), of the Parties hereto are fully authorized
in the name of their respective corporations or otherwise to take, and will take, all such lawful and necessary action, so long as such
action is not inconsistent with this Agreement.
Article IV
REPRESENTATIONS AND WARRANTIES OF DWM
Except as set forth in the letter dated as of
the date of this Agreement delivered by DWM to ICLK in connection with the execution and delivery of this Agreement (the “DWM
Disclosure Letter”) or as expressly contemplated pursuant to the DWM Asset Restructuring and/or the DWM Capital Restructuring,
DWM hereby represents and warrants to the other Parties hereto as of the date hereof and as of the Closing Date (or if a specific date
is indicated in any such statement, as of such specified date) the following:
4.1 Organization
and Qualification.
(a) DWM
is an exempted company duly incorporated, validly existing and in good standing under the applicable Legal Requirements of the Cayman
Islands.
(b) DWM
has all requisite corporate power and authority to own, lease and operate its assets, rights and properties and to carry on its
business as it is now being conducted, except as would not be expected to be material to the DWM Group Companies, taken as a whole.
(c) DWM
is duly qualified to do business in each jurisdiction in which it is conducting its business, or the operation, ownership or leasing
of its properties, makes such qualification necessary, other than in such jurisdictions where the failure to so qualify would not, individually
or in the aggregate, reasonably be expected to be material to the DWM Group Companies, taken as a whole. Complete and correct copies
of the Governing Documents of DWM as currently in effect, have been made available to ICLK.
(d) DWM
is not in violation of any of the provisions of its Governing Documents in any material respect.
4.2 DWM
Subsidiaries.
(a) As
of the date hereof and as of the Closing Date, all DWM Group Companies, together with their jurisdiction of incorporation or organization,
as applicable, are listed on Schedule 4.2(a) of the DWM Disclosure Letter (the DWM Group Companies other than DWM, the “DWM
Subsidiaries”). DWM owns, directly or indirectly, free and clear of all Liens (other than Permitted Liens), all of the outstanding
equity securities of (i) as of the Closing Date, all DWM Subsidiaries, and (ii) as of the date hereof, all DWM Subsidiaries
except for WhaleFin HK and Amber Custodian Services Limited. Except for the DWM Subsidiaries, DWM does not own, directly or indirectly,
any ownership, equity, profits or voting interest in any Person or have any agreement or commitment to purchase any such interest, and
has not agreed and is not obligated to make nor is bound by any written, oral or other Contract, binding understanding, option, warranty
or undertaking of any nature, as of the date hereof or as may hereafter be in effect under which it may become obligated to make, any
future investment in or capital contribution to any other entity.
(b) Each
DWM Subsidiary is duly incorporated, formed or organized, validly existing and in good standing (to the extent such concept exists in
the relevant jurisdiction) under the laws of its jurisdiction of incorporation, formation or organization and has the requisite corporate,
limited liability company or equivalent power and authority to own, lease and operate its assets, rights and properties and to
carry on its business as it is now being conducted in all material respects. Each DWM Subsidiary is duly qualified to do business in
each jurisdiction in which the conduct of its business, or the operation, ownership or leasing of its properties, makes such qualification
necessary, other than in such jurisdictions where the failure to so qualify or be in good standing would not, individually or in the
aggregate, reasonably be expected to be material to the DWM Group Companies, taken as a whole. Complete and correct copies of the Governing
Documents of each DWM Subsidiary, as amended and currently in effect, have been made available to ICLK. No DWM Subsidiary is in violation
of any of the provisions of its Governing Documents in any material respect.
(c) All
issued and outstanding shares of capital stock, limited liability company interests and equity interests of each DWM Subsidiary (i) have
been duly authorized, validly issued, fully paid and are non-assessable (in each case, to the extent that such concepts are applicable),
(ii) are not subject to, nor have been issued in violation of, any purchase option, call option, right of first refusal, preemptive
right, subscription right or any similar right, except as contemplated under this Agreement, and (iii) have been offered, sold and
issued in compliance with applicable Legal Requirements and the applicable DWM Subsidiary’s respective Governing Documents.
(d) Except
as contemplated under this Agreement, there are no subscriptions, options, warrants, equity securities, partnership interests or similar
ownership interests, calls, rights (including preemptive rights), commitments or agreements of any character to which any DWM Subsidiary
is a party or by which it is bound obligating such DWM Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold,
or repurchase, redeem or otherwise acquire, or cause the repurchase, redemption or acquisition of, any ownership interests of such DWM
Subsidiary or obligating such DWM Subsidiary to grant, extend, accelerate the vesting of or enter into any such subscription, option,
warrant, equity security, call, right, commitment or agreement.
(e) As
of the Closing, the DWM Group Companies shall have, good, exclusive and marketable title to such assets, rights and properties necessary
for the performance of the obligations under the WFTL Assigned Contracts in all material respects, and are sufficient for the DWM Group
Companies to perform their obligations under the WFTL Assigned Contracts in a manner materially consistent with the performance of such
obligations by WFTL as of the date hereof.
4.3 Capitalization
of DWM.
(a) All
issued and outstanding share capital of DWM as of the date of hereof, and as of the Closing Date (disregarding the effects of
the DWM Capital Restructuring), is as set forth on Schedule 4.3(a) of the DWM Disclosure Letter. As of the Closing Date,
all authorized and outstanding share capital of DWM will be in the form of DWM Shares.
(b) Except
as contemplated under this Agreement (including the DWM Capital Restructuring and DWM Asset Restructuring) or as disclosed on Schedule
4.3(b) of the DWM Disclosure Letter, (i) no subscription, warrant, option, convertible or exchangeable security, or other
right (contingent or otherwise) to purchase or otherwise acquire equity securities of DWM is authorized or outstanding, and (ii) there
is no commitment by DWM to issue shares, subscriptions, warrants, options, convertible or exchangeable securities, or other similar equity
rights, to distribute to holders of its equity securities any evidence of indebtedness, to repurchase or redeem any securities of DWM
or to grant, extend, accelerate the vesting of, change the price of, or otherwise amend any warrant, option, convertible or exchangeable
security. There are no declared or accrued unpaid dividends with respect to any DWM Shares.
(c) All
issued and outstanding DWM Shares are, and all DWM Shares which may be issued in connection with the DWM Capital Restructuring,
when issued, will be, (i) duly authorized, validly issued, fully paid and non-assessable and (ii) not subject to or issued
in violation of any preemptive rights created by the Cayman Companies Act, DWM Governing Documents or any agreement to which DWM is a
party. All issued and outstanding DWM Shares were issued in compliance with applicable Legal Requirements.
(d) No
outstanding DWM Shares are subject to vesting or forfeiture rights or repurchase by a DWM Group Company, except as provided for under
the Cayman Companies Act subject to the provisions thereunder. There are no outstanding or authorized stock appreciation, dividend equivalent,
phantom stock, profit participation or other similar rights issued by any DWM Group Company.
(e) All
distributions, dividends, repurchases and redemptions in respect of the share capital (or other equity interests) of DWM were undertaken
in compliance with the DWM Governing Documents then in effect, any agreement to which DWM then was a party and in compliance with applicable
Legal Requirements.
(f) Except
as set forth in DWM’s Governing Documents in connection with the Transactions, there are no registration rights, and there is no
voting trust, proxy, rights plan, anti-takeover plan or other similar agreements or understandings, to which any DWM Group Company is
a party or by which any DWM Group Company is bound with respect to any ownership interests of the applicable DWM Group Company.
(g) Except
as provided for in this Agreement, as a result of the consummation of the Transactions, no shares of capital stock, warrants, options
or other securities of any DWM Group Company are issuable and no rights in connection with any shares, warrants, options or other securities
of any DWM Group Company accelerate or otherwise become triggered (whether as to vesting, exercisability, convertibility or otherwise).
4.4 Authority
Relative to this Agreement. DWM has all requisite power and authority to: (a) execute, deliver and perform this Agreement and
the other Transaction Agreements to which it is a party, and each ancillary document that DWM has executed or delivered or is to execute
or deliver pursuant to this Agreement; and (b) carry out DWM’s obligations hereunder and thereunder and to consummate the
applicable Transactions (including the Merger). The execution and delivery by DWM of this Agreement and the other Transaction Agreements
to which it is a party and the consummation by DWM of the applicable Transactions (including the Merger) have been or will be as of the
Closing Date duly and validly authorized by all requisite actions on the part of DWM and its Affiliates, and no other proceedings on
the part of DWM or any of its Affiliates are necessary to authorize this Agreement or the other Transaction Agreements to which DWM or
any of its Affiliates is a party or to consummate the transactions contemplated hereby and thereby. This Agreement and the other Transaction
Agreements to which DWM or any of its Affiliate is a party have been duly and validly executed and delivered by DWM or such Affiliate,
as applicable, and, assuming the due authorization, execution and delivery hereof and thereof by the other parties hereto and thereto,
constitute the legal and binding obligations of DWM or such Affiliate, enforceable against DWM or such Affiliate, as applicable, in accordance
with their terms, except insofar as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors’ rights generally or by principles governing the availability of equitable remedies.
4.5 No
Conflict; Required Filings and Consents.
(a) Neither
the execution, delivery nor performance by DWM of this Agreement or the other Transaction Agreements to which it is a party, nor the
consummation of the Transactions, will: (i) conflict with or violate DWM’s Governing Documents; (ii) assuming that the
consents, approvals, orders, authorizations, registrations, filings, notices or permits referred to in Section 4.5(b) are
duly and timely obtained or made, conflict with or violate any Legal Requirements applicable to DWM; (iii) result in any breach
of or constitute a default (with or without notice or lapse of time, or both) under, or impair DWM’s, or any DWM Group Company’s
rights or, in a manner adverse to any of the DWM Group Companies, alter the rights or obligations of any third party under, or give to
any third party any rights of consent, termination, amendment, acceleration (including any forced repurchase or put right) or cancellation
under, or result in the creation of a Lien (other than any Permitted Lien) on any of the properties, rights or assets of any of the DWM
Group Companies pursuant to, any DWM Material Contracts, except, with respect to clauses (ii) and (iii) as would not,
individually or in the aggregate, reasonably be expected to be material to the DWM Group Companies, taken as a whole.
(b) No
notices, reports or other filings are required to be made by any DWM Group Company with, nor are any consents, registrations, approvals,
permits or authorizations required to be obtained by any DWM Group Company from, any Governmental Entity in connection with the execution
and delivery by DWM and any other DWM Group Company of this Agreement and the other Transaction Agreements to which it is a party, except
for: (i) the filing of the Plan of Merger in accordance with the Cayman Companies Act; (ii) applicable requirements, if any,
of the Securities Act, the Exchange Act or blue sky laws, and the rules and regulations thereunder, and appropriate securities law
related documents received from or filed with the relevant authorities of other jurisdictions in which any DWM Group Company is licensed
or qualified to do business; and (iii) the filings, submissions, consents, approvals, authorizations and permits described on Schedule
4.5(b) of the DWM Disclosure Letter (the “DWM Required Regulatory Approvals”); and (iv) where
the failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications, would not, individually
or in the aggregate, reasonably be expected to be material to the DWM Group Companies, taken as a whole, or reasonably be expected to
prevent or materially delay or impair the consummation of the Transactions or the ability of DWM to perform its obligations under this
Agreement or the other Transaction Agreements. As of the date hereof, Amber Premium FZE has obtained its in-principle approval from Virtual
Assets and Regulatory Authority of Dubai.
4.6 Compliance;
Approvals.
(a) Each
of the DWM Group Companies, in each case, has complied with and is not in violation of any applicable Legal Requirements with respect
to the conduct of its business, or the ownership or operation of its business, except for failures to comply or violations which, individually
or in the aggregate, have not been and are not reasonably likely to be material to the DWM Group Companies, taken as a whole. No written
or, to the Knowledge of DWM, oral notice, of non-compliance with any applicable Legal Requirements has been received by any of the DWM
Group Companies. Each DWM Group Company is in possession of all franchises, grants, authorizations, licenses, permits, consents, certificates,
approvals and orders from Governmental Entities (“Approvals”) necessary to own, lease and operate the properties it
purports to own, operate or lease and to carry on its business as it is now being conducted, in all material respects. Each Approval
held by the DWM Group Companies is valid, binding and in full force and effect in all material respects. None of the DWM Group Companies
(i) is in default or violation (and no event has occurred that, with notice or the lapse of time or both, would constitute a default
or violation) of any term, condition or provision of any such Approval, or (ii) has received any notice from a Governmental Entity
that has issued any such Approval that it intends to cancel, terminate, modify or not renew any such Approval, except in the case of
clauses (i) and (ii) as would not individually or in the aggregate, reasonably be expected to be material to the DWM Group
Companies, taken as a whole.
(b) To
the Knowledge of DWM, each shareholder of DWM who is to receive Merger Consideration is (i) an “accredited investor”
as defined in Rules 215 and 501(a) of the Securities Act, (ii) a “qualified institutional buyer” as defined
in Rule 144A of the Securities Act or (iii) receiving the Merger Consideration in a transaction compliant with Regulation S
and/or Regulation D.
4.7 Financial
Statements.
(a) DWM
has made available to ICLK (I) true and complete copies of near-final draft of the audited combined balance sheets of the DWM Group Companies
(other than Whalefin HK and its Subsidiaries) as of June 30, 2024 and June 30, 2023, and the related combined statements of income (loss),
and cash flows of such DWM Group Companies for the fiscal years then ended, to be duly signed in such form and delivered on or around
the date hereof (collectively, the “DWM Audited Financial Statements”), and (II)(x) true and complete copies of the
unaudited balance sheets of Whalefin HK as of June 30, 2024 and June 30, 2023, and the related combined statements of income (loss)
for the fiscal years then ended and (y) near-final draft of independent factual finding report on assets and liabilities of WFTL as of
June 30, 2024 and the related income and expense attributable to operation of WFTL for the year then ended June 30, 2024, to be duly
signed and delivered on or around the date hereof by WWC in such form and delivered on or around the date hereof by WWC (collectively,
the “DWM Unaudited Financial Statements” and, together with the DWM Audited Financial Statement, the “DWM
Financial Statements”). The DWM Financial Statements: (i) were prepared in conformity with the DWM Accounting Principles applied
on a consistent basis during the periods involved, subject, in the case of DWM Unaudited Financial Statements, to normal recurring year-end
adjustments (the effect of which will not, individually or in the aggregate, be material to the DWM Group Companies, taken as a whole)
and the absence of footnotes; (ii) were prepared from the books and records of the DWM Group Companies; and (iii) were prepared in good
faith based upon reasonable assumptions made by DWM on a basis consistent with the basis employed in such books and records for the relevant
periods.
(b) The
DWM Group Companies have established and maintained a system of internal controls. Such internal controls are sufficient to provide reasonable
assurances (i) regarding the reliability of financial reporting and the preparation of financial statements for external purposes
in accordance with the DWM Accounting Principles, (ii) that transactions, receipts and expenditures of the DWM Group Companies are
being executed and made only in accordance with appropriate authorizations of management or directors of DWM, (iii) that transactions
are recorded as necessary to permit preparation of financial statements in conformity with the DWM Accounting Principles and to maintain
accountability for assets, (iv) regarding prevention or timely detection of unauthorized acquisition, use or disposition of the
assets of the DWM Group Companies that could have a material effect on the financial statements and (v) that accounts, notes and
other receivables are recorded accurately. To DWM’s Knowledge, (x) there is no significant deficiency or “material weakness”
in the system of internal controls over financial reporting of the DWM Group Companies, (y) there is no fraud, whether or not material,
that involves DWM’s management or other employees or Affiliates who have a significant role in the preparation of financial statements
or the internal accounting controls utilized by DWM, and (z) there is no claim or allegation regarding any of the foregoing or any
whistleblower complaint or report whether regarding the foregoing or any other matter.
(c) There
are no outstanding loans or other extensions of credit made by the DWM Group Companies to any executive officer (as defined in Rule 3b-7
under the Exchange Act) or director of a DWM Group Company.
(d) The
Financial Requirement with respect to DWM will be satisfied.
4.8 No
Undisclosed Liabilities. The DWM Group Companies, in each case, have no Liabilities of a type required to be reflected or reserved
for on a balance sheet prepared in accordance with the DWM Accounting Principles, other than Liabilities: (a) set forth in or reserved
against or otherwise reflected in the DWM Financial Statements or in the notes thereto; (b) arising in the ordinary course of business
of the DWM Group Companies since the date of the most recent balance sheet included in the DWM Financial Statements and are not material
in amount; (c) incurred in connection with the Transactions; or (d) that are not, or would not reasonably be expected to be,
individually or in the aggregate, material to the DWM Group Companies taken as a whole. Other than disclosed in Schedule 4.8 of
the DWM Disclosure Letter, no DWM Group Company has any secured creditors holding a security interest.
4.9 Absence
of Certain Changes or Events. Except as contemplated by this Agreement or any other Transaction Agreements (including the DWM Asset
Restructuring and the DWM Capital Restructuring) or as disclosed on Schedule 4.9 of the DWM Disclosure Letter, since June 30,
2024 through the date of this Agreement, the business of the DWM Group Companies (assuming the completion of the DWM Asset Restructuring)
was conducted in the ordinary course of business in all material respects and there has not been: (a) any DWM Material Adverse Effect;
or (b) any action taken or agreed upon by any of the DWM Group Companies that would be prohibited by Sections 6.1(c),
6.1(l), and 6.1(o) (and to the extent related to the foregoing clauses, Section 6.1(q)), if such action
were taken on or after the date hereof without the consent of ICLK.
4.10 Litigation.
Except as disclosed on Schedule 4.10 of the DWM Disclosure Letter or otherwise would not, individually or in the aggregate, reasonably
be expected to be material to the DWM Group Companies, taken as a whole, there is: (a) no pending Legal Proceeding or, to the Knowledge
of DWM, threatened Legal Proceeding in writing, or to the Knowledge of DWM, any investigation, against any DWM Group Company or any of
its properties or assets, or any of the directors, managers or officers of any DWM Group Company with regard to their actions as such;
(b) other than with respect to audits, examinations or investigations in the ordinary course of business conducted by a Governmental
Entity, no pending or, to the Knowledge of DWM, threatened audit, examination or investigation by any Governmental Entity against any
DWM Group Company or any of its properties or assets, or any of the directors, managers or officers of any DWM Group Company with regard
to their actions as such and, to the Knowledge of DWM, no facts exist that would reasonably be expected to form the basis for any such
audit, examination or investigation; (c) no pending Legal Proceeding, or to the Knowledge of DWM, threatened Legal Proceeding in
writing, or to the Knowledge of DWM, investigation by any DWM Group Company against any third party; (d) no settlement or similar
agreement that imposes any material ongoing obligation or restriction on any DWM Group Company; and (e) no Order imposed or, to
the Knowledge of DWM, threatened in writing to be imposed upon any DWM Group Company or any of its respective properties or assets, or
any of the directors, managers or officers of any DWM Group Company with regard to their actions as such.
4.11 Employee
Benefit Plans.
(a) Schedule
4.11(a) of the DWM Disclosure Letter sets forth a true, correct and complete list of each DWM Employee Benefit Plan. Other than
the DWM Employee Benefit Plan, none of the DWM Group Companies has other plan that (i) provides for transaction, retention or change
in control payments or benefits or tax gross-ups, (ii) provides for equity or equity-based incentive compensation or (iii) is
a defined contribution benefit plan, defined benefit pension plan, nonqualified deferred compensation plan or retiree medical plan. With
respect to each DWM Employee Benefit Plan, DWM has made available to ICLK true, correct and complete copies of (or, to the extent no
such copy exists, a description of), in each case, to the extent applicable, (i) the current plan document and, to the extent available,
the summary plan description; (ii) the most recent audited financial statement; (iii) all material filings and correspondence
with any Governmental Entity; (iv) all related material insurance contracts which implement each such DWM Employee Benefit Plan
and (v) any documents with respect to any DWM Employee Benefit Plan that are required to be prepared or filed under the applicable
Legal Requirements.
(b) Except
as disclosed on Section 4.11(b) of the DWM Disclosure Letter, each DWM Employee Benefit Plan has been established, maintained,
operated and administered in all material respects in accordance with its terms and in compliance with the applicable provisions of all
applicable Legal Requirements.
(c) None
of the DWM Employee Benefit Plans provides for, and none of the DWM Group Companies has any liability in respect of, post-retiree
health, welfare or life insurance benefits or coverage for any participant or any beneficiary of a participant, except as may be required
pursuant to applicable Legal Requirements and at the sole expense of such participant or the participant’s beneficiary.
(d) With
respect to any DWM Employee Benefit Plan, no material actions, suits, claims (other than routine claims for benefits in the ordinary
course), audits, inquiries, proceedings or lawsuits are pending, or, to the Knowledge of DWM, threatened in writing against any DWM Employee
Benefit Plan, any trust related thereto or against any fiduciary thereof with respect thereto. No event has occurred, and to the Knowledge
of DWM, no condition exists that would, by reason of DWM’s affiliation with any of its Affiliates, subject DWM to any material
tax, fine, lien, penalty or other liability imposed by any applicable Legal Requirements.
(e) All
contributions, reserves or premium payments required to be made or accrued as of the date hereof to the DWM Employee Benefit Plans have
been timely made or accrued in accordance with DWM Accounting Principles in all material respects.
(f) Neither
the execution and delivery of this Agreement nor the consummation of the Transactions will, either alone or in connection with any other
event(s): (i) result in any payment or benefit becoming due to any current or former employee, contractor or director of DWM or
DWM Subsidiaries or under any DWM Employee Benefit Plan; (ii) increase any amount of compensation or benefits otherwise payable
to any current or former employee, individual independent contractor or director of DWM or DWM Subsidiaries or under any DWM Employee
Benefit Plan; (iii) result in the acceleration of the time of payment, funding or vesting of any benefits to any current or former
employee, contractor or director of DWM or DWM Subsidiaries or under any DWM Employee Benefit Plan; or (iv) limit the right to merge,
amend or terminate any DWM Employee Benefit Plan.
(g) Neither
the execution and delivery of this Agreement nor the consummation of the Transactions shall, either alone or in connection with any other
event(s) give rise to any “excess parachute payment” as defined in Section 280G(b)(1) of the Code, any excise
tax owing under Section 4999 of the Code or any other amount that would not be deductible under Section 280G of the Code.
(h) DWM
maintains no obligations to gross-up or reimburse any individual for any tax or related interest or penalties incurred by such individual.
4.12 Labor
Matters.
(a) Except
as disclosed on Schedule 4.12(a) of the DWM Disclosure Letter, no DWM Group Company is a party to or bound by any
labor agreement, collective bargaining agreement, works council agreement or other similar labor Contract applicable to current or former
employees of any DWM Group Company. Except as disclosed on Schedule 4.12(a) of the DWM Disclosure Letter, no employees of
the DWM Group Companies are represented by any labor union, labor organization, or works council with respect to their employment with
the DWM Group Companies. There are no representation proceedings or petitions seeking a representation proceeding presently pending or,
to the Knowledge of DWM, threatened in writing to be brought or filed, with the National Labor Relations Board or other labor relations
tribunal, nor has any such representation proceeding, petition, or demand been brought, filed, made, or, to the Knowledge of DWM, threatened
since the Reference Date. Since the Reference Date, there have been no labor organizing activities involving any DWM Group Company or
with respect to any employees of the DWM Group Companies or, to the Knowledge of DWM, threatened in writing by any labor organization,
work council or group of employees.
(b) Since
the Reference Date, except as disclosed on Schedule 4.12(b) of the DWM Disclosure Letter, there have been no strikes,
work stoppages, slowdowns, lockouts or arbitrations, material grievances, unfair labor practice charges or other material labor disputes
pending or, to the Knowledge of DWM, threatened in writing against or affecting the DWM Group Companies involving any employee or former
employee of, or other individual who provided services to, any DWM Group Company.
(c) To
the Knowledge of DWM, except as disclosed on Schedule 4.12(c) of the DWM Disclosure Letter, no officer of any DWM Group Company
has given written notice to any DWM Group Company of any intent to terminate his or her employment with such DWM Group Company in connection
with the consummation of the Transactions. The DWM Group Companies are in compliance and, to the Knowledge of DWM, each of their
employees and consultants are in compliance, with the terms of any employment, nondisclosure, restrictive covenant, and consulting agreements
between any DWM Group Company and such individuals, in each case except as would not be material to the DWM Group Companies taken as
a whole.
(d) The
Transactions contemplated by this Agreement will not require the consent of, or advance notification to, any works councils, unions or
similar labor organizations with respect to employees of the DWM Group Companies, except for where the failure to obtain such
consent to make any such advance notifications has not had and would not reasonably be expected to have, individually or in the aggregate,
a DWM Material Adverse Effect.
(e) To
the Knowledge of DWM, no written notice or written complaint from or on behalf of any current or former employee of, or other individual
who provided services to, any DWM Group Company has been received by any DWM Group Company since the Reference Date asserting
or alleging sexual harassment or sexual misconduct against any current or former officer or director of any DWM Group Company.
(f) Except
as disclosed on Schedule 4.12(f) of the DWM Disclosure Letter, since the Reference Date, there have been no material
complaints, charges, investigations, claims or other Legal Proceedings against the DWM Group Companies filed or pending or, to the Knowledge
of DWM, threatened in writing that would be brought or filed, with any Governmental Entity based on, arising out of, or in connection
with any labor and employment Legal Requirement, or employment practice of any DWM Group Company. Since the Reference Date, no DWM Group
Company has received any notice of intent by any Governmental Entity responsible for the enforcement of labor and employment laws to
conduct or initiate a material investigation, audit or Legal Proceeding relating to any employment or labor laws or employment practice
of any DWM Group Company. Each DWM Group Company is, and has been since the Reference Date, in material compliance with all applicable
Legal Requirements respecting employment and employment practices, including all applicable laws respecting terms and conditions of employment,
wages and hours, the Worker Adjustment and Retraining Notification Act, and any similar foreign, state or local “mass layoff”
or “plant closing” laws (collectively, the “WARN Act”), collective bargaining, immigration and work eligibility,
benefits, labor relations, harassment, discrimination, civil rights, pay equity, child labor, equal employment opportunity, safety and
health, and workers’ compensation.
(g) No
DWM Group Company is liable for any arrears of wages or penalties with respect thereto, except in each case as would not be material
to the DWM Group Companies taken as a whole. All amounts that the DWM Group Companies are legally required to withhold from their employees’
wages and to pay to any Governmental Entity as required by applicable Legal Requirements have been withheld and paid, and none of the
DWM Group Companies has any outstanding obligations to make any such withholding or payment, other than (i) with respect to an open
payroll period or (ii) as would not result in material liability to the DWM Group Companies, taken as whole.
(h) Except
as would not result in material liability to any DWM Group Company, each Person who has provided or is providing services to any DWM
Group Company and has been classified as an exempt employee, independent contractor, temporary employee, leased employee or seasonal
employee, as applicable, has been properly classified as such under all applicable Legal Requirements and pursuant to the terms of any
DWM Employee Benefit Plan. None of the DWM Group Companies has any material liability or obligation under any applicable Legal
Requirement or DWM Employee Benefit Plan arising out of improperly classifying such Person as an exempt employee, independent contractor,
temporary employee, leased employee or seasonal employee, as applicable, and no such Person is owed any wages, benefits or other compensation
for past services (other than wages, benefits and compensation accrued during the current pay period and any accrued pay or benefits
for services, which by their terms or under applicable Legal Requirements, are payable in the future).
4.13 Real
Property; Tangible Property.
(a) No
DWM Group Company currently owns any real property or has in the past three years owned any real property.
(b) Each
DWM Group Company has a valid, binding and enforceable leasehold interest under each of the real property leases to which it is a party
as of the date hereof as a lessee (the “DWM Leased Properties”), free and clear of all Liens (other than Permitted
Liens) and each of the leases, lease guarantees, agreements and documents related to any DWM Leased Properties to which it is a party
as of the date hereof, including all amendments, letter agreements, terminations and modifications thereof (collectively, the “DWM
Real Property Leases”), is in full force and effect as of the date hereof, except insofar as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by principles
governing the availability of equitable remedies. DWM has made available to ICLK true, correct and complete copies of all Material DWM
Real Property Leases (as defined below). No DWM Group Company is in breach of or default under any Material DWM Real Property Lease,
and, to the Knowledge of DWM, no event has occurred and no circumstance exists which, if not remedied, and whether with or without notice
or the passage of time or both, would result in such a default, except for such breaches or defaults as would not individually or in
the aggregate reasonably be expected to be material to the DWM Group Companies taken as a whole. The DWM Leased Properties are suitable
to allow the businesses of the DWM Group Companies to be operated as currently conducted in all material respects. To the Knowledge of
DWM, (i) there are no pending condemnation proceedings with respect to any of the DWM Leased Properties, and (ii) the current
use of the DWM Leased Properties does not violate any local planning, zoning or similar land use restrictions of any Governmental Entity
in any material respect. No DWM Group Company has received or given any written notice of any default or event that with notice or lapse
of time, or both, would constitute a breach or default by any DWM Group Company under any of the DWM Real Property Leases and, to the
Knowledge of DWM, no other party is in breach or default thereof, except for such breaches or defaults as would not, individually or
in the aggregate, reasonably be expected to be material to the DWM Group Companies, taken as a whole. As of the date of this Agreement,
to the Knowledge of DWM, no party to any DWM Real Property Lease has exercised any termination rights with respect thereto. Schedule
4.13(b) of the DWM Disclosure Letter contains a true and correct list of all Material DWM Real Property Leases. No Person other
than the DWM Group Companies has the right to use the DWM Leased Properties, except as subleased by the respective DWM Group Company
to a sub-lessee.
(c) Each
DWM Group Company has good and marketable title to, or a valid leasehold interest in or right to use, all of its tangible assets, free
and clear of all Liens other than: (i) Permitted Liens; (ii) the rights of lessors under any DWM Real Property Lease; and (iii) the
Liens specifically identified on the Schedule 4.13(c) of the DWM Disclosure Letter. The tangible assets of the DWM Group
Companies: (A) constitute all of the tangible assets that are currently being used for the operation of the businesses of the DWM
Group Companies as they are now conducted, and taken together, are adequate and sufficient for the operation of the businesses of the
DWM Group Companies as currently conducted; and (B) have been maintained in accordance with generally applicable accepted industry
practice, are in good operating condition and repair, ordinary wear and tear excepted, and are adequate and suitable for the uses to
which they are being put, in each case, in all material respects.
4.14 Taxes.
(a) All
income and other material Tax Returns required to be filed by or on behalf of each DWM Group Company have been duly and timely
filed with the appropriate Governmental Entity (taking into account any applicable extensions of time to file Tax Returns that were validly
granted or obtained) and all such Tax Returns are true, correct and complete in all material respects. All material amounts of Taxes
payable by each DWM Group Company (whether or not shown on any Tax Return) have been fully and timely paid.
(b) Each
DWM Group Company has (i) complied in all material respects with all applicable Legal Requirements related to the withholding and
remittance of all material amounts of Tax and timely withheld and paid all material amounts of Taxes required to have been withheld and
paid to the appropriate Governmental Entity; and (ii) complied in all material respects with all material reporting requirements
(including maintenance of required records with respect thereto) with respect to such payments.
(c) No
claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted or assessed by any Governmental
Entity against any DWM Group Company which has not been paid or resolved.
(d) No
material Tax audit or other examination of the any DWM Group Company by any Governmental Entity is presently in progress, nor are there
any request or threat for such an audit or other examination.
(e) There
are no Liens for Taxes (other than Permitted Liens) upon any of the assets of the DWM Group Companies.
(f) No
DWM Group Company has any liability for a material amount of unpaid Taxes which has not been accrued for or reserved on the DWM Unaudited
Financial Statements, other than any liability for unpaid Taxes that has been incurred since the end of the most recent fiscal year in
connection with the operation of the business of the DWM Group Companies in the ordinary course of business.
(g) No
DWM Group Company: (i) has any liability for the Taxes of another Person (other than any DWM Group Company or their predecessors)
as a result of being a member of a consolidated, combined, unitary or affiliated group filing for U.S. federal, state, local or non-U.S.
income Tax purposes or as a transferee or a successor or by Contract (other than pursuant to commercial agreements entered into in the
ordinary course of business and the principal purpose of which is not related to Taxes); (ii) is a party to or bound by any Tax
indemnity, Tax sharing or Tax allocation agreement (other than commercial agreements entered into in the ordinary course of business
and the principal purpose of which is not related to Taxes); or (iii) has ever been a member of a consolidated, combined, unitary
or affiliated group filing for U.S. federal, state, local, or non-U.S. income Tax purposes, other than a group whose members are all
DWM Group Companies (or their predecessors).
(h) No
DWM Group Company: (i) has consented to extend the time in which any material amount of Tax may be assessed or collected by any
Governmental Entity (other than ordinary course extensions of time to file Tax Returns), which extension is still in effect; or (ii) has
entered into or been a party to any “listed transaction” within the meaning of Section 6707A(c)(2) of the Code
(or any similar provision of state, local or non-U.S. Legal Requirements).
(i) No
DWM Group Company has, or has ever had, a permanent establishment in any country other than the country of its organization, or is, or
has ever been, subject to income Tax in a jurisdiction outside the country of its organization, in each case where it is required to
file a material income Tax Return and does not file such a Tax Return.
(j) No
DWM Group Company will be required to include any material item of income in, or exclude any material item or deduction from, taxable
income for any taxable period beginning after the Closing Date or, in the case of any taxable period beginning on or before and ending
after the Closing Date, the portion of such period beginning after the Closing Date, as a result of: (i) an installment sale or
open transaction disposition that occurred on or prior to the Closing Date other than in the ordinary course of business; (ii) any
change in method of accounting on or prior to the Closing Date; or (iii) any prepaid amount received or deferred revenue recognized
on or prior to the Closing Date, other than in respect of such amounts reflected in the balance sheets included in the DWM Financial
Statements, or received in the ordinary course of business since the date of the most recent balance sheet included in the DWM Financial
Statements.
(k) No
claim has been made by any Governmental Entity in a jurisdiction in which any DWM Group Company does not file Tax Returns that is or
may be subject to Tax by, or required to file Tax Returns in, that jurisdiction.
(l) To
the Knowledge of DWM, the DWM Asset Restructuring and DWM Capital Restructuring will not cause any material adverse Tax effect
to ICLK or any DWM Group Company.
4.15 Brokers;
Third Party Expenses. Except as disclosed in Schedule 4.15 of the DWM Disclosure Letter, none of the DWM Group Companies has
any liability for brokerage, finders’ fees, agent’s commissions or any similar charges in connection with this Agreement
or the Transactions on account of Contracts entered into by any DWM Group Company.
4.16 Intellectual
Property. Except as would not, individually or in the aggregate, be material to the DWM Group Companies, taken as a whole:
(a) Schedule
4.16(a)(a) of the DWM Disclosure Letter contains a true and complete list, as of the date of this Agreement, of all patented,
registered or applied-for Intellectual Property included in DWM Owned IP (collectively, the “DWM Registered IP”).
With respect to each item of DWM Registered IP, all necessary registration, maintenance and renewal fees have been paid, and all necessary
documents and certificates have been filed with United States Patent and Trademark Office or equivalent authority or registrar anywhere
in the world for the purposes of maintaining or renewing such DWM Registered IP and recording and perfecting any DWM Group Company’s
ownership therein.
(b) (i) The
DWM Group Companies solely and exclusively own all right, title, and interest in and to all material DWM Owned IP, including the
items of Intellectual Property set forth or required to be set forth in Schedule 4.16(a) of the DWM Disclosure Letter pursuant
to the first sentence of this Section 4.16(a), free and clear of all Liens (other than Permitted Liens); and (ii) the
DWM Group Companies own or have valid rights to use all other material Intellectual Property that is owned or used by the DWM Group Companies
to conduct the businesses of the DWM Group Companies as currently conducted.
(c) (i) Since
the Reference Date, neither the DWM Group Companies nor the conduct of their businesses have infringed, diluted, misappropriated, or
otherwise violated, and do not infringe, dilute, misappropriate or otherwise violate, the Intellectual Property of any third party in
any material respect; and (ii) there is no Legal Proceeding pending, or to the Knowledge of DWM, threatened in writing, and since
the Reference Date, none of the DWM Group Companies has received any written claims (including “cease and desist” letters
or invitations to license) (x) alleging the DWM Group Companies are infringing, misappropriating or otherwise violating any Intellectual
Property of any third party; or (y) contesting the use, ownership, registration, scope, validity or enforceability of any DWM Owned
IP.
(d) (i) Since
the Reference Date, to the Knowledge of DWM, no DWM Owned IP has been infringed, diluted, misappropriated or otherwise violated, or is
being infringed, diluted, misappropriated or otherwise violated by any third party; and (ii) there is no Legal Proceeding pending
or threatened in writing, and, since the Reference Date, none of the DWM Group Companies has made any written claims (including “cease
and desist” letters or invitations to license) (x) contesting the use, ownership, registration, scope, validity or enforceability
of any Intellectual Property of such Person or (y) alleging that the conduct of any Person is infringing, misappropriating or otherwise
violating any DWM Owned IP.
(e) All
DWM Registered IP is subsisting, and to the Knowledge of DWM, valid and enforceable.
(f) Each
current and former employee, consultant, and contractor of a DWM Group Company who has created or developed any material Intellectual
Property for or on behalf of the DWM Group Companies, or otherwise within the scope of their employment or engagement with the DWM Group
Companies (each such person, a “DWM Contributor”) have done so pursuant to an agreement that (i) if the DWM Contributor
had access to confidential information, ensures the protection of the confidential information of the DWM Group Companies and (ii) validly
assigns (pursuant to a present-tense assignment) to the DWM Group Companies all right, title and interest of such DWM Contributor in
all such Intellectual Property that does not vest initially in such entities by operation of law (each, a “DWM Contributor Agreement”).
(g) Since
the Reference Date, the DWM Group Companies have taken commercially reasonable steps to protect and maintain (including protecting the
confidentiality of) the Personal Information and material Trade Secrets in the possession or under the control of any DWM Group Company
(“DWM Data”).
(h) (i) Neither
any of the DWM Group Companies, nor any other Person acting on their behalf, has disclosed, delivered or licensed to any Person or agreed
or obligated itself to disclose, deliver or license to any Person, or permitted the disclosure or delivery to any escrow agent or other
Person of, the source code for any DWM Code, other than disclosures to DWM Contributors involved in the development of products or services
of the DWM Group Companies subject to confidentiality obligations to the DWM Group Companies with respect to such source code; and (ii) neither
the execution of this Agreement or any other Transaction Agreements nor the consummation of any of the Transactions will result in any
requirement that the DWM Group Companies deliver, license or disclose the source code of any DWM Code to any other Person (other than
an ICLK Group Company).
(i) None
of the DWM Group Companies has incorporated any Open Source Software in, or used any Open Source Software in connection with, any DWM
Code in a manner that (i) requires the disclosure or distribution of any DWM Code in source code form, (ii) requires the licensing
thereof for the purpose of making derivative works, or (iii) imposes any restriction on the consideration to be charged for the
licensing or distribution thereof. The DWM Group Companies are in material compliance with the terms and conditions of all relevant licenses
for Open Source Software used in the businesses of the DWM Group Companies.
4.17 Data
Privacy and Cybersecurity. Except as would not, individually or in the aggregate, be material to the DWM Group Companies, taken as
a whole:
(a) The
DWM Group Companies are, and since the Reference Date have been, in compliance in all material respects with all DWM Privacy Requirements
and all applicable Privacy Laws.
(b) (i) Since
the Reference Date, the DWM Group Companies have taken commercially reasonable measures to protect the integrity, continuous operation
and physical and electronic security of the DWM IT Systems (including DWM Data); (ii) the DWM IT Systems are functional, operate
in a reasonable manner, and are in sufficiently good working condition for the operation of the businesses of the DWM Group Companies;
(iii) the DWM IT Systems are free of any viruses, worms, Trojan horses, bugs, faults or other devices, errors, contaminants or code
that could materially disrupt or materially and adversely affect the functionality of the DWM IT Systems; and (iv) since the Reference
Date, there have been no material breaches, outages, misuses or intrusions of any DWM IT System, nor any loss, theft, compromise or damage
of, breach of security with respect to, or unauthorized access to, or rendering unavailable or inaccessible of any DWM Data Processed
by or on behalf of the Group Companies (collectively, “DWM Security Incidents”).
(c) The
DWM Group Companies (i) maintain commercially reasonable disaster recovery plans, procedures and facilities sufficient for their
businesses and (ii) have fully remediated all “high” or “critical”
and other material threats, risks and deficiencies identified in data security risk assessments, audits and penetration tests performed
since the Reference Date by or for the DWM Group Companies.
(d) There
are no Legal Proceedings, whether from a Governmental Entity or any other Person, pending (or, to the Knowledge of DWM, threatened in
writing) against, any DWM Group Company alleging a violation of any of the DWM Privacy Requirements.
4.18 Agreements,
Contracts and Commitments.
(a) Schedule
4.18(a) of the DWM Disclosure Letter sets forth a true, correct and complete list of each DWM Material Contract (as defined
below) that is in effect as of the date of this Agreement. For purposes of this Agreement, “DWM Material Contract”
of the DWM Group Companies shall mean each of the following Contracts to which a DWM Group Company is a party as of the date hereof:
(i) any
Contract or purchase commitment reasonably expected to result in future payments to or by any DWM Group Company in excess of $500,000
per annum (other than any Contract or purchase commitment with respect to transaction of Token that is reasonably expected to result
in future payments to or by any DWM Group Company of no more than $5,000,000);
(ii) any
Contract with the top 10 customers of the DWM Group Companies (the “DWM Material Customers”) as determined by the
scale of customers’ assets under management by the DWM Group Companies as of June 30, 2024;
(iii) any
Contract that purports to limit in any material respect (A) the localities in which the DWM Group Companies’ businesses
may be conducted, (B) any DWM Group Company from engaging in any line of business or (C) any DWM Group Company from developing,
marketing or selling products or services, including any non-compete agreements or agreements limiting the ability of any of the DWM
Group Companies from soliciting customers or employees;
(iv) any
Contract that is related to the governance or operation of any joint venture or partnership that has involved a sharing of revenues,
profits, cash flows, expenses or losses with any other party or a payment of royalties to any other party, other than such Contract solely
between or among any of the DWM Group Companies;
(v) any
Contract for or relating to any borrowing of money by or from any of the DWM Group Companies in excess of $1,000,000 (excluding, for
the avoidance of doubt, any Contract with respect to transaction of Token that involves payments to or by any DWM Group Company of no
more than $5,000,000 and any intercompany arrangements solely between or among any of the DWM Group Companies);
(vi) any
Contract (other than those made in the ordinary course of business): (A) providing for the grant of any rights of refusal,
rights of first negotiation, most-favored-nation or similar rights to purchase or lease any asset of the DWM Group Companies; or (B) providing
for any exclusive rights, rights of refusal, rights of first negotiation, most-favored-nation or similar rights to sell or distribute
any product or service of any of the DWM Group Companies;
(vii) any
obligation to register any DWM Shares or other securities of the DWM Group Companies with any Governmental Entity (other than ordinary
course requirements of foreign applicable Legal Requirements related to the recording with an applicable Governmental Entity of the ownership
of non-U.S. DWM Group Companies);
(viii) any
Contracts relating to the sale of any operating business of any DWM Group Company or the acquisition by any DWM Group Company of any
operating business, whether by merger, purchase or sale of stock or assets or otherwise, and for which any DWM Group Company has any
material outstanding obligations (other than customary non-disclosure and similar obligations incidental thereto and other than Contracts
for the purchase of inventory or supplies entered into in the ordinary course of business);
(ix) any
labor agreement, collective bargaining agreement, or any other labor-related agreements or arrangements with any labor union, labor organization,
or works council;
(x) any
Contract for the use by any of the DWM Group Companies of any tangible property where the annual lease payments are greater than $250,000
(other than any lease of vehicles, office equipment or operating equipment made in the ordinary course of business) (the “Material
DWM Real Property Leases”);
(xi) any
material Contract under which a DWM Group Company: (A) is granted a license, option, covenant not to sue, or any right to or under
any material Intellectual Property from any third party, other than Incidental Inbound Licenses or licenses for Open Source Software;
or (B) grants a license, option, covenant not to sue, or any right to or under any material DWM Owned IP to any third party, other
than non-exclusive licenses granted to contractors, suppliers, vendors, distributors or customers in the ordinary course of business
in object code form, for the use by such customers of the DWM Group Companies’ products or services or the provision of services
by such contractors, suppliers, vendors, or distributors to the DWM Group Companies;
(xii) any
Contract involving any resolution or settlement of any actual or threatened Legal Proceeding that is material to the DWM Group Companies
or their businesses or that imposes material non-monetary obligations on any DWM Group Company, including any material restriction on
the use, licensing or registration of any material Intellectual Property (including co-existence agreements);
(xiii) any
Contract relating to the development of material Intellectual Property by, with or for the DWM Group Companies (other than DWM
Contributor Agreements);
(xiv) any
obligation to make any material payments, contingent or otherwise, arising out of the prior acquisition of the business, assets or stock
of other Persons (other than any obligation under any Contract with respect to transaction of Token that involves payments to or by any
DWM Group Company of no more than $5,000,000); and
(xv) any
Contract with Token exchanges, brokers, suppliers or transaction counterparties and any other Person from whom the DWM Group Companies
source Tokens that involves payments to or by any DWM Group Company in excess of $5,000,000.
(b) Each
DWM Material Contract is in full force and effect and represents a legal, valid and binding obligation of the applicable DWM Group
Company party thereto and, to the Knowledge of DWM, represents a legal, valid and binding obligation of the counterparties thereto, except
insofar as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’
rights generally or by principles governing the availability of equitable remedies. Neither the applicable DWM Group Company nor, to
the Knowledge of DWM, any other party thereto, is in material breach of or in default under, and no event has occurred which with notice
or lapse of time or both would reasonably be expected to become a material breach of or default under, any DWM Material Contract, and
no party to any DWM Material Contract has given any written notice of any claim of any such breach, default or event, or any notice of
termination. True, correct and complete copies of all DWM Material Contracts have been made available to ICLK.
(c) Each
Contract to which WFTL is a party that, in accordance with the DWM Asset Restructuring Plan, shall be assigned to DWM or one or
more Subsidiaries of DWM (the “WFTL Assigned Contracts”) is in full force and effect and represents a legal, valid
and binding obligation of the applicable DWM Group Company party thereto and, to the Knowledge of DWM, represents a legal, valid and
binding obligation of the counterparties thereto, except insofar as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ rights generally or by principles governing the availability of
equitable remedies, and except as would not reasonably be expected to be material to the DWM Group Companies taken as a whole. Neither
the WFTL, the applicable DWM Group Company nor, to the Knowledge of DWM, any other party thereto, is in material breach of or in default
under, and no event has occurred which with notice or lapse of time or both would reasonably be expected to become a material breach
of or default under, any WFTL Assigned Contract, and no party to any WFTL Assigned Contract has given any written notice of any claim
of any such breach, default or event, or any notice of termination.
4.19 Insurance.
The DWM Group Companies maintain insurance policies or fidelity or surety bonds covering its assets, business, equipment, properties,
operations, employees, officers and directors (collectively, the “DWM Insurance Policies”) covering certain material
insurable risks in respect of its business and assets, and the DWM Insurance Policies are in full force and effect. The coverages provided
by such DWM Insurance Policies are usual and customary in amount and scope for the DWM Group Companies’ business and operations
as currently conducted, and sufficient to comply with any insurance required to be maintained by DWM Material Contracts. No written notice
of cancellation or termination has been received by any DWM Group Company with respect to any of the effective DWM Insurance Policies.
There is no pending material claim by any DWM Group Company against any insurance carrier under any of the existing DWM Insurance Policies
for which coverage has been denied or disputed by the applicable insurance carrier (other than a customary reservation of rights notice).
4.20 Interested
Party Transactions. (a) No officer or director of DWM or any of their respective immediate family members, or to the Knowledge
of DWM, any employee, officer, director or manager of the DWM Group Companies or any of their respective immediate family members, is
indebted to the DWM Group Companies for borrowed money, nor any of the DWM Group Companies indebted for borrowed money (or committed
to make loans or extend or guarantee credit) to any of such Persons, and (b) to the Knowledge of DWM, no officer, director, employee,
manager or holder of equity or derivative securities of the DWM Group Companies (each, a “DWM Insider”) or any member
of a DWM Insider’s immediate family is, directly or indirectly, a counterparty to (or controls a counterparty to) any DWM Material
Contract with the DWM Group Companies, in each case, other than: (i) for payment of salary, bonuses and other compensation for services
rendered; (ii) reimbursement for reasonable expenses incurred in connection with the DWM Group Companies; (iii) for other employee
benefits made generally available to similarly situated Persons; (iv) related to any such Person’s ownership of DWM Shares
or other securities of the DWM Group Companies or such Person’s employment or consulting arrangements with the DWM Group Companies;
or (v) conducted on an arm’s-length basis.
4.21 Information
Supplied. The information relating to the DWM Group Companies to be supplied by or on behalf of DWM for inclusion or incorporation
by reference in the Proxy Statement will not, on the date of filing thereof or the date that it is first mailed to the ICLK shareholders,
as applicable, or at the time of the Special Meeting or at the time of any amendment or supplement thereof, contain any untrue statement
of any material fact, or omit to state any material fact required to be stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they are made, not false or misleading at the time and in light of the circumstances under
which such statement is made. Notwithstanding the foregoing, no representation is made by DWM with respect to the information that has
been or will be supplied by ICLK or any of its Representatives for inclusion in the Proxy Statement or any projections or forecasts included
therein.
4.22 Anti-Bribery;
Anti-Corruption.
(a) Neither
the DWM Group Companies nor any of DWM Group Companies’ respective directors, officers or employees has, directly or indirectly,
in each case of (a) through (e), in violation of any Legal Requirement: (a) made, offered or promised to make or offer any
payment, loan or transfer of anything of value, including any reward, advantage or benefit of any kind, to or for the benefit of any
government official, candidate for public office, political party or political campaign, or any official of such party or campaign, for
the purpose of: (i) influencing any act or decision of such government official, candidate, party or campaign or any official of
such party or campaign; (ii) inducing such government official, candidate, party or campaign or any official of such party or campaign
to do or omit to do any act in violation of a lawful duty; (iii) obtaining or retaining business for or with any Person; (iv) expediting
or securing the performance of official acts of a routine nature; or (v) otherwise securing any improper advantage; (b) paid,
offered or agreed or promised to make or offer any bribe, payoff, influence payment, kickback, unlawful rebate or other similar unlawful
payment of any nature; (c) made, offered or agreed or promised to make or offer any unlawful contributions, gifts, entertainment
or other unlawful expenditures; (d) established or maintained any unlawful fund of corporate monies or other properties; (e) created
or caused the creation of any false or inaccurate books and records related to any of the foregoing; or (f) violated, conspired
to violate, or aided and abetted the violation of any applicable anti-money laundering Legal Requirements or any applicable anti-corruption
or anti-bribery Legal Requirements, including the Foreign Corrupt Practices Act of 1977, as amended, 15 U.S.C. §§78dd-1, et
seq. and the United Kingdom Bribery Act 2010 (collectively, the “Anti-Money Laundering and Anti-Corruption Laws”).
(b) Neither
the DWM Group Companies nor any of DWM Group Companies’ respective directors, officers or, to the Knowledge of DWM, any of the
DWM Group Companies’ respective employees (i) is or has been the subject of an undisclosed claim or allegation relating to
(A) any potential violation of any Anti-Money Laundering and Anti-Corruption Laws or (B) any potentially unlawful payment,
contribution, gift, bribe, rebate, payoff, influence payment, kickback or other payment or the provision of anything of value, directly
or indirectly, to an official, to any political party or official thereof or to any candidate for political office, or (ii) has
received any notice or other communication from, or made a voluntary disclosure to, any Governmental Entity regarding any actual, alleged
or potential violation of, or failure to comply with, any Anti-Money Laundering and Anti-Corruption Law. The DWM Group Companies have
established, implemented, and maintained policies, procedures, and a system or systems of internal controls reasonably designed to ensure
compliance with the Anti-Money Laundering and Anti-Corruption Laws.
4.23 International
Trade; Sanctions.
(a) Each
of the DWM Group Companies, the DWM Group Companies’ respective directors, officers and employees, and, to the Knowledge of DWM,
any other Persons acting on their behalf, in connection with the operation of the business of the DWM Group Companies, and in each case
in all material respects: (a) have been in compliance with all applicable Customs & International Trade Laws; (b) have
obtained all necessary Customs & International Trade Authorizations; (c) have not been the subject of any civil or criminal
fine, penalty, seizure, forfeiture, revocation of a Customs & International Trade Authorization, debarment or denial of future
Customs & International Trade Authorizations in connection with any actual or alleged violation of any applicable Customs &
International Trade Laws; and (d) have not received any actual or, to the Knowledge of DWM, threatened claims or requests for information
by a Governmental Entity regarding, and have not made any disclosures to any Governmental Entity with respect to, their compliance with
any applicable Customs & International Trade Laws. The DWM Group Companies have in place controls and systems reasonably designed
to promote compliance with applicable Customs & International Trade Laws.
(b) Neither
the DWM Group Companies nor any of the DWM Group Companies’ respective directors, officers or, to the Knowledge of DWM, any of
the DWM Group Companies’ respective employees or any other Persons acting on their behalf is or has been, a Sanctioned Person.
For the past five years, each of the DWM Group Companies and the DWM Group Companies’ respective directors, officers, employees
and Affiliates and, to the Knowledge of DWM, any other Persons acting on their behalf have, in connection with the operation of the business
of the DWM Group Companies, been in material compliance with all applicable Sanctions. For the past five years, the DWM Group Companies
and the DWM Group Companies’ respective directors, officers or, to the Knowledge of DWM, any of the DWM Group Companies’
respective employees have not, and are not, in connection with the operation of the business of the DWM Group Companies, engaged in any
business activities, transactions, or other dealings, directly or indirectly, with or for the benefit of any Sanctioned Person or Sanctioned
Country in violation of Sanctions. For the past five years, (i) no Governmental Entity has initiated any investigation, inquiry,
action or enforcement proceeding or has imposed any civil or criminal fine, penalty, seizure, forfeiture, revocation of an authorization,
debarment or denial of future authorizations against any of the DWM Group Companies or any of their respective directors, officers, or,
to the Knowledge of DWM, any of the DWM Group Companies’ respective employees, controlled Affiliates or any other Persons acting
on their behalf in connection with any actual or alleged violation of any applicable Sanctions, (ii) there have been no actual or,
to the Knowledge of DWM, threatened claims or requests for information by a Governmental Entity received by a DWM Group Company with
respect to compliance with applicable Sanctions and (iii) and no disclosures have been made to any Governmental Entity with respect
to any actual or potential noncompliance with applicable Sanctions. The DWM Group Companies have in place controls and systems reasonably
designed to ensure compliance with applicable Sanctions.
4.24 DWM
Asset Restructuring. As of the Closing, (a) the DWM Asset Restructuring will have been implemented in accordance with the DWM
Asset Restructuring Plan in all material respects and in compliance with all applicable Legal Requirements in all material respects,
and (b) all Approvals required to implement the DWM Asset Restructuring will have been obtained. As of the Closing, the DWM Group
Companies will hold all material Approvals, assets and rights necessary for the business of the DWM Group Companies (taking into account
the completion of the DWM Asset Restructuring). The transactions contemplated by the DWM Asset Restructuring does not (i) conflict
with or violate the Governing Documents of any DWM Group Company, WhaleFin HK or WFTL in any material respects; (ii) assuming that
the consents, approvals, orders, authorizations, registrations, filings, notices or permits referred to in the DWM Asset Restructuring
Plan are duly and timely obtained or made, conflict with or violate any Legal Requirements applicable to any DWM Group Company, WhaleFin
HK or WFTL in any material respects; or (iii) result in any breach of or constitute a default (with or without notice or lapse of
time, or both) under, or impair DWM’s, or any DWM Group Company’s rights or, in a manner adverse to any of the DWM Group
Companies, alter the rights or obligations of any third party under, or give to any third party any rights of consent, termination, amendment,
acceleration (including any forced repurchase or put right) or cancellation under, or result in the creation of a Lien (other than any
Permitted Lien) on any of the properties, rights or assets of any of the DWM Group Companies pursuant to, any DWM Material Contracts
or any of WFTL Assigned Contracts, in each case, in any material respects.
4.25 Disclaimer
of Other Warranties. DWM HEREBY ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND THE OTHER TRANSACTION AGREEMENTS,
NONE OF ICLK, MERGER SUB, ICLK GROUP COMPANIES NOR ANY OF THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES OR REPRESENTATIVES HAS MADE, IS
MAKING, OR SHALL BE DEEMED TO MAKE ANY REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY, TO DWM OR ITS
AFFILIATES OR REPRESENTATIVES OR ANY OTHER PERSON, WITH RESPECT TO ICLK, MERGER SUB, ICLK GROUP COMPANIES OR ANY OF THEIR RESPECTIVE
BUSINESSES, ASSETS OR PROPERTIES OF THE FOREGOING, OR OTHERWISE, INCLUDING ANY REPRESENTATION OR WARRANTY AS TO MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, FUTURE RESULTS, PROPOSED BUSINESSES OR FUTURE PLANS. WITHOUT LIMITING THE FOREGOING: (A) NONE
OF ICLK, MERGER SUB, ICLK GROUP COMPANIES NOR ANY OF THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES SHALL BE DEEMED TO MAKE ANY REPRESENTATION
OR WARRANTY OTHER THAN AS EXPRESSLY MADE BY ICLK OR MERGER SUB IN THIS AGREEMENT AND THE OTHER TRANSACTION AGREEMENTS; AND (B) NONE
OF ICLK, MERGER SUB NOR ANY OF THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES HAS MADE, IS MAKING OR SHALL BE DEEMED TO MAKE TO
DWM OR ITS AFFILIATES OR REPRESENTATIVES OR ANY OTHER PERSON ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO: (I) THE
INFORMATION DISTRIBUTED OR MADE AVAILABLE TO DWM OR ITS AFFILIATES OR REPRESENTATIVES OR SUCH OTHER PERSON BY OR ON BEHALF OF ICLK OR
MERGER SUB IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS; (II) ANY MANAGEMENT PRESENTATION, CONFIDENTIAL INFORMATION MEMORANDUM
OR SIMILAR DOCUMENT; OR (III) ANY FINANCIAL PROJECTION, FORECAST, ESTIMATE, BUDGET OR SIMILAR ITEM RELATING TO ICLK, MERGER SUB, ICLK
GROUP COMPANIES OR THE BUSINESS, ASSETS, LIABILITIES, PROPERTIES, FINANCIAL CONDITION, RESULTS OF OPERATIONS AND PROJECTED OPERATIONS
OF THE FOREGOING OTHER THAN EXPRESSLY SET FORTH IN THE TRANSACTION AGREEMENTS. DWM HEREBY ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY
PROMISE, REPRESENTATION OR WARRANTY THAT IS NOT EXPRESSLY SET FORTH IN THIS AGREEMENT AND THE OTHER TRANSACTION AGREEMENTS. DWM ACKNOWLEDGES
THAT IT HAS CONDUCTED, TO ITS SATISFACTION, AN INDEPENDENT INVESTIGATION AND VERIFICATION OF ICLK, MERGER SUB, ICLK GROUP COMPANIES
AND THE BUSINESS, ASSETS, LIABILITIES, PROPERTIES, FINANCIAL CONDITION, RESULTS OF OPERATIONS AND PROJECTED OPERATIONS OF THE FOREGOING,
AND IN MAKING ITS DETERMINATION TO PROCEED WITH THE TRANSACTIONS, DWM HAS RELIED ON THE RESULTS OF ITS OWN INDEPENDENT INVESTIGATION
AND VERIFICATION, IN ADDITION TO THE REPRESENTATIONS AND WARRANTIES OF ICLK OR MERGER SUB EXPRESSLY AND SPECIFICALLY SET FORTH IN
THIS AGREEMENT AND THE OTHER TRANSACTION AGREEMENTS. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS SECTION 4.25,
CLAIMS AGAINST ICLK, MERGER SUB AND ICLK GROUP COMPANIES OR ANY OTHER PERSON WILL NOT BE LIMITED IN ANY RESPECT IN THE EVENT OF FRAUD
IN THE MAKING OF THE REPRESENTATIONS AND WARRANTIES IN THIS AGREEMENT BY SUCH PERSON.
Article V
REPRESENTATIONS AND WARRANTIES OF ICLK AND MERGER SUB
Except as: (a) set forth in the letter dated
as of the date of this Agreement and delivered by ICLK to DWM in connection with the execution and delivery of this Agreement (the “ICLK
Disclosure Letter”); or (b) as disclosed in the ICLK SEC Reports filed or furnished with the SEC (and publicly available)
prior to the date of this Agreement (to the extent the qualifying nature of such disclosure is readily apparent from the content of such
ICLK SEC Reports), excluding disclosures referred to in “Forward-Looking Statements”, “Risk Factors” and any
other disclosures therein to the extent they are of a predictive or cautionary nature or related to forward-looking statements (it being
acknowledged that nothing disclosed in such ICLK SEC Reports will be deemed to modify or qualify the representations and warranties set
forth in the Fundamental Representations with respect to the ICLK Parties), each ICLK Party represents and warrants to the other Parties
hereto as of the date hereof and as of the Closing Date (or if a specific date is indicated in any such statement, as of such specified
date):
5.1 Organization
and Qualification.
(a) Each
ICLK Party is an exempted company duly incorporated, validly existing and in good standing under the applicable Legal Requirements of
the Cayman Islands.
(b) Each
ICLK Party has all requisite corporate power and authority to own, lease and operate its assets, rights and properties and to carry on
its business as it is now being conducted, except as would not be expected to be material to the ICLK Group Companies, taken as a whole.
(c) Each
ICLK Party is duly qualified to do business in each jurisdiction in which it is conducting its business, or the operation, ownership
or leasing of its properties makes such qualification necessary, other than in such jurisdictions where the failure to so qualify would
not, individually or in the aggregate, reasonably be expected to be material to the ICLK Group Companies, taken as a whole. Complete
and correct copies of the Governing Documents of each ICLK Party as currently in effect has been either disclosed in the ICLK SEC Reports
filed or furnished with the SEC or otherwise made available to DWM.
(d) Each
ICLK Party is not in violation of any of the provisions of its Governing Documents in any material respect.
5.2 ICLK
Subsidiaries.
(a) As
of the date hereof and as of the Closing Date, all ICLK Group Companies, together with their jurisdiction of incorporation or organization,
as applicable, are listed on Schedule 5.2(a) of the ICLK Disclosure Letter (the ICLK Group Companies other than ICLK, the
“ICLK Subsidiaries”). Except as otherwise disclosed on Schedule 5.2(a) of the ICLK Disclosure Letter,
as of the date hereof and as of the Closing Date, ICLK owns, directly or indirectly, all of the outstanding equity securities of
the ICLK Subsidiaries, free and clear of all Liens (other than Permitted Liens). Except for the ICLK Subsidiaries, ICLK does not
own, directly or indirectly, any ownership, equity, profits or voting interest in any Person or have any agreement or commitment to purchase
any such interest, and has not agreed and is not obligated to make nor is bound by any written, oral or other Contract, binding understanding,
option, warranty or undertaking of any nature, as of the date hereof or as may hereafter be in effect under which it may become obligated
to make, any future investment in or capital contribution to any other entity.
(b) Each
of ICLK Subsidiaries is duly incorporated, formed or organized, validly existing and in good standing (to the extent such concept exists
in the relevant jurisdiction) under the laws of its jurisdiction of incorporation, formation or organization. Each of the ICLK Subsidiaries
has the requisite corporate or equivalent power and authority to own, lease and operate its assets, rights and properties and to carry
on its business as it is now being conducted in all material respects. Each ICLK Subsidiary is duly qualified to do business in each
jurisdiction in which the conduct of its business, or the operation, ownership or leasing of its properties, makes such qualification
necessary, other than in such jurisdictions where the failure to so qualify or be in good standing would not, individually or in the
aggregate, reasonably be expected to be material to the ICLK Group Companies, taken as a whole. Complete and correct copies of
the Governing Documents of each ICLK Subsidiary, as amended and currently in effect, have been made available to DWM. No ICLK Subsidiary
is in violation of any of the provisions of its Governing Documents in any material respect.
(c) Except
as disclosed on Schedule 5.2(c) of the ICLK Disclosure Letter, all issued and outstanding shares of capital stock, limited
liability company interests and equity interests of each ICLK Subsidiary (i) have been duly authorized, validly issued, fully paid
and are non-assessable (in each case, to the extent that such concepts are applicable), (ii) are not subject to, nor have been issued
in violation of, any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right,
except as contemplated under this Agreement, and (iii) have been offered, sold and issued in compliance with applicable Legal Requirements
and the applicable ICLK Subsidiary’s respective Governing Documents.
(d) Except
as contemplated under this Agreement or as disclosed on Schedule 5.2(d) of the ICLK Disclosure Letter, there are no subscriptions,
options, warrants, equity securities, partnership interests or similar ownership interests, calls, rights (including preemptive rights),
commitments or agreements of any character to which any ICLK Subsidiary is a party or by which it is bound obligating such ICLK Subsidiary
to issue, deliver or sell, or cause to be issued, delivered or sold, or repurchase, redeem or otherwise acquire, or cause the repurchase,
redemption or acquisition of, any ownership interests of such ICLK Subsidiary or obligating such ICLK Subsidiary to grant, extend, accelerate
the vesting of or enter into any such subscription, option, warrant, equity security, call, right, commitment or agreement.
(e) All
issued and outstanding shares of Merger Sub are owned by ICLK, free and clear of all Liens (other than Permitted Liens). Merger Sub does
not have any assets, properties, liabilities or obligations of any kind other than those incident to its formation and this Agreement,
and does not now conduct and has never conducted any business. Merger Sub is an entity that has been formed solely for the purpose of
engaging in the Transactions contemplated herein. Merger Sub is Solvent.
5.3 Capitalization.
(a) Schedule
5.3(a) of the ICLK Disclosure Letter sets forth, as of the date hereof, (i) the authorized share capital of ICLK, (ii) the
number, class and series of ICLK Shares issued and outstanding, and (iii) a list of all holders of outstanding ICLK Equity
Awards (with the names of such holders redacted), including the number of ICLK Shares subject to each such ICLK Equity Award, the grant
date, and exercise price for such ICLK Equity Award, the extent to which such ICLK Equity Award is vested and exercisable and the date
on which such ICLK Equity Award expires. ICLK has provided or made available to DWM true and complete copies of (x) each of the
standard form of option award agreement, restricted share award agreement and restricted share unit award agreement and (y) any
option award agreements, restricted share award agreements and restricted share unit award agreements, as applicable, that materially
differ from such respective standard forms.
(b) Except
for currently outstanding ICLK Equity Awards which have been granted to employees, consultants or directors pursuant to the ICLK
Share Plans, or a reservation of ICLK Shares for direct issuances or purchase upon exercise of ICLK Equity Awards under the ICLK Share
Plans, each as disclosed on Schedule 5.3(b) of the ICLK Disclosure Letter, (i) no subscription, warrant, option, convertible
or exchangeable security, or other right (contingent or otherwise) to purchase or otherwise acquire equity securities of ICLK is authorized
or outstanding, and (ii) there is no commitment by ICLK to issue shares, subscriptions, warrants, options, convertible or exchangeable
securities, or other similar equity rights, to distribute to holders of their respective equity securities any evidence of indebtedness,
to repurchase or redeem any securities of ICLK or to grant, extend, accelerate the vesting of, change the price of, or otherwise amend
any warrant, option, convertible or exchangeable security. There are no declared or accrued unpaid dividends with respect to any ICLK
Shares.
(c) All
issued and outstanding ICLK Shares are, and all ICLK Shares which may be issued pursuant to the exercise of ICLK Equity Awards,
when issued in accordance with the terms of the ICLK Equity Awards, will be, (i) duly authorized, validly issued, fully paid and
non-assessable and (ii) not subject to or issued in violation of any preemptive rights created by the Cayman Companies Act, ICLK’s
Governing Documents or any agreement to which ICLK is a party. All issued and outstanding ICLK Shares and ICLK Equity Awards were issued
in compliance with applicable Legal Requirements.
(d) No
outstanding ICLK Shares are subject to vesting or forfeiture rights or repurchase by an ICLK Group Company, except as provided for under
the Cayman Companies Act subject to the provisions thereunder. There are no outstanding or authorized stock appreciation, dividend equivalent,
phantom stock, profit participation or other similar rights issued by any ICLK Group Company.
(e) All
distributions, dividends, repurchases and redemptions in respect of the share capital (or other equity interests) of ICLK were undertaken
in compliance with its Governing Documents then in effect, any agreement to which ICLK then was a party and in compliance with applicable
Legal Requirements.
(f) Except
as disclosed on Schedule 5.3(f) of the ICLK Disclosure Letter, there are no contracts, agreements or understandings between ICLK
and any person granting such person the right to require ICLK to file a registration statement under the Securities Act with respect
to any securities of ICLK owned or to be owned by such person or to require ICLK to include such securities in any securities being registered
pursuant to any registration statement filed by ICLK under the Securities Act. Except for the ICLK Voting Agreement, there is
no voting trust, proxy, rights plan, anti-takeover plan or other similar agreements or understandings, to which any ICLK Group Company
is a party or by which any ICLK Group Company is bound with respect to any ownership interests of the applicable ICLK Group Company.
(g) Except
as provided for in this Agreement, as a result of the consummation of the Transactions, no shares of capital stock, warrants, options
or other securities of any ICLK Group Company are issuable and no rights in connection with any shares, warrants, options or other securities
of any ICLK Group Company accelerate or otherwise become triggered (whether as to vesting, exercisability, convertibility or otherwise).
(h) As
of the Closing Date, the New Ordinary Shares issued as the Merger Consideration will be duly authorized, validly issued, fully paid and
nonassessable and not subject to or issued in violation of any purchase option, right of first refusal, preemptive right, subscription
right or any similar right under any Legal Requirements, ICLK’s Governing Documents or any Contract to which ICLK is a party
or by which ICLK is bound.
5.4 Authority
Relative to this Agreement. Subject to the receipt of the ICLK Shareholder Approval, each ICLK Party has the requisite power and
authority to: (a) execute, deliver and perform this Agreement and the other Transaction Agreements to which it is a party, and each
ancillary document that it has executed or delivered or is to execute or deliver pursuant to this Agreement; and (b) carry out its
obligations hereunder and thereunder and to consummate the applicable Transactions (including the Merger). The execution and delivery
by each ICLK Party of this Agreement and the other Transaction Agreements to which it is a party, and, following the receipt of the ICLK
Shareholder Approval, the consummation by each ICLK Party of the applicable Transactions (including the Merger) have been or will be
as of the Closing Date duly and validly authorized by all requisite actions on the part of such ICLK Party and its Affiliates, and no
other proceedings on the part of such Person are necessary to authorize this Agreement or the other Transaction Agreements to which such
ICLK Party or any of its Affiliates is a party or to consummate the transactions contemplated hereby and thereby. This Agreement and
the other Transaction Agreements to which an ICLK Party or any of its Affiliates is a party have been duly and validly executed and delivered
by such ICLK Party or such Affiliate, as applicable, and, assuming the due authorization, execution and delivery hereof and thereof by
the other parties hereto and thereto, constitute the legal and binding obligations of such ICLK Party or such Affiliate, enforceable
against such ICLK Party or such Affiliate, as applicable, in accordance with their terms, except insofar as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by principles
governing the availability of equitable remedies.
