As filed with the Securities and Exchange Commission on September 12, 2024.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
GDEV Inc.
(Exact name of registrant as specified in its charter)
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British Virgin Islands
(State or other jurisdiction of
incorporation or organization)
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Not applicable
(I.R.S. Employer
Identification Number)
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GDEV Inc.
55, Griva Digeni
3101, Limassol
Cyprus
Telephone: +35722580040
(Address and telephone number of Registrant’s principal executive offices)
Puglisi & Associates
850 Library Ave., Suite 204
Newark, DE 19711
Telephone: 302-738-6680
(Name, address, and telephone number of agent for service)
Copies of all correspondence to:
Denis Klimentchenko
Skadden, Arps, Slate, Meagher & Flom (UK) LLP
22 Bishopsgate
London EC2N 4BQ
England
+44(0) 20 7519 7289
Approximate date of commencement of proposed sale to the public: From time to time after this registration statement becomes effective.
If only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.C. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933. Emerging growth company ☒
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards† provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
†The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.
The information in this prospectus is not complete and may be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities nor does it seek an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED SEPTEMBER 12, 2024
PROSPECTUS
GDEV INC.
Up to 1,757,026
Ordinary Shares
We entered into a Controlled Equity OfferingSM Sales Agreement, or the Sales Agreement, with Cantor Fitzgerald & Co., or Cantor Fitzgerald, and Oppenheimer & Co. Inc., or Oppenheimer, and together with Cantor Fitzgerald, the Sales Agents, relating to our ordinary shares, no par value, offered by this prospectus. In accordance with the Sales Agreement, we may offer and sell up to 1,757,026 of our ordinary shares from time to time through the Sales Agents, all of which are currently held in treasury.
Our ordinary shares are listed on The Nasdaq Global Market (“Nasdaq”) under the symbol “GDEV.” On September 11, 2024, the last reported sale price of our ordinary shares as reported on Nasdaq was $27.27 per ordinary share.
Sales of our ordinary shares, if any, under this prospectus may be made in sales deemed to be an “at the market offering” as defined in Rule 415(a)(4) promulgated under the Securities Act of 1933, as amended, or the Securities Act. The Sales Agents are not required to sell any specific number or dollar amount of our ordinary shares, but will act as Sales Agents using commercially reasonable efforts consistent with their respective normal trading and sales practices, on mutually agreed terms between the Sales Agents and us. There is no arrangement for funds to be received in any escrow, trust or similar arrangement.
The Sales Agents will be entitled to a fixed compensation at a commission rate of 3.0% of the aggregate gross sales price per share sold by the Sales Agents under the Sales Agreement.
In connection with the sale of our ordinary shares on our behalf, each of the Sales Agents will be deemed to be an “underwriter” within the meaning of the Securities Act and the compensation of the Sales Agents will be deemed to be underwriting commissions or discounts. We have also agreed to provide indemnification and contribution to the Sales Agents with respect to certain liabilities, including liabilities under the Securities Act or the Exchange Act. See “Plan of Distribution” beginning on page 31 of this prospectus for additional information.
We are both an “emerging growth company” and a “foreign private issuer” as defined under the U.S. federal securities laws and, as such, may elect to comply with certain reduced public company disclosure and reporting requirements. See “Implications of Being an Emerging Growth Company and a Foreign Private Issuer” beginning on page 2 of this prospectus.
Investing in our ordinary shares involves a high degree of risk. For a discussion of information that should be considered in connection with an investment in our ordinary shares, see “Risk Factors” beginning on page 5 of this prospectus and the risk factors contained in any document incorporated by reference in this prospectus and any applicable prospectus supplement.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
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Cantor
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Oppenheimer & Co.
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The date of this prospectus is , 2024
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement on Form F-3 filed with the SEC using a “shelf” registration process for the delayed offering and sale of securities pursuant to Rule 415 under the Securities Act, and relates to the offering of our ordinary shares. This prospectus includes important information about us, the ordinary shares issued and held by us in treasury and other information you should know before investing.
If there is any inconsistency between the information contained or incorporated by reference in this prospectus and any prospectus supplement, you should rely on the information contained in that particular prospectus supplement. This prospectus does not contain all of the information provided in the registration statement that we filed with the SEC. You should read this prospectus together with the additional information about us described in the section below entitled “Where You Can Find More Information.” You should rely only on information contained or incorporated by reference in this prospectus and any applicable prospectus supplement. We have not, and the Sales Agents have not, authorized anyone to provide you with information different from that contained or incorporated by reference in this prospectus, any prospectus supplement or any free writing prospectus that we may authorize to be delivered or made available to you.
The information contained in this prospectus, any document incorporated by reference in this prospectus and any applicable prospectus supplement is accurate only as of their respective dates, regardless of the time of delivery of this prospectus, any document incorporated by reference in this prospectus or any applicable prospectus supplement, or the sale of any securities offered hereby. You should not assume that the information contained in this prospectus, any document incorporated by reference in this prospectus or any applicable prospectus supplement is accurate as of any other date. Our business, financial condition, results of operations and prospects may have changed since those dates.
We further note that the representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any document that is incorporated by reference herein were made solely for the benefit of the parties to such agreement, including, in some cases, for the purpose of allocating risk among the parties to such agreements, and should not be deemed to be a representation, warranty or covenant to you. Moreover, such representations, warranties or covenants were accurate only as of the date when made. Accordingly, such representations, warranties and covenants should not be relied on as accurately representing the current state of our affairs.
This prospectus does not constitute an offer to sell or the solicitation of an offer to buy any ordinary shares other than the ordinary shares described in this prospectus. The ordinary shares offered by this prospectus are being offered only in jurisdictions where the offer is permitted.
Except as otherwise set forth in this prospectus, we have not taken any action to permit a public offering of these ordinary shares outside the United States or to permit the possession or distribution of this prospectus outside the United States. Persons outside the United States who come into possession of this prospectus must inform themselves about and observe any restrictions relating to the offering of these ordinary shares and the distribution of this prospectus outside the United States.
Unless otherwise stated or the context otherwise requires, all references to the “Company,” “we,” “us” or “our” refer to the business of GDEV Inc., together with its consolidated subsidiaries as a consolidated entity, and references to the “Issuer” refer solely to GDEV Inc. as a standalone company.
SELECTED DEFINITIONS
The following terms used in this document are defined below, unless the context otherwise requires:
“2021 ESOP” means the Company’s 2021 Employee Stock Option Plan adopted by the Company’s board of directors on November 16, 2021.
“Bookings” means sales contracts generated from in-game purchases and advertising in a given period.
“Business Combination Agreement” means the Business Combination Agreement, dated as of January 31, 2021, as amended on July 17, 2021 and August 11, 2021, by and among Kismet, the Issuer, the Sponsor, solely in its capacity as Kismet’s representative, Nexters Global, Fantina Holdings Limited, a private limited liability company domiciled in Cyprus, solely in its capacity as the Company Shareholders representative, and the shareholders of Nexters Global party thereto.
“BVI” means British Virgin Islands.
“Cohort” means a group of users or players who share common characteristics. In the context of user cohort analysis, it is usually used in respect of the group of players with a similar acquisition date.
“Companies Act” means the BVI Business Companies Act, 2004 (as amended).
“Company” means GDEV Inc. (formerly, Nexters Inc.), a British Virgin Islands business company, and its consolidated subsidiaries.
“Company Shareholders” means the shareholders of Nexters Global prior to the closing of the Transactions.
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.
“GDEV” means GDEV Inc. (formerly, Nexters Inc.), a British Virgin Islands business company.
“IPO” means Kismet’s initial public offering of Kismet units, consummated on August 10, 2020.
“Kismet” means, prior to the Transactions, Kismet Acquisition One Corp, a company incorporated under the laws of the British Virgin Islands.
“Nasdaq” means the Nasdaq Global Market.
“Nexters Global” means Nexters Global Ltd., a private limited liability company domiciled in Cyprus, and its consolidated subsidiaries.
“PIPE” means the issuance and sale of newly issued ordinary shares of the Issuer to the certain investors in private placements outside the United States in reliance on Regulation S under the Securities Act consummated substantially concurrently with the closing of the Transactions.
“Sales Agents” means Cantor Fitzgerald & Co and Oppenheimer & Co. Inc.
“SEC” means the U.S. Securities Exchange Commission.
“Securities Act” means the U.S. Securities Act of 1933, as amended.
“Sponsor” means Kismet Sponsor Limited, a British Virgin Islands business company.
“Transactions” means the transactions contemplated by the Business Combination Agreement, including, unless the context otherwise requires, the PIPE subscription financing.
PRESENTATION OF FINANCIAL INFORMATION
Our consolidated financial statements are presented in U.S. dollars and have been prepared in accordance with International Financial Reporting Standards as issued by the International Accounting Standards Board. We have made rounding adjustments to some of the figures included in this prospectus. Accordingly, any numerical discrepancies in any table between totals and sums of the amounts listed are due to rounding.
KEY PERFORMANCE METRICS
Throughout this prospectus, we provide a number of key performance metrics used by our management to manage our business. Our key performance metrics include the following:
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“Bookings,” defined as sales contracts generated from in-game purchases and advertising in a given period.
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“Monthly Active Users,” or “MAUs,” defined as the number of individuals who played a particular game in a calendar month.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains (and any document incorporated by reference in this prospectus may contain, and any prospectus supplement, may contain) certain “forward-looking statements” for purposes of the federal securities laws. Forward-looking statements include, but are not limited to, statements with respect to (i) our revenues, Bookings, performance, strategies, plans, prospects, forecasts and other aspects of our business, (ii) trends in the gaming industry, (iii) our target cohorts and user and the expected arrangement with them, (iv) our projected growth opportunities, including relative to our competitors and (v) other statements regarding our expectations, hopes, beliefs, intentions or strategies regarding the future.
Such statements are based on current expectations that are subject to risks and uncertainties. In addition, any statements that refer to projections, forecasts or other characterizations of future events or circumstances, including any underlying assumptions, are forward-looking statements. The words “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “intend,” “may,” “might,” “plan,” “possible,” “potential,” “predict,” “project,” “should,” “would” and similar expressions may identify forward-looking statements, but the absence of these words does not mean that a statement is not forward-looking. The forward-looking statements contained or incorporated by reference in this prospectus and contained in any prospectus supplement are based on our current expectations and beliefs concerning future developments and their potential effects on us. There can be no assurance that future developments affecting us will be those that we have anticipated. Forward-looking statements involve a number of risks, uncertainties (some of which are beyond our control) or other assumptions. Many factors could cause actual results or performance to be materially different from those expressed or implied by the forward-looking statements contained or incorporated by reference in this prospectus and contained in any prospectus supplement, including among other things:
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our ability to implement business plans, forecasts, and other expectations, and identify and realize additional opportunities;
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our ability to enhance our product offering and monetization techniques to achieve significant customer lifetime value;
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our ability to improve and expand available traffic channels as well as open and utilize new ones to effectively acquire paying users;
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changes in general economic or political conditions in the countries or regions in which we operate;
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changes, conditions or effects that generally affect the mobile game industry;
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our potential inability to achieve our projected Bookings growth and build the scale of our platform;
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our potential inability to maintain our current revenue stream and our relationships with players and advertisers;
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our potential inability to execute our M&A strategy;
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the enforceability of our intellectual property and protection of our proprietary information;
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the risk to our business, operations and plans if internal processes and information technology systems are not properly maintained and risks associated with our operational reliance on third parties, including third-party platforms and infrastructure;
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the risk to our business, operations and plans from cyber-attacks or other privacy or data security incidents;
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the ability to maintain the listing of our securities on a recognized securities exchange;
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changes in the competitive and regulated industries in which we operate, variations in operating performance across competitors, changes in laws and regulations (including data privacy, cybersecurity and tax laws and regulations) affecting our business and changes in our capital structure;
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the risk of downturns and a changing regulatory landscape in the highly competitive industry in which we operate;
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the effect of global epidemics and contagious disease outbreaks, including COVID-19, and public perception thereof;
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our plans relating to this “at the market offering” and the use of proceeds, if any, from the offering hereunder;
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volatility in the price of our securities, including as a result of sales of substantial number of shares into the public market by holders of our securities; and
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the other matters described in the section titled “Risk Factors.”
The foregoing list of factors is not exhaustive. The forward-looking statements contained or incorporated by reference in this prospectus and contained in any prospectus supplement are based on our current expectations and beliefs concerning future developments and their potential effects on us. There can be no assurance that future developments affecting us will be those that we have anticipated. These forward-looking statements involve a number of risks, uncertainties (some of which are beyond our control) or other assumptions that may cause actual results or performance to be materially different from those expressed or implied by these forward-looking statements. These risks and uncertainties include, but are not limited to, those factors described under the heading “Risk Factors.” Should one or more of these risks or uncertainties materialize, or should any of the assumptions prove incorrect, actual results may vary in material respects from those projected in these forward-looking statements. Some of these risks and uncertainties may in the future be amplified by any global pandemic and there may be additional risks that we consider immaterial or which are unknown. It is not possible to predict or identify all such risks. We will not and do not undertake any obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as may be required under applicable securities laws.
You should read this prospectus, any document incorporated by reference in this prospectus, any applicable prospectus supplement, and the documents that we reference in this prospectus and have filed with the SEC as exhibits to the registration statement of which this prospectus is a part with the understanding that our actual future results, levels of activity, performance and events and circumstances may be materially different from what we expect.
PROSPECTUS SUMMARY
This summary highlights selected information contained elsewhere in this prospectus or incorporated by reference in this prospectus. This summary does not contain all of the information you should consider before investing in our securities. Before making an investment decision, you should read this entire prospectus (as supplemented or amended) carefully, especially “Risk Factors” and the financial statements and related notes thereto, and the other information incorporated by reference in this prospectus. Some of the statements in this prospectus constitute forward-looking statements that involve risks and uncertainties. See “Cautionary Note Regarding Forward-Looking Statements” for more information.
Unless otherwise stated or the context otherwise requires, all references in this subsection to the “Company,” “we,” “us” or “our” refer to the business of GDEV Inc., together with its consolidated subsidiaries as a consolidated entity, and references to the “Issuer” refer solely to GDEV Inc. as a standalone company.
The Company
We build mobile, web and social games for millions of players to enjoy globally. We are one of the top five independent mobile game developers in Europe (excluding developers owned and controlled by other companies active in the gaming market) based on in-game purchases in 2023, net of platform fees, according to data provided by data.ai. Our games are free to play, and we continuously innovate our games to provide novel, curated in-game content to our users at optimal points in their game journeys.
Our core product offering, Hero Wars, offers a suite of games across mobile, social and web-based platforms and has, since its launch in 2016, evolved into a well-recognized global gaming franchise in the RPG (role-playing game) genre, with 6.3 million MAUs across more than 70 countries in the first half of 2024.
Since our formation over a decade ago, we have developed a sizeable built-to-scale platform, enabling us to streamline content development and offering a value-enhancing opportunity for our new and existing games. In 2022, we entered into agreements to acquire four separate gaming studios to expand our portfolio of midcore games, enlarge our player base and expand into new genres. We plan to further expand gameplays within our current products as well as work towards new game offerings.
Our headquarters are in Cyprus. As of June 30, 2024, we had 655 employees. Our revenue for the first half of 2024 and the years ended December 31, 2023 and 2022 was $212.8 million, $464.5 million and $479.7 million, respectively, and our Bookings for the same periods were $216.2 million, $421.6 million and $449.4 million, respectively. We recorded net cash flows generated from operating activities of $11.7 million, $17.9 million and $116.1 million for the first half of 2024 and years ended December 31, 2023 and 2022, respectively. Our total comprehensive income net of tax for the first half of 2024 and years ended December 31, 2023 and 2022 was $13.9 million, $48.0 million and $10.7 million, respectively.
Continuous improvements in game content and focus on customer engagement has allowed us to monetize on the popularity of our games and achieve attractive key performance metrics. In particular, between 2018 and 2021, we achieved 13 times’ growth in Bookings and as of December 31, 2022, our cumulative all time Bookings crossed the $1.5 billion mark. We benefit from predictable cohorts and a loyal base of core players, which supports our ability to sustain our monetization per user. In the year ended December 31, 2023, cohorts from previous periods accounted for 72% of our Bookings for our core product, Hero Wars.
Further details concerning our business, including information with respect to our assets, operations and development history, are provided in our 2023 Annual Report and the other documents incorporated by reference into this prospectus. See “Documents Incorporated by Reference.” You are encouraged to thoroughly review the documents incorporated by reference into this prospectus as they contain important information concerning our business and our prospects.
Corporate Information
GDEV Inc. (formerly, Nexters Inc.), “GDEV” or the “Issuer”, is a business company incorporated under the laws of the British Virgin Islands on January 27, 2021. GDEV was formed for the sole purpose of effectuating the Transactions contemplated by the Business Combination Agreement, including the
merger of Kismet Acquisition One Corp. (“Kismet”) into the Issuer and the acquisition by the Issuer of all the issued and outstanding share capital of Nexters Global Ltd. (“Nexters Global”). The Transactions were consummated on August 26, 2021.
Prior to the Transactions, GDEV had no material assets and did not conduct any material activities other than those incidental to its formation and the matters contemplated by the Business Combination Agreement, such as the making of certain required securities law filings. Upon the closing of the Transactions, the Issuer became the direct parent of Nexters Global, a developer of mobile, web, and social games.
On June 21, 2023, GDEV filed a Certificate of Name Change with the Registrar of Corporate Affairs of the British Virgin Islands to change its name from “Nexters Inc.” to “GDEV Inc.” The name change was effective as of the date of filing of the Certificate of Name Change. The name change reflects the evolution of the Company as a holding company focused on the growth of its diversified portfolio of studios and franchises.
On August 8, 2024, the board of directors of GDEV approved a 1-to-10 reverse share split of the Company’s ordinary shares, which became effective on August 28, 2024.
GDEV’s ordinary shares continue to trade on Nasdaq as “GDEV”, under a different CUSIP and ISIN number after the reverse share split.
The principal executive office of GDEV is 55, Griva Digeni, 3101, Limassol, Cyprus, and the telephone number of GDEV is +35722580040. The website address of GDEV is: https://gdev.inc. The information contained on the website does not form a part of, and is not incorporated by reference into, this prospectus.
Implications of Being an Emerging Growth Company and a Foreign Private Issuer
We qualify as an “emerging growth company” pursuant to the Jumpstart Our Business Startups Act of 2012, as amended (the “JOBS Act”). An emerging growth company may take advantage of specified exemptions from various requirements that are otherwise applicable generally to U.S. public companies.
These provisions include:
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reduced executive compensation disclosure;
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exemptions from the requirements of holding a non-binding advisory vote on executive compensation and any golden parachute payments not previously approved;
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an exemption from compliance with the requirement of the Public Company Accounting Oversight Board regarding the communication of critical audit matters in the auditor’s report on the financial statements; and
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an exemption from the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”) in the assessment of the emerging growth company’s internal control over financial reporting.
We may choose to take advantage of some but not all of these reduced reporting burdens.
We will remain an emerging growth company until the earliest of:
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the last day of our fiscal year during which we have total annual revenue of at least $1.235 billion;
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the last day of our fiscal year following the fifth anniversary of the closing of the Business Combination;
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the date on which we have, during the previous three-year period, issued more than $1.0 billion in non-convertible debt securities; or
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the date on which we are deemed to be a “large accelerated filer” under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), which would occur if the market value of our ordinary shares that are held by non-affiliates exceeds $700 million as of the last business day of our most recently completed second fiscal quarter.
In addition, we report under the Exchange Act as a “foreign private issuer.” As a foreign private issuer, we may take advantage of certain provisions under the rules that allow us to follow BVI law for certain corporate governance matters. Even after we no longer qualify as an emerging growth company, as long as we qualify as a foreign private issuer under the Exchange Act, we will be exempt from certain provisions of the Exchange Act that are applicable to U.S. domestic public companies, including:
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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 share ownership and trading activities and liability for insiders who profit from trades made in a short period of time;
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the rules under the Exchange Act requiring the filing with the U.S. Securities and Exchange Commission (the “SEC”) of quarterly reports on Form 10-Q containing unaudited financial and other specified information, or current reports on Form 8-K, upon the occurrence of specified significant events; and
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Regulation Fair Disclosure (“Regulation FD”), which regulates selective disclosures of material information by issuers.