5.5 No
Conflict; Required Filings and Consents.
(a) Assuming
receipt of the ICLK Shareholder Approval, neither the execution, delivery nor performance by any ICLK Party of this Agreement or the
other Transaction Agreements to which it is a party, nor the consummation of the Transactions, will: (i) conflict with or violate
such ICLK Party’s Governing Documents; (ii) assuming that the consents, approvals, orders, authorizations, registrations,
filings, notices or permits referred to in Section 5.5(b) are duly and timely obtained or made, conflict with or violate
any applicable Legal Requirements applicable to such ICLK Party; or (iii) except as disclosed on Schedule 5.5(a) of
the ICLK Disclosure Letter, result in any breach of or constitute a default (with or without notice or lapse of time or both) under,
or impair such ICLK Party’s or any ICLK Group Company’s rights or, in a manner adverse to any of the ICLK Group Companies,
alter the rights or obligations of any third party under, or give to any third party any rights of consent, termination, amendment, acceleration
(including any forced repurchase or put right) or cancellation of, or result in the creation of a Lien (other than any Permitted Lien)
on any of the properties, rights or assets of any of the ICLK Group Companies pursuant to, any ICLK Material Contracts, except, with
respect to clauses (ii) and (iii), as would not, individually or in the aggregate, reasonably be expected to be material to
the ICLK Group Companies, taken as a whole.
(b) No
notices, reports or other filings are required to be made by any ICLK Group Company with, nor are any consents, registrations, approvals,
permits or authorizations required to be obtained by any DWM Group Company from, any Governmental Entity in connection with the execution
and delivery by each ICLK Party of this Agreement and the other Transaction Agreements to which it is a party, except for: (i) the
filing of the Plan of Merger in accordance with the Cayman Companies Act; (ii) applicable requirements, if any, of the Securities
Act, the Exchange Act or blue sky laws, and the rules and regulations thereunder, and appropriate securities law related documents
received from or filed with the relevant authorities of other jurisdictions in which any ICLK Group Company is licensed or qualified
to do business; (iii) the submission and approval of Listing Application to and by Nasdaq; (iv) the consents, approvals,
authorizations and permits described on Schedule 5.5(b) of the ICLK Disclosure Letter (the “ICLK Required Regulatory
Approvals”); and (vii) where the failure to obtain such consents, approvals, authorizations or permits, or to make such
filings or notifications, would not, individually or in the aggregate, reasonably be expected to be material to the ICLK Group Companies,
taken as a whole, or reasonably be expected to prevent or materially delay or impair the consummation of the Transactions or the ability
of such ICLK Party to perform its obligations under this Agreement or the other Transaction Agreements.
5.6 Compliance;
Approvals.
(a) Each
of the ICLK Group Companies complied with and is not in violation of any applicable Legal Requirements with respect to the conduct of
its business, or the ownership or operation of its business, except for failures to comply or violations which, individually or in the
aggregate, have not been and are not reasonably likely to be material to the ICLK Group Companies, taken as a whole. Except as disclosed
on Schedule 5.6 of ICLK Disclosure Letter, no written or, to the Knowledge of ICLK, oral notice, of non-compliance with any applicable
Legal Requirements has been received by any ICLK Group Company. Each ICLK Group Company is in possession of all Approvals necessary to
own, lease and operate the properties it purports to own, operate or lease and to carry on its business as it is now being conducted,
in all material respects. Each Approval held by each ICLK Group Company is valid, binding and in full force and effect in all material
respects. None of the ICLK Group Companies: (i) is in default or violation (and no event has occurred that, with notice or the lapse
of time or both, would constitute a default or violation) of any term, condition or provision of any such Approval; or (ii) has
received any notice from a Governmental Entity that has issued any such Approval that it intends to cancel, terminate, modify or not
renew any such Approval, except in the case of clauses (i) and (ii) as would not individually or in the aggregate, reasonably
be expected to be material to the ICLK Group Companies, taken as a whole.
5.7 ICLK
SEC Reports and Financial Statements.
(a) Except
as disclosed on Schedule 5.7(a) of the ICLK Disclosure Letter, ICLK has timely (including following any extensions
of time for filing provided by Rule 12b-25 promulgated under the Exchange Act) filed or furnished all forms, reports, schedules,
statements and other documents together with any amendments, restatements or supplements thereto required to be filed or furnished by
ICLK with the SEC under the Exchange Act or the Securities Act since the Reference Date to the date of this Agreement, (all of the foregoing
filed prior to the date of this Agreement, the “ICLK SEC Reports”), and will have timely filed all such forms, reports,
schedules, statements and other documents required to be filed subsequent to the date of this Agreement through the Closing Date (the
“Additional ICLK SEC Reports”). With respect to all agreements, documents and other instruments that previously had
been filed by ICLK with the SEC, to the extent there is any amendment and modification thereto currently in effect which has not been
filed or furnished by ICLK with the SEC, ICLK has heretofore furnished to DWM true and complete copies of such amendments and modifications.
As of their respective filing dates and except to the extent corrected by a subsequent ICLK SEC Report, (i) the ICLK SEC Reports
did not, and the Additional ICLK SEC Reports will not, contain, when filed or furnished, any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances
under which they were made, not misleading, and (ii) ICLK SEC Reports complied, and the Additional ICLK SEC Reports will comply,
in all material respects with the applicable requirements of the Exchange Act or the Securities Act, as the case may be, the Sarbanes-Oxley
Act and the applicable rules and regulations thereunder. All certifications and statements required by the Securities Act, the Exchange
Act or the Sarbanes-Oxley Act (as the case may be) with respect to the ICLK SEC Reports and the Additional ICLK SEC Reports are each
true and correct in all material respects.
(b) ICLK
maintains disclosure controls and procedures required by Rule 13a-15(e) or 15d-15(e) under the Exchange Act, which controls
and procedures are designed to provide reasonable assurance that all material information concerning ICLK required to be disclosed
by ICLK in the reports that it files or submits under the Exchange Act is made known to ICLK’s principal executive officer and
its principal financial officer, as appropriate, to allow timely decisions regarding required disclosure. As of the date hereof, (i) there
are no outstanding comments from the SEC with respect to the ICLK SEC Reports and (ii) to the Knowledge of ICLK, none of the ICLK
SEC Reports filed on or prior to the date of this Agreement is subject to any ongoing SEC investigation or review. ICLK is in compliance
in all material respects with the applicable listing and corporate governance rules and regulations of Nasdaq.
(c) The
financial statements and notes of ICLK contained or incorporated by reference in the ICLK SEC Reports (such financial statements contained
in the ICLK SEC Reports filed with the SEC as of the date hereof, the “ICLK Financial Statements”) fairly present,
and the financial statements and notes of ICLK to be contained in or to be incorporated by reference in the Additional ICLK SEC Reports
will fairly present, in all material respects the financial condition and the results of operations, changes in shareholders’ equity
and cash flows of ICLK as at the respective dates of, and for the periods referred to in, such financial statements, subject, in the
case of interim financial statements, to normal recurring year-end adjustments (the effect of which will not, individually or in the
aggregate, be material to the ICLK Group Companies, taken as a whole) and the absence of footnotes, and (i) (as of the date hereof)
were prepared and (as of the Closing Date) will be prepared in accordance with: (x) the ICLK Accounting Principles applied
on a consistent basis during the periods involved; and (y) Regulation S-X or Regulation S-K, as applicable, subject, in the case
of interim financial statements, to normal recurring year-end adjustments (the effect of which will not, individually or in the aggregate,
be material to the ICLK Group Companies, taken as a whole) and the absence of footnotes, (ii) were prepared from the books and records
of the ICLK Group Companies; and (iii) were prepared in good faith based upon reasonable assumptions made by ICLK on a basis consistent
with the basis employed in such books and records for the relevant periods. ICLK has no off-balance sheet arrangements that are not disclosed
in the ICLK SEC Reports.
(d) ICLK
has established and maintained a system of internal controls over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) of
the Exchange Act) that comply with the requirements of the Exchange Act. Such internal controls are sufficient to provide reasonable
assurances (i) regarding the reliability of financial reporting and the preparation of financial statements for external purposes
in accordance with the ICLK Accounting Principles, (ii) that transactions, receipts and expenditures of the ICLK Group Companies
are being executed and made only in accordance with appropriate authorizations of management and directors of ICLK, (iii) that transactions
are recorded as necessary to permit preparation of financial statements in conformity with the ICLK Accounting Principles and to maintain
accountability for assets, (iv) regarding prevention or timely detection of unauthorized acquisition, use or disposition of the
assets of the ICLK Group Companies that could have a material effect on the financial statements, and (v) that accounts, notes and
other receivables are recorded accurately. Except as disclosed in Schedule 5.7(d) of ICLK Disclosure Letter, to the Knowledge
of ICLK, there is no (A) significant deficiency or material weakness in the system of internal controls over financial reporting
of the ICLK Group Companies, (B) fraud, whether or not material, that involves ICLK’s management or other employees or Affiliates
who have a significant role in the preparation of financial statements or the internal accounting controls utilized by ICLK, or (C) claim
or allegation regarding any of the foregoing or any whistleblower complaint or report whether regarding the foregoing or any other matter.
There are no outstanding loans or other extensions of credit made by the ICLK Group Companies to any executive officer (as defined in
Rule 3b-7 under the Exchange Act) or director of an ICLK Group Company.
(e) The
ICLK Group Companies have no Liabilities of the type required to be reflected or reserved for on a balance sheet prepared in accordance
with the ICLK Accounting Principles, other than Liabilities (i) set forth in or reserved against or otherwise reflected in
the ICLK Financial Statements or in the notes thereto, (ii) arising in the ordinary course of business of the ICLK Group Companies
since the date of the most recent balance sheet included in the ICLK Financial Statements and are not material in amount, (iii) incurred
in connection with the Transactions, or (iv) that are not, or would not reasonably be expected to be, individually or in the aggregate,
material to the ICLK Group Companies taken as a whole. Other than disclosed in Schedule 5.7(e) of the ICLK Disclosure Letter,
no ICLK Group Company has any secured creditors holding a security interest.
(f) The
Financial Requirement with respect to ICLK will be satisfied.
5.8 Absence
of Certain Changes or Events. Except as set forth in ICLK SEC Reports filed prior to the date of this Agreement, and except as contemplated
by this Agreement and other Transaction Agreements or disclosed in Schedule 5.8 of ICLK Disclosure Letter, since December 31,
2023 through the date of this Agreement, (a) there has not been any ICLK Material Adverse Effect; (b) there has not been any
action taken or agreed upon by the ICLK Group Companies that would be prohibited by Sections 6.2(c), 6.2(l),
and 6.2(o) (and to the extent related to the foregoing clauses, Section 6.2(r)), if such action were taken
on or after the date hereof without the consent of DWM; and (c) each of the ICLK Group Companies has conducted its business in the
ordinary course of business in all material respects.
5.9 Litigation.
Except as disclosed on Schedule 5.9 of ICLK Disclosure Letter or otherwise would not, individually or in the aggregate, reasonably
be expected to be material to the ICLK Group Companies, taken as a whole, there is: (a) no pending Legal Proceeding or, to the Knowledge
of ICLK, threatened Legal Proceeding in writing, or to the Knowledge of ICLK, any investigation, against any ICLK Group Company or any
of its properties or assets, or any of the directors, managers or officers of any ICLK Group Company with regard to their actions as
such; (b) other than with respect to audits, examinations or investigations in the ordinary course of business conducted by a Governmental
Entity, no pending or, to the Knowledge of ICLK, threatened audit, examination or investigation by any Governmental Entity against any
ICLK Group Company or any of its properties or assets, or any of the directors, managers or officers of any ICLK Group Company with regard
to their actions as such, and, to the Knowledge of ICLK, no facts exist that would reasonably be expected to form the basis for any such
audit, examination or investigation; (c) no pending Legal Proceeding or, to the Knowledge of ICLK, threatened Legal Proceeding in
writing, or, to the Knowledge of ICLK, investigation, by any ICLK Group Company against any third party; (d) no settlement or similar
agreement that imposes any material ongoing obligation or restriction on any ICLK Group Company; and (e) no Order imposed or, to
the Knowledge of ICLK, threatened in writing to be imposed upon any ICLK Group Company or any of its respective properties or assets,
or any of the directors, managers or officers of any ICLK Group Company with regard to their actions as such.
5.10 Employee
Benefit Plans.
(a) Schedule
5.10(a) of the ICLK Disclosure Letter sets forth a true, correct and complete list of each ICLK Employee Benefit Plan. Other
than the ICLK Share Plans, none of the ICLK Group Companies has other plan that (i) provides for transaction, retention or change
in control payments or benefits or tax gross-ups, (ii) provides for equity or equity-based incentive compensation or (iii) is
a defined contribution benefit plan, defined benefit pension plan, nonqualified deferred compensation plan or retiree medical plan. With
respect to each ICLK Employee Benefit Plan, ICLK has made available to DWM true, correct and complete copies of (or, to the extent
no such copy exists, a description of), in each case, to the extent applicable, (i) the current plan document and, to the extent
available, the summary plan description; (ii) the most recent audited financial statement; (iii) all material filings and correspondence
with any Governmental Entity; (iv) all related material insurance contracts which implement each such ICLK Employee Benefit Plan
and (v) any documents with respect to any ICLK Employee Benefit Plan that are required to be prepared or filed under the applicable
Legal Requirements.
(b) Except
as disclosed on Section 5.10(b) of the ICLK Disclosure Letter, each ICLK Employee Benefit Plan has been established,
maintained, operated and administered in all material respects in accordance with its terms and in compliance with the applicable provisions
of all applicable Legal Requirements.
(c) None
of the ICLK Employee Benefit Plans provides for, and the ICLK Group Companies have no liability in respect of, post-retiree health, welfare
or life insurance benefits or coverage for any participant or any beneficiary of a participant, except as may be required pursuant to
applicable Legal Requirements and at the sole expense of such participant or the participant’s beneficiary.
(d) With
respect to any ICLK Employee Benefit Plan, no material actions, suits, claims (other than routine claims for benefits in the ordinary
course), audits, inquiries, proceedings or lawsuits are pending, or, to the Knowledge of ICLK, threatened in writing against any ICLK
Employee Benefit Plan, any trust related thereto or against any fiduciary thereof with respect thereto. No event has occurred, and to
the Knowledge of ICLK, no condition exists that would, by reason of ICLK’s affiliation with any of its Affiliates, subject ICLK
to any material tax, fine, lien, penalty or other liability imposed by any applicable Legal Requirements.
(e) All
contributions, reserves or premium payments required to be made or accrued as of the date hereof to the ICLK Employee Benefit Plans have
been timely made or accrued in accordance with ICLK Accounting Principles in all material respects.
(f) Neither
the execution and delivery of this Agreement nor the consummation of the Transactions will, either alone or in connection with any other
event(s): (i) result in any payment or benefit becoming due to any current or former employee, contractor or director of ICLK or
ICLK Subsidiaries or under any ICLK Employee Benefit Plans; (ii) increase any amount of compensation or benefits otherwise payable
to any current or former employee, individual independent contractor or director of ICLK or ICLK Subsidiaries or under any ICLK Employee
Benefit Plans; (iii) result in the acceleration of the time of payment, funding or vesting of any benefits to any current or former
employee, contractor or director of ICLK or ICLK Subsidiaries or under any ICLK Employee Benefit Plan; or (iv) limit the right to
merge, amend or terminate any ICLK Employee Benefit Plans except as provided under Section 3.2.
(g) Neither
the execution and delivery of this Agreement nor the consummation of the Transactions shall, either alone or in connection with any other
event(s) give rise to any “excess parachute payment” as defined in Section 280G(b)(1) of the Code, any excise
tax owing under Section 4999 of the Code or any other amount that would not be deductible under Section 280G of the Code.
(h) ICLK
maintains no obligations to gross-up or reimburse any individual for any tax or related interest or penalties incurred by such individual.
(i) Neither
ICLK nor any of the ICLK Subsidiaries have, or could reasonably be expected to have, any Liability under any United States law with respect
to current or former individual service providers and employees. No ICLK Employee Benefit Plans, ICLK Share Plans or any other plans,
policies or arrangements under which ICLK would have Liabilities, including joint and several liability and affiliate liability, are
subject to the laws of the United States.
5.11 Labor
Matters.
(a) Except
as disclosed on Section 5.11(a) of the ICLK Disclosure Letter, no ICLK Group Company is a party to or bound by any labor
agreement, collective bargaining agreement, works council agreement or other similar labor Contract applicable to current or former employees
of any ICLK Group Company. No employees of the ICLK Group Companies are represented by any labor union, labor organization, or works
council with respect to their employment with the ICLK Group Companies. There are no representation proceedings or petitions seeking
a representation proceeding presently pending or, to the Knowledge of ICLK, threatened in writing to be brought or filed, with the National
Labor Relations Board or other labor relations tribunal, nor has any such representation proceeding, petition, or demand been brought,
filed, made, or, to the Knowledge of ICLK, threatened since the Reference Date. Since the Reference Date, there have been no labor organizing
activities involving any ICLK Group Company or with respect to any employees of the ICLK Group Companies or, to the Knowledge of ICLK,
threatened in writing by any labor organization, work council or group of employees.
(b) Since
the Reference Date, there have been no strikes, work stoppages, slowdowns, lockouts or arbitrations, material grievances, unfair labor
practice charges or other material labor disputes pending or, to the Knowledge of ICLK, threatened in writing against or affecting the
ICLK Group Companies involving any employee or former employee of, or other individual who provided services to, any ICLK Group Company.
(c) To
the Knowledge of ICLK, no officer of any ICLK Group Company has given written notice to any ICLK Group Company of any intent to terminate
his or her employment with such ICLK Group Company in connection with the consummation of the Transactions. The ICLK Group Companies
are in compliance and, to the Knowledge of ICLK, each of their employees and consultants are in compliance, with the terms of any employment,
nondisclosure, restrictive covenant, and consulting agreements between any ICLK Group Company and such individuals, in each case except
as would not be material to the ICLK Group Companies taken as a whole.
(d) The
Transactions contemplated by this Agreement will not require the consent of, or advance notification to, any works councils, unions or
similar labor organizations with respect to employees of the ICLK Group Companies, except for where the failure to obtain such consent
to make any such advance notifications has not had and would not reasonably be expected to have, individually or in the aggregate, an
ICLK Material Adverse Effect.
(e) To
the Knowledge of ICLK, no written notice or written complaint from or on behalf of any current or former employee of, or other individual
who provided services to, any ICLK Group Company has been received by any ICLK Group Company since the Reference Date asserting or alleging
sexual harassment or sexual misconduct against any current or former officer or director of any ICLK Group Company.
(f) Except
as disclosed on Schedule 5.11(f) of the ICLK Disclosure Letter, since the Reference Date, there have been no material complaints,
charges, investigations, claims or other Legal Proceedings against the ICLK Group Companies filed or pending or, to the Knowledge of
ICLK, threatened that would be brought or filed, with any Governmental Entity based on, arising out of, or in connection with any labor
and employment Legal Requirement, or employment practice of any ICLK Group Company. Since the Reference Date, no ICLK Group Company has
received any notice of intent by any Governmental Entity responsible for the enforcement of labor and employment laws to conduct or initiate
a material investigation, audit or Legal Proceeding relating to any employment or labor laws or employment practice of any ICLK Group
Company. Each ICLK Group Company is, and has been since the Reference Date, in material compliance with all applicable Legal Requirements
respecting employment and employment practices, including, to the extent applicable, all laws respecting terms and conditions of employment,
wages and hours, the WARN Act, collective bargaining, immigration and work eligibility, benefits, labor relations, harassment, discrimination,
civil rights, pay equity, child labor, equal employment opportunity, safety and health and workers’ compensation.
(g) No
ICLK Group Company is liable for any arrears of wages or penalties with respect thereto, except in each case as would not be material
to the ICLK Group Companies taken as a whole. All amounts that the ICLK Group Companies are legally required to withhold from their employees’
wages and to pay to any Governmental Entity as required by applicable Legal Requirements have been withheld and paid, and the ICLK Group
Companies do not have any outstanding obligations to make any such withholding or payment, other than (i) with respect to an open
payroll period or (ii) as would not result in material liability to the ICLK Group Companies, taken as whole.
(h) Except
as would not result in material liability to any ICLK Group Company, each Person who has provided or is providing services to any ICLK
Group Company and has been classified as an exempt employee, independent contractor, temporary employee, leased employee or seasonal
employee, as applicable, has been properly classified as such under all applicable Legal Requirements and pursuant to the terms of any
ICLK Employee Benefit Plan. None of the ICLK Group Companies has any material liability or obligation under any applicable Legal Requirement
or ICLK Employee Benefit Plan arising out of improperly classifying such Person as an exempt employee, independent contractor, temporary
employee, leased employee or seasonal employee, as applicable, and no such Person is owed any wages, benefits or other compensation for
past services (other than wages, benefits and compensation accrued during the current pay period and any accrued pay or benefits for
services, which by their terms or under applicable Legal Requirements, are payable in the future).
5.12 Real
Properties; Tangible Property.
(a) No
ICLK Group Company currently owns any real property or has in the past three years owned any real property.
(b) Each
ICLK Group Company has a valid, binding and enforceable leasehold interest under each of the real property leases to which it is a party
as of the date hereof as a lessee (the “ICLK Leased Properties”), free and clear of all Liens (other than Permitted
Liens) and each of the leases, lease guarantees, agreements and documents related to any ICLK Leased Properties to which it is a party
as of the date hereof, including all amendments, letter agreements, terminations and modifications thereof (collectively, the “ICLK
Real Property Leases”), is in full force and effect as of the date hereof, except insofar as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by principles
governing the availability of equitable remedies. ICLK has made available to DWM true, correct and complete copies of all Material
ICLK Real Property Leases (as defined below). No ICLK Group Company is in breach of or default under any Material ICLK Real Property
Lease, and, to the Knowledge of ICLK, no event has occurred and no circumstance exists which, if not remedied, and whether with or without
notice or the passage of time or both, would result in such a default, except for such breaches or defaults as would not individually
or in the aggregate reasonably be expected to be material to the ICLK Group Companies taken as a whole. The ICLK Leased Properties are
suitable to allow the businesses of the ICLK Group Companies to be operated as currently conducted in all material respects. To the Knowledge
of ICLK, (i) there are no pending condemnation proceedings with respect to any of the ICLK Leased Properties, and (ii) the
current use of the ICLK Leased Properties does not violate any local planning, zoning or similar land use restrictions of any Governmental
Entity in any material respect. No ICLK Group Company has received or given any written notice of any default or event that with notice
or lapse of time, or both, would constitute a breach or default by any ICLK Group Company under any of the ICLK Real Property Leases
and, to the Knowledge of ICLK, no other party is in breach or default thereof, except for such breaches or defaults as would not, individually
or in the aggregate, reasonably be expected to be material to the ICLK Group Companies, taken as a whole. As of the date of this Agreement,
to the Knowledge of ICLK, no party to any ICLK Real Property Lease has exercised any termination rights with respect thereto. Schedule
5.12(b) of the ICLK Disclosure Letter contains a true and correct list of all Material ICLK Real Property Leases. Except as
disclosed in Schedule 5.12(b) of the ICLK Disclosure Letter, no Person other than the ICLK Group Companies has the right
to use the ICLK Leased Properties, except as subleased by the respective ICLK Group Company to a sub-lessee.
(c) Each
ICLK Group Company has good and marketable title to, or a valid leasehold interest in or right to use, all of its tangible assets, free
and clear of all Liens other than: (i) Permitted Liens; (ii) the rights of lessors under any ICLK Real Property Lease; and
(iii) the Liens specifically identified on the Schedule 5.12(c) of the ICLK Disclosure Letter. The tangible assets of
the ICLK Group Companies: (A) constitute all of the tangible assets that are currently being used for the operation of the businesses
of the ICLK Group Companies as they are now conducted, and taken together, are adequate and sufficient for the operation of the businesses
of the ICLK Group Companies as currently conducted; and (B) have been maintained in accordance with generally applicable accepted
industry practice, are in good operating condition and repair, ordinary wear and tear excepted, and are adequate and suitable for the
uses to which they are being put, in each case, in all material respects.
5.13 Taxes.
(a) All
income and other material Tax Returns required to be filed by or on behalf of each ICLK Group Company have been duly and timely filed
with the appropriate Governmental Entity (taking into account any applicable extensions of time to file Tax Returns that were
validly granted or obtained) and all such Tax Returns are true, correct and complete in all material respects. All material amounts of
Taxes payable by each ICLK Group Company (whether or not shown on any Tax Return) have been fully and timely paid.
(b) Each
ICLK Group Company has, (i) complied in all material respects with all applicable Legal Requirements related to the withholding
and remittance of all material amounts of Tax and timely withheld and paid all material amounts of Taxes required to have been withheld
and paid to the appropriate Governmental Entity, and (ii) complied in all material respects with all material reporting requirements
(including maintenance of required records with respect thereto) with respect to such payments.
(c) No
claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted or assessed by any Governmental
Entity against any ICLK Group Company which has not been paid or resolved.
(d) No
material Tax audit or other examination of any ICLK Group Company by any Governmental Entity is presently in progress, nor are
there any request or threat for such an audit or other examination.
(e) There
are no Liens for Taxes (other than Permitted Liens) upon any of the assets of the ICLK Group Companies.
(f) Each
ICLK Group Company has no liability for a material amount of unpaid Taxes which has not been accrued for or reserved on the ICLK Financial
Statements, other than any liability for unpaid Taxes that has been incurred since the end of the most recent fiscal year in connection
with the operation of the business of the ICLK Group Companies in the ordinary course of business.
(g) No
ICLK Group Company: (i) has any liability for the Taxes of another Person (other than any ICLK Group Company or their predecessors)
as a result of being a member of a consolidated, combined, unitary or affiliated group filing for U.S. federal, state, local or non-U.S.
income Tax purposes or as a transferee or a successor or by Contract (other than pursuant to commercial agreements entered into in the
ordinary course of business and the principal purpose of which is not related to Taxes); (ii) is a party to or bound by any Tax
indemnity, Tax sharing or Tax allocation agreement (other than commercial agreements entered into in the ordinary course of business
and the principal purpose of which is not related to Taxes); or (iii) has ever been a member of consolidated, combined, unitary
or affiliated group filing for U.S. federal, state, local, or non-U.S. income Tax purposes, other than a group whose members are all
ICLK Group Companies (or their predecessors).
(h) No
ICLK Group Company: (i) has consented to extend the time in which any material amount of Tax may be assessed or collected by any
Governmental Entity (other than ordinary course extensions of time to file Tax Returns), which extension is still in effect; or (ii) has
entered into or been a party to any “listed transaction” within the meaning of Section 6707A(c)(2) of the Code
(or any similar provision of state, local or non-U.S. Legal Requirements).
(i) No
ICLK Group Company has, or has ever had, a permanent establishment in any country other than the country of its organization, or is,
or has ever been, subject to income Tax in a jurisdiction outside the country of its organization, in each case where it is required
to file a material income Tax Return and does not file such a Tax Return.
(j) No
ICLK Group Company will be required to include any material item of income in, or exclude any material item or deduction from, taxable
income for any taxable period beginning after the Closing Date or, in the case of any taxable period beginning on or before and ending
after the Closing Date, the portion of such period beginning after the Closing Date, as a result of: (i) an installment sale or
open transaction disposition that occurred on or prior to the Closing Date other than in the ordinary course of business; (ii) any
change in method of accounting on or prior to the Closing Date; or (iii) any prepaid amount received or deferred revenue
recognized on or prior to the Closing Date, other than in respect of such amounts reflected in the balance sheets included in the ICLK
Financial Statements, or received in the ordinary course of business since the date of the most recent balance sheet included in the
ICLK Financial Statements.
(k) No
claim has been made by any Governmental Entity in a jurisdiction in which any ICLK Group Company does not file Tax Returns that is or
may be subject to Tax by, or required to file Tax Returns in, that jurisdiction.
(l) To
the Knowledge of ICLK, the Enterprise Solutions Disposal and the Marketing Solutions Disposal have not and will not cause any
material adverse Tax effect to DWM or any ICLK Group Company.
5.14 Brokers;
Third Party Expenses. Except as disclosed in Schedule 5.14 of the ICLK Disclosure Letter, the ICLK Group Companies do not
have any liability for brokerage, finders’ fees, agent’s commissions or any similar charges in connection with this Agreement
or the Transactions on account of Contracts entered into by any ICLK Group Company.
5.15 Intellectual
Property. Except as would not, individually or in the aggregate, be material to the ICLK Group Companies, taken as a whole:
(a) Schedule
5.15(a) of the ICLK Disclosure Letter contains a true and complete list, as of the date of this Agreement, of all patented,
registered or applied-for Intellectual Property included in the ICLK Owned IP (collectively, the “ICLK Registered IP”).
With respect to each item of ICLK Registered IP, all necessary registration, maintenance and renewal fees have been paid, and all necessary
documents and certificates have been filed with United States Patent and Trademark Office or equivalent authority or registrar anywhere
in the world for the purposes of maintaining or renewing such ICLK Registered IP and recording and perfecting any ICLK Group Company’s
ownership therein.
(b) (i) The
ICLK Group Companies solely and exclusively own all right, title, and interest in and to all material ICLK Owned IP, including the items
of Intellectual Property set forth or required to be set forth in Schedule 5.15(a) of the ICLK Disclosure Letter pursuant
to the first sentence of this Section 5.15(b), free and clear of all Liens (other than Permitted Liens); and (ii) the
ICLK Group Companies own or have valid rights to use all other material Intellectual Property that is owned or used by the ICLK Group
Companies to conduct the businesses of the ICLK Group Companies as currently conducted.
(c) (i) Since
the Reference Date, neither the ICLK Group Companies nor the conduct of their businesses have infringed, diluted, misappropriated, or
otherwise violated, and do not infringe, dilute, misappropriate or otherwise violate, the Intellectual Property of any third party in
any material respect; and (ii) there is no Legal Proceeding pending, or to the Knowledge of ICLK, threatened in writing, and since
the Reference Date, the ICLK Group Companies have not received any written claims (including “cease and desist” letters or
invitations to license) (x) alleging the ICLK Group Companies are infringing, misappropriating or otherwise violating any Intellectual
Property of any third party; or (y) contesting the use, ownership, registration, scope, validity or enforceability of any ICLK Owned
IP.
(d) (i) Since
the Reference Date, to the Knowledge of ICLK, no ICLK Owned IP has been infringed, diluted, misappropriated or otherwise violated, or
is being infringed, diluted, misappropriated or otherwise violated by any third party; and (ii) there is no Legal Proceeding pending
or threatened in writing, and, since the Reference Date, the ICLK Group Companies have not made any written claims (including “cease
and desist” letters or invitations to license) (x) contesting the use, ownership, registration, scope, validity, or enforceability
of any Intellectual Property of such Person or (y) alleging that the conduct of any Person is infringing, misappropriating or otherwise
violating any ICLK Owned IP.
(e) All
ICLK Registered IP is subsisting, and to the Knowledge of ICLK, valid and enforceable.
(f) Each
current and former employee, consultant, and contractor of an ICLK Group Company who has created or developed any material Intellectual
Property for or on behalf of the ICLK Group Companies, or otherwise within the scope of their employment or engagement with the ICLK
Group Companies (each such person, an “ICLK Contributor”) have done so pursuant to an agreement that (i) if the
ICLK Contributor had access to confidential information, ensures the protection of the confidential information of the ICLK Group Companies
and (ii) validly assigns (pursuant to a present-tense assignment) to the ICLK Group Companies all right, title and interest of such
ICLK Contributor in all such Intellectual Property that does not vest initially in such entities by operation of law (each, a “ICLK
Contributor Agreement”).
(g) Since
the Reference Date, the ICLK Group Companies have taken commercially reasonable steps to protect and maintain (including protecting
the confidentiality of) the Personal Information and material Trade Secrets in the possession or under the control of any ICLK Group
Company (“ICLK Data”).
(h) (i) None
of the ICLK Group Companies, nor any other Person acting on their behalf, has disclosed, delivered or licensed to any Person or agreed
or obligated itself to disclose, deliver or license to any Person, or permitted the disclosure or delivery to any escrow agent or other
Person of, the source code for any ICLK Code, other than disclosures to ICLK Contributors involved in the development of products or
services of the ICLK Group Companies subject to confidentiality obligations to the ICLK Group Companies with respect to such source code;
and (ii) neither the execution of this Agreement or any other Transaction Agreements nor the consummation of any of the Transactions
will result in any requirement that the ICLK Group Companies deliver, license or disclose the source code of any ICLK Code to any other
Person (other than a DWM Group Company).
(i) None
of the ICLK Group Companies has incorporated any Open Source Software in, or used any Open Source Software in connection with, any ICLK
Code in a manner that (i) requires the disclosure or distribution of any ICLK Code in source code form, (ii) requires the licensing
thereof for the purpose of making derivative works, or (iii) imposes any restriction on the consideration to be charged for the
licensing or distribution thereof. The ICLK Group Companies are in material compliance with the terms and conditions of all relevant
licenses for Open Source Software used in the businesses of the ICLK Group Companies.
5.16 Data
Privacy and Cybersecurity. Except as would not, individually or in the aggregate, be material to the ICLK Group Companies, taken
as a whole:
(a) The
ICLK Group Companies are, and since the Reference Date have been, in compliance in all material respects with all ICLK Privacy Requirements
and all applicable Privacy Laws.
(b) (i) Since
the Reference Date, the ICLK Group Companies have taken commercially reasonable measures to protect the integrity, continuous operation
and physical and electronic security of the ICLK IT Systems (including ICLK Data); (ii) the ICLK IT Systems are functional, operate
in a reasonable manner, and are in sufficiently good working condition for the operation of the businesses of the ICLK Group Companies;
(iii) the ICLK IT Systems are free of any viruses, worms, Trojan horses, bugs, faults or other devices, errors, contaminants
or code that could materially disrupt or materially and adversely affect the functionality of the ICLK IT Systems; and (iv) since
the Reference Date, there have been no material breaches, outages, misuses or intrusions of any ICLK IT System, nor any loss, theft,
compromise or damage of, breach of security with respect to, or unauthorized access to, or rendering unavailable or inaccessible of any
ICLK Data Processed by or on behalf of the Group Companies (collectively, “ICLK Security Incidents”);
(c) The
ICLK Group Companies (i) maintain commercially reasonable disaster recovery plans, procedures and facilities sufficient for their
businesses; and (ii) have fully remediated all “high” or “critical” and other material threats, risks
and deficiencies identified in data security risk assessments, audits and penetration tests performed since the Reference Date by or
for the ICLK Group Companies.
(d) There
are no Legal Proceedings, whether from a Governmental Entity or any other Person, pending (or, to the Knowledge of ICLK, threatened
in writing) against, any ICLK Group Company alleging a violation of any of the ICLK Privacy Requirements.
5.17 Agreements,
Contracts and Commitments.
(a) Schedule
5.17(a) of the ICLK Disclosure Letter sets forth a true, correct and complete list of each ICLK Material Contract (as defined
below) that is in effect as of the date of this Agreement. For purposes of this Agreement, “ICLK Material Contract”
of the ICLK Group Companies shall mean each of the following Contracts to which an ICLK Group Company is a party as of the date hereof:
(i) any
Contract or purchase commitment reasonably expected to result in future payments to or by any ICLK Group Company in excess of $500,000
per annum;
(ii) (x) any
Contract with the top 10 customers of the ICLK Group Companies (the “ICLK Material Customers”) as determined
by revenue and (y) top 10 suppliers and distributors of the ICLK Group Companies by amounts payables (the “ICLK Material
Suppliers”) (all, other than purchase or service orders accepted, confirmed or entered into in the ordinary course of business
or with professional advisors), in each case during the 12-month period ended on December 31, 2023;
(iii) any
Contract that purports to limit in any material respect (A) the localities in which the ICLK Group Companies’ businesses may
be conducted, (B) any ICLK Group Company from engaging in any line of business or (C) any ICLK Group Company from developing,
marketing or selling products or services, including any non-compete agreements or agreements limiting the ability of any of the ICLK
Group Companies from soliciting customers or employees;
(iv) any
Contract that is related to the governance or operation of any joint venture or partnership that has involved a sharing of revenues,
profits, cash flows, expenses or losses with any other party or a payment of royalties to any other party, other than such Contract solely
between or among any of the ICLK Group Companies;
(v) any
Contract for or relating to any borrowing of money by or from any of the ICLK Group Companies in excess of $1,000,000 (excluding,
for the avoidance of doubt, any intercompany arrangements solely between or among any of the ICLK Group Companies);
(vi) any
Contract (other than those made in the ordinary course of business): (A) providing for the grant of any rights of refusal,
rights of first negotiation, most-favored-nation or similar rights to purchase or lease any asset of the ICLK Group Companies; or (B) providing
for any exclusive rights, rights of refusal, rights of first negotiation, most-favored-nation or similar rights to sell or distribute
any product or service of any of the ICLK Group Companies;
(vii) any
obligation to register any ICLK Shares or other securities of the ICLK Group Companies with any Governmental Entity (other than ordinary
course requirements of foreign applicable Legal Requirements related to the recording with an applicable Governmental Entity of the ownership
of non-U.S. ICLK Group Companies);
(viii) any
Contracts relating to the sale of any operating business of any ICLK Group Company or the acquisition by any ICLK Group Company of any
operating business, whether by merger, purchase or sale of stock or assets or otherwise, and for which any ICLK Group Company has any
material outstanding obligations (other than customary non-disclosure and similar obligations incidental thereto and other than Contracts
for the purchase of inventory or supplies entered into in the ordinary course of business);
(ix) any
labor agreement, collective bargaining agreement, or any other labor-related agreements or arrangements with any labor union, labor organization,
or works council;
(x) any
Contract for the use by any of the ICLK Group Companies of any tangible property where the annual lease payments are greater than $250,000
(other than any lease of vehicles, office equipment or operating equipment made in the ordinary course of business) (the “Material
ICLK Real Property Leases”);
(xi) any
material Contract under which any of the ICLK Group Companies: (A) is granted a license, option, covenant not to sue or any
right to or under any material Intellectual Property from any third party, other than Incidental Inbound Licenses or licenses for Open
Source Software; or (B) grants a license, option, covenant not to sue, or any right to or under any material ICLK Owned IP to any
third party, other than non-exclusive licenses granted to contractors, suppliers, vendors, distributors or customers in the ordinary
course of business in object code form, for the use by such customers of the ICLK Group Companies’ products or services or the
provision of services by such contractors, suppliers, vendors, or distributors to the ICLK Group Companies;
(xii) any
Contract involving any resolution or settlement of any actual or threatened Legal Proceeding that is material to the ICLK Group Companies
or their businesses or that imposes material non-monetary obligations on an ICLK Group Company, including any material restriction on
the use, licensing or registration of any material Intellectual Property (including co-existence agreements);
(xiii) any
Contract relating to the development of material Intellectual Property by, with or for the ICLK Group Companies (other than ICLK Contributor
Agreements);
(xiv) any
Contract filed (or which is required to be filed) as an exhibit to ICLK’s most recently filed annual report on Form 20-F as
a “material contract” pursuant to Item 4 of the Instructions to Exhibits of Form 20-F under the Exchange Act;
(xv) any
obligation to make any material payments, contingent or otherwise, arising out of the prior acquisition of the business, assets or stock
of other Persons; and
(xvi) any
Contract with Token exchanges, brokers, suppliers or transaction counterparties and any other Person from whom the ICLK Group Companies
source Tokens.
(b) Each
ICLK Material Contract is in full force and effect and represents a legal, valid and binding obligation of the applicable ICLK Group
Company party thereto and, to the Knowledge of ICLK, represents a legal, valid and binding obligation of the counterparties thereto,
except insofar as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors’ rights generally or by principles governing the availability of equitable remedies. Neither the applicable ICLK Group
Company nor, to the Knowledge of ICLK, any other party thereto, is in material breach of or in default under, and no event has occurred
which with notice or lapse of time or both would reasonably be expected to become a material breach of or default under, any ICLK Material
Contract, and no party to any ICLK Material Contract has given any written notice of any claim of any such breach, default or event.
True, correct and complete copies of all ICLK Material Contracts have been made available to DWM.
5.18 Insurance.
Each of the ICLK Group Companies maintains insurance policies or fidelity or surety bonds covering its assets, business, equipment, properties,
operations, employees, officers and directors (collectively, the “ICLK Insurance Policies”) covering certain material
insurable risks in respect of its business and assets, and the ICLK Insurance Policies are in full force and effect. The coverages provided
by such ICLK Insurance Policies are usual and customary in amount and scope for the ICLK Group Companies’ business and operations
as currently conducted, and sufficient to comply with any insurance required to be maintained by ICLK Material Contracts. No written
notice of cancellation or termination has been received by any ICLK Group Company with respect to any of the effective ICLK Insurance
Policies. There is no pending material claim by any ICLK Group Company against any insurance carrier under any of the existing ICLK Insurance
Policies for which coverage has been denied or disputed by the applicable insurance carrier (other than a customary reservation of rights
notice).
5.19 Interested
Party Transactions. (a) No officer or director of ICLK or any of their respective immediate family members, or to the Knowledge
of ICLK, any employee, officer, director or manager of the ICLK Group Companies or any of their respective immediate family members,
is indebted to the ICLK Group Companies for borrowed money, nor are any of the ICLK Group Companies indebted for borrowed money (or committed
to make loans or extend or guarantee credit) to any of such Persons, and (b) to the Knowledge of ICLK, no officer, director, employee,
manager or holder of equity or derivative securities of the ICLK Group Companies (each, an “ICLK Insider”) or any
member of an ICLK Insider’s immediate family is, directly or indirectly, a counterparty to (or controls a counterparty to) any
ICLK Material Contract with any of the ICLK Group Companies, in each case, other than: (i) for payment of salary, bonuses and other
compensation for services rendered; (ii) reimbursement for reasonable expenses incurred in connection with any of the ICLK Group
Companies; (iii) for other employee benefits made generally available to similarly situated Persons; (iv) related to any such
Person’s ownership of ICLK Shares or other securities of the ICLK Group Companies or such Person’s employment or consulting
arrangements with the ICLK Group Companies; or (v) conducted on an arm’s-length basis.
5.20 Information
Supplied. The information relating to the ICLK Group Companies to be supplied by or on behalf of ICLK for inclusion or incorporation
by reference in the Proxy Statement will not, on the date of filing thereof or the date that it is first mailed to the ICLK shareholders,
as applicable, or at the time of the Special Meeting or at the time of any amendment or supplement thereof, contain any untrue statement
of any material fact, or omit to state any material fact required to be stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they are made, not false or misleading at the time and in light of the circumstances under
which such statement is made. Notwithstanding the foregoing, no representation is made by ICLK with respect to the information that has
been or will be supplied by DWM or any of its Representatives for inclusion in the Proxy Statement or any projections or forecasts included
therein.
5.21 Anti-Bribery;
Anti-Corruption.
(a) None
of the ICLK Group Companies or any of the ICLK Group Companies’ respective directors, officers, or employees has, directly or indirectly,
in each case of (a) through (e), in violation of any Legal Requirement: (a) made, offered or promised to make or offer any
payment, loan or transfer of anything of value, including any reward, advantage or benefit of any kind, to or for the benefit of any
government official, candidate for public office, political party or political campaign, or any official of such party or campaign, for
the purpose of: (i) influencing any act or decision of such government official, candidate, party or campaign or any official of
such party or campaign; (ii) inducing such government official, candidate, party or campaign or any official of such party or campaign
to do or omit to do any act in violation of a lawful duty; (iii) obtaining or retaining business for or with any Person; (iv) expediting
or securing the performance of official acts of a routine nature; or (v) otherwise securing any improper advantage; (b) paid,
offered or agreed or promised to make or offer any bribe, payoff, influence payment, kickback, unlawful rebate or other similar unlawful
payment of any nature; (c) made, offered or agreed or promised to make or offer any unlawful contributions, gifts, entertainment
or other unlawful expenditures; (d) established or maintained any unlawful fund of corporate monies or other properties; (e) created
or caused the creation of any false or inaccurate books and records related to any of the foregoing; or (f) violated, conspired
to violate, or aided and abetted the violation of Anti-Money Laundering and Anti-Corruption Laws.
(b) None
of the ICLK Group Companies or any of the ICLK Group Companies’ respective directors, officers or, to the Knowledge of ICLK, any
of the ICLK Group Companies’ respective employees (i) is or has been the subject of an undisclosed claim or allegation relating
to (A) any potential violation of any Anti-Money Laundering and Anti-Corruption Laws or (B) any potentially unlawful payment,
contribution, gift, bribe, rebate, payoff, influence payment, kickback or other payment or the provision of anything of value, directly
or indirectly, to an official, to any political party or official thereof or to any candidate for political office, or (ii) has
received any notice or other communication from, or made a voluntary disclosure to, any Governmental Entity regarding any actual, alleged
or potential violation of, or failure to comply with, any Anti-Money Laundering and Anti-Corruption Law. ICLK Group Companies have established,
implemented, and maintained policies, procedures, and a system or systems of internal controls reasonably designed to ensure compliance
with the Anti-Money Laundering and Anti-Corruption Laws.
5.22 International
Trade; Sanctions.
(a) Each
of the ICLK Group Companies, the ICLK Group Companies’ respective directors, officers and employees and, to the Knowledge of ICLK,
any other Persons acting on their behalf, in connection with the operation of the business of the ICLK Group Companies, and in each case
in all material respects: (a) have been in compliance with all applicable Customs & International Trade Laws; (b) have
obtained all necessary Customs & International Trade Authorizations; (c) have not been the subject of any civil or criminal
fine, penalty, seizure, forfeiture, revocation of a Customs & International Trade Authorization, debarment or denial of future
Customs & International Trade Authorizations in connection with any actual or alleged violation of any applicable Customs &
International Trade Laws; and (d) have not received any actual or, to the Knowledge of ICLK, threatened claims or requests for information
by a Governmental Entity regarding, and have not made any disclosures to any Governmental Entity with respect to, their compliance with
any applicable Customs & International Trade Laws. The ICLK Group Companies have in place controls and systems reasonably designed
to promote compliance with applicable Customs & International Trade Laws.
(b) None
of the ICLK Group Companies or any of the ICLK Group Companies’ respective directors, officers or, to the Knowledge of ICLK, any
of the ICLK Group Companies’ respective employees or any other Persons acting on their behalf is or has been, a Sanctioned Person.
For the past five years, each of the ICLK Group Companies and the ICLK Group Companies’ respective directors, officers, employees
and Affiliates and, to the Knowledge of ICLK, any other Persons acting on their behalf have, in connection with the operation of the
business of the ICLK Group Companies, been in material compliance with all applicable Sanctions. For the past five years, the ICLK Group
Companies and the ICLK Group Companies’ respective directors, officers or, to the Knowledge of ICLK, any of the ICLK Group Companies’
respective employees have not, and are not, in connection with the operation of the business of the ICLK Group Companies, engaged in
any business activities, transactions, or other dealings, directly or indirectly, with or for the benefit of any Sanctioned Person or
Sanctioned Country in violation of Sanctions. For the past five years, (i) no Governmental Entity has initiated any investigation,
inquiry, action or enforcement proceeding or has imposed any civil or criminal fine, penalty, seizure, forfeiture, revocation of an authorization,
debarment or denial of future authorizations against any of the ICLK Group Companies or any of their respective directors, officers,
or, to the Knowledge of ICLK, any of the ICLK Group Companies’ respective employees, controlled Affiliates or any other Persons
acting on their behalf in connection with any actual or alleged violation of any applicable Sanctions, (ii) there have been no actual
or, to the Knowledge of ICLK, threatened claims or requests for information by a Governmental Entity received by an ICLK Group Company
with respect to compliance with applicable Sanctions and (iii) and no disclosures have been made to any Governmental Entity with
respect to any actual or potential noncompliance with applicable Sanctions. The ICLK Group Companies have in place controls and
systems reasonably designed to ensure compliance with applicable Sanctions.
5.23 ICLK
Listing. There is no action or proceeding pending or, to the Knowledge of ICLK, threatened in writing against ICLK by Nasdaq or the
SEC with respect to any ICLK Shares or to terminate the listing of ICLK on Nasdaq. None of ICLK or any of its Affiliates has taken any
action in an attempt to terminate the registration of the ICLK Shares under the Exchange Act. Except as disclosed in Schedule 5.23
of ICLK Disclosure Letter, ICLK has not received any written or oral deficiency notice from Nasdaq relating to the continued
listing requirements of the ICLK Shares.
5.24 Disposal
of Certain Business. The Enterprise Solutions Disposal and the Marketing Solutions Disposal have been consummated in compliance with
all applicable Legal Requirements (including but not limited to any requirements to file with the China Securities Regulatory Commission
pursuant to the applicable Legal Requirements). All Approvals required to implement the Enterprise Solutions Disposal and the Marketing
Solutions Disposal has been obtained prior to the consummation thereof.
5.25 Disclaimer
of Other Warranties. EACH ICLK PARTY HEREBY ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND THE OTHER TRANSACTION
AGREEMENTS, NONE OF DWM, THE DWM GROUP COMPANIES NOR ANY OF THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES OR REPRESENTATIVES HAS MADE, IS
MAKING OR SHALL BE DEEMED TO MAKE ANY REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY, TO ANY ICLK PARTY,
ANY OF ITS AFFILIATES OR REPRESENTATIVES OR ANY OTHER PERSON, WITH RESPECT TO ANY OF DWM OR THE DWM GROUP COMPANIES, OR ANY OF THEIR
RESPECTIVE BUSINESSES, ASSETS OR PROPERTIES OF THE FOREGOING, OR OTHERWISE, INCLUDING ANY REPRESENTATION OR WARRANTY AS TO MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, FUTURE RESULTS, PROPOSED BUSINESSES OR FUTURE PLANS. WITHOUT LIMITING THE FOREGOING: (A) NONE
OF DWM, THE DWM GROUP COMPANIES NOR ANY OF THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES SHALL BE DEEMED TO MAKE ANY REPRESENTATION
OR WARRANTY OTHER THAN AS EXPRESSLY MADE BY DWM IN THIS AGREEMENT AND THE OTHER TRANSACTION AGREEMENTS; AND (B) NEITHER DWM, NOR
ANY OF ITS AFFILIATES OR REPRESENTATIVES, HAS MADE, IS MAKING OR SHALL BE DEEMED TO MAKE TO ANY ICLK PARTY OR THEIR RESPECTIVE AFFILIATES
OR REPRESENTATIVES OR ANY OTHER PERSON ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO: (I) THE INFORMATION
DISTRIBUTED OR MADE AVAILABLE TO ANY ICLK PARTY OR ITS AFFILIATES OR REPRESENTATIVES OR SUCH OTHER PERSON BY OR ON BEHALF OF DWM IN CONNECTION
WITH THIS AGREEMENT AND THE TRANSACTIONS; (II) ANY MANAGEMENT PRESENTATION, CONFIDENTIAL INFORMATION MEMORANDUM OR SIMILAR DOCUMENT;
OR (III) ANY FINANCIAL PROJECTION, FORECAST, ESTIMATE, BUDGET OR SIMILAR ITEM RELATING TO DWM, ANY DWM GROUP COMPANY, AND/OR THE
BUSINESS, ASSETS, LIABILITIES, PROPERTIES, FINANCIAL CONDITION, RESULTS OF OPERATIONS AND PROJECTED OPERATIONS OF THE FOREGOING OTHER
THAN EXPRESSLY SET FORTH IN THE TRANSACTION AGREEMENTS. EACH ICLK PARTY HEREBY ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY PROMISE, REPRESENTATION
OR WARRANTY THAT IS NOT EXPRESSLY SET FORTH IN THIS AGREEMENT AND THE OTHER TRANSACTION AGREEMENTS. EACH ICLK PARTY ACKNOWLEDGES THAT
IT HAS CONDUCTED, TO ITS SATISFACTION, AN INDEPENDENT INVESTIGATION AND VERIFICATION OF THE DWM GROUP COMPANIES, AND THE BUSINESS, ASSETS,
LIABILITIES, PROPERTIES, FINANCIAL CONDITION, RESULTS OF OPERATIONS AND PROJECTED OPERATIONS OF THE FOREGOING, AND IN MAKING ITS DETERMINATION
TO PROCEED WITH THE TRANSACTIONS, EACH ICLK PARTY HAS RELIED ON THE RESULTS OF ITS OWN INDEPENDENT INVESTIGATION AND VERIFICATION, IN
ADDITION TO THE REPRESENTATIONS AND WARRANTIES OF DWM EXPRESSLY AND SPECIFICALLY SET FORTH IN THIS AGREEMENT AND THE OTHER TRANSACTION
AGREEMENTS. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SECTION 5.25, CLAIMS AGAINST DWM, ANY DWM GROUP COMPANY OR ANY
OTHER PERSON WILL NOT BE LIMITED IN ANY RESPECT IN THE EVENT OF FRAUD IN THE MAKING OF THE REPRESENTATIONS AND WARRANTIES IN THIS AGREEMENT
BY SUCH PERSON.
Article VI
CONDUCT PRIOR TO THE CLOSING
6.1 Conduct
of Business by DWM Group Companies. Except (a) as expressly contemplated by this Agreement or any other Transaction Agreements
(including as contemplated by the DWM Asset Restructuring and the DWM Capital Restructuring, each in a manner in accordance with the
terms of this Agreement), (b) as required by applicable Legal Requirements, (c) as requested by or consented to in writing
by ICLK (which consent shall not be unreasonably withheld, delayed or conditioned), or (d) as set forth in Schedule 6.1 of
the DWM Disclosure Letter, during the period from the date of this Agreement until the earlier of (i) the Effective Time and (ii) the
termination of this Agreement pursuant to Section 9.1, DWM (x) shall, and shall cause each of the DWM Group Companies
to, conduct its business in the ordinary course of business consistent with past practice and in accordance with applicable Legal Requirements,
(y) shall not, and shall cause each of the DWM Group Companies not to:
(a) (I) increase
the maximum aggregate number of DWM Shares which may be issued pursuant to any DWM Share Plan as of the date hereof or otherwise amend
any DWM Share Plan, (II) without prior written notification to ICLK, hire or terminate any employee, or, (III) except as otherwise
required by any DWM Employee Benefit Plan as in effect on the date hereof or applicable Legal Requirements: (i) increase
in any manner the compensation or benefits payable, or to become payable to, any current or former employee, director or independent
contractor, except for (A) individual increases of not more than 20% in the base salary or wage rate of any current employee who
has annual base compensation of less than $100,000 in the ordinary course of business, (B) the payment of annual bonuses and other
short-term incentive compensation in the ordinary course of business (including with respect to the determination of the achievement
of any applicable performance objectives, whether qualitative or quantitative) consistent with past practice, (C) increases of compensation
for employees who change jobs, (D) increases of compensation to reflect market adjustments on the basis of objective data and (E) increases
of compensation to adjust for gender equity as needed; (ii) grant or pay any severance or change in control pay or benefits to,
or otherwise increase the severance or change in control pay or benefits of, any current or former employee, director or independent
contractor, other than the payment of severance in the ordinary course of business; (iii) establish, adopt, enter into, amend or
terminate any collective bargaining agreement, DWM Employee Benefit Plan or any employee benefit plan, policy, program, agreement, trust
or arrangement that would have constituted a DWM Employee Benefit Plan if it had been in effect on the date of this Agreement; (iv) take
any action to accelerate the vesting or payment of, or otherwise fund or secure the payment of, any compensation or benefits under any
DWM Employee Benefit Plan or otherwise; or (v) grant any equity or equity-based compensation awards;
(b) (i) transfer,
sell, assign, license (other than non-exclusive licenses granted to employees, contractors, suppliers, vendors, distributors or customers
in the ordinary course of business in object code form, for the use by such customers of the DWM Group Companies’ products
or services or the provision of services by such contractors, suppliers, vendors, or distributors to the DWM Group Companies) any DWM
Owned IP material to the DWM Group Companies; (ii) subject any DWM Owned IP material to the DWM Group Companies to a Lien (other
than Permitted Liens); (iii) abandon, let lapse or fail to maintain or renew any DWM Registered IP (other than DWM Registered IP
that (x) in the reasonable business judgment of the DWM Group Companies, is not material to the DWM Group Companies or (y) is
expiring at the end of its natural statutory term) or (iv) subject or agree to subject any DWM Code material to the DWM Group Companies
to the terms of any Open Source Software license and engage in any activities described in Section 4.16(i)(i)-(iii) with
respect to such material DWM Code;
(c) except
for transactions solely among the DWM Group Companies: (i) declare, set aside or pay any dividends on or make any other distributions
(whether in cash, stock, equity securities or property) in respect of any share capital or otherwise, or split, combine or reclassify
any share capital or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any share
capital, or reorganization, recapitalization, exchange of shares or other like change with respect to any share capital; (ii) repurchase,
redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any membership interests, share capital or any other
equity interests, as applicable, in any DWM Group Company (other than repurchases, redemptions or other acquisitions of equity interests
from directors, officers or employees in accordance with the terms of any equity incentive plan or such Person’s employment, grant
or subscription agreement, in each case, in accordance with such DWM Group Company’s Governing Documents and such plan or agreement,
as in effect as of the date of this Agreement); or (iii) grant, issue, sell or otherwise dispose, or authorize to issue, sell, or
otherwise dispose any membership interests, share capital or any other equity interests (such as stock options, stock units, restricted
stock or other Contracts for the purchase or acquisition of such share capital), as applicable, in any DWM Group Company;
(d) amend
its Governing Documents;
(e) except
in the ordinary course of business: (i) merge, consolidate or combine any DWM Group Company with a third party; or (ii) acquire
or agree to acquire by merging or consolidating with, purchasing a majority of the equity interest in or all or substantially all of
the assets of, or by any other manner, any third-party business or corporation, partnership, association or other business organization
or division thereof, to the extent the aggregate transaction value of such investments and acquisitions exceeds $1,000,000;
(f) voluntarily
dispose of or amend any DWM Real Property Lease other than in the ordinary course of business or as would not reasonably be expected
to be material to the DWM Group Companies, individually or in the aggregate;
(g) other
than with respect to the DWM Real Property Leases and Intellectual Property, voluntarily sell, lease, license, sublicense, abandon,
divest, transfer, cancel, abandon or permit to lapse or expire, dedicate to the public, or otherwise dispose of, or agree to do any of
the foregoing, or otherwise dispose of assets or properties material to the DWM Group Companies, other than in the ordinary course of
business or pursuant to Contracts existing on the date hereof;
(h) (i) make,
create any loans, advances or capital contributions to, or investments in, any Person other than any of the DWM Group Companies
and other than advances for business expenses and loans or advances to customers and suppliers in the ordinary course of business; (ii) create,
incur, assume, guarantee or otherwise become liable for, any Indebtedness incurred after the date hereof in excess of 500,000 (including,
for the avoidance of doubt, drawdowns under credit facilities of any of the DWM Group Companies in effect as of the date hereof), other
than such Indebtedness incurred in the ordinary course of business and guarantees of any Indebtedness of any DWM Group Companies that
does not and will not reasonably be expected to result in or give rise to any rights of consent, termination, amendment, acceleration
(including any forced repurchase or put right) or cancellation by any Person in connection with the Transactions; (iii) except in
the ordinary course of business, create any Liens on any material property or material assets of any of the DWM Group Companies in connection
with any Indebtedness thereof (other than Permitted Liens); or (iv) cancel or forgive any Indebtedness owed to any of the DWM Group
Companies other than ordinary course compromises of amounts owed to the DWM Group Companies by their respective customers;
(i) compromise,
settle or agree to settle any Legal Proceeding involving payments by any DWM Group Company of $500,000 or more, or that imposes
any material non-monetary obligations on a DWM Group Company (excluding, for the avoidance of doubt, confidentiality, non-disparagement
or other similar obligations incidental thereto), in each case other than those disclosed on Schedule 4.10 of the DWM Disclosure
Letter (provided, that, DWM shall promptly notify ICLK of any settlement or agreement to settlement of any Legal Proceeding
involving any DWM Group Company);
(j) except
in the ordinary course of business or as would not reasonably be expected to be material to the DWM Group Companies, individually or
in the aggregate: (A) modify, amend in a manner that is adverse to the applicable DWM Group Company or terminate any DWM
Material Contract; (B) enter into any Contract that would have been a DWM Material Contract, had it been entered into prior to the
date of this Agreement; or (C) waive, delay the exercise of, release or assign any material rights or claims under any DWM Material
Contract (other than assignments among the DWM Group Companies);
(k) except
as required by DWM Accounting Principles (or any interpretation thereof) or applicable Legal Requirements (including to obtain compliance
with PCAOB auditing standards), make any material change in accounting methods, principles or practices;
(l) make,
change or revoke any material Tax election, change (or request to change) any material method of accounting for Tax purposes, file any
amended material Tax Return, settle or compromise any material Tax liability, enter into any material closing agreement with respect
to any Tax or surrender any right to claim a material refund of Taxes, consent to any extension or waiver of the limitations period applicable
to any material Tax claim or assessment, or enter into any Tax indemnity, Tax sharing or Tax allocation agreement (other than commercial
agreements entered into in the ordinary course of business and the principal purpose of which is not related to Taxes);
(m) authorize,
recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, restructuring, recapitalization, dissolution
or winding-up of any DWM Group Company;
(n) subject
to Section 6.1(a), enter into or amend any agreement with, or pay, distribute or advance any assets or property to, any of
its officers, directors, shareholders or other Affiliates (other than DWM Group Companies), other than (i) payments or distributions
relating to obligations in respect of arm’s-length commercial transactions, (ii) reimbursement for reasonable expenses incurred
in connection with any of the DWM Group Companies, and (iii) employment arrangements entered into in the ordinary course;
(o) engage
in any material new line of business;
(p) amend
any provision of its privacy policies in any material respect or in any manner adverse to any of the DWM Group Companies (other
than changes required to conform to applicable Privacy Laws); or
(q) agree
in writing or otherwise agree, commit or resolve to take any of the foregoing actions.
Notwithstanding
anything in this Section 6.1 or this Agreement to the contrary, (i) nothing set forth in this Agreement shall give any
other Party, directly or indirectly, the right to control or direct the operations of any DWM Group Company and (ii) nothing
set forth in this Agreement shall prohibit, or otherwise restrict the ability of, any DWM Group Company from paying any DWM Transaction
Costs, in each case, prior to the Closing.
6.2 Conduct
of Business by the ICLK Group Companies. Except (a) as expressly contemplated by this Agreement or any other Transaction Agreements,
(b) as required by applicable Legal Requirements, (c) as requested by or consented to in writing by DWM (which consent shall
not be unreasonably withheld, delayed or conditioned), or (d) as set forth in Schedule 6.2 of the ICLK Disclosure Letter,
during the period from the date of this Agreement until the earlier of (i) the Effective Time and (ii) the termination of this
Agreement pursuant to Section 9.1, ICLK (x) shall, and shall cause each of the ICLK Group Companies to, conduct
its business in the ordinary course of business consistent with past practice and in accordance with applicable Legal Requirements, (y) shall
not, and shall cause each of the ICLK Group Companies not to:
(a) (I) increase
the maximum aggregate number of ICLK Ordinary Shares which may be issued pursuant to any ICLK Share Plan as of the date hereof or otherwise
amend any ICLK Share Plan, (II) without prior written notification to DWM, hire or terminate any employee, or, (III) except
as otherwise required by any ICLK Share Plan as in effect on the date hereof or applicable Legal Requirements: (i) increase the
total compensation, bonuses and benefits payable, or to become payable to, current and former employee, director and independent contractor
by more than 10% in the aggregate as compared to that of the most recent fiscal year; (ii) grant or pay any severance or
change in control pay or benefits to, or otherwise increase the severance or change in control pay or benefits of, any current or former
employee, director or independent contractor, other than the payment of severance in the ordinary course of business; (iii) establish,
adopt, enter into, amend or terminate any collective bargaining agreement, ICLK Employee Benefit Plan or any employee benefit plan,
policy, program, agreement, trust or arrangement that would have constituted an ICLK Employee Benefit Plan if it had been in effect on
the date of this Agreement; (iv) take any action to accelerate the vesting or payment of, or otherwise fund or secure the payment
of, any compensation or benefits under any ICLK Employee Benefit Plan or otherwise; or, (v) grant any equity or equity-based compensation
awards other than as permitted under the ICLK Share Plan;
(b) (i) transfer,
sell, assign, license (other than non-exclusive licenses granted to employees, contractors, suppliers, vendors, distributors or customers
in the ordinary course of business in object code form, for the use by such customers of the ICLK Group Companies’ products
or services or the provision of services by such contractors, suppliers, vendors, or distributors to the ICLK Group Companies) any ICLK
Owned IP; (ii) subject any ICLK Owned IP to a Lien (other than Permitted Liens); (iii) abandon, let lapse or fail to maintain
or renew any ICLK Owned IP (other than ICLK Owned IP that, in the reasonable business judgment of the ICLK Group Companies, is not material
to the ICLK Group Companies) or (iv) subject or agree to subject any ICLK Code to the terms of any Open Source Software license;
(c) except
for transactions solely among the ICLK Group Companies wholly owned by ICLK directly or indirectly, (i) declare, set aside or pay
any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock
or otherwise, or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect
of, in lieu of or in substitution for any capital stock, or reorganization, recapitalization, exchange of shares or other like change
with respect to any share capital; (ii) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire,
any membership interests, capital stock or any other equity interests, as applicable, in any ICLK Group Company (other than repurchases,
redemptions or other acquisitions of equity interests from directors, officers or employees in accordance with the terms of any ICLK
Share Plan or such Person’s employment, grant or subscription agreement, in each case, in accordance with such ICLK Group Company’s
Governing Documents and such plan or agreement, as in effect as of the date of this Agreement); or (iii) grant, issue, sell or otherwise
dispose, or authorize to issue, sell, or otherwise dispose any membership interests, capital stock or any other equity interests (such
as stock options, stock units, restricted stock or other Contracts for the purchase or acquisition of such capital stock), as applicable,
in any ICLK Group Company (other than any grants, issuances or sales made to directors, officers or employees in accordance with
the terms of any ICLK Share Plan or such Person’s employment, grant or subscription agreement, in each case, in accordance with
such ICLK Group Company’s Governing Documents and such plan or agreement, as in effect as of the date of this Agreement);
(d) amend
its Governing Documents;
(e) except
in the ordinary course of business: (i) merge, consolidate or combine any ICLK Group Company with a third party; or (ii) acquire
or agree to acquire by merging or consolidating with, purchasing a majority of the equity interest in or all or substantially all of
the assets of, or by any other manner, any third-party business or corporation, partnership, association or other business organization
or division thereof, to the extent the aggregate transaction value of such investments and acquisitions exceeds $1,000,000;
(f) voluntarily
dispose of or amend any ICLK Real Property Lease other than in the ordinary course of business or as would not reasonably be expected
to be material to the ICLK Group Companies, individually or in the aggregate;
(g) other
than with respect to the ICLK Real Property Leases and Intellectual Property, voluntarily sell, lease, license, sublicense, abandon,
divest, transfer, cancel, abandon or permit to lapse or expire, dedicate to the public, or otherwise dispose of, or agree to do any of
the foregoing, or otherwise dispose of assets or properties material to the ICLK Group Companies, other than in the ordinary course of
business or pursuant to Contracts existing on the date hereof;
(h) (i) make,
create any loans, advances or capital contributions to, or investments in, any Person other than any of the ICLK Group Companies and
other than advances for business expenses and loans or advances to customers and suppliers in the ordinary course of business; (ii) create,
incur, assume, guarantee or otherwise become liable for, any Indebtedness incurred after the date hereof in excess of $500,000
(including, for the avoidance of doubt, drawdowns under credit facilities of any of the ICLK Group Companies in effect as of the date
hereof ), other than such Indebtedness incurred in the ordinary course of business and guarantees of any Indebtedness of any ICLK Group
Companies wholly owned by ICLK directly or indirectly that does not and will not reasonably be expected to result in or give rise to
any rights of consent, termination, amendment, acceleration (including any forced repurchase or put right) or cancellation by any Person
in connection with the Transactions; (iii) except in the ordinary course of business, create any Liens on any material property
or material assets of any of the ICLK Group Companies in connection with any Indebtedness thereof (other than Permitted Liens); or (iv) cancel
or forgive any Indebtedness owed to any of the ICLK Group Companies other than ordinary course compromises of amounts owed to the ICLK
Group Companies by their respective customers;
(i) compromise,
settle or agree to settle any Legal Proceeding involving payments by any ICLK Group Company of $500,000 or more, or that imposes any
material non-monetary obligations on an ICLK Group Company (excluding, for the avoidance of doubt, confidentiality, non-disparagement
or other similar obligations incidental thereto), in each case other than those disclosed on Schedule 5.9 of the ICLK Disclosure
Letter (provided, that, ICLK shall promptly notify DWM of any settlement or agreement to settlement of any Legal Proceeding
involving any ICLK Group Company);
(j) except
in the ordinary course of business or as would not reasonably be expected to be material to the ICLK Group Companies, individually or
in the aggregate: (A) modify, amend in a manner that is adverse to the applicable ICLK Group Company or terminate any ICLK Material
Contract; (B) enter into any Contract that would have been an ICLK Material Contract, had it been entered into prior to the date
of this Agreement; or (C) waive, delay the exercise of, release or assign any material rights or claims under any ICLK Material
Contract (other than assignments among the ICLK Group Companies);
(k) except
as required by ICLK Accounting Principles (or any interpretation thereof) or applicable Legal Requirements (including to obtain compliance
with PCAOB auditing standards), make any material change in accounting methods, principles or practices;
(l) make,
change or revoke any material Tax election, change (or request to change) any material method of accounting for Tax purposes, file any
amended material Tax Return, settle or compromise any material Tax liability, enter into any material closing agreement with respect
to any Tax or surrender any right to claim a material refund of Taxes, consent to any extension or waiver of the limitations period applicable
to any material Tax claim or assessment, or enter into any Tax indemnity, Tax sharing or Tax allocation agreement (other than commercial
agreements entered into in the ordinary course of business and the principal purpose of which is not related to Taxes);
(m) authorize,
recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, restructuring, recapitalization, dissolution
or winding-up of any ICLK Group Company;
(n) subject
to Section 6.2(a), enter into or amend any agreement with, or pay, distribute or advance any assets or property to, any of
its officers, directors, shareholders or other Affiliates (other than ICLK Group Companies wholly owned by ICLK directly or indirectly),
other than (i) payments or distributions relating to obligations in respect of arm’s-length commercial transactions, (ii) reimbursement
for reasonable expenses incurred in connection with any of the ICLK Group Companies, and (iii) employment arrangements entered into
in the ordinary course;
(o) engage
in any material new line of business;
(p) amend
any provision of its privacy policies in any material respect or in any manner adverse to any of the ICLK Group Companies (other than
changes required to conform to applicable Privacy Laws);
(q) convert
into RMB any cash held by the ICLK Group Companies in USD or any currency other than RMB, except for such conversion in the ordinary
course of business consistent with past practices or for purposes of repaying Indebtedness repayable in RMB but in each case only to
the extent necessary; or
(r) agree
in writing or otherwise agree, commit or resolve to take any of the foregoing actions.
Notwithstanding anything in this Section 6.2 or this Agreement
to the contrary, (i) nothing set forth in this Agreement shall give any other Party, directly or indirectly, the right to control
or direct the operations of any ICLK Group Company and (ii) nothing set forth in this Agreement shall prohibit, or otherwise restrict
the ability of, any ICLK Group Company from paying any ICLK Transaction Costs, in each case, prior to the Closing.
6.3 Requests
for Consent.
(a) Notwithstanding
anything to the contrary herein, the Parties acknowledge and agree that an email from a Principal Party (the “Requesting Principal
Party”) to one or more Designated Persons of each of the other Principal Party (the “Receiving Principal Party”)
specifically requesting consent under Section 6.1 (if the Requesting Principal Party is DWM) or Section 6.2
(if the Requesting Principal Party is ICLK), as applicable, in each case with a subject line clearly identifying such email as an
email intended to seek consent under the applicable Section, shall constitute a valid request by the Requesting Principal Party to the
Receiving Principal Party for all purposes under this Article VI. “Designated Persons” shall mean, (i) with
respect to DWM, the individuals set forth on Schedule 6.3(a) of the DWM Disclosure Letter or such other individuals DWM designated
by written notice to ICLK in writing pursuant to Section 11.1 and (ii) with respect to ICLK, the individuals set forth
on Schedule 6.3(a) of the ICLK Disclosure Letter or such other individuals ICLK designated by written notice to DWM writing
pursuant to Section 11.1.
(b) If,
within five (5) Business Days of delivery by the Requesting Principal Party of a valid request pursuant to Section 6.3(a),
the Receiving Principal Party does not respond and object, then the Requesting Principal Party shall be deemed to have obtained a valid
consent from the Receiving Principal Party for all purposes under this Article VI.
Article VII
ADDITIONAL AGREEMENTS
7.1 Proxy
Statement; Special Meeting; Shareholder Approvals.
(a) Proxy
Statement.
(i) As
promptly as practicable following the execution and delivery of this Agreement (and in any event no later than December 31, 2024,
subject to the timely provision by DWM and its Affiliates of requisite information, materials and comment, including the requisite financial
statements (including relevant pro forma financial information), in each case in relation to DWM Group Companies), ICLK shall, in
accordance with this Section 7.1(a), prepare and furnish with the SEC a proxy statement of ICLK (as such filing is amended
or supplemented, the “Proxy Statement”), for the purpose of soliciting proxies from holders of ICLK Class A Shares
and ICLK Class B Shares to vote at the Special Meeting (as defined below) in favor of: (1) the approval and adoption of this
Agreement and the Transactions contemplated under this Agreement (including the Merger); (2) the adoption of the ICLK A&R MAA
(and the increase and re-designation of share capital and the change of name contemplated by Section 2.1(c) above);
and (3) any other proposals the Parties agree as necessary or desirable to consummate the Transactions including with
respect to any variation of class rights to be considered by class vote of the holders of the ICLK Class B Shares (collectively,
the “ICLK Shareholder Matters”). Without the prior written consent of DWM (such consent not to be unreasonably withheld,
conditioned or delayed), the ICLK Shareholder Matters shall be the only matters (other than procedural matters) which ICLK shall propose
to be acted on by ICLK’s shareholders at the Special Meeting. ICLK shall ensure that the Proxy Statement complies to form and substance
with the applicable Legal Requirements. ICLK shall furnish the Proxy Statement with the SEC and cause the Proxy Statement to be mailed
to its shareholders of record, as of the record date to be established by the board of directors of ICLK pursuant to Section 7.1(b),
as promptly as practicable following the filing of the Proxy Statement (such date, the “Proxy Filing Date”).
(ii) In
the preparation of the Proxy Statement, ICLK will make available to DWM drafts of the Proxy Statement and any other documents to
be filed or furnished with the SEC that relate to the Transactions, both preliminary and final, and any amendment or supplement to the
Proxy Statement or such other document and will provide DWM with a reasonable opportunity to comment on such drafts and shall consider
such comments in good faith. In relation to the Transaction, ICLK shall not file or furnish any such documents with, or respond
to any comments or requests from, the SEC without the prior written consent of DWM (such consent not to be unreasonably withheld, conditioned
or delayed). ICLK will advise DWM promptly (and in any event within one (1) Business Day) after it receives notice thereof,
of: (A) the time when the Proxy Statement has been furnished with the SEC; (B) the furnishing of any supplement or amendment
to the Proxy Statement; and (C) requests by the SEC for additional information relating to the Proxy Statement, in each case of
(A), (B) and (C), together with a copy of the Proxy Statement, supplement or amendment thereto, or such request, as applicable.
(iii) If,
at any time prior to the Special Meeting, ICLK discovers any information (or, pursuant to the next sentence, is informed
by DWM that it has discovered any information) that should be set forth in an amendment or supplement to the Proxy Statement so that
it would not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading, ICLK shall promptly file an amendment or supplement to
the Proxy Statement describing or correcting such information such that the Proxy Statement no longer contains an untrue statement of
a material fact or omits to state a material fact necessary in order to make the statements, in light of the circumstances under which
they were made, not misleading, and, to the extent required by applicable Legal Requirements, disseminate such amendment or supplement
to the ICLK Shareholders. If, at any time prior to the Closing, DWM discovers any information, event or circumstance relating to itself,
its business or any of its Affiliates, officers, directors or employees that should be set forth in an amendment or a supplement to the
Proxy Statement so that it would not include any untrue statement of a material fact or omit to state any material fact necessary to
make the statements therein, in light of the circumstances under which they were made, not misleading, then it shall promptly inform
ICLK of such information, event or circumstance.
(iv) ICLK
shall make all necessary filings with respect to the Transactions under the Securities Act, the Exchange Act and applicable “blue
sky” laws, and any rules and regulations thereunder. DWM agrees to use reasonable best efforts to timely provide ICLK
with all information in its possession concerning (a) the business, management, operations and financial condition of itself and
its Subsidiaries and (b) officers, directors, employees, shareholders, and other equityholders and such other matters, in each case,
reasonably requested by ICLK for inclusion in the Proxy Statement. Each Principal Party shall cause the directors, officers and employees
of itself or its Subsidiaries to be reasonably available to ICLK and its counsel, auditors and other advisors in connection with the
drafting of the Proxy Statement.
(b) ICLK
shall, as promptly as practicable following the Proxy Filing Date, establish a record date (which date shall be agreed with DWM) for,
duly call and give notice of an extraordinary general meeting of ICLK’s shareholders which will include a class vote of the shareholders
of the ICLK Class B Shares (the “Special Meeting”). ICLK shall convene and hold the Special Meeting for the purpose
of obtaining the approval of the ICLK Shareholder Matters, which meeting shall be held not more than thirty-five (35) days after the
date on which ICLK mails the Proxy Statement to its shareholders. ICLK shall use reasonable best efforts to obtain the approval of the
ICLK Shareholder Matters at the Special Meeting, including by soliciting proxies as promptly as practicable in accordance with applicable
Legal Requirements for the purpose of seeking the approval of the ICLK Shareholder Matters. Notwithstanding anything to the contrary
contained in this Agreement, ICLK shall be entitled to (and in the case of the following clauses (ii) or (iii), at the request of DWM,
ICLK shall) postpone or adjourn the Special Meeting: (i) to ensure that any supplement or amendment to the Proxy Statement that the board
of directors of ICLK has determined in good faith is required by applicable Legal Requirements is disclosed to ICLK’s shareholders
and for such supplement or amendment to be promptly disseminated to ICLK’s shareholders with sufficient time prior to the Special
Meeting for ICLK’s shareholders to consider the disclosures contained in such supplement or amendment; (ii) if, as of the
time for which the Special Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient ICLK Shares
represented (either in person or by proxy) to constitute a quorum necessary to conduct the business to be conducted at the Special Meeting;
or (iii) in order to solicit additional proxies from shareholders for purposes of obtaining approval of the ICLK Shareholder Matters;
provided, that in the event of a postponement or adjournment pursuant to clauses (i), (ii), or (iii), the Special
Meeting shall be reconvened as promptly as practicable following such time as the matters described in such clauses have been resolved;
provided, further, that, without the consent of DWM (such consent not to be unreasonably withheld, conditioned or delayed),
in no event shall ICLK postpone or adjourn the Special Meeting for more than fifteen (15) days later than the most recently postponed
or adjourned meeting; provided, further, that in no event shall ICLK be permitted to postpone or adjourn the Special Meeting
more than three times or reconvene the Special Meeting on a date that is later than fifteen (15) Business Days prior to the Outside Date.
(c) Subject
to the proviso in the immediately following sentence, ICLK shall include the ICLK Board Recommendation in the Proxy Statement. The
board of directors of ICLK shall not (and no committee or subgroup thereof shall) change, withdraw, revoke, withhold, qualify or modify,
or publicly propose to change, withdraw, revoke, withhold, qualify or modify, the ICLK Board Recommendation (a “Change in Recommendation”);
provided, however, that the board of directors of ICLK may make a Change in Recommendation if it determines in good faith,
after consultation with its independent financial advisor and outside legal counsel, that a failure to make a Change in Recommendation
would constitute a breach by the board of directors of its fiduciary obligations to ICLK’s shareholders under applicable Legal
Requirements. ICLK agrees that its obligation to establish a record date for, duly call, give notice of, convene and hold the Special
Meeting for the purpose of seeking approval of the ICLK Shareholder Matters shall not be affected by any Change in Recommendation, and
ICLK agrees to establish a record date for, duly call, give notice of, convene and hold the Special Meeting and submit for the approval
of its shareholders the matters contemplated by the Proxy Statement as contemplated by Section 7.1(b), regardless of whether
or not there shall have occurred any Change in Recommendation.
7.2 Listing
Application; Listing.
(a) In
connection with the Merger, ICLK shall submit an initial listing application for the ADSs representing the New Class A Shares
to be approved for listing on Nasdaq. DWM shall cooperate and shall procure that its Representatives cooperate with ICLK in a timely
manner as reasonably requested by ICLK in connection with the application for such listing (the “Listing Application”)
to be submitted to Nasdaq in accordance with applicable Legal Requirements or Nasdaq requirements in connection with the Transactions,
including furnishing to ICLK and its Representatives all information concerning itself, its Subsidiaries, officers, directors, managers,
shareholders, and other equityholders and information regarding such other matters as may be reasonably necessary or as may be reasonably
requested in connection with the Listing Application. In furtherance of the foregoing, DWM hereby consents to deliver to ICLK such financial
statements as may be required by law or Nasdaq rules and regulations to be included the Listing Application.
(b) From
the date hereof through the Closing, ICLK shall ensure that ICLK remains listed as a public company on Nasdaq, in compliance with
any applicable Nasdaq rules and regulations, and that the ADSs remain listed on Nasdaq.
(c) From
the date hereof through the Closing, ICLK shall keep current and timely file all reports or information required to be filed or
furnished with the SEC and otherwise comply in all material respects with its reporting obligations under applicable Legal Requirements.
7.3 Certain
Regulatory Matters.
(a) Subject
to the terms and conditions set forth in this Agreement, each of the Parties shall use its reasonable best efforts to take, or cause
to be taken, all actions, and to do, or cause to be done, all things reasonably necessary, proper or advisable to, in the case of DWM,
submit, make or obtain, as applicable, the DWM Required Regulatory Approvals, and, in the case of the ICLK Parties, submit, make or obtain,
as applicable, the ICLK Required Regulatory Approvals, and use its reasonable best efforts to assist and cooperate with the other Parties
in the foregoing efforts.
(b) With
respect to all approvals, authorizations, consents, orders, filings, registrations or notifications under applicable Legal Requirements
(including those relating to competition, merger control, antitrust and foreign investment (including national security in relation to
foreign investment)) in connection with the execution, delivery and performance of the Transaction Documents and the Transactions contemplated
thereunder, including the ICLK Required Regulatory Approvals and the DWM Required Regulatory Approvals, each Party shall, subject to
applicable Legal Requirements including applicable confidentiality obligations, use reasonable endeavours to, (i) timely furnish
to such other Party such necessary information and reasonable assistance as such other Party may reasonably request in connection with
its preparation of, application for, or carrying out of (as the case may be), any such approval, authorization, consent, order, filing,
registration or notification and (ii) keep the other Party timely and reasonably informed of any developments, meetings or discussions
with any Governmental Entity in respect of any such approval, authorization, consent, order, filing, registration or notification (or
the status thereof, as the case may be), including the ICLK Required Regulatory Approval or the DWM Required Regulatory Approval, as
applicable.
(c) Notwithstanding
the foregoing, nothing in this Agreement shall require, or be construed to require, DWM or ICLK or any of their respective Affiliates,
as the case may be, to accept any conditions, restrictions, undertakings or commitments imposed by a competent Governmental Entity, whether
such conditions, undertakings or commitments are financial, behavioral or otherwise in nature, in connection with any DWM Required Regulatory
Approval or ICLK Required Regulatory Approval, as applicable, except for such conditions, restrictions, undertakings or commitments that
would not have a material adverse effect on the ability of such Person to continue to conduct its business following the Closing substantially
in the manner conducted in the 12-month period prior to the date hereof.
(d) The
Parties shall reasonably consult with each other promptly and prior to incurring any fees, costs or expenses (including any Regulatory
Filing Fees) in connection with any approvals, authorizations, consents, orders, filings, registrations or notifications under
the applicable Legal Requirements in connection with the execution, delivery and performance of the Transaction Documents and the Transactions
contemplated thereunder, and shall consider the other Parties’ comments as to the reasonableness of the amount of such fees, costs
or expenses in good faith, and shall, upon request by such other Party(ies), provide reasonable relevant supporting documentation evidencing
such fees, costs or expenses which would be incurred.
7.4 Other
Filings; Press Release.
(a) As
promptly as practicable after execution of this Agreement, ICLK will prepare and file a report on Form 6-K pursuant to the
Exchange Act to report the execution of this Agreement, the form and substance of which shall be agreed in advance in writing by the
Principal Parties.
(b) Any
press release announcing the execution of this Agreement issued by any Principal Party or its Affiliates shall be subject to the reasonable
approval of the other Principal Party.
7.5 Confidentiality;
Communications Plan; Access to Information.
(a) Beginning
on the date hereof and ending on the second anniversary of this Agreement, each Party agrees to maintain in confidence any non-public
information received from the other Parties, and to use such non-public information only for purposes of consummating the Transactions.
With respect to each Party, such confidentiality obligations will not apply to: (i) information which was known to such Party or
its Representatives prior to their receipt of such information from the another Party hereto; (ii) information which is or becomes
generally known to the public without breach by such Party of this Agreement or an existing obligation of confidentiality; (iii) information
acquired by such Party or its Representative from a third party who was not bound to an obligation of confidentiality; (iv) information
developed by such Party independently without any reliance on the non-public information received from any other Party; (v) disclosure
required by applicable Legal Requirement or stock exchange rule; or (vi) prior to the Closing, disclosure consented to in writing
by ICLK (with respect to the non-public information of an ICLK Party) or DWM (with respect to the non-public information of DWM). Notwithstanding
anything to the contrary, this Section 7.5(a) shall terminate and be of no further force or effect upon the Closing.
(b) The
Principal Parties shall reasonably cooperate to create and implement a communications plan regarding the Transactions promptly following
the date hereof. Notwithstanding the foregoing, none of the Parties or any of their respective Affiliates will make any public announcement
or issue any public communication regarding this Agreement, the other Transaction Agreements or the Transactions or any matter related
to the foregoing, without the prior written consent of the Principal Parties (such consents, in either case, not to be unreasonably withheld,
conditioned or delayed), except: (i) if such announcement or other communication is required by applicable Legal Requirements or
stock exchange rules, in which case (other than routine disclosures to Governmental Entities in the ordinary course of business) the
disclosing Party first shall allow such other Parties to review, to the extent reasonably practicable and subject to the Legal Requirements
or stock exchange rules, as applicable, such public announcement or public communication and have the opportunity to comment thereon
and the disclosing Party shall consider such comments in good faith; (ii) if such announcement or other communication is made in
connection with fundraising or other investment related activities and is made to such Person’s direct and indirect investors or
potential investors or financing sources subject to an obligation of confidentiality; (iii) (x) internal announcements to employees
of a Principal Party or (y) communications to banks, customers or suppliers of a Principal Party, in each case, as such Principal
Party determines to be reasonably appropriate in good faith; (iv) to the extent such announcements or other communications contain
only information previously disclosed in a public statement, press release or other communication previously approved in accordance with
Section 7.4 or this Section 7.5(b); and (v) announcements and communications to Governmental Entities
in connection with registrations, declarations and filings relating to the Transactions required to be made under this Agreement; provided
that in the case of clause (iii), such announcement or other communication shall be made in accordance with the communication plan
agreed upon by the Parties pursuant to the first sentence of this Section 7.5(b).
(c) DWM
will afford ICLK and its Representatives reasonable access during normal business hours, upon reasonable advance written notice, to the
properties, books, records and personnel of the DWM Group Companies during the period prior to the Closing to obtain all information
concerning the business, including the status of business development efforts, properties, results of operations and personnel of the
DWM Group Companies, as ICLK may reasonably request in connection with the consummation of the Transactions; provided, however,
that any such access shall be conducted in a manner not to materially interfere with the businesses or operations of such DWM Group Companies.
ICLK will afford DWM and its Representatives reasonable access during normal business hours, upon reasonable advance written notice,
to the properties, books, records and personnel of ICLK Group Companies during the period prior to the Closing to obtain all information
concerning the business, including the status of business development efforts, properties, results of operations and personnel of ICLK
Group Companies, as DWM may reasonably request in connection with the consummation of the Transactions; provided, however,
that any such access shall be conducted in a manner not to materially interfere with the businesses or operations of ICLK Group Companies.
Notwithstanding anything to the contrary, the Parties shall not be required to take any action, provide any access or furnish any information
that such Party in good faith reasonably believes would be reasonably likely to (i) cause or constitute a waiver of the attorney-client
or other privilege or, (ii) violate any Contract to which such Party is a party or bound, provided, that the Parties
agree to cooperate in good faith to make alternative arrangements to allow for such access or furnishings in a manner that does not result
in the events set out in clauses (i) and (ii).
7.6 Reasonable
Best Efforts. Upon the terms and subject to the conditions set forth in this Agreement, each of the Parties agrees to use reasonable
best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other Parties
in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the
Merger and the other Transactions, including using reasonable best efforts to accomplish the following: (a) the taking of all commercially
reasonable acts necessary to cause the conditions precedent set forth in Article VIII to be satisfied; (b) the obtaining
of all necessary waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations,
declarations and filings with Governmental Entities, and the taking of all commercially reasonable steps as may be necessary to avoid
any Legal Proceeding against this Agreement or any of the Transactions contemplated by this Agreement; (c) in the case of DWM, the
obtaining of all consents, approvals or waivers from, and the notification to, as applicable, third parties set forth on Schedule
7.6(c) of the DWM Disclosure Letter; (d) in the case of the ICLK Parties, the obtaining of all consents, approvals or waivers
from, and the notification to, as applicable, third parties set forth on Schedule 7.6(d) of the ICLK Disclosure Letter; (e) the
defending of any Legal Proceeding challenging this Agreement or the consummation of the Transactions, including seeking to have any stay
or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (f) the execution or delivery
of any additional instruments reasonably necessary to consummate, and to fully carry out the purposes of, the Transactions.
7.7 Certain
Deliverables. No later than the Closing, DWM shall cause AB or a designee of AB with financial capacity to ICLK’s reasonable
satisfaction (other than any DWM Group Company) to provide a binding undertaking as described on Schedule 7.7 of the DWM Disclosure
Letter reasonably satisfactory to the ICLK Parties.
7.8 Disclosure
of Certain Matters. Each Party hereto will promptly provide the other Parties with prompt written notice of: (a) any event,
development or condition of which it obtains Knowledge that: (i) is reasonably likely to cause any of the conditions set forth in
Article VIII not to be satisfied; (ii) would require any amendment or supplement to the Proxy Statement; or (b) the
receipt of written notice from any Person alleging that the consent of such Person may be required in connection with the Transactions.
7.9 No
Solicitation.
(a) During
the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms
and the Closing, DWM shall not, and shall cause its Affiliates not to, and shall direct DWM’s and its Affiliates’ respective
employees, agents, officers, directors, managers, representatives and advisors (collectively, “Representatives”) not
to, directly or indirectly, other than pursuant to the DWM Asset Restructuring, the DWM Capital Restructuring and/or as otherwise
contemplated by this Agreement: (i) solicit, initiate, enter into or continue discussions, negotiations or transactions with, or
encourage or respond to any inquiries or proposals by, or provide any information to, any Person (other than the Parties hereto and their
respective Representatives) concerning any merger, consolidation, sale of any material portion of the ownership interests and/or assets
of any of the DWM Group Companies (assuming the completion of the DWM Asset Restructuring), recapitalization of any of the DWM Group
Companies (assuming the completion of the DWM Asset Restructuring) or similar transaction involving any of the DWM Group Companies (assuming
the completion of the DWM Asset Restructuring) (each, a “DWM Business Combination”); (ii) enter into any Contract
regarding, continue or otherwise participate in any discussions or negotiations regarding, or cooperate in any way that would otherwise
reasonably be expected to lead to a DWM Business Combination; or (iii) commence, continue, renew or respond to any due diligence
investigation regarding a DWM Business Combination. DWM shall, and shall cause its Affiliates to, and shall cause DWM’s and its
Affiliates’ respective Representatives to, immediately cease any and all existing discussions, negotiations or other engagement
with any Person with respect to any DWM Business Combination.
(b) During
the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms
and the Closing, each ICLK Party shall not, and shall cause their respective Affiliates not to, and shall direct each ICLK Party’s
and their Affiliates’ respective Representatives not to, directly or indirectly, other than as contemplated by this Agreement:
(i) solicit, initiate, enter into or continue discussions, negotiations or transactions with, or encourage or respond to any inquiries
or proposals by, or provide any information to, any Person (other than the Parties hereto and their respective Representatives) concerning
any merger, consolidation, sale of ownership interests or assets of the ICLK Group Companies, recapitalization of any of the ICLK Group
Companies or similar transaction involving any of the ICLK Group Companies (each, an “ICLK Business Combination”);
(ii) enter into any Contract regarding, continue or otherwise participate in any discussions or negotiations regarding, or cooperate
in any way that would otherwise reasonably be expected to lead to an ICLK Business Combination; or (iii) commence, continue, renew
or respond to any due diligence investigation regarding an ICLK Business Combination. Each ICLK Party shall, and shall cause its Affiliates
to, and shall cause each ICLK Party’s and their Affiliates’ respective Representatives to, immediately cease any and all
existing discussions, negotiations or other engagement with any Person with respect to any ICLK Business Combination.
(c) Each
Party shall promptly (and in no event later than 48 hours after becoming aware of such inquiry, proposal, offer or submission) notify
the other Parties if it or, to its Knowledge, any of its or its Representatives receives any inquiry, proposal, offer or submission with
respect to a DWM Business Combination or an ICLK Business Combination, as applicable (including the identity of the Person making such
inquiry or submitting such proposal, offer or submission), after the execution and delivery of this Agreement. If any Party or its Representatives
receives an inquiry, proposal, offer or submission with respect to a DWM Business Combination or an ICLK Business Combination, as applicable,
such Party shall provide the other Parties with a copy of such inquiry, proposal, offer or submission. Notwithstanding anything to the
contrary, any Party may respond to any unsolicited proposal regarding a DWM Business Combination or an ICLK Business Combination by stating
only that such Party has entered into a binding definitive agreement with respect to a business combination and is unable to provide
any information related to such Party or any of its Subsidiaries or entertain any proposals or offers or engage in any negotiations or
discussions concerning a DWM Business Combination or an ICLK Business Combination, as applicable.
7.10 Director
and Officer Indemnification and Insurance.
(a) DWM
Group Companies.
(i) ICLK
agrees that all rights to exculpation, indemnification and advancement of expenses now existing in favor of the current or former directors
or officers, as the case may be, of any DWM Group Company (each, together with such person’s heirs, executors or administrators,
a “DWM D&O Indemnified Party”), as provided in their respective Governing Documents, shall survive the Closing
and shall continue in full force and effect. For a period of six years following the Closing Date, ICLK shall cause each DWM Group
Company to maintain in effect the exculpation, indemnification and advancement of expenses provisions of its Governing Documents as in
effect immediately prior to the Closing Date, and ICLK shall, and shall cause the DWM Group Companies to, not amend, repeal or otherwise
modify any such provisions in any manner that would adversely affect the rights thereunder of any DWM D&O Indemnified Party; provided,
however, that all rights to indemnification or advancement of expenses in respect of any Legal Proceedings pending or asserted
or any claim made within such period shall continue until the disposition of such Legal Proceeding or resolution of such claim.
(ii) Prior
to the Closing, DWM shall use its commercially reasonable efforts to obtain a “tail” or “runoff” directors’
and officers’ liability insurance policy (the “DWM D&O Tail”) or alternatively an annual ongoing directors’
and officers’ liability insurance, in each case, in respect of acts or omissions occurring prior to the Effective Time, covering
each such Person that is a director or officer of a DWM Group Company currently covered by DWM’s and its Affiliates’ directors’
and officers’ liability insurance policies on terms with respect to coverage and amounts as commercially practicable under market
conditions at such time. Where applicable, ICLK shall, and shall cause the Surviving Sub to, maintain the DWM D&O Tail in full
force and effect for their full terms and cause all obligations thereunder to be honored by the DWM Group Companies, as applicable,
and no other party shall have any further obligation to purchase or pay for such insurance pursuant to this Section 7.10(a)(ii).
(iii) The
rights of each DWM D&O Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such
person may have under the Governing Documents of any DWM Group Company, any other indemnification arrangement, any Legal Requirement
or otherwise. The obligations of ICLK and the DWM Group Companies under this Section 7.10(a) shall not be terminated
or modified in such a manner as to adversely affect any DWM D&O Indemnified Party without the consent of such DWM D&O Indemnified
Party. The provisions of this Section 7.10(a) shall survive the Closing and expressly are intended to benefit, and are
enforceable by, each of the DWM D&O Indemnified Parties, each of whom is an intended third-party beneficiary of this Section 7.10(a).
(iv) If
ICLK or, after the Closing, any DWM Group Company, or any of their respective successors or assigns: (x) consolidates with
or merges into any other Person and shall not be the continuing or surviving entity of such consolidation or merger; or (y) transfers
or conveys all or substantially all of its properties and assets to any Person, then, in each such case, proper provision shall be made
so that the successors and assigns of ICLK or such DWM Group Company, as applicable, assume the obligations set forth in this Section 7.10(a).
(b) ICLK.
(i) ICLK
agrees that all rights to exculpation, indemnification and advancement of expenses now existing in favor of the current or former directors
or officers, as the case may be, of ICLK (each, together with such person’s heirs, executors or administrators, an “ICLK
D&O Indemnified Party”), as provided in its Governing Documents, shall survive the Closing and shall continue in full force
and effect. For a period of six years following the Closing Date, ICLK shall maintain in effect the exculpation, indemnification
and advancement of expenses provisions of ICLK’s Governing Documents as in effect immediately after the Closing Date, and ICLK
shall not amend, repeal or otherwise modify any such provisions in any manner that would adversely affect the rights thereunder of any
ICLK D&O Indemnified Party; provided, however, that all rights to indemnification or advancement of expenses in respect
of any Legal Proceedings pending or asserted or any claim made within such period shall continue until the disposition of such Legal
Proceeding or resolution of such claim.
(ii) Prior
to the Closing, ICLK shall purchase a “tail” or “runoff” directors’ and officers’ liability
insurance policy (the “ICLK D&O Tail”) in respect of acts or omissions occurring prior to the Effective Time covering
each such Person that is a director or officer of ICLK currently covered by the ICLK and its Affiliates’ directors’ and officers’
liability insurance policies on terms with respect to coverage, deductibles and amounts no less favorable than those of such policy in
effect on the date of this Agreement (or as commercially practicable under market conditions at such time). The ICLK D&O Tail shall
be maintained for the six-year period following the Closing. ICLK shall maintain the ICLK D&O Tail in full force and effect for its
full term and honor all obligations thereunder, and no other party shall have any further obligation to purchase or pay for such insurance
pursuant to this Section 7.10(b)(ii).
(iii) The
rights of each ICLK D&O Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such person
may have under the Governing Documents of ICLK, any other indemnification arrangement, any Legal Requirement or otherwise. The obligations
of ICLK under this Section 7.10(b) shall not be terminated or modified in such a manner as to adversely affect any ICLK
D&O Indemnified Party without the consent of such ICLK D&O Indemnified Party. The provisions of this Section 7.10(b) shall
survive the Closing and expressly are intended to benefit, and are enforceable by, each of the ICLK D&O Indemnified Parties, each
of whom is an intended third-party beneficiary of this Section 7.10(b).
(iv) If
ICLK or any of their respective successors or assigns: (x) consolidates with or merges into any other Person and shall not
be the continuing or surviving entity of such consolidation or merger; or (y) transfers or conveys all or substantially all of its
properties and assets to any Person, then, in each such case, proper provision shall be made so that the successors and assigns of ICLK
assume the obligations set forth in this Section 7.10(b).
7.11 Tax
Matters.
(a) Notwithstanding
anything in this Agreement to the contrary, transfer, documentary, sales, use, stamp, registration, excise, recording, registration value
added and other such similar Taxes and fees (including any penalties and interest) that become payable by a Party hereto in connection
with or by reason of the execution of this Agreement and the Transactions contemplated under this Agreement (but excluding the other
Transaction Agreements) (collectively, “Transfer Taxes”) shall be borne and paid by ICLK, provided that, for the avoidance
of doubt, ICLK shall not bear and pay/reimburse the Transfer Taxes of DWM (including those in connection with the DWM Asset Restructuring
or the DWM Capital Restructuring) in the event that the Closing does not occur. The party required by applicable Legal Requirement
shall timely file any Tax Return or other document with respect to such Taxes or fees (and the Parties shall reasonably cooperate with
respect thereto as necessary).
(b) ICLK
shall procure that Optimix Media Asia Limited to comply with its obligations in accordance with applicable Legal Requirements under (i)
Section 6.2(d) (Tax Filing) of the share purchase agreement, dated July 19, 2024, by and among Tetris Media Limited, Optimix Media Asia
Limited and BeihaiOne Limited and (ii) Section 6.2(d) (Tax Filing) of the share purchase agreement, dated as of September 11, 2024, by
and among Digital Marketing Group Limited, Optimix Media Asia Limited and SiAct Inc.
7.12 Board
of Directors; Officer.
(a) ICLK
shall take all necessary action prior to the Effective Time such that (i) each director of ICLK in office immediately prior to the
Effective Time shall cease to be a director immediately following the Effective Time (including by causing each such director to tender
an irrevocable resignation as a director, effective as of the Effective Time) and (ii) the ICLK Board, immediately after the Effective
Time, shall consist of no more than seven (7) directors (each, an “ICLK Director”), all of which will be designated
in writing by DWM at least ten (10) Business Days prior to the Closing, including one director designated by DWM as the chairman
of the ICLK Board.
(b) Each
ICLK Director shall have one (1) vote.
(c) The
parties acknowledge that so long as ICLK remains a public reporting company, the ICLK Board will continue to satisfy applicable securities
laws and the Nasdaq rules, including maintaining an independent audit committee. ICLK shall enter into an indemnification agreement with
each member of the ICLK Board, on a form to be determined by DWM in good faith, within fifteen (15) days of the appointment of the applicable
members of the ICLK Board.
(d) ICLK
shall take all necessary action prior to the Effective Time such that (i) each officer of ICLK in office immediately prior to the
Effective Time shall cease to be an officer immediately following the Effective Time and (ii) such individuals designated in writing
by DWM at least ten (10) Business Days prior to the Closing be appointed the officers of ICLK as of the Effective Time until the
earlier of their death, resignation or removal or until their respective successors are duly elected or appointed; provided that,
each of the person identified on Schedule 7.12(d) of the ICLK Disclosure Letter shall be offered an opportunity to remain
employed by the applicable ICLK Group Company from the Effective Time to the first anniversary of the Effective Time, on terms no less
favorable than the terms of his or her employment immediately prior to the Effective Time.
(e) The
Parties acknowledge that prior to the Effective Time, the directors of ICLK as identified on Schedule 7.12(e) of the ICLK
Disclosure Schedule are not expected to be involved in the decision-making of any matters relating to the operations and management
of the Target Operations after the Effective Time.
7.13 DWM
Asset Restructuring.
(a) DWM
shall, and shall cause its Affiliates to, complete the DWM Asset Restructuring pursuant to the DWM Asset Restructuring plan attached
hereto as Schedule 1 (including any subsequent modification or variation agreed by ICLK in writing, the “DWM Asset Restructuring
Plan”) in accordance with the terms and conditions (including as to timing) therein and in compliance with applicable Legal
Requirements.
(b) DWM
shall keep ICLK reasonably informed of the status and progress of the DWM Asset Restructuring in all material respects (including any
potential material obstacles or delays).
(c) Prior
to the completion of the DWM Asset Restructuring, DWM shall cause WFTL to service, perform its obligations and exercise its rights under
the WFTL Assigned Contracts in the ordinary course of business consistent with past practices, and shall use commercially reasonable
efforts to maintain the client relationship under the WFLT Assigned Contracts in the ordinary course of business consistent with past
practices.
7.14 Financial
Requirement
(a) Within
ten (10) Business Days after December 31, 2024 (or such other date as agreed by ICLK and DWM), DWM shall deliver to ICLK the
calculation of the DWM Cash Level as of December 31, 2024 (the “DWM Cash Level Calculation”), accompanied by
reasonable relevant supporting documentation used by DWM in calculating such estimated amounts of the DWM Cash Level, together with a
certificate of the highest ranking financial officer of DWM certifying that such calculation has been prepared in good faith and in accordance
with this Agreement and the other Transaction Agreements. ICLK and its Representatives shall have a reasonable opportunity to review
and to discuss with DWM and its Representatives the documentation provided pursuant to this Section 7.14(a) and any
relevant books and records of the DWM Group Companies. DWM and its Representatives shall reasonably assist ICLK and its Representatives
in its review of such documentation. ICLK and Merger Sub will be entitled (but not obligated) to rely in all respects upon the DWM Cash
Level Calculation.
(b) Within
ten (10) Business Days after December 31, 2024 (or such other date as agreed by ICLK and DWM), ICLK shall deliver to DWM
the calculation of the ICLK Cash Level as of December 31, 2024 (the “ICLK Cash Level Calculation”), accompanied
by reasonable relevant supporting documentation used by ICLK in calculating such estimated amounts of the ICLK Cash Level, together
with a certificate of the highest ranking financial officer of ICLK certifying that such calculation has been prepared in good faith
and in accordance with this Agreement and the other Transaction Agreements. DWM and its Representatives shall have a reasonable opportunity
to review and to discuss with ICLK and its Representatives the documentation provided pursuant to this Section 7.14(b) and
any relevant books and records of the ICLK Group Companies. ICLK and its Representatives shall reasonably assist DWM and its Representatives
in its review of such documentation. DWM will be entitled (but not obligated) to rely in all respects upon the ICLK Cash Level Calculation.
Article VIII
CONDITIONS TO THE TRANSACTION
8.1 Conditions
to Obligations of Each Party’s Obligations. The respective obligations of each Party to this Agreement to effect the Merger
and the other Transactions contemplated under this Agreement shall be subject to the satisfaction of each of the following conditions
as of the Closing:
(a) At
the Special Meeting (including any adjournments thereof), the ICLK Shareholder Approval shall have been obtained and shall remain in
full force and effect.
(b) The
DWM Required Regulatory Approvals and ICLK Required Regulatory Approvals shall have been made or obtained, as applicable, and remain
effective.
(c) No
provision of any applicable Legal Requirement prohibiting, enjoining, restricting or making illegal the consummation of the Transactions
contemplated under this Agreement shall be in effect, and no temporary, preliminary or permanent restraining Order enjoining, restricting
or making illegal the consummation of the Transactions contemplated under this Agreement shall be in effect.
(d) Nasdaq
approval of the Listing Application submitted by ICLK shall have been obtained.
(e) No
general suspension or material limitation of trading in the ADSs has been imposed or threatened by the SEC or Nasdaq.
(f) The
ICLK Board shall consist of up to seven (7) directors designated by DWM immediately after the Effective Time.
8.2 Additional
Conditions to Obligations of DWM. The obligations of DWM to consummate and effect the Merger and the other Transactions contemplated
under this Agreement shall be subject to the satisfaction of each of the following conditions as of the Closing, any of which may be
waived, in writing, exclusively by DWM:
(a) (i) The
Fundamental Representations of each ICLK Party shall be true and correct in all respects on and as of the Closing Date as though made
on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date,
in which case such representation and warranty shall be true and correct in all respects as of such earlier date); and (ii) all
other representations and warranties set forth in Article V hereof shall be true and correct (without giving effect to any
limitation as to “materiality” or “ICLK Material Adverse Effect” or any similar limitation contained herein)
on and as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty
expressly speaks as of an earlier date, in which case such representation and warranty shall be so true and correct as of such earlier
date), except in the case of this clause (ii), where any failures of such representations and warranties to be so true and correct,
individually and in the aggregate, has not had and is not reasonably likely to have an ICLK Material Adverse Effect.
(b) Each
ICLK Party shall have performed or complied with all agreements and covenants required by this Agreement and the other Transaction Agreements
to be performed or complied with by it on or prior to the Closing Date, in each case in all material respects.
(c) No
ICLK Material Adverse Effect shall have occurred since the date of this Agreement.
(d) The
Financial Requirement with respect to ICLK is satisfied.
(e) ICLK
shall have delivered to DWM a certificate, signed by a duly authorized officer of ICLK and dated as of the Closing Date, certifying as
to the matters set forth in Section 8.2(a) through Section 8.2(d).
(f) The
memorandum and articles of association of ICLK shall have been amended and restated in its entirety in the form of the ICLK A&R MAA
and the ICLK Class B Share Conversion shall have occurred in connection therewith.
8.3 Additional
Conditions to the Obligations of ICLK. The obligations of the ICLK Parties to consummate and effect the Merger and the other Transactions
contemplated under this Agreement shall be subject to the satisfaction of each of the following conditions as of the Closing, any of
which may be waived, in writing, exclusively by ICLK:
(a) (i) The
Fundamental Representations of DWM shall be true and correct in all respects on and as of the Closing Date as though made on and as of
the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case
such representation and warranty shall be true and correct in all respects as of such earlier date); and (ii) all other representations
and warranties set forth in Article IV hereof shall be true and correct (without giving effect to any limitation as to “materiality”
or “DWM Material Adverse Effect” or any similar limitation contained herein) on and as of the Closing Date as though
made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier
date, in which case such representation and warranty shall be so true and correct as of such earlier date), except in the case of this
clause (ii), where any failures of such representations and warranties to be so true and correct, individually and in the aggregate,
has not had and is not reasonably likely to have a DWM Material Adverse Effect.
(b) DWM
shall have performed or complied with all agreements and covenants required by this Agreement and the other Transaction Agreements to
be performed or complied with by it on or prior to the Closing Date, in each case in all material respects.
(c) No
DWM Material Adverse Effect shall have occurred since the date of this Agreement.
(d) The
DWM Asset Restructuring shall have been completed pursuant to the terms hereof.
(e) The
Financial Requirement with respect to DWM is satisfied.
(f) DWM
shall have delivered to ICLK a certificate, signed by a duly authorized officer of DWM and dated as of the Closing Date, certifying as
to the matters set forth in Section 8.3(a) through Section 8.3(e).
(g) DWM
shall have satisfied its obligations under Section 7.7.
Article IX
TERMINATION
9.1 Termination.
This Agreement may be terminated at any time prior to the Closing:
(a) by
mutual written agreement of the Principal Parties at any time;
(b) by
any Principal Party if the Closing shall not have occurred by June 30, 2025 (the “Outside Date”); provided,
however, that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any Principal
Party if the action or failure to act of such Principal Party (or in the case of ICLK, any ICLK Party) has been a principal cause of
or resulted in the failure of the Closing to occur on or before the Outside Date and such action or failure to act constitutes a breach
of this Agreement; provided, further, that in the event that, at the Outside Date, all of the conditions set forth in Sections
8.1 and 8.2 have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing,
provided that each of such conditions is capable of being satisfied at the Closing), except for the condition set forth in Section 8.1(b),
such Principal Party proposing to exercise the right to terminate this Agreement under this Section 9.1(b) shall have
engaged in good faith discussion for a period of no less than five (5) Business Days with the other Principal Party on alternative
solutions to carry out the commercial intent of the Transactions.
(c) by
any Principal Party if a Governmental Entity shall have issued a final, non-appealable Order or taken any other non-appealable action,
in any case having the effect of permanently restraining, enjoining or otherwise prohibiting the Transactions contemplated under this
Agreement, including the Merger; provided further, that the right
to terminate this Agreement pursuant to this Section 9.1(c) shall not be available to any Party if the issuance of such
final, non-appealable Order or the taking of such non-appealable action was
due to such Party’s failure to comply with any provision of this Agreement;
(d) by
DWM, upon a breach of any covenant or agreement set forth in this Agreement on the part of any ICLK Party, or if any representation or
warranty of any ICLK Party shall have become untrue, in either case, such that the conditions set forth in Sections 8.1 and 8.2
would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become untrue;
provided, that if such breach by the ICLK Party is curable by the ICLK Parties prior to the Outside Date, then DWM must
first provide written notice of such breach to ICLK and may only terminate this Agreement under this Section 9.1(d) if
such breach remains uncured on the earlier of: (i) thirty (30) days after delivery of written notice from DWM to ICLK of such breach,
and (ii) fifteen (15) Business Days prior to the Outside Date; provided, further, that it being understood
that DWM may not terminate this Agreement pursuant to this Section 9.1(d) if it shall have materially breached this
Agreement and such breach has not been cured;
(e) by
ICLK, upon a breach of any covenant or agreement set forth in this Agreement on the part of DWM or if any representation or warranty
of DWM shall have become untrue, in either case such that the conditions set forth in Sections 8.1 and 8.3 would not be
satisfied as of the time of such breach or as of the time such representation or warranty shall have become untrue; provided,
that if such breach is curable by DWM prior to the Outside Date, then ICLK must first provide written notice of such breach to
DWM and may only terminate this Agreement under this Section 9.1(e), if such breach remains uncured on the earlier of: (i) thirty
(30) days after delivery of written notice from ICLK to DWM of such breach, and (ii) fifteen (15) Business Days prior to
the Outside Date; provided, further, that it being understood that ICLK may not terminate this Agreement pursuant to this
Section 9.1(e) if it shall have materially breached this Agreement and such breach has not been cured; and
(f) by
any Principal Party, if, at the Special Meeting (including any adjournments thereof), the ICLK Shareholder Approval is not obtained;
provided that, ICLK may not terminate this Agreement pursuant
to this Section 9.1(f) if such failure to obtain the ICLK Shareholder
Approval is a result of any breach under any ICLK Voting Agreement by any shareholder of ICLK party thereto or any breach by any ICLK
Party under this Agreement.
9.2 Notice
of Termination; Effect of Termination.
(a) Any
termination of this Agreement under Section 9.1 above will be effective immediately upon the delivery of written notice by
the terminating Party to the other Parties.
(b) In
the event of the termination of this Agreement as provided in Section 9.1, this Agreement shall be of no further force or
effect and the Transactions contemplated under this Agreement shall be abandoned, except for and subject to the following: (i) Section 7.5(a) (Confidentiality;
Communications Plan; Access to Information), this Section 9.2 (Notice of Termination; Effect of Termination), Section 9.3
(Termination Fee) and Article XI (General Provisions) shall survive the termination of this Agreement; and (ii) nothing
herein shall relieve any Party from liability for any intentional breach of this Agreement or fraud.
9.3 Termination
Fee.
(a) In
the event that:
(i) this
Agreement is terminated by DWM pursuant to Section 9.1(d);
(ii) this
Agreement is terminated pursuant to Section 9.1(b) and, at the time of such termination, (x) all of the conditions
set forth in Sections 8.1 and 8.3 have been satisfied or waived (other than those conditions that by their nature are to
be satisfied at the Closing, provided that each of such conditions is capable of being satisfied at the Closing), (y) DWM has irrevocably
confirmed by written notice to ICLK that all conditions set forth in Section 8.2 have been satisfied, or that it is willing
to waive any unsatisfied condition in Section 8.2, and that DWM is ready, willing and able to complete the Merger, and (z) ICLK
and/or Merger Sub shall have failed to take necessary steps on its part to effect the Closing prior to the earlier of the Outside Date
and twenty (20) Business Days following the anticipated Closing Date as set forth under Section 2.2; or
(iii) this
Agreement is terminated pursuant to Section 9.1(f),
then
ICLK shall pay, or cause to be paid, to DWM or its designees an amount in cash equal to US$1,200,000 (the “ICLK Termination
Fee”) by wire transfer of same day funds as promptly as possible (but in any event (x) within five (5) Business Days
after such termination); it being agreed that in no event shall the Company be required to pay the Company Termination Fee more than
once.
(b) In
the event that:
(i) this
Agreement is terminated by ICLK pursuant to Section 9.1(e);
(ii) this
Agreement is terminated pursuant to Section 9.1(b) and, at the time of such termination, (x) all of the conditions
set forth in Sections 8.1 and 8.2 have been satisfied or waived (other than those conditions that by their nature are to
be satisfied at the Closing, provided that each of such conditions is capable of being satisfied at the Closing), (y) ICLK and Merger
Sub have irrevocably confirmed by written notice to DWM that all conditions set forth in Section 8.3 have been satisfied,
or that they are willing to waive any unsatisfied condition in Section 8.3, and that ICLK and Merger Sub are ready, willing
and able to complete the Merger, and (z) DWM shall have failed to take necessary steps on its part to effect the Closing prior to
earlier of the Outside Date and twenty (20) Business Days following the anticipated Closing Date as set forth under Section 2.2;
or
(iii) this
Agreement is terminated pursuant to Section 9.1(c), but solely with respect to such Order or action permanently restraining,
enjoining or otherwise prohibiting the DWM Asset Restructuring,
then DWM shall pay, or cause to be paid, to ICLK
or its designees an amount in cash equal to $1,200,000 (the “DWM Termination Fee”) by wire transfer of same day funds
as promptly as possible (but in any event (x) within five (5) Business Days after such termination); it being agreed that in
no event shall DWM be required to pay the DWM Termination Fee more than once.
(c) In
the event that ICLK fails to pay the ICLK Termination Fee, or DWM fails to pay the DWM Termination Fee, when due and in accordance with
the requirements of this Agreement, ICLK, on the one hand, or DWM, on the other hand, as the case may be, shall reimburse the other
for reasonable costs and expenses actually incurred or accrued by the other Party or Parties (including fees and expenses of counsel)
in connection with the collection under and enforcement of this Section 9.3, together with interest on such unpaid ICLK
Termination Fee or DWM Termination Fee, as the case may be, commencing on the date that the ICLK Termination Fee or DWM Termination Fee,
as the case may be, became due until the date such amount is actually received by the applicable Party, at the prime rate as published
in The Wall Street Journal on such date plus 1.00% or a lesser rate that is the maximum permitted by applicable Law. Such collection
expenses shall not otherwise diminish in any way the payment obligations hereunder.
(d) Subject
to Section 11.6, ICLK’s right to (i) terminate this Agreement and receive the DWM Termination Fee pursuant
to Section 9.3(b), and (ii) if applicable, receive reimbursement and interest pursuant to Section 9.3(c) shall
be the sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) of any ICLK Party against (A) DWM
or the DWM Group Companies, (B) the former, current and future direct or indirect holders of any equity, general or limited partnership
or liability company interest, controlling persons, management companies, portfolio companies, incorporators, Representatives, Affiliates,
members, managers, general or limited partners, stockholders, successors or assignees of DWM or DWM Group Company, or (C) any former,
current or future direct or indirect holders of any equity, general or limited partnership or limited liability company interest, controlling
persons, management companies, portfolio companies, incorporators, directors, officers, employees, agents, advisors, attorneys, Representatives,
Affiliates, members, managers, general or limited partners, stockholders, successors or assignees of any of the foregoing (clauses (A) through
(C), collectively, the “DWM Group”), for any loss or damage suffered as a result of any breach of any representation,
warranty, covenant or agreement under this Agreement or any certificate or other document delivered in connection herewith or failure
to perform hereunder or other failure of the Merger or the other Transactions to be consummated. For the avoidance of doubt, neither
DWM nor any other member of the DWM Group shall have any liability for monetary damages of any kind or nature or arising in any circumstance
in connection with this Agreement or any of the Transactions other than the payment of the DWM Termination Fee pursuant to Section 9.3(b) and
the reimbursement and interest pursuant to Section 9.3(c), and in no event shall (I) any ICLK Group Company, (II) the
former, current and future direct or indirect holders of any equity, general or limited partnership or liability company interest, controlling
persons, management companies, portfolio companies, incorporators, Representatives, Affiliates, members, managers, general or limited
partners, stockholders, successors or assignees of any ICLK Group Company, or (C) any former, current or future direct or indirect
holders of any equity, general or limited partnership or limited liability company interest, controlling persons, management companies,
portfolio companies, incorporators, directors, officers, employees, agents, advisors, attorneys, Representatives, Affiliates, members,
managers, general or limited partners, stockholders, successors or assignees of any of the foregoing (clauses (I) through (III),
collectively, the “ICLK Group”), seek, or permit to be sought, on behalf of any member of the ICLK Group, any monetary
damages from any member of the DWM Group in connection with this Agreement (or any certificate or other document delivered in connection
herewith) or any of the Transactions, other than (without duplication) from (A) DWM to the extent provided in Section 9.3(b) and
Section 9.3(c). This provision was specifically bargained for and is intended to be for the benefit of, and shall be
enforceable by, each member of the DWM Group.
(e) Subject
to Section 11.6, DWM’s right to terminate this Agreement and receive the ICLK Termination Fee pursuant to Section 9.3(a) and
reimbursement and interest under Section 9.3(c) shall be the sole and exclusive remedy (whether at law, in equity, in
contract, in tort or otherwise) of any member of the DWM Group against any member of the ICLK Group for any loss or damage suffered as
a result of any breach of any representation, warranty, covenant or agreement under this Agreement or any certificate or other document
delivered in connection herewith or failure to perform hereunder or other failure of the Merger to be consummated. Neither ICLK nor any
member of the ICLK Group shall have any liability for monetary damages of any kind or nature or arising in any circumstance in connection
with this Agreement or any of the Transactions other than the payment by ICLK of the ICLK Termination Fee pursuant to Section 9.3(a) and
the reimbursement and interest under Section 9.3(c), and in no event shall DWM or any other member of the DWM Group seek,
or permit to be sought, on behalf of any member of the DWM Group, any monetary damages from any member of the ICLK Group in connection
with this Agreement (or any certificate or other document delivered in connection herewith) or any of the Transactions, other than (without
duplication) from ICLK to the extent provided in Section 9.3(a) and Section 9.3(c). This provision
was specifically bargained for and is intended to be for the benefit of, and shall be enforceable by, each member of the ICLK Group.
(f) Each
of the Parties acknowledges that (i) the agreements contained in this Section 9.3 are an integral part of the Transactions,
(ii) the damages resulting from termination of this Agreement under circumstances where a ICLK Termination Fee or DWM Termination
Fee is payable are uncertain and incapable of accurate calculation and therefore, the amounts payable pursuant to Section 9.3(a) or
Section 9.3(b) are not a penalty but rather constitute amounts akin to liquidated damages in a reasonable amount
that will compensate DWM or the ICLK, as the case may be, for the efforts and resources expended and opportunities foregone while negotiating
this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactions, and (iii) without
the agreements contained in this Section 9.3, the Parties hereto would not have entered into this Agreement.
Article X
NO SURVIVAL
10.1 No
Survival. None of the representations, warranties, covenants or agreements in this Agreement or in any instrument delivered pursuant
to this Agreement shall survive the Closing and all rights, claims and causes of action (whether in contract or in tort or otherwise,
or whether at law or in equity) with respect thereto shall terminate at the Closing. Notwithstanding the foregoing, neither this Section 10.1
nor anything else in this Agreement to the contrary (including Section 11.14) shall limit: (a) the survival of any
covenant or agreement of the Parties which by its terms is required to be performed or complied with in whole or in part after the Closing,
which covenants and agreements shall survive the Closing in accordance with their respective terms; or (b) the liability of any
Person with respect to fraud.
Article XI
GENERAL PROVISIONS
11.1 Notices.
All notices and other communications hereunder shall be in writing and shall be deemed given: (a) on the date established by the
sender as having been delivered personally; (b) one (1) Business Day after being sent by a nationally recognized overnight
courier guaranteeing overnight delivery; (c) on the date that transmission is confirmed electronically, if delivered by email; or
(d) on the fifth (5th) Business Day after the date mailed, by certified or registered mail, return receipt requested,
postage prepaid. Such communications, to be valid, must be addressed as follows:
if
to any ICLK Party, to:
iClick Interactive Asia Group Limited
15/F Prosperity Millennia Plaza, 663 King’s Road, Quarry
Bay, Hong Kong S.A.R., People’s Republic of China
Attention: Josephine Ngai
Email: josephine.ngai@i-click.com
with
a copy to:
Cleary Gottlieb Steen & Hamilton
37th Floor, Hysan Place, 500 Hennessy
Road
Causeway Bay, Hong Kong
Attention: Shuang Zhao
E-mail: szhao@cgsh.com
Cleary Gottlieb Steen & Hamilton
45th Floor, Fortune Financial Center
5 Dong San Huan Zhong Lu
Chaoyang District, Beijing 100020
People’s Republic of China
Attention: Denise Shiu
E-mail: dshiu@cgsh.com
if
to DWM to:
DWM Holding Limited
1 Wallich Street
Guoco Tower
Singapore 078881
Attention: Wayne Huo
Email: wayne.huo@ambergroup.io
with
a copy to (which will not constitute notice):
Simpson Thacher & Bartlett
35th Floor, ICBC Tower
3 Garden Road
Central, Hong Kong
Attention: Yi Gao
Email: YGao@stblaw.com
Simpson Thacher & Bartlett
LLP
3919 China World Center
1 Jianguomenwai Avenue
Beijing, 100004, China
Attention: Yang Wang
| Email: | yang.wang@stblaw.com |
or to such other address or to the attention of such other Person
or Persons as the recipient Party has specified by prior written notice to the sending Party (or in the case of counsel, to such other
readily ascertainable business address as such counsel may hereafter maintain) by means provided in this Section 11.1. If
more than one method for sending notice as set forth above is used, the earliest notice date established as set forth above shall control.
11.2 Interpretation.
The words “hereof,” “herein,” “hereinafter,” “hereunder,” and “hereto” and
words of similar import refer to this Agreement as a whole and not to any particular section or subsection of this Agreement
and reference to a particular section of this Agreement will include all subsections thereof, unless, in each case, the context
otherwise requires. The definitions of the terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever
the context shall require, any pronoun shall include the corresponding masculine, feminine and neuter forms. When a reference is made
in this Agreement to an Exhibit, such reference shall be to an Exhibit to this Agreement unless otherwise indicated. When a reference
is made in this Agreement to Sections or subsections, such reference shall be to a Section or subsection of this Agreement.
Unless otherwise indicated the words “include,” “includes” and “including” when used herein shall
be deemed in each case to be followed by the words “without limitation.” The words “made available” mean that
the subject documents or other materials were (a) delivered to such party or its legal counsel via electronic mail or hard copy
form or (b) included in and available at the “Project Overlord LDD (shared)” online datasite hosted by Sharepoint (in
the case of ICLK Parties) and “(2024-10-22) IK LDD request” online datasite hosted by Google Drive (in the case of DWM) at
least one (1) Business Day prior to the date of this Agreement; provided that the documents and other materials included
in and available at such online datasite shall be archived in the form of a CD and delivered to the Principal Parties promptly following
the execution of this Agreement. The section headings contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement. When reference is made herein to “the business of” an entity,
such reference shall be deemed to include the business of all direct and indirect Subsidiaries of such entity. Reference to the Subsidiaries
of an entity shall be deemed to include all direct and indirect Subsidiaries of such entity. The word “or” shall be disjunctive
but not exclusive. When calculating the period of time before which, within which or following which any act is to be done or step taken
pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded and if the last day of such
period is a non-Business Day, the period in question shall end on the next succeeding Business Day. References to a particular statute
or regulation including all rules and regulations thereunder and any predecessor or successor statute, rule, or regulation, in each
case as amended or otherwise modified from time to time. Unless specifically provided otherwise herein, all references to currency amounts
in this Agreement shall mean United States dollars; if the conversion between USD and RMB is necessary for purposes of this Agreement,
unless specifically provided otherwise herein, such conversion shall be conducted at the Reference Exchange Rates of the date of such
conversion. References to “ordinary course of business” (or similar references) shall mean the ordinary course of business
consistent with past practice (including as to amounts and terms, as applicable), but taking into account the circumstances, including
restrictions imposed by Legal Requirements and health and safety considerations relating to COVID-19.
11.3 Counterparts;
Electronic Delivery. This Agreement, the other Transaction Agreements and each other document executed in connection with the Transactions
may be executed in one or more counterparts, all of which shall be considered one and the same document and shall become effective when
one or more counterparts have been signed by each of the Parties and delivered to the other Parties, it being understood that all Parties
need not sign the same counterpart. Delivery by electronic transmission to counsel for the other Parties of a counterpart executed by
a Party shall be deemed to meet the requirements of the previous sentence. Facsimile and e-mailed copies of signatures in portable document
format (PDF) shall be deemed to be originals for purposes of the effectiveness of this Agreement.
11.4 Entire
Agreement; Third Party Beneficiaries. This Agreement, the other Transaction Agreements and any other documents and instruments and
agreements among the Parties as contemplated by or referred to herein, including the Exhibits and Schedules hereto: (a) constitute
the entire agreement among the Parties with respect to the subject matter hereof and supersede all prior agreements and understandings,
both written and oral, among the Parties with respect to the subject matter hereof; and (b) other than (i) at and after the
Effective Time, Section 7.10 and Section 7.12(d), (ii) Sections 9.3(d) and 9.3(e), (iii) this
Section 11.4 and (iv) Section 11.14 (which will be for the benefit of the Persons set forth therein and
herein), are not intended to confer upon any other Person other than the Parties any rights or remedies. Except as otherwise expressly
provided herein, nothing in this Agreement shall create or be deemed to create any third party beneficiary rights in any Person or entity
not a Party to this Agreement. Contracts (Rights of Third Parties) Ordinance (Chapter 623 of the Laws of Hong Kong) shall not apply to
this Agreement or the other Transaction Agreements. Nothing in this Agreement shall be deemed to constitute a partnership between the
Parties.
11.5 Severability.
In the event that any term, provision, covenant or restriction of this Agreement, or the application thereof, is held to be illegal,
invalid or unenforceable under any present or future Legal Requirement: (a) such provision will be fully severable; (b) this
Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof; (c) the
remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom; and (d) in lieu of such illegal, invalid or unenforceable provision, there will be added
automatically as a part of this Agreement a legal, valid and enforceable provision as similar in terms of such illegal, invalid or unenforceable
provision as may be possible which most nearly reflects the Parties’ intent in entering into this Agreement.
11.6 Other
Remedies; Specific Performance. Except as otherwise provided herein, prior to the Closing, any and all remedies herein expressly
conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon
such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy. The Parties agree that
irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that each Party shall be entitled to enforce specifically the terms
and provisions of this Agreement in any court having jurisdiction and immediate injunctive relief to prevent breaches of this Agreement,
without the necessity of proving the inadequacy of money damages as a remedy and without bond or other security being required, this
being in addition to any other remedy to which they are entitled at law or in equity. Each of the Parties hereby acknowledges and agrees
that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance,
and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further
acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance
of the obligations hereunder or any other injunctive relief. Each Party hereby further agrees that in the event of any action by any
other party for specific performance or injunctive relief, it will not assert that a remedy at law or other remedy would be adequate
or that specific performance or injunctive relief in respect of such breach or violation should not be available on the grounds that
money damages are adequate or any other grounds.
11.7 Governing
Law. This Agreement and the consummation the Transactions contemplated under this Agreement, and any action, suit, dispute, controversy
or claim arising out of this Agreement and the consummation of the Transactions contemplated under this Agreement, or the validity, interpretation,
breach or termination of this Agreement and the consummation of the Transactions contemplated under this Agreement, shall be governed
by and construed in accordance with the laws of Hong Kong regardless of the law that might otherwise govern under applicable principles
of conflicts of law thereof, except that the following matters arising out of or relating to this Agreement shall be exclusively interpreted,
construed and governed by and in accordance with the laws of the Cayman Islands, in respect of which the Parties hereto hereby irrevocably
submit to the exclusive jurisdiction of the courts of the Cayman Islands: (a) the Merger, and whether or not it has taken effect;
(b) the legal effect of the Merger, including but not limited to the vesting of the undertaking, property and liabilities of Merger
Sub in the Surviving Sub; (c) the effectiveness of the cancellation of the DWM Shares and the obligation on any Party to do so;
(d) the fiduciary or other duties of the ICLK Board and the sole directors of Merger Sub and the extent to which there has been
a breach of the same; (e) the general rights, duties and powers of the respective shareholders of ICLK, DWM and Merger Sub, including
the rights provided for in Section 238 of the Cayman Companies Act with respect to any Dissenting Shares; and (f) the internal
corporate affairs of ICLK, DWM and Merger Sub and the rights, duties and powers of the same, including whether there has been any breach
of the same.
11.8 Consent
to Jurisdiction; Waiver of Jury Trial.
(a) Subject
to the exception for matters to be governed by the laws of the Cayman Islands and subject to the jurisdiction of the courts of the Cayman
Islands as set forth in Section 11.7, any Legal Proceeding arising out of or in any way relating to this Agreement shall
be submitted to the Hong Kong International Arbitration Centre (“HKIAC”) and resolved in accordance with the HKIAC
Administered Arbitration Rules in force at the relevant time and as may be amended by this Section 11.8 (the “HKIAC
Rules”). The place of arbitration shall be Hong Kong. The official language of the arbitration shall be English and the tribunal
shall consist of three arbitrators (each, an “Arbitrator”). The claimant(s), irrespective of number, shall nominate
jointly one Arbitrator; the respondent(s), irrespective of number, shall nominate jointly one Arbitrator; and a third Arbitrator will
be nominated jointly by the first two Arbitrators and shall serve as chairman of the arbitration tribunal. In the event the claimant(s) or
respondent(s) or the first two Arbitrators shall fail to nominate or agree the joint nomination of an Arbitrator or the third Arbitrator
within the time limits specified by the HKIAC Rules, such Arbitrator shall be appointed promptly by the HKIAC. The arbitration tribunal
shall have no authority to award punitive or other punitive-type damages. The award of the arbitration tribunal shall be final and binding
upon the disputing parties. Any party to an award may apply to any court of competent jurisdiction for enforcement of such award and,
for purposes of the enforcement of such award, the Parties irrevocably and unconditionally submit to the jurisdiction of any court of
competent jurisdiction and waive any defenses to such enforcement based on lack of personal jurisdiction or inconvenient forum.
(b) Notwithstanding
the foregoing, the Parties hereby consent to and agree that in addition to any recourse to arbitration as set out in this Section 11.8,
any Party may, to the extent permitted under the rules and procedures of the HKIAC, seek an interim injunction or other form of
relief from the HKIAC as provided for in its HKIAC Rules. Such application shall also be governed by, and construed in accordance with,
the laws of Hong Kong. Nothing in this Section 11.8 shall be construed as preventing any Party from seeking conservatory
or interim relief (including injunction, specific performance or other similar or comparable forms of equitable relief) from any court
of competent jurisdiction pending final determination of the dispute by the arbitral tribunal.
(c) TO
THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH OF THE PARTIES AND ANY PERSON ASSERTING RIGHTS AS A THIRD-PARTY
BENEFICIARY MAY DO SO ONLY IF HE, SHE OR IT IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY ON ANY CLAIMS OR COUNTERCLAIMS
ASSERTED IN ANY LEGAL DISPUTE RELATING TO THIS AGREEMENT AND THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT,
AND FOR ANY COUNTERCLAIM RELATING THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING. IF THE SUBJECT MATTER OF ANY
SUCH LEGAL DISPUTE IS ONE IN WHICH THE WAIVER OF JURY TRIAL IS PROHIBITED, NO PARTY NOR ANY PERSON ASSERTING RIGHTS AS A THIRD-PARTY
BENEFICIARY SHALL ASSERT IN SUCH LEGAL DISPUTE A NON-COMPULSORY COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE CONSUMMATION
OF THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT. FURTHERMORE, NO PARTY NOR ANY PERSON ASSERTING RIGHTS AS A THIRD-PARTY BENEFICIARY
SHALL SEEK TO CONSOLIDATE ANY SUCH LEGAL DISPUTE WITH A SEPARATE ACTION OR OTHER LEGAL PROCEEDING IN WHICH A JURY TRIAL CANNOT BE WAIVED.
11.9 Rules of
Construction. Each of the Parties agrees that it has been represented by independent counsel of its choice during the negotiation
and execution of this Agreement and each Party hereto and its counsel cooperated in the drafting and preparation of this Agreement and
the documents referred to herein and, therefore, waive the application of any law, regulation, holding or rule of construction.
Ambiguities in an agreement or other document will not be construed against the Party drafting such agreement or document.
11.10 Expenses.
Except as otherwise expressly provided in this Agreement or the other Transaction Agreements, whether or not the Transactions are consummated,
each Party shall pay, or cause to be paid, its own costs and expenses incurred in anticipation of, relating to and in connection with
the negotiation and execution of this Agreement and the Transaction Agreements and the consummation of the Transactions. Notwithstanding
the foregoing:
(a) Following
the Closing, ICLK shall bear the ICLK Transaction Costs, the Mutual Transaction Costs and the DWM Transaction Costs. With respect
to any Transaction Cost to be borne by ICLK in accordance with the foregoing sentences of this Section 11.10(a), following
the Closing, ICLK shall (i) pay or cause to be paid such Transaction Costs to the extent unpaid as of the Closing Date, each
as set forth on the Closing Payments Schedule and the ICLK Closing Certificate, respectively, and (ii) to the extent that any such
Transaction Costs has been paid by any Person other than the ICLK Group Companies prior to the Closing Date, reimburse each applicable
payor for the amount of such paid Transaction Costs.
(b) Following
any termination of this Agreement without the Closing having occurred, (i) ICLK shall be responsible to pay, or cause to be paid,
the ICLK Transaction Costs, (ii) DWM shall be responsible to pay, or cause to be paid, the DWM Transaction Costs, and (iii) DWM
shall be responsible to pay, or cause to be paid, the Mutual Transaction Costs, provided that, if in connection with such termination
the ICLK Termination Fee is payable pursuant to Section 9.3(a), then ICLK shall be responsible to pay, or cause to be paid,
the Mutual Transaction Costs.
11.11 Assignment.
No Party may assign, directly or indirectly, including by operation of law, either this Agreement or any of its rights, interests, or
obligations hereunder without the prior written approval of the other Parties. Subject to the first sentence of this Section 11.11,
this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns.
11.12 Amendment.
This Agreement may be amended by the Parties at any time by execution of an instrument in writing signed on behalf of each of the Parties.
11.13 Extension;
Waiver. At any time prior to the Closing, ICLK (on behalf of and only with respect to the ICLK Parties) or DWM (on behalf of
and only with respect to DWM) may, to the extent not prohibited by applicable Legal Requirements: (a) extend the time for the performance
of any of the obligations of another Party; (b) waive any inaccuracies in the representations and warranties made by another Party
contained herein or in any document delivered by another Party pursuant hereto; and (c) waive compliance with any of the agreements
or conditions contained herein. Any agreement on the part of a Party to any such extension or waiver shall be valid only if set forth
in an instrument in writing signed on behalf of such Party. Delay in exercising any right under this Agreement shall not constitute a
waiver of such right. In the event any provision of any of the other Transaction Agreement in any way conflicts with the provisions of
this Agreement (except where a provision therein expressly provides that it is intended to take precedence over this Agreement), this
Agreement shall control.
11.14 No
Recourse. Notwithstanding anything that may be expressed or implied in this Agreement, this Agreement may only be enforced against,
and any Legal Proceeding for breach of this Agreement may only be made against, the entities that are expressly identified herein as
Parties to this Agreement, and no Related Party of a Party shall have any liability for any liabilities or obligations of the Parties
for any Legal Proceeding (whether in tort, contract or otherwise) for breach of this Agreement or in respect of any oral representations
made or alleged to be made in connection herewith. No Party shall have any right of recovery in respect hereof against any Related Party
of a Party and no personal liability shall attach to any Related Party of a Party through such Party, whether by or through attempted
piercing of the corporate veil, by the enforcement of any judgment, fine or penalty or by virtue of any Legal Requirement or otherwise.
The provisions of this Section 11.14 are intended to be for the benefit of, and enforceable by the Related Parties of the
Parties and each such Person shall be a third-party beneficiary of this Section 11.14. This Section 11.14 shall
be binding on all successors and assigns of Parties.
11.15 Disclosure
Letters and Exhibits. The DWM Disclosure Letter and the ICLK Disclosure Letter shall each be arranged in separate parts corresponding
to the numbered and lettered sections and subsections contained in this Agreement, and the information disclosed in any numbered
or lettered part shall be deemed to relate to and to qualify only the particular representation or warranty set forth in the corresponding
numbered or lettered Section or subsection of this Agreement, except to the extent that: (a) such information is cross-referenced
in another part of the DWM Disclosure Letter or the ICLK Disclosure Letter, as applicable; or (b) it is reasonably apparent on the
face of the disclosure (without reference to any document referred to therein or any independent knowledge on the part of the reader
regarding the matter disclosed) that such information qualifies another representation and warranty of (i) DWM, or (ii) the
ICLK Parties, as applicable, in this Agreement. Certain information set forth in the DWM Disclosure Letter and the ICLK Disclosure Letter
is or may be included solely for informational purposes, is not an admission of liability with respect to the matters covered by the
information, and may not be required to be disclosed pursuant to this Agreement. The specification of any dollar amount in the representations
and warranties contained in this Agreement or the inclusion of any specific item in the DWM Disclosure Letter or the ICLK Disclosure
Letter is not intended to imply that such amounts (or higher or lower amounts) are or are not material, and no Party shall use the fact
of the setting of such amounts or the fact of the inclusion of any such item in the DWM Disclosure Letter or the ICLK Disclosure Letter
in any dispute or controversy between the Parties as to whether any obligation, item, or matter not described herein or included in the
DWM Disclosure Letter or the ICLK Disclosure Letter is or is not material for purposes of this Agreement.