Foreign private issuers, like emerging growth companies, also are exempt from certain more stringent executive compensation disclosure rules. Thus, if we remain a foreign private issuer, even if we no longer qualify as an emerging growth company, we will continue to be exempt from the more stringent compensation disclosures required of public companies that are neither an emerging growth company nor a foreign private issuer.
We may take advantage of these exemptions until such time as we are no longer a foreign private issuer. We are required to determine our status as a foreign private issuer on an annual basis at the end of our second fiscal quarter. We would cease to be a foreign private issuer at such time as more than 50% of our outstanding voting securities are held by U.S. residents and any of the following three circumstances applies:
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the majority of our executive officers or directors are U.S. citizens or residents;
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more than 50% of our assets are located in the United States; or
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our business is administered principally in the United States.
Recent Developments
Reverse share split
On August 21, 2024, the Group announced a one-for-ten (1:10) reverse share split of its ordinary shares, no par value per ordinary share (the “Reverse Share Split”). The Reverse Share Split was effective on August 28, 2024. The Company’s ordinary shares began trading on a split-adjusted basis on August 29, 2024.
PROSPECTUS SUMMARY
The summary below describes the principal terms of the offering. The “Description of Securities” section of this prospectus contains a more detailed description of our ordinary shares.
Any investment in the ordinary shares offered hereby is speculative and involves a high degree of risk. You should carefully consider the information set forth under “Risk Factors” of this prospectus and the risk factors contained in the other documents that are filed after the date hereof and incorporated by reference in this prospectus or contained in any applicable supplement.
Ordinary shares offered by us
Up to 1,757,026 of our ordinary shares, no par value, all of which are currently held in treasury.
Ordinary shares to be outstanding immediately after this offering
Up to 19,863,397 ordinary shares of no par value, assuming the full sale of 1,757,026 ordinary shares in this offering. The total number of ordinary shares to be sold will not vary depending on the sales price under this offering.
“At the market offering” that may be made from time to time through our Sales Agents, Cantor Fitzgerald and Oppenheimer. See “Plan of Distribution” on page 31.
We intend to use the net proceeds from this offering primarily for general corporate purposes, including working capital. See “Use of Proceeds” on page 9 of this prospectus for more information.
Investing in our ordinary shares involves a high degree of risk. See “Risk Factors” on page 4, and other information included or incorporated by reference in this prospectus and any applicable prospectus supplement for a discussion of factors you should carefully consider before deciding to invest in our ordinary shares.
Transfer agent and Registrar
The transfer agent and registrar for our ordinary shares is Continental Stock Transfer & Trust Company. The transfer agent’s address is 1 State Street, 30th Floor, New York, New York 10004-1561, and its telephone number is +1 212 857 7565.
Nasdaq Global Market Symbol
GDEV
The number of our ordinary shares that will be outstanding immediately after this offering as shown above is based on 19,863,397 shares issued and outstanding as of June 30, 2024, and excludes the following as of that date: (i) 2,024,999 ordinary shares issuable upon exercise of our 20,249,993 outstanding warrants, (ii) the 12,000 ordinary shares that may be issued as a consequence of the exercise of the options granted to Kismet’s former independent director, and (iii) the ordinary shares that may be issued under our 2021 ESOP.
Unless indicated otherwise, all share and per share amounts in this prospectus give effect to the Reverse Share Split we effected on August 28, 2024.
For the avoidance of doubt, the units sold in the IPO, including all related numbers, which are referred to in this prospectus are not adjusted to give effect to the Reverse Share Split.
RISK FACTORS
Before making an investment decision in our ordinary shares, you should carefully consider the risks described in our most recent Annual Report on Form 20-F incorporated by reference into this prospectus, as well as the risk factors contained in the other documents that are filed after the date hereof and incorporated by reference in this prospectus or contained in any applicable supplement. Additional risks not presently known to us or that we currently deem immaterial may also impair our business operations. Our business, financial condition or results of operations could be materially and adversely affected by any of these risks. The trading price and value of our ordinary shares could decline due to any of these risks, and you may lose all or part of your investment.
This prospectus also contains forward-looking statements that involve risks and uncertainties. Our actual results could differ materially from those anticipated in these forward-looking statements as a result of certain factors, including the risks faced by us described below and elsewhere in this prospectus.
Risks Related to this Offering
If you purchase our ordinary shares sold in this offering, you will experience immediate and substantial dilution in the net tangible book value of your ordinary shares. In addition, we may issue additional equity or convertible debt securities in the future, which may result in additional dilution to investors.
The offering price per ordinary share exceeds the net tangible book value per share of our outstanding ordinary shares. As a result, investors purchasing ordinary shares in this offering may experience immediate and substantial dilution in the net tangible book value of the shares they purchase. For a more detailed discussion of the foregoing, see the section entitled “Dilution” in this prospectus.
Furthermore, to the extent we need to raise additional capital in the future we may issue additional equity or convertible debt securities which may dilute our existing shareholders’ holdings and the new securities may have rights senior to those of our ordinary shares offered in this offering. In accordance with our Amended and Restated Memorandum and Articles of Association, we are authorized to issue an unlimited number of ordinary shares, and existing shareholders will have no pre-emptive rights in connection with such further issuances. We cannot predict the size or nature of future issuances or the effect that future issuances and sales of our ordinary shares will have on the market price of our ordinary shares. Issuances of a substantial number of additional ordinary shares, including in connection with acquisitions of new businesses in accordance with our acquisition strategy, or the perception that such issuances could occur, may adversely affect prevailing market prices for our ordinary shares. With any additional issuance of our ordinary shares, our investors will suffer dilution to their voting power and economic interest.
Additional ordinary shares may be issued upon the exercise of our outstanding warrants or the exercise of the options granted to Kismet’s former independent directors, and as a result of issuances pursuant to our current and future equity incentive plans, all of which would increase the number of shares eligible for future resale in the public market and result in dilution to investors.
Upon consummation of the Transactions, we had 20,249,993 warrants outstanding, each of which entitles the holder thereof to one tenth of Company ordinary share upon exercise, as well as options entitling Kismet’s former independent directors to 12,000 Company ordinary shares upon exercise. Furthermore, our 2021 ESOP has a total size equaling 5% of our total ordinary shares outstanding upon the consummation of the Transactions. Our 20,249,993 warrants became exercisable commencing on September 25, 2021 and will expire at 5:00 p.m., New York City time, on August 26, 2026 or earlier upon redemption or liquidation, and the options granted to Kismet’s former independent directors are immediately exercisable. To the extent the warrants or options are exercised, or awards are made under our 2021 ESOP, additional Company ordinary shares will be issued, which will result in dilution to our shareholders and increase the number of our ordinary shares eligible for resale in the public market. Sales of substantial numbers of such shares in the public market or the fact that such securities may be exercised could adversely affect the market price of our ordinary shares and result in substantial losses by our investors.
We will have broad discretion in how we use the proceeds, and we may use the proceeds in ways with which you and other shareholders may disagree.
We intend to use the net proceeds we receive from this offering for general corporate purposes, including working capital. General corporate purposes may include, among other things, payments on our debt obligations or capital expenditures. Our management will have considerable discretion in the application of the net proceeds, and you will not have the opportunity, as part of your investment decision, to assess whether the proceeds are being used appropriately. The net proceeds may be used for corporate purposes that do not increase our operating results or enhance the value of our common shares.
The price of our ordinary shares may be volatile.
The price of our ordinary shares may fluctuate due to a variety of factors, including:
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actual or anticipated fluctuations in our quarterly and annual results and those of other public companies in the industry;
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mergers and strategic alliances in the industry in which we operate;
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market prices and conditions in the industry in which we operate;
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changes in government regulation;
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potential or actual military conflicts or acts of terrorism;
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the failure of securities analysts to publish research about us, or shortfalls in our operating results compared to levels forecast by securities analysts;
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announcements concerning the Company or our competitors; and
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the general state of the securities markets.
Additionally, prompted by sanctions imposed in response to geopolitical developments between Russia and Ukraine, on February 28, 2022, Nasdaq imposed a suspension of trading in GDEV’s ordinary shares. Since that date, the Company has substantially minimized its exposure to Russia, which was limited even prior to the Ukraine conflict, and trading of our securities resumed on Nasdaq as of March 16, 2023, over one year following the imposition of the trading suspension. Since the time it has resumed, trading of GDEV’s ordinary shares on Nasdaq has been highly volatile, and it may continue to experience significant pressure for some time as a result of the lack of liquidity during the prolonged period in which trading was suspended.
These market and industry factors may materially reduce the market price of our ordinary shares, regardless of our operating performance. Broad market and industry fluctuations, as well as general economic, political, regulatory and market conditions, may also negatively impact the market price of our ordinary shares. In addition, technology stocks have historically experienced high levels of volatility. In the past, companies who have experienced volatility in the market price of their securities have been subject to securities class action litigation. We may be the target of this type of litigation in the future, which could result in substantial expenses and divert our management’s attention.
The ordinary shares offered hereby will be sold in “at the market offerings”, and investors who buy ordinary shares at different times will likely pay different prices.
Investors who purchase ordinary shares in this offering at different times will likely pay different prices, and thus may experience different outcomes in their investment results. We will have discretion, subject to market demand, to vary the timing, prices and numbers of ordinary shares sold, and there is no minimum or maximum sales price. Investors may experience a decline in the value of their ordinary shares as a result of ordinary shares sales made at prices lower than the prices they paid.
Sales of a substantial number of our ordinary shares in the public market by our securityholders could cause the price of our ordinary shares to fall, and the Sponsor may still experience a positive rate of return on its resale of our ordinary shares.
We have registered for resale by certain selling securityholders up to 22,251,661 ordinary shares and up to 7,750,000 warrants. Furthermore, we have registered 982,615 ordinary shares subject to issuance under
our 2021 ESOP, which ordinary shares may, upon issuance, be resold in the public market. Sales of a substantial number of ordinary shares in the public market by those selling securityholders and/or by our other securityholders, or the perception that those sales might occur, could depress the market price of our ordinary shares and could impair our ability to raise capital through the sale of additional equity securities. We are unable to predict the effect that such sales may have on the prevailing market price of our ordinary shares.
Upon Kismet’s initial public offering (the “IPO”), the Sponsor held an aggregate of 675,000 Kismet founder shares which it had acquired against a capital contribution of $25,000, representing an acquisition price of approximately $0.037 per share. In the IPO, Kismet issued 25,000,000 units to public holders at a price of $10.00 per unit, with each unit consisting of one Kismet ordinary share and one-half of one Kismet warrant. Simultaneously with the consummation of the IPO, the Sponsor purchased 675,000 Kismet private placement warrants at a purchase price of $6,750,000, or $1.00 per private placement warrant. Upon the consummation of the Transactions, (i) the Sponsor’s 675,000 Kismet founder shares were converted into 675,000 GDEV ordinary shares, (ii) 318,875 Kismet ordinary shares issued to public holders (following the redemption of 2,181,124 Kismet ordinary shares prior to the Transactions) were converted to 318,875 GDEV ordinary shares, (iii) the Sponsor’s 6,750,000 Kismet private placement warrants were converted into 6,750,000 GDEV private placement warrants, (iv) the Sponsor acquired, pursuant to the terms of an amended and restated forward purchase agreement, 500,000 GDEV ordinary shares and 1,000,000 GDEV warrants for an aggregate purchase price of $50,000,000, or approximately $98,6 per GDEV ordinary share and approximately $0.72 per GDEV warrant (assuming an estimated purchase price allocation based upon the closing trading price of Kismet’s public warrants of $0.72 on August 27, 2021, the closing date of the Transactions), and (v) the Sponsor transferred, pursuant to the PIPE subscription financing, 1,625,000 GDEV private placement warrants to the PIPE investors, for which the Sponsor did not receive any consideration.
The ordinary shares being offered for resale by the aforementioned selling securityholders amounts to approximately 83.4% of our ordinary shares outstanding as of June 30, 2024 on a fully diluted basis assuming (a) the exercise of all outstanding warrants and the exercise of all options vested as of that date, (b) the issuance of all ordinary shares issuable under our 2021 ESOP (excluding ordinary shares associated with such vested options) and (c) that all of the 1,757,026 ordinary shares offered hereby and currently held in treasury are sold. Given the substantial number of ordinary shares registered for potential resale by those selling securityholders, the sale of ordinary shares by those selling securityholders, or the perception in the market that the selling securityholders of a large number of shares intend to sell shares, could increase the volatility of the market price of our ordinary shares or result in a significant decline in the public trading price of our ordinary shares. Even if our trading price is significantly below $100.00, the offering price of the Kismet units offered in its IPO, the Sponsor, one of those selling securityholders, may still have an incentive to sell our ordinary shares because it acquired 675,000 ordinary shares relating to the 675,000 Kismet founder shares at prices lower than the public investors or the last reported trading price of our ordinary shares. For example, based on the last reported sale price of our ordinary shares of $27.27 on September 11, 2024, the Sponsor would experience a potential profit in respect of 675,000 of its GDEV ordinary shares relating to the 675,000 Kismet founder shares of up to approximately $27.23 per share, or approximately $18.4 million in the aggregate. While the Sponsor may experience a positive rate of return based on the trading price of our ordinary shares, the public holders of our ordinary shares may not experience a similar rate of return on the ordinary shares they purchase due to differences in the applicable purchase price and trading price. Ivan Tavrin, a former director of the Company and the former sole owner of the Sponsor who maintains sole voting and dispositive power over all of GDEV ordinary shares held by the Sponsor until February 15, 2025 (and therefore may be deemed to share beneficial ownership over the GDEV ordinary shares owned by the Sponsor), has caused the Sponsor to offer its entire holding in GDEV securities, comprising 1,175,000 ordinary shares and 6,125,000 warrants, for resale. On December 12, 2023, the U.S. Department of Treasury Office of Foreign Assets Control added Ivan Tavrin to its Specially Designated Nationals and Blocked Persons List (“SDN List”) pursuant to Executive Order 14024. Following Ivan Tavrin’s designation as an SDN, the Sponsor’s ordinary shares and warrants were blocked in accordance with U.S. sanctions laws. Accordingly, until such time, if any, that Ivan Tavrin is removed from the SDN List or OFAC issues a license or other authorization permitting the sale or transfer of the shares or warrants, the Sponsor will be restricted from selling or otherwise transferring any GDEV ordinary shares or warrants held by it.
Certain Company Shareholders control the Company and their interests may conflict with ours or those of our shareholders in the future.
Approximately 79.5% of our currently outstanding ordinary shares are beneficially owned by Andrey Fadeev, Boris Gertsovskiy and Everix Investments Limited. Moreover, these shareholders have the right to designate directors subject to the maintenance of certain ownership requirements in the Company. See “Item 10 Additional Information — B. Memorandum and Articles of Association” in our most recent Annual Report on Form 20-F. Even if and when these shareholders cease to own a majority of our outstanding ordinary shares, for so long as they continue to own a significant percentage of our ordinary shares, they will still be able to significantly influence or effectively control the composition of our board of directors and the approval of actions requiring shareholder approval through their voting power. Accordingly, for such period of time, these will have significant influence with respect to the Company’s management, business plans and policies, including the appointment and removal of our officers. In particular, for so long as these shareholders continue to own a significant percentage of our outstanding ordinary shares, these will be able to cause or prevent a change of control of the Company or a change in the composition of our board of directors and could preclude any unsolicited acquisition of the Company. The concentration of ownership could deprive our shareholders of an opportunity to receive a premium for their shares as part of a sale of the Company and ultimately might affect the market price of our ordinary shares.
Reports published by analysts, including projections in those reports that differ from our actual results, could adversely affect the price and trading volume of our ordinary shares.
Our management currently expects that securities research analysts will continue to publish their own periodic projections for the Company’s business and may establish and publish new periodic projections for the Company’s business. These projections may vary widely and may not accurately predict the results we actually achieve. The Company’s share price may be materially affected if its actual results do not match the projections of these securities research analysts. Similarly, if one or more of the analysts who write reports on the Company downgrades its stock or publishes inaccurate or unfavorable research about its business, its share price could decline. If one or more of these analysts ceases coverage of the Company or fails to publish reports on it regularly, our share price or trading volume could decline.
If we are classified as a passive foreign investment company, or PFIC, for U.S. federal income tax purposes for any taxable year, U.S. Holders (as defined below) of our ordinary shares could become subject to adverse U.S. federal income tax consequences.
A non-U.S. corporation, such as the Company, will be classified as a passive foreign investment company (a “PFIC”) for U.S. federal income tax purposes for any taxable year in which either (i) 75% or more of its gross income for such year consists of certain types of “passive” income or (ii) 50% or more of the value of its assets (generally based on an average of the quarterly values of the assets) during such year is attributable to assets that produce or are held for the production of passive income (the “asset test”).
Passive income generally includes dividends, interest, royalties, rents, annuities, net gains from the sale or exchange of property producing such income and net foreign currency gains. Passive assets are those which give rise to passive income and include assets held for investment, as well as cash, assets readily convertible into cash, and (subject to certain exceptions) working capital. The Company’s goodwill and other unbooked intangibles are taken into account and may be classified as active or passive depending on the income such assets generate or are held to generate. We will be treated as owning a proportionate share of the assets and earning a proportionate share of the income of any other corporation in which we own, directly, indirectly or constructively, 25% or more (by value) of its stock.
Based on an analysis of our income and the value of our assets, we believe that we were not a PFIC for the taxable year ended December 31, 2023, although no assurance can be given due to the highly factual nature of such analysis. Our PFIC status for the current taxable year ending December 31, 2024, will not be determinable until after the close of the year, and it is possible that we may be classified as a PFIC for the current taxable year and for future taxable years. No assurances can be given in this regard. The determination of whether we are or will become a PFIC is uncertain because it is a fact-intensive inquiry made on an annual basis that depends, in part, on the composition of our income and assets and the fair market value of our subsidiaries’ shares and assets. Fluctuations in the market price of our ordinary shares may influence
whether we are classified as a PFIC for the current or subsequent taxable years because the value of our assets for purposes of the asset test may be determined by reference to the market price of our ordinary shares from time to time (which may be volatile). The composition of our income and assets may also be affected by how, and how quickly, we use our liquid assets. Under circumstances where our revenue from activities that produce passive income increases relative to our revenue from activities that produce non-passive income, or where we determine not to deploy cash for active purposes, our risk of being classified as a PFIC will increase. If we are a PFIC for any year, U.S. Holders of our ordinary shares could become subject to adverse U.S. federal income tax consequences. See “Taxation — U.S. Federal Income Tax Considerations — Passive Foreign Investment Company (“PFIC”) Considerations.”
USE OF PROCEEDS
The amount of proceeds from this offering will depend upon the number of ordinary shares sold and the market price at which they are sold. There can be no assurance that we will be able to sell any shares or fully utilize the Sales Agreement with the Sales Agents.
We intend to use the net proceeds from this offering primarily for general corporate purposes, including working capital. The expected use of the net proceeds from this offering represents our intentions based upon our current plans and business conditions. As of the date of this prospectus, we cannot predict with certainty all of the particular uses for the net proceeds to be received in connection with this offering or the amounts that we will actually spend on the uses set forth above. As a result, our management will retain broad discretion over the allocation of the net proceeds from this offering.
We cannot assure you that we will use the proceeds of this offering for the stated purposes and we may use the net proceeds for other purposes with which you do not agree. See “Risk factors — We will have broad discretion in how we use the proceeds, and we may use the proceeds in ways with which you and other shareholders may disagree.”
DESCRIPTION OF ORDINARY SHARES
The following summary of the material terms of our ordinary shares is not intended to be a complete summary of the rights and preferences of such ordinary shares, and is qualified by reference to our amended and restated memorandum and articles of association, each of which is an exhibit to the registration statement of which this prospectus is a part. We urge you to read the applicable provisions of British Virgin Islands law, our amended and restated memorandum and articles of association carefully and in their entirety for a complete description of the rights and preferences of our ordinary shares.
Unless the context otherwise requires, all references in this section to the “Company,” “we,” “us” or “our” refer to GDEV Inc. as a standalone company.
GDEV Ordinary Shares
We are a company incorporated in the British Virgin Islands as a business company (Company Number 2053442) and our affairs are governed by the provisions of our Amended and Restated Memorandum and Articles of Association, as amended and restated from time to time (“M&A”), and the BVI Business Companies Act, 2004, as amended (the “Companies Act”), and the applicable laws of the BVI (including applicable common law).