[Signature Page Follows]
IN
WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above.
| |
ICLK
ICLICK INTERACTIVE ASIA GROUP LIMITED |
| |
|
| |
|
| |
By: |
/s/ Wing Hong Sammy Hsieh |
| |
|
Name: Wing Hong Sammy Hsieh |
| |
|
Title: Director |
[Signature Page to Agreement
and Plan of Merger]
IN
WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above.
| |
MERGER SUB
OVERLORD MERGER SUB LTD. |
| |
|
| |
|
| |
By: |
/s/ Wing Hong Sammy Hsieh |
| |
|
Name: Wing Hong Sammy Hsieh |
| |
|
Authorised Signatory for and on behalf of iClick Interactive Asia Group Limited |
| |
|
Title: Sole Director |
[Signature Page to Agreement
and Plan of Merger]
IN
WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above.
| |
DWM
AMBER DWM HOLDING LIMITED |
| |
|
| |
|
| |
By: |
/s/ Junwei HUO |
| |
|
Name: Junwei HUO |
| |
|
Title: Director |
[Signature Page to Agreement
and Plan of Merger]
Exhibit A
Form of Lock-Up Agreement
Exhibit B
Form of Plan of Merger
Exhibit C
Form of ICLK A&R MAA
Exhibit D
Form of DWM Third A&R MAA
Schedule 1
DWM Asset Restructuring Plan
Schedule 2
ICLK Indebtedness
Schedule 3
DWM Indebtedness
ANNEX B
Plan of Merger
AGREED FORM
PLAN OF MERGER
THIS PLAN OF MERGER (the "Plan
of Merger") is made on [·] 2024.
BETWEEN
| (1) | Overlord Merger Sub Ltd., an exempted
company with limited liability incorporated under the laws of the Cayman Islands, with its
registered office situated at the offices of International Corporation Services Ltd, PO Box
472, 2nd Floor, Harbour Place, 103 South Church Street, George Town, Grand Cayman KY1-1106,
Cayman Islands (the "Merging Company"); |
| (2) | Amber DWM Holding Limited, an exempted
company with limited liability incorporated under the laws of the Cayman Islands, with its
registered office situated at the offices of Maples Corporate Services Limited, PO Box 309,
Ugland House, Grand Cayman, KY1-1104, Cayman Islands (the "Surviving Company",
and, together with the Merging Company, the "Constituent Companies"); and |
| (3) | iClick Interactive Asia Group Limited,
an exempted company with limited liability incorporated under the laws of the Cayman
Islands, with its registered office situated at the offices of Maples Corporate Services
Limited at PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands ("ICLK"). |
WHEREAS
| (a) | The Constituent Companies, and ICLK have entered
into an agreement and plan of merger dated [·]
2024 (the "Merger Agreement"), pursuant to which, among other things, the
Merging Company will merge with and into the Surviving Company, with the Surviving Company
being the surviving company (the "Merger") in accordance with the terms
and conditions set forth in the Merger Agreement. |
| (b) | The board of directors of each Constituent Company
have approved the Merger and the terms and conditions of the Merger Agreement. Immediately
upon the Merger becoming effective the undertaking, property and liabilities of the Merging
Company will automatically vest in the Surviving Company, the Merging Company will cease
to exist and the Surviving Company will continue as the surviving company. A copy of the
Merger Agreement is attached as Annexure A to this Plan of Merger. |
| (c) | This Plan of Merger is made in accordance with
Part XVI and in particular section 233 of the Companies Act (Revised) (the "Companies
Act"). |
| (d) | Terms used in this Plan of Merger and not otherwise
defined shall have the meanings given to them in the Merger Agreement. |
| (e) | ICLK wishes to enter into this Plan of Merger
solely for the purposes of clause 9(g). |
W I T N E S S E T H
CONSTITUENT COMPANIES
| 1 | The constituent companies (as defined in the Companies
Act) to the Merger are the Merging Company and the Surviving Company. |
NAME OF THE SURVIVING COMPANY
| 2 | The Surviving Company will be the surviving company
(as defined in the Companies Act) following the Merger. |
| 3 | Following the Merger the Surviving Company will
continue to be named as Amber DWM Holding Limited. |
REGISTERED OFFICE
| 4 | The registered office of the Merging Company is
situated at the offices of International Corporation Services Ltd, PO Box 472, 2nd Floor,
Harbour Place, 103 South Church Street, George Town, Grand Cayman KY1-1106, Cayman Islands. |
| 5 | The registered office of the Surviving Company
is at, and will remain at, the offices of Maples Corporate Services Limited, PO Box 309,
Ugland House, Grand Cayman, KY1-1104, Cayman Islands. |
SHARES IN THE CONSTITUENT COMPANIES
| 6 | Immediately prior to the Effective Time (as
defined below), the authorized share capital of: |
| (a) | the Merging Company was US$50,000 divided
into 5,000,000 shares of US$0.01 par value each, of which 1 share has been issued as fully
paid; and |
| (b) | the Surviving Company was US$50,000 divided
into (i) 1,999,990,000 Ordinary Shares, with par value of US$0.000025 each, and (ii) 10,000
Series A Preference Shares, with par value of US$0.000025 each, of which [202,100] Ordinary
Shares and [8,400] Series A Preference Shares have been issued as fully paid. |
| 7 | Immediately following the Merger, at the Effective
Time (as defined below): |
| (a) | each share of the Merging Company issued
and outstanding immediately prior to the Effective Time shall be converted into one validly
issued, fully paid and non-assessable ordinary share of the Surviving Company, which shall
constitute the only issued and outstanding share capital of the Surviving Company following
the Effective Time; and |
| (b) | the authorized share capital of the Surviving
Company will be US$50,000 divided into 2,000,000,000 Ordinary Shares with par value of US$0.000025
each. |
EFFECTIVE TIME
| 8 | The Merger shall be effective on the date that
this Plan of Merger is registered by the Cayman Registrar in accordance with section 233(13)
of the Companies Act or such later date as the directors of the Constituent Companies may
agree and specify in accordance with this Plan of Merger and the Companies Act (the "Effective
Time"). |
TERMS AND CONDITIONS
OF THE MERGER
| 9 | The terms and conditions of the Merger are set
out in the Merger Agreement. At the Effective Time, and in accordance with the terms and
conditions of the Merger Agreement and this Plan of Merger, the existing shares of the Constituent
Companies will be treated as follows: |
| (a) | all shares issued and outstanding of the
Surviving Company that are owned by ICLK, the Surviving Company, the Merging Company or any
DWM Group Company immediately prior to the Effective Time (the "Excluded DWM Shares")
shall automatically be surrendered and canceled and shall cease to exist, and no New Ordinary
Shares or other consideration shall be delivered or deliverable in exchange therefor and
each holder of any such Excluded DWM Shares shall cease to have any rights with respect thereto; |
| (b) | each share of the Surviving Company issued
and outstanding as of immediately prior to the Effective Time (including such shares of the
Surviving Company issued in the DWM Capital Restructuring, but excluding Dissenting Shares,
which shall be treated in the manner set forth in section 3.3 of the Merger Agreement, and
the Excluded DWM Shares being cancelled pursuant to section 3.1(a) of the Merger Agreement),
by virtue of the Merger and upon the terms and subject to the conditions set forth in the
Merger Agreement, shall be converted into and shall for all purposes represent only the right
to receive (x) in the case of any share of the Surviving Company held by AB Founder
HoldCo, a number of validly issued, fully paid and non-assessable New Class B Shares,
and (y) in all other cases, a number of validly issued, fully paid and non-assessable
New Class A Shares, in each case of (x) and (y), equal to (i) the DWM Per
Share Value, divided by (ii) the ICLK Per Share Value (such New Class B
Shares and New Class A Shares, as applicable, the “Per Share Merger Consideration”,
and the aggregate amount of New Ordinary Shares to be issued pursuant to Section 3.1(b) of
the Merger Agreement, the “Merger Consideration”). All of the shares of
the Surviving Company converted into the right to receive the Merger Consideration shall
no longer be outstanding and shall cease to exist, and each holder of such DWM Shares issued
and outstanding as of immediately prior to the Effective Time shall thereafter cease to have
any rights with respect to such securities, except the right to receive the Per Share Merger
Consideration without interest; |
| (c) | each ordinary share of the Merging Company
issued and outstanding immediately prior to the Effective Time shall be converted into one
validly issued, fully paid and non-assessable ordinary share of the Surviving Company, which
shall constitute the only issued and outstanding share capital of the Surviving Company following
the Effective Time; |
| (d) | each ICLK Option, ICLK RSU and any other
ICLK Equity Award that is outstanding and unexercised immediately prior to the Effective
Time, whether or not vested or exercisable, shall remain outstanding and shall remain subject
to the terms and conditions of the ICLK Share Plans, and any relevant award agreements applicable
to such equity plans; and |
| (e) | notwithstanding any provision of the Merger
Agreement to the contrary and to the extent available under the Companies Act, including
section 3.1 of the Merger Agreement, shares of the Surviving Company issued and outstanding
immediately prior to the Effective Time held by holders who have validly exercised, or have
not otherwise lost, their dissenters’ rights for such shares in accordance with this
paragraph, section 3.3 of the Merger Agreement and section 238 of the Companies Act and otherwise
complied with all of the provisions of the Companies Act relevant to the exercise and perfection
of dissenters’ rights (such shares of the Surviving Company being referred to collectively
as the "Dissenting Shares" until such time as such holder fails to perfect
or otherwise loses such holder’s dissenter’s rights under the Companies Act with
respect to such shares of the Surviving Company, and holders of the Dissenting Shares collectively,
the "Dissenting Shareholders") shall be cancelled and cease to exist at
the Effective Time and the Dissenting Shareholders shall not be entitled to receive the Per
Share Merger Consideration, but instead shall be entitled only to receive the payment of
the fair value of such Dissenting Shares held by them determined in accordance with section
238 of the Companies Act and such other rights as are granted by the Companies Act; provided,
however, that if, after the Effective Time, any Dissenting Shareholder fails to validly exercise
or perfect, withdraws or loses such holder’s right to appraisal pursuant to this paragraph,
section 3.3 of the Merger Agreement and section 238 of the Companies Act or if a court of
competent jurisdiction shall determine that such Dissenting Shareholder is not entitled to
the relief provided by section 238 of the Companies Act, such shares of the Surviving Company
shall be treated as if they had been cancelled and ceased to exist and they had been converted
as of the Effective Time into the right to receive the Per Share Merger Consideration, if
any, to which such Dissenting Shareholder is entitled pursuant to section 3.1 of the Merger
Agreement, without interest thereon. |
For the avoidance of doubt, (i) the
above summary is qualified in its entirety by reference to the complete text of the Merger Agreement and (ii) in the event of any
conflict or inconsistency between the above summary and any provision of the Merger Agreement or any other provision of this Plan of
Merger, the provision(s) of the Merger Agreement or the other provision(s) of this Plan of Merger, as applicable, shall prevail
to the extent of such conflict or inconsistency.
| (f) | At the Effective Time, the Merging Company
will be struck from the Register of Companies of the Cayman Islands. |
| (g) | ICLK undertakes and agrees (it being acknowledged
that ICLK will be the sole shareholder of the Surviving Company after the Merger) to issue
the Merger Consideration in accordance with the terms of the Merger Agreement and this Plan
of Merger. |
RIGHTS AND RESTRICTIONS ATTACHING TO THE SHARES
OF THE SURVIVING COMPANY
| 10 | Following the Merger, the rights and restrictions
attaching to the shares in the capital of the Surviving Company will be as detailed in the
amended and restated memorandum and articles of association of the Surviving Company attached
at Annexure B hereto. |
PROPERTY
| 11 | At the Effective Time, the rights, property of
every description including choses in action, and the business, undertaking, goodwill, benefits,
immunities and privileges of each of the Constituent Companies shall immediately vest in
the Surviving Company in accordance with section 236(1)(b) of the Companies Act, and
the Surviving Company will become liable for and subject, in the same manner as the Merging
Company, to all mortgages, charges, or security interests and all contracts, obligations,
claims, debts and liabilities of the Merging Company in accordance with section 236(1)(c) of
the Companies Act. |
MEMORANDUM AND ARTICLES OF ASSOCIATION
| 12 | At the Effective Time, by virtue of the Merger,
the existing memorandum and articles of association of the Surviving Company shall be amended
and restated by the deletion of the then-current memorandum and articles of association of
the Surviving Company in their entirety and the substitution in their place of the third
amended and restated memorandum and articles of association of the Surviving Company attached
at Annexure B hereto. |
DIRECTORS BENEFITS
| 13 | There are no amounts or benefits paid or payable
to any director of either of the Constituent Companies or the Surviving Company consequent
upon the Merger. |
SECURED CREDITORS
| 14 | (a) |
the Merging Company has no secured creditors and
has granted no fixed or floating security interests that are outstanding as at the date of
this Plan of Merger; and |
| (b) | the Surviving Company has no secured creditors
and has granted no fixed or floating security interests that are outstanding as at the date
of this Plan of Merger. |
DIRECTORS OF THE SURVIVING COMPANY
| 15 | The name and address of the directors of the Surviving Company immediately
prior to the Merger are as follows: |
| |
NAME |
ADDRESS
|
| |
Yi Bao |
|
| |
Junwei
Huo |
|
| |
Yuao Wu |
|
The name and address of the directors
of the Surviving Company immediately following the Merger will be as follows:
| |
NAME |
ADDRESS
|
| |
Yi Bao |
|
| |
Junwei Huo |
|
| |
Yuao Wu |
|
RIGHT OF TERMINATION
| 16 | At any time prior to the Effective Time, this
Plan of Merger may be terminated or amended pursuant to the terms and conditions of the Merger
Agreement and section 235(1) of the Companies Act. |
AMENDMENTS
| 17 | At any time prior to the Effective Time, this
Plan of Merger may be amended by the board of directors of both the Merging Company and the
Surviving Company in accordance with section 235(1) of the Companies Act, including
to effect any other changes to this Plan of Merger which the respective directors of both
the Merging Company and the Surviving Company deem advisable, provided, that such changes
do not materially adversely affect any rights of the shareholders of the Merging Company
or the Surviving Company, as determined by the directors of both the Merging Company and
the Surviving Company, respectively. |
APPROVAL AND AUTHORIZATION
| 18 | This Plan of Merger has been approved by the directors
of each of the Surviving Company and the Merging Company pursuant to section 233(3) of
the Companies Act. |
| 19 | This Plan of Merger has been authorized by the
shareholders of each of the Surviving Company and the Merging Company by way of a special
resolution pursuant to section 233(6) of the Companies Act. |
COUNTERPARTS
| 20 | This Plan of Merger may be executed by facsimile
and in one or more counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument. |
GOVERNING LAW
| 21 | This Plan of Merger shall be governed by and construed
in accordance with the laws of the Cayman Islands. The Constituent Companies hereby agree
to submit any dispute arising from this Plan of Merger to the exclusive jurisdiction of the
courts of the Cayman Islands. |
[signature page follows]
In witness whereof the parties hereto have caused this Plan of Merger
to be executed on the day and year first above written.
Merging Company
Signed for and on behalf of
Overlord Merger Sub Ltd.
Wing Hong Sammy Hsieh
Authorised Signatory
for and on behalf of
iClick Interactive Asia Group Limited,
Sole Director
|
|
Surviving Company
Signed for and on behalf of
Amber DWM Holding Limited
[·]
Director
|
|
Signed for and on behalf of
iClick Interactive Asia Group Limited
[·]
Director |
|
ANNEXURE A
AGREEMENT AND PLAN OF MERGER
ANNEXURE B
THIRD
AMENDED AND RESTATED
Memorandum
and Articles
of
Association
of
the Surviving Company
ANNEX C
Tenth Amended and Restated Memorandum and Articles of Association
of ICLK
AGREED FORM
THE COMPANIES ACT (AS REVISED)
EXEMPTED COMPANY LIMITED BY SHARES
TENTH AMENDED AND RESTATED
MEMORANDUM OF ASSOCIATION
OF
[·]
(Adopted
by way of a special resolution passed on [ ] and effective [ ])
| 1. |
The
name of the Company is Amber International Holding Limited |
| 2. |
The Registered
Office of the Company shall be at the offices of Maples Corporate Services Limited at PO Box 309, Ugland House, Grand Cayman, KY1-1104,
Cayman Islands. |
| 3. |
Subject to
the following provisions of this Memorandum, the objects for which the Company is established are unrestricted. |
| 4. |
Subject to
the following provisions of this Memorandum, the Company shall have and be capable of exercising all the functions of a natural person
of full capacity irrespective of any question of corporate benefit, as provided by Section 27(2) of the Act. |
| 5. |
Nothing in
this Memorandum shall permit the Company to carry on a business for which a licence is required under the laws of the Cayman Islands
unless duly licensed. |
| 6. |
The Company
shall not trade in the Cayman Islands with any person, firm or corporation except in furtherance of the business of the Company carried
on outside the Cayman Islands; provided that nothing in this clause shall be construed as to prevent the Company effecting and concluding
contracts in the Cayman Islands, and exercising in the Cayman Islands all of its powers necessary for the carrying on of its business
outside the Cayman Islands. |
| 7. |
The liability of each member is limited to the amount from time
to time unpaid on such member’s shares.
|
| 8. |
The share capital of the
Company is US$1,300,000 divided into 1,300,000,000 shares of a nominal
or par value of US$0.001, of which 1,191,000,000 shares shall be designated as Class A ordinary shares, 109,000,000 shares
shall be designated as Class B ordinary shares and provided always that the Directors may, in their absolute discretion and
without the approval of the Members, create and designate out of the unissued shares of the Company (including unissued Class A
Ordinary Shares but excluding unissued Class B Ordinary Shares) one or more classes or series of preferred shares, comprising
such number of preferred shares, and having such designations, powers, preferences, privileges and other rights, including dividend
rights, voting rights, conversion rights, terms of redemption and liquidation preferences, as the Directors may
determine. |
| 9. |
The Company
may exercise the power contained in the Act to deregister in the Cayman Islands and be registered by way of continuation in another
jurisdiction. |
THE COMPANIES ACT (AS REVISED)
EXEMPTED COMPANY LIMITED BY SHARES
TENTH AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
OF
[·]
(Adopted
by way of a special resolution passed on [ ] and effective [ ])
| INDEX | |
|
|
| SUBJECT | |
Article No. |
|
| Table A | |
1 |
|
| Interpretation | |
2 |
|
| Share Capital | |
3 |
|
| Alteration of Capital | |
4-7 |
|
| Share Rights | |
8-9 |
|
| Variation of Rights | |
10-11 |
|
| Shares | |
12-15 |
|
| Share Certificates | |
16-21 |
|
| Lien | |
22-24 |
|
| Calls On Shares | |
25-33 |
|
| Forfeiture of Shares | |
34-42 |
|
| Register of Members | |
43-44 |
|
| Record Dates | |
45 |
|
| Transfer of Shares | |
46-51 |
|
| Transmission of Shares | |
52-54 |
|
| Untraceable Members | |
55 |
|
| General Meetings | |
56-58 |
|
| Notice of General Meetings | |
59-60 |
|
| Proceedings at General Meetings | |
61-65 |
|
| Voting | |
66-77 |
|
| Proxies | |
78-83 |
|
| Corporations Acting By Representatives | |
84 |
|
| Board of Directors | |
85 |
|
| Retirement of Directors | |
88 |
|
| Disqualification of Directors | |
88 |
|
| Alternate Directors | |
89-92 |
|
| Directors’ Fees and Expenses | |
93-96 |
|
| Directors’ Interests | |
97-100 |
|
| General Powers of The Directors | |
101-106 |
|
| Borrowing Powers | |
107-110 |
|
| Proceedings of The Directors | |
111-120 |
|
| [DELETED] | |
121-122 |
|
| Officers | |
124-127 |
|
| Register of Directors and Officers | |
128 |
|
| Minutes | |
129 |
|
| Seal | |
130 |
|
| Authentication of Documents | |
131 |
|
| Destruction of Documents | |
132 |
|
| Dividends and Other Payments | |
133-142 |
|
| Reserves | |
143 |
|
| Capitalisation | |
144-145 |
|
| Subscription Rights Reserve | |
146 |
|
| Accounting Records | |
147-151 |
|
| Audit | |
152-157 |
|
| Notices | |
158-160 |
|
| Signatures | |
161 |
|
| Winding Up | |
162-163 |
|
| Indemnity | |
164 |
|
| Amendment to Memorandum and Articles of Association and Name
of Company | |
165 |
|
| Information | |
166 |
|
| Merger and Consolidation | |
167 |
|
| Change of Control Event | |
168 |
|
| Financial Year | |
169 |
|
INTERPRETATION
TABLE A
| 1. |
The regulations in Table A in the
Schedule to the Act do not apply to the Company. |
INTERPRETATION
| 2. |
(1) In these Articles, unless
the context otherwise requires, the words standing in the first column of the following table shall bear the meaning set opposite
them respectively in the second column. |
| |
WORD |
|
MEANING |
| |
|
|
|
| |
“Act” |
|
the Companies Act (As Revised) of the Cayman Islands. |
| |
|
|
|
| |
“Affiliate” |
|
in respect of a person, any other person that, directly
or indirectly, through (1) one or more intermediaries, controls, is controlled by, or is under common control with, such person,
and (i) in the case of a natural person, shall include, without limitation, such person’s spouse, parents, children, siblings,
mother-in-law, father-in-law, brothers-in-law and sisters-in-law, a trust for the benefit of any of the foregoing and the trustee
or administrator of such trust (in their capacity as such trustee or administrator), and a corporation, partnership or any other
entity wholly or jointly owned by any of the foregoing, and (ii) in the case of an entity, shall include a partnership, a corporation
or any other entity or any natural person which directly, or indirectly through one or more intermediaries, controls, is controlled
by, or is under common control with, such entity. The term “control” shall mean the ownership, directly or indirectly,
of shares possessing more than fifty per cent (50%) of the voting power of the corporation, partnership or other entity (other than,
in the case of a corporation, securities having such power only by reason of the happening of a contingency), or having the power
to control the management or elect a majority of members to the board of directors or equivalent decision-making body of such corporation,
partnership or other entity. |
| |
|
|
|
| |
“Articles” |
|
these Articles in their
present form or as supplemented or amended or substituted from time to time. |
| |
|
|
|
| |
“as converted basis” |
|
the number of votes to
which the holder of the Class B Ordinary Shares would be entitled if such holder converted the Class B Ordinary Shares
at the then effective Conversion Rate on the record date in respect of the meeting at which any poll is taken or, if no record date
is established, the date any poll is taken. |
| |
|
|
|
| |
“Auditor” |
|
the independent auditor
of the Company which shall be an internationally recognized firm of independent accountants. |
| |
|
|
|
| |
“Automatic Conversion
Date” |
|
the Business Day on which
the first Automatic Conversion Event occurs. |
| |
|
|
|
| |
“Automatic Conversion
Event” |
|
with respect to each Class B
Ordinary Share in issue, the first to occur of (i) any sale, transfer, assignment or disposition of such Class B Ordinary
Share by its registered holder or Beneficial Owner to any person who is not an Affiliate of such registered holder or Beneficial
Owner, or (ii) any event (including but not limited to any issuance of additional Class B Ordinary Shares by the Company)
that causes the ultimate Beneficial Owner of such Class B Ordinary Share to cease to beneficially own more than 5% of the Company's
total outstanding Class B Ordinary Shares. |
| |
|
|
|
| |
“Beneficial Ownership” |
|
shall have the meaning
given to such term as defined in Rule 13d-3 under the Securities Exchange Act, and be calculated on an as converted basis. The
terms “Beneficially Own”, “Beneficially Owned” and “Beneficial Owner” shall each have a correlative
meaning. |
| |
|
|
|
| |
“Board” or
“Directors” |
|
the board of directors
of the Company or the directors present at a meeting of directors of the Company at which a quorum is present. |
| |
|
|
|
| |
“Business Day” |
|
shall mean a day on which
the Designated Stock Exchange generally is open for the business of dealing in securities in the Unites States of America. |
| |
|
|
|
| |
“Capital” |
|
the share capital from
time to time of the Company. |
| |
|
|
|
| |
“Cause” |
|
a conviction
for a criminal offence involving dishonesty or engaging in conduct which brings the Director or the Company into disrepute or which
results in material financial detriment to the Company. |
| |
|
|
|
| |
“Class A Ordinary
Shares” |
|
class A ordinary shares
of par value US$0.001 each of the Company having the rights set out in these Articles. |
| |
|
|
|
| |
“Class B Ordinary
Shares” |
|
class B ordinary shares
of par value US$0.001 each of the Company having the rights set out in these Articles. |
| |
|
|
|
| |
“clear days” |
|
in relation to the period
of a notice, that period excluding the day when the notice is given or deemed to be given and the day for which it is given or on
which it is to take effect. |
| |
|
|
|
| |
“clearing house” |
|
a clearing house recognised
by the laws of the jurisdiction in which the shares of the Company (or depositary receipts therefor) are listed or quoted on a stock
exchange or interdealer quotation system in such jurisdiction. |
| |
|
|
|
| |
“Company” |
|
Amber International Holding Limited |
| |
|
|
|
| |
“competent regulatory
authority” |
|
a competent regulatory
authority in the territory where the shares of the Company (or depositary receipts therefor) are listed or quoted on a stock exchange
or interdealer quotation system in such territory. |
| |
|
|
|
| |
“Conversion Date” |
|
in respect of a Conversion
Notice means the Business Day on which that Conversion Notice is delivered. |
| |
|
|
|
| |
“Conversion Notice” |
|
a written notice delivered
to the Company at its Office (and as otherwise stated therein) stating that a holder of Class B Ordinary Shares elects to convert
the number of Class B Ordinary Shares specified therein pursuant to Article 9. |
| |
|
|
|
| |
“Conversion Number” |
|
in relation to any Class B
Ordinary Shares, such number of Class A Ordinary Shares as may, upon exercise of the Conversion Right, be issued at the Conversion
Rate in force on the relevant Conversion Date. |
| |
|
|
|
| |
“Conversion Rate” |
|
at any time, on a 1 : 1
basis, subject to adjustment in accordance with Article 9(b). |
| |
|
|
|
| |
“Conversion Right” |
|
in respect of a Class B
Ordinary Share means the right of its holder, subject to the provisions of the Articles and to any applicable fiscal or other laws
or regulations including the Act, to convert all or any of its Class B Ordinary Shares, into the Conversion Number of Class A
Ordinary Shares. |
| |
|
|
|
| |
“debenture”
and “debenture holder” |
|
include debenture stock
and debenture stockholder respectively. |
| |
|
|
|
| |
“Designated Stock
Exchange” |
|
the stock exchange in the
United States on which any Ordinary Shares or American depositary shares representing the Ordinary Shares are listed for trading. |
| |
|
|
|
| |
“Designated Stock
Exchange Rules” |
|
the relevant code, rules and
regulations, as amended, from time to time, applicable as a result of the original and continued listing of any Ordinary Shares or
American depositary shares representing the Ordinary Shares on the Designated Stock Exchange. |
| |
|
|
|
| |
“dollars” and
“$” |
|
dollars, the legal currency
of the United States of America. |
| |
|
|
|
| |
“head office” |
|
such office of the Company
as the Directors may from time to time determine to be the principal office of the Company. |
| |
|
|
|
| |
“Member” |
|
a duly registered holder
from time to time of the shares in the capital of the Company. |
| |
|
|
|
| |
“month” |
|
a calendar month. |
| |
|
|
|
| |
“Notice” |
|
written notice unless otherwise
specifically stated and as further defined in these Articles. |
| |
|
|
|
| |
“Office” |
|
the registered office of
the Company for the time being. |
| |
|
|
|
| |
“ordinary
resolution” |
|
means a resolution: |
| |
|
|
(a) passed by a simple majority of the votes cast
by such Members as, being entitled to do so, vote in person or, where proxies are allowed, by proxy at a general meeting of the Company
and in computing a majority where a poll is taken, regard shall be had to the number of votes to which each Member is entitled; or
(b) approved in writing by all of the Members entitled to vote at a general meeting of the Company in one or more instruments
each signed by one or more of the Members 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 Class A
Ordinary Shares and the Class B Ordinary Shares |
| |
|
|
|
| |
“paid up” |
|
paid up or credited as
paid up. |
| |
|
|
|
| |
“Register” |
|
the principal register
and where applicable, any branch register of Members of the Company to be maintained at such place within or outside the Cayman Islands
as the Board shall determine from time to time. |
| |
|
|
|
| |
“Registration Office” |
|
in respect of any class
of share capital such place as the Board may from time to time determine to keep a branch register of Members in respect of that
class of share capital and where (except in cases where the Board otherwise directs) the transfers or other documents of title for
such class of share capital are to be lodged for registration and are to be registered. |
| |
|
|
|
| |
“SEC” |
|
the United States Securities
and Exchange Commission. |
| |
|
|
|
| |
“Securities Exchange
Act” |
|
the United States Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. |
| |
|
|
|
| |
“Seal” |
|
common seal or any one
or more duplicate seals of the Company (including a securities seal) for use in the Cayman Islands or in any place outside the Cayman
Islands. |
| |
|
|
|
| |
“Secretary” |
|
any person, firm or corporation
appointed by the Board to perform any of the duties of secretary of the Company and includes any assistant, deputy, temporary or
acting secretary. |
| |
|
|
|
| |
“special resolution” |
|
means a special resolution
of the Company passed in accordance with the Act, being a resolution: |
| |
|
|
|
| |
|
|
(a) passed by a majority
of not less than two-thirds of the votes of such Members as, being entitled to do so, vote in person or, where proxies are allowed,
by proxy at a general meeting of the Company of which notice specifying the intention to propose the resolution as a special resolution
has been duly given, and in computing a majority where a poll is taken, regard shall be had to the number of votes to which each
Member is entitled; or |
| |
|
|
|
| |
|
|
(b) approved in writing
by all of the Members entitled to vote at a general meeting of the Company in one or more instruments each signed by one or more
of the Members and the effective date of the special resolution so adopted shall be the date on which the instrument or the last
of such instruments, if more than one, is executed; |
| |
|
|
|
| |
“Statutes” |
|
the Act and every other
law of the Legislature of the Cayman Islands for the time being in force applying to or affecting the Company, its Memorandum of
Association and/or these Articles. |
| |
|
|
|
| |
“year” |
|
a calendar year. |
| |
(2) |
In these Articles,
unless there be something within the subject or context inconsistent with such construction: |
| |
(a) |
words importing
the singular include the plural and vice versa; |
| |
(b) |
words importing
a gender include both gender and the neuter; |
| |
(c) |
words importing
persons include companies, associations and bodies of persons whether corporate or not; |
| |
|
(i) |
“may”
shall be construed as permissive; |
| |
|
(ii) |
“shall”
or “will” shall be construed as imperative; |
| |
(e) |
expressions referring to writing shall, unless the contrary intention
appears, be construed as including printing, lithography, photography and other modes of representing words or figures in a visible
form, and including where the representation takes the form of electronic display, provided that both the mode of service of the
relevant document or notice and the Member’s election comply with all applicable Statutes, rules and regulations;
|
| |
(f) |
references
to any law, ordinance, statute or statutory provision shall be interpreted as relating to any statutory modification or re-enactment
thereof for the time being in force; |
| |
(g) |
save as aforesaid
words and expressions defined in the Statutes shall bear the same meanings in these Articles if not inconsistent with the subject
in the context; |
| |
(h) |
references
to a document being executed include references to it being executed under hand or under seal or by electronic signature or by any
other method and references to a notice or document include a notice or document recorded or stored in any digital, electronic, electrical,
magnetic or other retrievable form or medium and information in visible form whether having physical substance or not; |
| |
(i) |
Section 8
of the Electronic Transactions Act (As Revised) of the Cayman Islands, as amended from time to time, shall not apply
to these Articles to the extent it imposes obligations or requirements in addition to those set out in these Articles. |
SHARE CAPITAL
| 3. |
(1) |
The share capital of the Company
at the date on which these Articles come into effect shall be divided into shares of a par value of US$0.001
each. |
| |
(2) |
Subject to
the Act, the Company’s Memorandum and Articles of Association and, where applicable, the rules of the Designated Stock
Exchange and/or any competent regulatory authority, any power of the Company to purchase or otherwise acquire its own shares shall
be exercisable by the Board in such manner, upon such terms and subject to such conditions as it thinks fit. |
| |
(3) |
No share shall
be issued to bearer. |
ALTERATION OF CAPITAL
| 4. |
|
The Company may from time to time
by ordinary resolution in accordance with the Act alter the conditions of its Memorandum of Association to: |
| |
(a) |
increase its
capital by such sum, to be divided into shares of such amounts, as the resolution shall prescribe; |
| |
(b) |
consolidate
and divide all or any of its capital into shares of larger amount than its existing shares; |
| |
(c) |
without prejudice
to the powers of the Board under Article 12, divide its shares into several classes and without prejudice to any special rights
previously conferred on the holders of existing shares attach thereto respectively any preferential, deferred, qualified or special
rights, privileges, conditions or such restrictions which in the absence of any such determination by the Company in general meeting,
as the Directors may determine provided always that, for the avoidance of doubt, subject to Article 9(e), where a class of shares
has been authorised by the Company no resolution of the Company in general meeting is required for the issuance of shares of that
class and the Directors may issue shares of that class and determine such rights, privileges, conditions or restrictions attaching
thereto as aforesaid, and further provided that where the Company issues shares which do not carry voting rights, the words “non-voting”
shall appear in the designation of such shares; |
| |
(d) |
sub-divide
its shares, or any of them, into shares of smaller amount than is fixed by the Memorandum of Association (subject, nevertheless,
to the Act), and may by such resolution determine that, as between the holders of the shares resulting from such sub-division, one
or more of the shares may have any such preferred, deferred or other rights or be subject to any such restrictions as compared with
the other or others as the Company has power to attach to unissued or new shares; |
| |
(e) |
cancel any
shares which, at the date of the passing of the resolution, have not been taken, or agreed to be taken, by any person, and diminish
the amount of its capital by the amount of the shares so cancelled or, in the case of shares, without par value, diminish the number
of shares into which its capital is divided. |
| 5. |
|
The Board may settle as it considers
expedient any difficulty which arises in relation to any consolidation and division under the last preceding Article and in
particular but without prejudice to the generality of the foregoing may issue certificates in respect of fractions of shares or arrange
for the sale of the shares representing fractions and the distribution of the net proceeds of sale (after deduction of the expenses
of such sale) in due proportion amongst the Members who would have been entitled to the fractions, and for this purpose the Board
may authorise some person to transfer the shares representing fractions to their purchaser or resolve that such net proceeds be paid
to the Company for the Company’s benefit. Such purchaser will not be bound to see to the application of the purchase money
nor will his title to the shares be affected by any irregularity or invalidity in the proceedings relating to the sale. |
| 6. |
|
The Company may from time to time
by special resolution, subject to any confirmation or consent required by the Act, reduce its share capital or any capital redemption
reserve in any manner permitted by law. |
| 7. |
|
Except so far as otherwise provided
by the conditions of issue, or by these Articles, any capital raised by the creation of new shares shall be treated as if it formed
part of the original capital of the Company, and such shares shall be subject to the provisions contained in these Articles with
reference to the payment of calls and instalments, transfer and transmission, forfeiture, lien, cancellation, surrender, voting and
otherwise. |
SHARE RIGHTS
| 8. |
(1) |
Subject
to the provisions of the Act, the rules of the Designated Stock Exchange and the Memorandum and Articles of Association (including
Article 9(e)) and to any special rights conferred on the holders of any shares or class of shares, and without prejudice to
Article 12 hereof, any share in the Company (whether forming part of the present capital or not) may be issued with or have
attached thereto such rights or restrictions whether in regard to dividend, voting, return of capital or otherwise as the Board may
determine, including without limitation on terms that they may be, or at the option of the Company or the holder are, liable to be
redeemed on such terms and in such manner, including out of capital, as the Board may deem fit.
|
| |
(2) |
Subject to
the Act, any preferred shares may be issued or converted into shares that, at a determinable date or at the option of the Company
or the holder thereof, are to be redeemed or are liable to be redeemed on such terms and in such manner as the Directors may in their
absolute discretion determine. |
| 9. |
|
Subject to Article 8(1), Article 9(e),
the Memorandum of Association and any resolution of the Members to the contrary and without prejudice to any special rights conferred
thereby on the holders of any other shares or class of shares, the share capital of the Company shall be divided into Class A
Ordinary Shares and Class B Ordinary Share provided always that the Directors may, in their absolute discretion and without
the approval of the Members, create and designate out of the unissued shares of the Company (including unissued Class A Ordinary
Shares but excluding unissued Class B Ordinary Shares) one or more classes or series of preferred shares, comprising such number
of preferred shares, and having such designations, powers, preferences, privileges and other rights, including dividend rights, voting
rights, conversion rights, terms of redemption and liquidation preferences, as the Directors may determine. The Class A Ordinary
Shares and Class B Ordinary Shares shall carry equal rights and rank pari passu with one another other than as set out below.
|
| |
(a) |
As regards
conversion from Class B Ordinary Shares to Class A Ordinary Shares |
| |
(i) |
Subject to
the provisions hereof and to compliance with all fiscal and other laws and regulations applicable thereto, including the Act), (A) the
Class B Ordinary Shares shall be subject to automatic conversion on the Automatic Conversion Date; and (B) a holder of
Class B Ordinary Shares shall have the Conversion Right in respect of each Class B Ordinary Share. Any and all taxes
and stamp, issue and registration duties (if any) arising on any conversion (whether automatic or optional) shall be borne by the
Company. |
| |
(ii) |
Subject to
the provisions hereof and to compliance with all fiscal and other laws and regulations applicable thereto, including the Act), each
Class B Ordinary Share shall be converted at any time after issue and without the payment of any additional sum, into such number
of fully paid Class A Ordinary Shares calculated at the Conversion Rate then in effect EITHER : |
| (A) | at the option of the holder. Such conversion shall take effect
on the Conversion Date. A Conversion Notice shall not be effective if it is not accompanied
by the share certificates in respect of the relevant Class B Ordinary Shares and such
other evidence (if any) as the Directors may reasonably require to prove the title of the
person exercising such right (or, if such certificates have been lost or destroyed, such
evidence of title and such indemnity as the Directors may reasonably require); OR |
| (B) | automatically. Such conversion shall take effect on the Automatic
Conversion Date, and a Conversion Notice shall not be required to be delivered to the Company
give effect to such automatic conversion. |
| |
(iii) |
To the extent
the Conversion Rate is one Class A Ordinary Share for one Class B Ordinary Share, on the Conversion Date or the Automatic
Conversion Date, as the case may be, every Class B Ordinary Share shall automatically be re-designated and re-classified as
a Class A Ordinary Share with such rights and restrictions attached to and shall rank pari passu in all respects with
the Class A Ordinary Shares then in issue. |
| |
(iv) |
If the Conversion
Rate is not on a one for one basis, the conversion shall take effect in such manner permitted by law (including, without limitation,
by way of repurchase set out in Section 37 of the Act). |
| |
(v) |
Subject to
the provisions hereof and to compliance with all fiscal and other laws and regulations applicable thereto, including the Act), on
the Conversion Date or the Automatic Conversion Date, as the case may be, the Company shall allot and issue the relevant Class A
Ordinary Shares to the converting Member, repurchase and cancel the relevant Class B Ordinary Shares, enter or procure the entry
of the name of the relevant holder of Class B Ordinary Shares as the holder of the relevant number of Class A Ordinary
Shares resulting from the conversion of the Class B Ordinary Shares in, and make any other necessary and consequential changes
to, the Register of Members and shall procure that certificates in respect of the relevant Class A Ordinary Shares, together
with a new certificate for any unconverted Class B Ordinary Shares comprised in the certificate(s) surrendered by the holder
of the Class B Ordinary Shares, are issued to the holders of the Class A Ordinary Shares and Class B Ordinary Shares,
as the case may be. |
| |
(vi) |
Until such
time as the Class B Ordinary Shares have been converted into Class A Ordinary Shares the Company shall: |
| |
(1) |
at all times
keep available for issue and free of all liens, charges, options, mortgages, pledges, claims, equities, encumbrances and other third-party
rights of any nature, and not subject to any pre-emptive rights out of its authorised but unissued share capital, such number of
authorised but unissued Class A Ordinary Shares as would enable all Class B Ordinary Shares to be converted, re-designated
or re-classified into Class A Ordinary Shares and any other rights of conversion into, subscription for or exchange into Class A
Ordinary Shares to be satisfied in full; |
| |
(2) |
maintain such
amounts standing to the credit of its share premium and share capital accounts as to permit the conversion of the Class B Ordinary
Shares into Class A Ordinary Shares by way of repurchase pursuant to Section 37 of the Act; and |
| |
(3) |
not make any
issue, grant or distribution or take any other action if the effect would be that on the conversion, re-designation or re-classification
of the Class B Ordinary Shares to Class A Ordinary Shares it would be required to issue Class A Ordinary Shares at
a price lower than the par value thereof. |
| |
(b) |
Adjustments
of Conversion Rate |
| |
(i) |
Subject as
herein provided, the Conversion Rate shall from time to time be adjusted in accordance with the following relevant provisions. |
| |
(ii) |
If and whenever
a Class A Ordinary Share by reason of any consolidation or sub-division becomes of a different nominal amount, the Conversion
Rate in force immediately prior thereto shall be adjusted by multiplying it by the revised nominal amount and dividing the result
by the former nominal amount. Within two (2) Business Days of any such adjustment the Company will send to the holder of
Class B Ordinary Shares a certificate signed by a Director of the Company setting forth brief particulars of the event giving
rise to the adjustment, the Conversion Rate in effect prior to such adjustment, the adjusted Conversion Rate on the effective date
of the adjustment. Each such adjustment shall be effective from the close of business in United States of America on the day
preceding the date on which the consolidation or sub-division becomes effective. |
| |
(c) |
As regards
Voting Rights |
| |
(i) |
At all times
during the period from the coming into effect of these Articles, each Class A Ordinary Share shall be entitled to one (1) vote
on all matters subject to vote at general meetings of the Company only when voting on a poll is taken, and each Class B ordinary
share shall be entitled to thirty (30) votes on all matters subject to vote at general meetings of the Company only when voting
on a poll is taken. |
| (ii) | Unless otherwise
required under applicable laws in the Cayman Islands, holders of Class A Ordinary Shares
and Class B Ordinary Shares shall at all times vote together as one class on all resolutions
submitted to a vote by the Members. |
| |
(d) |
As regards Transfers
of Class B Ordinary Shares |
| |
|
|
Upon any sale, transfer, assignment or disposition of Beneficial
Ownership of any Class B Ordinary Share by a holder or a Beneficial Owner of such Class B Ordinary Share to any person who
is not (i) the registered holder or Beneficial Owner of Class B Ordinary Shares or (ii) an Affiliate of the registered
holder or Beneficial Owner of such Class B Ordinary Share being transferred, assigned or disposed of, such Class B Ordinary
Share shall automatically convert into one (1) Class A Ordinary Share upon the completion of such transfer, assignment or disposition,
subject to adjustments of Conversion Rate as set out in Article 9(b). For the avoidance of doubt, (i) a transfer shall be effective
upon the registration of such transfer in the Register; (ii) an assignment or disposition shall be effective upon completion of
the contractual arrangements applicable to the relevant Member or beneficial owner; and (iii) the creation of any pledge, charge,
encumbrance or other third party right of whatever description on any Class B Ordinary Shares to secure a Member’s contractual
or legal obligations shall not be deemed to be a transfer, assignment or disposition unless and until any such pledge, charge, encumbrance
or other third party right is enforced and such enforcement results in the third party becoming the registered holder of the relevant
Class B Ordinary Shares, in which case all such Class B Ordinary Shares shall be automatically converted into the same number
of Class A Ordinary Shares, subject to adjustments of Conversion Rate as set out in Article 9(b).
| |
(e) |
As regards Issuance
of Class B Ordinary Shares
|
The Board shall not issue Class B Ordinary Shares and
options, warrants or convertible securities or securities of similar nature conferring the right upon the holders thereof to subscribe
for, purchase or receive Class B Ordinary Shares in the absence of a special resolution of the Members in general meeting approving
such issuance.
VARIATION OF RIGHTS
| 10. |
|
Subject to the Act and without prejudice
to Article 8, all or any of the special rights for the time being attached to the shares or any class of shares may, unless
otherwise provided by the terms of issue of the shares of that class, from time to time (whether or not the Company is being wound
up) be varied, modified or abrogated with the sanction of a special resolution passed at a separate general meeting of the holders
of the shares of that class. To every such separate general meeting, all the provisions of these Articles relating to general
meetings of the Company shall, mutatis mutandis, apply, but so that: |
| |
(a) |
the necessary quorum (whether at a separate general meeting or
at its adjourned meeting) shall be two Members (or in the case of a Member being a corporation, its duly authorised representative);
|
| |
(b) |
every holder of shares of the class shall be entitled on a poll
to one vote for every share of such class held by him; and |
| |
(c) |
any holder
of shares of the class present in person or by proxy or authorised representative may demand a poll. |
| 11. |
|
The special rights conferred upon
the holders of any shares or class of shares shall not, unless otherwise expressly provided in the rights attaching to or the terms
of issue of such shares, be deemed to be varied, modified or abrogated by the creation or issue of further shares ranking pari
passu therewith. |
SHARES
| 12. |
(1) |
Subject to the Act, these Articles and, where applicable, the
rules of the Designated Stock Exchange and without prejudice to any special rights or restrictions for the time being attached
to any shares or any class of shares, the unissued shares of the Company (whether forming part of the original or any increased capital)
shall be at the disposal of the Board, which may offer, allot, grant options over or otherwise dispose of them to such persons, at
such times and for such consideration and upon such terms and conditions as the Board may in its absolute discretion determine but
so that no shares shall be issued at a discount. In particular and without prejudice to the generality of the foregoing, the
Board is hereby empowered to authorise by resolution or resolutions from time to time the issuance of one or more classes or series
of preferred shares and to fix the designations, powers, preferences and relative, participating, optional and other rights, if any,
and the qualifications, limitations and restrictions thereof, if any, including, without limitation, the number of shares constituting
each such class or series, dividend rights, conversion rights, redemption privileges, voting powers, full or limited or no voting
powers, and liquidation preferences, and to increase or decrease the size of any such class or series (but not below the number of
shares of any class or series of preferred shares then outstanding) to the extent permitted by Act. Without limiting the generality
of the foregoing, the resolution or resolutions providing for the establishment of any class or series of preferred shares may, to
the extent permitted by law, provide that such class or series shall be superior to, rank equally with or be junior to the preferred
shares of any other class or series.
|
| |
(2) |
Neither the
Company nor the Board shall be obliged, when making or granting any allotment of, offer of, option over or disposal of shares, to
make, or make available, any such allotment, offer, option or shares to Members or others with registered addresses in any particular
territory or territories being a territory or territories where, in the absence of a registration statement or other special formalities,
this would or might, in the opinion of the Board, be unlawful or impracticable. Members affected as a result of the foregoing
sentence shall not be, or be deemed to be, a separate class of Members for any purpose whatsoever. Except as otherwise expressly
provided in the resolution or resolutions providing for the establishment of any class or series of preferred shares, no vote of
the holders of preferred shares of or ordinary shares shall be a prerequisite to the issuance of any shares of any class or series
of the preferred shares authorised by and complying with the conditions of the Memorandum and Articles of Association. |
| |
(3) |
Subject to
Article 9(e), the Board may issue options, warrants or convertible securities or securities of similar nature conferring the
right upon the holders thereof to subscribe for, purchase or receive any class of shares or securities in the capital of the Company
on such terms as it may from time to time determine. |
| 13. |
|
The Company may in connection with the issue of any shares exercise
all powers of paying commission and brokerage conferred or permitted by the Act. Subject to the Act, the commission may be satisfied
by the payment of cash or by the allotment of fully or partly paid shares or partly in one and partly in the other. |
| 14. |
|
Except as required by law, no person
shall be recognised by the Company as holding any share upon any trust and the Company shall not be bound by or required in any way
to recognise (even when having notice thereof) any equitable, contingent, future or partial interest in any share or any fractional
part of a share or (except only as otherwise provided by these Articles or by law) any other rights in respect of any share except
an absolute right to the entirety thereof in the registered holder. |
| 15. |
|
Subject to the Act and these Articles,
the Board may at any time after the allotment of shares but before any person has been entered in the Register as the holder, recognise
a renunciation thereof by the allottee in favour of some other person and may accord to any allottee of a share a right to effect
such renunciation upon and subject to such terms and conditions as the Board considers fit to impose. |
SHARE CERTIFICATES
| 16. |
|
Every share certificate shall be
issued under the Seal or a facsimile thereof and shall specify the number and class and distinguishing numbers (if any) of the shares
to which it relates, and the amount paid up thereon and may otherwise be in such form as the Directors may from time to time determine. No
certificate shall be issued representing shares of more than one class. The Board may by resolution determine, either generally
or in any particular case or cases, that any signatures on any such certificates (or certificates in respect of other securities)
need not be autographic but may be affixed to such certificates by some mechanical means or may be printed thereon. |
| 17. |
(1) |
In the case of a share held jointly
by several persons, the Company shall not be bound to issue more than one certificate therefor and delivery of a certificate to one
of several joint holders shall be sufficient delivery to all such holders. |
| |
(2) |
Where a share stands in the names of two or more persons, the
person first named in the Register shall as regards service of notices and, subject to the provisions of these Articles, all or any
other matters connected with the Company, except the transfer of the shares, be deemed the sole holder thereof.
|
| 18. |
|
Every person
whose name is entered, upon an allotment of shares, as a Member in the Register shall be entitled, without payment, to receive one
certificate for all such shares of any one class or several certificates each for one or more of such shares of such class upon payment
for every certificate after the first of such reasonable out-of-pocket expenses as the Board from time to time determines. |
| 19. |
|
Share certificates shall be issued
within the relevant time limit as prescribed by the Act or as the Designated Stock Exchange may from time to time determine, whichever
is the shorter, after allotment or, except in the case of a transfer which the Company is for the time being entitled to refuse to
register and does not register, after lodgment of a transfer with the Company. |
| 20. |
(1) |
Upon every transfer of shares the
certificate held by the transferor shall be given up to be cancelled, and shall forthwith be cancelled accordingly, and a new certificate
shall be issued to the transferee in respect of the shares transferred to him at such fee as is provided in paragraph (2) of
this Article. If any of the shares included in the certificate so given up shall be retained by the transferor a new certificate
for the balance shall be issued to him at the aforesaid fee payable by the transferor to the Company in respect thereof. |
| |
(2) |
The fee referred
to in paragraph (1) above shall be an amount not exceeding the relevant maximum amount as the Designated Stock Exchange may
from time to time determine provided that the Board may at any time determine a lower amount for such fee. |
| 21. |
|
If a share certificate shall be
damaged or defaced or alleged to have been lost, stolen or destroyed a new certificate representing the same shares may be issued
to the relevant Member upon request and on payment of such fee as the Company may determine and, subject to compliance with such
terms (if any) as to evidence and indemnity and to payment of the costs and reasonable out-of-pocket expenses of the Company in investigating
such evidence and preparing such indemnity as the Board may think fit and, in case of damage or defacement, on delivery of the old
certificate to the Company provided always that where share warrants have been issued, no new share warrant shall be issued to replace
one that has been lost unless the Board has determined that the original has been destroyed. |
LIEN
| 22. |
|
The Company shall have a first and
paramount lien on every share (not being a fully paid share) for all moneys (whether presently payable or not) called or payable
at a fixed time in respect of that share. The Company shall also have a first and paramount lien on every share (not being a
fully paid share) registered in the name of a Member (whether or not jointly with other Members) for all amounts of money presently
payable by such Member or his estate to the Company whether the same shall have been incurred before or after notice to the Company
of any equitable or other interest of any person other than such member, and whether the period for the payment or discharge of the
same shall have actually arrived or not, and notwithstanding that the same are joint debts or liabilities of such Member or his estate
and any other person, whether a Member of the Company or not. The Company’s lien on a share shall extend to all dividends
or other moneys payable thereon or in respect thereof. The Board may at any time, generally or in any particular case, waive
any lien that has arisen or declare any share exempt in whole or in part, from the provisions of this Article. |
| 23. |
|
Subject to these Articles, the Company may sell in such manner
as the Board determines any share on which the Company has a lien, but no sale shall be made unless some sum in respect of which
the lien exists is presently payable, or the liability or engagement in respect of which such lien exists is liable to be presently
fulfilled or discharged nor until the expiration of fourteen (14) clear days after a notice in writing, stating and demanding
payment of the sum presently payable, or specifying the liability or engagement and demanding fulfilment or discharge thereof and
giving notice of the intention to sell in default, has been served on the registered holder for the time being of the share or the
person entitled thereto by reason of his death or bankruptcy.
|
| 24. |
|
The net proceeds of the sale shall
be received by the Company and applied in or towards payment or discharge of the debt or liability in respect of which the lien exists,
so far as the same is presently payable, and any residue shall (subject to a like lien for debts or liabilities not presently payable
as existed upon the share prior to the sale) be paid to the person entitled to the share at the time of the sale. To give effect
to any such sale the Board may authorise some person to transfer the shares sold to the purchaser thereof. The purchaser shall
be registered as the holder of the shares so transferred and he shall not be bound to see to the application of the purchase money,
nor shall his title to the shares be affected by any irregularity or invalidity in the proceedings relating to the sale. |
CALLS ON SHARES
| 25. |
|
Subject to these Articles and to
the terms of allotment, the Board may from time to time make calls upon the Members in respect of any moneys unpaid on their shares
(whether on account of the nominal or par value of the shares or by way of premium), and each Member shall (subject to being given
at least fourteen (14) clear days’ Notice specifying the time and place of payment) pay to the Company as required by
such notice the amount called on his shares. A call may be extended, postponed or revoked in whole or in part as the Board determines
but no member shall be entitled to any such extension, postponement or revocation except as a matter of grace and favour. |
| 26. |
|
A call shall be deemed to have been
made at the time when the resolution of the Board authorising the call was passed and may be made payable either in one lump sum
or by instalments. |
| 27. |
|
A person upon whom a call is made
shall remain liable for calls made upon him notwithstanding the subsequent transfer of the shares in respect of which the call was
made. The joint holders of a share shall be jointly and severally liable to pay all calls and instalments due in respect thereof
or other moneys due in respect thereof. |
| 28. |
|
If a sum called in respect of a share is not paid before or on
the day appointed for payment thereof, the person from whom the sum is due shall pay interest on the amount unpaid from the day appointed
for payment thereof to the time of actual payment at such rate (not exceeding twenty per cent. (20%) per annum) as the Board may
determine, but the Board may in its absolute discretion waive payment of such interest wholly or in part.
|
| 29. |
|
No Member shall be entitled to receive
any dividend or bonus or to be present and vote (save as proxy for another Member) at any general meeting either personally or by
proxy, or be reckoned in a quorum, or exercise any other privilege as a Member until all calls or instalments due by him to the Company,
whether alone or jointly with any other person, together with interest and expenses (if any) shall have been paid. |
| 30. |
|
On the trial or hearing of any action
or other proceedings for the recovery of any money due for any call, it shall be sufficient to prove that the name of the Member
sued is entered in the Register as the holder, or one of the holders, of the shares in respect of which such debt accrued, that the
resolution making the call is duly recorded in the minute book, and that notice of such call was duly given to the Member sued, in
pursuance of these Articles; and it shall not be necessary to prove the appointment of the Directors who made such call, nor any
other matters whatsoever, but the proof of the matters aforesaid shall be conclusive evidence of the debt. |
| 31. |
|
Any amount payable in respect of
a share upon allotment or at any fixed date, whether in respect of nominal value or premium or as an instalment of a call, shall
be deemed to be a call duly made and payable on the date fixed for payment and if it is not paid the provisions of these Articles
shall apply as if that amount had become due and payable by virtue of a call duly made and notified. |
| 32. |
|
On the issue of shares the Board
may differentiate between the allottees or holders as to the amount of calls to be paid and the times of payment. |
| 33. |
|
The Board may, if it thinks fit, receive from any Member willing
to advance the same, and either in money or money’s worth, all or any part of the moneys uncalled and unpaid or instalments
payable upon any shares held by him and upon all or any of the moneys so advanced (until the same would, but for such advance, become
presently payable) pay interest at such rate (if any) as the Board may decide. The Board may at any time repay the amount so
advanced upon giving to such Member not less than one month’s Notice of its intention in that behalf, unless before the expiration
of such notice the amount so advanced shall have been called up on the shares in respect of which it was advanced. Such payment
in advance shall not entitle the holder of such share or shares to participate in respect thereof in a dividend subsequently declared.
|
FORFEITURE OF SHARES
| 34. |
(1) |
If a call remains unpaid after it
has become due and payable the Board may give to the person from whom it is due not less than fourteen (14) clear days’
Notice: |
| |
(a) |
requiring payment
of the amount unpaid together with any interest which may have accrued and which may still accrue up to the date of actual payment;
and |
| |
(b) |
stating that
if the Notice is not complied with the shares on which the call was made will be liable to be forfeited. |
| |
(2) |
If the requirements
of any such Notice are not complied with, any share in respect of which such Notice has been given may at any time thereafter, before
payment of all calls and interest due in respect thereof has been made, be forfeited by a resolution of the Board to that effect,
and such forfeiture shall include all dividends and bonuses declared in respect of the forfeited share but not actually paid before
the forfeiture. |
| 35. |
|
When any share has been forfeited,
notice of the forfeiture shall be served upon the person who was before forfeiture the holder of the share. No forfeiture shall
be invalidated by any omission or neglect to give such Notice. |
| 36. |
|
The Board may accept the surrender
of any share liable to be forfeited hereunder and, in such case, references in these Articles to forfeiture will include surrender.
|
| 37. |
|
Any share so forfeited shall be deemed the property of the Company
and may be sold, re-allotted or otherwise disposed of to such person, upon such terms and in such manner as the Board determines,
and at any time before a sale, re-allotment or disposition the forfeiture may be annulled by the Board on such terms as the Board
determines.
|
| 38. |
|
A person whose shares have been
forfeited shall cease to be a Member in respect of the forfeited shares but nevertheless shall remain liable to pay the Company all
moneys which at the date of forfeiture were presently payable by him to the Company in respect of the shares, with (if the Directors
shall in their discretion so require) interest thereon from the date of forfeiture until payment at such rate (not exceeding twenty
per cent. (20%) per annum) as the Board determines. The Board may enforce payment thereof if it thinks fit, and without any
deduction or allowance for the value of the forfeited shares, at the date of forfeiture, but his liability shall cease if and when
the Company shall have received payment in full of all such moneys in respect of the shares. For the purposes of this Article any
sum which, by the terms of issue of a share, is payable thereon at a fixed time which is subsequent to the date of forfeiture, whether
on account of the nominal value of the share or by way of premium, shall notwithstanding that time has not yet arrived be deemed
to be payable at the date of forfeiture, and the same shall become due and payable immediately upon the forfeiture, but interest
thereon shall only be payable in respect of any period between the said fixed time and the date of actual payment. |
| 39. |
|
A declaration by a Director or the Secretary that a share has
been forfeited on a specified date shall be conclusive evidence of the facts therein stated as against all persons claiming to be
entitled to the share, and such declaration shall (subject to the execution of an instrument of transfer by the Company if necessary)
constitute a good title to the share, and the person to whom the share is disposed of shall be registered as the holder of the share
and shall not be bound to see to the application of the consideration (if any), nor shall his title to the share be affected by any
irregularity in or invalidity of the proceedings in reference to the forfeiture, sale or disposal of the share. When any share
shall have been forfeited, notice of the declaration shall be given to the Member in whose name it stood immediately prior to the
forfeiture, and an entry of the forfeiture, with the date thereof, shall forthwith be made in the register, but no forfeiture shall
be in any manner invalidated by any omission or neglect to give such notice or make any such entry.
|
| 40. |
|
Notwithstanding any such forfeiture
as aforesaid, the Board may at any time, before any shares so forfeited shall have been sold, re-allotted or otherwise disposed of,
permit the shares forfeited to be bought back upon the terms of payment of all calls and interest due upon and expenses incurred
in respect of the share, and upon such further terms (if any) as it thinks fit. |
| 41. |
|
The forfeiture of a share shall
not prejudice the right of the Company to any call already made or instalment payable thereon. |
| 42. |
|
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 a share, becomes payable at a
fixed time, whether on account of the nominal value of the share or by way of premium, as if the same had been payable by virtue
of a call duly made and notified. |
REGISTER OF MEMBERS
| 43. |
(1) |
The Company shall keep in one or
more books a Register of its Members and shall enter therein the following particulars, that is to say: |
| |
(a) |
the name and
address of each Member, the number and class of shares held by him and the amount paid or agreed to be considered as paid on such
shares; |
| |
(b) |
the date on
which each person was entered in the Register; and |
| |
(c) |
the date on
which any person ceased to be a Member. |
| |
(2) |
The Company may keep an overseas or local or other branch register
of Members resident in any place, and the Board may make and vary such regulations as it determines in respect of the keeping of
any such register and maintaining a Registration Office in connection therewith.
|
| |
(3) |
The title to shares listed on a Designated Stock Exchange may
be evidenced and transferred in accordance with the laws applicable to the Designated Stock Exchange Rules and, for these purposes,
the Register of Members may be maintained in accordance with section 40B of the Act.
|
| 44. |
|
The Register
and branch register of Members, as the case may be, shall be open to inspection for such times and on such days as the Board shall
determine by Members without charge or by any other person, at the Office or Registration Office or such other place at which the
Register is kept in accordance with the Act. The Register including any overseas or local or other branch register of Members may,
after compliance with any notice requirement of the Designated Stock Exchange, be closed at such times or for such periods not exceeding
in the whole thirty (30) days in each year as the Board may determine and either generally or in respect of any class of shares. |
RECORD DATES
| 45. |
|
For the purpose of determining the
Members entitled to notice of or to vote at any general meeting, or any adjournment thereof, or entitled to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights,
or entitled to exercise any rights in respect of any change, conversion or exchange of shares or for the purpose of any other lawful
action, the Board may fix, in advance, a date as the record date for any such determination of Members, which date shall not be more
than sixty (60) days nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior
to any other such action. |
| |
|
If the Board does not fix a record
date for any general meeting, the record date for determining the Members entitled to a notice of or to vote at such meeting shall
be at the close of business on the day next preceding the day on which notice is given, or, if in accordance with these Articles
notice is waived, at the close of business on the day next preceding the day on which the meeting is held. The record date for
determining the Members for any other purpose shall be at the close of business on the day on which the Board adopts the resolution
relating thereto. |
| |
|
A determination of the Members of
record entitled to notice of or to vote at a meeting of the Members shall apply to any adjournment of the meeting; provided, however,
that the Board may fix a new record date for the adjourned meeting. |
TRANSFER OF SHARES
| 46. |
|
Subject to these Articles including,
without limitation, in the case of Class B Ordinary Shares, Article 9(d), any Member may transfer all or any of his shares
by an instrument of transfer in the usual or common form or in a form prescribed by the Designated Stock Exchange or in any other
form approved by the Board and may be under hand or, if the transferor or transferee is a clearing house or a central depository
house or its nominee(s), by hand or by machine imprinted signature or by such other manner of execution as the Board may approve
from time to time. |
| 47 |
|
The instrument of transfer shall
be executed by or on behalf of the transferor and the transferee provided that the Board may dispense with the execution of the instrument
of transfer by the transferee in any case which it thinks fit in its discretion to do so. Without prejudice to the last preceding
Article, the Board may also resolve, either generally or in any particular case, upon request by either the transferor or transferee,
to accept mechanically executed transfers. The transferor shall be deemed to remain the holder of the share until the name of
the transferee is entered in the Register in respect thereof. Nothing in these Articles shall preclude the Board from recognising
a renunciation of the allotment or provisional allotment of any share by the allottee in favour of some other person. |
| 48. |
(1) |
The Board may, in its absolute discretion,
and without giving any reason therefor, refuse to register a transfer of any share (not being a fully paid up share) to a person
of whom it does not approve, or any share issued under any share incentive scheme for employees upon which a restriction on transfer
imposed thereby still subsists, and it may also, without prejudice to the foregoing generality, refuse to register a transfer of
any share to more than four joint holders or a transfer of any share (not being a fully paid up share) on which the Company has a
lien. |
| |
(2) |
The Board in
so far as permitted by any applicable law may, in its absolute discretion, at any time and from time to time transfer any share upon
the Register to any branch register or any share on any branch register to the Register or any other branch register. In the
event of any such transfer, the shareholder requesting such transfer shall bear the cost of effecting the transfer unless the Board
otherwise determines. |
| |
(3) |
Unless the
Board otherwise agrees (which agreement may be on such terms and subject to such conditions as the Board in its absolute discretion
may from time to time determine, and which agreement the Board shall, without giving any reason therefor, be entitled in its absolute
discretion to give or withhold), no shares upon the Register shall be transferred to any branch register nor shall shares on any
branch register be transferred to the Register or any other branch register and all transfers and other documents of title shall
be lodged for registration, and registered, in the case of any shares on a branch register, at the relevant Registration Office,
and, in the case of any shares on the Register, at the Office or such other place at which the Register is kept in accordance with
the Act. |
| 49. |
|
Without limiting the generality
of the last preceding Article, the Board may decline to recognise any instrument of transfer unless:- |
| |
(a) |
a fee of such
maximum sum as the Designated Stock Exchange may determine to be payable or such lesser sum as the Board may from time to time require
is paid to the Company in respect thereof; |
| |
(b) |
the instrument
of transfer is in respect of only one class of share; |
| |
(c) |
the instrument
of transfer is lodged at the Office or such other place at which the Register is kept in accordance with the Act or the Registration
Office (as the case may be) accompanied by the relevant share certificate(s) and such other evidence as the Board may reasonably
require to show the right of the transferor to make the transfer (and, if the instrument of transfer is executed by some other person
on his behalf, the authority of that person so to do); and |
| |
(d) |
if applicable,
the instrument of transfer is duly and properly stamped. |
| 50. |
|
If the Board refuses to register
a transfer of any share, it shall, within three months after the date on which the transfer was lodged with the Company, send to
each of the transferor and transferee notice of the refusal. |
| 51. |
|
The registration of transfers of
shares or of any class of shares may, after compliance with any notice requirement of the Designated Stock Exchange, be suspended
at such times and for such periods (not exceeding in the whole thirty (30) days in any year) as the Board may determine. |
TRANSMISSION OF SHARES
| 52. |
|
If a Member dies, the survivor or
survivors where the deceased was a joint holder, and his legal personal representatives where he was a sole or only surviving holder,
will be the only persons recognised by the Company as having any title to his interest in the shares; but nothing in this Article will
release the estate of a deceased Member (whether sole or joint) from any liability in respect of any share which had been solely
or jointly held by him. |
| 53. |
|
Any person becoming entitled to
a share in consequence of the death or bankruptcy or winding-up of a Member may, upon such evidence as to his title being produced
as may be required by the Board, elect either to become the holder of the share or to have some person nominated by him registered
as the transferee thereof. If he elects to become the holder he shall notify the Company in writing either at the Registration
Office or Office, as the case may be, to that effect. If he elects to have another person registered he shall execute a transfer
of the share in favour of that person. The provisions of these Articles relating to the transfer and registration of transfers
of shares shall apply to such notice or transfer as aforesaid as if the death or bankruptcy of the Member had not occurred and the
notice or transfer were a transfer signed by such Member. |
| 54. |
|
A person becoming entitled to a
share by reason of the death or bankruptcy or winding-up of a Member shall be entitled to the same dividends and other advantages
to which he would be entitled if he were the registered holder of the share. However, the Board may, if it thinks fit, withhold
the payment of any dividend payable or other advantages in respect of such share until such person shall become the registered holder
of the share or shall have effectually transferred such share, but, subject to the requirements of Article 74(2) being
met, such a person may vote at meetings. |
UNTRACEABLE MEMBERS
| 55. |
(1) |
Without prejudice to the rights
of the Company under paragraph (2) of this Article, the Company may cease sending cheques for dividend entitlements or dividend
warrants by post if such cheques or warrants have been left uncashed on two consecutive occasions. However, the Company may
exercise the power to cease sending cheques for dividend entitlements or dividend warrants after the first occasion on which such
a cheque or warrant is returned undelivered. |
| |
(2) |
The Company
shall have the power to sell, in such manner as the Board thinks fit, any shares of a Member who is untraceable, but no such sale
shall be made unless: |
| |
(a) |
all cheques
or warrants in respect of dividends of the shares in question, being not less than three in total number, for any sum payable in
cash to the holder of such shares in respect of them sent during the relevant period in the manner authorised by the Articles of
the Company have remained uncashed; |
| |
(b) |
so far as it
is aware at the end of the relevant period, the Company has not at any time during the relevant period received any indication of
the existence of the Member who is the holder of such shares or of a person entitled to such shares by death, bankruptcy or operation
of law; and |
| |
(c) |
the Company,
if so required by the rules governing the listing of shares on the Designated Stock Exchange, has given notice to, and caused
advertisement in newspapers to be made in accordance with the requirements of, the Designated Stock Exchange of its intention to
sell such shares in the manner required by the Designated Stock Exchange, and a period of three months or such shorter period as
may be allowed by the Designated Stock Exchange has elapsed since the date of such advertisement. |
| |
|
For the purpose of the foregoing, the “relevant period” means the period
commencing twelve (12) years before the date of publication of the advertisement referred to in paragraph (c) of this
Article and ending at the expiry of the period referred to in that paragraph. |
| (3) | To give effect to
any such sale the Board may authorise some person to transfer the said shares and an instrument
of transfer signed or otherwise executed by or on behalf of such person shall be as effective
as if it had been executed by the registered holder or the person entitled by transmission
to such shares, and the purchaser shall not be bound to see to the application of the purchase
money nor shall his title to the shares be affected by any irregularity or invalidity in
the proceedings relating to the sale. The net proceeds of the sale will belong to the
Company and upon receipt by the Company of such net proceeds it shall become indebted to
the former Member for an amount equal to such net proceeds. No trust shall be created
in respect of such debt and no interest shall be payable in respect of it and the Company
shall not be required to account for any money earned from the net proceeds which may be
employed in the business of the Company or as it thinks fit. Any sale under this Article shall
be valid and effective notwithstanding that the Member holding the shares sold is dead, bankrupt
or otherwise under any legal disability or incapacity. |
GENERAL MEETINGS
| 56. |
|
The Company may (but shall not be
obliged to) in each calendar year hold a general meeting as its annual general meeting and shall specify the meeting as such
in the notices calling it. The annual general meeting shall be held at such time and place as may be determined by the Board. |
| 57. |
|
Each general meeting, other than
an annual general meeting, shall be called an extraordinary general meeting. General meetings may be held at such times
and in any location in the world as may be determined by the Board. |
| 58. |
(1) |
A majority of the Board or the Chairman
of the Board may call extraordinary general meetings, which extraordinary general meetings shall be held at such times and locations
(as permitted hereby) as such person or persons shall determine. |
| |
(2) |
The
Directors shall on a Members’ requisition forthwith proceed to convene an extraordinary general meeting of the Company. A Members’
requisition is a requisition of one or more Members holding at the date of deposit of the requisition not less than [ten per cent.
(10%)] of the voting rights, on a one vote per share basis, of the issued shares which as at that date carry the right to vote at
general meetings of the Company. The Members’ requisition must state the objects and the resolutions to be added to the agenda
of the meeting and must be signed by the requisitionist(s) and deposited at the principal office of the Company or, in the event
the Company ceases to have such a principal office, the Office, and may consist of several documents in like form each signed by
one or more requisitionist(s). Any such meeting shall be held within two (2) months after the deposit of such requisition. If
within ten (10) days of such deposit the Board fails to proceed to convene such meeting the requisitionist(s) himself (themselves)
may do so in the same manner, and all reasonable expenses incurred by the requisitionist(s) as a result of the failure of the
Board shall be reimbursed to the requisitionist(s) by the Company. |
NOTICE OF GENERAL MEETINGS
| 59. |
(1) |
An annual general meeting and any
extraordinary general meeting may be called by not less than ten (10) clear days’ Notice but a general meeting may be
called by shorter notice, subject to the Act, if it is so agreed: |
| |
(a) |
in the case
of a meeting called as an annual general meeting, by all the Members entitled to attend and vote thereat; and |
| |
(b) |
in the case
of any other meeting, by a majority in number of the Members having the right to attend and vote at the meeting, being a majority
together holding not less than 50% in nominal value of the issued shares giving that right. |
| |
(2) |
The notice
shall specify the time and place of the meeting and, in case of special business, the general nature of the business. The notice
convening an annual general meeting shall specify the meeting as such. Notice of every general meeting shall be given to all
Members other than to such Members as, under the provisions of these Articles or the terms of issue of the shares they hold, are
not entitled to receive such notices from the Company, to all persons entitled to a share in consequence of the death or bankruptcy
or winding-up of a Member and to each of the Directors and the Auditors. |
| 60. |
|
The accidental omission to give
Notice of a meeting or (in cases where instruments of proxy are sent out with the Notice) to send such instrument of proxy to, or
the non-receipt of such Notice or such instrument of proxy by, any person entitled to receive such Notice shall not invalidate any
resolution passed or the proceedings at that meeting. |
PROCEEDINGS AT GENERAL MEETINGS
| 61. |
(1) |
All business shall be deemed special
that is transacted at an extraordinary general meeting, and also all business that is transacted at an annual general meeting, with
the exception of sanctioning a dividend, the consideration of the accounts, balance sheets, any report of the Directors or of the
Company’s auditors, the appointment and removal of Directors and the fixing of the remuneration of the Company’s auditors.
|
| |
(2) |
No business shall be transacted at any general meeting unless
a quorum is present at the commencement of the business. At any general meeting of the Company, two (2) Members entitled
to vote and present in person or by proxy or (in the case of a Member being a corporation) by its duly authorised representative
throughout the meeting shall form a quorum for all purposes.
|
| |
(3) |
If the Directors wish to make electronic facility available for
a specific general meeting or all general meetings of the Company, participation in any general meeting of the Company may be by
means of a telephone, electronic or similar communication equipment by way of which all Persons participating in such meeting can
communicate with each other and such participation shall be deemed to constitute presence in person at the meeting.
|
| 62. |
|
If within thirty
(30) minutes (or such longer time not exceeding one hour as the chairman of the meeting may determine to wait) after the time
appointed for the meeting a quorum is not present, the meeting shall stand adjourned to the same day in the next week at the same
time and place or to such time and place as the Board may determine. If at such adjourned meeting a quorum is not present within
half an hour from the time appointed for holding the meeting, the meeting shall be dissolved. |
| 63. |
|
The Chairman of the Board shall
preside as chairman at every general meeting. If at any meeting the chairman is not present within fifteen (15) minutes
after the time appointed for holding the meeting, or is not willing to act as chairman, the Directors present shall choose one of
their number to act, or if one Director only is present he shall preside as chairman if willing to act. If no Director is present,
or if each of the Directors present declines to take the chair, or if the chairman chosen shall retire from the chair, the Members
present in person or by proxy and entitled to vote shall elect one of their number to be chairman. |
| 64. |
|
The chairman may adjourn the meeting
from time to time and from place to place, but no business shall be transacted at any adjourned meeting other than the business which
might lawfully have been transacted at the meeting had the adjournment not taken place. When a meeting is adjourned for fourteen
(14) days or more, at least seven (7) clear days’ notice of the adjourned meeting shall be given specifying the time
and place of the adjourned meeting but it shall not be necessary to specify in such notice the nature of the business to be transacted
at the adjourned meeting and the general nature of the business to be transacted. Save as aforesaid, it shall be unnecessary
to give notice of an adjournment. |
| 65. |
|
If an amendment is proposed to any
resolution under consideration but is in good faith ruled out of order by the chairman of the meeting, the proceedings on the substantive
resolution shall not be invalidated by any error in such ruling. In the case of a resolution duly proposed as a special resolution,
no amendment thereto (other than a mere clerical amendment to correct a patent error) may in any event be considered or voted upon.
|
VOTING
| 66. |
|
Subject to any special rights or
restrictions as to voting for the time being attached to any shares by or in accordance with these Articles including, without limitation,
Article 9(c), at any general meeting on a poll every Member present in person or by proxy or, in the case of a Member being
a corporation, by its duly authorised representative shall have one vote for every fully paid share of which he is the holder but
so that no amount paid up or credited as paid up on a share in advance of calls or instalments is treated for the foregoing purposes
as paid up on the share. |
| 67. |
|
A resolution put to the vote of
a meeting shall be decided by way of a poll save that the chairman of the meeting may in good faith, allow a resolution which relates
purely to a procedural or administrative matter to be voted on by a show of hands in which case every Member present in person (or
being a corporation, is present by a duly authorised representative), or by proxy(ies) shall have one vote provided that where more
than one proxy is appointed by a Member which is a clearing house (or its nominee(s)), each such proxy shall have one vote on a show
of hands. For purposes of this Article, procedural and administrative matters are those that (i) are not on the agenda
of the general meeting or in any supplementary circular that may be issued by the Company to its Members; and (ii) relate to
the chairman’s duties to maintain the orderly conduct of the meeting and/or allow the business of the meeting to be properly
and effectively dealt with, whilst allowing all Members a reasonable opportunity to express their views. |
| 68. |
|
Where a show of hands is allowed,
before or on the declaration of the result of the show of hands, a poll may be demanded: |
| |
(a) |
by at least
three Members present in person or in the case of a Member being a corporation by its duly authorised representative or by proxy
for the time being entitled to vote at the meeting; or |
| |
(b) |
by a Member
or Members present in person or in the case of a Member being a corporation by its duly authorised representative or by proxy and
representing not less than one-tenth of the total voting rights of all Members having the right to vote at the meeting; or |
| |
(c) |
by a Member
or Members present in person or in the case of a Member being a corporation by its duly authorised representative or by proxy and
holding shares in the Company conferring a right to vote at the meeting being shares on which an aggregate sum has been paid up equal
to not less than one-tenth of the total sum paid up on all shares conferring that right. |
| |
|
A demand by
a person as proxy for a Member or in the case of a Member being a corporation by its duly authorised representative shall be deemed
to be the same as a demand by the Member. |
| 69. |
|
Where a resolution is voted on by
a show of hands, a declaration by the chairman that a resolution has been carried, or carried unanimously, or by a particular majority,
or not carried by a particular majority, or lost, and an entry to that effect made in the minute book of the Company, shall be conclusive
evidence of the facts without proof of the number or proportion of the votes recorded for or against the resolution. The result
of the poll shall be deemed to be the resolution of the meeting. The Company shall only be required to disclose the voting figures
on a poll if such disclosure is required by the rules of the Designated Stock Exchange. |
| 70. |
|
On a poll votes may be given either
personally or by proxy. |
| 71. |
|
A person entitled to more than one
vote on a poll need not use all his votes or cast all the votes he uses in the same way. |
| 72. |
|
Subject to any special rights or
restrictions as to voting for the time being attached to any shares by or in accordance with these Articles including, without limitation,
Article 9(c), all questions submitted to a general meeting shall be decided by a simple majority of votes except where a greater
majority is required by these Articles or by the Act. In the case of an equality of votes, whether on a show of hands or on a poll,
the chairman of such general meeting shall not be entitled to a second or casting vote in addition to any other vote he may have.
|
| 73. |
|
Where there are joint holders of
any share any one of such joint holder may vote, either in person or by proxy, in respect of such share as if he were solely entitled
thereto, but if more than one of such joint holders be present at any meeting the vote of the senior who tenders a vote, whether
in person or by proxy, shall be accepted to the exclusion of the 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 in respect of the joint holding. Several executors
or administrators of a deceased Member in whose name any share stands shall for the purposes of this Article be deemed joint
holders thereof. |
| 74. |
(1) |
A Member who is a patient for any
purpose relating to mental health or in respect of whom an order has been made by any court having jurisdiction for the protection
or management of the affairs of persons incapable of managing their own affairs may vote, whether on a show of hands or on a poll,
by his receiver, committee, curator bonis or other person in the nature of a receiver, committee or curator bonis appointed by such
court, and such receiver, committee, curator bonis or other person may vote on a poll by proxy, and may otherwise act and be treated
as if he were the registered holder of such shares for the purposes of general meetings, provided that such evidence as the Board
may require of the authority of the person claiming to vote shall have been deposited at the Office, head office or Registration
Office, as appropriate, not less than forty-eight (48) hours before the time appointed for holding the meeting, or adjourned
meeting or poll, as the case may be. |
| |
(2) |
Any person
entitled under Article 54 to be registered as the holder of any shares may vote at any general meeting in respect thereof in
the same manner as if he were the registered holder of such shares, provided that forty-eight (48) hours at least before the
time of the holding of the meeting or adjourned meeting, as the case may be, at which he proposes to vote, he shall satisfy the Board
of his entitlement to such shares, or the Board shall have previously admitted his right to vote at such meeting in respect thereof.
|
| 75. |
|
No Member shall, unless the Board
otherwise determines, be entitled to attend and vote and to be reckoned in a quorum at any general meeting unless he is duly registered
and all calls or other sums presently payable by him in respect of shares in the Company have been paid. |
| |
(a) |
any objection
shall be raised to the qualification of any voter; or |
| |
(b) |
any votes have
been counted which ought not to have been counted or which might have been rejected; or |
| |
(c) |
any votes are
not counted which ought to have been counted; |
the objection or error shall not vitiate the decision of the meeting
or adjourned meeting on any resolution unless the same is raised or pointed out at the meeting or, as the case may be, the adjourned
meeting at which the vote objected to is given or tendered or at which the error occurs. Any objection or error shall be referred
to the chairman of the meeting and shall only vitiate the decision of the meeting on any resolution if the chairman decides that the
same may have affected the decision of the meeting. The decision of the chairman on such matters shall be final and conclusive.
| 77. |
|
A resolution in writing signed by
all the Members for the time being entitled to receive notice of and to attend and vote at general meetings of the Company (or being
corporations by their duly authorised representatives) shall be as valid and effective as if the same had been passed at a general
meeting of the Company duly convened and held. |
PROXIES
| 78. |
|
Any Member entitled to attend and
vote at a meeting of the Company shall be entitled to appoint another person as his proxy to attend and vote instead of him. A
Member who is the holder of two or more shares may appoint more than one proxy to represent him and vote on his behalf at a general
meeting of the Company or at a class meeting. A proxy need not be a Member. In addition, a proxy or proxies representing
either a Member who is an individual or a Member which is a corporation shall be entitled to exercise the same powers on behalf of
the Member which he or they represent as such Member could exercise. |
| 79. |
|
The instrument appointing a proxy
shall be in writing under the hand of the appointor or of his attorney duly authorised in writing or, if the appointor is a corporation,
either under its seal or under the hand of an officer, attorney or other person authorised to sign the same. In the case of
an instrument of proxy purporting to be signed on behalf of a corporation by an officer thereof it shall be assumed, unless the contrary
appears, that such officer was duly authorised to sign such instrument of proxy on behalf of the corporation without further evidence
of the facts. |
| 80. |
|
The instrument appointing a proxy
and (if required by the Board) the power of attorney or other authority (if any) under which it is signed, or a certified copy of
such power or authority, shall be delivered to such place or one of such places (if any) as may be specified for that purpose in
or by way of note to or in any document accompanying the notice convening the meeting (or, if no place is so specified at the Registration
Office or the Office, as may be appropriate) not less than forty-eight (48) hours before the time appointed for holding the
meeting or adjourned meeting at which the person named in the instrument proposes to vote or, in the case of a poll taken subsequently
to the date of a meeting or adjourned meeting, not less than twenty-four (24) hours before the time appointed for the taking
of the poll and in default the instrument of proxy shall not be treated as valid. No instrument appointing a proxy shall be
valid after the expiration of twelve (12) months from the date named in it as the date of its execution, except at an adjourned
meeting or on a poll demanded at a meeting or an adjourned meeting in cases where the meeting was originally held within twelve (12) months
from such date. Delivery of an instrument appointing a proxy shall not preclude a Member from attending and voting in person
at the meeting convened and in such event, the instrument appointing a proxy shall be deemed to be revoked. |
| 81. |
|
Instruments of proxy shall be in
any common form or in such other form as the Board may approve (provided that this shall not preclude the use of the two-way form)
and the Board may, if it thinks fit, send out with the notice of any meeting forms of instrument of proxy for use at the meeting. The
instrument of proxy shall be deemed to confer authority to demand or join in demanding a poll and to vote on any amendment of a resolution
put to the meeting for which it is given as the proxy thinks fit. The instrument of proxy shall, unless the contrary is stated
therein, be valid as well for any adjournment of the meeting as for the meeting to which it relates. |
| 82. |
|
A vote given in accordance with
the terms of an instrument of proxy shall be valid notwithstanding the previous death or insanity of the principal, or revocation
of the instrument of proxy or of the authority under which it was executed, provided that no intimation in writing of such death,
insanity or revocation shall have been received by the Company at the Office or the Registration Office (or such other place as may
be specified for the delivery of instruments of proxy in the notice convening the meeting or other document sent therewith) two hours
at least before the commencement of the meeting or adjourned meeting, or the taking of the poll, at which the instrument of proxy
is used. |
| 83. |
|
Anything which under these Articles
a Member may do by proxy he may likewise do by his duly appointed attorney and the provisions of these Articles relating to proxies
and instruments appointing proxies shall apply mutatis mutandis in relation to any such attorney and the instrument under which such
attorney is appointed. |
CORPORATIONS ACTING BY REPRESENTATIVES
| 84. |
(1) |
Any corporation which is a Member
may by resolution of its directors or other governing body authorise such person as it thinks fit to act as its representative at
any meeting of the Company or at any meeting of any class of Members. The person so authorised shall be entitled to exercise
the same powers on behalf of such corporation as the corporation could exercise if it were an individual Member and such corporation
shall for the purposes of these Articles be deemed to be present in person at any such meeting if a person so authorised is present
thereat. |
| |
(2) |
If a clearing
house (or its nominee(s)) or a central depository entity, being a corporation, is a Member, it may authorise such persons as it thinks
fit to act as its representatives at any meeting of the Company or at any meeting of any class of Members provided that the authorisation
shall specify the number and class of shares in respect of which each such representative is so authorised. Each person so authorised
under the provisions of this Article shall be deemed to have been duly authorised without further evidence of the facts and
be entitled to exercise the same rights and powers on behalf of the clearing house or central depository entity (or its nominee(s))
as if such person was the registered holder of the shares of the Company held by the clearing house or a central depository entity
(or its nominee(s)) including the right to vote individually on a show of hands. |
| |
(3) |
Any reference
in these Articles to a duly authorised representative of a Member being a corporation shall mean a representative authorised under
the provisions of this Article. |
BOARD OF DIRECTORS
| 85. |
(1) |
Unless otherwise
determined by special resolution of the Members in general meeting, the number of Directors shall be no more than nine (9), with
the exact number of Directors to be determined from time to time by the Board. A majority of the Directors then in office shall
have the power from time to time to appoint any person as director to fill in a casual vacancy or as an addition to the existing
Board (subject to the maximum size of the Board) and any Directors so appointed by the Board shall hold office only until the next
following annual general meeting and shall then be eligible for re-election or re-appointment by the Board. The Company may by ordinary
resolution appoint any person to be a Director. |
| |
(2) |
The Board of
Directors shall have a Chairman of the Board of Directors (the “Chairman of the Board”) elected and appointed
by a majority of the Directors then in office. The removal of the Chairman of the Board will be determined by ordinary resolutions
of the Members. |
| |
(3) |
No Director
shall be required to hold any shares of the Company by way of qualification and a Director who is not a Member shall be entitled
to receive notice of and to attend and speak at any general meeting of the Company and of all classes of shares of the Company. |
| |
(4) |
Any Director
may be removed by way of (i) an ordinary resolution of the Members at any time before the expiration of his period of office
notwithstanding anything in these Articles or in any agreement between the Company and such Director (but without prejudice to any
claim for damages under any such agreement); or (ii) resolution of the Board provided that such removal is for Cause. |
| |
(5) |
A vacancy on
the Board created by the removal of a Director under the provisions of subparagraph (4) above may be filled by the election
or appointment by resolution of the Board. |
DISQUALIFICATION OF DIRECTORS
| 88. |
|
The office of a Director shall be
vacated if the Director: |
| |
(1) |
resigns his
office by notice in writing delivered to the Company at the Office or tendered at a meeting of the Board; |
| |
(2) |
becomes of
unsound mind or dies; |
| |
(3) |
without
special leave of absence from the Board, is absent from meetings of the Board for three consecutive meetings and the Board re-solves
that his office be vacated; or |
| |
(4) |
becomes bankrupt
or has a receiving order made against him or suspends payment or compounds with his creditors; |
| |
(5) |
is prohibited
by law from being a Director; or |
| |
(6) |
ceases to be
a Director by virtue of any provision of the Statutes or is removed from office pursuant to these Articles. |
ALTERNATE DIRECTORS
| 89. |
|
Any Director may at any time by
Notice delivered to the Office or head office or at a meeting of the Directors appoint any person (including another Director) to
be his alternate Director. Any person so appointed shall have all the rights and powers of the Director or Directors for whom
such person is appointed in the alternative provided that such person shall not be counted more than once in determining whether
or not a quorum is present. An alternate Director may be removed at any time by the body which appointed him and, subject thereto,
the office of alternate Director shall continue until the happening of any event which, if he were a Director, would cause him to
vacate such office or if his appointer ceases for any reason to be a Director. Any appointment or removal of an alternate Director
shall be effected by Notice signed by the appointor and delivered to the Office or head office or tendered at a meeting of the Board. An
alternate Director may also be a Director in his own right and may act as alternate to more than one Director. An alternate
Director shall, if his appointor so requests, be entitled to receive notices of meetings of the Board or of committees of the Board
to the same extent as, but in lieu of, the Director appointing him and shall be entitled to such extent to attend and vote as a Director
at any such meeting at which the Director appointing him is not personally present and generally at such meeting to exercise and
discharge all the functions, powers and duties of his appointor as a Director and for the purposes of the proceedings at such meeting
the provisions of these Articles shall apply as if he were a Director save that as an alternate for more than one Director his voting
rights shall be cumulative. |
| 90. |
|
An alternate Director shall only
be a Director for the purposes of the Act and shall only be subject to the provisions of the Act insofar as they relate to the duties
and obligations of a Director when performing the functions of the Director for whom he is appointed in the alternative and shall
alone be responsible to the Company for his acts and defaults and shall not be deemed to be the agent of or for the Director appointing
him. An alternate Director shall be entitled to contract and be interested in and benefit from contracts or arrangements or
transactions and to be repaid expenses and to be indemnified by the Company to the same extent mutatis mutandis as if he were a Director
but he shall not be entitled to receive from the Company any fee in his capacity as an alternate Director except only such part,
if any, of the remuneration otherwise payable to his appointor as such appointor may by Notice to the Company from time to time direct.
|
| 91. |
|
Every person acting as an alternate
Director shall have one vote for each Director for whom he acts as alternate (in addition to his own vote if he is also a Director). If
his appointor is for the time being not available or unable to act, the signature of an alternate Director to any resolution in writing
of the Board or a committee of the Board of which his appointor is a member shall, unless the notice of his appointment provides
to the contrary, be as effective as the signature of his appointor. |
| 92. |
|
An alternate Director shall ipso
facto cease to be an alternate Director if his appointor ceases for any reason to be a Director, however, such alternate Director
or any other person may be re-appointed by the Directors to serve as an alternate Director PROVIDED always that, if at any meeting
any Director retires but is re-elected at the same meeting, any appointment of such alternate Director pursuant to these Articles
which was in force immediately before his retirement shall remain in force as though he had not retired. |
DIRECTORS’ FEES AND EXPENSES
| 93. |
|
Subject to the rules of the
Designated Exchange, the Directors shall receive such remuneration as the Board may from time to time determine. |
| 94. |
|
Each Director shall be entitled
to be repaid or prepaid all travelling, hotel and incidental expenses reasonably incurred or expected to be incurred by him in attending
meetings of the Board or committees of the Board or general meetings or separate meetings of any class of shares or of debentures
of the Company or otherwise in connection with the discharge of his duties as a Director. |
| 95. |
|
Any Director who, by request, goes
or resides abroad for any purpose of the Company or who performs services which in the opinion of the Board go beyond the ordinary
duties of a Director may be paid such extra remuneration (whether by way of salary, commission, participation in profits or otherwise)
as the Board may determine and such extra remuneration shall be in addition to or in substitution for any ordinary remuneration provided
for by or pursuant to any other Article. |
| 96. |
|
Subject to the rules of the
Designated Exchange, the Board may, without the approval of the Company in general meeting, make payments to any Director or past
Director of the Company by way of compensation for loss of office, or as consideration for or in connection with his retirement from
office (not being payment to which the Director is contractually entitled). |
DIRECTORS’ INTERESTS
| |
(a) |
hold any other
office or place of profit with the Company (except that of Auditor) in conjunction with his office of Director for such period and
upon such terms as the Board may determine. Any remuneration (whether by way of salary, commission, participation in profits
or otherwise) paid to any Director in respect of any such other office or place of profit shall be in addition to any remuneration
provided for by or pursuant to any other Article; |
| |
(b) |
act by himself
or his firm in a professional capacity for the Company (otherwise than as Auditor) and he or his firm may be remunerated for professional
services as if he were not a Director; |
| |
(c) |
continue to be or become a director, or other officer or member of any other company promoted by the Company or in which the Company may be interested as a vendor, shareholder or otherwise and (unless otherwise agreed) no such Director shall be accountable for any remuneration, profits or other benefits received by him as a director, or other officer or member of or from his interests in any such other company. Subject as otherwise provided by these Articles the Directors may exercise or cause to be exercised the voting powers conferred by the shares in any other company held or owned by the Company, or exercisable by them as Directors of such other company in such manner in all respects as they think fit (including the exercise thereof in favour of any resolution appointing themselves or any of them directors, or other officers of such company) or voting or providing for the payment of remuneration to the director, or other officers of such other company and any Director may vote in favour of the exercise of such voting rights in manner aforesaid notwithstanding that he may be, or about to be, appointed a director, or other officer of such a company, and that as such he is or may become interested in the exercise of such voting rights in manner aforesaid. |
| 98. |
Subject to the Act and to these Articles, no Director or proposed or intending Director shall be disqualified by his office from contracting with the Company, either with regard to his tenure of any office or place of profit or as vendor, purchaser or in any other manner whatever, nor shall any such contract or any other contract or arrangement in which any Director is in any way interested be liable to be avoided, nor shall any Director so contracting or being so interested be liable to account to the Company or the Members for any remuneration, profit or other benefits realised by any such contract or arrangement by reason of such Director holding that office or of the fiduciary relationship thereby established provided that such Director shall disclose the nature of his interest in any contract or arrangement in which he is interested in accordance with Article 99 herein. |
| 99. |
A Director who to his knowledge is in any way, whether directly or indirectly, interested in a contract or arrangement or proposed contract or arrangement with the Company shall declare the nature of his interest at the meeting of the Board at which the question of entering into the contract or arrangement is first considered, if he knows his interest then exists, or in any other case at the first meeting of the Board after he knows that he is or has become so interested. For the purposes of this Article, a general Notice to the Board by a Director to the effect that: |
| |
(a) |
he is a member or officer of a specified company or firm and is to be regarded as interested in any contract or arrangement which may after the date of the Notice be made with that company or firm; or |
| |
(b) |
he is to be regarded as interested in any contract or arrangement which may after the date of the Notice be made with a specified person who is connected with him; shall be deemed to be a sufficient declaration of interest under this Article in relation to any such contract or arrangement, provided that no such Notice shall be effective unless either it is given at a meeting of the Board or the Director takes reasonable steps to secure that it is brought up and read at the next Board meeting after it is given. |
| 100. |
Following a declaration being made pursuant to the last preceding two Articles, subject to applicable law or the listing rules of the Company’s Designated Stock Exchange, and unless disqualified by the chairman of the relevant Board meeting, a Director may vote in respect of any contract or proposed contract or arrangement in which such Director is interested and may be counted in the quorum at such meeting. |
GENERAL POWERS OF THE DIRECTORS
| 101 |
(1) |
Subject to these Articles, the business of the Company shall be managed and conducted by the Board, which may pay all expenses incurred in forming and registering the Company and may exercise all powers of the Company (whether relating to the management of the business of the Company or otherwise) which are not by the Statutes or by these Articles required to be exercised by the Company in general meeting, subject nevertheless to the provisions of the Statutes and of these Articles and to such regulations being not inconsistent with such provisions, as may be prescribed by the Company in general meeting, but no regulations made by the Company in general meeting shall invalidate any prior act of the Board which would have been valid if such regulations had not been made. The general powers given by this Article shall not be limited or restricted by any special authority or power given to the Board by any other Article (other than as set out in Articles 9(c) and 9(e)). |
| |
(2) |
Any person contracting or dealing with the Company in the ordinary course of business shall be entitled to rely on any written or oral contract or agreement or deed, document or instrument entered into or executed as the case may be by any two of the Directors acting jointly on behalf of the Company and the same shall be deemed to be validly entered into or executed by the Company as the case may be and shall, subject to any rule of law, be binding on the Company. |
| |
(3) |
Without prejudice to the general powers conferred by these Articles it is hereby expressly declared that the Board shall have the following powers: |
| |
(a) |
To give to any person the right or option of requiring at a future date that an allotment shall be made to him of any share at par or at such premium as may be agreed. |
| |
(b) |
To give to any Directors, officers or employees of the Company an interest in any particular business or transaction or participation in the profits thereof or in the general profits of the Company either in addition to or in substitution for a salary or other remuneration. |
| |
(c) |
To resolve that the Company be deregistered in the Cayman Islands and continued in a named jurisdiction outside the Cayman Islands subject to the provisions of the Act. |
| 102. |
The Board may establish any regional or local boards or agencies for managing any of the affairs of the Company in any place, and may appoint any persons to be members of such local boards, or any agents, and may fix their remuneration (either by way of salary or by commission or by conferring the right to participation in the profits of the Company or by a combination of two or more of these modes) and pay the working expenses of any staff employed by them upon the business of the Company. The Board may delegate to any regional or local board, manager or agent any of the powers, authorities and discretions vested in or exercisable by the Board (other than its powers to make calls and forfeit shares), with power to sub-delegate, and may authorise the members of any of them to fill any vacancies therein and to act notwithstanding vacancies. Any such appointment or delegation may be made upon such terms and subject to such conditions as the Board may think fit, and the Board may remove any person appointed as aforesaid, and may revoke or vary such delegation, but no person dealing in good faith and without notice of any such revocation or variation shall be affected thereby. |
| 103. |
The Board may by power of attorney appoint any company, firm or person or any fluctuating body of persons, whether nominated directly or indirectly by the Board, to be the attorney or attorneys of the Company for such purposes and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the Board under these Articles) and for such period and subject to such conditions as it may think fit, and any such power of attorney may contain such provisions for the protection and convenience of persons dealing with any such attorney as the Board may think fit, and may also authorise any such attorney to sub-delegate all or any of the powers, authorities and discretions vested in him. Such attorney or attorneys may, if so authorised under the Seal of the Company, execute any deed or instrument under their personal seal with the same effect as the affixation of the Company’s Seal. |
| 104. |
The Board may entrust to and confer upon any Director any of the powers exercisable by it upon such terms and conditions and with such restrictions as it thinks fit, and either collaterally with, or to the exclusion of, its own powers, and may from time to time revoke or vary all or any of such powers but no person dealing in good faith and without notice of such revocation or variation shall be affected thereby. |
| 105. |
All cheques, promissory notes, drafts, bills of exchange and other instruments, whether negotiable or transferable or not, and all receipts for moneys paid to the Company shall be signed, drawn, accepted, endorsed or otherwise executed, as the case may be, in such manner as the Board shall from time to time by resolution determine. The Company’s banking accounts shall be kept with such banker or bankers as the Board shall from time to time determine. |
| 106. |
(1) |
The Board may establish or concur or join with other companies (being subsidiary companies of the Company or companies with which it is associated in business) in establishing and making contributions out of the Company’s moneys to any schemes or funds for providing pensions, sickness or compassionate allowances, life assurance or other benefits for employees (which expression as used in this and the following paragraph shall include any Director or ex-Director who may hold or have held any executive office or any office of profit under the Company or any of its subsidiary companies) and ex-employees of the Company and their dependants or any class or classes of such person. |
| |
(2) |
The Board may pay, enter into agreements to pay or make grants of revocable or irrevocable pensions or other benefits to employees and ex-employees and their dependants, or to any of such persons, including pensions or benefits additional to those, if any, to which such employees or ex-employees or their dependants are or may become entitled under any such scheme or fund as mentioned in the last preceding paragraph. Any such pension or benefit may, as the Board considers desirable, be granted to an employee either before and in anticipation of or upon or at any time after his actual retirement, and may be subject or not subject to any terms or conditions as the Board may determine. |
BORROWING POWERS
| 107. |
The Board may exercise all the powers of the Company to raise or borrow money and to mortgage or charge all or any part of the undertaking, property and assets (present and future) and uncalled capital of the Company and, subject to the Act, to issue debentures, bonds and other securities, whether outright or as collateral security for any debt, liability or obligation of the Company or of any third party. |
| 108. |
Debentures, bonds and other securities may be made assignable free from any equities between the Company and the person to whom the same may be issued. |
| 109. |
Any debentures, bonds or other securities may be issued at a discount (other than shares), premium or otherwise and with any special privileges as to redemption, surrender, drawings, allotment of shares, attending and voting at general meetings of the Company, appointment of Directors and otherwise. |
| 110. |
(1) |
Where any uncalled capital of the Company is charged, all persons taking any subsequent charge thereon shall take the same subject to such prior charge, and shall not be entitled, by notice to the Members or otherwise, to obtain priority over such prior charge. |
| |
(2) |
The Board shall cause a proper register to be kept, in accordance with the provisions of the Act, of all charges specifically affecting the property of the Company and of any series of debentures issued by the Company and shall duly comply with the requirements of the Act in regard to the registration of charges and debentures therein specified and otherwise. |
PROCEEDINGS OF THE DIRECTORS
| 111. |
The Board may meet for the despatch of business, adjourn and otherwise regulate its meetings as it considers appropriate. Questions arising at any meeting shall be determined by a majority of votes. In the case of any equality of votes the Chairman of the Board shall have an additional or casting vote. |
| 112. |
A meeting of the Board may be convened by the Secretary on request of a Director or by any Director. The Secretary shall convene a meeting of the Board of which notice may be given in writing or by telephone or in such other manner as the Board may from time to time determine whenever he shall be required so to do by the president or Chairman of the Board, as the case may be, or any Director. |
| 113. |
(1) |
The quorum necessary for the transaction of the business of the Board may be fixed by the Directors, and unless so fixed, the quorum shall be a majority of Directors then in office. An alternate Director shall be counted in a quorum in the case of the absence of a Director for whom he is the alternate provided that he shall not be counted more than once for the purpose of determining whether or not a quorum is present. |
| |
(2) |
Directors may participate in any meeting of the Board by means of a conference telephone or other communications equipment through which all persons participating in the meeting can communicate with each other simultaneously and instantaneously and, for the purpose of counting a quorum, such participation shall constitute presence at a meeting as if those participating were present in person. |
| |
(3) |
Any Director who ceases to be a Director at a Board meeting may continue to be present and to act as a Director and be counted in the quorum until the termination of such Board meeting if no other Director objects and if otherwise a quorum of Directors would not be present. |
| 114. |
The continuing Directors or a sole continuing Director may act notwithstanding any vacancy in the Board but, if and so long as the number of Directors is reduced below the minimum number fixed by or in accordance with these Articles, the continuing Directors or Director, notwithstanding that the number of Directors is below the number fixed by or in accordance with these Articles as the quorum or that there is only one continuing Director, may act for the purpose of filling vacancies in the Board or of summoning general meetings of the Company but not for any other purpose. |
| 115. |
The Chairman of the Board shall be the chairman of all meetings of the Board. If the Chairman of the Board is not present at any meeting within fifteen (15) minutes after the time appointed for holding the same, the Directors present may choose one of their number to be chairman of the meeting. |
| 116. |
A meeting of the Board at which a quorum is present shall be competent to exercise all the powers, authorities and discretions for the time being vested in or exercisable by the Board. |
| 117. |
(1) |
The Board may delegate any of its powers, authorities and discretions to committees, consisting of such Director or Directors and other persons as it thinks fit, and they may, from time to time, revoke such delegation or revoke the appointment of and discharge any such committees either wholly or in part, and either as to persons or purposes. Any committee so formed shall, in the exercise of the powers, authorities and discretions so delegated, conform to any regulations which may be imposed on it by the Board. |
| |
(2) |
All acts done by any such committee in conformity with such regulations, and in fulfilment of the purposes for which it was appointed, but not otherwise, shall have like force and effect as if done by the Board, and the Board (or if the Board delegates such power, the committee) shall have power to remunerate the members of any such committee, and charge such remuneration to the current expenses of the Company. |
| 118. |
The meetings and proceedings of any committee consisting of two or more members shall be governed by the provisions contained in these Articles for regulating the meetings and proceedings of the Board so far as the same are applicable and are not superseded by any regulations imposed by the Board under the last preceding Article, indicating, without limitation, any committee charter adopted by the Board for purposes or in respect of any such committee. |
| 119. |
A resolution in writing signed by all the Directors except such as are temporarily unable to act through ill-health or disability shall (provided that such number is sufficient to constitute a quorum and further provided that a copy of such resolution has been given or the contents thereof communicated to all the Directors for the time being entitled to receive notices of Board meetings in the same manner as notices of meetings are required to be given by these Articles) be as valid and effectual as if a resolution had been passed at a meeting of the Board duly convened and held. Such resolution may be contained in one document or in several documents in like form each signed by one or more of the Directors and for this purpose a facsimile signature of a Director shall be treated as valid. |
| 120. |
All acts bona fide done by the Board or by any committee or by any person acting as a Director or members of a committee, shall, notwithstanding that it is afterwards discovered that there was some defect in the appointment of any member of the Board or such committee or person acting as aforesaid or that they or any of them were disqualified or had vacated office, be as valid as if every such person had been duly appointed and was qualified and had continued to be a Director or member of such committee. |
OFFICERS
| 124. |
(1) |
The officers of the Company shall consist of the Chairman of the Board and Secretary and such additional officers (who may or may not be Directors) as the Board may from time to time determine, all of whom shall be deemed to be officers for the purposes of the Act and these Articles. |
| |
(2) |
The officers shall receive such remuneration as the Directors may from time to time determine. |
| 125. |
(1) |
The Secretary and additional officers, if any, shall be appointed by the Board and shall hold office on such terms and for such period as the Board may determine. If thought fit, two or more persons may be appointed as joint Secretaries. The Board may also appoint from time to time on such terms as it thinks fit one or more assistant or deputy Secretaries. |
| |
(2) |
The Secretary shall attend all meetings of the Members and shall keep correct minutes of such meetings and enter the same in the proper books provided for the purpose. He shall perform such other duties as are prescribed by the Act or these Articles or as may be prescribed by the Board. |
| 126. |
The officers of the Company shall have such powers and perform such duties in the management, business and affairs of the Company as may be delegated to them by the Directors from time to time. |
| 127. |
A provision of the Act or of these Articles requiring or authorising a thing to be done by or to a Director and the Secretary shall not be satisfied by its being done by or to the same person acting both as Director and as or in place of the Secretary. |
REGISTER OF DIRECTORS AND OFFICERS
| 128. |
The Company shall cause to be kept in one or more books at its Office a Register of Directors and Officers in which there shall be entered the full names and addresses of the Directors and Officers and such other particulars as required by the Act or as the Directors may determine. The Company shall send to the Registrar of Companies in the Cayman Islands a copy of such register, and shall from time to time notify to the said Registrar of any change that takes place in relation to such Directors and Officers as required by the Act. |
MINUTES
| 129. |
(1) |
The Board shall cause minutes to be duly entered in books provided for the purpose: |
| |
(a) |
of all elections and appointments of officers; |
| |
(b) |
of the names of the Directors present at each meeting of the Directors and of any committee of the Directors; |
| |
(c) |
of all resolutions and proceedings of each general meeting of the Members, or of all meetings of the Board and meetings of committees of the Board. |
| |
(2) |
Minutes shall be kept by the Secretary at the Office. |
SEAL
| 130. |
(1) |
The Company shall have one or more Seals, as the Board may determine. For the purpose of sealing documents creating or evidencing securities issued by the Company, the Company may have a securities seal which is a facsimile of the Seal of the Company with the addition of the word “Securities” on its face or in such other form as the Board may approve. The Board shall provide for the custody of each Seal and no Seal shall be used without the authority of the Board or of a committee of the Board authorised by the Board in that behalf. Subject as otherwise provided in these Articles, any instrument to which a Seal is affixed shall be signed autographically by one Director and the Secretary or by two Directors or by such other person (including a Director) or persons as the Board may appoint, either generally or in any particular case, save that as regards any certificates for shares or debentures or other securities of the Company the Board may by resolution determine that such signatures or either of them shall be dispensed with or affixed by some method or system of mechanical signature. Every instrument executed in manner provided by this Article shall be deemed to be sealed and executed with the authority of the Board previously given. |
| |
(2) |
Where the Company has a Seal for use abroad, the Board may by writing under the Seal appoint any agent or committee abroad to be the duly authorised agent of the Company for the purpose of affixing and using such Seal and the Board may impose restrictions on the use thereof as may be thought fit. Wherever in these Articles reference is made to the Seal, the reference shall, when and so far as may be applicable, be deemed to include any such other Seal as aforesaid. |
AUTHENTICATION OF DOCUMENTS
| 131. |
Any Director or the Secretary or any person appointed by the Board for the purpose may authenticate any documents affecting the constitution of the Company and any resolution passed by the Company or the Board or any committee, and any books, records, documents and accounts relating to the business of the Company, and to certify copies thereof or extracts therefrom as true copies or extracts, and if any books, records, documents or accounts are elsewhere than at the Office or the head office the local manager or other officer of the Company having the custody thereof shall be deemed to be a person so appointed by the Board. A document purporting to be a copy of a resolution, or an extract from the minutes of a meeting, of the Company or of the Board or any committee which is so certified shall be conclusive evidence in favour of all persons dealing with the Company upon the faith thereof that such resolution has been duly passed or, as the case may be, that such minutes or extract is a true and accurate record of proceedings at a duly constituted meeting. |
DESTRUCTION OF DOCUMENTS
| 132. |
(1) |
The Company shall be entitled to destroy the following documents at the following times: |
| |
(a) |
any share certificate which has been cancelled at any time after the expiry of one (1) year from the date of such cancellation; |
| |
(b) |
any dividend mandate or any variation or cancellation thereof or any notification of change of name or address at any time after the expiry of two (2) years from the date such mandate variation cancellation or notification was recorded by the Company; |
| |
(c) |
any instrument of transfer of shares which has been registered at any time after the expiry of seven (7) years from the date of registration; |
| |
(d) |
any allotment letters after the expiry of seven (7) years from the date of issue thereof; and |
| |
(e) |
copies of powers of attorney, grants of probate and letters of administration at any time after the expiry of seven (7) years after the account to which the relevant power of attorney, grant of probate or letters of administration related has been closed; |
| |
|
and it shall conclusively be presumed in favour of the Company that every entry in the Register purporting to be made on the basis of any such documents so destroyed was duly and properly made and every share certificate so destroyed was a valid certificate duly and properly cancelled and that every instrument of transfer so destroyed was a valid and effective instrument duly and properly registered and that every other document destroyed hereunder was a valid and effective document in accordance with the recorded particulars thereof in the books or records of the Company. Provided always that: (1) the foregoing provisions of these Article shall apply only to the destruction of a document in good faith and without express notice to the Company that the preservation of such document was relevant to a claim; (2) nothing contained in this Article shall be construed as imposing upon the Company any liability in respect of the destruction of any such document earlier than as aforesaid or in any case where the conditions of provision (1) above are not fulfilled; and (3) references in these Article to the destruction of any document include references to its disposal in any manner. |
| |
(2) |
Notwithstanding any provision contained in these Articles, the Directors may, if permitted by applicable law, authorise the destruction of documents set out in sub-paragraphs (a) to (e) of paragraph (1) of this Article and any other documents in relation to share registration which have been microfilmed or electronically stored by the Company or by the share registrar on its behalf provided always that these Article shall apply only to the destruction of a document in good faith and without express notice to the Company and its share registrar that the preservation of such document was relevant to a claim. |
DIVIDENDS AND OTHER PAYMENTS
| 133. |
Subject to the Act, the Board may from time to time declare dividends in any currency to be paid to the Members. |
| 134. |
Dividends may be declared and paid out of the profits of the Company, realised or unrealised, or from any reserve set aside from profits which the Directors determine is no longer needed. The Board may also declare and pay dividends out of share premium account or any other fund or account which can be authorised for this purpose in accordance with the Act. |
| 135. |
Except in so far as the rights attaching to, or the terms of issue of, any share otherwise provide: |
| |
(a) |
all dividends shall be declared and paid according to the amounts paid up on the shares in respect of which the dividend is paid, but no amount paid up on a share in advance of calls shall be treated for the purposes of these Article as paid up on the share; and |
| |
(b) |
all dividends shall be apportioned and paid pro rata according to the amounts paid up on the shares during any portion or portions of the period in respect of which the dividend is paid. |
| 136. |
The Board may from time to time pay to the Members such interim dividends as appear to the Board to be justified by the profits of the Company and in particular (but without prejudice to the generality of the foregoing) if at any time the share capital of the Company is divided into different classes, the Board may pay such interim dividends in respect of those shares in the capital of the Company which confer on the holders thereof deferred or non-preferential rights as well as in respect of those shares which confer on the holders thereof preferential rights with regard to dividend and provided that the Board acts bona fide the Board shall not incur any responsibility to the holders of shares conferring any preference for any damage that they may suffer by reason of the payment of an interim dividend on any shares having deferred or non-preferential rights and may also pay any fixed dividend which is payable on any shares of the Company half-yearly or on any other dates, whenever such profits, in the opinion of the Board, justifies such payment. |
| 137. |
The Board may deduct from any dividend or other moneys payable to a Member by the Company on or in respect of any shares all sums of money (if any) presently payable by him to the Company on account of calls or otherwise. |
| 138. |
No dividend or other moneys payable by the Company on or in respect of any share shall bear interest against the Company. |
| 139. |
Any dividend, interest or other sum payable in cash to the holder of shares may be paid by cheque or warrant sent through the post addressed to the holder at his registered address or, in the case of joint holders, addressed to the holder whose name stands first in the Register in respect of the shares at his address as appearing in the Register or addressed to such person and at such address as the holder or joint holders may in writing direct. Every such cheque or warrant shall, unless the holder or joint holders otherwise direct, be made payable 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 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 a good discharge to the Company notwithstanding that it may subsequently appear that the same has been stolen or that any endorsement thereon has been forged. Any one of two or more joint holders may give effectual receipts for any dividends or other moneys payable or property distributable in respect of the shares held by such joint holders. |
| 140. |
All dividends or bonuses unclaimed for one (1) year after having been declared may be invested or otherwise made use of by the Board for the benefit of the Company until claimed. Any dividend or bonuses unclaimed after a period of six (6) years from the date of declaration shall be forfeited and shall revert to the Company. The payment by the Board of any unclaimed dividend or other sums payable on or in respect of a share into a separate account shall not constitute the Company a trustee in respect thereof. |
| 141. |
Whenever the Board has resolved that a dividend be paid or declared, the Board may further resolve that such dividend be satisfied wholly or in part by the distribution of specific assets of any kind and in particular of paid up shares, debentures or warrants to subscribe securities of the Company or any other company, or in any one or more of such ways, and where any difficulty arises in regard to the distribution the Board may settle the same as it thinks expedient, and in particular may issue certificates in respect of fractions of shares, disregard fractional entitlements or round the same up or down, and may fix the value for distribution of such specific assets, or any part thereof, and may determine that cash payments shall be made to any Members upon the footing of the value so fixed in order to adjust the rights of all parties, and may vest any such specific assets in trustees as may seem expedient to the Board and may appoint any person to sign any requisite instruments of transfer and other documents on behalf of the persons entitled to the dividend, and such appointment shall be effective and binding on the Members. The Board may resolve that no such assets shall be made available to Members with registered addresses in any particular territory or territories where, in the absence of a registration statement or other special formalities, such distribution of assets would or might, in the opinion of the Board, be unlawful or impracticable and in such event the only entitlement of the Members aforesaid shall be to receive cash payments as aforesaid. Members affected as a result of the foregoing sentence shall not be or be deemed to be a separate class of Members for any purpose whatsoever. |
| 142. |
(1) |
Whenever the Board has resolved that a dividend be paid or declared on any class of the share capital of the Company, the Board may further resolve either: |
| |
(a) |
that such dividend be satisfied wholly or in part in the form of an allotment of shares credited as fully paid up, provided that the Members entitled thereto will be entitled to elect to receive such dividend (or part thereof if the Board so determines) in cash in lieu of such allotment. In such case, the following provisions shall apply: |
| |
(i) |
the basis of any such allotment shall be determined by the Board; |
| |
(ii) |
the Board, after determining the basis of allotment, shall give not less than ten (10) days’ Notice to the holders of the relevant shares of the right of election accorded to them and shall send with such notice forms of election and specify the procedure to be followed and the place at which and the latest date and time by which duly completed forms of election must be lodged in order to be effective; |
| |
(iii) |
the right of election may be exercised in respect of the whole or part of that portion of the dividend in respect of which the right of election has been accorded; and |
| |
(iv) |
the dividend (or that part of the dividend to be satisfied by the allotment of shares as aforesaid) shall not be payable in cash on shares in respect whereof the cash election has not been duly exercised (“the non-elected shares”) and in satisfaction thereof shares of the relevant class shall be allotted credited as fully paid up to the holders of the non-elected shares on the basis of allotment determined as aforesaid and for such purpose the Board shall capitalise and apply out of any part of the undivided profits of the Company (including profits carried and standing to the credit of any reserves or other special account, share premium account, capital redemption reserve other than the Subscription Rights Reserve) as the Board may determine, such sum as may be required to pay up in full the appropriate number of shares of the relevant class for allotment and distribution to and amongst the holders of the non-elected shares on such basis; or |
| |
(b) |
that the Members entitled to such dividend shall be entitled to elect to receive an allotment of shares credited as fully paid up in lieu of the whole or such part of the dividend as the Board may think fit. In such case, the following provisions shall apply: |
| |
(i) |
the basis of any such allotment shall be determined by the Board; |
| |
(ii) |
the Board, after determining the basis of allotment, shall give not less than ten (10) days’ Notice to the holders of the relevant shares of the right of election accorded to them and shall send with such notice forms of election and specify the procedure to be followed and the place at which and the latest date and time by which duly completed forms of election must be lodged in order to be effective; |
| |
(iii) |
the right of election may be exercised in respect of the whole or part of that portion of the dividend in respect of which the right of election has been accorded; and |
| |
(iv) |
the dividend (or that part of the dividend in respect of which a right of election has been accorded) shall not be payable in cash on shares in respect whereof the share election has been duly exercised (“the elected shares”) and in lieu thereof shares of the relevant class shall be allotted credited as fully paid up to the holders of the elected shares on the basis of allotment determined as aforesaid and for such purpose the Board shall capitalise and apply out of any part of the undivided profits of the Company (including profits carried and standing to the credit of any reserves or other special account, share premium account, capital redemption reserve other than the Subscription Rights Reserve) as the Board may determine, such sum as may be required to pay up in full the appropriate number of shares of the relevant class for allotment and distribution to and amongst the holders of the elected shares on such basis. |
| (2) |
(a) |
The shares allotted pursuant to the provisions of paragraph (1) of this Article shall rank paripassu in all respects with shares of the same class (if any) then in issue save only as regards participation in the relevant dividend or in any other distributions, bonuses or rights paid, made, declared or announced prior to or contemporaneously with the payment or declaration of the relevant dividend unless, contemporaneously with the announcement by the Board of their proposal to apply the provisions of sub-paragraph (a) or (b) of paragraph (2) of this Article in relation to the relevant dividend or contemporaneously with their announcement of the distribution, bonus or rights in question, the Board shall specify that the shares to be allotted pursuant to the provisions of paragraph (1) of this Article shall rank for participation in such distribution, bonus or rights. |
| |
(b) |
The Board may do all acts and things considered necessary or expedient to give effect to any capitalisation pursuant to the provisions of paragraph (1) of this Article, with full power to the Board to make such provisions as it thinks fit in the case of shares becoming distributable in fractions (including provisions whereby, in whole or in part, fractional entitlements are aggregated and sold and the net proceeds distributed to those entitled, or are disregarded or rounded up or down or whereby the benefit of fractional entitlements accrues to the Company rather than to the Members concerned). The Board may authorise any person to enter into on behalf of all Members interested, an agreement with the Company providing for such capitalisation and matters incidental thereto and any agreement made pursuant to such authority shall be effective and binding on all concerned. |
| |
(3) |
The Company may upon the recommendation of the Board by ordinary resolution resolve in respect of any particular dividend of the Company that notwithstanding the provisions of paragraph (1) of this Article a dividend may be satisfied wholly in the form of an allotment of shares credited as fully paid up without offering any right to shareholders to elect to receive such dividend in cash in lieu of such allotment. |
| |
(4) |
The Board may on any occasion determine that rights of election and the allotment of shares under paragraph (1) of this Article shall not be made available or made to any shareholders with registered addresses in any territory where, in the absence of a registration statement or other special formalities, the circulation of an offer of such rights of election or the allotment of shares would or might, in the opinion of the Board, be unlawful or impracticable, and in such event the provisions aforesaid shall be read and construed subject to such determination. Members affected as a result of the foregoing sentence shall not be or be deemed to be a separate class of Members for any purpose whatsoever. |
| |
(5) |
Any resolution of the Board declaring a dividend on shares of any class, may specify that the same shall be payable or distributable to the persons registered as the holders of such shares at the close of business on a particular date, notwithstanding that it may be a date prior to that on which the resolution is passed, and thereupon the dividend shall be payable or distributable to them in accordance with their respective holdings so registered, but without prejudice to the rights inter se in respect of such dividend of transferors and transferees of any such shares. The provisions of this Article shall mutatis mutandis apply to bonuses, capitalisation issues, distributions of realised capital profits or offers or grants made by the Company to the Members. |
RESERVES
| 143. |
(1) |
The Board shall establish an account to be called the share premium account and shall carry 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 in the Company. Unless otherwise provided by the provisions of these Articles, the Board may apply the share premium account in any manner permitted by the Act. The Company shall at all times comply with the provisions of the Act in relation to the share premium account. |
| |
(2) |
Before recommending any dividend, the Board may set aside out of the profits of the Company such sums as it determines as reserves which shall, at the discretion of the Board, be applicable for any purpose to which the profits of the Company may be properly applied and pending such application may, also at such discretion, either be employed in the business of the Company or be invested in such investments as the Board may from time to time think fit and so that it shall not be necessary to keep any investments constituting the reserve or reserves separate or distinct from any other investments of the Company. The Board may also without placing the same to reserve carry forward any profits which it may think prudent not to distribute. |
CAPITALISATION
| 144. |
The Board may, at any time and from time to time, pass a resolution to the effect that it is desirable to capitalise all or any part of any amount for the time being standing to the credit of any reserve or fund (including a share premium account and capital redemption reserve and the profit and loss account) whether or not the same is available for distribution and accordingly that such amount be set free for distribution among the Members or any class of Members who would be entitled thereto if it were distributed by way of dividend and in the same proportions, on the footing that the same is not paid in cash but is applied either in or towards paying up the amounts for the time being unpaid on any shares in the Company held by such Members respectively or in paying up in full unissued shares, debentures or other obligations of the Company, to be allotted and distributed credited as fully paid up among such Members, or partly in one way and partly in the other, and the Board shall give effect to such resolution provided that, for the purposes of this Article, a share premium account and any capital redemption reserve or fund representing unrealised profits, may be applied only in paying up in full unissued shares of the Company to be allotted to such Members credited as fully paid. |
| 145. |
The Board may settle, as it considers appropriate, any difficulty arising in regard to any distribution under the last preceding Article and in particular may issue certificates in respect of fractions of shares or authorise any person to sell and transfer any fractions or may resolve that the distribution should be as nearly as may be practicable in the correct proportion but not exactly so or may ignore fractions altogether, and may determine that cash payments shall be made to any Members in order to adjust the rights of all parties, as may seem expedient to the Board. The Board may appoint any person to sign on behalf of the persons entitled to participate in the distribution any contract necessary or desirable for giving effect thereto and such appointment shall be effective and binding upon the Members. |
SUBSCRIPTION RIGHTS RESERVE
| 146. |
The following provisions shall have effect to the extent that they are not prohibited by and are in compliance with the Act: |
| |
(1) |
If, so long as any of the rights attached to any warrants issued by the Company to subscribe for shares of the Company shall remain exercisable, the Company does any act or engages in any transaction which, as a result of any adjustments to the subscription price in accordance with the provisions of the conditions of the warrants, would reduce the subscription price to below the par value of a share, then the following provisions shall apply: |
| |
(a) |
as from the date of such act or transaction the Company shall establish and thereafter (subject as provided in this Article) maintain in accordance with the provisions of this Article a reserve (the “Subscription Rights Reserve”) the amount of which shall at no time be less than the sum which for the time being would be required to be capitalised and applied in paying up in full the nominal or par value amount of the additional shares required to be issued and allotted credited as fully paid pursuant to sub-paragraph (c) below on the exercise in full of all the subscription rights outstanding and shall apply the Subscription Rights Reserve in paying up such additional shares in full as and when the same are allotted; |
| |
(b) |
the Subscription Rights Reserve shall not be used for any purpose other than that specified above unless all other reserves of the Company (other than share premium account) have been extinguished and will then only be used to make good losses of the Company if and so far as is required by law; |
| |
(c) |
upon the exercise of all or any of the subscription rights represented by any warrant, the relevant subscription rights shall be exercisable in respect of a nominal amount of shares equal to the amount in cash which the holder of such warrant is required to pay on exercise of the subscription rights represented thereby (or, as the case may be the relevant portion thereof in the event of a partial exercise of the subscription rights) and, in addition, there shall be allotted in respect of such subscription rights to the exercising warrant holder, credited as fully paid, such additional nominal amount of shares as is equal to the difference between: |
| |
(i) |
the said amount in cash which the holder of such warrant is required to pay on exercise of the subscription rights represented thereby (or, as the case may be, the relevant portion thereof in the event of a partial exercise of the subscription rights); and |
| |
(ii) |
the nominal or par value amount of shares in respect of which such subscription rights would have been exercisable having regard to the provisions of the conditions of the warrants, had it been possible for such subscription rights to represent the right to subscribe for shares at less than par and immediately upon such exercise so much of the sum standing to the credit of the Subscription Rights Reserve as is required to pay up in full such additional nominal amount of shares shall be capitalised and applied in paying up in full such additional nominal amount of shares which shall forthwith be allotted credited as fully paid to the exercising warrant holders; and |
| |
(d) |
if, upon the exercise of the subscription rights represented by any warrant, the amount standing to the credit of the Subscription Rights Reserve is not sufficient to pay up in full such additional nominal or par value amount of shares equal to such difference as aforesaid to which the exercising warrant holder is entitled, the Board shall apply any profits or reserves then or thereafter becoming available (including, to the extent permitted by law, share premium account) for such purpose until such additional nominal amount of shares is paid up and allotted as aforesaid and until then no dividend or other distribution shall be paid or made on the fully paid shares of the Company then in issue. Pending such payment and allotment, the exercising warrant holder shall be issued by the Company with a certificate evidencing his right to the allotment of such additional nominal amount of shares. The rights represented by any such certificate shall be in registered form and shall be transferable in whole or in part in units of one share in the like manner as the shares for the time being are transferable, and the Company shall make such arrangements in relation to the maintenance of a register therefor and other matters in relation thereto as the Board may think fit and adequate particulars thereof shall be made known to each relevant exercising warrant holder upon the issue of such certificate. |
| |
(2) |
Shares allotted pursuant to the provisions of this Article shall rank pari passu in all respects with the other shares allotted on the relevant exercise of the subscription rights represented by the warrant concerned. Notwithstanding anything contained in paragraph (1) of this Article, no fraction of any share shall be allotted on exercise of the subscription rights. |
| |
(3) |
The provision of this Article as to the establishment and maintenance of the Subscription Rights Reserve shall not be altered or added to in any way which would vary or abrogate, or which would have the effect of varying or abrogating the provisions for the benefit of any warrantholder or class of warrantholders under this Article without the sanction of a special resolution of such warrantholders or class of warrantholders. |
| |
(4) |
A certificate or report by the auditors for the time being of the Company as to whether or not the Subscription Rights Reserve is required to be established and maintained and if so the amount thereof so required to be established and maintained, as to the purposes for which the Subscription Rights Reserve has been used, as to the extent to which it has been used to make good losses of the Company, as to the additional nominal amount of shares required to be allotted to exercising warrant holders credited as fully paid, and as to any other matter concerning the Subscription Rights Reserve shall (in the absence of manifest error) be conclusive and binding upon the Company and all warrant holders and shareholders. |
ACCOUNTING RECORDS
| 147. |
The Board shall cause true accounts to be kept of the sums of money received and expended by the Company, and the matters in respect of which such receipt and expenditure take place, and of the property, assets, credits and liabilities of the Company and of all other matters required by the Act or necessary to give a true and fair view of the Company’s affairs and to explain its transactions. |
| 148. |
The accounting records shall be kept at the Office or, at such other place or places as the Board decides and shall always be open to inspection by the Directors. No Member (other than a Director) shall have any right of inspecting any accounting record or book or document of the Company except as conferred by law or authorised by the Board or the Company in general meeting. |
AUDIT
| 152. |
Subject to applicable law and rules of the Designated Stock Exchange: |
| |
(1) |
The Board shall appoint an auditor to audit the accounts of the Company and such auditor shall hold office until the Board appoints another auditor. Such auditor may be a Member but no Director or officer or employee of the Company shall, during his continuance in office, be eligible to act as an auditor of the Company. |
| |
(2) |
The Board may remove the Auditor at any time before the expiration of his term of office and may by resolution appoint another Auditor in his stead. |
| 153. |
Subject to the Act the accounts of the Company shall be audited at least once in every year. |
| 154. |
The remuneration of the Auditor shall be fixed by the Board. |
| 155. |
If the office of auditor becomes vacant by the resignation or death of the Auditor, or by his becoming incapable of acting by reason of illness or other disability at a time when his services are required, the Directors shall fill the vacancy and determine the remuneration of such Auditor. |
| 156. |
The Auditor shall at all reasonable times have access to all books kept by the Company and to all accounts and vouchers relating thereto; and he may call on the Directors or officers of the Company for any information in their possession relating to the books or affairs of the Company. |
| 157. |
The statement of income and expenditure and the balance sheet provided for by these Articles shall be examined by the Auditor and compared by him with the books, accounts and vouchers relating thereto; and he shall make a written report thereon stating whether such statement and balance sheet are drawn up so as to present fairly the financial position of the Company and the results of its operations for the period under review and, in case information shall have been called for from Directors or officers of the Company, whether the same has been furnished and has been satisfactory. The financial statements of the Company shall be audited by the Auditor in accordance with generally accepted auditing standards. The Auditor shall make a written report thereon in accordance with generally accepted auditing standards and the report of the Auditor shall be submitted to the Members in general meeting. The generally accepted auditing standards referred to herein may be those of a country or jurisdiction other than the Cayman Islands. If so, the financial statements and the report of the Auditor should disclose this act and name such country or jurisdiction. |
NOTICES
| 158. |
Any Notice or document, whether or not, to be given or issued under these Articles from the Company to a Member shall be in writing or by cable, telex or facsimile transmission message or other form of electronic transmission or communication and any such Notice and document may be served or delivered by the Company on or to any Member either personally or by sending it through the post in a prepaid envelope addressed to such Member at his registered address as appearing in the Register or at any other address supplied by him to the Company for the purpose or, as the case may be, by transmitting it to any such address or transmitting it to any telex or facsimile transmission number or electronic number or address or website supplied by him to the Company for the giving of Notice to him or which the person transmitting the notice reasonably and bona fide believes at the relevant time will result in the Notice being duly received by the Member or may also be served by advertisement in appropriate newspapers in accordance with the requirements of the Designated Stock Exchange or, to the extent permitted by the applicable laws, by placing it on the Company’s website and giving to the member a notice stating that the notice or other document is available there (a “notice of availability”). The notice of availability may be given to the Member by any of the means set out above. In the case of joint holders of a share all notices shall be given to that one of the joint holders whose name stands first in the Register and notice so given shall be deemed a sufficient service on or delivery to all the joint holders. |
| 159. |
Any Notice or other document: |
| |
(a) |
if served or delivered by post, shall where appropriate be sent by airmail and shall be deemed to have been served or delivered on the day following that on which the envelope containing the same, properly prepaid and addressed, is put into the post; in proving such service or delivery it shall be sufficient to prove that the envelope or wrapper containing the notice or document was properly addressed and put into the post and a certificate in writing signed by the Secretary or other officer of the Company or other person appointed by the Board that the envelope or wrapper containing the notice or other document was so addressed and put into the post shall be conclusive evidence thereof; |
| |
(b) |
if sent by electronic communication, shall be deemed to be given on the day on which it is transmitted from the server of the Company or its agent. A notice placed on the Company’s website is deemed given by the Company to a Member on the day following that on which a notice of availability is deemed served on the Member; |
| |
(c) |
if served or delivered in any other manner contemplated by these Articles, shall be deemed to have been served or delivered at the time of personal service or delivery or, as the case may be, at the time of the relevant despatch or transmission; and in proving such service or delivery a certificate in writing signed by the Secretary or other officer of the Company or other person appointed by the Board as to the act and time of such service, delivery, despatch or transmission shall be conclusive evidence thereof; and |
| |
(d) |
may be given to a Member in the English language or such other language as may be approved by the Directors, subject to due compliance with all applicable Statutes, rules and regulations. |
| 160. |
(1) |
Any Notice or other document delivered or sent by post to or left at the registered address of any Member in pursuance of these Articles shall, notwithstanding that such Member is then dead or bankrupt or that any other event has occurred, and whether or not the Company has notice of the death or bankruptcy or other event, be deemed to have been duly served or delivered in respect of any share registered in the name of such Member as sole or joint holder unless his name shall, at the time of the service or delivery of the notice or document, have been removed from the Register as the holder of the share, and such service or delivery shall for all purposes be deemed a sufficient service or delivery of such Notice or document on all persons interested (whether jointly with or as claiming through or under him) in the share. |
| |
(2) |
A notice may be given by the Company to the person entitled to a share in consequence of the death, mental disorder or bankruptcy of a Member by sending it through the post in a prepaid letter, envelope or wrapper addressed to him by name, or by the title of representative of the deceased, or trustee of the bankrupt, or by any like description, at the address, if any, supplied for the purpose by the person claiming to be so entitled, or (until such an address has been so supplied) by giving the notice in any manner in which the same might have been given if the death, mental disorder or bankruptcy had not occurred. |
| |
(3) |
Any person who by operation of law, transfer or other means whatsoever shall become entitled to any share shall be bound by every notice in respect of such share which prior to his name and address being entered on the Register shall have been duly given to the person from whom he derives his title to such share. |
SIGNATURES
| 161. |
For the purposes of these Articles, a cable or telex or facsimile or electronic transmission message purporting to come from a holder of shares or, as the case may be, a Director, or, in the case of a corporation which is a holder of shares from a director or the secretary thereof or a duly appointed attorney or duly authorised representative thereof for it and on its behalf, shall in the absence of express evidence to the contrary available to the person relying thereon at the relevant time be deemed to be a document or instrument in writing signed by such holder or Director in the terms in which it is received. |
WINDING UP
| 162. |
(1) |
Subject to Article 162(2), the Board shall have power in the name and on behalf of the Company to present a petition to the court for the Company to be wound up. |
| |
(2) |
A resolution that the Company be wound up by the court or be wound up voluntarily shall be a special resolution. |
| 163. |
(1) |
Subject to any special rights, privileges or restrictions as to the distribution of available surplus assets on liquidation for the time being attached to any class or classes of shares (i) if the Company shall be wound up and the assets available for distribution amongst the Members of the Company shall be more than sufficient to repay the whole of the capital paid up at the commencement of the winding up, the excess shall be distributed pari passu amongst such Members in proportion to the amount paid up on the shares held by them respectively and (ii) if the Company shall be wound up and the assets available for distribution amongst the Members as such shall be insufficient to repay the whole of the paid-up capital such assets shall be distributed so that, a nearly as may be, the losses shall be borne by the Members in proportion to the capital paid up, or which ought to have been paid up, at the commencement of the winding up on the shares held by them respectively. |
| |
(2) |
If the Company shall be wound up (whether the liquidation is voluntary or by the court) the liquidator may, with the authority of a special resolution and any other sanction required by the Act, divide among the Members in specie or kind the whole or any part of the assets of the Company and whether or not the assets shall consist of properties of one kind or shall consist of properties to be divided as aforesaid of different kinds, and may for such purpose set such value as he deems fair upon any one or more class or classes of property and may determine how such division shall be carried out as between the Members or different classes of Members. The liquidator may, with the like authority, vest any part of the assets in trustees upon such trusts for the benefit of the Members as the liquidator with the like authority shall think fit, and the liquidation of the Company may be closed and the Company dissolved, but so that no contributory shall be compelled to accept any shares or other property in respect of which there is a liability. |
INDEMNITY
| 164. |
(1) |
The Directors, Secretary and other officers and the liquidator or trustees (if any) for the time being acting in relation to any of the affairs of the Company and every one of them, and every one of their heirs, executors and administrators, shall be indemnified and secured harmless out of the assets and profits of the Company from and against all actions, costs, charges, losses, damages and expenses which they or any of them, their or any of their heirs, executors or administrators, shall or may incur or sustain by or by reason of any act done, concurred in or omitted in or about the execution of their duty, or supposed duty, in their respective offices or trusts; and none of them shall be answerable for the acts, receipts, neglects or defaults of the other or others of them or for joining in any receipts for the sake of conformity, or for any bankers or other persons with whom any moneys or effects belonging to the Company shall or may be lodged or deposited for safe custody, or for insufficiency or deficiency of any security upon which any moneys of or belonging to the Company shall be placed out on or invested, or for any other loss, misfortune or damage which may happen in the execution of their respective offices or trusts, or in relation thereto; PROVIDED THAT this indemnity shall not extend to any matter in respect of any fraud or dishonesty which may attach to any of said persons. |
| |
(2) |
Each Member agrees to waive any claim or right of action he might have, whether individually or by or in the right of the Company, against any Director on account of any action taken by such Director, or the failure of such Director to take any action in the performance of his duties with or for the Company; PROVIDED THAT such waiver shall not extend to any matter in respect of any fraud or dishonesty which may attach to such Director. |
AMENDMENT TO MEMORANDUM AND ARTICLES OF ASSOCIATION
AND NAME OF COMPANY
| 165. |
|
Subject to the provisions of Article 9(c), no Article shall be rescinded, altered or amended and no new Article shall be made until the same has been approved by a special resolution of the Members. Subject to the provisions of Article 9(c), a special resolution shall be required to alter the provisions of the Memorandum of Association or to change the name of the Company. |
INFORMATION
| 166. |
No Member shall be entitled to require discovery of or any information respecting any detail of the Company’s trading or any matter which is or may be 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 of the Directors it will be inexpedient in the interests of the Members of the Company to communicate to the public. |
MERGER AND CONSOLIDATION
| 167. |
The Company shall have the power to merge or consolidate with one or more other constituent companies (as defined in the Statute) upon such terms as the Directors may determine and (to the extent required by the Statute) with the approval of a special resolution. |
FINANCIAL YEAR
| 169. | Unless the Directors otherwise prescribe, the financial year
of the Company shall end on [December 31st] in each calendar year and shall begin on [January 1st] in
each calendar year. |
ANNEX D
Voting Agreement
CONFIDENTIAL
ICLK
VOTING AGREEMENT
This Voting Agreement (as may be amended, supplemented,
modified and varied from time to time in accordance with the terms herein, this “Agreement”) is made as of November 29,
2024 by and among iClick Interactive Asia Group Limited, a Cayman Islands exempted company (“ICLK”), Amber DWM Holding
Limited, a Cayman Islands exempted company (“DWM”), and the undersigned ICLK shareholders (the “ICLK Shareholders”
and each a “ICLK Shareholder”).
WHEREAS, contemporaneously with the execution
and delivery of this Agreement, ICLK, Overlord Merger Sub Ltd., a Cayman Islands exempted company and a direct, wholly owned subsidiary
of ICLK (“Merger Sub”) and DWM are entering into an Agreement and Plan of Merger (as the same may be amended, supplemented,
modified and varied from time to time in accordance with the terms therein, the “Merger Agreement”), pursuant to which,
at the Closing, Merger Sub shall be merged with and into DWM, with DWM surviving as a direct wholly owned subsidiary of ICLK (the “Merger”);
and
NOW, THEREFORE, in consideration of the
premises and for other good and valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, the parties
hereto agree as follows:
Section 1. Definitions.
As used herein the term “Voting Shares” shall mean all securities of ICLK beneficially owned (as such term is defined
in Rule13d-3 under the Exchange Act, excluding any shares underlying unexercised options or warrants, but including any shares acquired
upon exercise of such options or warrants) (“Beneficially Owned” or “Beneficial Ownership”) by any
ICLK Shareholder, including any and all securities of ICLK acquired and held in such capacity subsequent to the date hereof (“Additional
Securities”). Capitalized terms used and not defined herein shall have the respective meanings assigned to them in the Merger
Agreement.