Our M&A authorizes us to issue an unlimited number of shares consisting of one class of ordinary shares of the Company, no par value per share. A copy of our M&A, effective on August 19, 2021 is filed as Exhibit 3.1 to the registration statement of which this prospectus forms a part.
The following description of our authorized shares and our constitutional rules under our M&A is qualified in its entirety by reference to our M&A.
Amended and Restated Memorandum and Articles of Association
The following discussion describes our M&A:
Objects and Purposes, Register, and Shareholders
Subject to the Companies Act and our M&A, our objects and purposes are unlimited. Our register of members is maintained by Continental Stock Transfer & Trust Company, our transfer agent. The entry of the name of a person in the register of members as a holder of a share in a BVI company is prima facie evidence that legal title in the share vests in that person. Under the Companies Act, a BVI company may treat the registered holder of a share as the only person entitled to (i) exercise any voting rights attaching to the share, (ii) receive notices, (iii) receive a distribution in respect of the share and (iv) exercise other rights and powers attaching to the share. Consequently, as a matter of BVI law, where a shareholder’s shares are registered in the name of a nominee, the nominee is entitled to receive notices, receive distributions and exercise rights in respect of any such shares registered in its name. The beneficial owners of the shares registered in a nominee’s name will therefore be reliant on their contractual arrangements with the nominee in order to receive notices and dividends and ensure the nominee exercises voting and other rights in respect of the shares in accordance with their directions.
Directors’ Powers
Under the Companies Act, and as confirmed in the Company’s M&A, the Company’s business and affairs are managed by, or under the direction or supervision of, its directors, and the directors generally have all powers necessary to manage the Company. In accordance with, and subject to, our M&A, the directors may by resolution of directors exercise all the powers of the Company to incur indebtedness, liabilities or obligations and to secure indebtedness, liabilities or obligations whether of the Company or of any third party.
A director must disclose any interest he has on any proposal, arrangement or contract to be entered into by the Company. Under the Companies Act, an interested director may (subject to the M&A) vote on a transaction in which he has an interest. Under our M&A, however, where a director is interested in a matter, any majority approving such matter must include a majority of the disinterested directors. It is also
possible for a majority of disinterested directors to make a determination that a director may be considered to be interested in a matter, following which that director will be treated as being interested in the matter and will not be able to vote thereon.
Rights, Preferences and Restrictions of Ordinary Shares
Our directors may, by Supermajority Resolution of Directors (as defined below), adopt or amend a dividend policy for the Company and may authorize dividends at such time and in such amount as they determine (provided that, after payment of such dividend, the Company will pass the ‘solvency test’, as described below). The term “Supermajority Resolution of Directors” means a resolution of the directors of the Company passed by the entire board of directors, or by the entire board of directors minus one director. For these purposes, ‘entire board of directors’ is construed as not including any directors who are interested in a transaction.
Each ordinary share is entitled to one vote. In the event of a liquidation or dissolution of the Company, the holders of ordinary shares are entitled to share ratably in all surplus assets remaining available for distribution to them after payment and discharge of all claims, debts, liabilities and obligations of the Company. There are no sinking fund provisions applicable to our ordinary shares, nor are holders of fully-paid shares liable for any capital calls by the Company. Subject to the provisions of the Companies Act, we may, (subject to the M&A) with the consent of the relevant shareholder and subject to the approval of the directors in a Supermajority Resolution of Directors, repurchase our ordinary shares in certain circumstances provided always that the Company will, immediately after the repurchase, satisfy the solvency test. The Company will satisfy the solvency test, if (i) the value of the Company’s assets exceeds its liabilities, and (ii) the Company is able to pay its debts as they fall due.
Variation of the Rights of Shareholders
As permitted by the Companies Act and in accordance with our M&A, the rights attached to shares of the Company may only, whether or not the Company is being wound up, be varied by a resolution passed at a meeting of the shareholders by the holders of more than fifty percent (50%) of the ordinary shares present at a duly convened and constituted meeting of the shareholders which were present at the meeting and voted.
Shareholder Meetings
In accordance with, and subject to, our M&A, (i) any director of the Company may convene meetings of the shareholders at such times and in such manner and places within or outside the British Virgin Islands as the director considers necessary or desirable (and the director convening a meeting of shareholders must fix in the notice of the meeting the record date for determining those shareholders that are entitled to vote at the meeting); and (ii) upon the written request of shareholders entitled to exercise thirty percent (30%) or more of the voting rights in respect of the matter for which the meeting is requested, the directors must convene a meeting of shareholders. In accordance with, and subject to, our M&A, (a) the director convening a meeting must give not less than 30 nor more than 60 days’ notice of a meeting of shareholders to those shareholders whose names on the date the notice is given appear as shareholders in the register of shareholders of the Company and are entitled to vote at the meeting; and the other directors; (b) a meeting of shareholders held in contravention of the requirement to give notice is valid if shareholders holding at least eighty percent (80%) of the total voting rights on all the matters to be considered at the meeting have waived notice of the meeting and, for this purpose, the presence of a shareholder at the meeting will constitute waiver in relation to all of the ordinary shares that that shareholder holds; (c) a meeting of shareholders is duly constituted if, at the commencement of the meeting, there are present in person or by proxy not less than fifty percent (50%) of the votes of the ordinary shares or class or series of ordinary shares entitled to vote on resolutions of shareholders to be considered at the meeting; and (d) if within two hours from the time appointed for the meeting a quorum is not present, the meeting, at the discretion of the chairman of the board of directors, will be dissolved or stand adjourned to a business day in the jurisdiction in which the meeting was to have been held at the same time and place. The quorum for such adjourned meeting (which must be reached within one hour of the appointed time for the meeting) is one third of the votes of the ordinary shares or class or series of ordinary shares entitled to vote on resolutions of shareholders to be considered
at the meeting; if such quorum is not reached, the meeting will either be dissolved or stand further adjourned, at the discretion of the chairman of the board of directors.
Dividends
As considered above under “— Rights, Preferences and Restrictions of Ordinary Shares,” our directors may, by Supermajority Resolution of Directors, declare dividends at a time and amount as they think fit if they are satisfied, based on reasonable grounds, that, immediately after distribution of the dividend, the value of our assets will exceed our liabilities and we will be able to pay our debts as they fall due. There is no further BVI law restriction on the amount of funds which may be distributed by us by dividend, including all amounts paid by way of the subscription price for ordinary shares regardless of whether such amounts may be wholly or partially treated as share capital or share premium under certain accounting principles. Shareholder approval is not required to pay dividends under BVI law. In accordance with, and subject to, our M&A, no dividend will bear interest as against the Company.
Disclosure of the Securities and Exchange Commission’s Position on Indemnification for Securities Act Liabilities
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the registrant pursuant to the foregoing provisions, the registrant has been informed that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Transfer of Shares
Any of our shareholders may transfer all or any of his or her shares by an instrument of transfer in the usual or common form or in any other form which our directors may approve (such instrument of transfer being signed by the transferor and containing the name and address of the transferee). Our M&A also (save as otherwise provided therein) provide that (a) where ordinary shares of the Company are listed on the Nasdaq or any other stock exchange or automated quotation system on which the ordinary shares are then traded, shares may be transferred without the need for a written instrument of transfer if the transfer is carried out in accordance with the law, rules, procedures and other requirements applicable to shares listed on such exchange or system, or (b) uncertificated shares may be transferred by means of a system utilized for the purposes of holding and transferring shares in uncertificated form (the “Relevant System”), and that the operator of the Relevant System will act as agent of the shareholders for the purposes of the transfer of any uncertificated shares.
Rights of Non-Resident or Foreign Shareholders
There are no limitations imposed by our M&A on the rights of non-resident or foreign shareholders to hold or exercise voting rights on our shares. In addition, there are no provisions in our M&A governing the ownership threshold above which shareholder ownership must be disclosed.
Changes in Authorized Shares
We are authorized to issue an unlimited number of shares which will have the same rights, privileges, restrictions and conditions attaching to them as the shares in issue. We may by resolution of directors or shareholders:
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consolidate and divide all or any of our unissued authorized shares into shares of larger or smaller amount than our existing shares; or
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cancel any ordinary shares which, at the date of the passing of the resolution, have not been taken or agreed to be taken by any person.
Pre-emption Rights
There are no pre-emption rights applicable to the issuance of new shares under our M&A.
Summary of Certain Significant Provisions of the Companies Act
The Companies Act differs from laws applicable to U.S. corporations and their shareholders. Set forth below is a summary of certain significant provisions of the Companies Act applicable to us (save to the
extent that such provisions have been, to the extent permitted under the Companies Act, negated or modified in our M&A in accordance with the Companies Act).
Mergers, Consolidations and Similar Arrangements
The Companies Act provides for mergers as that expression is understood under U.S. corporate law. Under the Companies Act, two or more companies may either merge into one of such existing companies, referred to as the surviving company, or consolidate with both existing companies ceasing to exist and forming a new company, referred to as the consolidated company. The procedure for a merger or consolidation between our Company and another company (which need not be a BVI company) is set out in the Companies Act. The directors of the BVI company or BVI companies which are to merge or consolidate must approve a written plan of merger or consolidation which must also be authorized by a resolution of shareholders (and the outstanding shares of every class of shares that are entitled to vote on the merger or consolidation as a class if the memorandum or articles of association so provide or if the plan of merger or consolidation contains any provisions that, if contained in a proposed amendment to the memorandum or articles, would entitle the class to vote on the proposed amendment as a class) of the shareholders of the BVI company or BVI companies which are to merge. A foreign company which is able under the laws of its foreign jurisdiction to participate in the merger or consolidation is required by the Companies Act to comply with the laws of that foreign jurisdiction in relation to the merger or consolidation. The BVI company must then execute articles of merger or consolidation, containing certain prescribed details. The plan and articles of merger or consolidation are then filed with the Registrar of Corporate Affairs in the BVI, or the Registrar. If the surviving company or the consolidated company is to be incorporated under the laws of a jurisdiction outside BVI, it must file the additional instruments required under Section 174(2)(b) of the Companies Act. The Registrar then (if he or she is satisfied that the requirements of the Companies Act have been complied with) registers, in the case of a merger, the articles of merger and any amendment to the memorandum and articles of association of the surviving company and, in the case of a consolidation, the M&A of the new consolidated company and issues a certificate of merger or consolidation (which is conclusive evidence of compliance with all requirements of the Companies Act in respect of the merger or consolidation). The merger or consolidation is effective on the date that the articles of merger or consolidation are registered by the Registrar or on such subsequent date, not exceeding thirty days, as is stated in the articles of merger or consolidation but if the surviving company or the consolidated company is a company incorporated under the laws of a jurisdiction outside the BVI, the merger or consolidation is effective as provided by the laws of that other jurisdiction.
As soon as a merger or consolidation becomes effective (inter alia), (i) the surviving company or consolidated company (so far as is consistent with its memorandum and articles of association, as amended or established by the articles of merger or consolidation) has all rights, privileges, immunities, powers, objects and purposes of each of the constituent companies; (ii) the memorandum and articles of association of any surviving company are automatically amended to the extent, if any, that changes to its memorandum and articles of association are contained in the articles of merger; (iii) assets of every description, including choses-in-action and the business of each of the constituent companies, immediately vest in the surviving company or consolidated company; (iv) the surviving company or consolidated company is liable for all claims, debts, liabilities and obligations of each of the constituent companies; (v) no conviction, judgment, ruling, order, claim, debt, liability or obligation due or to become due, and no cause existing, against a constituent company or against any shareholder, director, officer or agent thereof, is released or impaired by the merger or consolidation; and (vi) no proceedings, whether civil or criminal, pending at the time of a merger or consolidation by or against a constituent company, or against any shareholder, director, officer or agent thereof, are abated or discontinued by the merger or consolidation, but: (a) the proceedings may be enforced, prosecuted, settled or compromised by or against the surviving company or consolidated company or against the shareholder, director, officer or agent thereof, as the case may be, or (b) the surviving company or consolidated company may be substituted in the proceedings for a constituent company but if the surviving company or the consolidated company is incorporated under the laws of a jurisdiction outside the BVI, the effect of the merger or consolidation is the same as noted foregoing except in so far as the laws of the other jurisdiction otherwise provide.
The Registrar must strike off the register of companies each constituent company that is not the surviving company in the case of a merger and all constituent companies in the case of a consolidation (save that this will not apply to a foreign company).
If the directors determine it to be in the best interests of the Company, it is also possible for a merger to be approved as a court approved plan of arrangement or as a scheme of arrangement in accordance with (in each such case) the Companies Act. The convening of any necessary shareholders meetings and subsequently the arrangement must be authorized by the BVI court. A scheme of arrangement requires the approval of a majority in number of the shareholders, representing not less than 75% of the votes of the shares or class of shares. If the effect of the scheme is different in relation to different shareholders, it may be necessary for them to vote separately in relation to the scheme, with it being required to secure the requisite approval level of each separate voting group. Under a plan of arrangement, a BVI court may determine what shareholder approvals are required and the manner of obtaining the approval.
Continuation into a Jurisdiction Outside the BVI
In accordance with, and subject to, our M&A, the Company may by resolution of shareholders or by a resolution of directors continue as a company incorporated under the laws of a jurisdiction outside the BVI in the manner provided under those laws. The Company does not cease to be a BVI company unless the foreign law permits continuation and the BVI company has complied with the requirements of that foreign law. In the event that the Company is continued under the laws of a jurisdiction outside the BVI, (i) the Company continues to be liable for all of its claims, debts, liabilities and obligations that existed prior to its continuation, (ii) no conviction, judgment, ruling, order, claim, debt, liability or obligation due or to become due, and no cause existing, against the Company or against any shareholder, director, officer or agent thereof, is released or impaired by its continuation as a company under the laws of the jurisdiction outside the BVI, (iii) no proceedings, whether civil or criminal, pending by or against the Company, or against any shareholder, director, officer or agent thereof, are abated or discontinued by its continuation as a company under the laws of the jurisdiction outside the BVI, but the proceedings may be enforced, prosecuted, settled or compromised by or against the Company or against the shareholder, director, officer or agent thereof, as the case may be; and (iv) service of process may continue to be effected on the registered agent of the Company in the BVI in respect of any claim, debt, liability or obligation of the Company during its existence as a company under the Companies Act.
Directors
In accordance with, and subject to, our M&A (including, for the avoidance of any doubt, any rights or restrictions attaching to any ordinary shares), for so long as Everix has at least 50% of its ‘Initial Holding’ (which is the number of shares held by Everix immediately after the consummation of the Transactions) it is entitled to appoint two directors to the board. If Everix were to sell its shares such that it had 25 - 50% of its Initial Holding this would decrease to the number of directors it is entitled to appoint to one director; below 25% there are no appointment rights. Mr. Andrey Fadeev and Mr. Boris Gertsovskiy (collectively, “FG”) have the same rights, acting together and with the number of shares they each hold aggregated for the purposes of calculating their Initial Holding and subsequent percentages thereof.
Other directors of the Company are elected by resolution of shareholders or by resolution of directors for such term as the shareholders or directors determine. Each director holds office until the Company’s next annual general meeting immediately following their appointment, or until their earlier disqualification, death, resignation or removal. Our directors do not have a retirement age requirement under our M&A. A director, other than one appointed by Everix or FG, may be removed from office by resolution of shareholders. A director may resign his office by giving written notice of his resignation to the Company and the resignation has effect from the date the notice is received by the Company at the office of its registered agent or from such later date as may be specified in the notice and a director must resign forthwith as a director if he is, or becomes, disqualified from acting as a director under the Companies Act. A director is not required to hold shares as a qualification to office.
In accordance with, and subject to, our M&A, (a) any one director of the Company may call a meeting of the directors by sending a written notice to each other director (including by email having obtained electronic delivery confirmation thereof); (b) the directors of the Company or any committee thereof may meet at such times and in such manner and places within or outside the British Virgin Islands as the notice calling the meeting provides; (c) a director must be given not less than five days’ notice of meetings of directors, but a meeting of directors held without five days’ notice having been given to all directors will be valid if
all the directors entitled to vote at the meeting who do not attend waive notice of the meeting (and the presence of a director at a meeting will constitute waiver by that director), and the inadvertent failure to give notice of a meeting to a director, or the fact that a director has not received the notice, does not invalidate the meeting; (d) a meeting of directors is duly constituted for all purposes if at the commencement of the meeting there are present in person not less than one-half of the total number of directors unless there are only two directors in which case the quorum is two; (e) a resolution of directors is passed if either (i) the resolution is approved at a duly convened and constituted meeting of directors of the Company by the affirmative vote of a majority of the directors present at the meeting who voted; or (ii) in the form of written resolution by a majority of the directors, save where a resolution must be passed as a Supermajority Resolution of Directors (which may be passed at a meeting or in writing but in which case the requisite majority is all of the board of directors, or all of the board of directors minus one, with interested directors being discounted for all purposes).
Indemnification of Directors
In accordance with, and subject to, our M&A (including the limitations detailed therein), the Company may at any time enter into one or more indemnification agreements with any person who (a) may be a party or may be threatened to be made a party to any proceeding (howsoever defined in the relevant agreement) by reason of the fact that such person is or was a director, officer, employee, contractor or adviser of the Company, or (b) is or was, at the request of the Company, serving as a director of, or in any other capacity is or was acting for, another ‘Enterprise’ (as defined in the M&A). The ability of the Company to indemnify any person with whom the Company has entered into such an agreement with is limited by the Companies Act, in that such indemnification is only lawful where the indemnified person acted honestly and in good faith and in what he believed to be in the best interests of the company and, in the case of criminal proceedings, the indemnified person had no reasonable cause to believe that his conduct was unlawful.
In accordance with, and subject to, our M&A, the Company may purchase and maintain insurance, purchase or furnish similar protection or make other arrangements including, but not limited to, providing a trust fund, letter of credit or surety bond in relation to any person who at the request of the Company is or was serving as a director, officer or liquidator of, or in any other capacity is or was acting for, another Enterprise, against any liability asserted against the person and incurred by him in that capacity, whether or not the Company has or would have had the power to indemnify him against the liability as provided in the M&A.
Directors and Conflicts of Interest
In accordance with, and subject to, our M&A, no director will, by reason of such director holding the office of director, be accountable to the Company for any benefit which he derives from any transaction in which he may have an interest and no such transaction will be liable to be avoided on the grounds of any such interest or benefit, provided such director must, immediately after becoming aware of the fact that he is interested in a transaction entered into or to be entered into by the Company, disclose such interest to the board.
Shareholders’ Suits
The enforcement of the Company’s rights will ordinarily be a matter for its directors.
In certain circumstances, a shareholder has the right to seek various remedies against a BVI company in the event the directors are in breach of their duties under the Companies Act. Pursuant to Section 184B of the Companies Act, if a company or director of a BVI company engages, proposes to engage in, or has engaged in conduct that contravenes the provisions of the Companies Act or the M&A of the company, the BVI court may, on application of a shareholder or director of the company, make an order directing the company or director to comply with, or restraining the company or director from engaging in conduct that contravenes, the Companies Act or the memorandum or articles of association.
Furthermore, pursuant to Section 184I(1) of the Companies Act a shareholder of a company who considers that the affairs of the company have been, are being or are likely to be, conducted in a manner that is, or any acts of the company have been, or are likely to be oppressive, unfairly discriminatory, or unfairly
prejudicial to him in that capacity, may apply to the BVI Court for an order which, inter alia, can require the company or any other person to pay compensation to the shareholder.
The Companies Act provides for a series of remedies available to shareholders. Where a company incorporated under the Companies Act conducts some activity which contravenes the Companies Act or the company’s M&A, the court can issue a restraining or compliance order. Under Section 184G of the Companies Act, a shareholder of a company may bring an action against the company for breach of a duty owed by the company to him as a shareholder. A shareholder also pursuant to Section 184C of the Companies Act may, with the leave of the BVI court, bring proceedings or intervene in proceedings in the name of the company, in certain circumstances. Such actions are known as derivative actions. The BVI court may only grant leave to bring a derivative action where the following circumstances apply:
•
the company does not intend to bring, diligently continue or defend or discontinue proceedings; or
•
it is in the interests of the company that the conduct of the proceedings should not be left to the directors or to the determination of the shareholders as a whole.
•
When considering whether to grant leave, the BVI court is also required to have regard to the following matters:
•
whether the shareholder is acting in good faith;
•
whether a derivative action is in the company’s interests, taking into account the directors’ views on commercial matters;
•
whether the proceedings are likely to succeed;
•
the costs of the proceedings in relation to the relief likely to be obtained; and
•
whether an alternative remedy is available.