Section 2. Representations
and Warranties of the Voting Parties. Each ICLK Shareholder on its own behalf hereby represents and warrants to the other parties
hereto, severally and not jointly, with respect to such ICLK Shareholder and such ICLK Shareholder’s Beneficial Ownership of its
Voting Shares set forth on Annex A as follows:
(a) Organization
and Standing. If such ICLK Shareholder is a legal entity, such ICLK Shareholder has been duly organized and is validly existing and
in good standing under the laws of the place of its incorporation or establishment and has all requisite corporate power and authority
to own, lease and operate its properties and to carry on its business as now being conducted. If such ICLK Shareholder is a legal entity,
such ICLK Shareholder is duly qualified or licensed and in good standing to do business in each jurisdiction in which the character of
the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification or licensing necessary,
except as would not reasonably be expected to prevent or delay the consummation of the Transactions (including the Merger) or to impair
such ICLK Shareholder’s ability to fulfill its obligations under this Agreement in any material respect.
(b) Authority.
If such ICLK Shareholder is a legal entity, such ICLK Shareholder has all requisite power and authority to enter into this Agreement,
to perform fully such ICLK Shareholder’s obligations hereunder and to consummate the transactions contemplated hereby. If such ICLK
Shareholder is a natural person, such ICLK Shareholder has the legal capacity to enter into this Agreement. If such ICLK Shareholder is
a legal entity, this Agreement has been duly authorized, executed and delivered by such ICLK Shareholder. This Agreement constitutes a
valid and binding obligation of such ICLK Shareholder enforceable in accordance with its terms, except as enforcement may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by principles
governing the availability of equitable remedies.
(c) No
Consent. No consent, approval or authorization of, or designation, declaration or filing with, any Governmental Entity or other Person
on the part of such ICLK Shareholder is required in connection with the execution, delivery and performance of this Agreement, except
as would not reasonably be expected to prevent or delay the consummation of the Transactions (including the Merger) or to impair such
ICLK Shareholder’s ability to fulfill its obligations under this Agreement in any material respect. If such ICLK Shareholder is
a natural person, no consent of such ICLK Shareholder’s spouse or creditor is necessary under any “community property”
or other laws for the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby. If such ICLK
Shareholder is a trust, no consent of any beneficiary is required for the execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby.
(d) No
Conflicts. Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby, nor
compliance with the terms hereof, will (i) violate, conflict with or result in a breach of, or constitute a default (with or without
notice or lapse of time or both) under any provision of such ICLK Shareholder’s organizational documents, (ii) violate, conflict
with or result in a breach of, or constitute a default (with or without notice or lapse of time or both) (or give rise to any right of
termination, cancellation, acceleration or loss of right) under any trust agreement, loan or credit agreement, note, bond, mortgage, indenture,
lease or other agreement, instrument, permit, concession, franchise, license, judgment, order, notice, decree, statute, law, ordinance,
rule or regulation or any other Legal Requirement applicable to such ICLK Shareholder or to such ICLK Shareholder’s property
or assets (including the Voting Shares) or (iii) result in the creation of any Lien upon any of the properties or assets of such
ICLK Shareholder, except in each case of (ii) and (iii), as would not reasonably be expected to prevent or delay the consummation
of the Transactions (including the Merger) or to impair such ICLK Shareholder’s ability to fulfill its obligations under this Agreement
in any material respect.
(e) Ownership
of Shares. Such ICLK Shareholder (i) Beneficially Owns its Voting Shares free and clear of all Liens and (ii) has the sole
power to vote or caused to be voted its Voting Shares, other than Liens pursuant to this Agreement, the memorandum and articles of ICLK
as in effect on the date hereof (the “M&A”) or applicable federal or state securities laws. Except pursuant hereto
and pursuant to (A) the M&A and (B) the ICLK Share Plans, there are no options, warrants or other rights, agreements, arrangements
or commitments of any character to which such ICLK Shareholder is a party relating to the pledge, acquisition, disposition, transfer or
voting of its Voting Shares and there are no proxies, voting trusts or any other agreements with respect to the voting of such Voting
Shares; except in the case of such ICLK Shareholder that is a limited partnership, any organizational documents of such limited partnership
and agreements between the limited partnership and its partners, in each case, that does not affect its Beneficial Ownership of its Voting
Shares or its ability to vote or caused to be voted its Voting Shares. Such ICLK Shareholder does not Beneficially Own any equity securities
of ICLK or any options, warrants or other rights to acquire any additional equity securities of ICLK or any security exchangeable or exercisable
for or convertible into equity securities of ICLK, other than as set forth on Annex A.
(f) No
Litigation. There is no Legal Proceeding pending against, or, to the knowledge of such ICLK Shareholder, threatened against, such
ICLK Shareholder or any of such ICLK Shareholder’s properties or assets (including the Voting Shares of such ICLK Shareholder),
that would reasonably be expected to prevent, delay or impair the ability of such ICLK Shareholder to perform such ICLK Shareholder’s
obligations hereunder or to consummate the transactions contemplated by this Agreement.
(g) Reliance.
Such ICLK Shareholder has had the opportunity to review the Transaction Agreement and this Agreement with counsel of such ICLK Shareholder’s
own choosing. Such ICLK Shareholder understands and acknowledges that DWM is entering into the Transaction Agreement to which DWM is a
party in reliance upon such ICLK Shareholder’s execution, delivery and performance of this Agreement.
Section 3. Agreement
to Vote Shares; Further Assurances.
(a) Each
ICLK Shareholder agrees during the term of this Agreement that, at any annual or extraordinary general meeting of the shareholders of
ICLK and at any other meeting of the shareholders of ICLK, however called, including any adjournment, recess or postponement thereof,
in connection with any written consent of the shareholders of ICLK and in any other circumstance upon which a vote, consent or other approval
of all or some of the shareholders of ICLK is sought, it shall, and shall cause any holder of record of the Voting Shares he, she or it
Beneficially Owns to, in each case to the extent that such Voting Shares are entitled to vote thereon or consent:
| (i) | appear at each such meeting or otherwise cause all of its Voting Shares to be counted as present thereat
in accordance with procedures applicable to such meeting so as to ensure such ICLK Shareholder is duly counted for purposes of calculating
a quorum and for purposes of recording the result of any applicable vote or consent and respond to each request by ICLK for written consent,
if any; and |
| (ii) | to vote or cause to be voted the Voting Shares he, she or it Beneficially Owns, or deliver, or cause to
be delivered, a written consent covering all such Voting Shares (i) in favor of the ICLK Shareholder Matters (as defined in the Merger
Agreement) and any proposal to adjourn or postpone such meeting of shareholders of ICLK to a later date if there are not sufficient votes
to approve Transactions (including the Merger) and (ii) against (A) any proposal or offer from any Person (other than DWM or
any of its Affiliates) concerning an ICLK Business Combination (as defined in the Merger Agreement); (B) any action, proposal, transaction
or agreement which could reasonably be expected to result in a breach of any covenant, representation or warranty or any other obligation
or agreement of ICLK under the Merger Agreement; and (C) except as contemplated by this Agreement and the other Transaction Agreements,
any action, proposal, transaction or agreement that could reasonably be expected to impede, interfere with, delay, discourage, adversely
affect or inhibit the timely consummation of the Transactions (including the Merger) or the fulfillment of ICLK’s conditions under
the Merger Agreement or change in any manner the voting rights of any class of shares of ICLK (including any amendments to its Governing
Documents), including, without limitation, any action that would require the consent of DWM pursuant to the Merger Agreement, except if
approved in writing by DWM. The obligations of each ICLK Shareholder specified in this Section 3 shall apply whether or not the Board
of Directors of ICLK shall have effected a Change in Recommendation (as defined in the Merger Agreement). |
(b) During
the period commencing on the date hereof and continuing until the termination of this Agreement in accordance with its terms, each ICLK
Shareholder further irrevocably and unconditionally agrees that it shall not, shall cause its Affiliates not to and shall cause the Representatives
of it and its Affiliates (to the extent such Representatives are acting on such ICLK Shareholder or its Affiliates’ behalf) (subject
to, in the case of a Representative who is a director of ICLK or any of its Subsidiaries and solely in such Representative’s capacity
as a director, his or her fiduciary duties) not to, directly or indirectly, either alone or with or through any authorized Representatives,
(i) make a Competing Proposal or solicit, encourage, recommend, facilitate or join with, invite, or knowingly take any other actions
with the intent to induce any other person to be involved in the making of a Competing Proposal, (ii) provide any information to
any third party with a view to such third party or any other person pursuing or considering to pursue a Competing Proposal, (iii) finance
or offer to finance any Competing Proposal, including by offering any equity or debt financing, or contribution of any Voting Shares Beneficially
Owns by it or provision of a voting agreement, in support of any Competing Proposal, (iv) enter into any written or oral agreement,
arrangement or understanding (whether legally binding or not) regarding, or do, anything that is directly inconsistent with the provisions
of this Agreement or the transactions contemplated hereby, (v) take any action that would reasonably be expected to have the effect
of preventing, disabling or delaying such ICLK Shareholder from performing its obligations under this Agreement, or (vi) solicit,
encourage or facilitate, or induce or enter into any negotiation, discussion, agreement, arrangement or understanding (whether or not
in writing and whether or not legally binding) with any person (other than DWM and their Affiliates) regarding, a Competing Proposal or
any of the matters described in Section 3(a) or this Section 3(b).
(c) Each
ICLK Shareholder shall, and shall cause its Affiliates and the Representatives of it and its Affiliates (to the extent such Representatives
are acting on such ICLK Shareholder or its Affiliates’ behalf) (subject to, in the case of a Representative who is a director of
ICLK or any of its Subsidiaries and solely in such Representative’s capacity as a director, his or her fiduciary duties) to, immediately
cease and terminate and cause to be ceased and terminated any existing discussions, conversations, negotiations or other communications
or activities with any person that may have been conducted heretofore with respect to a Competing Proposal. From and after the date hereof,
each ICLK Shareholder shall promptly (and in any event within twenty-four (24) hours) advise DWM of any approach by any person other than
DWM or its Affiliates to such ICLK Shareholder in connection with a Competing Proposal and provide DWM with copies of any such written
communication.
(d) From
time to time, at the request of ICLK or DWM, each ICLK Shareholder shall take all such further actions, as may be reasonably necessary
to, in the most expeditious manner reasonably practicable, effect the purposes of this Agreement.
Section 4. Grant
of Irrevocable Proxy. Each ICLK Shareholder hereby irrevocably and unconditionally grants a proxy to, and appoints, DWM and/or any
designee of DWM, and each of them individually, as its proxies and attorneys-in-fact, with full power of substitution and resubstitution,
for and in such ICLK Shareholder’s name, place and stead, to vote, act by written consent or execute and deliver a proxy, solely
in respect of the matters described in, and in accordance with, Section 3(a), and to vote or grant a written consent
with respect to the Voting Shares Beneficially Owns by it as provided in Section 3(a). This irrevocable proxy and power
of attorney is given in connection with, and in consideration of, the execution of the Merger Agreement, and that such irrevocable proxy
is given to secure the performance of the duties of such ICLK Shareholder under this Agreement. Each ICLK Shareholder hereby affirms that
such irrevocable proxy is (i) coupled with an interest and (ii) subject to the last sentence of this Section 4,
executed and intended to be irrevocable in accordance with the provisions of the Laws of Hong Kong. Each ICLK Shareholder hereby represents
that any and all prior proxies granted and voting undertakings delivered by such ICLK Shareholder with respect to the Voting Shares Beneficially
Owns by it to the extent such prior proxies or voting undertakings conflict with or are inconsistent with the proxies granted under this Section 4,
if any, have been revoked or substituted by DWM and any designee thereof with respect to such ICLK Shareholder’s Voting Shares in
connection with the transactions contemplated, and to the extent required, under the Merger Agreement and this Agreement, including the
Merger, and no subsequent proxy or voting undertaking shall be given by such ICLK Shareholder (and if given shall be ineffective). Each
ICLK Shareholder shall take such further action or execute such other instruments as may be requested by DWM in accordance with the relevant
provisions of the Laws of Hong Kong or any other Law to effectuate the intent of this proxy. If for any reason the proxy granted herein
is not irrevocable, then such ICLK Shareholder agrees to vote its Voting Shares in accordance with Section 3(a) as
instructed in writing by DWM, or any designee of DWM prior to the termination of this Agreement. The parties agree that the foregoing
is a voting agreement. The power of attorney granted by each ICLK Shareholder herein is a durable power of attorney and, so long as DWM
has the interest secured by such power of attorney or the obligations secured by such power of attorney remain undischarged, the power
of attorney shall not be revoked by the dissolution, bankruptcy, death or incapacity of such ICLK Shareholder. The proxy and power of
attorney granted hereunder shall automatically and without further action by the parties hereto terminate upon the termination of this
Agreement in accordance with its terms. Notwithstanding anything to the contrary in this Section 4, this Section 4
and the proxy granted hereunder shall only be effective with respect to an ICLK Shareholder if such ICLK Shareholder fails to perform
his or its obligations under Section 3(a) above.
Section 5. No
Voting Trusts or Other Arrangement. Each ICLK Shareholder agrees that during the term of this Agreement, such ICLK Shareholder will
not, and will not permit any entity under ICLK Shareholder’s control to, deposit any Voting Shares in a voting trust, grant any
proxies with respect to the Voting Shares or subject any of the Voting Shares to any arrangement with respect to the voting of the Voting
Shares except as contemplated in this Agreement. Each ICLK Shareholder hereby revokes any and all previous proxies and attorneys in fact
with respect to the Voting Shares. Each ICLK Shareholder agrees that during the term of this Agreement, such ICLK Shareholder will not,
and will not permit any entity under ICLK Shareholder’s control to, take any action that would make any representation or warranty
of such ICLK Shareholder herein untrue or incorrect, or have the effect of delaying or preventing such ICLK Shareholder from performing
such ICLK Shareholder’s obligations hereunder.
Section 6. Transfer
and Encumbrance. Each ICLK Shareholder agrees that during the term of this Agreement, such ICLK Shareholder will not, directly or
indirectly, transfer (including by operation of law), sell, tender, grant, offer, exchange, assign, pledge, charge, create any Lien on,
or otherwise dispose of (including by gift, tender or exchange offer, merger or operation of law), or encumber or create or permit to
exist any Lien on (“Transfer”) any of his, her or its Voting Shares or enter into any contract, option or other agreement
with respect to, or consent to, a Transfer of, any of his, her or its Voting Shares or such ICLK Shareholder’s voting or economic
interest therein. Any attempted Transfer of Voting Shares or any interest therein in violation of this Section 6 shall be null and
void. This Section 6 shall not prohibit a Transfer of Voting Shares by any ICLK Shareholder to (a) any investment fund or other
entity controlled or managed by or under common management or control with such ICLK Shareholder or affiliates of such ICLK Shareholder,
(b) to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined
in Rule 405 promulgated under the Securities Act of 1933, as amended) of such ICLK Shareholder, or (c) if such ICLK Shareholder
is a corporation, limited liability company, partnership, trust or other entity, any stockholder, member, partner or trust beneficiary
as part of a distribution; provided, however, that a Transfer referred to in this sentence shall be permitted only if, as
a precondition to such Transfer, the transferee agrees in a writing, satisfactory in form and substance to ICLK and DWM to be bound by
all of the terms of this Agreement as a ICLK Shareholder and either such ICLK Shareholder or the transferee provides DWM with a copy of
such agreement prior to the consummation of any such Transfer. With respect to each ICLK Shareholder, this Agreement and the obligations
hereunder shall attach to the Voting Shares Beneficially Owned by such ICLK Shareholder and shall be binding upon any person to which
legal or Beneficial Ownership shall pass, whether by operation of law or otherwise, including, the ICLK Shareholder’s successors
or assigns. No ICLK Shareholder may request that ICLK or the ICLK Company’s depositary banks or transfer agent, as applicable, register
the Transfer of (book-entry or otherwise) any or all of the Voting Shares of such ICLK Shareholder (whether represented by a certificate
or uncertificated), unless such transfer is made in compliance with this Agreement. Notwithstanding any Transfer of Voting Shares, the
transferor shall remain liable for the performance of all of the obligations of the ICLK Shareholder under this Agreement.
Section 7. Additional
Securities. Each ICLK Shareholder covenants and agrees to notify DWM in writing of the number of Additional Securities Beneficial
Ownership in which is acquired by such ICLK Shareholder after the date hereof as soon as practicable, but in no event later than five
(5) Business Days, after such acquisition. Such Additional Securities shall automatically become subject to the terms of this Agreement
and shall constitute Voting Securities of such ICLK Shareholder for all purposes of this Agreement.
Section 8. Share
Dividends, etc. In the event of a reclassification, recapitalization, reorganization, share split (including a reverse share
split) or combination, exchange or readjustment of shares, change in ratio of ADSs to ICLK Class A Shares, or other similar transaction,
or if any share dividend, subdivision or distribution (including any dividend or distribution of securities convertible into or exchangeable
for securities of ICLK) is declared, in each case affecting the Voting Securities, the term “Voting Securities” shall be deemed
to refer to and include such shares as well as all such share dividends and distributions and any securities of ICLK into which or for
which any or all of such shares may be changed or exchanged or which are received in such transaction.
Section 9. Appraisal
and Dissenters’ Rights. Each ICLK Shareholder hereby (i) waives, and agrees not to assert or perfect, any rights of appraisal
or rights to dissent from the Transactions (including the Merger) that ICLK Shareholder may have by virtue of ownership of Voting Shares
and (ii) agrees not to commence or participate in any claim, derivative or otherwise, against ICLK relating to the negotiation, execution
or delivery of this Agreement, the Merger Agreement or any other Transaction Agreements to which ICLK is a party or the consummation of
the Transactions (including the Merger), including any claim (1) challenging the validity of, or seeking to enjoin the operation
of, any provision of this Agreement or (2) alleging a breach of any fiduciary duty of the Board of Directors of ICLK in connection
with this Agreement, the Merger Agreement or any other Transaction Agreements to which ICLK is a party or the Transactions (including
the Merger).
Section 10. Redemption. Each
ICLK Shareholder agrees not to exercise any right to have any Voting Shares Beneficially Owned as of the date hereof or acquired and held
in such capacity subsequent to the date hereof redeemed by ICLK.
Section 11. Conversion
Notices Each ICLK Shareholder holding ICLK Class B Shares (each a “ICLK Class B Shareholder”) agrees
to deliver a written notice to ICLK immediately prior to the Effective Time, that such ICLK Class B Shareholder elects to convert
all of the ICLK Class B Shares then held by it into ICLK Class A Shares pursuant to the M&A with immediate effect.
Section 12. Termination.
This Agreement shall automatically terminate upon the earlier to occur of (i) the Closing and (ii) the date on which the Merger
Agreement is terminated for any reason in accordance with its terms. Upon termination of this Agreement, no party shall have any further
rights, obligations or liabilities under this Agreement; provided, that nothing in this Section 12 shall relieve any party
of liability for any breach of this Agreement occurring prior to termination and the provisions of this Section 12 and Section 15
through Section 17 shall survive any termination of this Agreement.
Section 13. No
Agreement as Director or Officer. Each ICLK Shareholder is signing this Agreement solely in its capacity as a shareholder of ICLK.
No ICLK Shareholder makes any agreement or understanding in this Agreement in such ICLK Shareholder’s capacity (or in the capacity
of any Affiliate, partner or employee of such ICLK Shareholder) as a director or officer of ICLK or any of its Subsidiaries (if such ICLK
Shareholder holds such office). Nothing in this Agreement will limit or affect any actions or omissions taken by a ICLK Shareholder (or
any Affiliate, partner or employee of such ICLK Shareholder) in his, her or its capacity as a director or officer of ICLK, and no actions
or omissions taken in any ICLK Shareholder’s capacity (or in the capacity of any Affiliate, partner or employee of such ICLK Shareholder)
as a director or officer shall be deemed a breach of this Agreement. Nothing in this Agreement will be construed to prohibit, limit or
restrict a ICLK Shareholder (or any Affiliate, partner or employee of ICLK Shareholder) from exercising his or her fiduciary duties as
an officer or director to ICLK or its Subsidiaries.
Section 14. Specific
Enforcement. It is agreed and understood that monetary damages would not adequately compensate an injured party for the breach of
this Agreement by any party hereto and, accordingly, that this Agreement shall be specifically enforceable, in addition to any other remedy
to which such injured party is entitled at law or in equity, and that any breach of this Agreement shall be the proper subject of a temporary
or permanent injunction or restraining order. Further, each party hereto waives any claim or defense that there is an adequate remedy
at law for such breach or threatened breach or an award of specific performance is not an appropriate remedy for any reason at law or
equity and agrees that a party’s rights would be materially and adversely affected if the obligations of the other parties under
this Agreement were not carried out in accordance with the terms and conditions hereof.
Section 15. Entire
Agreement. This Agreement supersedes all prior agreements, written or oral, among the parties hereto with respect to the subject matter
hereof and contains the entire agreement among the parties with respect to the subject matter hereof. Any provision of this Agreement
may be amended or waived if, but only if, such amendment or waiver is in writing and is signed, in the case of an amendment, by each party
to this Agreement, or, in the case of a waiver, by the party against whom the waiver is to be effective. No waiver of any provisions hereof
by either party shall be deemed a waiver of any other provisions hereof by such party, nor shall any such waiver be deemed a continuing
waiver of any provision hereof by such party.
Section 16. Notices.
All notices and other communications hereunder shall be in writing and shall be deemed given: (a) on the date established by the
sender as having been delivered personally; (b) one Business Day after being sent by a nationally recognized overnight courier guaranteeing
overnight delivery; (c) on the date that transmission is confirmed electronically, if delivered by email; or (d) on the fifth
Business Day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications, to
be valid, must be addressed as follows:
if to ICLK, to:
iClick Interactive Asia Group Limited
15/F Prosperity Millennia Plaza, 663 King’s Road, Quarry
Bay, Hong Kong S.A.R., People’s Republic of China
Attention: Josephine Ngai
Email: josephine.ngai@i-click.com
with a copy to:
Cleary Gottlieb Steen & Hamilton
37th Floor, Hysan Place, 500 Hennessy
Road
Causeway Bay, Hong Kong
Attention: Shuang Zhao
E-mail: szhao@cgsh.com
Cleary Gottlieb Steen & Hamilton
45th Floor, Fortune Financial Center
5 Dong San Huan Zhong Lu
Chaoyang District, Beijing 100020
People’s Republic of China
Attention: Denise Shiu
E-mail: dshiu@cgsh.com
if to DWM, to:
DWM Holding Limited
1 Wallich Street
#30-02
Guoco Tower
Singapore 078881
Attention: Wayne Huo
Email: wayne.huo@ambergroup.io
with a copy to (which will not constitute notice):
Simpson Thacher & Bartlett
35th Floor, ICBC Tower
3 Garden Road
Central, Hong Kong
Attention: Yi Gao
Email: YGao@stblaw.com
Simpson Thacher & Bartlett
LLP
3919 China World Center
1 Jianguomenwai Avenue
Beijing, 100004, China
Attention: Yang Wang
Email: yang.wang@stblaw.com
if to the ICLK Shareholder(s), to the address(es) set forth
underneath the ICLK Shareholder’s name on the signature page hereto,
or to such other address or to the attention of such Person or Persons
as the recipient party has specified by prior written notice to the sending party (or in the case of counsel, to such other readily ascertainable
business address as such counsel may hereafter maintain). If more than one method for sending notice as set forth above is used, the earliest
notice date established as set forth above shall control.
Section 17. Miscellaneous.
(a) Governing
Law; Consent to Jurisdiction; Waiver of Jury Trial. Section 11.7 and Section 11.8 of the Merger Agreement are incorporated
herein by reference, mutatis mutandis.
(b) Severability.
The invalidity of any portion hereof shall not affect the validity, force or effect of the remaining portions hereof. If it is ever held
that any restriction hereunder is too broad to permit enforcement of such restriction to its fullest extent, such restriction shall be
enforced to the maximum extent permitted by Law.
(c) Counterparts.
This Agreement may be executed in two or more counterparts for the convenience of the parties hereto, each of which shall be deemed an
original and all of which together will constitute one and the same instrument. Delivery of an executed counterpart of a signature page to
this Agreement by electronic, facsimile or portable document format shall be effective as delivery of a mutually executed counterpart
to this Agreement.
(d) Titles
and Headings. The titles, captions and table of contents in this Agreement are for reference purposes only, and shall not in any way
define, limit, extend or describe the scope of this Agreement or otherwise affect the meaning or interpretation of this Agreement.
(e) Assignment;
Successors and Assigns; No Third Party Rights. Except as otherwise provided herein, this Agreement may not, without the prior written
consent of the other parties hereto, be assigned by operation of Law or otherwise, and any attempted assignment shall be null and void.
Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs,
successors, permitted assigns and legal representatives, and nothing herein, express or implied, it intended to or shall confer upon any
other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
(f) Documentation
and Information. Each ICLK Shareholder shall permit and hereby authorizes ICLK, DWM and/or any of their respective Affiliates to publish
and disclose in all documents and schedules filed with the SEC, and any press release or other disclosure document that ICLK and/or DWM
determines to be necessary or desirable in connection with the Merger Agreement or the Transactions, such ICLK Shareholder’s identity
and ownership of the Voting Shares and the nature of such ICLK Shareholder’s commitments and obligations under this Agreement.
(g) Public
Disclosure. None of the ICLK Shareholders shall issue any press release or make any other public statement with respect to the transactions
contemplated by this Agreement without the prior written consent of DWM (or, for purposes of this subsection (g) only, after the
consummation of the Merger, ICLK) except as such release or statement may be required by Legal Requirements or a Governmental Entity,
and then only after (a) the form and terms of such disclosure have been provided to DWM for their review and comment, and (b) notice
has been provided to DWM and DWM had a reasonable opportunity to comment thereon, in each case to the extent legally permissible. Notwithstanding
the above, each ICLK Shareholder agrees to permit ICLK and the other ICLK Shareholders to publish and disclose in all documents filed
by ICLK or any such other ICLK Shareholder filed with the SEC in connection with the Transactions, its and its respective Affiliates’
identity and beneficial ownership of its Voting Securities or other equity securities of ICLK and the nature of such ICLK Shareholder’s
commitments, arrangements and understandings under this Agreement, or any other agreement or arrangement to which it (or any of its Affiliates)
is a party relating to the Transactions (including a copy thereof), to the extent required by applicable Legal Requirements or the SEC
(or its staff) or by mutual agreement between ICLK and DWM.
(h) Further
Assurances. Each party hereto shall execute and deliver such additional documents as may be necessary or desirable to give effect
to the transactions contemplated by this Agreement.
[Remainder of page intentionally left
blank]
IN WITNESS WHEREOF, the parties hereto have
executed and delivered this Agreement as a deed as of the date first written above.
| EXECUTED and DELIVERED | ) | |
| as a DEED | ) | |
| for and on behalf of | ) | |
| ICLICK INTERACTIVE ASIA GROUP LIMITED | ) | |
| | ) | /s/ Wing Hong Sammy Hsieh |
| In the presence of: | ) | Name: Wing Hong Sammy Hsieh |
| | ) | Title: Director |
| | ) | |
| | ) | |
| /s/ Winnie Lee Yuk Ching | ) | |
| Witness | ) | |
| | ) | |
| Name: Lee Yuk Ching | ) | |
[Signature Page to
ICLK Voting Agreement]
IN WITNESS WHEREOF, the parties hereto have
executed and delivered this Agreement as a deed as of the date first written above.
| EXECUTED and DELIVERED | ) | |
| as a DEED | ) | |
| for and on behalf of | ) | |
| AMBER DWM HOLDING LIMITED | ) | |
| | ) | /s/ Junwei HUO |
| In the presence of: | ) | Name: Junwei HUO |
| | ) | Title: Director |
| | ) | |
| | ) | |
| /s/ Dongni HU | ) | |
| Witness | ) | |
| | ) | |
| Name: Dongni HU | ) | |
[Signature Page to
ICLK Voting Agreement]
IN WITNESS WHEREOF, the parties hereto have
executed and delivered this Agreement as a deed as of the date first written above.
| EXECUTED and DELIVERED | ) | |
| as a DEED | ) | |
| for and on behalf of | ) | |
| ICLK SHAREHOLDER: Igomax Inc. | ) | |
| | ) | /s/ Jian Tang |
| In the presence of: | ) | Name: Jian Tang |
| | ) | Title: |
| | ) | |
| | ) | |
| /s/ Chau Hoi Ying | ) | |
| Witness | ) | |
| | ) | |
| Name: Chau Hoi Ying | ) | |
| Addresses for Notices: |
ICLK Shareholder
|
|
[Signature Page to
ICLK Voting Agreement]
IN WITNESS WHEREOF, the parties hereto have
executed and delivered this Agreement as a deed as of the date first written above.
| EXECUTED and DELIVERED | ) | |
| as a DEED | ) | |
| for and on behalf of | ) | |
| ICLK SHAREHOLDER: Bubinga Holdings Limited | ) | |
| | ) | /s/ Wing Hong Sammy Hsieh |
| In the presence of: | ) | Name: Wing Hong Sammy Hsieh |
| | ) | Title: |
| | ) | |
| | ) | |
| /s/ Chau Hoi Ying | ) | |
| Witness | ) | |
| | ) | |
| Name: Chau Hoi Ying | ) | |
| Addresses for Notices: |
ICLK Shareholder
|
|
[Signature Page to
ICLK Voting Agreement]
IN WITNESS WHEREOF, the parties hereto have
executed and delivered this Agreement as a deed as of the date first written above.
| EXECUTED and DELIVERED | ) | |
| as a DEED | ) | |
| for and on behalf of | ) | |
| ICLK SHAREHOLDER: Wing Hong Sammy Hsieh | ) | |
| | ) | /s/ Wing Hong Sammy Hsieh |
| In the presence of: | ) | Name: Wing Hong Sammy Hsieh |
| | ) | Title: |
| | ) | |
| | ) | |
| /s/ Chau Hoi Ying | ) | |
| Witness | ) | |
| | ) | |
| Name: Chau Hoi Ying | ) | |
| Addresses for Notices: |
ICLK Shareholder
|
|
[Signature Page to
ICLK Voting Agreement]
IN WITNESS WHEREOF, the parties hereto have
executed and delivered this Agreement as a deed as of the date first written above.
| EXECUTED and DELIVERED | ) | |
| as a DEED | ) | |
| for and on behalf of | ) | |
| ICLK SHAREHOLDER: Marine Central Limited | ) | |
| | ) | /s/ Huang Jianjun |
| In the presence of: | ) | Name: Huang Jianjun |
| | ) | Title: Director |
| | ) | |
| | ) | |
| /s/ Z.Z.Huang | ) | |
| Witness | ) | |
| | ) | |
| Name: Z.Z.Huang | ) | |
| Addresses for Notices: |
ICLK Shareholder
|
|
[Signature Page to
ICLK Voting Agreement]
IN WITNESS WHEREOF, the parties hereto have
executed and delivered this Agreement as a deed as of the date first written above.
| EXECUTED and DELIVERED | ) | |
| as a DEED | ) | |
| for and on behalf of | ) | |
| ICLK SHAREHOLDER: Creative Big Limited | ) | |
| | ) | /s/ Kenny Sin Nang Chiu |
| In the presence of: | ) | Name: Kenny Sin Nang Chiu |
| | ) | Title: Director |
| | ) | |
| | ) | |
| /s/ Carmen Chiu | ) | |
| Witness | ) | |
| | ) | |
| Name: Carmen Chiu | ) | |
| Addresses for Notices: |
ICLK Shareholder
|
|
[Signature Page to
ICLK Voting Agreement]
IN WITNESS WHEREOF, the parties hereto have
executed and delivered this Agreement as a deed as of the date first written above.
| EXECUTED and DELIVERED | ) | |
| as a DEED | ) | |
| for and on behalf of | ) | |
| ICLK SHAREHOLDER: Huge Superpower Limited | ) | |
| | ) | /s/ Deng Yazhi |
| In the presence of: | ) | Name: Deng Yazhi |
| | ) | Title: Director |
| | ) | |
| | ) | |
| /s/ Y.L.Deng | ) | |
| Witness | ) | |
| | ) | |
| Name: Y.L.Deng | ) | |
| Addresses for Notices: |
ICLK Shareholder
|
|
[Signature Page to
ICLK Voting Agreement]
IN WITNESS WHEREOF, the parties hereto have
executed and delivered this Agreement as a deed as of the date first written above.
| EXECUTED and DELIVERED | ) | |
| as a DEED | ) | |
| for and on behalf of | ) | |
| ICLK SHAREHOLDER: Capable Excel Limited | ) | |
| | ) | /s/ Wong Siu Wa |
| In the presence of: | ) | Name: Wong Siu Wa |
| | ) | Title: Director |
| | ) | |
| | ) | |
| /s/ J Ma | ) | |
| Witness | ) | |
| | ) | |
| Name: J Ma | ) | |
| Addresses for Notices: |
ICLK Shareholder
|
|
[Signature Page to
ICLK Voting Agreement]
IN WITNESS WHEREOF, the parties hereto have
executed and delivered this Agreement as a deed as of the date first written above.
| EXECUTED and DELIVERED | ) | |
| as a DEED | ) | |
| for and on behalf of | ) | |
| ICLK SHAREHOLDER: Integrated Asset Management (Asia) Limited | ) | |
| | ) | /s/ Yam Tak Cheung |
| In the presence of: | ) | Name: Yam Tak Cheung |
| | ) | Title: Director |
| | ) | |
| | ) | |
| /s/ YELNG ANGIE NGA KEI | ) | |
| Witness | ) | |
| | ) | |
| Name: YELNG ANGIE NGA KEI | ) | |
| Addresses for Notices: |
ICLK Shareholder
|
|
[Signature Page to
ICLK Voting Agreement]
Annex A
ANNEX E
Form of Proxy Card
ICLICK INTERACTIVE ASIA GROUP LIMITED
(Incorporated in the Cayman Islands with
limited liability)
FORM OF PROXY CARD
FORM OF PROXY
FOR USE BY SHAREHOLDERS OF ICLICK INTERACTIVE ASIA GROUP LIMITED (THE “COMPANY”) AT THE EXTRAORDINARY GENERAL MEETING OF
THE COMPANY (THE “MEETING”) TO BE HELD AT 15/F PROSPERITY MILLENNIA PLAZA, 663 KING’S ROAD, QUARRY BAY, HONG KONG,
PEOPLE’S REPUBLIC OF CHINA, ON JANUARY 3, 2025 AT 9:00 A.M. (HONG KONG TIME), OR ON JANAURY 2, 2025 AT 8:00 P.M. (NEW
YORK TIME)
| being the registered holder(s) of
(note (2)) |
| |
|
| shares of US$0.001 each in the capital |
| of
the Company (“Share(s)”), hereby appoint (note (3)) the chairman of the Meeting or |
|
|
to act as my/our
proxy for the Meeting to be held at 15/F Prosperity Millennia Plaza, 663 King’s Road, Quarry Bay, Hong Kong, People’s Republic
of China, on January 3, 2025, 9:00 a.m. (Hong Kong time), or on January 2, 2025 at 8:00 p.m. (New York time) and
at any adjournment thereof and to vote on my/our behalf as directed below.
Please indicate
with a “X” in the spaces provided how you wish the proxy to vote on your behalf.
Resolutions:
| 1. |
AS A SPECIAL RESOLUTION THAT, the agreement
and plan of merger, dated as of November 29, 2024 (the “Merger Agreement”), by and among the Company, Overlord Merger
Sub Ltd. (“Merger Sub”) and Amber DWM Holding Limited (“Amber DWM”), the plan of merger (the “plan
of merger”) required to be registered with the Registrar of Companies in the Cayman Islands (such plan of merger being substantially
in the form attached as Annex A to the accompanying proxy statement and to be produced and made available for inspection at the extraordinary
general meeting) in order to give effect to the merger (the “Merger”) of Merger Sub with and into Amber DWM, with Amber
DWM surviving as a wholly owned subsidiary of the Company (the “Surviving Entity”), and any and all transactions contemplated
by the Merger Agreement and the plan of merger, be authorized and approved. |
FOR
¨ |
AGAINST
¨ |
ABSTAIN
¨ |
| |
|
|
|
|
| 2. |
AS A SPECIAL RESOLUTION THAT, the ninth amended and restated
memorandum and article of association of the Company be further amended and restated by their deletion in their entirety and the
substitution of in their place of the tenth amended and restated memorandum and articles of association of the Company substantially
in the form attached as Annex C to the accompanying proxy statement with effective immediately prior to the effective time (the “Effective
Time”) of the Merger (the “Amendment of M&A”). |
FOR
¨ |
AGAINST
¨ |
ABSTAIN
¨ |
| |
|
|
|
|
| 3. |
AS A SPECIAL RESOLUTION THAT, the name of the Company be changed
from “iClick Interactive Asia Group Limited” to “Amber International Holding Limited” effective immediately
prior to the Effective Time (the “Change of Name”). |
FOR
¨ |
AGAINST
¨ |
ABSTAIN
¨ |
| |
|
|
|
|
| 4. |
AS A SPECIAL RESOLUTION THAT, immediately prior to the Effective
Time, the authorized share capital of the Company be varied as follows: all ICLK Class A Shares and all ICLK Class B Shares
the holders of which have delivered a written notice to iClick to convert its ICLK Class B Shares to ICLK Class A Shares
with immediate effect on the Closing Date immediately before the Effective Time (such ICLK Class B Shares, the “Converting
ICLK Class B Shares”), in the authorized share capital of the Company (including all issued and outstanding ICLK Class A
Shares and Converting ICLK Class B Shares, and all authorized but unissued ICLK Class A Shares and ICLK Class B Shares)
shall be re-designated as New Class A Shares (unless such New Class B Shares are otherwise required to be automatically
converted into New Class A Shares in accordance with the Amendment of M&A (assuming the Amendment of M&A proposal is
approved), all ICLK Class B Shares other than the Converting ICLK Class B Shares shall be re-designated as New Class B
Shares, and the authorized share capital of the Company shall be US$1,300,000 divided into 1,300,000,000 New Ordinary Shares comprising
of (x) 1,191,000,000 New Class A Shares, and (y) 109,000,000 New Class B Shares (the “Variation of Share
Capital”). |
FOR
¨ |
AGAINST
¨ |
ABSTAIN
¨ |
| 5. |
AS AN ORDIANRY RESOLUTION THAT, Wing Hong Sammy Hsieh, a director
of the Company, be authorized to do all things necessary to give effect to the Merger Agreement, the plan of merger, and the transactions
contemplated by the Merger Agreement and the plan of merger, including the Merger and, effective immediately prior to the Effective
Time, the Amendment of M&A, the Change of Name and the Variation of Share Capital. |
FOR
¨ |
AGAINST
¨ |
AGAINST
¨ |
| 6. |
AS AN ORDIANRY RESOLUTION THAT, the chairman of the extraordinary
general meeting be instructed to adjourn the extraordinary general meeting in order to allow the Company to solicit additional proxies
in the event that there are insufficient proxies received at the time of the extraordinary general meeting to pass the special resolutions
to be proposed at the extraordinary general meeting. |
FOR
¨
|
AGAINST
¨ |
AGAINST
¨ |
I/we
also hereby authorise/do not authorise* my/our said proxy to vote for me/us on my/our behalf in respect of any other resolutions and/or
amended resolutions in his absolute discretion at the annual general meeting, or at any adjournment thereof.
Dated
this __________ day of __________________2024/2025.
Shareholder’s
Signature: ____________________________ (notes (4) and (5))
| ¨
Please tick here if you are appointing more than 1 proxy. |
Number of shares proxy appointed over. |
NOTES:
| 1. |
Full name(s) and
address(es) to be inserted in BLOCK CAPITAL LETTERS. |
| 2. |
Please insert the number
of shares registered in your name(s) in each class; if no number is inserted, this form of proxy will be deemed to relate to
all the Shares registered in your name(s). |
| 3. |
A proxy need not be a
member of the Company. If a proxy other than the chairman of the Meeting is appointed, the appointor must delete the words “the
chairman of the Meeting or” and insert the name and address of the proxy desired in the space provided. |
| 4. |
In the case of joint
registered holders, the vote of the senior who tenders a vote, whether in person or by proxy, shall be accepted to the exclusion
of the votes of the other joint holder(s). For this purpose, seniority shall be determined by the order in which the names stated
in the Register of Members of the Company in respect of such joint holding. |
| 5. |
This form of proxy must
be signed by the appointor, or his attorney duly authorised, in writing, or if such appointor is a corporation, either under its
common seal, or under the hand of an officer or attorney so authorised. |
| 6. |
If this form is returned
duly signed but without a specific direction, the proxy will vote or abstain at his discretion. The proxy will also be entitled to
vote at his discretion on any resolution properly put to the Meeting other than those referred to in the notice convening the Meeting. |
| 7. |
The ‘Vote Abstain’
option is provided to enable you to abstain from voting on the resolutions. However, it should be noted that a ‘Vote Abstain’
is not a vote in law and will not be counted in the calculation of the proportion of the votes ‘For’ and ‘Against’
a resolution. |
| 8. |
In order to be valid,
this form of proxy together with a power of attorney or other authority, if any, under which it is signed, or a certified copy of
such power or authority must be delivered to the Company’s Hong Kong office at 15/F Prosperity Millennia Plaza, 663 King's
Road, Quarry Bay, Hong Kong, People’s Republic of China, by email to ir@i-click.com as soon as possible and in any event no
later than 9:00 a.m. January 1, 2025 (Hong Kong time), or 8:00 p.m. December 31, 2024 (New York time). |
| 9. |
Any alterations made
to this form should be initialled by the person who signs it. |
| 10. |
To appoint more than
one proxy you may photocopy this form. Please indicate the proxy holder’s name and the number of shares in relation to which
they are authorised to act as your proxy (which, in aggregate, should not exceed the number of shares held by you). Please also indicate
if the proxy instruction is one of multiple instructions being given. All forms must be signed and should be returned together in
the same envelope. |
ANNEX F
Form of ADS Voting Instruction Card
| Proof 4 18-Dec-24
The Board of Directors unanimously recommends
a vote FOR the Resolution.
Special Resolutions Ordinary Resolutions
FOR AGAINST ABSTAIN FOR AGAINST ABSTAIN
Res. 1 Res. 5
Res. 2 Res. 6
Res. 3
Res. 4
iClick Interactive Asia Group Limited
TO THE REGISTERED HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
REPRESENTING ORDINARY SHARES OF
iClick Interactive Asia Group Limited
Sign below Date:
Please sign this Voting Instruction Card exactly as your name(s) appear(s)
on the face of this card and on the books of the Depositary. Joint owners
should each sign personally. Trustees and other fiduciaries should indicate
the capacity in which they sign, and where more than one name appears, a
majority must sign. If a corporation, this signature should be that of an
authorized officer who should state his or her title.
FOLD AND DETACH HERE
Please refer to the reverse side of this card for the Resolutions to be voted at the Meeting.
Address change Mark box, sign and indicate changes/comments below:
Mark box at immediate left if you wish to give a
discretionary proxy to a person designated by the
Company. PLEASE NOTE: Marking this box voids any
other instructions indicated above.
JPMorgan Chase Bank, N.A., Depositary
PO Box 64873 Saint Paul MN 55164-0873 |
| Proof 4 18-Dec-24
iClick Interactive Asia Group Limited
AGENDA
Special Resolutions
1. THAT the agreement and plan of merger, dated as of November 29, 2024 (the “Merger Agreement”), by and among the Company, Overlord Merger Sub Ltd. (“Merger
Sub”) and Amber DWM Holding Limited (“Amber DWM”), the plan of merger (the “plan of merger”) required to be registered with the Registrar of Companies in the
Cayman Islands (such plan of merger being substantially in the form attached as Annex A to the accompanying proxy statement and to be produced and made available
for inspection at the extraordinary general meeting) in order to give effect to the merger (the “Merger”) of Merger Sub with and into Amber DWM, with Amber DWM
surviving as a wholly owned subsidiary of the Company (the “Surviving Entity”), and any and all transactions contemplated by the Merger Agreement and the plan of
merger, be authorized and approved.
2. THAT the ninth amended and restated memorandum and articles of association of the Company be further amended and restated by their deletion in their entirety and
the substitution of in their place of the tenth amended and restated memorandum and articles of association of the Company in the form attached as Annex C to the
accompanying proxy statement effective immediately prior to the effective time (the “Effective Time”) of the Merger (the “Amendment of M&A”).
3. THAT the name of the Company be changed from “iClick Interactive Asia Group Limited” to “Amber International Holding Limited” effective immediately prior to the
Effective Time (the “Change of Name”).
4. THAT immediately prior to the Effective Time, the authorized share capital of the Company be varied as follows: all ICLK Class A Shares and all ICLK Class B Shares
the holders of which have delivered a written notice to iClick to convert its ICLK Class B Shares to ICLK Class A Shares with immediate effect on the Closing Date
immediately before the Effective Time (such ICLK Class B Shares, the “Converting ICLK Class B Shares”), in the authorized share capital of the Company (including all
issued and outstanding ICLK Class A Shares and Converting ICLK Class B Shares, and all authorized but unissued ICLK Class A Shares and ICLK Class B Shares)
shall be re-designated as New Class A Shares, all ICLK Class B Shares other than the Converting ICLK Class B Shares shall be re-designated as New Class B Shares
(unless such New Class B Shares are otherwise required to be automatically converted into New Class A Shares in accordance with the Amendment of M&A (assuming
the Amendment of M&A proposal is approved)), and the authorized share capital of the Company shall be US$1,300,000 divided into 1,300,000,000 New Ordinary
Shares comprising of (x) 1,191,000,000 New Class A Shares, and (y) 109,000,000 New Class B Shares (the “Variation of Share Capital”).
Ordinary Resolutions
5. THAT Wing Hong Sammy Hsieh, a director of the Company, be authorized to do all things necessary to give effect to the Merger Agreement, the plan of merger, and the
transactions contemplated by the Merger Agreement and the plan of merger, including the Merger and, effective immediately prior to the Effective Time, the Amendment
of M&A, the Change of Name and the Variation of Share Capital.
6. THAT the chairman of the extraordinary general meeting be instructed to adjourn the extraordinary general meeting in order to allow the Company to solicit additional
proxies in the event that there are insufficient proxies received at the time of the extraordinary general meeting to pass the special resolutions to be proposed at the
extraordinary general meeting.
iClick Interactive Asia Group Limited
JPMorgan Chase Bank, N.A., Depositary
PO Box 64873 Saint Paul MN 55164-0873 Voting Instruction Card
PLEASE MARK, DATE AND SIGN ON REVERSE SIDE AND RETURN PROMPTLY IN THE ENCLOSED ENVELOPE.
JPMorgan Chase Bank, N.A., (the “Depositary”) has received notice that the Extraordinary General Meeting (the “Meeting”) of
shareholders of iClick Interactive Asia Group Limited (the “Company”) will be held on January 3, 2025, at 9:00 a.m., (Hong Kong Time)
or January 2, 2025 at 8:00 p.m. (New York time), at 15/F Prosperity Millennia Plaza, 663 King’s Road, Quarry Bay, Hong Kong, People’s
Republic of China, for the purposes set forth on this card.
If you are desirous of having the Depositary, through its Nominee or Nominees, vote or execute a proxy to vote the Ordinary Shares
represented by your American Depositary Receipt(s) (ADRs) FOR or AGAINST or ABSTAIN from voting on the Resolution proposed
for the Meeting, kindly execute and forward to the Depositary the attached Voting Instruction Card. The enclosed postage-paid envelope
is provided for this purpose. This Voting Instruction Card should be executed in such a manner as to show clearly whether you desire
or oppose or abstain from voting on the Company’s Resolution. Alternatively, you may include instructions to give a discretionary proxy
to a person designated by the Company. The Voting Instruction Card MUST be forwarded in sufficient time to reach the Depositary
before 9:00 a.m., New York City time, on December 31, 2024. Only the registered holders of record of American Depositary Receipt(s)
as of the close of business in New York City on December 18, 2024, will be entitled to execute the attached Voting Instruction Card.
The signatory, a registeredholder of American Depositary Receipts representing Ordinary Shares of the Company of record as of the close
of business in New York City on December 18, 2024, hereby requests and authorizes the Depositary, through its Nominee or Nominees,
to vote or execute a proxy to vote the underlying Ordinary Shares of the Company represented by American Depositary Receipts, in
accordance with the instructions given at the Extraordinary General Meeting of shareholders.
NOTE: In order to have the aforesaid shares voted, this Voting Instruction Card MUST be returned before 9:00 a.m., New York City time,
on December 31, 2024.
Please Note: The Notice of Extraordinary General Meeting is available for viewing on the Company’s website https://ir.i-click.com/.
JPMorgan Chase Bank, N.A., Depositary |
ANNEX G
Audited Consolidated
Financial Information of Amber DWM
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
| |
|
Page |
| Report of Independent Registered Public Accounting Firm |
|
1 |
| Consolidated Statements of Financial Position as of June 30, 2023 and 2024 |
|
2 |
| Consolidated Statements of Profit or Loss and Other Comprehensive Income for the Years Ended June 30, 2023 and 2024 |
|
3 |
| Consolidated Statements of Change in Equity for the Years Ended June 30, 2023 and 2024 |
|
4 |
| Consolidated Statements of Cash Flows for the Years Ended June 30, 2023 and 2024 |
|
5 |
| Notes to Consolidated Financial Statements |
|
7 |
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
| To: | The Board of Directors and Shareholders of |
Amber DWM Holding Limited
Opinion on the Financial Statements
We have audited the accompanying consolidated
statement of financial position of Amber DWM Holding Limited and its subsidiaries (the “Company”) as of June 30, 2023
and 2024, and the related consolidated statements of profit or loss and other comprehensive loss, changes in equity, and cash flows for
each of the two-years ended June 30, 2023 and 2024, and the related notes (collectively referred to as the financial statements).
In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of June 30,
2023, and 2024, and the results of its operations and its cash flows in each of two-years ended June 30, 2023 and 2024, in conformity
with International Financial Reporting Standards as issued by the International Accounting Standards Board.
Basis for Opinion
These financial statements are the responsibility
of the Company’s management. Our responsibility is to express an opinion on the Company’s financial statements based on our
audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and
are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable
rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the
standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the
financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we
engaged to perform, an audit of its internal control over financial reporting. As part of our audits, we are required to obtain an understanding
of internal control over financial reporting, but not for the purpose of expressing an opinion on the effectiveness of the Company’s
internal control over financial reporting. Accordingly, we express no such opinion.
Our audits included performing procedures to assess
the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond
to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements.
Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating
the overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our opinion.
/s/ WWC, P.C.
WWC, P.C.
Certified Public Accountants
PCAOB ID No. 1171
We have served as the Company’s auditor
since 2024
San Mateo, California
December 19, 2024
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
CONSOLIDATED STATEMENTS OF FINANCIAL POSITION
| | |
Note | | |
June 30, 2023 | | |
June 30, 2024 | |
| | |
| | |
US$ | | |
US$ | |
| ASSETS | |
| | | |
| | | |
| | |
| Non-current assets | |
| | | |
| | | |
| | |
| Property, plant and equipment | |
| 4 | | |
| 277,275 | | |
| 96 | |
| Intangible assets | |
| 5 | | |
| 17,441,206 | | |
| 16,983,750 | |
| Total non-current assets | |
| | | |
| 17,718,481 | | |
| 16,983,846 | |
| | |
| | | |
| | | |
| | |
| Current assets | |
| | | |
| | | |
| | |
| Financial asset, at fair value through profit or loss | |
| 6 | | |
| 259,114 | | |
| 247,826 | |
| Trade and other receivables | |
| 7 | | |
| 285,066 | | |
| 271,082 | |
| Digital assets | |
| 8 | | |
| 13,936,889 | | |
| 21,572,603 | |
| USDC | |
| 8 | | |
| 2,832,988 | | |
| 1,253,301 | |
| Amount due from related parties | |
| 22 | | |
| 3,005,000 | | |
| 12,220,264 | |
| Assets related to custodian digital assets of customers | |
| 12 | | |
| 10,125,274 | | |
| 20,892,932 | |
| Derivative financial instruments | |
| 9 | | |
| 102,744 | | |
| 22,395 | |
| Pledged deposits | |
| 10 | | |
| - | | |
| 3,000,000 | |
| Cash and cash equivalents | |
| 10 | | |
| 98,162 | | |
| 1,899,343 | |
| Total current assets | |
| | | |
| 30,645,237 | | |
| 61,379,746 | |
| | |
| | | |
| | | |
| | |
| Total assets | |
| | | |
| 48,363,718 | | |
| 78,363,592 | |
| | |
| | | |
| | | |
| | |
| LIABILITIES AND EQUITY | |
| | | |
| | | |
| | |
| Current liabilities | |
| | | |
| | | |
| | |
| Trade and other payables | |
| 11 | | |
| 373,365 | | |
| 947,836 | |
| Liabilities related to custodian digital assets of customers | |
| 12 | | |
| 10,125,274 | | |
| 20,892,932 | |
| Liabilities due to customers | |
| 13 | | |
| 11,543,650 | | |
| 21,092,985 | |
| Payable to related parties | |
| 22 | | |
| 24,669,407 | | |
| 39,791,752 | |
| Derivative financial instruments | |
| 9 | | |
| 102,744 | | |
| 22,395 | |
| Lease liabilities | |
| 14 | | |
| 226,019 | | |
| - | |
| Total current liabilities | |
| | | |
| 47,040,459 | | |
| 82,747,900 | |
| | |
| | | |
| | | |
| | |
| Non-current liabilities | |
| | | |
| | | |
| | |
| Lease liabilities | |
| 14 | | |
| 58,019 | | |
| - | |
| | |
| | | |
| | | |
| | |
| Total liabilities | |
| | | |
| 47,098,478 | | |
| 82,747,900 | |
| | |
| | | |
| | | |
| | |
| Equity | |
| | | |
| | | |
| | |
| Share capital | |
| 15 | | |
| 3,000,000 | | |
| 13,500,000 | |
| Accumulated losses | |
| | | |
| (7,808,822 | ) | |
| (23,958,370 | ) |
| Reserve | |
| 16 | | |
| 6,074,062 | | |
| 6,074,062 | |
| Total equity | |
| | | |
| 1,265,240 | | |
| (4,384,308 | ) |
| | |
| | | |
| | | |
| | |
| Total equity and liabilities | |
| | | |
| 48,363,718 | | |
| 78,363,592 | |
The accompanying notes are an integral part of
these financial statements.
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
CONSOLIDATED STATEMENTS OF PROFIT OR LOSS
AND OTHER COMPREHENSIVE LOSS
| | |
Note | | |
June 30,
2023 | | |
June 30, 2024 | |
| | |
| | |
US$ | | |
US$ | |
| Revenue | |
| 17 | | |
| 1,111,361 | | |
| 3,548,213 | |
| Cost of revenue | |
| | | |
| (814,161 | ) | |
| (1,984,984 | ) |
| Gross profit | |
| | | |
| 297,200 | | |
| 1,563,229 | |
| | |
| | | |
| | | |
| | |
| Other income | |
| 18 | | |
| 71,708 | | |
| 169,714 | |
| | |
| | | |
| | | |
| | |
| Technology and development expense | |
| | | |
| (331,631 | ) | |
| (353,319 | ) |
| Sales and marketing expense | |
| | | |
| (8,391 | ) | |
| (7,294 | ) |
| General and administrative expense | |
| | | |
| (2,292,834 | ) | |
| (5,234,748 | ) |
| Finance costs | |
| 19 | | |
| (86,084 | ) | |
| (81,623 | ) |
| Total operating expenses | |
| | | |
| (2,718,940 | ) | |
| (5,676,984 | ) |
| | |
| | | |
| | | |
| | |
| Operating loss | |
| | | |
| (2,350,032 | ) | |
| (3,944,041 | ) |
| | |
| | | |
| | | |
| | |
| Realized gain in fair value of digital assets – related parties’ loans | |
| | | |
| 58,421 | | |
| 508,491 | |
| Realized gain/(loss) in fair value of digital assets | |
| | | |
| 226,552 | | |
| (339,897 | ) |
| Unrealized gain/(loss) in fair value of digital assets - related parties’ loans | |
| 22 | | |
| (5,430,850 | ) | |
| (12,181,220 | ) |
| Unrealized loss in fair value of digital assets | |
| | | |
| (304,947 | ) | |
| (192,881 | ) |
| Total other expenses | |
| | | |
| (5,450,824 | ) | |
| (12,205,507 | ) |
| | |
| | | |
| | | |
| | |
| Loss before income tax | |
| 20 | | |
| (7,800,856 | ) | |
| (16,149,548 | ) |
| | |
| | | |
| | | |
| | |
| Income tax expense | |
| 21 | | |
| - | | |
| - | |
| | |
| | | |
| | | |
| | |
| Loss for the year, representing total comprehensive loss for the year | |
| | | |
| (7,800,856 | ) | |
| (16,149,548 | ) |
| | |
| | | |
| | | |
| | |
| Loss per share attributable to owners of the Company | |
| | | |
| | | |
| | |
| Basic and diluted | |
| | | |
| 195.00 | | |
| 395.70 | |
| | |
| | | |
| | | |
| | |
| | |
| | | |
| | | |
| | |
| Weighted average number of ordinary shares | |
| | | |
| | | |
| | |
| Basic and diluted | |
| | | |
| 40,000 | | |
| 40,808 | |
The accompanying notes are an integral part of
these financial statements
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN EQUITY
| | |
Share
capital | | |
Reserve | | |
Accumulated
losses | | |
Total
equity | |
| | |
US$ | | |
US$ | | |
US$ | | |
US$ | |
| Balance at July 1, 2022 | |
| 3,000,000 | | |
| 6,074,062 | | |
| (7,966 | ) | |
| 9,066,096 | |
| | |
| | | |
| | | |
| | | |
| | |
| Loss for the year, representing total comprehensive loss for the year | |
| - | | |
| - | | |
| (7,800,856 | ) | |
| (7,800,856 | ) |
| | |
| | | |
| | | |
| | | |
| | |
| Balance at June 30, 2023 | |
| 3,000,000 | | |
| 6,074,062 | | |
| (7,808,822 | ) | |
| 1,265,240 | |
| | |
| | | |
| | | |
| | | |
| | |
| Issuance of preference shares (Note 14) | |
| 10,500,000 | | |
| - | | |
| - | | |
| 10,500,000 | |
| | |
| | | |
| | | |
| | | |
| | |
| Loss for the year, representing total comprehensive loss for the year | |
| - | | |
| - | | |
| (16,149,548 | ) | |
| (16,149,548 | ) |
| | |
| | | |
| | | |
| | | |
| | |
| Balance at June 30, 2024 | |
| 13,500,000 | | |
| 6,074,062 | | |
| (23,958,370 | ) | |
| (4,384,308 | ) |
The accompanying notes are an integral part of
these financial statements.
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
| |
|
Note |
|
June 30,
2023 |
|
June 30,
2024 |
|
| |
|
|
|
US$ |
|
US$ |
|
| Cash flows from operating activities |
|
|
|
|
|
|
|
|
|
| Loss before income tax |
|
|
|
|
(7,800,856 |
) |
|
(16,149,548 |
) |
| |
|
|
|
|
|
|
|
|
|
| Adjustments for: |
|
|
|
|
|
|
|
|
|
| Depreciation of property, plant and equipment |
|
4 |
|
|
137,586 |
|
|
76,365 |
|
| Amortization of intangible assets |
|
5 |
|
|
345,788 |
|
|
457,456 |
|
| Fair value gain on financial assets, at fair value through profits or loss |
|
6 |
|
|
(9,114 |
) |
|
11,288 |
|
| Unrealized fair value loss on digital assets - related parties’ loans |
|
|
|
|
5,430,850 |
|
|
12,181,220 |
|
| Unrealized fair value loss on digital assets |
|
|
|
|
304,947 |
|
|
192,881 |
|
| Interest income |
|
|
|
|
- |
|
|
(73,848 |
) |
| Interest expense |
|
19 |
|
|
86,084 |
|
|
81,623 |
|
| Lease modification |
|
20 |
|
|
- |
|
|
42,597 |
|
| Net income received or settled in digital assets |
|
|
|
|
5,873,470 |
|
|
3,300,427 |
|
| Operating cash flows before working capital changes |
|
|
|
|
4,368,755 |
|
|
120,461 |
|
| |
|
|
|
|
|
|
|
|
|
| Changes in working capital: |
|
|
|
|
|
|
|
|
|
| Trade and other receivables |
|
|
|
|
21,785 |
|
|
(477 |
) |
| Trade and other payables |
|
|
|
|
(333,226 |
) |
|
550,771 |
|
| Cash generated from operations |
|
|
|
|
4,057,314 |
|
|
670,755 |
|
| Income tax paid |
|
|
|
|
- |
|
|
- |
|
| Net cash generated from operating activities |
|
|
|
|
4,057,314 |
|
|
670,755 |
|
| |
|
|
|
|
|
|
|
|
|
| Cash flows from investing activities |
|
|
|
|
|
|
|
|
|
| Placement of deposit |
|
|
|
|
- |
|
|
(3,000,000 |
) |
| Interest received |
|
|
|
|
- |
|
|
68,309 |
|
| Advance to related parties |
|
|
|
|
- |
|
|
(11,672,795 |
) |
| Purchase of intangible assets |
|
5 |
|
|
(64,927 |
) |
|
- |
|
| Net cash used in investing activities |
|
|
|
|
(64,927 |
) |
|
(14,604,486 |
) |
| |
|
|
|
|
|
|
|
|
|
| Cash flows from financing activities |
|
|
|
|
|
|
|
|
|
| Issuance of preference shares |
|
14 |
|
|
- |
|
|
13,500,000 |
|
| Proceed from related parties |
|
|
|
|
25,814 |
|
|
6,415,029 |
|
| Repayment to related parties |
|
|
|
|
(4,086,686 |
) |
|
(4,050,941 |
) |
| Repayment of lease liabilities |
|
|
|
|
(117,327 |
) |
|
(129,176 |
) |
| Net cash (used in)/generated from financing activities |
|
|
|
|
(4,178,199 |
) |
|
15,734,912 |
|
| |
|
|
|
|
|
|
|
|
|
| Net change in cash and cash equivalents |
|
|
|
|
(185,812 |
) |
|
1,801,181 |
|
| Cash and cash equivalents at beginning of year |
|
|
|
|
283,974 |
|
|
98,162 |
|
| Cash and cash equivalents at end of year |
|
10 |
|
|
98,162 |
|
|
1,899,343 |
|
A reconciliation of liabilities arising from financing activities as
follows:
| |
|
Lease
liabilities |
|
Amount due to
related parties |
|
| |
|
US$ |
|
US$ |
|
| June 30, 2024 |
|
|
|
|
|
| As at July 1, 2023 |
|
|
284,038 |
|
|
24,669,407 |
|
| |
|
|
|
|
|
|
|
| Non-cash movement |
|
|
|
|
|
|
|
| - Interest expense |
|
|
3,355 |
|
|
78,268 |
|
| - Written off |
|
|
(158,217 |
) |
|
- |
|
| - Unrealized fair value loss |
|
|
- |
|
|
12,181,220 |
|
| |
|
|
|
|
|
|
|
| Cash movement |
|
|
|
|
|
|
|
| - Repayment of principal |
|
|
(129,176 |
) |
|
- |
|
| - Operating cash flow - Repayment to related parties |
|
|
- |
|
|
(23,700 |
) |
| - Investing cash flow - Advance from related parties |
|
|
- |
|
|
522,469 |
|
| - Financing cash flow - Advance from related parties |
|
|
- |
|
|
6,415,029 |
|
| - Financing cash flow - Loan repayment to related parties |
|
|
- |
|
|
(4,050,941 |
) |
| |
|
|
|
|
|
|
|
| As at June 30, 2024 |
|
|
- |
|
|
39,791,752 |
|
| |
|
|
|
|
|
|
|
| June 30, 2023 |
|
|
|
|
|
|
|
| As at July 1, 2022 |
|
|
392,992 |
|
|
29,203,557 |
|
| |
|
|
|
|
|
|
|
| Non-cash movement |
|
|
|
|
|
|
|
| - Interest expense |
|
|
8,373 |
|
|
77,711 |
|
| - Unrealized fair value loss |
|
|
- |
|
|
5,430,850 |
|
| - Repayment in digital assets |
|
|
- |
|
|
(5,981,839 |
) |
| |
|
|
|
|
|
|
|
| Cash movement |
|
|
|
|
|
|
|
| - Financing cash flow - Loan repayment to related parties |
|
|
- |
|
|
(4,086,686 |
) |
| - Financing cash flow - Advance from related parties |
|
|
- |
|
|
25,814 |
|
| - Financing cash flow - Repayment of principal |
|
|
(117,327 |
) |
|
- |
|
| |
|
|
|
|
|
|
|
| As at 30 June 2023 |
|
|
284,038 |
|
|
24,669,407 |
|
The accompanying notes are an integral part of
these consolidated financial statements.
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
Amber DWM Holding Limited (the “Company”)
was incorporated in the Cayman Islands on November 28, 2023 and its registered office at Maples Corporate Services Limited, PO Box
309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands. The principal place of business of the Company is 1 Wallich Street, #30-02,
Guoco Tower, Singapore 078881.
These consolidated financial statements
comprise the Company and its subsidiaries (the “Group”).
The principal activity of the Company
is investment holding. The principal activities of the subsidiaries are disclosed below.