Any shareholder of a company may apply to the BVI court under the Insolvency Act, 2003 of the BVI (the “Insolvency Act”) for the appointment of a liquidator to liquidate the company and the court may appoint a liquidator for the company if it is of the opinion that it is just and equitable to do so.
Appraisal Rights
The Companies Act provides that any shareholder of a company is entitled to payment of the fair value of his shares upon dissenting from any of the following: (i) a merger if the company is a constituent company, unless the company is the surviving company and the shareholder continues to hold the same or similar shares; (ii) a consolidation, if the company is a constituent company; (iii) any sale, transfer, lease, exchange or other disposition of more than 50% in value of the assets or business of the company if not made in the usual or regular course of the business carried on by the company but not including: (a) a disposition pursuant to an order of the court having jurisdiction in the matter, (b) a disposition for money on terms requiring all or substantially all net proceeds to be distributed to the shareholders in accordance with their respective interests within one year after the date of disposition, or (c) a transfer pursuant to the power of the directors to transfer assets for the protection thereof; (iv) a compulsory redemption of 10% or fewer of the issued shares of the company required by the holders of 90% or more of the votes of the outstanding shares of the company pursuant to the terms of Section 176 of the Companies Act; and (v) an arrangement, if permitted by the BVI court.
Generally, any other claims against a company by its shareholders must be based on the general laws of contract or tort applicable in the BVI or their individual rights as shareholders as established by the company’s memorandum and articles of association. There are common law rights for the protection of shareholders that may be invoked, largely derived from English common law. For example, under the rule established in the English case known as Foss v. Harbottle, a court will generally refuse to interfere with the management of a company at the insistence of a minority of its shareholders who express dissatisfaction with the conduct of the company’s affairs by the majority or the board of directors. However, every shareholder is entitled to seek to have the affairs of the company conducted properly according to law and the constituent documents of the company. As such, if those who control the company have persistently disregarded the requirements
of company law or the provisions of the company’s memorandum and articles of association, then the courts may grant relief. Generally, the areas in which the courts will intervene are the following:
•
a company is acting or proposing to act illegally or beyond the scope of its authority;
•
the act complained of, although not beyond the scope of the authority, could only be effected if duly authorized by more than the number of votes which have actually been obtained;
•
the individual rights of the plaintiff shareholder have been infringed or are about to be infringed; or
•
those who control the company are perpetrating a “fraud on the minority.”
Share Repurchases and Redemptions
As permitted by the Companies Act and subject to our M&A, shares may be repurchased, redeemed or otherwise acquired by us with shareholder consent and with the prior approval of the directors in a Supermajority Resolution of Directors. Unless the redemption or repurchase is being effected pursuant to a right of the relevant shareholder to have their shares repurchased or redeemed, our directors will need to determine that, immediately following the redemption or repurchase, we will be able to satisfy our debts as they fall due and the value of our assets exceeds our liabilities. Our directors may only exercise this power on our behalf, subject to the Companies Act, our M&A and to any applicable requirements imposed from time to time by the SEC, the Nasdaq or any other stock exchange on which our securities are listed.
Inspection of Books and Records
Under the Companies Act, members of the general public, on payment of a nominal fee, can obtain copies of the public records of a company available at the office of the Registrar, including the company’s certificate of incorporation, its memorandum and articles of association (with any amendments thereto), records of license fees paid to date, any articles of dissolution, any articles of merger, and a register of charges created by the company (if the company has elected to file such a register or an applicable charge has caused the same to be filed).
A shareholder of a company is entitled, on giving written notice to the company, to inspect:
(i)
the memorandum and articles of association;
(ii)
the register of members;
(iii)
the register of directors; and
(iv)
the minutes of meetings and resolutions of shareholders and of those classes of shares of which he is a shareholder.
In addition, a shareholder may make copies of or take extracts from the documents and records referred to in (i) through (iv) above. However, the directors may, if they are satisfied that it would be contrary to the company’s interests to allow a shareholder to inspect any document, or part of any document, specified in (ii), (iii) or (iv) above, refuse to permit the shareholder to inspect the document or limit the inspection of the document, including limiting the making of copies or the taking of extracts from the records. Where a company fails or refuses to permit a shareholder to inspect a document or permits a shareholder to inspect a document subject to limitations, that shareholder may apply to the High Court of the BVI for an order that he should be permitted to inspect the document or to inspect the document without limitation.
Our registered agent is FFP (BVI) Limited of 2nd Floor, Water’s Edge Building, Wickhams Cay II, Road Town, Tortola VG1110, British Virgin Islands. The Company is required to keep a copy of its register of members and register of directors at the offices of its registered agent in the BVI, and the Company is required to notify any changes to the originals of such registers (assuming the originals are held elsewhere) to the registered agent, in writing, within 15 days of any change and to provide the registered agent with a written record of the physical address of the place or places at which the original register of members or the original register of directors is kept.
Where the place at which the original register of members or the original register of directors of the Company is changed, the Company must provide the registered agent with the physical address of the new location of the records within 14 days of the change of location.
The Company is also required to keep at the office of its registered agent or at such other place or places, within or outside the BVI, as the directors may determine the minutes of meetings and resolutions of shareholders and of classes of shareholders; and the minutes of meetings and resolutions of directors and committees of directors. If such records are kept at a place other than at the office of the Company’s registered agent, the Company is required to provide the registered agent with a written record of the physical address of the place or places at which the records are kept and to notify the registered agent, within 14 days, of the physical address of any new location where such records may be kept.
Dissolution; Winding Up
As permitted by the Companies Act and subject to our M&A, we may be voluntarily liquidated and dissolved under Part XII of the Companies Act by a Supermajority Resolution of Directors or by a resolution of shareholders passed at a meeting of the shareholders by at least 85% of the votes of the shares entitled to vote thereon which were present at the meeting and were voted, if we have no liabilities or we are able to pay our debts as they fall due and the value of our assets equals or exceeds our liabilities.
We also may be wound up and dissolved in circumstances where we are insolvent in accordance with the terms of the Insolvency Act.
Anti-Money Laundering Laws
In order to comply with legislation and regulations aimed at the prevention of money laundering we are required to adopt and maintain anti-money laundering procedures, and may require subscribers of newly issued ordinary shares to provide evidence to verify their identity. Where permitted, and subject to certain conditions, we also may delegate the maintenance of our anti-money laundering procedures (including the acquisition of due diligence information) to a suitable person. We reserve the right to request such information as is necessary to verify the identity of a subscriber. In the event of delay or failure on the part of the subscriber in producing any information required for verification purposes, we may refuse to accept the application, in which case any funds received will be returned without interest to the account from which they were originally debited.
If any person resident in the BVI knows or suspects that another person is engaged in money laundering or terrorist financing and the information for that knowledge or suspicion came to his or her attention in the course of his or her business the person will be required to report his belief or suspicion to the Financial Investigation Agency of the BVI, pursuant to the Proceeds of Criminal Conduct Act 1997 (as amended). Such a report will not be treated as a breach of confidence or of any restriction upon the disclosure of information imposed by any enactment or otherwise.
Exchange controls
We know of no BVI laws, decrees, regulations or other legislation that limit the import or export of capital or the payment of dividends to shareholders holders who do not reside in the BVI.
Material Differences in BVI Law and our M&A and Delaware Law
Our corporate affairs are governed by our M&A and the provisions of applicable BVI law, including the Companies Act and BVI common law. The Companies Act differs from laws applicable to U.S. corporations and their shareholders. The following table provides a comparison between certain statutory provisions of the Companies Act (together with the relevant provisions of our M&A) and the Delaware General Corporation Law relating to shareholders’ rights.
Shareholder Meetings
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BVI
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Delaware
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•
In accordance with, and subject to, our M&A, (a) any director of the company may convene meetings of the shareholders at such times and in such manner and places within or outside the British Virgin Islands as the director considers necessary or desirable; and (b) upon the written request of shareholders entitled to exercise thirty percent (30%) or more of the voting rights in respect of the matter for which the meeting is requested the directors shall convene a meeting of shareholders.
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•
May be held at such time or place as designated in the charter or the by-laws, or if not so designated, as determined by the board of directors.
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•
May be held inside or outside the BVI.
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|
•
May be held inside or outside Delaware.
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•
In accordance with, and subject to, our M&A, (a) the director convening a meeting shall give not less than 30 days’ nor more than 60 days’ written notice of a meeting of shareholders to those shareholders whose names on the date the notice is given appear as shareholders in the register of members of the company and are entitled to vote at the meeting, and the other directors; and (b) the director convening a meeting of shareholders shall fix in the notice of the meeting the record date for determining those shareholders that are entitled to vote at the meeting.
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•
Whenever shareholders are required to take any action at a meeting, a written notice of the meeting shall be given which shall state the place, if any, date and hour of the meeting, and the means of remote communication, if any.
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Shareholder’s Voting Rights
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BVI
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Delaware
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|
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•
In accordance with, and subject to, our M&A (including, for the avoidance of any doubt, any rights or restrictions attaching to any shares), (a) a shareholder may be represented at a meeting of shareholders by a proxy who may speak and vote on behalf of the shareholder; and (b) the instrument appointing a proxy shall be produced at the place designated for the meeting before the time for holding the meeting at which the person named in such instrument proposes to vote.
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•
Any person authorized to vote may authorize another person or persons to act for him by proxy.
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•
In accordance with, and subject to, our M&A (including, for the avoidance of any doubt, any rights or restrictions attaching to any shares), (a) a meeting of shareholders is duly constituted if, at the commencement of the meeting, there are present in person or by proxy not less than 50 percent of the votes of the ordinary shares or class or series of ordinary shares entitled to vote on resolutions of shareholders to be considered at the meeting; and (b) if within two hours from the time appointed for the meeting a quorum is not present, the meeting, at the discretion of the
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•
The charter or bylaws may specify the number to constitute a quorum but in no event shall a quorum consist of less than one-third of shares entitled to vote at a meeting. In the absence of such specifications, a majority of shares shall constitute a quorum.
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BVI
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Delaware
|
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chairman of the board of directors, shall be dissolved or stand adjourned to a business day in the jurisdiction in which the meeting was to have been held at the same time and place.
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•
In accordance with, and subject to, our M&A (including, for the avoidance of any doubt, any rights or restrictions attaching to any shares), (a) at any meeting of the shareholders, a resolution put to the vote of the meeting shall be decided on a show of hands by a simple majority, unless a poll is demanded by any shareholder present in person or by proxy, or by the Chairman. In the case of an equality of votes, whether on a show of hands or on a poll, the Chairman of the meeting at which the show of hands takes place, or at which the poll is demanded, shall not be entitled to a second or casting vote.
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•
In accordance with, and subject to, our M&A, (a) the rights attached to ordinary shares as specified in the M&A may only, whether or not the company is being wound up, be varied with the consent in writing of the holders of not less than one half of the issued shares of that class.
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•
Except as provided in the charter documents, changes in the rights of shareholders as set forth in the charter documents require approval of a majority of its shareholders.
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•
In accordance with, and subject to, our M&A (including, for the avoidance of any doubt, any rights or restrictions attaching to any shares), the Company may amend its memorandum or articles by a resolution of shareholders or by a resolution of directors, save that no amendment may be made by a resolution of directors (inter alia): (i) to restrict the rights or powers of the shareholders to amend the memorandum or articles; (ii) to change the percentage of shareholders required to pass a resolution of shareholders to amend the memorandum or articles; (iii) in circumstances where the memorandum or articles cannot be amended by the shareholders.
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•
The certificate of incorporation or bylaws may provide for cumulative voting.
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Directors
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BVI
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Delaware
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•
In accordance with, and subject to, our M&A (including, for the avoidance of any doubt, any rights or restrictions attaching to any ordinary shares), for so long as Everix has at least 50% of its ‘Initial Holding’ (which is the number of shares held by Everix immediately after the consummation of the Transactions) it is entitled to appoint two directors to the board. If Everix were to sell its shares such that it had 25 – 50% of its Initial Holding this would decrease to the
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•
Number of board members shall be fixed by the by laws, unless the charter fixes the number of directors, in which case a change in the number shall be made only by amendment of the charter.
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BVI
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Delaware
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number of directors it is entitled to appoint to one director; below 25% there are no appointment rights. Mr. Andrey Fadeev and Mr. Boris Gertsovskiy (collectively, “FG”) have the same rights, acting together and with the number of shares they each hold aggregated for the purposes of calculating their Initial Holding and subsequent percentages thereof.
Other directors of the Company are elected by resolution of shareholders or by resolution of directors for such term as the shareholders or directors determine. Each director holds office until the Company’s next annual general meeting immediately following their appointment, or until their earlier disqualification, death, resignation or removal. A director, other than one appointed by Everix or FG, may be removed from office by resolution of shareholders. A director may resign his office by giving written notice of his resignation to the Company and the resignation has effect from the date the notice is received by the Company at the office of its registered agent or from such later date as may be specified in the notice and a director shall resign forthwith as a director if he is, or becomes, disqualified from acting as a director under the Companies Act. A director is not required to hold shares as a qualification to office.
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Fiduciary Duties
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BVI
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Delaware
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•
Directors owe duties at both common law and under statute including as follows:
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•
Directors and officers must act in good faith, with the care of a prudent person, and in the best interest of the corporation.
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•
Duty to act honestly and in good faith and in what the director believes to be in the best interests of the company;
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•
Directors and officers must refrain from self-dealing, usurping corporate opportunities and receiving improper personal benefits.
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•
Duty to exercise powers for a proper purpose and directors shall not act, or agree to the Company acting, in a manner that contravenes the Companies Act or the M&A;
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•
The Companies Act provides that a director of a company shall, forthwith after becoming aware of the fact that he is interested in a transaction entered into, or to be entered into, by the company, disclose the interest to the board of the company. However, the failure of a director to disclose that interest does not affect the validity of a transaction entered into by the director or the company, so long as the transaction was not required to be disclosed because the transaction is
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•
Directors may vote on a matter in which they have an interest so long as the director has disclosed any interests in the transaction.
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BVI
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Delaware
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between the company and the director himself and is in the ordinary course of business and on usual terms and conditions. Additionally, the failure of a director to disclose an interest does not affect the validity of the transaction entered into by the company if (a) the material facts of the interest of the director in the transaction are known by the shareholders entitled to vote at a meeting of shareholders and the transaction is approved or ratified by a resolution of shareholders or (b) the company received fair value for the transaction.
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Shareholder’s Derivative Actions
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BVI
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Delaware
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•
Generally speaking, the company is the proper plaintiff in any action. A shareholder may, with the leave of the BVI court, bring proceedings or intervene in proceedings in the name of the company, in certain circumstances. Such actions are known as derivative actions. The BVI court may only grant leave to bring a derivative action where the following circumstances apply:
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•
In any derivative suit instituted by a shareholder of a corporation, it shall be averred in the complaint that the plaintiff was a shareholder of the corporation at the time of the transaction of which he complains or that such shareholder’s stock thereafter devolved upon such shareholder by operation of law.
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•
the company does not intend to bring, diligently continue or defend or discontinue the proceedings; and
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•
Complaint shall set forth with particularity the efforts of the plaintiff to obtain the action by the board or the reasons for not making such effort.
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•
it is in the interests of the company that the conduct of the proceedings not be left to the directors or to the determination of the shareholders as a whole. When considering whether to grant leave, the BVI court is also required to have regard to the following matters:
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•
Such action shall not be dismissed or compromised without the approval of the Delaware Court of Chancery.
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•
whether the shareholder is acting in good faith;
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•
whether a derivative action is in the interests of the company, taking into account the directors’ views on commercial matters;
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•
whether the action is likely to succeed;
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•
the costs of the proceedings in relation to the relief likely to be obtained; and
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•
whether an alternative remedy to the derivative claim is available.
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CAPITALIZATION
The following table sets forth our cash and capitalization as of June 30, 2024. The information in this table should be read in conjunction with the financial statements and notes thereto and other financial information incorporated by reference into this prospectus, as well as the financial information included in any prospectus supplement. For more details on how you can obtain the documents incorporated by reference in this prospectus, see “Where You Can Find More Information” and “Incorporation of Certain Information by Reference”.
Our historical results do not necessarily indicate our expected results for any future periods.
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As of June 30, 2024
(US$ in thousands)
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Cash(1)
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50,752
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Total indebtedness
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0 |
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Equity
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Additional paid-in capital(1)
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25,693 |
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Share-based payments reserve(1)
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|
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143,611 |
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Treasury share reserve(1)
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(33,109) |
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Translation reserve(1)
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5,904 |
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Accumulated deficit(1)
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|
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(260,806) |
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Total equity(1)
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(118,707) |
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Total capitalization(2)
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(118,707) |
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(1)
As reported on the Company’s unaudited interim condensed consolidated statement of financial position as at June 30, 2024, incorporated by reference into this prospectus.
(2)
Total capitalization is the sum of total indebtedness and total equity.
DILUTION
If you purchase our ordinary shares in this offering, you will experience immediate dilution to the extent of the difference between the offering price of the ordinary shares in this offering and the net tangible book value per ordinary shares immediately after the offering. Net tangible book value per share represents the amount of our total tangible assets less total liabilities divided by the total number of our ordinary shares then outstanding.
Our historical net tangible book value as of June 30, 2024 was approximately $(200.2) million, or approximately $(11.06) per ordinary share.
After giving effect to the sale of 1,757,026 of our ordinary shares in this offering at an assumed sales price of $27.27 per ordinary share (the last reported sales price per share of our ordinary shares on September 11, 2024) and after deducting estimated offering expenses and Sales Agent commissions payable by us, our net tangible book value as of June 30, 2024, as adjusted, would have been approximately $(154.4) million, or $(7.77) per ordinary share, based on 19,863,397 ordinary shares issued and outstanding (assuming all 1,757,026 of ordinary shares currently held in treasury are sold). This would represent an immediate change in net tangible book value of $3.29 per ordinary share to existing shareholders and immediate dilution in net tangible book value of $35.04 per share to new investors purchasing our ordinary shares in this offering. The following table illustrates this dilution:
| |
Assumed offering price per ordinary share
|
|
|
|
|
|
|
|
|
|
$ |
27.27 |
|
|
| |
Net tangible book value per ordinary share as of June 30, 2024
|
|
|
|
$ |
(11.06) |
|
|
|
|
|
|
|
|
| |
Increase in net tangible book value per ordinary share attributable to this offering
|
|
|
|
$ |
3.29 |
|
|
|
|
|
|
|
|
| |
As adjusted net tangible book value per ordinary share as of June 30, 2024
|
|
|
|
|
|
|
|
|
|
$ |
(7.77) |
|
|
| |
Dilution per ordinary share to investors in this offering
|
|
|
|
|
|
|
|
|
|
$ |
35.04 |
|
|
The number of our ordinary shares that will be outstanding immediately after this offering as shown above is based on 19,863,397 shares issued and outstanding as of September 10, 2024, and excludes the following as of that date: (i) 2,024,999 ordinary shares issuable upon exercise of our 20,249,993 outstanding warrants, (ii) the 12,000 ordinary shares that may be issued as a consequence of the exercise of the options granted to Kismet’s former independent director, and (iii) the ordinary shares that may be issued under our 2021 ESOP.
TAXATION
United States federal income tax considerations generally applicable to the ownership and disposition of the ordinary shares offered by this prospectus are discussed below, which supersedes and replaces, in its entirety, the corresponding discussion under the heading “Certain Material U.S. Federal Income Tax Considerations” set forth in “Item 10. Additional Information — E. Taxation” in our most recent Annual Report on Form 20-F.
Material British Virgin Islands tax consequences relating to the purchase, ownership and disposition of the ordinary shares offered by this prospectus are set forth in “Item 10. Additional Information —
E. Taxation — British Virgin Islands Tax Considerations” in our most recent Annual Report on Form 20-F. Except as set forth below, material Cyprus tax consequences relating to the purchase, ownership and disposition of the ordinary shares offered by this prospectus are set forth in “Item 10. Additional Information — E. Taxation — Cyprus Tax Considerations” in our most recent Annual Report on Form 20-F.
U.S. Federal Income Tax Considerations
The following is a summary of U.S. federal income tax considerations generally applicable to the ownership and disposition of our ordinary shares acquired in this offering by U.S. Holders (as defined below). Unless otherwise noted, this summary addresses only U.S. Holders that hold our ordinary shares as “capital assets” (generally, property held for investment) for U.S. federal income tax purposes. This summary is based on the U.S. Internal Revenue Code of 1986, as amended (the “Code”), U.S. Treasury regulations promulgated thereunder, judicial decisions, administrative pronouncements and other relevant authorities, all as in effect as of the date hereof and all of which are subject to change or differing interpretations (possibly with retroactive effect).
This summary does not address U.S. federal estate, gift or other non-income tax considerations, the alternative minimum tax, the Medicare tax on certain net investment income, or any state, local or non-U.S. tax considerations, relating to the ownership or disposition of our ordinary shares, nor does it address all aspects of U.S. federal income taxation that may be relevant to a particular U.S. Holder in light of that U.S. Holder’s particular circumstances or that may be relevant to certain types of U.S. Holders subject to special treatment under U.S. federal income tax law, such as:
•
banks and other financial institutions;
•
insurance companies;
•
regulated investment companies;
•
real estate investment trusts;
•
broker-dealers or traders in securities, commodities or currencies;
•
traders that elect to use a mark-to-market method of accounting;
•
certain former citizens or long-term residents of the United States;
•
tax-exempt entities (including private foundations);
•
persons that acquire our ordinary shares pursuant to any employee share option or otherwise as compensation;
•
persons that hold our ordinary shares as part of a straddle, hedge, conversion, constructive sale or other integrated transaction for U.S. federal income tax purposes;
•
persons whose functional currency is not the U.S. Dollar;
•
persons that actually or constructively own 10% or more of our stock (by vote or value); and
•
partnerships or other entities or arrangements subject to tax as partnerships for U.S. federal income tax purposes (and investors therein).
The information set forth below is of a general nature only and is not intended to be tax advice. Each prospective investor should consult its tax advisor with respect to the U.S. federal, state, local and non-U.S.
income and other tax considerations relevant to the ownership and disposition of our ordinary shares in light of its particular circumstances.
General
For purposes of this discussion, a “U.S. Holder” is a beneficial owner of our ordinary shares that is, for U.S. federal income tax purposes:
•
an individual who is a citizen or resident of the United States;
•
a corporation (or other entity treated as a corporation for U.S. federal income tax purposes) created in, or organized in or under the laws of, the United States or any political subdivision thereof;
•
an estate the income of which is includible in gross income for U.S. federal income tax purposes regardless of its source; or
•
a trust if (i) a court within the United States is able to exercise primary supervision over the administration of the trust and one or more U.S. persons have the authority to control all of the trust’s substantial decisions, or (ii) it has validly elected to be treated as a domestic trust for U.S. federal income tax purposes.
If a partnership (or other entity or arrangement treated as a partnership for U.S. federal income tax purposes) owns our ordinary shares, the U.S. federal income tax treatment of a partner in the partnership will generally depend upon the status of the partner and the activities of the partnership. Partnerships holding our ordinary shares and their partners should consult their tax advisors regarding an investment in our ordinary shares.
Distributions
The gross amount of any distributions to a U.S. Holder on our ordinary shares (including any non-U.S. taxes withheld therefrom) will generally be subject to tax as dividends to the extent paid out of our current or accumulated earnings and profits, as determined for U.S. federal income tax purposes, and will be includible in the gross income of such U.S. Holder on the day actually or constructively received. Such dividends will not be eligible for the dividends received deduction generally allowed to U.S. corporations under the Code. The following discussion assumes that any dividends will be paid in U.S. Dollars. Distributions in excess of our current and accumulated earnings and profits will be treated as a non-taxable return of capital to the extent of the U.S. Holder’s adjusted tax basis in our ordinary shares and any remaining amount will generally be treated as capital gain. We do not intend to determine our earnings and profits in accordance with U.S. federal income tax principles. Therefore, U.S. Holders should expect that the full amount of any distribution we pay will be treated as a dividend for U.S. federal income tax purposes even if that distribution would otherwise be treated as a non-taxable return of capital or as capital gain under the rules described above.
An individual or other non-corporate U.S. Holder of our ordinary shares may be eligible for reduced rates of taxation on dividends (i) received from a qualified foreign corporation if such qualified foreign corporation is neither a PFIC (as defined below) nor treated as such with respect to such U.S. Holder for the taxable year in which the dividend is paid or for the preceding taxable year, and (ii) provided that certain holding period and other requirements are met. A foreign corporation that is not classified as a PFIC is generally treated as a qualified foreign corporation with respect to dividends paid on ordinary shares if such ordinary shares are “readily tradable” on an “established securities market” in the United States. Although our ordinary shares are listed on the Nasdaq, our ordinary shares may not be considered readily tradable on an established securities market in the current year or subsequent years. As discussed below under “— Passive Foreign Investment Company (“PFIC”) Considerations,” although there can be no assurances regarding our PFIC status for any taxable year, we believe that we were not a PFIC for our 2023 taxable year. Thus, dividends paid on our ordinary shares to individuals and other non-corporate U.S. Holders may constitute “qualified dividend income” eligible for reduced rates of taxation if we are a qualified foreign corporation and we are not a PFIC with respect to such U.S. Holders for the taxable year in which the dividend is paid or in the preceding taxable year. U.S. Holders should consult their tax advisors regarding the applicability of the reduced rates of taxation on dividends paid with respect to our ordinary shares.
For U.S. foreign tax credit purposes, dividends received on our ordinary shares will generally be treated as income from sources outside the United States and will generally constitute passive category income. A U.S. Holder that does not claim a foreign tax credit for any foreign taxes withheld may instead elect to deduct such taxes in computing its taxable income for U.S. federal income tax purposes. A U.S. Holder’s election to deduct foreign taxes instead of claiming foreign tax credits applies to all creditable foreign income taxes paid or accrued in the relevant taxable year. The rules regarding foreign tax credits and the deductibility of foreign taxes are complex and the application thereof depends in large part on the U.S. Holder’s individual facts and circumstances. All U.S. Holders should consult their tax advisors regarding the availability of foreign tax credits and the deductibility of foreign taxes in light of their particular circumstances.
Sale or Other Disposition of Our Ordinary Shares
A U.S. Holder will generally recognize gain or loss on the sale or other disposition of our ordinary shares in an amount equal to the difference between the amount realized on the disposition and the U.S. Holder’s adjusted tax basis in our ordinary shares. Any such gain or loss will generally be long-term capital gain or loss if the U.S. Holder’s holding period in our ordinary shares exceeds one year at the time of disposition and will generally be U.S. source gain or loss for U.S. foreign tax credit purposes. Long-term capital gains of individuals and certain other non-corporate U.S. Holders are generally eligible for a reduced rate of taxation relative to the rate applicable to ordinary income. The deductibility of capital losses may be subject to limitations.
Any gain or loss on the sale or other disposition of our ordinary shares will generally be treated as U.S. source income or loss for U.S. foreign tax credit purposes. Accordingly, U.S. Holders may not be able to claim a foreign tax credit for any foreign taxes imposed in connection with a disposition of our ordinary shares in the absence of foreign source income from other sources. Any such U.S. Holder may instead elect to deduct such taxes in computing its taxable income for U.S. federal income tax purposes, but only for a year in which such U.S. Holder elects to do so for all foreign taxes paid or accrued during such year. The rules regarding foreign tax credits and the deductibility of foreign taxes are complex and the application thereof depends in large part on the U.S. Holder’s individual facts and circumstances.
U.S. Holders should consult their tax advisors regarding the tax consequences if a foreign tax is imposed on their disposition of our ordinary shares, including with respect to the availability of the foreign tax credit or deduction in lieu thereof in light of their particular circumstances.
Passive Foreign Investment Company (“PFIC”) Considerations
The treatment of U.S. Holders of our ordinary shares could be materially different from that described above if the Company is treated as a PFIC for U.S. federal income tax purposes. A non-U.S. corporation, such as the Company, will be classified as a PFIC for U.S. federal income tax purposes for any taxable year in which either (i) 75% or more of its gross income for such year consists of certain types of “passive” income or (ii) 50% or more of the value of its assets (generally based on an average of the quarterly values of the assets) during such year is attributable to assets that produce or are held for the production of passive income (the “asset test”).
Passive income generally includes dividends, interest, royalties, rents, annuities, net gains from the sale or exchange of property producing such income and net foreign currency gains. Passive assets are those which give rise to passive income and include assets held for investment, as well as cash, assets readily convertible into cash, and (subject to certain exceptions) working capital. The Company’s goodwill and other unbooked intangibles are taken into account and may be classified as active or passive depending on the income such assets generate or are held to generate. We will be treated as owning a proportionate share of the assets and earning a proportionate share of the income of any other corporation in which we own, directly, indirectly or constructively, 25% or more (by value) of its stock.
Based on an analysis of our income and the value of our assets, we believe that we were not a PFIC for the taxable year ended December 31, 2023, although no assurance can be given due to the highly factual nature of such analysis. Our PFIC status for the current taxable year ending December 31, 2024, will not be determinable until after the close of the year, and it is possible that we may be classified as a PFIC for the current taxable year and for future taxable years. No assurances can be given in this regard. The determination
of whether we are or will become a PFIC is uncertain because it is a fact-intensive inquiry made on an annual basis that depends, in part, on the composition of our income and assets and the fair market value of our subsidiaries’ shares and assets. Fluctuations in the market price of our ordinary shares may influence whether we are classified as a PFIC for the current or subsequent taxable years because the value of our assets for purposes of the asset test may be determined by reference to the market price of our ordinary shares from time to time (which may be volatile). The composition of our income and assets may also be affected by how, and how quickly, we use our liquid assets. Under circumstances where our revenue from activities that produce passive income increases relative to our revenue from activities that produce non-passive income, or where we determine not to deploy cash for active purposes, our risk of being classified as a PFIC will increase.
If we are a PFIC for any taxable year during which a U.S. Holder holds our ordinary shares, the U.S. Holder will be subject to special tax rules with respect to any “excess distribution” that the holder receives on our ordinary shares and any gain the U.S. Holder recognizes from a sale or other disposition (including a pledge) of our ordinary shares, unless the U.S. Holder makes a “mark-to-market” election as discussed below. Distributions received by a U.S. Holder on our ordinary shares in a taxable year that are greater than 125% of the average annual distributions the U.S. Holder received in the three preceding taxable years or, if shorter, such U.S. Holder’s holding period for our ordinary shares will be treated as an excess distribution. Under these special tax rules:
•
the excess distribution or gain will be allocated pro rata over the U.S. Holder’s holding period for our ordinary shares;
•
amounts allocated to the current taxable year and to any taxable years in the U.S. Holder’s holding period prior to the first taxable year in which we are classified as a PFIC (each, a “pre-PFIC year”) will be subject to tax as ordinary income;
•
amounts allocated to each prior taxable year, other than a pre-PFIC year, will be subject to tax at the highest marginal tax rate in effect applicable to the U.S. Holder for that year; and
•
an additional tax equal to the interest charge generally applicable to underpayments of tax will be imposed on the tax attributable to each prior taxable year, other than a pre-PFIC year.
If we are a PFIC for any taxable year during which a U.S. Holder holds our ordinary shares, we will continue to be treated as a PFIC with respect to such U.S. Holder’s ordinary shares in future taxable years unless (i) we cease to be a PFIC and (ii) the U.S. Holder has made a “deemed sale” election under the PFIC rules. If a U.S. Holder makes a deemed sale election, the U.S. Holder will be deemed to have sold our ordinary shares at their fair market value as of the last day of the last year for which we were a PFIC. Any gain from such deemed sale would be treated as an excess distribution subject to the excess distribution rules described above.
Alternatively, a U.S. Holder of “marketable stock” (as defined below) in a PFIC may make a mark-to-market election for such stock of a PFIC to elect out of the excess distribution tax treatment discussed in the second preceding paragraph. If a U.S. Holder makes a valid mark-to-market election for our ordinary shares, the U.S. Holder will include in income each year an amount equal to the excess, if any, of the fair market value of our ordinary shares as of the close of such U.S. Holder’s taxable year over such U.S. Holder’s adjusted basis in such ordinary shares. The U.S. Holder is allowed a deduction for the excess, if any, of such U.S. Holder’s adjusted basis in our ordinary shares over their fair market value as of the close of the taxable year. Deductions are allowable, however, only to the extent of any net mark-to-market gains on our ordinary shares included in the U.S. Holder’s income for prior taxable years. Amounts included in the U.S. Holder’s income under a mark-to-market election, as well as gain on the actual sale or other disposition of our ordinary shares, will be treated as ordinary income. Ordinary loss treatment also applies to the deductible portion of any mark-to-market loss on our ordinary shares, as well as to any loss realized on the actual sale or disposition of our ordinary shares, to the extent that the amount of such loss does not exceed the net mark-to-market gains previously included in income with respect to such ordinary shares. The U.S. Holder’s basis in our ordinary shares will be adjusted to reflect any such income or loss amounts. If a U.S. Holder makes such a mark-to-market election, then, in any taxable year for which we are a PFIC, tax rules that apply to distributions by corporations which are not PFICs would apply to distributions by us (except that the lower applicable capital gains rate for qualified dividend income would not apply). If a U.S.
Holder makes a valid mark-to-market election, and we subsequently cease to be classified as a PFIC, such U.S. Holder will not be required to take into account the mark-to-market income or loss described above during any period that we are not classified as a PFIC.
The mark-to-market election is available only for “marketable stock” which is stock that is traded in other than de minimis quantities on at least 15 days during each calendar quarter (“regularly traded”) on a qualified exchange or other market, as defined in applicable regulations. We expect that our ordinary shares will continue to be listed on the Nasdaq, which is a qualified exchange for these purposes, and, consequently, assuming that our ordinary shares are regularly traded, if a U.S. Holder holds our ordinary shares, it is expected that the mark-to-market election would be available to such U.S. Holder were we to be or become a PFIC.
In addition, because, as a technical matter, a mark-to-market election cannot be made for any lower-tier PFICs that we may own, a U.S. Holder may continue to be subject to the PFIC rules with respect to such U.S. Holder’s indirect interest in any such lower-tier PFICs.
We do not intend to provide the information necessary for U.S. Holders to make qualified electing fund elections, which, if available, would result in tax treatment different from the general tax treatment for PFICs described above.
A U.S. Holder that owns our ordinary shares during any taxable year that we are a PFIC must generally file an annual report with the IRS regarding their ownership of such shares. U.S. Holders should consult their tax advisors concerning the U.S. federal income tax considerations with respect to holding and disposing of our ordinary shares if we were, are, or become a PFIC, including the availability and possibility of making a mark-to-market election and the annual PFIC filing requirements, if any.
THE PRECEDING SUMMARY OF U.S. FEDERAL INCOME TAX CONSIDERATIONS IS INTENDED FOR GENERAL INFORMATION ONLY AND DOES NOT CONSTITUTE TAX ADVICE. U.S. HOLDERS SHOULD CONSULT THEIR TAX ADVISORS AS TO THE U.S. FEDERAL, STATE, LOCAL, AND NON-U.S. TAX CONSIDERATIONS GENERALLY APPLICABLE TO THE OWNERSHIP AND DISPOSITION OF OUR ORDINARY SHARES IN LIGHT OF THEIR PARTICULAR CIRCUMSTANCES.
Cyprus Tax Considerations
The discussion below under the heading “Taxation of Investors — Interest” and “Taxation of Investors — Tax Residency for Companies” supersedes and replaces, in its entirety, the corresponding discussions under the heading “Cyprus Tax Considerations” as set forth in “Item 10. Additional Information — E. Taxation” in our most recent Annual Report on Form 20-F.
Taxation of Investors
•
Interest. WHT at the rate of 17% (rate was reduced from 30% effective from January 1, 2024) will apply on interest paid by a Cyprus tax resident company to companies which are:
•
resident in jurisdictions included in the EU Blacklist, or
•
incorporated/registered in a jurisdiction included in the EU Blacklist and are not tax resident in any other jurisdiction that is not included in the EU Blacklist.
Tax Residency for Companies
A company is considered to be tax resident in the Republic of Cyprus if its management and control is exercised in Cyprus. There is no definition in the Cyprus income tax laws as to what constitutes management and control, however in practice it is considered to be exercised where:
(1)
the Majority of the directors are resident;
(2)
the Majority of the Board of Directors meetings are held; and
(3)
the majority of significant decisions are taken.
PLAN OF DISTRIBUTION
We have entered into the Sales Agreement with Cantor Fitzgerald and Oppenheimer. Pursuant to this prospectus, we may offer and sell up to 1,757,026 of our ordinary shares from time to time through the Sales Agents. This summary of the material provisions of the Sales Agreement does not purport to be a complete statement of its terms and conditions. A copy of the Sales Agreement has been filed as an exhibit to the registration statement of which this prospectus forms a part and is incorporated by reference in this prospectus.
Upon delivery of a placement notice and subject to the terms and conditions of the Sales Agreement, the Sales Agents may sell our ordinary shares by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415(a)(4) promulgated under the Securities Act. We may instruct the Sales Agents not to sell our ordinary shares if the sales cannot be effected at or above the price designated by us from time to time. We or the Sales Agents may suspend the offering of our ordinary shares upon notice and subject to other conditions. We may only instruct one sales agent to sell ordinary shares under the Sales Agreement on any single given day.
We will pay the Sales Agents commissions, in cash, for their respective services in acting as agent in the sale of our ordinary shares. The Sales Agents are entitled to compensation at a commission rate of 3.0% of the aggregate gross sales price per share sold under the Sales Agreement. Because there is no minimum offering amount required as a condition to close this offering, the actual total public offering amount, commissions and proceeds to us, if any, are not determinable at this time. We have also agreed to reimburse the Sales Agents for certain specified expenses, including the reasonable and documented fees and disbursements of its legal counsel in an amount not to exceed $100,000, and certain ongoing expenses. We estimate that the total expenses for the offering under this prospectus, excluding compensation and reimbursements payable to the Sales Agents under the terms of the Sales Agreement, will be approximately $713,300.
Settlement for sales of ordinary shares will occur on the first trading day following the date on which any sales are made, or on some other date that is agreed upon by us and the Sales Agents in connection with a particular transaction, in return for payment of the net proceeds to us. Sales of our ordinary shares as contemplated in this prospectus will be settled through the facilities of The Depository Trust Company or by such other means as we and the Sales Agents may agree upon. There is no arrangement for funds to be received in an escrow, trust or similar arrangement.
The Sales Agents will use their commercially reasonable efforts, consistent with their respective sales and trading practices, to solicit offers to purchase the ordinary shares under the terms and subject to the conditions set forth in the Sales Agreement. In connection with the sale of the ordinary shares on our behalf, the Sales Agents will each be deemed to be an “underwriter” within the meaning of the Securities Act and the compensation of the Sales Agents will be deemed to be underwriting commissions or discounts. We have agreed to provide indemnification and contribution to Sales Agents against certain civil liabilities, including liabilities under the Securities Act.
The offering of our ordinary shares pursuant to the Sales Agreement will terminate upon the termination of the Sales Agreement as permitted therein.
The Sales Agents and their affiliates have provided in the past, are currently providing and may in the future provide various investment banking, commercial banking and other financial services for us and our affiliates, for which services they received in the past and may in the future receive customary fees. To the extent required by Regulation M, the Sales Agents will not engage in any market making activities involving our ordinary shares while the offering is ongoing under this prospectus.
This prospectus may be made available on websites maintained by each Sales Agents and each of the Sales Agents may distribute this prospectus electronically.
The address of Cantor Fitzgerald is 110 East 59th Street New York, NY 10022 and the address of Oppenheimer is 85 Broad Street, 23rd Floor New York, NY 10004.
EXPENSES RELATED TO THE OFFERING
The following is a statement of costs and expenses, other than any discounts and commissions to the Sales Agents, we expect to incur in connection with the distribution of the ordinary shares covered by this prospectus. All of the below are estimates except of the SEC registration and FINRA filing fees.
|
Expenses
|
|
|
Amount
|
|
|
SEC registration fee
|
|
|
|
$ |
6,841.31 |
|
|
|
FINRA filing fee
|
|
|
|
$ |
7,452.55 |
|
|
|
Printing expenses
|
|
|
|
$ |
9,000 |
|
|
|
Legal fees and expenses
|
|
|
|
$ |
380,000 |
|
|
|
Accounting fees and expenses
|
|
|
|
$ |
310,000 |
|
|
|
Total
|
|
|
|
$ |
713,293.86 |
|
|
LEGAL MATTERS
Ogier, British Virgin Islands, has passed upon the validity of the securities offered by this prospectus with respect to the ordinary shares and matters of British Virgin Islands law.