The details of
its subsidiaries are as follows:
| Name of subsidiaries | |
| |
Percentage of effective
ownership held by the
Company | |
(Country of incorporation and
principal place of business) | |
Principal activities | |
June 30,
2023 | |
June 30,
2024 | |
| Sparrow Holdings Pte. Ltd. (1) (Singapore) | |
Investment holding | |
| 100 | % |
| 100 | % |
| Sparrow Tech Private Limited (2) (Singapore) | |
Develop digital asset platform to provide digital asset products/solutions | |
| 100 | % |
| 100 | % |
| Sparrow Digital Pte. Ltd. (Singapore) | |
Develop digital asset platform to provide digital asset products/solutions | |
| 100 | % |
| 100 | % |
| Sparrow Operations Private Limited (3) (Singapore) | |
Other business support services | |
| 100 | % |
| 100 | % |
| Sparrow Fund Management Pte. Ltd.(4) (Singapore) | |
Fund management activities | |
| 100 | % |
| 100 | % |
| Amber DWM Limited (Hong Kong) | |
Cost centre | |
| - | |
| 100 | % |
| Amber Trading Alfa Limited (BVI) | |
Inactive | |
| 100 | % |
| 100 | % |
| (1) | Sparrow Holdings Pte. Ltd. and its wholly-owned subsidiaries were acquired by Amber Global Limited on
November 29, 2022, and then restructured to Amber DWM Holding Limited, a wholly-owned subsidiary of Amber Global Limited on July 18,
2024. |
| (2) | On August 1, 2022, Sparrow Tech Private Limited is granted with Major Payment Institution (“MPI”)
license by the Monetary Authority of Singapore (“MAS”) to provide Digital Payment Token (“DPT”) services in Singapore
under the Payments Services Act 2019 (“PSA”). |
| (3) | Formerly known as Sparrow Research Pte. Ltd. |
| (4) | Formerly known as Amber Capital Markets (Singapore) Pte. Ltd. |
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
Reorganization
In preparation of its business combination
with iClick Interactive Asia Group Limited (“iClick Asia”), a company incorporated in Cayman Islands and listed on Nasdaq
Capital Market, the Company underwent a series of reorganization arrangements and the following transactions were undertaken to reorganize
the legal structure.
| 1. | Amber DWM Holding Limited was incorporated in the Cayman Islands on November 28, 2023, and is a wholly-owned
subsidiary of Amber Global Limited. |
| 2. | Sparrow Holdings Pte. Ltd., Sparrow Tech Private Limited, Sparrow Digital Pte. Ltd., Sparrow Operations
Private Limited, and Sparrow Fund Management Pte. Ltd. (collectively known as “Sparrow Group), these entities were incorporated
in Singapore and acquired by Amber Global Limited on November 29, 2022. As part of the preparation for the business combination,
Amber Global Limited transfers the entire issued and paid-up capital of Sparrow Group to Amber DWM Holding Limited, a wholly-owned subsidiary
of Amber Global Limited on July 18, 2024. As a result of the transfer, Sparrow Group became a wholly-owned subsidiary of Amber DWM
Holding Limited. |
| 3. | Amber DWM Limited was incorporated in Hong Kong on January 29, 2024 and is a wholly-owned subsidiary
of Amber DWM Holding Limited. |
| 4. | Amber Trading Alfa Limited was incorporated in British Virgin Islands on April 8, 2022 as a wholly-owned
subsidiary of Amber Technologies Limited, a subsidiary of Amber Global Limited. As part of the preparation for the business combination,
Amber Technologies Limited transfer the entire issued and paid-up capital of Amber Trading Alfa Limited to Amber DWM Holding Limited on
June 27, 2024. As a result of the transfer, Amber Trading Alfa Limited became a wholly-owned subsidiary of Amber DWM Holding Limited. |
After the series of reorganization arrangements,
Amber DWM Holding Limited became the holding company for all the subsidiaries. Since all entities involved in the reorganization arrangements
are under common control before and after the reorganization, the reorganization is accounted for in a manner similar to a pooling of
interests with the assets and liabilities of the parties to the reorganization carried over at their historical amount. Therefore, the
accompanying consolidated financial statements were prepared as if the corporate structure of Amber DWM Holding Limited had been in existence
since the beginning of the periods presented.
| 2. | Material accounting policy information |
| |
|
The financial statements have been prepared in accordance with International Financial Reporting Standards (“IFRS”) as issued by the International Accounting Standards Board (“IASB”) under the historical cost convention, except as disclosed in the accounting policies below. |
| |
|
|
| |
|
The preparation of financial statements in conformity with IFRS requires management to exercise its judgement in the process of applying the Group’s accounting policies. It also requires the use of certain critical accounting estimates and assumptions. The areas involving a higher degree of judgement or complexity, or areas where assumptions and estimates are significant to the financial statements are disclosed in Note 3. |
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
| 2. | Material accounting policy information (Continued) |
| |
|
In the current year, the Group has adopted all the new and revised IFRS and Interpretations of IFRS that are relevant to its operations and effective for annual periods beginning on or after July 1, 2023. Changes to the Group’s accounting policies have been made as required, in accordance with the transitional provisions in the respective IFRS and Interpretations of IFRS. The adoption of these new or amended IFRS and Interpretations of IFRS did not result in substantial changes to the Group’s accounting policies and had no material effect on the amounts reported for the current or prior financial years. |
IFRS and Interpretations of IFRS issued
but not yet effective
| Description | |
Effective for
annual
periods
beginning on or
after |
| Amendments to IAS 1: Presentation of Financial Statements: Classification of Liabilities as Current or Non-current | |
1 January 2024 |
| Amendments to IFRS 16 Leases: Lease Liability in a Sale and Leaseback | |
1 January 2024 |
| Amendments to IAS 1: Presentation of Financial Statements: Non-current Liabilities with Covenants | |
1 January 2024 |
| Amendments to IAS 7: Statement of Cash Flows and IFRS 7 Financial Instruments: Disclosures: Supplier Finance Arrangements | |
1 January 2024 |
| Amendments to IAS 21: The Effects of Changes in Foreign Exchange Rates: Lack of Exchangeability | |
1 January 2025 |
| |
|
At the date of authorisation of these financial statements, certain IFRS and Interpretations of IFRS were issued but not yet effective. Consequential amendments were also made to various standards as a result of these new/revised standards. |
| |
|
|
| |
|
The Group does not intend to early adopt any of the above new/revised standards, interpretations and amendments to the existing standards. Management anticipates that the adoption of the aforementioned revised/new standards will not have a material impact on the financial statements of the Group and Company in the period of their initial adoption. |
| 2.2 | Liquidity and going concern |
| |
|
In assessing the Group’s liquidity and significant doubt about its ability to continue as a going concern, management monitors and analyzes cash and bank balances and operating expenditures commitments. The Group’s liquidity needs are to meet working capital requirements and operating expenses obligations. To date, the Group has financed its operations primarily through operating cash flows and advances from ultimate holding company and related companies. |
| |
|
|
| |
|
Management has considered whether there is substantial doubt about its ability to continue as a going concern due to: (1) net current liabilities of approximately US$21,368,000 and US$16,395,000 for year ended June 30, 2024 and 2023; (2) accumulated deficit of approximately US$4,384,000 as of June 30, 2024; and (3) net loss of approximately US$16,150,000 and US$7,800,000 for the year ended June 30, 2024 and 2023, and (4) net cash generated from operating activities of approximately US$671,000 and US$4,057,000 for year ended June 30, 2024 and 2023, respectively. |
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
| 2. | Material accounting policy information (Continued) |
| 2.2 | Liquidity and going concern (Continued) |
| |
|
The ultimate holding company and certain related companies provided a letter of undertaking not to demand repayment of US$39,791,752 (2023: US$24,669,407) until the Group has sufficient resources to repay. In addition, as part of the pre-closing condition with iClick Asia, the ultimate holding company agreed and will waive payables approximately US$37,738,000 owning by the Company as at June 30, 2024. The ultimate holding company also undertake to provide financial guarantee for non-trade receivables due from certain related companies. In addition, the ultimate holding company undertake and will continue to provide additional cash funding to ensure the Group will have sufficient working capital and to meet its financial obligations for at least the next 12 months from the date of approval of these consolidated financial statements. |
| |
|
|
| |
|
Management will also consider the following: (1) obtaining other available sources of financing from financial institutions and line of credits or (2) issuance of additional ordinary shares, preference shares or convertible note. Based on the above considerations, management believes that the Group has sufficient funds to meet its operating and capital expenditure needs and obligations in the next 12 months. However, there is no assurance that the Group will be successful in implementing these strategies. |
| |
|
Revenue is measured at the fair value of the consideration received or receivable. Revenue is recognised when services are rendered to the customer. Depending on the terms of the contract and the laws that apply to the contract, service may be provided over time or at a point in time. |
| |
|
|
| |
|
Service is provided over time if the Company’s performance: (1) provides all of the benefits received and consumed simultaneously by the customer; or (2) creates and enhances an asset that the customer controls as the Company performs. |
| |
|
|
| |
|
If service transfers over time, revenue is recognised over the period of the contract by reference to the progress towards complete satisfaction of that performance obligation. Otherwise, revenue is recognised at a point in time when the customer obtains control of the service. |
| |
|
|
| |
|
Specifically, the Group uses a five-step approach to recognise revenue: |
| · | Step 1: Identify the contract(s) with a client |
| · | Step 2: Identify the performance obligations in the contract |
| · | Step 3: Determine the transaction price |
| · | Step 4: Allocate the transaction price to the performance obligations in the contract |
| · | Step 5: Recognize revenue when (or as) the Company satisfies a performance obligation |
| |
|
The Group recognises revenue when a performance obligation is satisfied, i.e., when “control” of the goods underlying the particular performance obligations is transferred to customers.’ |
| |
|
|
| |
|
The following is a description of the accounting policy for the principal revenue streams of the Company. |
Conversion
fees
| |
|
The Group earns conversion fee when customers transfer or withdraw funds and/or digital assets from its proprietary platform, and conversion between fiat currencies and digital assets, according to the customers’ requirements. |
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
| 2. | Material accounting policy information (Continued) |
Conversion fees (Continued)
| |
|
The Group will charge the customer a predetermined conversion fee, which is based on a fixed percentage of the contract price for each transaction. The conversion fee is a fixed price contract, and the conversion fee is indicated on the contract with customers. Management determined there is only one performance obligation related to conversion fee and revenue is recognised at a point in time upon conversion service is rendered and (1) accepted and acknowledgement by customers indicating acceptance of service or (2) objective evidence of transfer of cryptocurrency into designated wallet specified by the customer or counterparty. Customers typically make payments together with the transaction price i.e. conversion fee will be charged together or deducted from the transaction price. The Group is an agent to as the Group provides facilitation services for the transaction entered by the customers. |
Finance income
| |
|
The Group enters into arrangements with Whalefin Technologies Ltd (“Whalefin”), a related party, to purchase cryptocurrency-denoted products which represent fixed interest cryptocurrency deposit at Whalefin. The deposit is not protected by any insurance and is non-secured, hence the Group may lose some or all of the amount deposited with Whalefin in extreme market conditions. Upon maturity, the Group receives the same type of cryptocurrency in the same quantity, in principal plus additional interest returns in cryptocurrency. The deposit can be withdrawn on demand and is generally delivered to the Group within 3 working days upon maturity. The nature of the product in essence, is a cryptocurrency lending arrangement. |
| |
|
|
| |
|
Financing income derived from cryptocurrency lending arrangement is denominated in units of the specific cryptocurrency to Whalefin and is recognised based on the gross carrying amount over the term of the cryptocurrency lending arrangement using effective interest rate. The term of the cryptocurrency lending arrangement varies from 30 days to 250 days. |
Advisory fee
| |
|
Advisory fee is recognised at a point in time for consultancy service is rendered and accepted by customers. |
| |
|
Grants from the government are recognised as a receivable at their fair value when there is reasonable assurance that the grant will be received and the Group will comply with all the attached conditions. |
| |
|
|
| |
|
Government grants receivable are recognised as income over the periods necessary to match them with the related costs which they are intended to compensate for, on a systematic basis. Government grants relating to expenses are shown separately as “other income”. |
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
| 2. | Material accounting policy information (Continued) |
| 2.5 | Basis of consolidation |
Consolidation
| |
|
Subsidiaries are all entities (including structured entities) over which the Group has control. The Group controls an entity when the Group is exposed to, or has rights to, variable returns from its involvement with the entity and has the ability to affect those returns through its power over the entity. Subsidiaries are fully consolidated from the date on which control is transferred to the Group. They are deconsolidated from the date on that control ceases. |
| |
|
|
| |
|
In preparing the consolidated financial statements, transactions, balances and unrealised gains on transactions between group entities are eliminated. Unrealised losses are also eliminated unless the transaction provides evidence of an impairment indicator of the transferred asset. Accounting policies of subsidiaries have been changed, where necessary, to ensure consistency with the policies adopted by the Group. |
Common control
| |
|
Acquisition of entities under an internal reorganization scheme does not result in any change in economic substance. Accordingly, the consolidated financial statements of the Group are a continuation of the acquired entities and is accounted for as follows: |
| · | The results of entities are presented as if the internal reorganization occurred from the beginning of
the earliest period presented in the financial statements; |
| · | The Group will consolidate the assets and liabilities of the acquired entities at the pre-combination
carrying amounts. No adjustments are made to reflect fair values, or recognize any new assets or liabilities, at the date of the internal
reorganization that would otherwise be done under the acquisition method; and |
| · | No new goodwill is recognized as a result of the internal reorganization. The only goodwill that is recognized
is the existing goodwill relating to the combining entities. Any difference between the consideration paid/transferred and the equity
acquired is reflected within equity as a merger reserve. |
Acquisition
| |
|
The acquisition method of accounting is used to account for business combinations entered by the Group. |
| |
|
|
| |
|
The consideration transferred for the acquisition of a subsidiary or business comprises the fair value of the assets transferred, the liabilities incurred and the equity interests issued by the Group. The consideration transferred also includes any contingent consideration arrangement and any pre-existing equity interest in the subsidiary measured at their fair values at the acquisition date. |
| |
|
|
| |
|
Acquisition-related costs are expensed as incurred. |
| |
|
|
| |
|
Identifiable assets acquired and liabilities and contingent liabilities assumed in a business combination are, with limited exceptions, measured initially at their fair values at the acquisition date. |
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
| 2. | Material accounting policy information (Continued) |
| 2.5 | Basis of consolidation (Continued) |
Acquisition (Continued)
| |
|
On an acquisition-by-acquisition basis, the Group recognises any non-controlling interest in the acquiree at the date of acquisition either at fair value or at the non-controlling interest’s proportionate share of the acquiree’s identifiable net assets. |
| |
|
|
| |
|
The excess of (a) the consideration transferred, the amount of any non-controlling interest in the acquiree and the acquisition-date fair value of any previous equity interest in the acquiree over the (b) fair value of the identifiable net assets acquired is recorded as goodwill. |
Disposals
| |
|
When a change in the Group’s ownership interest in a subsidiary result in a loss of control over the subsidiary, the assets and liabilities of the subsidiary including any goodwill are derecognised. Amounts previously recognised in other comprehensive income in respect of that entity are also reclassified to profit or loss or transferred directly to retained earnings if required by a specific standard. |
| |
|
|
| |
|
Any retained equity interest in the entity is remeasured at fair value. The difference between the carrying amount of the retained interest at the date when control is lost and its fair value is recognised in profit or loss. |
| |
|
Investment in subsidiaries are carried at cost less accumulated impairment losses in the Company’s statement of financial position. On disposal of such investment, the difference between disposal proceeds and the carrying amount of the investment is recognised in profit or loss. |
| 2.7 | Property, plant and equipment |
| |
|
All items of property, plant and equipment are initially recorded at cost. Subsequent to recognition, property, plant and equipment are measured at cost less accumulated depreciation and any accumulated impairment losses. The cost of property, plant and equipment includes its purchase price and any costs directly attributable to bringing the asset to the location and condition necessary for it to be capable of operating in the manner intended by management. Dismantlement, removal or restoration costs are included as part of the cost of property, plant and equipment if the obligation for dismantlement, removal or restoration is incurred as a consequence of acquiring or using the property, plant and equipment. |
| |
|
|
| |
|
The projected cost of dismantlement, removal or restoration is also recognised as part of the cost of property, plant and equipment if the obligation for the dismantlement, removal or restoration is incurred as a consequence of either acquiring the asset or using the asset for purpose other than to produce inventories. |
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
| 2. | Material accounting policy information (Continued) |
| 2.7 | Property, plant and equipment (Continued) |
| |
|
Depreciation is calculated using the straight-line method to allocate depreciable amounts over their estimated useful lives. The estimated useful lives are as follows: |
| Computer equipment | |
3 years |
| Furniture and fittings | |
3 years |
| Office equipment | |
3 years |
| Leasehold improvement | |
Over lease term |
| Leased premise | |
Over lease term |
| |
|
Fully depreciated property, plant and equipment are retained in the financial statements until they are no longer in use. |
| |
|
|
| |
|
The residual values, useful lives and depreciation method are reviewed at the end of each reporting period, and adjusted prospectively, if appropriate. |
| |
|
|
| |
|
An item of property, plant and equipment is derecognised upon disposal or when no future economic benefits are expected from its use or disposal. Any gain or loss on derecognition of the asset is included in profit or loss in the year the asset is derecognised. |
| |
|
Acquired intangible assets are initially measured at cost. The cost of intangible assets acquired in a business combination is initially measured at their fair value at the acquisition date. Subsequent to initial recognition, the intangible assets are reported at cost less accumulated amortisation and accumulated impairment losses. |
| |
|
|
| |
|
Intangible assets with finite useful life are amortised over its useful life, using its straight-line method. |
Computer software
| |
|
Acquired computer software is initially capitalised on the basis of the costs incurred to acquire and prepare the software for its intended use. Direct expenditure which enhances or extends the performance of computer software beyond its specifications and which can be reliably measured is added to the cost of the software. Costs associated with maintaining computer software are recognised as an expense as incurred. |
| |
|
|
| |
|
Computer software licences are subsequently carried at cost less accumulated amortisation and accumulated impairment losses. These costs are amortised to profit or loss over their estimated useful lives of 3 years. |
Trademark
| |
|
Trademark is stated at cost less accumulated amortisation and accumulated impairment losses. The cost is amortised over 10 years, which is the shorter of their estimated useful lives and periods of contractual rights. |
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
| 2. | Material accounting policy information (Continued) |
| 2.8 | Intangible assets (Continued) |
Goodwill
| |
|
Goodwill on acquisitions of subsidiaries is included in intangible assets. Goodwill is not amortised, but it is tested for impairment annually, or more frequently if events or changes in circumstances indicate that it might be impaired, and is carried at cost less accumulated impairment losses. Gains and losses on the disposal of an entity include the carrying amount of goodwill relating to the entity sold. |
| |
|
|
| |
|
The amortisation period and amortisation method of intangible assets other than goodwill are reviewed at least at the end of each reporting period. The effects of any revision are recognised in profit or loss when the changes arise. |
| 2.9 | Impairment of non-financial assets |
| |
|
The Group assesses at each reporting date whether there is an indication that an asset may be impaired. If any indication exists, (or, where applicable, when an annual impairment testing for an asset is required), the Group makes an estimate of the asset’s recoverable amount. |
| |
|
|
| |
|
An asset’s recoverable amount is the higher of an asset’s or cash-generating unit’s fair value less costs of disposal and its value in use and is determined for an individual asset, unless the asset does not generate cash inflows that are largely independent of those from other assets or group of assets. Where the carrying amount of an asset or cash-generating unit exceeds its recoverable amount, the asset is considered impaired and is written down to its recoverable amount. |
| |
|
|
| |
|
Impairment losses are recognised in profit or loss. |
| |
|
|
| |
|
A previously recognised impairment loss is reversed only if there has been a change in the estimates used to determine the asset’s recoverable amount since the last impairment loss was recognised. If that is the case, the carrying amount of the asset is increased to its recoverable amount. That increase cannot exceed the carrying amount that would have been determined, net of depreciation, had no impairment loss been recognised previously. Such reversal is recognised in profit or loss. |
| 2.10 | Financial instruments |
Financial assets
Initial recognition
and measurement
| |
|
Financial assets are recognised when, and only when the entity becomes party to the contractual provisions of the instruments. |
| |
|
|
| |
|
At initial recognition, the Group measures a financial asset at its fair value plus, in the case of a financial asset not at fair value through profit or loss (“FVPL”), transaction costs that are directly attributable to the acquisition of the financial asset. Transaction costs of financial assets carried at FVPL are expensed in profit or loss. |
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
| 2. | Material accounting policy information (Continued) |
| 2.10 | Financial instruments (Continued) |
| |
|
Financial assets (Continued) |
| |
| |
|
Initial recognition and measurement (Continued) |
| |
|
Trade receivables are measured at the amount of consideration to which the Group expects to be entitled in exchange for transferring promised goods or services to a customer, excluding amounts collected on behalf of a third party, if the trade receivables do not contain a significant financing component at initial recognition. |
| |
|
Subsequent measurement |
| |
|
|
| |
|
Debt instruments |
| |
|
Subsequent measurement of debt instruments depends on the Group’s business model for managing the asset and the contractual cash flow characteristics of the asset. The three measurement categories for classification of debt instruments are amortised cost, fair value through other comprehensive income (“FVOCI”) and FVPL. |
| |
|
Financial assets that are held for the collection of contractual cash flows where those cash flows represent solely payments of principal and interest are measured at amortised cost. Financial assets are measured at amortised cost using the effective interest method, less impairment. Gains and losses are recognised in profit or loss when the assets are derecognised or impaired, and through the amortisation process. |
| |
|
At fair value through other comprehensive income |
| |
|
Financial assets that are held for collection of contractual cash flows and for selling the financial assets, where the assets’ cash flows represent solely payments of principal and interest, are measured at FVOCI. Financial assets measured at FVOCI are subsequently measured at fair value. Any gains or losses from changes in fair value of the financial assets are recognised in other comprehensive income, except for impairment losses, foreign exchange gains and losses and interest calculated using the effective interest method are recognised in profit or loss. The cumulative gain or loss previously recognised in other comprehensive income is reclassified from equity to profit or loss as a reclassification adjustment when the financial asset is derecognised. |
| |
|
At fair value through profit or loss |
| |
|
Assets that do not meet the criteria for amortised cost or FVOCI are measured at FVPL. A gain or loss on a debt instrument that is subsequently measured at FVPL and is not part of a hedging relationship is recognised in profit or loss in the period in which it arises. |
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
| 2. | Material accounting policy information (Continued) |
| 2.10 | Financial instruments (Continued) |
| |
|
Financial assets (Continued) |
| |
| |
|
Impairment |
| |
|
The Group recognises an allowance for expected credit losses (“ECLs”) for all debt instruments not held at FVPL. ECLs are based on the difference between the contractual cash flows due in accordance with the contract and all the cash flows that the Group expects to receive, discounted at an approximation of the original effective interest rate. The expected cash flows will include cash flows from the sale of collateral held or other credit enhancements that are integral to the contractual terms. |
| |
|
|
| |
|
ECLs are recognised in two stages. For credit exposures for which there has not been a significant increase in credit risk since initial recognition, ECLs are provided for credit losses that result from default events that are possible within the next 12-months (a “12-month ECL”). For those credit exposures for which there has been a significant increase in credit risk since initial recognition, a loss allowance is recognised for credit losses expected over the remaining life of the exposure, irrespective of timing of the default (a “lifetime ECL”). |
| |
|
|
| |
|
For trade receivables, the Group applies a simplified approach in calculating ECLs. Therefore, the Group does not track changes in credit risk, but instead recognises a loss allowance based on lifetime ECLs at each reporting date. The Group has established a provision matrix that is based on its historical credit loss experience, adjusted for forward-looking factors specific to the debtors and the economic environment which could affect debtors’ ability to pay. |
| |
|
|
| |
|
The Group considers a financial asset in default when contractual payments are 60 days past due. However, in certain cases, the Group may also consider a financial asset to be in default when internal or external information indicates that the Group is unlikely to receive the outstanding contractual amounts in full before taking into account any credit enhancements held by the Group. A financial asset is written off when there is no reasonable expectation of recovering the contractual cash flows. |
| |
|
A financial asset is derecognised where the contractual right to receive cash flows from the asset has expired. On derecognition of a financial asset in its entirety, the difference between the carrying amount and the sum of the consideration received and any cumulative gain or loss that had been recognised in other comprehensive income for debt instruments is recognised in profit or loss. |
| |
|
Derivative financial instruments |
| |
|
A derivative financial instrument is initially recognised at its fair value on the date the contract is entered into and is subsequently carried at its fair value. Fair value changes on derivatives that are not designated or do not qualify for hedge accounting are recognised in profit or loss when the changes arise. |
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
| 2. | Material accounting policy information (Continued) |
| 2.10 | Financial instruments (Continued) |
| |
|
Financial liabilities |
| |
|
|
| |
|
Initial recognition and measurement |
| |
|
Financial liabilities are recognised when, and only when, the Group becomes a party to the contractual provisions of the financial instrument. The Group determines the classification of its financial liabilities at initial recognition. |
| |
|
|
| |
|
All financial liabilities are recognised initially at fair value plus in the case of financial liabilities not at FVPL, net of directly attributable transaction costs. |
| |
|
After initial recognition, financial liabilities that are not carried at FVPL are subsequently measured at amortised cost using the effective interest method. Gains and losses are recognised in profit or loss when the liabilities are derecognised, and through the amortisation process. |
| |
|
A financial liability is derecognised when the obligation under the liability is discharged or cancelled or expires. On derecognition, the difference between the carrying amounts and the consideration paid is recognised in profit or loss. |
| |
|
Offsetting of financial instruments |
| |
|
Financial assets and liabilities are offset and the net amount reported in the statements of financial position when there is a legally enforceable right to offset and there is an intention to settle on a net basis or realise the asset and settle the liability simultaneously. |
| |
|
The Group’s digital asset portfolio mainly comprises
cryptocurrencies and since the Group actively trades cryptocurrencies, purchasing them with a view to their resale in the near future
for the ordinary course of business. The Group applies the guidance in IAS 2 Inventories for commodity broker-traders and
measures the digital assets at fair value less costs to sell. The Company considers there are no significant “costs to sell”
digital assets and hence measurement of digital assets is based on their fair values with changes in fair values recognized in profit
or loss in the period of the changes. |
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
| 2. | Material accounting policy information (Continued) |
| 2.11 | Digital assets (Continued) |
Digital asset held for customers
or placed with counterparties
| |
|
Digital assets are recognised as the Group’s assets when the Group has present rights to the digital assets and the right to economic benefit and control others’ access to the benefit. The digital asset are held in a related party’s platform or third party’s exchange institution. If it is determined that the Group has the control over the digital assets, the Group recognises digital assets held for customers as its asset and recognises a corresponding liability due to its customer for the digital assets in its financial statements. |
USD Coin (“USDC”)
| |
|
USDC is a type of cryptocurrency that is backed by reserve assets in the traditional financial system, such as cash and cash equivalents, or securities. USDC is a stable coin redeemable on a one-to-one basis for United States dollars. Thus, it is accounted as a financial instrument amortized at cost recorded in consolidated financial position of the Group. |
Receivables and payables settled
in cryptocurrencies
| |
|
Receivables and payables settled in cryptocurrencies are measured at the fair value of the underlying cryptocurrencies based on their respective quoted prices initially and subsequently on the measurement date. The change in fair value of the underlying cryptocurrencies, are recognized in profit or loss. |
When the Group is the lessee
| |
|
At the inception of the contract, the Group assesses if the contract contains a lease. A contract contains a lease if the contract conveys the right to control the use of an identified asset for a period of time in exchange for consideration. Reassessment is only required when the terms and conditions of the contract are changed. |
Right-of-use assets
| |
|
The Group recognises a right-of-use asset and lease liability at the date which the underlying asset is available for use. Right-of-use assets are measured at cost which comprises the initial measurement of lease liabilities adjusted for any lease payments made at or before the commencement date and lease incentives received. Any initial direct costs that would not have been incurred if the lease had not been obtained are added to the carrying amount of the right-of-use assets. |
| |
|
|
| |
|
These right-of-use assets are subsequently depreciated using the straight-line method from the commencement date to the earlier of the end of the useful life of the right-of-use asset or the end of the lease term. |
| |
|
|
| |
|
Right-of-use assets are presented within “property, plant and equipment”. |
Lease liabilities
| |
|
The initial measurement of a lease liability is measured at the present value of the lease payments discounted using the interest rate implicit in the lease, if the rate can be readily determined. If that rate cannot be readily determined, the Group shall use its incremental borrowing rate. |
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
| |
|
Lease payments include the following: |
| · | Fixed payments (including in-substance fixed payments), less any lease incentives receivable; |
| · | Variable lease payments that are based on an index or rate, initially measured using the index or rate
as at the commencement date; |
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
| 2. | Material accounting policy information (Continued) |
| 2.12 | Leases (Continued) |
| | | |
| | | Lease liabilities (Continued) |
| · | Amounts expected to be payable under residual value guarantees; |
| · | The exercise price of a purchase option if the Group is reasonably certain to exercise the option; and |
| · | Payment of penalties for terminating the lease, if the lease term reflects the Group exercising that option. |
| |
|
For a contract that contains both lease and non-lease components, the Group allocates the consideration to each lease component on the basis of the relative stand-alone prices of the lease and non-lease components. The Group has elected to not separate lease and non-lease components for property leases and account these as one single lease component. |
| |
|
|
| |
|
Lease liabilities are measured at amortised cost using the effective interest method. Lease liabilities shall be remeasured when: |
| · | There is a change in future lease payments arising from changes in an index or rate; |
| · | There is a change in the Group’s assessment of whether it will exercise an extension option; or |
| · | There is a modification in the scope or the consideration of the lease that was not part of the original
term. |
| |
|
Lease liabilities are remeasured with a corresponding adjustment to the right-of-use asset, or is recorded in profit or loss if the carrying amount of the right-of-use asset has been reduced to zero. |
| |
|
|
| |
|
Short-term and low-value leases |
| |
|
The Group has elected to not recognise right-of-use assets and lease liabilities for short-term leases that have lease terms of 12 months or less and leases of low-value leases, except for sublease arrangements. Lease payments relating to these leases are expensed to profit or loss on a straight-line basis over the lease term. |
| |
|
|
| |
|
Current income tax for current and prior periods is recognised at the amount expected to be paid to or recovered from the tax authorities, using the tax rates and tax laws that have been enacted or substantively enacted by the end of the reporting period. Management periodically evaluates positions taken in tax returns with respect to situations in which applicable tax regulation is subject to interpretation and considers whether it is probable that a tax authority will accept an uncertain tax treatment. The Group measures its tax balances either based on the most likely amount or the expected value, depending on which method provides a better prediction of the resolution of the uncertainty. |
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
| 2. | Material accounting policy information (Continued) |
| 2.13 | Income taxes (Continued) |
| |
|
Deferred income tax is recognised for all temporary differences arising between the tax bases of assets and liabilities and their carrying amounts in the financial statements except when the deferred income tax arises from the initial recognition of goodwill or an asset or liability in a transaction that is not a business combination and affects neither accounting nor taxable profit or loss at the time of the transaction. |
| |
|
|
| |
|
A deferred income tax liability is recognised on temporary differences arising on investments in subsidiaries, except where the Group is able to control the timing of the reversal of the temporary difference and it is probable that the temporary difference will not reverse in the foreseeable future. |
| |
|
|
| |
|
A deferred income tax asset is recognised to the extent that it is probable that future taxable profit will be available against which the deductible temporary differences and tax losses can be utilised. |
| |
|
|
| |
|
Deferred income tax is measured: |
| (i) | at the tax rates that are expected to apply when the related deferred income tax asset is realized or
the deferred income tax liability is settled, based on tax rates and tax laws that have been enacted or substantively enacted by the balance
sheet date; and |
| (ii) | based on the tax consequence that will follow from the manner in which the Group expects, at the end of
the reporting period, to recover or settle the carrying amounts of its assets and liabilities. |
| |
|
Current and deferred income taxes are recognised as income or expense in profit or loss, except to the extent that the tax arises from a business combination or a transaction which is recognised directly in equity. Deferred tax arising from a business combination is adjusted against goodwill on acquisition. |
| |
|
|
| |
|
The Group accounts for investment tax credits (for example, productivity and innovation credit) similar to accounting for other tax credits where a deferred tax asset is recognised for unused tax credits to the extent that it is probable that future taxable profit will be available against which the unused tax credits can be utilised. |
| |
|
Provisions are recognised when the Company has a present obligation (legal or constructive) as a result of a past event, it is probable that an outflow of resources embodying economic benefits will be required to settle the obligation and the amount of the obligation can be estimated reliably. |
| |
|
|
| |
|
The Group recognises the estimated costs of dismantlement, removal or restoration of items of property, plant and equipment arising from the acquisition or use of assets. This provision is estimated based on the best estimate of the expenditure required to settle the obligation, taking into consideration time value of money. |
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
| 2. | Material accounting policy information (Continued) |
| 2.15 | Employee benefits |
| | | |
| | | Defined contribution plans |
| |
|
Defined contribution plans are post-employment benefit plans under which the Group pays fixed contributions into separate entities such as the Central Provident Fund in Singapore on a mandatory, contractual or voluntary basis. The Group has no further payment obligations once the contributions have been paid. |
| |
|
|
| |
|
Short-term employee benefits |
| |
|
Short-term employee benefit obligations are measured on an undiscounted basis and are expensed as the related service is provided. A liability is recognised for the amount expected to be paid if the Group has a present legal or constructive obligation to pay this amount as a result of past service provided by the employee, and the obligation can be estimated reliably. |
| 2.16 | Foreign currency translations and balances |
| | | |
| | | Functional and presentation currency |
| |
|
Items included in the financial statements of each entity in the Group are measured using the currency of the primary economic environment in which the entity operates (“functional currency”). The functional currency of the Company is United States Dollar and the financial statements are presented in United States Dollar (“USD”). |
| |
|
Transactions and balances |
| |
|
|
| |
|
Transactions in a currency other than the functional currency (“foreign currency”) are translated into the functional currency using the exchange rates at the dates of the transactions. Currency exchange differences resulting from the settlement of such transactions and from the translation of monetary assets and liabilities denominated in foreign currencies at the closing rates at the balance sheet date are recognised in profit or loss. Monetary items include primarily financial assets (other than equity investments), contract assets and financial liabilities. |
| |
|
|
| |
|
Non-monetary items measured at fair value in foreign currencies are translated using the exchange rates at the date when the fair values are determined. |
| |
|
Translation of Group entities’ financial statements |
| |
|
|
| |
|
The results and financial position of all the Group entities (none of which has the currency of a hyperinflationary economy) that have a functional currency different from the presentation currency are translated into the presentation currency as follows: |
|
(i) |
assets and liabilities are translated at the closing exchange rates at the reporting date; |
| (ii) | income and expenses are translated at average exchange rates (unless the average is not a reasonable approximation
of the cumulative effect of the rates prevailing on the transaction dates, in which case income and expenses are translated using the
exchange rates at the dates of the transactions); and |
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
| 2. | Material accounting policy information (Continued) |
| 2.16 | Foreign currency translations and balances (Continued) |
| | | |
| | | Translation of Group entities’
financial statements (Continued) |
| (i) | all resulting currency translation differences are recognized in other comprehensive income and accumulated
in the currency translation reserve. These currency translation differences are reclassified to profit or loss on disposal or partial
disposal with loss of control of the foreign operation. |
| |
|
Goodwill and fair value adjustments arising on the acquisition of foreign operations are treated as assets and liabilities of the foreign operations and translated at the closing rates at the reporting date. |
| 2.17 | Cash and cash equivalents |
| |
|
Cash and bank balances in the consolidated statements of financial position comprise cash on hand, bank balances and pledged deposits (less than 3 months) which are readily convertible to known amounts of cash and subject to insignificant risk of changes in value. |
| |
|
|
| |
|
For the purposes of consolidated statements of cash flows, cash and cash equivalents exclude any pledged deposits. |
| |
|
Ordinary shares |
| |
|
|
| |
|
Ordinary shares are classified as equity. Incremental costs directly attributable to the issuance of new ordinary shares are deducted against the share capital account. |
| |
|
Convertible preference shares |
| |
|
|
| |
|
Convertible preference shares are separated into liability and equity components based on the terms of the agreement. On issuance of the convertible preference shares, the fair value of the liability component is determined using a market rate for an equivalent instrument. This amount is classified as a financial liability measured at amortised cost (net of transaction costs) until it is extinguished on conversion or redemption. |
| |
|
|
| |
|
The remainder of the proceeds is allocated to the conversion option that is recognised and included in equity. Transaction costs are deducted from equity, net of associated income tax. The carrying amount of the conversion option is not re-measured in subsequent years. |
| |
|
|
| |
|
Transaction costs are apportioned between the liability and equity components of the convertible preference shares, based on the allocation of proceeds to the liability and equity components when the instruments are initially recognised. |
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
| 2. | Material accounting policy information (Continued) |
| |
|
The Group presents basic and diluted earnings per share data for its ordinary shares. Basic earnings per share is calculated by dividing the profit or loss attributable to owners of the Company by the weighted-average number of ordinary shares outstanding during the year, adjusted for own shares held, if any. |
| |
|
|
| |
|
Diluted earnings per share is determined by adjusting the profit or loss attributable to owner of the Company and the weighted-average number of ordinary shares outstanding, adjusted for own shares held, if any, for the effects of all dilutive potential ordinary shares. |
| |
|
Operating segment is reported in a manner consistent with the internal reporting provided to the executive committee whose members are responsible for allocating resources and assessing performance of the operating segment. |
A related party is defined as follows:
| |
(a) |
A person or a close member of that person’s family is related to the Group if that person: |
| (i) | Has control or joint control over the Group; |
| (ii) | Has significant influence over the Group; or |
| (iii) | Is a member of the key management personnel of the Group or of a parent of the Company. |
| (b) | An entity is related to the Group if any of the following conditions apply: |
| (i) | The entity and the Group are members of the same group (which means that each parent, subsidiary and fellow subsidiary is related
to the others). |
| (ii) | One entity is an associate or joint venture of the other entity (or an associate or joint venture of
a member of a group of which the other entity is a member). |
| (iii) | Both entities are joint ventures of the same third party. |
| (iv) | One entity is a joint venture of a third entity and the other entity is an associate of the third entity. |
| (v) | The entity is a post-employment benefit plan for the benefit of employees of either the Group or an entity related to the Group. If
the Group is itself such a plan, the sponsoring employers are also related to the Group. |
| (vi) | The entity is controlled or jointly controlled by a person identified in (a). |
| (vii) | A person identified in (a) (i) has significant influence over the entity or is a member of the key management personnel
of the entity (or of a parent of the entity). |
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
| 3. | Significant accounting judgements and estimates |
The preparation of consolidated financial
statements in conformity with IFRS requires management to exercise its judgement in the process of applying the Group’s accounting
policies. It also requires the use of accounting estimates and assumptions that affect the reported amounts of assets and liabilities
at the balance sheet date and revenues and expenses during the reporting periods.
Information about estimation uncertainties
that have a significant risk of resulting in a material adjustment within the next financial year are included in the following notes:
| 3.1 | Judgements made in applying accounting policies |
| |
|
Accounting of digital assets transactions and balances |
| |
|
|
| |
|
Management notes that the topic of digital assets and the accounting for digital
assets continues to be considered by IASB and continues to monitor new comments and interpretations released by the Board and other
standard setters from around the world. In line with this, the Group has considered its position for the year ended 30 June 2024
and 2023 and had to make judgement that the most applicable standard would be IAS 2 Inventories, based on the Group’s
understanding of the characteristics of the assets as these digital assets are mainly held for the purpose of providing a service
to customer in converting different type of digital asset and lending arrangement with a related party, which can be denominated
in different type of digital asset. |
| |
|
|
| |
|
Management treatment continues to be to measure crypto assets at fair value (unless otherwise disclosed and provided certain conditions are met) under the respective accounting standards. |
| |
|
|
| |
|
Revenue recognition – conversion fees |
| |
|
Significant judgement is required in determining whether the Group is principal or agent in certain transactions between customers. |
| |
|
|
| |
|
The Group evaluates the presentation of gross or net basis based on whether it controls the digital asset before it is transferred to the customer (gross) or whether it acts as an agent by facilitating the transaction. The Group does not set the prices for the transaction as the price is the market rate established on a trading platform between the buyer and seller. As a result, the Group acts as an agent in facilitating the ability for the customer to convert or purchase digital assets. |
| 3.1 | Key sources of estimation uncertainty |
| |
|
The key assumptions concerning the future and other key sources of estimation uncertainty at the end of the reporting period are discussed below. The Group based its assumptions and estimates on parameters available when the financial statements were prepared. Existing circumstances and assumptions about future developments, however, may change due to market changes or circumstances arising beyond the control of the Group. Such changes are reflected in the assumptions when they occur. |
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
| |
|
Fair value of digital assets and USDC |
| |
|
|
| |
|
Crypto assets are measured at fair value using the quoted price in United States
dollars from a number of different sources with the primary being Coinmarketcap (https://coinmarketcap.com) at closing Coordinated
Universal Time. Management considers this fair value to be a Level 1 input under the IFRS 13 Fair Value Measurement fair value
hierarchy as the price on the quoted price(unadjusted) in an active market for identical assets. |
| |
|
Impairment of goodwill |
| |
|
|
| |
|
The Group tests goodwill for impairment at least on an annual basis. Determining whether goodwill is impaired requires an estimation of the value-in-use of the cash-generating units (“CGU”) to which goodwill has been allocated. The value-in-use calculation requires the entity to estimate the future cash flows expected to arise from the CGU and a suitable discount rate in order to calculate present value. No impairment loss was recognised during the financial year ended June 30, 2024 and 2023. |
| |
|
|
| |
|
The carrying amount of goodwill as at June 30, 2024 and 2023 was US$16,735,211 (Note 6). |
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
| 4. | Property, plant and equipment |
| | |
Computer equipment | | |
Furniture and fitting | | |
Office equipment | | |
Leasehold improvement | | |
Leased premise | | |
Total | |
| | |
US$ | | |
US$ | | |
US$ | | |
US$ | | |
US$ | | |
US$ | |
| Cost: | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| Balance at July 1, 2022 and June 30, 2023 | |
| 116,514 | | |
| 19,815 | | |
| 3,404 | | |
| 84,770 | | |
| 657,216 | | |
| 881,719 | |
| Write-off | |
| - | | |
| - | | |
| - | | |
| (84,770 | ) | |
| (657,216 | ) | |
| (741,986 | ) |
| Balance at June 30,2024 | |
| 116,514 | | |
| 19,815 | | |
| 3,404 | | |
| - | | |
| - | | |
| 139,733 | |
| | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Accumulated
depreciation | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| Balance at July 1, 2022 | |
| 110,125 | | |
| 15,441 | | |
| 2,774 | | |
| 82,932 | | |
| 255,586 | | |
| 466,858 | |
| Depreciation | |
| 6,389 | | |
| 2,356 | | |
| 276 | | |
| 773 | | |
| 127,792 | | |
| 137,586 | |
| Balance at June 30, 2023 | |
| 116,514 | | |
| 17,797 | | |
| 3,050 | | |
| 83,705 | | |
| 383,378 | | |
| 604,444 | |
| Depreciation | |
| - | | |
| 1,922 | | |
| 354 | | |
| 1,065 | | |
| 73,024 | | |
| 76,365 | |
| Write-off | |
| - | | |
| - | | |
| - | | |
| (84,770 | ) | |
| (456,402 | ) | |
| (541,172 | ) |
| Balance at June 30, 2024 | |
| 116,514 | | |
| 19,719 | | |
| 3,404 | | |
| - | | |
| - | | |
| 139,637 | |
| | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| Carrying amount | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| Balance at June 30, 2023 | |
| - | | |
| 2,018 | | |
| 354 | | |
| 1,065 | | |
| 273,838 | | |
| 277,275 | |
| Balance at June 30, 2024 | |
| - | | |
| 96 | | |
| - | | |
| - | | |
| - | | |
| 96 | |
Right-of-use assets acquired under leasing
arrangements are presented together with the owned assets of the same class. Details of such leased assets are disclosed in Note 14.
During the current financial year, the
Company terminated its existing tenancy agreement for its office premise.
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS
| | |
Goodwill | | |
Computer software | | |
Trademark | | |
Total | |
| | |
US$ | | |
US$ | | |
US$ | | |
US$ | |
| Cost: | |
| | | |
| | | |
| | | |
| | |
| Balance at July 1, 2022 | |
| - | | |
| 3,580,305 | | |
| 1,393 | | |
| 3,581,698 | |
| Additions | |
| 16,735,211 | | |
| 64,927 | | |
| - | | |
| 16,800,138 | |
| Balance at June 30, 2023 and June 30, 2024 | |
| 16,735,211 | | |
| 3,645,232 | | |
| 1,393 | | |
| 20,381,836 | |
| | |
| | | |
| | | |
| | | |
| | |
| Accumulated amortization | |
| | | |
| | | |
| | | |
| | |
| Balance at July 1, 2022 | |
| - | | |
| 2,594,262 | | |
| 580 | | |
| 2,594,842 | |
| Amortization | |
| - | | |
| 345,706 | | |
| 82 | | |
| 345,788 | |
| Balance at June 30, 2023 | |
| - | | |
| 2,939,968 | | |
| 662 | | |
| 2,940,630 | |
| Amortization | |
| - | | |
| 457,317 | | |
| 139 | | |
| 457,456 | |
| Balance at June 30, 2024 | |
| - | | |
| 3,397,285 | | |
| 801 | | |
| 3,398,086 | |
| | |
| | | |
| | | |
| | | |
| | |
| Carrying amount | |
| | | |
| | | |
| | | |
| | |
| Balance at June 30, 2023 | |
| 16,735,211 | | |
| 705,264 | | |
| 731 | | |
| 17,441,206 | |
| Balance at June 30, 2024 | |
| 16,735,211 | | |
| 247,947 | | |
| 592 | | |
| 16,983,750 | |
Goodwill
Goodwill acquired in a business combination
is allocated to the cash-generating unit (“CGU”) that are expected to benefit from the business combination. The Group has
only one CGU for the year ended June 30, 2024 and 2023.
During the financial year ended June 30,
2023, goodwill with carrying amount of US$16,735,211 was acquired through the Sparrow Group (Note 1).
| | |
US$ | |
| Purchase price | |
| - | |
| Net liabilities assumed | |
| (16,735,211 | ) |
| Goodwill | |
| 16,735,211 | |
The Group tests CGU for impairment annually,
or more frequently when there is an indication for impairment.
The Group has measured the recoverable
amount of the CGU based on a value in use calculation using 5-years cash flows projections approved by the directors. Key assumptions
on which management has based its cash flow projections for the respective periods are as follows:
| | |
June 30, 2023 | | |
June 30, 2024 | |
| | |
| % | | |
| % | |
| Revenue growth | |
| 7.0 - 219.0 | | |
| 7.0 - 41.0 | |
| Long-term growth rate | |
| 3.0 | | |
| 3.0 | |
| Discount rate | |
| 16.0 | | |
| 16.0 | |
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS
| 5. | Intangible assets (Continued) |
Management determined revenue
growth based on past performance and its expectation of market developments. The long-term growth rate used was consistent with
forecasts included in industry reports. The discount rate was pre-tax and reflected specific risk relating to the industry.
| 6. | Financial asset, at fair value through profits or loss |
| | |
June 30, 2023 | | |
June 30, 2024 | |
| | |
US$ | | |
US$ | |
| As at the beginning of financial year | |
| 250,000 | | |
| 259,114 | |
| Fair value gain in profit or loss (Note 18 and Note 20) | |
| 9,114 | | |
| (11,288 | ) |
| As at the end of financial year | |
| 259,114 | | |
| 247,826 | |
The Company investment in Signum Capital
Investment VVC-Sub Fund is designated and measured at FVPL because its performance is monitored and managed on a fair value basis.
The fair value measurement has been
categorised as Level 3 fair value based on inputs to the valuation techniques used. Fair value measurement will be performed on a quarterly
basis.
| 7. | Trade and other receivables |
| | |
June 30, 2023 | | |
June 30, 2024 | |
| | |
US$ | | |
US$ | |
| Trade receivables - third parties | |
| - | | |
| 6,090 | |
| | |
| | | |
| | |
| Other receivables - third parties | |
| 2,614 | | |
| - | |
| Deposits | |
| 202,418 | | |
| 147,437 | |
| Prepayments | |
| 80,034 | | |
| 112,016 | |
| Interest receivables | |
| - | | |
| 5,539 | |
| Total | |
| 285,066 | | |
| 271,082 | |
Trade receivables are non-interest bearing
and are generally on 30 (2023: Nil) days’ terms.
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS
| 7. | Trade and other receivables (Continued) |
The currency profile of the Group’s
trade and other receivables at the end of the reporting date are as follows:
| | |
June 30, 2023 | | |
June 30, 2024 | |
| | |
US$ | | |
US$ | |
| United States Dollar | |
| 51,019 | | |
| 65,754 | |
| Singapore Dollar | |
| 234,047 | | |
| 159,175 | |
| Hong Kong Dollar | |
| - | | |
| 1,296 | |
| Others | |
| - | | |
| 44,857 | |
| Total | |
| 285,066 | | |
| 271,082 | |
| | |
June 30, 2023 | | |
June 30, 2024 | |
| | |
US$ | | |
US$ | |
| Digital assets: | |
| | | |
| | |
| Held in related party’s platform | |
| 14,756,229 | | |
| 22,693,621 | |
| Digital assets held on exchange institution | |
| 2,013,648 | | |
| 132,283 | |
| | |
| 16,769,877 | | |
| 22,825,904 | |
The following table sets forth the fair
values of digital assets held by the Group as the end of the financial year:
| | |
June 30, 2023 | | |
June 30, 2024 | |
| | |
US$ | | |
US$ | |
| Bitcoin (“BTC”) | |
| 4,764,644 | | |
| 13,565,294 | |
| Ethereum (“ETH”) | |
| 2,974,771 | | |
| 4,187,371 | |
| Sparrow dollar (“SP$”) (1) | |
| - | | |
| 2,985,222 | |
| USD Tether (“USDT”) | |
| 6,194,805 | | |
| 807,247 | |
| USDC | |
| 2,832,988 | | |
| 1,253,301 | |
| Others | |
| 2,669 | | |
| 27,469 | |
| Total | |
| 16,769,877 | | |
| 22,825,904 | |
(1) SP$ is a cryptographic
blockchain-based digital information unit token issued by the Group and only used in Group’s platform. Each SP$ is equivalent
to US$1.
Among the digital assets balance,
it included digital assets held by the Group used to purchase cryptocurrency-denoted products which represent fixed interest
cryptocurrency deposit with related party and corresponding liabilities due to customers totalling approximately US$21,100,000 and
US$11,500,000 for the financial year ended June 30,2024 and June 30,2023 respectively, as disclosed in Note 13.
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS
| 9. | Derivative financial instruments |
| | |
Notional amount | | |
Notional amount | | |
Assets | | |
Liabilities | |
| | |
US$ | | |
US$ | | |
US$ | | |
US$ | |
| | |
Buy | | |
Sell | | |
| | |
| |
Derivatives
carried at fair value: | |
| | | |
| | | |
| | | |
| | |
| Crypto structured products | |
| | | |
| | | |
| | | |
| | |
| | |
| | | |
| | | |
| | | |
| | |
| June 30, 2024 | |
| | | |
| | | |
| | | |
| | |
| To Customers | |
| | | |
| | | |
| | | |
| | |
| Call option | |
| 121,000 | | |
| 2,356,139 | | |
| 7,346 | | |
| 4,757 | |
| Put option | |
| - | | |
| 1,698,009 | | |
| - | | |
| 10,292 | |
| | |
| | | |
| | | |
| | | |
| | |
| To related party | |
| | | |
| | | |
| | | |
| | |
| Call option | |
| 121,000 | | |
| 2,356,139 | | |
| 4,757 | | |
| 7,346 | |
| Put option | |
| - | | |
| 1,698,009 | | |
| 10,292 | | |
| - | |
| | |
| 242,000 | | |
| 8,108,296 | | |
| 22,395 | | |
| 22,395 | |
| June 30, 2023 | |
| | | |
| | | |
| | | |
| | |
| To Customers | |
| | | |
| | | |
| | | |
| | |
| Call option | |
| - | | |
| 1,523,850 | | |
| 28,381 | | |
| - | |
| Put option | |
| - | | |
| 2,649,800 | | |
| - | | |
| 74,363 | |
| | |
| | | |
| | | |
| | | |
| | |
| To related party | |
| | | |
| | | |
| | | |
| | |
| Call option | |
| - | | |
| 1,523,850 | | |
| - | | |
| 28,381 | |
| Put option | |
| - | | |
| 2,649,800 | | |
| 74,363 | | |
| - | |
| | |
| - | | |
| 8,347,300 | | |
| 102,744 | | |
| 102,744 | |
The Group entered into put and call
BTC and ETH options with its customers, and the Group also entered into identical back-to-back put and call BTC and ETH options with a
related company. Management has no intention to hold these derivatives for more than one year and option varies from 3 days – 73
days (2023: 3 days – 56 days) till maturity.
| 10. | Cash and bank balances |
| | |
June 30, 2023 | | |
June 30, 2024 | |
| | |
US$ | | |
US$ | |
| Fixed deposit | |
| - | | |
| 3,000,000 | |
| Cash at banks | |
| 98,162 | | |
| 1,899,343 | |
| | |
| 98,162 | | |
| 4,899,343 | |
Fixed deposit bears interest at 3.90%
to 4.67% (2023: Nil) per annum and for tenure of 30 (2023: Nil) days.
During the financial year, the Group
placed a fixed deposit of US$3,000,000 with a bank in Hong Kong in accordance with Hong Kong VATP guidelines for a related company, WhaleFin
Markets Limited.
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS
| 10. | Cash and cash equivalents (Continued) |
For the purpose of presenting the consolidated
statement of cash flows, and cash and cash equivalents comprise the following at the end of the financial year:
| | |
June 30, 2023 | | |
June 30, 2024 | |
| | |
US$ | | |
US$ | |
| Cash and short-term deposit | |
| 98,162 | | |
| 4,899,343 | |
| Less: Restricted fixed deposit | |
| - | | |
| (3,000,000 | ) |
| | |
| 98,162 | | |
| 1,899,343 | |
The currency profiles of the Group’s
cash and cash equivalents as at the end of each reporting period are as follows:
| | |
June 30, 2023 | | |
June 30, 2024 | |
| | |
US$ | | |
US$ | |
| United States Dollar | |
| 38,886 | | |
| 4,717,455 | |
| Singapore Dollar | |
| 48,029 | | |
| 114,110 | |
| Hong Kong Dollar | |
| 7,720 | | |
| 63,972 | |
| Others | |
| 3,527 | | |
| 3,806 | |
| Total | |
| 98,162 | | |
| 4,899,343 | |
| 11. | Trade and other payables |
| | |
June 30, 2023 | | |
June 30, 2024 | |
| | |
US$ | | |
US$ | |
| Trade payables - third parties | |
| 6,058 | | |
| 27,754 | |
| | |
| | | |
| | |
| Other payables - third parties | |
| 28,284 | | |
| 88,908 | |
| Accrued expenses | |
| 339,023 | | |
| 831,174 | |
| | |
| 373,365 | | |
| 947,836 | |
Trade payables are non-interest bearing
and are generally on 30 (2023: 30) days’ credit terms.
The currency profiles of the Group’s
trade and other payables as at the end of each reporting period are as follows:
| | |
June 30, 2023 | | |
June 30, 2024 | |
| | |
US$ | | |
US$ | |
| United States Dollar | |
| 44,940 | | |
| 436,694 | |
| Singapore Dollar | |
| 328,425 | | |
| 461,018 | |
| Hong Kong Dollar | |
| - | | |
| 50,124 | |
| | |
| 373,365 | | |
| 947,836 | |
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS
| 12. | Assets and liabilities related to custodian digital assets of customers (Continued) |
| | |
June 30, 2023 | | |
June 30, 2024 | |
| | |
US$ | | |
US$ | |
| Digital assets due to customers | |
| 8,664,264 | | |
| 19,025,928 | |
| Bank balance due to customers | |
| 1,461,010 | | |
| 1,867,004 | |
| | |
| 10,125,274 | | |
| 20,892,932 | |
The balance represents the safeguarding
liability and corresponding safeguarding asset of the Group for the custodian of customers’ digital assets in the Group’s
proprietary platform.
The Group allows its customers to deposit
digital assets like Bitcoin (“BTC”), Ethereum (“ETH”), USD Coin (“USDC”), Tether USD (“USDT”)
in the Group’s proprietary platform free of charge. Customers also deposit an immaterial amount of other digital assets such as
DOT, XLM, XRP and SOL in the Group’s proprietary platform to facilitate the future transactions of the customers on the Group’s
proprietary platform.
The Group opens a separate account on
Bitgo, DBS, and related party’s platform, Whalefin to hold the customers’ digital assets and maintains internal recordkeeping
of the digital assets for each of the customers. The Group’s contractual arrangements state that its customers retain legal ownership
of the custodian digital assets; have the right to withdraw, used for payment to purchase services in the platform; and also benefit from
the rewards and bear the risks associated with the ownership, including as a result of any price fluctuations of the digital assets.
The customers also bear the risk of
loss as a result of fraud or theft, unless the loss was caused by the Group’s gross negligence or wilful misconduct.
The following table sets forth the fair
values of digital assets due to customers as the end of the financial year was as follows:
| | |
June 30, 2023 | | |
June 30, 2024 | |
| | |
US$ | | |
US$ | |
| BTC | |
| 4,807,044 | | |
| 10,148,542 | |
| ETH | |
| 2,730,426 | | |
| 2,617,172 | |
| USDT | |
| 719,298 | | |
| 6,155,594 | |
| USDC | |
| 407,377 | | |
| 82,314 | |
| Others | |
| 119 | | |
| 22,306 | |
| | |
| 8,664,264 | | |
| 19,025,928 | |
The following table sets forth the currency
profile for the funds due to customers as the end of the financial year was as follows:
| | |
June 30, 2023 | | |
June 30, 2024 | |
| | |
US$ | | |
US$ | |
| United States Dollar | |
| 1,306,746 | | |
| 1,862,496 | |
| Singapore Dollar | |
| 154,264 | | |
| 4,508 | |
| | |
| 1,461,010 | | |
| 1,867,004 | |
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS
| 13. | Liabilities due to customers |
| | |
June 30, 2023 | | |
June 30, 2024 | |
| | |
US$ | | |
US$ | |
| Structured products | |
| 11,530,387 | | |
| 21,077,444 | |
| Accrued interest | |
| 13,263 | | |
| 15,541 | |
| | |
| 11,543,650 | | |
| 21,092,985 | |
Liabilities due
to customers are mainly related to proceeds received from customers who purchased cryptocurrency-denoted products, which represent
fixed/variables interest cryptocurrency deposited in “Sparrow” platform operated by the Group. The deposit is not
protected by any insurance and is non-secured. Upon maturity of the product, the customers receive the same type of
cryptocurrency in the same quantity plus additional interest returns. The deposit and interest will be deposited to customers
account on the same date upon maturity of structured products, and customers able to withdraw it on demand.
The following table sets forth the fair
values of liabilities due to customers as the end of the financial year:
| | |
June 30, 2023 | | |
June 30, 2024 | |
| | |
US$ | | |
US$ | |
| BTC | |
| 2,435,769 | | |
| 13,500,282 | |
| ETH | |
| 1,833,907 | | |
| 4,123,677 | |
| SP$ | |
| - | | |
| 2,049,063 | |
| USDT | |
| 5,471,059 | | |
| 783,549 | |
| USDC | |
| 1,802,103 | | |
| 609,864 | |
| Others | |
| 812 | | |
| 26,550 | |
| Total | |
| 11,543,650 | | |
| 21,092,985 | |
Group as a lessee
The Group has lease contracts for leasehold
office. The Group’s obligations under these leases are secured by the lessor’s title to the leased assets. The Group is restricted
from assigning and subletting the leased assets.
Carrying amount of lease
right-of-use assets
| | |
Leasehold office | |
| | |
US$ | |
| At July 1, 2022 | |
| 401,630 | |
| Depreciation | |
| (127,792 | ) |
| At June 30, 2023 | |
| 273,838 | |
| Depreciation | |
| (73,024 | ) |
| Written off | |
| (200,814 | ) |
| At June 30, 2024 | |
| - | |
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS
| 14. | Lease liabilities (Continued) |
Lease liabilities
The carrying amount of lease liabilities
and the movement during the financial year are disclosed elsewhere in the consolidated financial statements, and the maturity analysis
of lease liabilities is disclosed in Note 23.
| | |
June 30, 2023 | | |
June 30, 2024 | |
| | |
US$ | | |
US$ | |
| Current | |
| 226,019 | | |
| - | |
| Non-current | |
| 58,019 | | |
| - | |
Amounts recognized in profit
or loss
| | |
June 30, 2023 | | |
June 30, 2024 | |
| | |
US$ | | |
US$ | |
| Depreciation of right-of-use assets | |
| 127,792 | | |
| 73,024 | |
| Interest expense on lease liabilities (Note 18) | |
| 8,373 | | |
| 3,355 | |
| | |
| 136,165 | | |
| 76,379 | |
Total cash outflows
The Group had total cash outflows for
leases of US$117,327 and US$129,175 for the years ended June 30, 2023 and June 30, 2024, respectively.
| | |
June 30, 2023 | | |
June 30, 2024 | | |
June 30, 2023 | | |
June 30, 2024 | |
| | |
Number of shares | | |
Number of shares | | |
US$ | | |
US$ | |
| | |
Ordinary
shares | | |
Series A preference
shares | | |
| | |
| |
| At date of incorporation | |
| 40,000 | | |
| - | | |
| 3,000,000 | | |
| 3,000,000 | |
| Issuance of preference shares | |
| - | | |
| 2,100 | | |
| - | | |
| 10,500,000 | |
| At end of financial year | |
| 40,000 | | |
| 2,100 | | |
| 3,000,000 | | |
| 13,500,000 | |
The Company was incorporated in Cayman
Island on November 23, 2023, with an authorized share capital of US$50,000 divided into 50,000 ordinary shares of US$1.00 each.
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS
| 15. | Share capital (Continued) |
On February 7, 2024, the Company’s
shareholders approved to amend the authorized share capital from US$50,000, divided into 50,000 ordinary shares, par value of US$1.00
per share, to US$50,000, divided into 2,000,000,000 ordinary shares of par value US$0.000025 per share. The issued 1 ordinary share of
par value of US$1.00 each, is therefore subdivided into 40,000 ordinary shares, par value of US$0.000025.
On February 7, 2024, the Company
issued 2,000 Series A preference shares with a cash consideration of US$10,000,000 for working capital.
On April 15, 2024, the Company’s
shareholder approved to amend the authorized share capital by re-designated 1,000 authorised but unissued ordinary shares be and are hereby
re-designated as 1,000 Series A preference shares with par value of US$0.000025 each. After the re-designation, the authorised share
capital of the Company is US$50,000 divided into (i) 1,999,997,000 ordinary shares, par value of US$0.000025 each, and (ii) 3,000
Series A preference shares, with par value of US$0.000025 each.
On May 6, 2024, the Company issued
additional 100 Series A preference shares with a cash consideration of US$500,000.
Capital reserve represents non-distributable
reserve which arose from waiver of loan from ultimate holding company.
| | |
June 30, 2023 | | |
June 30, 2024 | |
| | |
US$ | | |
US$ | |
| Disaggregation of revenue | |
| | | |
| | |
| Conversion fees | |
| 271,025 | | |
| 1,497,054 | |
| Finance income | |
| 840,336 | | |
| 1,988,365 | |
| Advisory fee | |
| - | | |
| 62,794 | |
| | |
| 1,111,361 | | |
| 3,548,213 | |
| | |
June 30, 2023 | | |
June 30, 2024 | |
| | |
US$ | | |
US$ | |
| Timing of transfer | |
| | | |
| | |
| Point in time | |
| 271,025 | | |
| 1,559,848 | |
| Over time | |
| 840,336 | | |
| 1,988,365 | |
| | |
| 1,111,361 | | |
| 3,548,213 | |
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS
| | |
June 30, 2023 | | |
June 30, 2024 | |
| | |
US$ | | |
US$ | |
| Government grants | |
| 61,617 | | |
| 8,794 | |
| Foreign exchanges difference, net | |
| 893 | | |
| - | |
| Fair value gain on FVPL (Note 6) | |
| 9,114 | | |
| - | |
| Service income (Note 22) | |
| - | | |
| 35,954 | |
| Interest income | |
| - | | |
| 73,848 | |
| Consultation fee | |
| - | | |
| 38,309 | |
| Others | |
| 84 | | |
| 12,809 | |
| | |
| 71,708 | | |
| 169,714 | |
| | |
June 30, 2023 | | |
June 30, 2024 | |
| | |
US$ | | |
US$ | |
| Interest expense on : | |
| | | |
| | |
| Lease liabilities (Note 14) | |
| 8,373 | | |
| 3,355 | |
| Related parties (Note 22) | |
| 77,711 | | |
| 78,268 | |
| | |
| 86,084 | | |
| 81,623 | |
Loss before tax
has been arrived at after charging:
| | |
June 30, 2023 | | |
June 30, 2024 | |
| | |
US$ | | |
US$ | |
| Employee benefits expense | |
| 1,603,460 | | |
| 3,683,279 | |
| Technology expense | |
| 331,631 | | |
| 353,319 | |
| Business development expense | |
| 8,391 | | |
| 7,294 | |
| Professional fees | |
| 87,374 | | |
| 728,897 | |
| Lease modification | |
| - | | |
| 42,597 | |
| Fair value loss on FVPL (Note 6) | |
| - | | |
| 11,288 | |
| Amortization of intangible assets (Note 5) | |
| 345,788 | | |
| 457,456 | |
| Depreciation of right-of-use assets (Note 14) | |
| 127,792 | | |
| 73,024 | |
| Depreciation of property, plant and equipment (Note 4) | |
| 9,794 | | |
| 3,341 | |
| License fees | |
| 7,609 | | |
| 95,074 | |
| Outsourcing fees | |
| 60,507 | | |
| 67,164 | |
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS
The major components of income tax expense
recognized in profit or loss for the years ended June 30, 2024 and 2023 were:
| | |
| June 30, 2023 | | |
| June 30, 2024 | |
| | |
| US$ | | |
| US$ | |
| Current income tax – current year | |
| - | | |
| - | |
Relationship between tax expense
and accounting loss
A reconciliation between tax expense
and the product of accounting loss multiplied by the applicable corporate tax rate for the financial years ended June 30, 2024 and
2023 were as follows:
| | |
June 30, 2023 | | |
June 30, 2024 | |
| | |
US$ | | |
US$ | |
| Loss before tax | |
| (7,800,856 | ) | |
| (16,149,548 | ) |
| | |
| | | |
| | |
| Income tax expense at 17% (2023: 17%) | |
| (1,326,146 | ) | |
| (2,745,423 | ) |
| Effect of difference tax rate | |
| 13 | | |
| 167 | |
| Income not subject to tax | |
| (1,542,364 | ) | |
| (30,727 | ) |
| Non-deductible expenses | |
| 2,480,841 | | |
| 2,304,892 | |
| Deferred tax assets not recognised | |
| 387,656 | | |
| 471,091 | |
| | |
| - | | |
| - | |
The Group has unabsorbed tax losses
available for offsetting against future taxable income as follows:
| | |
June 30, 2023 | | |
June 30, 2024 | |
| | |
US$ | | |
US$ | |
| At beginning of financial year | |
| - | | |
| 2,280,329 | |
| Addition | |
| 2,280,329 | | |
| 2,771,124 | |
| At end of financial year | |
| 2,280,329 | | |
| 5,051,453 | |
Deferred tax assets are
unrecognised for tax losses carried forward to the extent that realisation of the related tax benefits through future taxable
profits is probable. The Group has unrecognised tax losses of approximately US$5,000,000 (2023: US$2,300,000) at the reporting date
which can be carried forward and used to offset against future taxable income subject to meeting certain statutory
requirements. The unrecognised tax losses have no expiry dates.
Singapore
Under the current Inland Revenue Authority
of Singapore, the Group’s subsidiary incorporated in Singapore is subject to a statutory tax rate of 17% (2023: 17%).
Hong Kong
Under the current Hong Kong Inland
Revenue Ordinance, the Group’s subsidiary incorporated in Hong Kong is subject to 16.5% income tax on their taxable income
generated from operations in Hong Kong before April 1, 2018. Starting from the financial year commencing on April 1, 2018,
the two-tiered profits tax regime took effect, under which the tax rate is 8.25% for assessable profits on the first HK$
2million and 16.5% for any assessable profits in excess of HK$ 2million.
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS
| 21. | Income tax expense (Continued) |
British Virgin Islands
The entity established under the BVI
Act is exempted from BVI income taxes.
Cayman Islands
The Company established under the Cayman
Islands Act is exempted from Cayman Islands income taxes.
| 22. | Significant related party transactions and balances |
| Related parties name | |
Relationship to the Company |
| | |
|
| Amber Global Ltd | |
Ultimate holding company |
| Amber AI Ltd | |
Affiliates |
| Amber Technologies Service Pte Ltd | |
Affiliates |
| WhaleFin Technologies Ltd | |
Affiliates |
| Amber Technologies Ltd | |
Affiliates |
| Amber Vault AUS Pty. Ltd. | |
Affiliates |
| Amber Technologies Global Pte Ltd | |
Affiliates |
| WhaleFin Markets Ltd | |
Affiliates |
| Amber Custodian Services Ltd | |
Affiliates |
In addition to the related party information
disclosed elsewhere in the financial statements, the following transactions with related parties took place at terms agreed between the
parties during the financial year:
| | |
June 30, 2023 | | |
June 30, 2024 | |
| | |
US$ | | |
US$ | |
| Amber Global Ltd | |
| | | |
| | |
| Interest expenses (Note 19) | |
| 18,750 | | |
| 59,015 | |
| | |
| | | |
| | |
| Amber Technologies Service Pte Ltd | |
| | | |
| | |
| Service income (Note 18) | |
| - | | |
| (35,954 | ) |
| | |
| | | |
| | |
| Amber Technologies Global Pte Ltd | |
| | | |
| | |
| Outsourcing / support fees | |
| 60,507 | | |
| 29,573 | |
| Interest expenses (Note 19) | |
| 58,961 | | |
| 13,951 | |
| | |
| | | |
| | |
| Whalefin Technologies Ltd | |
| | | |
| | |
| Revenue | |
| (112,846 | ) | |
| (554,381 | ) |
| Cost of sales | |
| 2,069 | | |
| 13,940 | |
| Interest expenses (Note 19) | |
| - | | |
| 5,303 | |
| Other income | |
| - | | |
| (2,500 | ) |
| | |
| | | |
| | |
| Amber Technologies Limited | |
| | | |
| | |
| Revenue | |
| (727,548 | ) | |
| (1,370,178 | ) |
| Cost of sales | |
| - | | |
| 29,613 | |
| | |
| | | |
| | |
| RigSec Technology Limited | |
| | | |
| | |
| Revenue - Channel fees | |
| - | | |
| (25,000 | ) |
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS
| 22. | Significant related party transactions and balances (Continued) |
Amount due from related parties
| | |
June 30, 2023 | | |
June 30, 2024 | |
| | |
US$ | | |
US$ | |
| Trade | |
| | | |
| | |
| Rigsec Technology Ltd | |
| - | | |
| 25,000 | |
| WhaleFin Technologies Ltd | |
| 5,000 | | |
| - | |
| | |
| | | |
| | |
| Non-trade | |
| | | |
| | |
| Amber AI Ltd | |
| - | | |
| 400,000 | |
| WhaleFin Technologies Ltd (1) | |
| - | | |
| 6,594,664 | |
| Amber Technologies Global Pte Ltd | |
| - | | |
| 47,476 | |
| Amber Technologies Services Pte Ltd | |
| - | | |
| 35,953 | |
| WhaleFin Markets Ltd (1) | |
| - | | |
| 5,115,549 | |
| Amber Custodian Services Ltd | |
| - | | |
| 1,622 | |
| Amber Global Ltd | |
| 3,000,000 | | |
| - | |
| | |
| 3,005,000 | | |
| 12,220,264 | |
| (1) | These non-trade receivables mainly pertained to expenses paid on behalf for related parties. |
The amount due from related parties
are trade in nature, unsecured, interest-free and with the credit term 30 days (2023: 30 days).
The amount due from related parties
are non-trade in nature, unsecured, interest-free and payable on demand.
The currency profile of the Group’s
amount due from related parties at the end of the reporting date are as follows:
| | |
June 30, 2023 | | |
June 30, 2024 | |
| | |
US$ | | |
US$ | |
| United States Dollar | |
| 3,005,000 | | |
| 9,206,835 | |
| Singapore Dollar | |
| - | | |
| 83,429 | |
| Hong Kong Dollar | |
| - | | |
| 2,930,000 | |
| | |
| 3,005,000 | | |
| 12,220,264 | |
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS
| 22. | Significant related party transactions and balances (Continued) |
Amount due to related parties
| | |
June 30, 2023 | | |
June 30, 2024 | |
| | |
US$ | | |
US$ | |
| Trade | |
| | | |
| | |
| Amber Technologies Ltd | |
| 23,700 | | |
| - | |
| | |
| | | |
| | |
| Loan | |
| | | |
| | |
| Amber Technologies Global Pte Ltd [1] | |
| 2,482,807 | | |
| - | |
| Amber Global Ltd [2] | |
| 1,005,507 | | |
| - | |
| Amber Global Ltd [3] | |
| 21,131,579 | | |
| 29,340,127 | |
| Amber Global Ltd [4] | |
| - | | |
| 5,398,040 | |
| Amber Global Ltd [5] | |
| - | | |
| 3,000,000 | |
| WhaleFin Technologies Ltd [6] | |
| - | | |
| 1,505,302 | |
| | |
| | | |
| | |
| Non-trade | |
| | | |
| | |
| Amber AI Ltd | |
| 10,645 | | |
| 410,493 | |
| Amber Technologies Global Pte Ltd | |
| 15,169 | | |
| 3,029 | |
| Amber Technologies Services Pte Ltd | |
| - | | |
| 1,659 | |
| WhaleFin Technologies Ltd | |
| - | | |
| 132,779 | |
| Amber Vault AUS Pty. Ltd. | |
| - | | |
| 323 | |
| | |
| 24,669,407 | | |
| 39,791,752 | |
The amount due to related parties are
trade in nature, unsecured, interest-free and credit term 30 days (2023: Nil).
| [1] | The loan payable due to Amber Technologies Global Pte Ltd is in fiat currency, unsecured, bearing interest
at 7.00% per annum and repayable on demand. |
| [2] | The loan payable to Amber Global Ltd is in fiat currency, unsecured, bearing interest at 3.00% per annum
and repayable on demand. |
| [3] | The loan payable to Amber Global Ltd is in cryptocurrency, unsecured, bearing interest at 3.00% per annum
and repayable in 12 months term. Due to fluctuations of fair value of cryptocurrency, the Company incurred unrealized fair value loss
on digital assets loan approximately unrealized fair value loss US$12,200,000 and US$5,400,000 in June 30, 2024 and 2023 respectively. |
The Group had repaid partial of cryptocurrency
loan with related parties and incurred realized fair value gain on digital assets loan approximately US$500,000 and US$60,000 in June 30,
2024 and 2023 respectively.
| [4] | The loan payable to Amber Global Ltd is in fiat currency for the purpose of working capital purpose, unsecured,
interest free and repayable on demand. |
| [5] | The loan payable to Amber Global Ltd is in fiat currency and novated from Whalefin Markets Ltd to the
Group. The loan is unsecured, interest free and repayable on demand. |
| [6] | The loan payable to WhaleFin Technologies Ltd is in fiat currency, unsecured, bearing interest at 3% per
annum and repayable in 12 months term. |
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS
| 22. | Significant related party transactions and balances (Continued) |
The following table sets forth the fair
value of amount due to Amber Global Ltd that were denominated in digital assets as the end of the financial year was as follows:-
| | |
June 30, 2023 | | |
June 30, 2024 | |
| | |
US$ | | |
US$ | |
| BTC | |
| 5,248,000 | | |
| 18,266,078 | |
| ETH | |
| 5,153,886 | | |
| 6,875,466 | |
| USDC | |
| 10,753,393 | | |
| 4,198,584 | |
| Total | |
| 21,155,279 | | |
| 29,340,127 | |
The following table sets forth the amount
due to related parties denominated in fiat as the end of the financial year was as follows:
| | |
June 30, 2023 | | |
June 30, 2024 | |
| | |
US$ | | |
US$ | |
| United States Dollar | |
| 1,972,576 | | |
| 10,451,625 | |
| Singapore Dollar | |
| 1,541,552 | | |
| - | |
| Total | |
| 3,514,128 | | |
| 10,451,625 | |
Key management personnel
Key management personnel are directors
of the Group and those persons having authority and responsibility for planning, directing and controlling the activities of the Group,
directly or indirectly.