Skadden, Arps, Slate, Meagher & Flom (UK) LLP, has passed upon certain matters of United States federal securities and New York State law. The Sales Agents are being represented by Cooley LLP, New York, New York.
EXPERTS
The consolidated financial statements of GDEV Inc. as of December 31, 2023 and 2022 and for each of the years in the two-year period ended December 31, 2023, have been incorporated by reference herein in reliance upon the report of KPMG Certified Auditors S.A., independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing.
The consolidated financial statements of GDEV Inc. as of December 31, 2021, and for the year ended December 31, 2021, have been incorporated by reference herein in reliance upon the report of JSC “Kept” (formerly, JSC “KPMG”), independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing.
ENFORCEABILITY OF CIVIL LIABILITIES UNDER U.S. SECURITIES LAWS
GDEV is a business company incorporated in the British Virgin Islands and therefore, located outside of the United States. Some of GDEV’s directors, executive officers and persons discharging managerial responsibilities, and certain experts named in this prospectus, reside outside the United States. A substantial portion of GDEV’s assets and the assets of those non-resident persons are located outside the United States. As a result, it may not be possible for investors to effect service of process within the United States upon GDEV or those persons or to enforce against GDEV or them, either inside or outside the United States, judgments obtained in U.S. courts, or to enforce in U.S. courts, judgments obtained against them in courts in jurisdictions outside the United States, in any action predicated upon civil liability provisions of the federal securities laws of the United States. Both in original actions and in actions for the enforcement of judgments of U.S. courts, there is doubt as to whether civil liabilities predicated solely upon the U.S. federal securities laws are enforceable in the British Virgin Islands.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is part of a registration on Form F-3, which we have filed with the SEC under the Securities Act, and does not contain all of the information set forth in the registration statement and the exhibits and schedules to the registration statement. We have omitted parts of the registration statement in accordance with the rules and regulations of the SEC. You should read the registration statement and the exhibits and schedules included in the registration statement, incorporated by reference in and deemed to be incorporated by reference in this prospectus for further information with respect to the Company and the securities offered in this prospectus.
We are subject to the periodic reporting and other information requirements of the Exchange Act as applicable to a “foreign private issuer,” and we will file annual reports and other information from time to time with the SEC in accordance with such requirements. Our SEC filings will be available to the public on the internet at a website maintained by the SEC located at www.sec.gov. As a foreign private issuer, we are exempt under the Exchange Act from, among other things, the rules prescribing the furnishing and content of proxy statements, and our executive officers, directors and principal shareholders are exempt from the reporting and short-swing profit recovery provisions contained in Section 16 of the Exchange Act. In addition, we are not required under the Exchange Act to file periodic reports and financial statements with the SEC as frequently or as promptly as U.S. companies whose securities are registered under the Exchange Act.
We also maintain an Internet website at https://gdev.inc. Through our website, we will make available, free of charge, the following documents as soon as reasonably practicable after they are electronically filed with, or furnished to, the SEC: our Annual Reports on Form 20-F; our reports on Form 6-K; amendments to these documents; and other information as may be required by the SEC. The information contained on, or that may be accessed through, our website is not part of, and is not incorporated into, this prospectus.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate by reference much of the information that we file with the SEC, which means that we can disclose important information to you by referring you to those publicly available documents. The information that we incorporate by reference in this prospectus is considered to be part of this prospectus. Because we are incorporating by reference future filings with the SEC, this prospectus is continually updated and those future filings may modify or supersede some of the information included or incorporated by reference in this prospectus. This means that you must look at all of the SEC filings that we incorporate by reference to determine if any of the statements in this prospectus or in any document previously incorporated by reference have been modified or superseded.
This prospectus incorporates by reference the documents listed below and any future filings we make with the SEC until the offering of the securities under the registration statement of which this prospectus forms a part is terminated or completed:
•
•
•
•
•
our report on Form 6-K filed with the SEC on September 4, 2024 in relation to (i) our preliminary unaudited results for the second quarter and first half of 2024 and (ii) our unaudited interim condensed consolidated financial report for the three and six months ended June 30, 2024; and
•
the description of our ordinary shares contained in our registration statement on Form 8-A (File No. 001-40758) filed with the SEC on August 24, 2021, as updated by the description of our ordinary shares contained in Exhibit 2.7 to our 2023 20-F, including any further amendment or reports filed for the purpose of updating such description.
We are also incorporating by reference all subsequent annual reports on Form 20-F that we file with the SEC and certain reports on Form 6-K that we furnish to the SEC after the date hereof (if such reports on Form 6-K expressly state that they are incorporated in whole or in part by reference into the registration statement of which this prospectus forms a part) prior to the termination of this offering. In all cases, you should rely on the later information over different information included in this prospectus or any applicable prospectus.
Unless expressly incorporated by reference, nothing in this prospectus shall be deemed to incorporate by reference information furnished to, but not filed with, the SEC. Copies of all documents incorporated by reference in this prospectus, other than exhibits to those documents unless such exhibits are specifically incorporated by reference in this prospectus, will be provided at no cost to each person, including any beneficial owner, who receives a copy of this prospectus on the written or oral request of that person made to:
GDEV Inc.
55, Griva Digeni 3101, Limassol
Cyprus
Attn: Investor Relations
Tel: +35722580040
GDEV INC.
Up to 1,757,026
Ordinary Shares
PROSPECTUS
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Cantor
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Oppenheimer & Co.
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, 2024
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 8. Indemnification of Directors and Officers
British Virgin Islands law does not limit the extent to which a company’s memorandum and articles of association may provide for indemnification of officers and directors, provided that such person acted honestly and in good faith with a view to the best interests of the indemnifying company and, in the case of criminal proceedings, the person had no reasonable cause to believe that their conduct was unlawful, except to the extent any such provision may be held by the British Virgin Islands courts to be contrary to public policy, such as to provide indemnification against civil fraud or the consequences of committing a crime. GDEV’s memorandum and articles of association permit indemnification of officers and directors to the maximum extent permitted by law, including for any liability incurred in their capacities as such, except through their own actual fraud or the commission of a crime.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers or persons controlling us under the foregoing provisions, we have been informed that in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Item 9. Exhibits
The following exhibits are included or incorporated by reference in this registration statement on Form F-3:
(*)
Filed herewith
Item 10. Undertakings.
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii)
to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement;
(iii)
to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (i), (ii) and (iii) do not apply if the registration statement is on Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4)
To file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A of Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Securities Act need not be furnished, provided that the registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (4) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing, with respect to registration statements on Form F-3, a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Securities Act or Item 8.A of Form 20-F if such financial statements and information are contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Form F-3.
(5)
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i)
each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii)
each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(6)
That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i)
any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii)
any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii)
the portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv)
any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(7)
That, for purposes of determining liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(8)
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such Director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Limassol, Cyprus on the 12th day of September, 2024.
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GDEV INC.
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By:
/s/ Andrey Fadeev
Name: Andrey Fadeev
Title: Chief Executive Officer and Director
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below does hereby constitute and appoint Andrey Fadeev as his or her true and lawful attorney-in-fact and agent, with full power of substitution and re-substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and any subsequent registration statement filed by the registrant pursuant to Rule 462(b) of the Securities Act, and to file or cause to be filed the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
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Signature
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Capacity
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Date
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/s/ Andrey Fadeev
Andrey Fadeev
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Chief Executive Officer and Director
(principal executive officer)
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September 12, 2024
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/s/ Alexander Karavaev
Alexander Karavaev
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Chief Financial Officer
(principal financial officer and principal accounting officer)
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September 12, 2024
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/s/ Natasha Braginsky Mounier
Natasha Braginsky Mounier
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Chairperson & Director
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September 12, 2024
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/s/ Marie Holive
Marie Holive
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Director
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September 12, 2024
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/s/ Olga Loskutova
Olga Loskutova
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Director
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September 12, 2024
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/s/ Andrew Sheppard
Andrew Sheppard
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Director
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September 12, 2024
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/s/ Tal Shoham
Tal Shoham
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Director
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September 12, 2024
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AUTHORIZED REPRESENTATIVE
Pursuant to the requirement of the Securities Act of 1933, the undersigned, the duly authorized representative in the United States of GDEV Inc., has signed this registration statement on Form F-3 in Newark, Delaware, on the 12th day of September, 2024.
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PUGLISI & ASSOCIATES
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By:
/s/ Donald J. Puglisi
Name: Donald J. Puglisi
Title: Managing Director
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Exhibit 1.2
GDEV
Inc.
Ordinary Shares
(no par value)
Controlled Equity OfferingSM
Sales Agreement
September 12, 2024
Cantor Fitzgerald & Co.
110 East 59th Street
New York, NY 10022
Oppenheimer & Co. Inc.
85 Broad Street, Floor 23
New York, NY 10004
Ladies and Gentlemen:
GDEV Inc., a British Virgin
Islands business company, and its consolidated subsidiaries (the “Company”), confirms its agreement (this “Agreement”)
by and between Cantor Fitzgerald & Co. and Oppenheimer & Co. Inc. (the “Agents”), as follows:
1. Sale
of Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions
set forth herein, it may sell to or through the Agents, as sales agents or principals, 1,757,026 ordinary shares (the “Placement
Shares”) of the Company, no par value (the “Common Stock”), held by the Company in its treasury
account; provided, however, that in no event shall the Company sell through the Agents such number or dollar amount of Placement
Shares that would (a) exceed the number or dollar amount of shares of Common Stock registered on the effective Registration Statement
(defined below) pursuant to which the offering is being made (b) exceed the number or dollar amount of shares of Common Stock permitted
to be sold under Form F-3 (including General Instruction I.B.5 thereof, if applicable) or (c) exceed the number or dollar amount
of shares of Common Stock for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (a), (b) and (c),
the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that
compliance with the limitations set forth in this Section 1 on the amount of Placement Shares sold under this Agreement shall
be the sole responsibility of the Company and that the Agents shall have no obligation in connection with such compliance. The offer and
sale of Placement Shares through the Agents will be effected pursuant to the Registration Statement (as defined below) filed by the Company
and which will be declared effective by the Securities and Exchange Commission (the “Commission”), although
nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue and sell any Common Stock.
The Company has filed or will
file, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”), and
the rules and regulations thereunder (the “Securities Act Regulations”), with the Commission a registration
statement on Form F-3, including a base prospectus, relating to the Placement Shares which incorporates by reference documents that
the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and the rules and regulations thereunder. The Company has prepared a prospectus or a prospectus supplement to
the base prospectus included as part of the registration statement, which prospectus or prospectus supplement relates to the Placement
Shares to be sold from time to time by the Company (the “Prospectus Supplement”). The Company will furnish to
the Agents, for use by the Agents, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus
Supplement, relating to the Placement Shares to be issued from time to time by the Company. Except where the context otherwise requires,
such registration statement(s), including all documents filed as part thereof or incorporated by reference therein, and including any
information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under
the Securities Act Regulations or deemed to be a part of such registration statement pursuant to Rule 430B under the Securities Act
Regulations, and any one or more additional effective registration statements on Form F-3 from time to time that will contain a base
prospectus and related prospectus or prospectus supplement, if applicable (which shall be a Prospectus Supplement), with respect to the
Placement Shares, is herein called the “Registration Statement.” The base prospectus or base prospectuses, including
the Incorporated Documents (as defined below), included in the Registration Statement, as it may be supplemented, if necessary, by the
Prospectus Supplement, in the form in which such prospectus or prospectuses and/or Prospectus Supplement have most recently been filed
by the Company with the Commission pursuant to Rule 424(b) under the Securities Act Regulations, together with the then issued
Issuer Free Writing Prospectus(es) (as defined below), is herein called the “Prospectus.”
Any reference herein to the
Registration Statement, any Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and
include the documents, if any, incorporated by reference therein (the “Incorporated Documents”), including,
unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to
the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Prospectus
Supplement, the Prospectus or any Issuer Free Writing Prospectus shall be deemed to refer to and include the filing of any document under
the Exchange Act on or after the most-recent effective date of the Registration Statement, or the date of the Prospectus Supplement, Prospectus
or such Issuer Free Writing Prospectus, as the case may be, and incorporated therein by reference. For purposes of this Agreement, all
references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include the most
recent copy filed with the Commission pursuant to its Electronic Data Gathering Analysis and Retrieval system, or if applicable, the Interactive
Data Electronic Application system when used by the Commission (collectively, “EDGAR”).
2. Placements.
Each time that the Company wishes to sell Placement Shares hereunder (each, a “Placement”), it will notify an
Agent (the “Designated Agent”) by email notice (or other method mutually agreed to by the parties) of the number
of Placement Shares to be sold, the time period during which sales are requested to be made, any limitation on the number of Placement
Shares that may be sold in any one day and any minimum price below which sales may not be made (a “Placement Notice”),
the form of which is attached hereto as Schedule 1. The Placement Notice shall originate from any of the individuals from the Company
set forth on Schedule 3 (with a copy to each of the other individuals from the Company listed on such schedule) and shall be addressed
to each of the individuals from the Designated Agent set forth on Schedule 3, as such Schedule 3 may be amended from time
to time. The Placement Notice shall be effective unless and until (i) the Designated Agent declines in writing to accept the terms
contained therein for any reason, in its sole discretion, (ii) the entire amount of the Placement Shares thereunder have been sold,
(iii) the Company suspends or terminates the Placement Notice for any reason, in its sole discretion or (iv) this Agreement
has been terminated under the provisions of Section 12. The amount of any discount, commission or other compensation to be
paid by the Company to the Designated Agent in connection with the sale of the Placement Shares shall be calculated in accordance with
the terms set forth in Schedule 2. It is expressly acknowledged and agreed that neither the Company nor the Agents will have any
obligation whatsoever with respect to a Placement or any Placement Shares unless and until the Company delivers a Placement Notice to
the Designated Agent and the Designated Agent does not decline such Placement Notice pursuant to the terms set forth above, and then only
upon the terms specified therein and herein. In the event of a conflict between the terms of this Agreement and the terms of a Placement
Notice, the terms of the Placement Notice will control.
3. Sale
of Placement Shares by the Designated Agent. Subject to the provisions of Section 5(a), the Designated Agent, for the
period specified in the Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales practices
and applicable state and federal laws, rules and regulations and the rules of the Nasdaq Global Market (the “Exchange”),
to sell the Placement Shares up to the amount specified in, and otherwise in accordance with the terms of, such Placement Notice. The
Designated Agent will provide written confirmation to the Company and the other Agent no later than seven hours prior to the opening of
the Trading Day (as defined below) immediately following the Trading Day on which it has made sales of Placement Shares hereunder setting
forth the number of Placement Shares sold on such day, the compensation payable by the Company to the Designated Agent pursuant to Section 2
with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made
by the Designated Agent (as set forth in Section 5(b)) from the gross proceeds that it receives from such sales. Subject to
the terms of the Placement Notice, the Designated Agent may sell Placement Shares by any method permitted by law deemed to be an “at
the market offering” as defined in Rule 415(a)(4) of the Securities Act Regulations, including sales made directly on
or through the Exchange or any other existing trading market for the Common Stock, in negotiated transactions at market prices prevailing
at the time of sale or at prices related to such prevailing market prices and/or any other method permitted by law. The Designated Agent
shall not sell Placement Shares in a negotiated transaction without the prior written consent of the Company. “Trading Day”
means any day on which Common Stock is traded on the Exchange.
4. Suspension
of Sales. The Company or the Designated Agent may, upon notice to the other party in writing (including by email correspondence to
each of the individuals of the other party set forth on Schedule 3, if receipt of such correspondence is actually acknowledged
by any of the individuals to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately by verifiable
facsimile transmission or email correspondence to each of the individuals of the other party set forth on Schedule 3), suspend
or terminate any sale of Placement Shares for any reason and at any time (a “Suspension”); provided,
however, that such Suspension shall not affect or impair any party’s obligations with respect to any Placement Shares sold
hereunder prior to the receipt of such notice. While a Suspension is in effect any obligation under Sections 7(l), 7(m),
and 7(o) with respect to the delivery of certificates, opinions, or comfort letters to the Agents, shall be waived. Each of
the parties agrees that no such notice under this Section 4 shall be effective against any other party unless it is made to
one of the individuals named on Schedule 3 hereto, as such Schedule may be amended from time to time. Notwithstanding any other
provision of this Agreement, during any period in which the Company is in possession of material non-public information, the Company and
the Agents agree that (i) no sale of Placement Shares will take place, (ii) the Company shall not request the sale of any Placement
Shares, and (iii) the Agents shall not be obligated to sell or offer to sell any Placement Shares.
5. Sale
and Delivery to the Designated Agent; Settlement.
(a) Sale
of Placement Shares. On the basis of the representations and warranties herein contained and subject to the terms and conditions
herein set forth, upon the Designated Agent’s acceptance of the terms of a Placement Notice, and unless the sale of the Placement
Shares described therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement, the Designated
Agent, for the period specified in the Placement Notice, will use its commercially reasonable efforts consistent with their normal trading
and sales practices and applicable law and regulations to sell such Placement Shares up to the amount specified, and otherwise in accordance
with the terms of such Placement Notice. The Company acknowledges and agrees that (i) there can be no assurance that the Designated
Agent will be successful in selling Placement Shares, (ii) the Designated Agent will incur no liability or obligation to the Company
or any other person or entity if they do not sell Placement Shares for any reason other than a failure by the Designated Agent to use
its commercially reasonable efforts consistent with its normal trading and sales practices and applicable law and regulations to sell
such Placement Shares as required under this Agreement and (iii) the Designated Agent shall be under no obligation to purchase Placement
Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by the Designated Agent and the Company.
(b) Settlement
of Placement Shares. Unless otherwise specified in the applicable Placement Notice, settlement for sales of Placement Shares
will occur on the first (1st) Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on
which such sales are made (each, a “Settlement Date”). The Designated Agent shall notify the Company of each
sale of Placement Shares no later than the opening of the Trading Day immediately following the Trading Day on which it has made sales
of Placement Shares hereunder. The amount of proceeds to be delivered to the Company on a Settlement Date against receipt of the Placement
Shares sold (the “Net Proceeds”) will be equal to the aggregate sales price received by the Designated Agent,
after deduction for (i) the Designated Agent’s commission, discount or other compensation for such sales payable by the Company
pursuant to Section 2 hereof, and (ii) any transaction fees imposed by any Governmental Authority (as defined below)
in respect of such sales.
(c) Delivery
of Placement Shares. On or before each Settlement Date, the Company will, or will cause its transfer agent to, electronically transfer
the Placement Shares being sold by crediting the Designated Agent’s or its designee’s account (provided the Designated Agent
shall have given the Company written notice of such designee at least one Trading Day prior to the Settlement Date) at The Depository
Trust Company through its Deposit and Withdrawal at Custodian System or by such other means of delivery as may be mutually agreed upon
by the parties hereto which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. On each Settlement
Date, the Designated Agent will deliver the related Net Proceeds in same day funds to an account designated by the Company on, or prior
to, the Settlement Date. The Company agrees that if the Company, or its transfer agent (if applicable), defaults in its obligation to
deliver Placement Shares on a Settlement Date, the Company agrees that in addition to and in no way limiting the rights and obligations
set forth in Section 10(a) hereto, it will (i) hold the Designated Agent harmless against any loss, claim, damage,
or expense (including reasonable and documented legal fees and expenses), as incurred, arising out of or in connection with such default
by the Company or its transfer agent (if applicable) and (ii) pay to the Designated Agent any commission, discount, or other compensation
to which it would otherwise have been entitled absent such default.
(d) Limitations
on Offering Size. Under no circumstances shall the Company cause or request the offer or sale of any Placement Shares if, after giving
effect to the sale of such Placement Shares, the aggregate gross sales proceeds of Placement Shares sold pursuant to this Agreement would
exceed the lesser of (A) the amount authorized from time to time to be issued and sold under this Agreement by the Company’s
board of directors, a duly authorized committee thereof or a duly authorized executive committee, and notified to the Agents in writing
and (B) the Maximum Amount. Under no circumstances shall the Company cause or request the offer or sale of any Placement Shares pursuant
to this Agreement at a price lower than the minimum price authorized from time to time by the Company’s board of directors, a duly
authorized committee thereof or a duly authorized executive officer of the Company. Further, under no circumstances shall the Company
cause or permit the aggregate offering number or dollar amount of Placement Shares sold pursuant to this Agreement to exceed the Maximum
Amount.
(e) Sales
Through Agents. With respect to the offering and sale of Placement Shares pursuant to this Agreement, the Company agrees that any
offer to sell Placement Shares, any solicitation of an offer to buy Placement Shares, and any sales of Placement Shares shall only be
effected by or through a single Agent on any single given day, and the Company shall in no event request that more than one Agent offer
or sell Placement Shares pursuant to this Agreement on the same day.
6. Representations
and Warranties of the Company. The Company represents and warrants to, and agrees with the Agents that as of the date of this Agreement
and as of each Applicable Time (as defined below), unless such representation, warranty or agreement specifies a different time:
(a) Registration
Statement and Prospectus. The Company and the transactions contemplated by this Agreement meet the requirements for and comply with
the applicable conditions set forth in Form F-3 (including General Instructions I.A and I.B) under the Securities Act. The Registration
Statement has been or will be filed with the Commission and has been or will be declared effective by the Commission under the Securities
Act prior to the issuance of any Placement Notices by the Company. As of each Applicable Time, the Registration Statement is effective.
The Registration Statement will name the Agents as the agent in the section entitled “Plan of Distribution.” The Company has
not received, and has no notice of, any order of the Commission preventing or suspending the use of the Registration Statement, or threatening
or instituting proceedings for that purpose. The Registration Statement and the offer and sale of Placement Shares as contemplated hereby
meet the requirements of Rule 415 under the Securities Act and comply in all material respects with said Rule. Any statutes, regulations,
contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits
to the Registration Statement have been so described or filed. Copies of the Registration Statement, the Prospectus, and any such amendments
or supplements and all Incorporated Documents that were filed with the Commission on or prior to the date of this Agreement have been
delivered, or are available through EDGAR, to the Agents and its counsel. The Company has not distributed and, prior to the later to occur
of each Settlement Date and completion of the distribution of the Placement Shares, will not distribute any offering material in connection
with the offering or sale of the Placement Shares other than the Registration Statement and the Prospectus and any Issuer Free Writing
Prospectus to which the Agents have consented. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act
and is currently listed on the Exchange under the trading symbol “GDEV.” The Company has taken no action designed to, or likely
to have the effect of, terminating the registration of the Common Stock under the Exchange Act, delisting the Common Stock from the Exchange,
nor has the Company received any notification that the Commission or the Exchange is contemplating terminating such registration or listing.
To the Company’s knowledge (following due inquiry), it is in compliance with all applicable listing requirements of the Exchange.
(b) No
Misstatement or Omission. The Registration Statement, when it became or becomes effective, and the Prospectus, and any amendment or
supplement thereto, on the date of such Prospectus or amendment or supplement, conformed and will conform in all material respects with
the requirements of the Securities Act. At each Settlement Date, the Registration Statement and the Prospectus, as of such date, will
conform in all material respects with the requirements of the Securities Act. The Registration Statement, when it became or becomes effective,
did not, and will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The Prospectus and any amendment and supplement thereto, on the date thereof
and at each Applicable Time (as defined below), did not or will not include an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The
Incorporated Documents did not, and any further documents filed and incorporated by reference therein will not, when filed with the Commission,
contain an untrue statement of a material fact or omit to state a material fact required to be stated in such document or necessary to
make the statements in such document, in light of the circumstances under which they were made, not misleading. The foregoing shall not
apply to statements in, or omissions from, any such document made in reliance upon, and in conformity with, information furnished to the
Company by the Agents in writing specifically for use in the preparation thereof, it being understood and agreed that the only such information
furnished by the Agents to the Company consists of “Agents’ Information” as defined below.
(c) Conformity
with the Securities Act and Exchange Act. The Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or any amendment
or supplement thereto, and the Incorporated Documents, when such documents were or are filed with the Commission under the Securities
Act or the Exchange Act or became or become effective under the Securities Act, as the case may be, conformed or will conform in all material
respects with the requirements of the Securities Act and the Exchange Act, as applicable.
(d) Financial
Information. The consolidated financial statements of the Company included or incorporated by reference in the Registration Statement,
the Prospectus and the Issuer Free Writing Prospectuses, if any, together with the related notes and schedules, present fairly, in all
material respects, the consolidated financial position of the Company and the Subsidiaries (as defined below) as of the dates indicated
and the consolidated results of operations, cash flows and changes in stockholders’ equity of the Company for the periods specified
and have been prepared in compliance with the International Accounting Standards Board (“IFRS”) applied on a
consistent basis during the periods involved; the other financial and statistical data with respect to the Company and the Subsidiaries
(as defined below) contained or incorporated by reference in the Registration Statement, the Prospectus and the Issuer Free Writing Prospectuses,
if any, are accurately and fairly presented in all material respects and prepared on a basis consistent with the financial statements
and books and records of the Company; there are no financial statements (historical or pro forma) that are required to be included or
incorporated by reference in the Registration Statement, or the Prospectus that are not included or incorporated by reference as required;
the Company and the Subsidiaries (as defined below) do not have any material liabilities or obligations, direct or contingent (including
any off-balance sheet obligations), not described in the Registration Statement (excluding the exhibits thereto), and the Prospectus;
and all disclosures contained or incorporated by reference in the Registration Statement, the Prospectus and the Issuer Free Writing Prospectuses,
if any, regarding “non-IFRS financial measures” (as such term is defined by the rules and regulations of the Commission)
comply in all material respects with Regulation G of the Exchange Act and Item 10 of Regulation S-K under the Securities Act, to the extent
applicable. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement
and the Prospectus fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s
rules and guidelines applicable thereto.
(e) Conformity
with EDGAR Filing. The Prospectus delivered to the Agents for use in connection with the sale of the Placement Shares pursuant to
this Agreement will be identical to the versions of the Prospectus created to be transmitted to the Commission for filing via EDGAR, except
to the extent permitted by Regulation S-T.
(f) Organization.
The Company and each of its Subsidiaries are duly organized, validly existing as a corporation or other entity and in good standing under
the laws of their respective jurisdictions of organization (to the extent such concept is applicable in such jurisdiction). The Company
and each of its Subsidiaries are duly licensed or qualified as a foreign corporation for transaction of business and in good standing
under the laws of each other jurisdiction in which their respective ownership or lease of property or the conduct of their respective
businesses as currently conducted requires such license or qualification, and have all corporate power and authority necessary to own
or hold their respective properties and to conduct their respective businesses in which they are engaged as described in the Registration
Statement and the Prospectus, except where the failure to be so qualified or in good standing or have such power or authority would not,
individually or in the aggregate, be reasonably expected to have a material adverse effect or would reasonably be expected to have a material
adverse effect on or affecting the assets, business, operations, earnings, properties, condition (financial or otherwise), of operations
of the Company and the Subsidiaries taken as a whole, or prevent or materially interfere with consummation of the transactions contemplated
hereby (a “Material Adverse Effect”).
(g) Subsidiaries.
The subsidiaries set forth on Schedule 4 (collectively, the “Subsidiaries”), are the Company’s
material subsidiaries. Except as set forth in the Registration Statement and in the Prospectus, the Company owns, directly or indirectly,
all of the equity interests of the Subsidiaries free and clear of any lien, charge, security interest, encumbrance, right of first refusal
or other restriction, and all the equity interests of the Subsidiaries are validly issued and are fully paid, nonassessable and free of
preemptive and similar rights. No Subsidiary is currently prohibited, directly or indirectly, from paying any dividends to the Company,
from making any other distribution on such Subsidiary’s capital stock, from repaying to the Company any loans or advances to such
Subsidiary from the Company or from transferring any of such Subsidiary’s property or assets to the Company or any other Subsidiary
of the Company.
(h) No
Violation or Default. Neither the Company nor any of its Subsidiaries is (i) in violation of its charter or by-laws or similar
organizational documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company
or any of its Subsidiaries is bound or to which any of the property or assets of the Company or any of its Subsidiaries are subject; or
(iii) in violation of any law or statute or any judgment, order, rule or regulation of any Governmental Authority, except, in
the case of each of clauses (ii) and (iii) above, for any such violation or default that would not, individually or in the aggregate,
have a Material Adverse Effect. To the Company’s knowledge, no other party under any material contract or other agreement to which
it or any of its Subsidiaries is a party is in default in any respect thereunder where such default would have a Material Adverse Effect.
(i) No
Material Adverse Change. Subsequent to the respective dates as of which information is given in the Registration Statement, the Prospectus
and the Free Writing Prospectuses, if any (including any document deemed incorporated by reference therein), there has not been (i) any
Material Adverse Effect or the occurrence of any development that the Company reasonably expects will result in a Material Adverse Effect,
(ii) any transaction which is material to the Company and the Subsidiaries taken as a whole, (iii) any obligation or liability,
direct or contingent (including any off-balance sheet obligations), incurred by the Company or any Subsidiary, which is material to the
Company and the Subsidiaries taken as a whole, (iv) any material change in the capital stock or outstanding long-term indebtedness
of the Company or any of its Subsidiaries or (v) any dividend or distribution of any kind declared, paid or made on the capital stock
of the Company or any Subsidiary, other than in each case above in the ordinary course of business or as otherwise disclosed in the Registration
Statement or Prospectus (including any document deemed incorporated by reference therein).
(j) Capitalization.
The issued and outstanding ordinary shares of the Company have been validly issued, are fully paid and nonassessable and, other than as
disclosed in the Registration Statement or the Prospectus, are not subject to any preemptive rights, rights of first refusal or similar
rights. The Company has an authorized, issued and outstanding capitalization as set forth in the Registration Statement and the Prospectus
as of the dates referred to therein (other than the grant of additional stock options under the Company’s existing incentive share
option plans, or changes in the number of outstanding shares of Common Stock of the Company due to the issuance of shares upon the exercise
or conversion of securities exercisable for, or convertible into, Common Stock outstanding on the date hereof) and such authorized ordinary
shares conform to the description thereof set forth in the Registration Statement and the Prospectus. The description of the securities
of the Company in the Registration Statement and the Prospectus is complete and accurate in all material respects. Except as disclosed
in or contemplated by the Registration Statement or the Prospectus, as of the date referred to therein, the Company does not have outstanding
any options to purchase, or any rights or warrants to subscribe for, or any securities or obligations convertible into, or exchangeable
for, or any contracts or commitments to issue or sell, any ordinary shares or other securities.
(k) Authorization;
Enforceability. The Company has full legal right, power and authority to enter into this Agreement and perform the transactions contemplated
hereby. This Agreement has been duly authorized, executed and delivered by the Company and is a legal, valid and binding agreement of
the Company enforceable in accordance with its terms, except to the extent that enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ rights generally and by general equitable principles.
(l) Authorization
of Placement Shares. The Placement Shares, when delivered pursuant to the terms approved by the board of directors of the Company
or a duly authorized committee thereof, or a duly authorized executive officer, against payment therefor as provided herein, will be duly
and validly authorized and issued and fully paid and nonassessable, free and clear of any pledge, lien, encumbrance, security interest
or other claim, including any statutory or contractual preemptive rights, resale rights, rights of first refusal or other similar rights,
and will be registered pursuant to Section 12 of the Exchange Act. The Placement Shares conform to the description thereof set forth
in or incorporated into the Prospectus.
(m) No
Consents Required. No consent, approval, authorization, order, registration or qualification of or with any Governmental Authority
is required for the execution, delivery and performance by the Company of this Agreement, the sale by the Company of the Placement Shares,
except for such consents, approvals, authorizations, orders and registrations or qualifications as may be required under applicable state
securities laws or by the by-laws and rules of the Financial Industry Regulatory Authority (“FINRA”) or
the Exchange in connection with the sale of the Placement Shares by the Agents.
(n) No
Preferential Rights. Except as set forth in the Registration Statement and the Prospectus, (i) no person, as such term is defined
in Rule 1-02 of Regulation S-X promulgated under the Securities Act (each, a “Person”), has the right,
contractual or otherwise, to cause the Company to issue or sell to such Person any Common Stock or shares of any other capital stock or
other securities of the Company (other than upon the exercise of options to purchase Common Stock or other stock awards that may be granted
from time to time under the Company’s stock option plans which are disclosed in the Registration Statement and Prospectus), (ii) no
Person has any preemptive rights, resale rights, rights of first refusal, rights of co-sale, or any other rights (whether pursuant to
a “poison pill” provision or otherwise) to purchase any Common Stock or shares of any other capital stock or other securities
of the Company, (iii) no Person has the right to act as an underwriter or as a financial advisor to the Company in connection with
the offer and sale of the Common Stock, and (iv) no Person has the right, contractual or otherwise, to require the Company to register
under the Securities Act any Common Stock or shares of any other capital stock or other securities of the Company, or to include any such
shares or other securities in the Registration Statement or the offering contemplated thereby, whether as a result of the filing or effectiveness
of the Registration Statement or the sale of the Placement Shares as contemplated thereby or otherwise.
(o) Independent
Public Accounting Firm. KPMG Certified Auditors S.A. (the “Accountant”), whose report on the consolidated
financial statements of the Company is filed with the Commission as part of the Company’s most recent Annual Report on Form 20-F
filed with the Commission and incorporated by reference into the Registration Statement and the Prospectus, are and, during the periods
covered by their report, were an independent registered public accounting firm within the meaning of the Securities Act and the Public
Company Accounting Oversight Board (United States). To the Company’s knowledge, the Accountant is not in violation of the auditor
independence requirements of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”) with respect to the Company.
(p) Enforceability
of Agreements. All material agreements between the Company and third parties expressly referenced in the Prospectus other than such
agreements that have expired by their terms or whose termination is disclosed in the Registration Statement and the Prospectus, are legal,
valid and binding obligations of the Company enforceable in accordance with their respective terms, except to the extent that (i) enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by
general equitable principles and (ii) the indemnification provisions of certain agreements may be limited by federal or state securities
laws or public policy considerations in respect thereof.
(q) No
Litigation. Except as set forth in the Registration Statement or the Prospectus, there are no actions, suits or proceedings by or
before any Governmental Authority pending, nor, to the Company’s knowledge, any audits or investigations by or before any Governmental
Authority to which the Company or a Subsidiary is a party or to which any property of the Company or any of its Subsidiaries is the subject
that, individually or in the aggregate, would have a Material Adverse Effect and, to the Company’s knowledge, no such actions, suits,
proceedings, audits or investigations are threatened or contemplated by any Governmental Authority or threatened by others; and (i) there
are no current or pending audits or investigations, actions, suits or proceedings by or before any Governmental Authority that are required
under the Securities Act to be described in the Prospectus that are not so described; and (ii) there are no contracts or other documents
that are required under the Securities Act to be filed as exhibits to the Registration Statement that are not so filed.
(r) Consents
and Permits. The Company and each Subsidiary possess such valid and current certificates, authorizations or permits issued by the
appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct their respective businesses, and neither the
Company nor any Subsidiary has received, or has any reason to believe that it will receive, any notice of proceedings relating to the
revocation or modification of, or non-compliance with, any such certificate, authorization or permit which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, could result in a Material Adverse Effect.
(s) Intellectual
Property. Except as disclosed in the Registration Statement and the Prospectus, the Company and its Subsidiaries own, possess, license
or have other rights to use all foreign and domestic patents, patent applications, trade and service marks, trade and service mark registrations,
trade names, copyrights, licenses, inventions, trade secrets, technology, Internet domain names, know-how and other intellectual
property (collectively, the “Intellectual Property”), necessary for the conduct of their respective businesses
as now conducted except to the extent that the failure to own, possess, license or otherwise hold adequate rights to use such Intellectual
Property would not, individually or in the aggregate, have a Material Adverse Effect. Except as disclosed in the Registration Statement
and the Prospectus (i) to the Company’s knowledge, there are no rights of third parties to any such Intellectual Property owned
by the Company and its Subsidiaries; (ii) to the Company’s knowledge, there is no infringement by third parties of any such
Intellectual Property; (iii) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim
by others challenging the Company’s and its Subsidiaries’ rights in or to any such Intellectual Property, and the Company
is unaware of any facts which could form a reasonable basis for any such action, suit, proceeding or claim; (iv) there is no pending
or, to the Company’s knowledge, threatened action, suit, proceeding or claim by others challenging the validity or scope of any
such Intellectual Property; (v) there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or
claim by others that the Company and its Subsidiaries infringe or otherwise violate any patent, trademark, copyright, trade secret or
other proprietary rights of others; (vi) to the Company’s knowledge, there is no third-party U.S. patent or published U.S.
patent application which contains claims for which an Interference Proceeding (as defined in 35 U.S.C. § 135) has been commenced
against any patent or patent application described in the Prospectus as being owned by or licensed to the Company; and (vii) the
Company and its Subsidiaries have complied with the terms of each agreement pursuant to which Intellectual Property has been licensed
to the Company or such Subsidiary, and all such agreements are in full force and effect except for such agreements which have terminated,
except, in the case of any of clauses (i)-(vii) above, for any such infringement by third parties or any such pending or threatened
suit, action, proceeding or claim as would not, individually or in the aggregate, result in a Material Adverse Effect.
(t) Open
Source Materials. To the Company’s knowledge, except as would not have a Material Adverse Effect, (1) the Company and its
Subsidiaries have used all software (including source code) and other materials that are distributed under a “free,” “open
source,” or similar licensing model, including any software governed under the Apache License, GNU General Public License, GNU Lesser
General Public License, GNU Affero General Public License, New BSD License, MIT License, Common Public License and other licenses approved
as Open Source licenses under the Open Source Definition of the Open Source Initiative (“Open Source Materials”), in
compliance in all material respects with all license terms applicable to such Open Source Materials, and (2) none of the Company’s
proprietary internally-developed software (such software, “Company Proprietary Tools”), incorporates any Open Source
Material in a manner that requires or has required (i) the Company or any of its Subsidiaries to permit reverse engineering of any
Company Proprietary Tools or (ii) any Company Proprietary Tools to be (A) disclosed or distributed in source code form, (B) licensed
for the purpose of making derivative works, or (C) redistributed at no charge or minimal charge.
(u) Market
Capitalization. At the time the Registration Statement was originally declared effective, and at the time the Company’s most
recent Annual Report on Form 20-F was filed with the Commission, the Company met or will meet the then applicable requirements for
the use of Form F-3 under the Securities Act, including, but not limited to, General Instruction I.B.1 of Form F-3. The Company
is not a shell company (as defined in Rule 405 under the Securities Act) and has not been a shell company for at least 12 calendar
months previously and if it has been a shell company at any time previously, has filed current Form 10 information (as defined in
General Instruction I.B.5 of Form F-3) with the Commission at least 12 calendar months previously reflecting its status as an entity
that is not a shell company.
(v) FINRA
Matters. The information provided to the Agents by the Company, its internal counsel, and its officers and directors for purposes
of the Agents’ compliance with applicable FINRA rules in connection with the offering of the Shares is true, complete, and
correct and compliant with FINRA’s rules in all material respects.
(w) No
Material Defaults. Neither the Company nor any of the Subsidiaries has defaulted on any installment on indebtedness for borrowed money
or on any rental on one or more long-term leases, which defaults, individually or in the aggregate, would reasonably be expected to have
a Material Adverse Effect. The Company has not filed a report pursuant to Section 13(a) or 15(d) of the Exchange Act since
the filing of its last Annual Report on Form 20-F, indicating that it (i) has failed to pay any dividend or sinking fund installment
on preferred stock or (ii) has defaulted on any installment on indebtedness for borrowed money or on any rental on one or more long-term
leases, which defaults, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
(x) Certain
Market Activities. Neither the Company, nor any of the Subsidiaries, nor to the Company’s knowledge any of their respective
directors, officers or controlling persons has taken, directly or indirectly, any action designed, or that has constituted or would reasonably
be expected to cause or result in, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Placement Shares.
(y) Broker/Dealer
Relationships. Neither the Company nor, to the best of the Company’s knowledge, any of the Subsidiaries (i) is required
to register as a “broker” or “dealer” in accordance with the provisions of the Exchange Act or (ii) directly
or indirectly through one or more intermediaries, controls or is a “person associated with a member” or “associated
person of a member” (within the meaning set forth in the FINRA Manual).
(z) No
Reliance. The Company has not relied upon the Agents or legal counsel for the Agents for any legal, tax or accounting advice in connection
with the offering and sale of the Placement Shares.