The remuneration of key management personnel
of the Group during the financial years were as follows:
| | |
June 30, 2023 | | |
June 30, 2024 | |
| | |
US$ | | |
US$ | |
| Directors’ fees | |
| 1,400 | | |
| 2,400 | |
| Salaries and related costs | |
| 426,839 | | |
| 1,059,201 | |
| Defined contribution plan | |
| 21,943 | | |
| 56,809 | |
| | |
| 450,182 | | |
| 1,118,410 | |
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS
| 23. | Financial risk management |
The Group’s activities expose
it to a variety of financial risks from its operation. The key financial risks include credit risk, liquidity risk and market risk (including
foreign currency risk, digital asset price risk, risks associated with the storage and protection of digital assets and investment risk
related to trading of digital assets).
The directors review and agree policies
and procedures for the management of these risks, which are executed by the management team. It is, and has been throughout the current
and previous financial years, the Group’s policy that no trading in derivatives for speculative purposes shall be undertaken.
The following sections provide details
regarding the Group’s exposure to the abovementioned financial risks and the objectives, policies and processes for the management
of these risks.
There has been no change to the Group’s
exposure to these financial risks or the manner in which it manages and measures the risks.
Credit risk
Credit risk refers to the risk that
the counterparty will default on its contractual obligations resulting in a loss to the Group. The Group’s exposure to credit risk
arises primarily from trade and other receivables. For other financial assets (including cash), the Group minimizes credit risk by dealing
exclusively with high credit rating counterparties.
The Group has adopted a policy of
only dealing with creditworthy counterparties. The Group performs ongoing credit evaluation of its counterparties’
financial condition and generally does not require collateral.
The Group considers the probability
of default upon initial recognition of asset and whether there has been a significant increase in credit risk on an ongoing basis throughout
each reporting period.
The Group has determined the default
event on a financial asset to be when internal and/or external information indicates that the financial asset is unlikely to be received,
which could include default of contractual payments due for more than 60 days or there is significant difficulty of the counterparty.
To minimize credit risk, the Group has
developed and maintained the Group’s credit risk gradings to categorize exposures according to their degree of risk of default.
The credit rating information is supplied by publicly available financial information and the Group’s own trading records to rate
its major customers and other debtors. The Group considers available reasonable and supportive forward-looking information which includes
the following indicators:
| · | Actual or expected significant adverse changes in business, financial or economic conditions that are
expected to cause a significant change to the debtor’s ability to meet its obligations |
| · | Actual or expected significant changes in the operating results of the debtor |
| · | Significant increases in credit risk on other financial instruments of the same debtor |
| · | Significant changes in the expected performance and behavior of the debtor, including changes in the payment
status of debtors in the company and changes in the operating results of the debtor |
Regardless of the analysis above, a
significant increase in credit risk is presumed if a debtor is more than 30 days past due in making contractual payment.
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS
| 23. | Financial risk management (Continued) |
Credit risk (Continued)
The Group determined that its financial
assets are credit-impaired when:
| · | There is significant difficulty of the debtor |
| · | A breach of contract, such as a default or past due event |
| · | It is becoming probable that the debtor will enter bankruptcy or other financial reorganization |
| · | There is a disappearance of an active market for that financial asset because of financial difficulty |
The Group categorizes a receivable for
potential write-off when a debtor fails to make contractual payments more than 120 days past due. Financial assets are written off when
there is evidence indicating that the debtor is in severe financial difficulty and the debtor has no realistic prospect of recovery.
The Group’s current credit risk
grading framework comprises the following categories:
| Category |
Definition of category |
Basis for recognising
expected
credit loss
(ECL)
|
| I |
Counterparty has a low risk of default and does not have any past-due amounts. |
12-month ECL |
| II |
Amount is >30 days past due or there has been a significant increase in credit risk since initial recognition. |
Lifetime ECL – not credit impaired |
| III |
Amount is >60 days past due or there is evidence indicating the asset is credit-impaired (in default). |
Lifetime ECL – credit-impaired |
| IV |
There is evidence indicating that the debtor is in severe financial difficulty and the debtor has no realistic prospect of recovery. |
Amount is written off |
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS
| 23. | Financial risk management (Continued) |
Credit risk (Continued)
The table below details the credit quality
of the Group’s financial assets, as well as maximum exposure to credit risk by credit risk rating categories:
| |
|
|
|
12-month or |
|
Gross
carrying
amount |
|
|
Loss
allowance |
|
|
Net
carrying
amount |
|
| |
|
Category |
|
lifetime ECL |
|
US$ |
|
|
US$ |
|
|
US$ |
|
| June 30, 2023 |
|
|
|
|
|
|
|
|
|
|
|
|
|
| Trade receivables |
|
III Note 1 |
|
Lifetime ECL (Simplified) |
|
|
- |
|
|
|
- |
|
|
|
- |
|
| Other receivables |
|
I Note 2 |
|
12-month ECL |
|
|
205,032 |
|
|
|
- |
|
|
|
205,032 |
|
| Amount due from related parties |
|
I Note 2 |
|
12-month ECL |
|
|
3,005,000 |
|
|
|
- |
|
|
|
3,005,000 |
|
| USDC |
|
I Note 3 |
|
12-month ECL |
|
|
1,030,885 |
|
|
|
- |
|
|
|
1,030,885 |
|
| Cash and cash equivalents |
|
I Note 4 |
|
12-month ECL |
|
|
98,162 |
|
|
|
- |
|
|
|
98,162 |
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| June 30, 2024 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Trade receivables |
|
III Note 1 |
|
Lifetime ECL (Simplified) |
|
|
6,090 |
|
|
|
- |
|
|
|
6,090 |
|
| Other receivables |
|
I Note 2 |
|
12-month ECL |
|
|
152,976 |
|
|
|
- |
|
|
|
152,976 |
|
| Amount due from related parties |
|
I Note 2 |
|
12-month ECL |
|
|
12,220,264 |
|
|
|
- |
|
|
|
12,220,264 |
|
| USDC |
|
I Note 3 |
|
12-month ECL |
|
|
643,437 |
|
|
|
- |
|
|
|
643,437 |
|
| Cash and cash equivalents |
|
I Note 4 |
|
12-month ECL |
|
|
4,899,343 |
|
|
|
- |
|
|
|
4,899,343 |
|
Trade receivables (Note 1)
For trade receivables, the Group has
applied the simplified approach in IFRS 9 and use provision matrix to measure the loss allowance at lifetime ECL. In determining ECL on
a collective basis, trade receivables are grouped based on similar credit risk and aging. The Group maintains an allowance for credit
losses on its receivable balances, which represents its best estimate of current expected credit losses over the contractual life of the
receivable balances. When evaluating the adequacy of its allowance for credit losses at each reporting period, the Group analyses receivable
balances with similar risk characteristics on a collective basis, considering factors such as the aging of receivable balances, payment
terms, historical loss experience, current information, and future expectations. At each reporting period, the Group reassesses whether
any receivable no longer shares similar risk characteristics and should instead be evaluated as part of another pool or on an individual
basis.
Based on the above assessment, the Group
has concluded that there has been no significant increase in the credit risk since the initial recognition of the receivables and determined
that the ECL is insignificant except for those recognized during the financial period
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS
| 23. | Financial risk management (Continued) |
Credit risk (Continued)
Other receivables and amount due
from related parties (Note 2)
Other receivables are considered
to be low credit risk and subject to immaterial credit loss. Credit loss for these assets have not increased significantly since
their initial recognition. Consequently, they are measured at the 12-month ECL.
USDC (Note 3)
USDC is considered to be low credit
risk and subject to immaterial credit loss as underlying reserve of USDC are held in cash, short-duration U.S. Treasuries, and overnight
U.S. Treasury repurchase agreements within segregated accounts for the benefits of USDC holder. Credit loss for these assets have not
increased significantly since their initial recognition. Consequently, they are measured at the 12-month ECL.
Cash and cash equivalents (Note 4)
Cash and cash equivalents are mainly
deposits with reputable banks with high international credit rating. Credit loss for the assets have not increased significantly since
their initial recognition. Consequently, they are measured at the 12-month ECL.
Excessive risk concentration
Concentrations arise when a number
of counterparties are engaged in similar business activities, or activities in the same geographical region, or have economic
features that would cause their ability to meet contractual obligations to be similarly affected by changes in economic, political
or other conditions. Concentrations indicate the relative sensitivity of the Group’s performance to developments affecting a
particular industry.
Exposure to credit risk
The Group does not have any significant
credit risk exposure to any single counterparty or any group of counterparties having similar characteristics except for outstanding trade
receivables from 1 customer which represent 100% of total trade receivables balance as at June 30, 2024.
Since the Company mainly maintains certain
of its digital assets in accounts with the third party custodian platform, the Company may be exposed to significant losses if the platform
experiences outages or becomes unavailable. To mitigate such risks, the Company only establishes accounts with the platform that have
a good reputation.
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS
| 23. | Financial risk management (Continued) |
Credit risk (Continued)
Liquidity risk
Liquidity risk refers to the risk that
the Group will encounter difficulties in meeting its short-term obligations due to shortage of funds. The Group’s exposure to liquidity
risk arises primarily from mismatches of the maturities of financial assets and liabilities. It is managed by matching the payment and
receipt cycles. The Group finances its working capital requirements through a combination of funds generated from operations, advances
and loans from related parties, if necessary.
In assessing our liquidity, we monitor
and analyze our cash and bank balances and our operating expenditure commitments. As of June 30, 2024, our cash and bank balances
amounted to approximately US$4,900,000, our current assets were approximately US$61,400,000, and our current liabilities were approximately
US$82,748,000.
Based on the above considerations, management
is of the opinion that the Group has sufficient funds to meet its working capital requirements and debt obligations, for at least the
next 12 months, taking into consideration undertaking from ultimate holding company and certain related companies not to demand repayment
of approximately US$39,791,000 until the Group has sufficient resources to repay. In addition, the ultimate holding company will waive
payables approximately US$37,738,000 upon the closing of the business combination with iClick Asia. In addition, the ultimate holding
company undertake and will continue to provide additional cash funding to ensure the Group will have sufficient working capital and to
meet its financial obligations for at least the next 12 months from the date of approval of these consolidated financial statements.
There are several factors that
could potentially arise that could undermine the Group’s plans, such as changes in the demand for its products, economic
conditions, its operating results continuing to deteriorate and its shareholders and related parties being unable to provide
continued financial support.
The Group maintains sufficient cash
and bank balances, internally generated cash flows, and advances/loans from ultimate holding company to finance their activities and management
is satisfied that funds are available to finance the operations of the Company.
Analysis of financial instruments
by remaining contractual maturities
The following table details the remaining
contractual maturity for non-derivative financial liabilities. The tables have been drawn up based on the undiscounted cash flows of financial
liabilities based on the earliest date on which the Group can be required to pay. The table includes both interest and principal
cash flows.
| | |
On demand or
within 1 year | | |
Within 2
to 5
years | | |
Total | |
| | |
US$ | | |
US$ | | |
US$ | |
| June 30, 2023 | |
| | | |
| | | |
| | |
| Trade and other payables | |
| 373,365 | | |
| - | | |
| 373,365 | |
| Lease liabilities | |
| 232,897 | | |
| 58,224 | | |
| 291,121 | |
| Amount due to related parties | |
| 24,669,407 | | |
| - | | |
| 24,669,407 | |
| Liabilities due to customers | |
| 21,668,924 | | |
| - | | |
| 21,668,924 | |
| | |
| 46,944,593 | | |
| 58,224 | | |
| 47,002,817 | |
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS
| 23. | Financial risk management (Continued) |
Liquidity risk (Continued)
| | |
On demand or
within 1 year | | |
Within 2 to 5
years | | |
Total | |
| | |
US$ | | |
US$ | | |
US$ | |
| June 30, 2024 | |
| | | |
| | | |
| | |
| Trade and other payables | |
| 947,836 | | |
| - | | |
| 947,836 | |
| Amount due to related parties | |
| 39,791,752 | | |
| - | | |
| 39,791,752 | |
| Liabilities due to customers | |
| 41,985,917 | | |
| - | | |
| 41,985,917 | |
| | |
| 82,725,505 | | |
| - | | |
| 82,725,505 | |
Market risk
Market risk is the risk that changes
in market prices, such as interest rates and foreign exchange rates will affect the Group’s profit or loss. The objective of market
risk management is to manage and control market risk exposures within acceptable parameters, while optimizing the return on risk.
Foreign currency risk
The Group’s foreign exchange risk
results mainly from cash flows from transactions denominated in foreign currencies. At present, the Group does not have any formal policy
for hedging against currency risk. The Group ensures that the net exposure is kept to an acceptable level by buying or selling foreign
currencies at spot rates, where necessary, to address short-term imbalances.
The Group has transactional
currency exposures arising from sales or purchases that are denominated in a currency other than the functional currency of the
entity, primarily Singapore Dollar (“SGD”).
At the end of each reporting period,
the Group’s exposure to foreign currency risk is as follows:
| | |
June 30, 2023 | | |
June 30, 2024 | |
| | |
SGD | | |
SGD | |
| | |
US$ | | |
US$ | |
| Financial assets | |
| | | |
| | |
| Trade and other receivables | |
| 234,047 | | |
| 159,175 | |
| Amount due from related parties | |
| - | | |
| 83,429 | |
| Assets held on behalf of customers | |
| 154,264 | | |
| 4,508 | |
| Cash and cash equivalents | |
| 48,029 | | |
| 114,110 | |
| | |
| 436,340 | | |
| 361,222 | |
| Financial liabilities | |
| | | |
| | |
| Trade and other payables | |
| (328,425 | ) | |
| (461,018 | ) |
| Lease liabilities | |
| (284,038 | ) | |
| - | |
| Liabilities due to customers | |
| (154,264 | ) | |
| (4,508 | ) |
| | |
| (766,727 | ) | |
| (465,526 | ) |
| | |
| | | |
| | |
| Net exposure | |
| (330,387 | ) | |
| (104,304 | ) |
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS
| 23. | Financial risk management (Continued) |
Market risk (Continued)
Foreign currency risk (Continued)
Strengthening of Singapore Dollar against
the United States Dollar as at the reporting date would increase/(decrease) profit or loss by the amounts shown below. The analysis assumes
that all other variables remain constant.
| | |
June 30, 2023 | | |
June 30, 2024 | |
| | |
US$ | | |
US$ | |
| USD strengthening 5% (2023: 5%) | |
| (16,519 | ) | |
| (5,215 | ) |
Weakening of Singapore Dollar against
the above currencies would have had an equal but opposite effect on the above currencies to the amounts shown above, on the basis that
all other variables remain constant.
As Hong Kong dollar is pegged to the
United States dollar, the Company considers the risk of movements in exchange rates between Hong Kong dollars and United States dollars
to be insignificant.
Digital assets price risk
Digital assets that the Company deals
within its trading activities are digital assets such as Bitcoin (“BTC”) and Ethereum (“ETH”) which can be traded
in a number of public exchanges.
The Group’s exposure to price
risk arises from digital assets and digital assets payables which are both measured on a fair value basis. In particular, the Group’s
operating result may depend upon the market price of BTC and ETH, as well as other digital assets. Digital asset prices have fluctuated
significantly from time to time. There is no assurance that digital asset prices will reflect historical trends.
The price risk of digital assets arising
from trading of digital assets business is partially offset by remeasurement of digital assets payables representing the obligations to
deliver digital assets held by the Group in the customers’ accounts to the customers under the respective trading arrangements with
the Group.
At the end of each reporting period,
the Group’s exposure risk to digital asset payable to related parties is as follows:
| | |
June 30, 2023 | | |
June 30, 2023 | | |
June 30, 2024 | | |
June 30, 2024 | |
| | |
BTC | | |
ETH | | |
BTC | | |
ETH | |
| | |
US$ | | |
US$ | | |
US$ | | |
US$ | |
| Financial assets | |
| | | |
| | | |
| | | |
| | |
| Digital assets | |
| 2,328,875 | | |
| 1,140,864 | | |
| 65,012 | | |
| 63,694 | |
| Digital assets receivable from customers | |
| 7,242,813 | | |
| 4,564,333 | | |
| 23,648,823 | | |
| 6,740,848 | |
| | |
| 9,571,688 | | |
| 5,705,197 | | |
| 23,713,835 | | |
| 6,804,542 | |
| Financial liabilities | |
| | | |
| | | |
| | | |
| | |
| Digital assets payables to customers | |
| (7,242,813 | ) | |
| (4,564,333 | ) | |
| (23,648,823 | ) | |
| (6,740,848 | ) |
| Digital assets payables to related parties | |
| (5,248,000 | ) | |
| (5,153,886 | ) | |
| (18,266,078 | ) | |
| (6,875,466 | ) |
| | |
| (12,490,813 | ) | |
| (9,718,219 | ) | |
| (41,914,901 | ) | |
| 13,616,314 | ) |
| | |
| | | |
| | | |
| | | |
| | |
| Net exposure | |
| (2,919,125 | ) | |
| (4,013,022 | ) | |
| (18,201,066 | ) | |
| (6,811,772 | ) |
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
| 23. | Financial risk management (Continued) |
Market risk (Continued)
Digital assets price risk (Continued)
Strengthening of BTC and ETH against
the USD as at the reporting date would increase/(decrease) profit or loss by the amounts shown below. The analysis assumes that all other
variables remain constant.
| | |
June 30, 2023 | | |
June 30, 2024 | |
| | |
US$ | | |
US$ | |
| BTC strengthening 30% (2023: 30%) | |
| (875,738 | ) | |
| (5,460,320 | ) |
| ETH strengthening 30% (2023: 30%) | |
| (1,203,907 | ) | |
| (2,043,532 | ) |
Weakening of BTC and ETH against the
USD would have had an equal but opposite effect on the above currencies to the amounts shown above, on the basis that all other variables
remain constant.
Risks associated with the storage
and protection of digital assets
The Group primarily stored its digital
assets with cryptocurrency custodians to facilitate customers deposits and withdrawals. Due to the lack of an insurance policy for its
digital assets, any disruptions or closures of cryptocurrency custodians, as well as potential cyber-attacks or thefts, could result in
substantial losses for the Group.
Investment risk related to trading
of digital assets
The Group follows a fully hedged strategy
for structured products. Each user-facing structured product is quoted by a related party and a spread is added before it is quoted to
clients. Therefore, there is no exposure to structured products.
| 24. |
Fair value of assets and liabilities |
Fair value measurement
The accounting standard regarding fair
value of financial instruments and related fair value measurements defines financial instruments and requires disclosure of the fair value
of financial instruments held by the Group.
The accounting standards define fair
value, establish a three-level valuation hierarchy for disclosures of fair value measurement and enhance disclosure requirements for fair
value measures. The three levels are defined as follow:
| ● | Level 1 – Quoted prices (unadjusted) in active market for identical assets or liabilities that the
Company can access at the measurement date |
| ● | Level 2 – Inputs other than quoted prices included within Level 1 that are observable for the asset
or liability, either directly or indirectly, and |
| ● | Level 3 – Unobservable inputs for the asset or liability. |
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS
| 24. | Fair value of assets and liabilities |
Fair value measurement (Continued)
Assets measured at fair value
The
following table shows an analysis of each class of assets measured at fair value at the reporting date:
| | |
Fair value measurements at the reporting date using | |
| | |
Quoted prices
in active
markets for
identical
instruments (Level 1) | | |
Significant
observable
inputs other
than quoted
prices (Level 2) | | |
Significant
unobservable
inputs (Level 3) | | |
Total | |
| | |
US$ | | |
US$ | | |
US$ | | |
US$ | |
| June 30,2024 | |
| | | |
| | | |
| | | |
| | |
| Financial assets: | |
| | | |
| | | |
| | | |
| | |
| Financial asset, FVPL | |
| - | | |
| - | | |
| 247,826 | | |
| 247,826 | |
| Derivative financial instruments | |
| - | | |
| 22,395 | | |
| - | | |
| 22,395 | |
| Digital assets | |
| 18,587,381 | | |
| - | | |
| 2,985,222 | | |
| 21,572,603 | |
| USDC | |
| 1,253,301 | | |
| - | | |
| - | | |
| 1,253,301 | |
| | |
| 19,840,682 | | |
| 22,395 | | |
| 3,233,048 | | |
| 23,096,125 | |
| | |
| | | |
| | | |
| | | |
| | |
| Financial liabilities: | |
| | | |
| | | |
| | | |
| | |
| Derivative financial instruments | |
| - | | |
| 22,395 | | |
| - | | |
| 22,395 | |
| | |
| | | |
| | | |
| | | |
| | |
| June 30,2023 | |
| | | |
| | | |
| | | |
| | |
| Financial assets: | |
| | | |
| | | |
| | | |
| | |
| Financial assets, FVPL | |
| - | | |
| - | | |
| 259,114 | | |
| 259,114 | |
| Derivative financial instruments | |
| - | | |
| 102,744 | | |
| - | | |
| 102,744 | |
| Digital assets | |
| 13,936,889 | | |
| - | | |
| - | | |
| 13,936,889 | |
| USDC | |
| 2,832,988 | | |
| - | | |
| - | | |
| 2,832,988 | |
| | |
| 16,769,877 | | |
| 102,744 | | |
| 259,114 | | |
| 17,131,735 | |
| | |
| | | |
| | | |
| | | |
| | |
| Financial liabilities: | |
| | | |
| | | |
| | | |
| | |
| Derivative financial instruments | |
| - | | |
| 102,744 | | |
| - | | |
| 102,744 | |
Financial assets, FVPL
The fair value measurement of the investment
in Signum Capital Investment VVC-Sub Fund (“Signum”) (Note 6) is based on the net asset value of Signum provided by the fund
administrator without adjustment. There have been no changes in the valuation techniques of the financial instrument during the financial
and prior financial year.
There were no transfers between Level
2 and 3 during the financial and prior financial year.
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS
| 24. | Fair value of assets and liabilities (Continued) |
Fair value measurement (Continued)
Derivative financial instruments
The fair value of the put and call option
is measured on a recurring basis by referencing to the spot price of underlying digital assets, which the Group considers to be a Level
2 fair value input.
Digital assets and USDC
Digital assets measured at fair value
less costs to sell. The digital assets are adjusted to fair value only when an impairment is recognised, or the underlying asset is held
for sale. Fair value is measured using the quoted price of the digital asset at the time its fair value is being measured, which is measured
on a daily basis. This valuation represents a Level 1 and 2 classification within the fair value hierarchy.
The principal market will be the market
with the greatest volume and level of activity for the digital assets which the Company holding the digital assets can access. In other
words, the principal market is the market predominantly used by the Company to transact its digital assets.
Assets and liabilities not measured
at fair value
Cash and cash equivalents, other
receivables and other payables
The carrying amount of these balances
approximate their fair value due to the short-term nature of these balances.
Trade receivables and trade payables
The carrying amount of these receivables
and payables approximate their fair value as they are subject to normal trade credit terms.
Lease liabilities and loans from
related parties
The carrying amount of these balances
approximate their fair value as they are subject to interest rates close to market rate of interest for similar arrangements with financial
institutions.
Operating segments are identified on
the basis of internal reports about components of the Group that are regularly reviewed by the Chief Executive Officers (“CEO”)
for the purpose of resource allocation and performance assessment. Segment results, assets and liabilities include items directly attributable
to a segment as well as those that can be allocated on a reasonable basis.
The Group operates in a single business
segment which is development of digital asset platform and provision of digital asset service and solutions. No operating segments have
been aggregated to form the following reportable operating segment.
Geographical information and major
customer
The Group’s non-current assets
are in Singapore.
AMBER DWM HOLDING LIMITED AND ITS SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL
STATEMENTS
| 25. | Segment reporting (Continued) |
The following table breaks down revenue
by geographic location of the Group’s revenue. The geographical location is based on the geographical location where customers is
located.
| | |
June 30, 2023 | | |
June 30, 2024 | |
| | |
US$ | | |
US$ | |
| Asia | |
| 215,793 | | |
| 1,218,711 | |
| North America | |
| 746,605 | | |
| 1,212,422 | |
| Africa | |
| 143,940 | | |
| 855,805 | |
| Europe | |
| 1,686 | | |
| 188,988 | |
| Others | |
| 3,337 | | |
| 72,287 | |
| | |
| 1,111,361 | | |
| 3,548,213 | |
The Group manages their capital to ensure
that the Group is able to continue as a going concern and maintain an optimal capital structure so as to maximize shareholder’s
value. The capital structure of the Group consists of equity attributable to owners of the Company, comprising issued share capital, reserves
and accumulated losses as presented in the consolidated statements of changes in equity.
The Group manages its capital structure
and makes adjustments to it, in light of changes in economic conditions. To maintain or adjust the capital structure, the Group may adjust
the dividend payment to shareholders, return capital to shareholders or issue new shares. The Group is not subject to any externally imposed
capital requirements. No changes were made in the objectives, policies or processes during the financial years ended June 30, 2023
and 2024.
| 27. | Events after reporting period |
The Company evaluated all events and
transactions that occurred after June 30, 2024 up through December 19, 2024, which is the date that these consolidated financial
statements are available to be issued, and there were no other material subsequent events that require disclosure in these consolidated
financial statements except below:
On July 2, 2024, the Company incorporated
Amber DWM Units Holding Limited, a company incorporated in Cayman Islands and subscribed for 1 ordinary share for a consideration of US$1.
On September 24, 2024, the Company
incorporated Amber Premium FZE, a company incorporated in UAE and subscribed for 1 ordinary share for a consideration of US$1.
On November 29, 2024, the Company
disposed its wholly-owned subsidiaries, Amber DWM Units Holding Limited and Amber Trading Alfa Limited to its ultimate holding company.
ANNEX H
Unaudited Pro Forma Consensed
Combined Financial Information
UNAUDITED PRO FORMA CONDENSED
COMBINED FINANCIAL INFORMATION
Defined terms included below shall have the
same meaning as terms defined and included elsewhere in this proxy statement and, if not defined in the proxy statement, in the Form 20-F
filed with the SEC on June 20, 2024.
Introduction
The following unaudited pro
forma condensed combined financial information present the combination of the financial information of iClick Interactive Asia Group Limited
(“iClick” or the “Company”) and Amber DWM Holding Limited (“Amber DWM”) adjusted to give effect to
the Business Combination. The unaudited pro forma condensed combined financial information should be read in conjunction with the accompanying
notes.
The unaudited pro forma condensed
combined financial information has been prepared in accordance with Article 11 of Regulation S-X. The Company and Amber DWM have
not had any historical relationship prior to the Business Combination. Accordingly, no pro forma adjustments were required to eliminate
activities between the companies.
The unaudited pro forma condensed
combined balance sheet combines the unaudited consolidated balance sheets of the Company as of June 30, 2024, with the audited consolidated
statements of financial position of Amber DWM as of June 30, 2024, giving effect to the Business Combination as if it had been consummated
on the balance sheet date.
The unaudited pro forma condensed
combined statements of comprehensive loss for the year ended December 31, 2023, combines the audited consolidated statements of comprehensive
loss of the Company for the year ended December 31, 2023 and the historical unaudited consolidated statements of profit or loss and
other comprehensive loss for the year ended December 31, 2023 of Amber DWM, giving effect to the Business Combination as if it had
been consummated on January 1, 2023.
The unaudited pro forma condensed
combined statement of comprehensive loss for the six months ended June 30, 2024, combines the unaudited consolidated statements of
comprehensive loss of the Company for the six months ended June 30, 2024 and the historical unaudited consolidated statements of
profit or loss and other comprehensive loss for the six months ended June 30, 2024 of Amber DWM, giving effect to the Business Combination
as if it had been consummated on January 1, 2024.
The unaudited pro forma condensed
combined balance sheet was derived from and should be read in conjunction with the following historical financial statements:
| · | the Company’s unaudited consolidated balance sheet as
of June 30, 2024, as file on Form 6-K furnished to the SEC on November 27, 2024. |
| · | Amber DWM’s audited consolidated statements of financial
position as of June 30, 2024, as included elsewhere in this report. |
The unaudited pro forma condensed
combined statement of comprehensive loss for the year ended December 31, 2023, has been prepared using the following:
| · | the Company’s audited consolidated statements of comprehensive
loss of the Company for the year ended December 31, 2023, in the Form 20-F filed with the SEC on June 20, 2024. |
| · | Amber DWM’s unaudited consolidated statements of profit
or loss and other comprehensive loss for the year ended December 31, 2023. |
The unaudited pro forma condensed
combined statement of comprehensive loss for the six months ended June 30, 2024, has been prepared using the following:
| · | the Company’s unaudited consolidated statements of comprehensive
loss of the Company for the six months ended June 30, 2024, as file on Form 6-K furnished to the SEC on November 27, 2024 |
| · | Amber DWM’s unaudited consolidated statements of profit
or loss and other comprehensive loss for the six months ended June 30, 2024. |
The unaudited pro forma condensed
combined financial information should be read in conjunction with the Company’s and Amber DWM’s financial statements and related
notes.
Description of the Business Combination
Pursuant to the agreement
and plan of merger, dated as of November 29, 2024 (the “Merger Agreement”) by and among the Company, Overlord Merger
Sub Ltd.("Merger Sub"), a Cayman Islands exempted company and a direct, wholly owned subsidiary of iClick and Amber DWM Holding
Limited ("Amber DWM"), a Cayman Islands exempted company and the holding entity of Amber Group's digital wealth management business,
known as Amber Premium ("Amber Premium"), Merger Sub will merge with and into Amber DWM, with Amber DWM continuing as the surviving
entity and becoming a wholly-owned subsidiary of the Company (the "Merger"), and the shareholders of Amber DWM will exchange
all of the issued and outstanding share capital of Amber DWM for a mixture of newly issued Class A and Class B ordinary shares
of the Company on the terms and conditions set forth therein in a transaction exempt from the registration requirements under the Securities
Act of 1933.
Pursuant to the Merger
Agreement, Amber DWM agrees to (i) acquire 100% of the equity interests in WhaleFin Markets Limited (“WhaleFin
HK”), a company incorporated in Hong Kong, from Amber Global Limited, a Cayman Islands exempted company, for a consideration
of US$1 (the “WhaleFin HK Equity Transfer”), and (b) cause its subsidiary Amber Premium FZE (“FZE”) to
assume all rights and obligations under all of the active customer contracts to which WhaleFin Technologies Limited
("WFTL") is a party (the “WFTL Assigned Contracts”) (the “WFTL Contract Assignment”, and
collectively with the WhaleFin HK Equity Transfer, the “DWM Asset Restructuring”). The completion of the DWM Asset
Restructuring is a condition to the completion of the Merger.
Following the consummation
and as a result of the Merger, Amber DWM's business will be wholly owned by the Company. Upon completion of the Merger, the Amber DWM
shareholders and iClick shareholders (including holders of ADSs), in each case, immediately prior to the Merger, will own approximately
90% and 10%, respectively, of the outstanding shares of the combined company, or 97% and 3% voting power, respectively.
For more information about
the Merger, please refer to the report on Form 6-K furnished to the SEC on November 29, 2024.
Accounting for the Business Combination
The Business Combination
will be accounted for as a reverse acquisition (reverse merger) in accordance with Generally Accepted Accounting Principles in the United
States (“U.S. GAAP”). Under this method of accounting, the Company will be treated as the “acquired” company for
financial reporting purposes. This determination was primarily based on the current shareholders of Amber DWM having a majority of the
voting power of the post-combination company, and the relative valuation of Amber DWM compared to the Company. Accordingly, for accounting
purposes, the Business Combination using the acquisition method of accounting in reverse acquisition will be treated as the equivalent
of Amber DWM issuing shares for the acquisition of the Company, accompanied by a recapitalization. Goodwill as of the balance sheet date
is measured as the excess of purchase consideration over the fair value of net tangible and identifiable intangible assets acquired. The
fair values assigned to the Company’s net tangible and identifiable intangible assets acquired and liabilities assumed are determined
by the net assets values of net tangible and identifiable intangible assets acquired and liabilities. The estimated fair values of these
assets acquired and liabilities assumed are considered preliminary. The final purchase consideration and the allocation of the purchase
consideration will differ from that reflected in the unaudited pro forma condensed combined financial information, and amounts would be
finalized following the completion of the acquisition.
Basis of Pro Forma Presentation
The historical financial
information has been adjusted to give pro forma effect to events that are related and/or directly attributable to the Business Combination,
are factually supportable, and as it relates to the unaudited pro forma condensed combined statement of comprehensive loss, are expected
to have a continuing impact on the results of the post-combination company. The adjustments presented on the unaudited pro forma condensed
combined financial statements have been identified and presented to provide relevant information necessary for an accurate understanding
of the post-combination company upon consummation of the Business Combination.
The unaudited pro forma
condensed combined financial information is for illustrative purposes only. The financial results may have been different had the companies
always been combined. You should not rely on the unaudited pro forma condensed combined financial information as being indicative of
the historical financial position and results that would have been achieved had the companies always been combined or the future financial
position and results that the post-combination company will experience. Amber DWM and the Company have not had any historical relationship
prior to the Business Combination. Accordingly, no pro forma adjustments were required to eliminate activities between the companies.
The shares outstanding and
weighted average shares outstanding as presented in the pro forma condensed combined financial statements includes re-designation of all
ICLK Class A Shares and ICLK Class B Shares in the authorized share capital of ICLK to be re-designated as New Ordinary Shares immediately
prior to the Effective Time, the issuance of 372,265,357 Class A Ordinary Shares of the Company and 36,318,335 Class B Ordinary Shares
of the Company to the shareholders of Amber DWM, which is calculated based on the number of outstanding ICLK equity securities as of November
29, 2024.
As a result of the Business
Combination and immediately following the closing of the Business Combination, shareholders of Amber DWM own approximately 90% of the
post-combination company outstanding ordinary shares, and the shareholders of the Company own approximately 10% of the outstanding post-combination
company ordinary shares.
PRO FORMA CONDENSED COMBINED BALANCE SHEET
AS OF JUNE 30, 2024
(UNAUDITED)
| (US$’000, except share data and per share data, or otherwise noted) | |
(A)
iClick Interactive Asia Group Limited | | |
(B)
Amber DWM Holding Limited | | |
Pro Forma
Combined | | |
Transaction
Accounting
Adjustments | | |
Note | |
Pro Forma
Combined | |
| Current Assets | |
| | | |
| | | |
| | | |
| | | |
| |
| | |
| Cash and cash equivalents | |
| 44,825 | | |
| 4,899 | | |
| 49,724 | | |
| 4,958 | | |
(1) | |
| 47,440 | |
| | |
| | | |
| | | |
| | | |
| (7,242 | ) | |
(2) | |
| | |
| Time deposits | |
| 123 | | |
| — | | |
| 123 | | |
| — | | |
| |
| 123 | |
| Restricted cash | |
| 25,291 | | |
| — | | |
| 25,291 | | |
| — | | |
| |
| 25,291 | |
| Financial assets at fair value through profits or loss | |
| — | | |
| 248 | | |
| 248 | | |
| — | | |
| |
| 248 | |
| Digital assets receivable from related parties | |
| — | | |
| — | | |
| — | | |
| 16,449 | | |
(1) | |
| 16,449 | |
| Digital assets held in segregated customer accounts | |
| — | | |
| — | | |
| — | | |
| 472,489 | | |
(1) | |
| 472,489 | |
| Funds held in segregated customer accounts | |
| — | | |
| — | | |
| — | | |
| 1,525 | | |
(1) | |
| 1,525 | |
| Short-term investments | |
| 2,147 | | |
| — | | |
| 2,147 | | |
| — | | |
| |
| 2,147 | |
| Amount due from an equity investee | |
| 6 | | |
| — | | |
| 6 | | |
| — | | |
| |
| 6 | |
| Accounts receivable, net of allowance for credit losses of US$1,558 as of June 30, 2024 | |
| 11,210 | | |
| 6 | | |
| 11,216 | | |
| 45,595 | | |
(1) | |
| 56,811 | |
| Rebate receivable | |
| 676 | | |
| — | | |
| 676 | | |
| — | | |
| |
| 676 | |
| Prepaid media costs | |
| 6,106 | | |
| — | | |
| 6,106 | | |
| — | | |
| |
| 6,106 | |
| Digital assets held | |
| — | | |
| 43,719 | | |
| 43,719 | | |
| 12,661 | | |
(1) | |
| 26,210 | |
| | |
| | | |
| | | |
| | | |
| (30,170 | ) | |
(5) | |
| | |
| Derivative financial instruments | |
| — | | |
| 22 | | |
| 22 | | |
| — | | |
| |
| 22 | |
| Other current assets, net of allowance for credit losses of US$nil as of June 30, 2024, respectively | |
| 6,878 | | |
| 12,485 | | |
| 19,363 | | |
| 35,327 | | |
(1) | |
| 43,811 | |
| | |
| | | |
| | | |
| | | |
| 833 | | |
(2) | |
| | |
| | |
| | | |
| | | |
| | | |
| (11,712 | ) | |
(5) | |
| | |
| Discontinued operations | |
| 54,454 | | |
| — | | |
| 54,454 | | |
| (54,454 | ) | |
(3) | |
| — | |
| Total current assets | |
| 151,716 | | |
| 61,379 | | |
| 213,095 | | |
| 486,259 | | |
| |
| 699,354 | |
| Non-current assets | |
| | | |
| | | |
| | | |
| | | |
| |
| | |
| Investment in an equity investee | |
| 182 | | |
| — | | |
| 182 | | |
| — | | |
| |
| 182 | |
| Other long-term investments | |
| 3,179 | | |
| — | | |
| 3,179 | | |
| — | | |
| |
| 3,179 | |
| Intangible assets, net | |
| — | | |
| 16,984 | | |
| 16,984 | | |
| — | | |
| |
| 16,984 | |
| Right-of-use assets, net | |
| 42 | | |
| — | | |
| 42 | | |
| — | | |
| |
| 42 | |
| Goodwill | |
| — | | |
| — | | |
| — | | |
| 26,946 | | |
(4) | |
| 26,946 | |
| Other assets | |
| 324 | | |
| — | | |
| 324 | | |
| 1,042 | | |
(2) | |
| 1,366 | |
| Discontinued operations | |
| 112 | | |
| — | | |
| 112 | | |
| (112 | ) | |
(3) | |
| — | |
| Total non-current assets | |
| 3,839 | | |
| 16,984 | | |
| 20,823 | | |
| 27,876 | | |
| |
| 48,699 | |
| Total assets | |
| 155,555 | | |
| 78,363 | | |
| 233,918 | | |
| 514,135 | | |
| |
| 748,053 | |
| | |
| | | |
| | | |
| | | |
| | | |
| |
| | |
| Liabilities and equity | |
| | | |
| | | |
| | | |
| | | |
| |
| | |
| Current liabilities | |
| | | |
| | | |
| | | |
| | | |
| |
| | |
| Accounts payable (including accounts payable of the consolidated variable interest entity (“VIE”) and its subsidiaries without recourse to the Company of US$666 as of June 30, 2024) | |
| 3,310 | | |
| 948 | | |
| 4,258 | | |
| — | | |
| |
| 4,258 | |
| Deferred revenue (including deferred revenue of the consolidated VIE and its subsidiaries without recourse to the Company of US$nil as of June 30, 2024) | |
| 7,570 | | |
| — | | |
| 7,570 | | |
| — | | |
(1) | |
| 7,570 | |
| Lending collateral due to clients | |
| — | | |
| — | | |
| — | | |
| 23,053 | | |
(1) | |
| 23,053 | |
| Liabilities due to customers | |
| — | | |
| 41,986 | | |
| 41,986 | | |
| 504,224 | | |
(1) | |
| 546,210 | |
| Accrued liabilities and other current liabilities (including accrued liabilities and other current liabilities of the consolidated VIE and its subsidiaries without recourse to the Company of US$786 as of June 30, 2024) | |
| 13,970 | | |
| 39,791 | | |
| 53,761 | | |
| 47,113 | | |
(1) | |
| 58,992 | |
| | |
| | | |
| | | |
| | | |
| (41,882 | ) | |
(5) | |
| | |
| Lease liabilities (including lease liabilities of the consolidated VIE and its subsidiaries without recourse to the Company of US$55 as of June 30, 2024) | |
| 736 | | |
| — | | |
| 736 | | |
| — | | |
| |
| 736 | |
| Bank borrowings (including bank borrowing of the consolidated VIE and its subsidiaries without recourse to the Company of US$1,951 as of June 30, 2024) | |
| 36,932 | | |
| — | | |
| 36,932 | | |
| — | | |
| |
| 36,932 | |
| Borrowing from externals | |
| — | | |
| — | | |
| — | | |
| 10,955 | | |
(1) | |
| 10,955 | |
| Derivative financial instruments | |
| — | | |
| 22 | | |
| 22 | | |
| — | | |
| |
| 22 | |
| Income tax payable (including income tax payable of the consolidated VIE and its subsidiaries without recourse to the Company of US$433 as of June 30, 2024) | |
| 1,554 | | |
| — | | |
| 1,554 | | |
| — | | |
| |
| 1,554 | |
| Discontinued operations | |
| 56,607 | | |
| — | | |
| 56,607 | | |
| (56,607 | ) | |
(3) | |
| — | |
| Total current liabilities | |
| 120,679 | | |
| 82,747 | | |
| 203,426 | | |
| 486,856 | | |
| |
| 690,282 | |
| Non-current liabilities | |
| | | |
| | | |
| | | |
| | | |
| |
| | |
| Lease liabilities (including lease liabilities of the consolidated VIE and its subsidiaries without recourse to the Company of US$22 as of June 30, 2024) | |
| 205 | | |
| — | | |
| 205 | | |
| — | | |
| |
| 205 | |
| Deferred tax liabilities (including deferred liabilities of the consolidated VIE and its subsidiaries without recourse to the Company of US$nil as of June 30, 2024) | |
| (12 | ) | |
| — | | |
| (12 | ) | |
| — | | |
| |
| (12 | ) |
| Accrued liabilities and other liabilities | |
| 28 | | |
| — | | |
| 28 | | |
| — | | |
| |
| 28 | |
| Discontinued operations | |
| 1,463 | | |
| — | | |
| 1,463 | | |
| (1,463 | ) | |
(3) | |
| — | |
| Total non-current liabilities | |
| 1,684 | | |
| — | | |
| 1,684 | | |
| (1,463 | ) | |
| |
| 221 | |
| Total liabilities | |
| 122,363 | | |
| 82,747 | | |
| 205,110 | | |
| 485,393 | | |
| |
| 690,503 | |
| Equity | |
| | | |
| | | |
| | | |
| | | |
| |
| | |
| Ordinary shares – Class A (1,191,000,000 shares authorized as of June 30, 2024; 417,663,545 shares issued and outstanding as of June 30, 2024, respectively) | |
| 39 | | |
| — | | |
| 39 | | |
| (39 | ) | |
(4) | |
| 418 | |
| | |
| | | |
| | | |
| | | |
| 418 | | |
(4) | |
| | |
| Ordinary shares – Class B (109,000,000 shares authorized as of June 30, 2024; 36,318,335 shares issued and outstanding as of June 30, 2024, respectively) | |
| 5 | | |
| — | | |
| 5 | | |
| (5 | ) | |
(4) | |
| 36 | |
| | |
| | | |
| | | |
| | | |
| 36 | | |
(4) | |
| | |
| Share Capital | |
| — | | |
| 13,500 | | |
| 13,500 | | |
| — | | |
| |
| 13,500 | |
| Treasury shares (218,396 shares as of June 30, 2024) | |
| (39 | ) | |
| — | | |
| (39 | ) | |
| 39 | | |
(4) | |
| — | |
| Additional paid-in capital | |
| 502,886 | | |
| — | | |
| 502,886 | | |
| (2,983 | ) | |
(2) | |
| 58,871 | |
| | |
| | | |
| | | |
| | | |
| 3,504 | | |
(3) | |
| | |
| | |
| | | |
| | | |
| | | |
| (502,886 | ) | |
(4) | |
| | |
| | |
| | | |
| | | |
| | | |
| (3,504 | ) | |
(4) | |
| | |
| | |
| | | |
| | | |
| | | |
| 61,854 | | |
(4) | |
| | |
| Capital reserve | |
| — | | |
| 6,074 | | |
| 6,074 | | |
| — | | |
| |
| 6,074 | |
| Statutory reserves | |
| 81 | | |
| — | | |
| 81 | | |
| (81 | ) | |
(4) | |
| — | |
| Accumulated other comprehensive losses | |
| (4,082 | ) | |
| — | | |
| (4,082 | ) | |
| 4,082 | | |
(4) | |
| — | |
| Accumulated deficit | |
| (467,032 | ) | |
| (23,958 | ) | |
| (490,990 | ) | |
| 3,659 | | |
(1) | |
| (22,683 | ) |
| | |
| | | |
| | | |
| | | |
| (2,384 | ) | |
(2) | |
| | |
| | |
| | | |
| | | |
| | | |
| 467,032 | | |
(4) | |
| | |
| Total iClick Interactive Asia Group Limited shareholders’ equity | |
| 31,858 | | |
| (4,384 | ) | |
| 27,474 | | |
| 28,742 | | |
| |
| 56,216 | |
| Non-controlling interests | |
| 1,334 | | |
| — | | |
| 1,334 | | |
| — | | |
| |
| 1,334 | |
| Total equity | |
| 33,192 | | |
| (4,384 | ) | |
| 28,808 | | |
| 28,742 | | |
| |
| 57,550 | |
| Total liabilities and equity | |
| 155,555 | | |
| 78,363 | | |
| 233,918 | | |
| 514,135 | | |
| |
| 748,053 | |
| (A) | Derived from the Company’s unaudited balance sheets of
June 30, 2024. |
| (B) | Derived from the audited consolidated statements of financial
position of Amber DWM Holding Limited of June 30, 2024. |
| (1) | Reflects the unaudited statements of financial position as of
June 30, 2024 for WFTL Contract Assignment. |
| (2) | Reflect the transaction costs expected to be incurred by the
Company, for legal, Merger & Acquisition consulting fee, accounting, advisory, and printing fees incurred as part of the Business
Combination. None of these fees has been incurred as of the pro forma balance sheet date. |
| (3) | To exclude the discontinued operations in the Company. |
| (4) | To reflect recapitalization of Amber DWM through (a) the
contribution of all share capital in Amber DWM to the Company, (b) the issuance of 408,583,692 Company's shares in connection with
the Business Combination, and (c) the excess of purchase consideration over the fair value of net tangible and identifiable intangible
assets acquired will be recorded as goodwill. |
| (5) | To eliminate the intercompany balances between Amber DWM Holding Limited and WFTL Contract Assignment. |
PRO FORMA CONDENSED COMBINED STATEMENT OF COMPREHENSIVE
LOSS
FOR THE YEAR ENDED DECEMBER 31, 2023
(UNAUDITED)
(US$’000, except share data and per
share data, or otherwise noted) | |
(A)
iClick Interactive
Asia Group
Limited | | |
(B)
Amber DWM
Holding Limited | | |
Transaction
Accounting
Adjustments | | |
Note |
| |
Pro Forma
Combined | |
| Net revenues – the Company | |
| 36,051 | | |
| — | | |
| — | | |
| |
| |
| 36,051 | |
| Net revenues – Amber DWM | |
| — | | |
| 2,756 | | |
| 8,020 | | |
| (1) |
| |
| 10,776 | |
| | |
| | | |
| | | |
| (72 | ) | |
| (2) |
| |
| (72 | ) |
| Cost of revenues | |
| (16,970 | ) | |
| (1,624 | ) | |
| (2,011 | ) | |
| (1) |
| |
| (20,605 | ) |
| | |
| — | | |
| — | | |
| 72 | | |
| (2) |
| |
| 72 | |
| Gross profit | |
| 19,081 | | |
| 1,132 | | |
| 6,009 | | |
| |
| |
| 26,222 | |
| Operating expenses | |
| | | |
| | | |
| | | |
| |
| |
| | |
| Research and development expenses | |
| (923 | ) | |
| (362 | ) | |
| (2,388 | ) | |
| (1) |
| |
| (3,673 | ) |
| Sales and marketing expenses | |
| (17,280 | ) | |
| (10 | ) | |
| (49 | ) | |
| (1) |
| |
| (17,339 | ) |
| General and administrative expenses | |
| (10,838 | ) | |
| (3,745 | ) | |
| (4,669 | ) | |
| (1) |
| |
| (19,252 | ) |
| Impairment of long-lived assets | |
| (1,310 | ) | |
| — | | |
| — | | |
| |
| |
| (1,310 | ) |
| Total operating expenses | |
| (30,351 | ) | |
| (4,117 | ) | |
| (7,106 | ) | |
| |
| |
| (41,574 | ) |
| Operating loss | |
| (11,270 | ) | |
| (2,985 | ) | |
| (1,097 | ) | |
| |
| |
| (15,352 | ) |
| Interest income | |
| 1,162 | | |
| — | | |
| — | | |
| |
| |
| 1,162 | |
| Interest expense | |
| (193 | ) | |
| (100 | ) | |
| — | | |
| |
| |
| (293 | ) |
| Other losses, net | |
| (2,299 | ) | |
| (94 | ) | |
| 14 | | |
| (1) |
| |
| (2,379 | ) |
| Unrealized change in fair value of digital assets - related party's loan | |
| — | | |
| (9,650 | ) | |
| — | | |
| (5) |
| |
| (9,650 | ) |
| Loss before share of loss from an equity investee and income tax expense | |
| (12,600 | ) | |
| (12,829 | ) | |
| (1,083 | ) | |
| |
| |
| (26,512 | ) |
| Share of loss from an equity investee | |
| (61 | ) | |
| — | | |
| — | | |
| |
| |
| (61 | ) |
| Income tax expense | |
| (658 | ) | |
| — | | |
| — | | |
| |
| |
| (658 | ) |
| Net loss from continuing operations | |
| (13,319 | ) | |
| (12,829 | ) | |
| (1,083 | ) | |
| |
| |
| (27,231 | ) |
| Net loss attributable to non-controlling interests | |
| 103 | | |
| — | | |
| — | | |
| |
| |
| 103 | |
| Net loss from continuing operations attributable to iClick Interactive Asia Group Limited’s ordinary shareholders | |
| (13,216 | ) | |
| (12,829 | ) | |
| (1,083 | ) | |
| |
| |
| (27,128 | ) |
| Discontinued Operations | |
| | | |
| | | |
| | | |
| |
| |
| | |
| Loss from operations of discontinued operations | |
| (25,562 | ) | |
| — | | |
| 25,562 | | |
| (3) |
| |
| — | |
| Income tax credit | |
| 11 | | |
| — | | |
| (11 | ) | |
| (3) |
| |
| — | |
| Net loss from discontinued operations | |
| (25,551 | ) | |
| — | | |
| 25,551 | | |
| |
| |
| — | |
| Net loss from discontinued operations attributable to non-controlling interests | |
| 77 | | |
| — | | |
| (77 | ) | |
| (3) |
| |
| — | |
| Net loss from discontinued operations attributable to iClick Interactive Asia Group Limited’s ordinary shareholders | |
| (25,474 | ) | |
| — | | |
| 25,474 | | |
| |
| |
| — | |
| Net loss | |
| (38,870 | ) | |
| (12,829 | ) | |
| 24,468 | | |
| |
| |
| (27,231 | ) |
| Net loss attributable to iClick Interactive Asia Group Limited’s ordinary shareholders | |
| (38,690 | ) | |
| (12,829 | ) | |
| 24,391 | | |
| |
| |
| (27,128 | ) |
| | |
| | | |
| | | |
| | | |
| |
| |
| | |
| Net loss from continuing operations | |
| (13,319 | ) | |
| (12,829 | ) | |
| (1,083 | ) | |
| |
| |
| (27,231 | ) |
| Other comprehensive loss: | |
| | | |
| | | |
| | | |
| |
| |
| | |
| Change in net retirement benefits plan – prior service cost | |
| (32 | ) | |
| — | | |
| — | | |
| |
| |
| (32 | ) |
| Foreign currency translation adjustment, net of US$nil tax | |
| (379 | ) | |
| — | | |
| — | | |
| |
| |
| (379 | ) |
| Comprehensive loss from continuing operations | |
| (13,730 | ) | |
| (12,829 | ) | |
| (1,083 | ) | |
| |
| |
| (27,642 | ) |
| Comprehensive loss attributable to non-controlling interests | |
| 156 | | |
| — | | |
| — | | |
| |
| |
| 156 | |
| Comprehensive loss from continuing operations attributable to iClick Interactive Asia Group Limited | |
| (13,574 | ) | |
| (12,829 | ) | |
| (1,083 | ) | |
| |
| |
| (27,486 | ) |
| | |
| | | |
| | | |
| | | |
| |
| |
| | |
| Net loss from discontinued operations | |
| (25,551 | ) | |
| — | | |
| 25,551 | | |
| |
| |
| — | |
| Other comprehensive income: | |
| | | |
| | | |
| | | |
| |
| |
| | |
| Foreign currency translation adjustment, net of US$nil tax | |
| 376 | | |
| — | | |
| (376 | ) | |
| (3) |
| |
| — | |
| Comprehensive loss from discontinued operations | |
| (25,175 | ) | |
| — | | |
| 25,175 | | |
| |
| |
| — | |
| Comprehensive loss from discontinued operations attributable to non-controlling interests | |
| 76 | | |
| — | | |
| (76 | ) | |
| (3) |
| |
| — | |
| Comprehensive loss from discontinued operations attributable to iClick Interactive Asia Group Limited’s ordinary shareholders | |
| (25,099 | ) | |
| — | | |
| 25,099 | | |
| |
| |
| — | |
| Comprehensive loss attributable to iClick Interactive Asia Group Limited | |
| (38,673 | ) | |
| (12,829 | ) | |
| 24,016 | | |
| |
| |
| (27,486 | ) |
| | |
| | | |
| | | |
| | | |
| |
| |
| | |
| Net loss from continuing operations per ADS attributable to iClick Interactive Asia Group Limited’s ordinary shareholders | |
| | | |
| | | |
| | | |
| |
| |
| | |
| — Basic | |
| (1.29 | ) | |
| | | |
| | | |
| |
| |
| (0.30 | ) |
| — Diluted | |
| (1.29 | ) | |
| | | |
| | | |
| |
| |
| (0.30 | ) |
| | |
| | | |
| | | |
| | | |
| |
| |
| | |
| Net loss from discontinued operations per ADS attributable to iClick Interactive Asia Group Limited’s ordinary shareholders | |
| | | |
| | | |
| | | |
| |
| |
| | |
| — Basic | |
| (2.49 | ) | |
| | | |
| | | |
| |
| |
| — | |
| — Diluted | |
| (2.49 | ) | |
| | | |
| | | |
| |
| |
| — | |
| | |
| | | |
| | | |
| | | |
| |
| |
| | |
| Net loss per ADS attributable to iClick Interactive Asia Group Limited’s ordinary shareholders | |
| | | |
| | | |
| | | |
| |
| |
| | |
| — Basic | |
| (3.78 | ) | |
| | | |
| | | |
| |
| |
| (0.30 | ) |
| — Diluted | |
| (3.78 | ) | |
| | | |
| | | |
| |
| |
| (0.30 | ) |
| | |
| | | |
| | | |
| | | |
| |
| |
| | |
| Weighted average number of ADS used in per share calculation: | |
| | | |
| | | |
| | | |
| |
| |
| | |
| — Basic | |
| 10,223,660 | | |
| | | |
| 81,716,738 | | |
| (4) |
| |
| 91,940,398 | |
| — Diluted | |
| 10,223,660 | | |
| | | |
| 81,716,738 | | |
| (4) |
| |
| 91,940,398 | |
| (A) | Derived from the Company’s audited consolidated statements
of comprehensive loss of the Company for the year ended December 31, 2023. |
| (B) | Derived from the unaudited consolidated statements of profit
or loss and other comprehensive loss for the year ended December 31, 2023 of Amber DWM Holding Limited. |
| (1) | Reflects the unaudited consolidated statements of profit or
loss and other comprehensive loss for the year ended December 31, 2023 for WFTL Contract Assignment. |
| (2) | To eliminate the intercompany transactions between Amber DWM
Holding Limited and WFTL Contract Assignment. |
| (3) | To exclude the discontinued operations in the Company. |
| (4) | The calculation of weighted average shares outstanding for basic
and diluted net loss per share assumes that the business combination occurred as of the earliest period presented. In addition, as the
Business Combination is being reflected as if it had occurred on this date, the calculation of weighted average shares outstanding for
basic and diluted net loss per share assumes that the shares have been outstanding for the entire period presented. This calculation
is retroactively adjusted to eliminate the number of shares redeemed in the Business Combinations for the entire period. |
The following summarizes the number
of Company Ordinary Shares outstanding (in ADS) at the Closing Date:
| | |
Actual Ownership | |
| Weighted average shares calculation, basic and diluted in ADS | |
| | |
| The Company's outstanding shares | |
| 10,223,660 | |
| Shares issued to Amber DWM's shareholders in Business Combination | |
| 81,716,738 | |
| Weighted average shares for EPS calculation, basic and diluted in ADS | |
| 91,940,398 | |
| Percentage of shares owned by existing shareholders of Amber DWM | |
| 89 | % |
| Percentage of shares owned by existing holders of the Company | |
| 11 | % |
| (5) | Represents the change in fair value of a related party loan during the fiscal year. The related party
loan is in cryptocurrency, unsecured, bearing interest at 3.00% per annum and repayable in 12 months term. It would be waived by the related
party prior to the Merger. |
PRO FORMA CONDENSED COMBINED STATEMENT OF COMPREHENSIVE
LOSS
FOR THE SIX MONTHS ENDED JUNE 30, 2024
(UNAUDITED)
(US$’000, except share data and per
share data, or otherwise noted) | |
(A)
iClick Interactive
Asia Group
Limited | | |
(B)
Amber DWM
Holding Limited | | |
Transaction
Accounting
Adjustments | | |
Note |
| |
Pro Forma
Combined | |
| Net revenues – the Company | |
| 14,220 | | |
| — | | |
| — | | |
| |
| |
| 14,220 | |
| Net revenues – Amber DWM | |
| — | | |
| 1,856 | | |
| 16,856 | | |
| (1) |
| |
| 18,712 | |
| | |
| | | |
| | | |
| (83 | ) | |
| (2) |
| |
| (83 | ) |
| Cost of revenues | |
| (6,124 | ) | |
| (1,069 | ) | |
| (5,640 | ) | |
| (1) |
| |
| (12,833 | ) |
| | |
| | | |
| | | |
| 83 | | |
| (2) |
| |
| 83 | |
| Gross profit | |
| 8,096 | | |
| 787 | | |
| 11,216 | | |
| |
| |
| 20,099 | |
| Operating expenses | |
| | | |
| | | |
| | | |
| |
| |
| | |
| Research and development expenses | |
| (311 | ) | |
| (245 | ) | |
| (2,734 | ) | |
| (1) |
| |
| (3,290 | ) |
| Sales and marketing expenses | |
| (4,381 | ) | |
| (5 | ) | |
| (40 | ) | |
| (1) |
| |
| (4,426 | ) |
| General and administrative expenses | |
| (7,704 | ) | |
| (3,675 | ) | |
| (4,971 | ) | |
| (1) |
| |
| (18,734 | ) |
| | |
| | | |
| | | |
| (2,384 | ) | |
| (5) |
| |
| | |
| Total operating expenses | |
| (12,396 | ) | |
| (3,925 | ) | |
| (10,129 | ) | |
| |
| |
| (26,450 | ) |
| Operating loss | |
| (4,300 | ) | |
| (3,138 | ) | |
| 1,087 | | |
| |
| |
| (6,351 | ) |
| Interest income | |
| 598 | | |
| — | | |
| — | | |
| |
| |
| 598 | |
| Interest expense | |
| (32 | ) | |
| (68 | ) | |
| — | | |
| |
| |
| (100 | ) |
| Other gains, net | |
| 2,560 | | |
| 93 | | |
| 38 | | |
| (1) |
| |
| 2,691 | |
| Unrealized change in fair value of digital assets - related party's loan | |
| — | | |
| (7,972 | ) | |
| — | | |
| (6) |
| |
| (7,972 | ) |
| Loss before share of loss from an equity investee and income tax expense | |
| (1,174 | ) | |
| (11,085 | ) | |
| 1,125 | | |
| |
| |
| (11,134 | ) |
| Share of loss from an equity investee | |
| (37 | ) | |
| — | | |
| — | | |
| |
| |
| (37 | ) |
| Income tax expense | |
| (58 | ) | |
| — | | |
| — | | |
| |
| |
| (58 | ) |
| Net loss from continuing operations | |
| (1,269 | ) | |
| (11,085 | ) | |
| 1,125 | | |
| |
| |
| (11,229 | ) |
| Net loss attributable to non-controlling interests | |
| 111 | | |
| — | | |
| — | | |
| |
| |
| 111 | |
| Net loss from continuing operations attributable to iClick Interactive Asia Group Limited’s ordinary shareholders | |
| (1,158 | ) | |
| (11,085 | ) | |
| 1,125 | | |
| |
| |
| (11,118 | ) |
| Discontinued Operations | |
| | | |
| | | |
| | | |
| |
| |
| | |
| Loss from operations of discontinued operations | |
| (7,666 | ) | |
| — | | |
| 7,666 | | |
| (3) |
| |
| — | |
| Income tax expense | |
| (23 | ) | |
| — | | |
| 23 | | |
| (3) |
| |
| — | |
| Gain on disposal of discontinued operations | |
| 2,585 | | |
| — | | |
| (2,585 | ) | |
| (3) |
| |
| — | |
| Net loss from discontinued operations | |
| (5,104 | ) | |
| — | | |
| 5,104 | | |
| |
| |
| — | |
| Net loss from discontinued operations attributable to non-controlling interests | |
| 32 | | |
| — | | |
| (32 | ) | |
| (3) |
| |
| — | |
| Net loss from discontinued operations attributable to iClick Interactive Asia Group Limited’s ordinary shareholders | |
| (5,072 | ) | |
| — | | |
| 5,072 | | |
| |
| |
| — | |
| Net loss | |
| (6,373 | ) | |
| (11,085 | ) | |
| 6,229 | | |
| |
| |
| (11,229 | ) |
| Net loss attributable to iClick Interactive Asia Group Limited’s ordinary shareholders | |
| (6,230 | ) | |
| (11,085 | ) | |
| 6,197 | | |
| |
| |
| (11,118 | ) |
| | |
| | | |
| | | |
| | | |
| |
| |
| | |
| Net loss from continuing operations | |
| (1,269 | ) | |
| (11,085 | ) | |
| 1,125 | | |
| |
| |
| (11,229 | ) |
| Other comprehensive loss: | |
| | | |
| | | |
| | | |
| |
| |
| | |
| Foreign currency translation adjustment, net of US$nil tax | |
| (13 | ) | |
| — | | |
| — | | |
| |
| |
| (13 | ) |
| Comprehensive loss from continuing operations | |
| (1,282 | ) | |
| (11,085 | ) | |
| 1,125 | | |
| |
| |
| (11,242 | ) |
| Comprehensive loss attributable to non-controlling interests | |
| 111 | | |
| — | | |
| — | | |
| |
| |
| 111 | |
| Comprehensive loss from continuing operations attributable to iClick Interactive Asia Group Limited | |
| (1,171 | ) | |
| (11,085 | ) | |
| 1,125 | | |
| |
| |
| (11,131 | ) |
| | |
| | | |
| | | |
| | | |
| |
| |
| | |
| Net loss from discontinued operations | |
| (5,104 | ) | |
| — | | |
| 5,104 | | |
| |
| |
| — | |
| Other comprehensive income/(loss): | |
| | | |
| | | |
| | | |
| |
| |
| | |
| Foreign currency translation adjustment, net of US$nil tax | |
| — | | |
| — | | |
| — | | |
| |
| |
| — | |
| Comprehensive loss from discontinued operations | |
| (5,104 | ) | |
| — | | |
| 5,104 | | |
| |
| |
| — | |
| Comprehensive loss from discontinued operations attributable to non-controlling interests | |
| 32 | | |
| — | | |
| (32 | ) | |
| (3) |
| |
| — | |
| Comprehensive loss from discontinued operations attributable to iClick Interactive Asia Group Limited’s ordinary shareholders | |
| (5,072 | ) | |
| — | | |
| 5,072 | | |
| |
| |
| — | |
| Comprehensive loss attributable to iClick Interactive Asia Group Limited | |
| (6,243 | ) | |
| (11,085 | ) | |
| 6,197 | | |
| |
| |
| (11,131 | ) |
| | |
| | | |
| | | |
| | | |
| |
| |
| | |
| Net loss from continuing operations per ADS attributable to iClick Interactive Asia Group Limited’s ordinary shareholders | |
| | | |
| | | |
| | | |
| |
| |
| | |
| — Basic | |
| (0.12 | ) | |
| | | |
| | | |
| |
| |
| (0.12 | ) |
| — Diluted | |
| (0.12 | ) | |
| | | |
| | | |
| |
| |
| (0.12 | ) |
| | |
| | | |
| | | |
| | | |
| |
| |
| | |
| Net loss from discontinued operations per ADS attributable to iClick Interactive Asia Group Limited’s ordinary shareholders | |
| | | |
| | | |
| | | |
| |
| |
| | |
| — Basic | |
| (0.51 | ) | |
| | | |
| | | |
| |
| |
| — | |
| — Diluted | |
| (0.51 | ) | |
| | | |
| | | |
| |
| |
| — | |
| | |
| | | |
| | | |
| | | |
| |
| |
| | |
| Net loss per ADS attributable to iClick Interactive Asia Group Limited’s ordinary shareholders | |
| | | |
| | | |
| | | |
| |
| |
| | |
| — Basic | |
| (0.63 | ) | |
| | | |
| | | |
| |
| |
| (0.12 | ) |
| — Diluted | |
| (0.63 | ) | |
| | | |
| | | |
| |
| |
| (0.12 | ) |
| | |
| | | |
| | | |
| | | |
| |
| |
| | |
| Weighted average number of ADS used in per share calculation: | |
| | | |
| | | |
| | | |
| |
| |
| | |
| — Basic | |
| 9,955,943 | | |
| | | |
| 81,716,738 | | |
| (4) |
| |
| 91,672,681 | |
| — Diluted | |
| 9,955,943 | | |
| | | |
| 81,716,738 | | |
| (4) |
| |
| 91,672,681 | |
| (A) | Derived from the Company’s unaudited consolidated statements
of comprehensive loss of the Company for the six months ended June 30, 2024. |
| (B) | Derived from the unaudited consolidated statements of profit
or loss and other comprehensive loss for the six months ended June 30, 2024 of Amber DWM Holding Limited. |
| (1) | Reflects the unaudited consolidated statements of profit or
loss and other comprehensive loss for the six months ended June 30, 2024 for WFTL Contract Assignment. |
| (2) | To eliminate the intercompany transactions between Amber DWM
Holding Limited and WFTL Contract Assignment. |
| (3) | To exclude the discontinued operations in the Company. |
| (4) | The calculation of weighted average shares outstanding for basic
and diluted net loss per share assumes that the business combination occurred as of the earliest period presented. In addition, as the
Business Combination is being reflected as if it had occurred on this date, the calculation of weighted average shares outstanding for
basic and diluted net loss per share assumes that the shares have been outstanding for the entire period presented. This calculation
is retroactively adjusted to eliminate the number of shares redeemed in the Business Combinations for the entire period. |
The following summarizes the number
of Company Ordinary Shares outstanding (in ADS) at the Closing Date:
| | |
Actual Ownership | |
| Weighted average shares calculation, basic and diluted in ADS | |
| | |
| The Company's outstanding shares | |
| 9,955,943 | |
| Shares issued to Amber DWM's shareholders in Business Combination | |
| 81,716,738 | |
| Weighted average shares for EPS calculation, basic and diluted in ADS | |
| 91,672,681 | |
| Percentage of shares owned by existing shareholders of Amber DWM | |
| 89 | % |
| Percentage of shares owned by existing holders of the Company | |
| 11 | % |
| (5) | Reflect the transaction costs expected to be incurred by the Company, for legal, Merger & Acquisition
consulting fee, accounting, advisory, and printing fees incurred as part of the Business Combination. |
| (6) | Represents the change in fair value of a related party loan during the fiscal year. The related party
loan is in cryptocurrency, unsecured, bearing interest at 3.00% per annum and repayable in 12 months term. It would be waived by the related
party prior to the Merger. |
COMPARATIVE
HISTORICAL AND UNAUDITED
PRO FORMA COMBINED PER SHARE FINANCIAL INFORMATION
The following table sets
forth summary historical comparative share information for the Company and Amber DWM, respectively, and unaudited pro forma condensed
combined per share information after giving effect to the Business Combination and other events contemplated by the Business Combination
Agreement presented under ordinary shares outstanding at the Closing Date:
The net loss per share calculated
using the historical weighted average shares outstanding, and the issuance of additional shares in connection with the Business Combination,
assuming the shares were outstanding since June 30, 2024.
This information is only
a summary and be read in conjunction with the historical financial statements of the Company and Amber DWM and related notes that are
included elsewhere in this report. The unaudited pro forma combined per share information of the Company and Amber DWM is derived from,
and should be read in conjunction with, the unaudited pro forma condensed combined financial statements and related notes included elsewhere
in this report.
The unaudited pro forma combined
loss per share information below does not purport to represent the earnings per share which would have occurred had the companies been
combined during the period presented, nor earnings per share for any future date or period. The unaudited pro forma combined book value
per share information below does not purport to represent what the value of the Company and Amber DWM would have been had the companies
been combined during the period presented.
| December 31, 2023 | |
Amber DWM
Holding Limited | | |
The Company | | |
Pro Forma
Combined | |
| Net loss from continuing operations attributable to ordinary shareholders (US$'000) | |
| (12,829 | ) | |
| (13,216 | ) | |
| (27,128 | ) |
| Shareholder's equity (US$'000) | |
| (3,800 | ) | |
| 37,125 | | |
| 53,297 | |
| Book value per ADS - basic and diluted (US$) | |
| (0.05 | ) | |
| 3.63 | | |
| 0.58 | |
| Basic and diluted weighted average shares outstanding in ADS | |
| 81,716,738 | | |
| 10,223,660 | | |
| 91,940,398 | |
| Basic and diluted net loss per share in ADS (US$) | |
| (0.16 | ) | |
| (1.29 | ) | |
| (0.30 | ) |
(1) Book
value per share = total equity/common shares outstanding in ADS
| June 30, 2024 | |
Amber DWM
Holding Limited | | |
The Company | | |
Pro Forma
Combined | |
| Net loss from continuing operations attributable to ordinary shareholders (US$'000) | |
| (11,085 | ) | |
| (1,158 | ) | |
| (11,118 | ) |
| Shareholder's equity (US$'000) | |
| (4,384 | ) | |
| 31,858 | | |
| 56,216 | |
| Book value per ADS - basic and diluted (US$) | |
| (0.05 | ) | |
| 3.20 | | |
| 0.61 | |
| Basic and diluted weighted average shares outstanding in ADS | |
| 81,716,738 | | |
| 9,955,943 | | |
| 91,672,681 | |
| Basic and diluted net loss per share in ADS (US$) | |
| (0.14 | ) | |
| (0.12 | ) | |
| (0.12 | ) |
(1) Book
value per share = total equity/common shares outstanding in ADS
iClick Interactive Asia (NASDAQ:ICLK)
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