(aa)
Taxes. Each of the Company and each of
its Subsidiaries have filed all federal, state, local and non-U.S. tax returns that have been required to be filed and paid all
taxes shown thereon through the date hereof, to the extent that such taxes have become due and are not being contested in good
faith, except where the failure to so file or pay would not have a Material Adverse Effect. Except as otherwise disclosed in or
contemplated by the Registration Statement or the Prospectus, no tax deficiency has been determined adversely to the Company or any
of its Subsidiaries that has had, or would have, individually or in the aggregate, a Material Adverse Effect. The Company has no
knowledge of any federal, state or other governmental tax deficiency, penalty or assessment that has been or might be asserted or
threatened against it that would have a Material Adverse Effect.
(bb) Title
to Real and Personal Property. Except as set forth in the Registration Statement or the Prospectus, the Company and its Subsidiaries
have good and marketable title in fee simple to all items of real property owned by them, good and valid title to all personal property
described in the Registration Statement or Prospectus as being owned by them that are material to the business of the Company or such
Subsidiary, in each case free and clear of all liens, encumbrances and claims, except those matters that (i) do not materially interfere
with the use made and proposed to be made of such property by the Company and any of its Subsidiaries or (ii) would not, individually
or in the aggregate, have a Material Adverse Effect. Any real or personal property described in the Registration Statement or Prospectus
as being leased by the Company and any of its Subsidiaries is held by them under valid, existing and enforceable leases, except those
that (A) do not materially interfere with the use made or proposed to be made of such property by the Company or any of its Subsidiaries
or (B) would not be reasonably expected, individually or in the aggregate, to have a Material Adverse Effect. Each of the properties
of the Company and its Subsidiaries complies with all applicable codes, laws and regulations (including, without limitation, building
and zoning codes, laws and regulations and laws relating to access to such properties), except if and to the extent disclosed in the Registration
Statement or Prospectus or except for such failures to comply that would not, individually or in the aggregate, reasonably be expected
to interfere in any material respect with the use made and proposed to be made of such property by the Company and its Subsidiaries or
otherwise have a Material Adverse Effect. None of the Company or its Subsidiaries has received from any Governmental Authorities any notice
of any condemnation of, or zoning change affecting, the properties of the Company and its Subsidiaries, and the Company knows of no such
condemnation or zoning change which is threatened, except for such that would not reasonably be expected to interfere in any material
respect with the use made and proposed to be made of such property by the Company and its Subsidiaries or otherwise have a Material Adverse
Effect, individually or in the aggregate.
(cc) Environmental
Laws. Except as set forth in the Registration Statement or the Prospectus, the Company and its Subsidiaries (i) are in compliance
with any and all applicable federal, state, local and foreign laws, rules, regulations, decisions and orders relating to the protection
of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (collectively, “Environmental
Laws”); (ii) have received and are in compliance with all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses as described in the Registration Statement and the Prospectus; and
(iii) have not received notice of any actual or potential liability for the investigation or remediation of any disposal or release
of hazardous or toxic substances or wastes, pollutants or contaminants, except, in the case of any of clauses (i), (ii) or (iii) above,
for any such failure to comply or failure to receive required permits, licenses, other approvals or liability as would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(dd) Disclosure
Controls. The Company and each of its Subsidiaries maintain systems of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions
are recorded as necessary to permit preparation of financial statements in conformity with IFRS and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect
to any differences. As of the end of the Company’s most recently completed fiscal year, the Company’s internal control over
financial reporting is effective and the Company is not aware of any material weaknesses in its internal control over financial reporting
(other than as set forth in the Prospectus). Since the date of the latest audited financial statements of the Company included in the
Prospectus, there has been no change in the Company’s internal control over financial reporting that has materially affected, or
is reasonably likely to materially affect, the Company’s internal control over financial reporting (other than as set forth in the
Prospectus). The Company has established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15 and 15d-15)
for the Company and designed such disclosure controls and procedures to ensure that material information relating to the Company and each
of its Subsidiaries is made known to the certifying officers by others within those entities, particularly during the period in which
the Company’s Annual Report on Form 20-F or Half-Year Report on Form 6-K, as the case may be, is being prepared. The Company’s
certifying officers have evaluated the effectiveness of the Company’s disclosure controls and procedures as of a date within 90
days prior to the filing date of the Form 20-F for the fiscal year most recently ended (such date, the “Evaluation Date”).
The Company presented in its Form 20-F for the fiscal year most recently ended the conclusions of the certifying officers about the
effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date and the disclosure controls
and procedures are effective. Since the Evaluation Date, there have been no significant changes in the Company’s internal controls
(as such term is defined in Item 307(b) of Regulation S-K under the Securities Act) or, to the Company’s knowledge, in other
factors that could significantly affect the Company’s internal controls.
(ee) Sarbanes-Oxley.
There is and has been no failure on the part of the Company or, to the Company’s knowledge, any of the Company’s directors
or officers, in their capacities as such, to comply in all material respects with any applicable provisions of the Sarbanes-Oxley Act
and the rules and regulations promulgated thereunder. Each of the principal executive officer and the principal financial officer
of the Company (or each former principal executive officer of the Company and each former principal financial officer of the Company as
applicable) has made all certifications required by Sections 302 and 906 of the Sarbanes-Oxley Act with respect to all reports, schedules,
forms, statements and other documents required to be filed by it or furnished by it to the Commission. For purposes of the preceding sentence,
“principal executive officer” and “principal financial officer” shall have the meanings given to such terms in
the Sarbanes-Oxley Act.
(ff) Finder’s
Fees. Neither the Company nor any of the Subsidiaries has incurred any liability for any finder’s fees, brokerage commissions
or similar payments in connection with the transactions herein contemplated, except as may otherwise exist with respect to the Agents
pursuant to this Agreement.
(gg) Labor
Disputes. No labor disturbance by or dispute with employees of the Company or any of its Subsidiaries exists or, to the knowledge
of the Company, is threatened which would reasonably expected to result in a Material Adverse Effect.
(hh) Investment
Company Act. Neither the Company nor any of the Subsidiaries is or, after giving effect to the offering and sale of the Placement
Shares and the application of the proceeds thereof as described in the Registration Statement and the Prospectus, will be an “investment
company” or an entity “controlled” by an “investment company,” as such terms are defined in the Investment
Company Act of 1940, as amended (the “Investment Company Act”).
(ii) Operations.
The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable financial record
keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes
of all jurisdictions to which the Company or its Subsidiaries are subject, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Authority (collectively, the “Money
Laundering Laws”); and no action, suit or proceeding by or before any Governmental Authority involving the Company or any
of its Subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(jj) Off-Balance
Sheet Arrangements. There are no transactions, arrangements and other relationships between and/or among the Company, and/or to the
knowledge of the Company, any of its affiliates and any unconsolidated entity, including, but not limited to, any structured finance,
special purpose or limited purpose entity (each, an “Off-Balance Sheet Transaction”) that could reasonably be
expected to affect materially the Company’s liquidity or the availability of or requirements for its capital resources, including
those Off-Balance Sheet Transactions described in the Commission’s Statement about Management’s Discussion and Analysis of
Financial Conditions and Results of Operations (Release Nos. 33-8056; 34-45321; FR-61), required to be described in the Prospectus which
have not been described as required.
(kk) Underwriter
Agreements. The Company is not a party to any agreement with an agent or underwriter for any other “at the market” or
continuous equity transaction.
(ll) ERISA.
To the knowledge of the Company, each material employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), that is maintained, administered or contributed to by the
Company or any of its affiliates for employees or former employees of the Company and any of its Subsidiaries has been maintained in material
compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations, including but not limited
to ERISA and the Internal Revenue Code of 1986, as amended (the “Code”); no prohibited transaction, within the
meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred that would result in a material liability to the Company
with respect to any such plan excluding transactions effected pursuant to a statutory or administrative exemption; and for each such plan
that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, no “accumulated funding
deficiency” as defined in Section 412 of the Code has been incurred, whether or not waived, and the fair market value of the
assets of each such plan (excluding for these purposes accrued but unpaid contributions) exceeds the present value of all benefits accrued
under such plan determined using reasonable actuarial assumptions
(mm) Forward-Looking
Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the
Exchange Act) (a “Forward-Looking Statement”) contained in the Registration Statement and the Prospectus has
been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(nn) Agent
Purchases. The Company acknowledges and agrees that the Agents have informed the Company that the Agents may, to the extent permitted
under the Securities Act and the Exchange Act, purchase and sell Common Stock for their own account while this Agreement is in effect,
provided, that the Company shall not be deemed to have authorized or consented to any such purchases or sales by the Agents.
(oo) Margin
Rules. Neither the sale and delivery of the Placement Shares nor the application of the proceeds thereof by the Company as described
in the Registration Statement and the Prospectus will violate Regulation T, U or X of the Board of Governors of the Federal Reserve System
or any other regulation of such Board of Governors.
(pp) Insurance.
The Company and each of its Subsidiaries carry, or are covered by, insurance in such amounts and covering such risks as the Company and
each of its Subsidiaries reasonably believe are adequate for the conduct of their properties and as is customary for companies engaged
in similar businesses of comparable sizes in similar industries.
(qq) No
Improper Practices. (i) Neither the Company nor the Subsidiaries, nor any director, officer, or employee of the Company or any
Subsidiary nor, to the Company’s knowledge, any agent, affiliate or other person acting on behalf of the Company or any Subsidiary
has, in the past five years, made any unlawful contributions to any candidate for any political office (or failed fully to disclose any
contribution in violation of applicable law) or made any contribution or other payment to any official of, or candidate for, any federal,
state, municipal, or foreign office or other person charged with similar public or quasi-public duty in violation of any applicable law
or of the character required to be disclosed in the Prospectus; (ii) no relationship, direct or indirect, exists between or among
the Company or any Subsidiary or any affiliate of any of them, on the one hand, and the directors, officers and stockholders of the Company
or any Subsidiary, on the other hand, that is required by the Securities Act to be described in the Registration Statement and the Prospectus
that is not so described; (iii) no relationship, direct or indirect, exists between or among the Company or any Subsidiary or any
affiliate of them, on the one hand, and the directors, officers, or stockholders of the Company or any Subsidiary, on the other hand,
that is required by the rules of FINRA to be described in the Registration Statement and the Prospectus that is not so described;
(iv) except as described in the Registration Statement and the Prospectus, there are no material outstanding loans or advances or
material guarantees of indebtedness by the Company or any Subsidiary to or for the benefit of any of their respective officers or directors
or any of the members of the families of any of them; and (v) the Company has not offered, or caused any placement agent to offer,
Common Stock to any person with the intent to influence unlawfully a customer or supplier of the Company or any Subsidiary to alter the
customer’s or supplier’s level or type of business with the Company or any Subsidiary, and, (vi) neither
the Company nor any Subsidiary nor any director, officer or employee of the Company or any Subsidiary nor, to the Company’s knowledge,
any agent, affiliate or other person acting on behalf of the Company or any Subsidiary has (A) violated or is in violation of any
applicable provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption
law (collectively, “Anti-Corruption Laws”), (B) promised, offered, provided, attempted to provide or authorized
the provision of anything of value, directly or indirectly, to any person for the purpose of obtaining or retaining business, influencing
any act or decision of the recipient, or securing any improper advantage; in all cases in violation of any applicable Anti-Corruption
laws; or (C) made any payment of funds of the Company or any Subsidiary or received or retained any funds in violation of any applicable
Anti-Corruption Laws.
(rr) Status
Under the Securities Act. The Company was not and is not an ineligible issuer as defined in Rule 405 under the Securities Act
at the times specified in Rules 164 and 433 under the Securities Act in connection with the offering of the Placement Shares.
(ss) No
Misstatement or Omission in an Issuer Free Writing Prospectus. Each Issuer Free Writing Prospectus, as of its issue date and as of
each Applicable Time (as defined in Section 25 below), did not, does not and will not include any information that conflicted,
conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any incorporated
document deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in
or omissions from any Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by
the Agents specifically for use therein.
(tt) No
Conflicts. Neither the execution of this Agreement, nor the offering or sale of the Placement Shares, nor the consummation of any
of the transactions contemplated herein and therein, nor the compliance by the Company with the terms and provisions hereof and thereof
will conflict with, or will result in a breach of, any of the terms and provisions of, or has constituted or will constitute a default
under, or has resulted in or will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets
of the Company pursuant to the terms of any contract or other agreement to which the Company may be bound or to which any of the property
or assets of the Company is subject, except (i) such conflicts, breaches or defaults as may have been waived and (ii) such conflicts,
breaches and defaults that would not have a Material Adverse Effect; nor will such action result (x) in any violation of the provisions
of the organizational or governing documents of the Company, or (y) in any material violation of the provisions of any statute or
any order, rule or regulation applicable to the Company or of any Governmental Authority having jurisdiction over the Company.
(uu) Sanctions.
(i) The Company represents that, except as disclosed in the Registration Statement neither the Company nor any of its Subsidiaries
(collectively, the “Entity”) or any director, officer, employee or, to the Company’s knowledge, agent,
affiliate or representative of the Entity, is a government, individual, or entity (in this paragraph (uu), “Person”)
that is, or is owned or controlled (as such terms are used and defined in relevant Sanctions (as defined in sub-paragraph (A) below))
by a Person that is:
(A) the
target of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”),
the United Nations Security Council, the European Union, or His Majesty’s Treasury, , including, without limitation, designation
on OFAC’s Specially Designated Nationals and Blocked Persons List or OFAC’s Foreign Sanctions Evaders List (as amended, collectively,
“Sanctions”), nor
(B) located,
organized or resident in a country or territory that is the target of Sanctions that broadly prohibit dealings with that country or territory
(being at the date of this Agreement, Cuba, Iran, North Korea, Syria, the so-called Donetsk People’s Republic, the so-called
Luhansk People’s Republic and the Crimea Region of the Ukraine) (the “Sanctioned Countries”).
(ii) The
Company represents and covenants that it will not, directly or knowingly indirectly, use the proceeds of the offering, or lend, contribute
or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to
fund or facilitate any prohibited activities or business of or with any Person or in any country or territory that, at the time of such
funding or facilitation, is the target of Sanctions or is a Sanctioned Country; or
(B) in
any other manner that will result in a violation of applicable Sanctions by any Person participating in the offering ( whether as underwriter,
advisor, investor or otherwise).
(iii) The
Company represents and covenants that, except as detailed in the Registration Statement and the Prospectus, since April 24, 2019,
it has not engaged in, is not now engaging in, and will not engage in, any prohibited dealings or transactions with any Person, or in
any country or territory, that at the time of the dealing or transaction is or was the target of Sanctions or is or was a Sanctioned Country,
in each case, in violation of applicable Sanctions.
(vv) Stock
Transfer Taxes. On each Settlement Date, all stock transfer or other similar taxes relating to the disposition of equity interests
(excluding income taxes) which are required to be paid in connection with the sale and transfer of the Placement Shares to be sold hereunder
will be, or will have been, fully paid or provided for by the Company and all laws imposing such taxes will be or will have been fully
complied with.
(ww) Compliance
with Laws. The Company and each of its Subsidiaries are in compliance with all applicable laws, regulations and statutes (including
all environmental laws and regulations) in the jurisdictions in which it carries on business; the Company has not received a notice of
non-compliance, nor knows of, nor has reasonable grounds to know of, any facts that could give rise to a notice of non-compliance with
any such laws, regulations and statutes, and is not aware of any pending change or contemplated change to any applicable law or regulation
or governmental position; in each case that would materially adversely affect the business of the Company. Each of the Company and its
Subsidiaries: (A) is and at all times has been in compliance with all statutes, rules, or regulations applicable to the ownership,
testing, development, manufacture, packaging, processing, use, distribution, marketing, labeling, promotion, sale, offer for sale, storage,
import, export or disposal of any product manufactured or distributed by the Company or its Subsidiaries (“Applicable Laws”),
except as could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
(xx) Foreign
Private Issuer. The Company is a “foreign private issuer” within the meaning of Rule 405 under the Securities Act.
(yy) Statistical
and Market-Related Data. The statistical, demographic and market-related data included in the Registration Statement and Prospectus
are based on or derived from sources that the Company believes to be reliable and accurate or represent the Company’s good faith
estimates that are made on the basis of data derived from such sources.
(zz) Cybersecurity.
The Company and its subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software,
websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform
in all material respects as required in connection with the operation of the business of the Company as currently conducted, and, to the
best of the Company’s knowledge, are free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and
other corruptants. The Company and its subsidiaries have implemented and maintained commercially reasonable physical, technical and administrative
controls, policies, procedures, and safeguards to maintain and protect their material confidential information and the integrity, continuous
operation, redundancy and security of all IT Systems and data, including all “Personal Data” (as defined below), sensitive,
confidential, or regulated data (collectively, “Confidential Data”) used in connection with their businesses.
“Personal Data” means any information that would qualify as “personally identifying information,” “personal
data,” “personal information,” or similar term as defined by Privacy Laws (as defined below); or (ii) any piece
of information that relates to an identified or identifiable natural person, or that is reasonably capable of being used to identify,
contact, or precisely locate a natural person. There have been no breaches, violations, outages or unauthorized uses of or accesses to
Confidential Data or IT Systems, except for those that have been remedied without material cost or liability or the duty to notify any
person or authority pursuant to applicable Privacy Laws, nor any incidents under internal review or investigations relating to the same.
The Company and its subsidiaries are presently in material compliance with all applicable Privacy Laws or statutes and all judgments,
orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual
obligations relating to the privacy and security of IT Systems and Confidential Data and to the protection of such IT Systems and Confidential
Data from unauthorized use, access, misappropriation or modification.
(aaa) Compliance
with Data Privacy Laws. The Company and its subsidiaries are, and at all prior times were, in material compliance with all applicable
state, federal, and foreign data privacy and security laws and regulations, including without limitation California Consumer Privacy Act
(“CCPA”) and the European Union General Data Protection Regulation (“GDPR”) (EU 2016/679)
(collectively, the “Privacy Laws”). To ensure compliance with the Privacy Laws, the Company has in place, complies
with, and takes appropriate steps to ensure compliance in all material respects with their policies and procedures relating to data privacy
and security and the collection, storage, use, disclosure, handling, analysis, or other processing of Confidential Data (the “Policies”).
The Company has at all times made all disclosures to individuals required by applicable laws and regulatory rules or requirements,
and none of such disclosures made or contained in any Policy have been inaccurate or in violation of any applicable laws and regulatory
rules or requirements in any material respect. The Company further certifies that neither it nor any subsidiary: (i) has received
notice of any actual or potential liability under or relating to, or actual or potential violation of, any of the Privacy Laws, and has
no knowledge of any event or condition that would reasonably be expected to result in any such notice; (ii) is currently conducting
or paying for, in whole or in part, any investigation, remediation, or other corrective action pursuant to any Privacy Law; or (iii) is
a party to any order, decree, or agreement that imposes any obligation or liability under any Privacy Law, except, in each case in (i),
(ii) and/or (iii) above, as could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse
Effect.
(bbb) No
Rights of Immunity. Except as provided by laws or statutes generally applicable to transactions of the type described in this Agreement,
neither the Company nor any of its respective properties, assets or revenues has any right of immunity under the laws of the British Virgin
Islands, New York State law or United States federal law, from any legal action, suit or proceeding, from the giving of any relief in
any such legal action, suit or proceeding, from set-off or counterclaim, from the jurisdiction of any British Virgin Islands, New York
or United States federal court, from service of process, attachment upon or prior to judgment, or attachment in aid of execution of judgment,
or from execution of a judgment, or other legal process or proceeding for the giving of any relief or for the enforcement of a judgment,
in any such court, with respect to its obligations, liabilities or any other matter under or arising out of or in connection with this
Agreement. To the extent that the Company or any of its respective properties, assets or revenues may have or may hereafter become entitled
to any such right of immunity in any such court in which proceedings may at any time be commenced, the Company waives or will waive such
right to the extent permitted by law and has consented to such relief and enforcement as provided in Section 17 and Section 18
of this Agreement.
(ccc) Emerging
Growth Company Status. From the time of the initial filing of the Company’s first registration statement with the Commission
through the date hereof, the Company has been and is an “emerging growth company,” as defined in Section 2(a)(19) of
the Securities Act (an “Emerging Growth Company”).
Any certificate signed by
an officer of the Company and delivered to the Agents or to counsel for the Agents pursuant to or in connection with this Agreement shall
be deemed to be a representation and warranty by the Company, as applicable, to the Agents as to the matters set forth therein.
7. Covenants
of the Company. The Company covenants and agrees with the Agents that:
(a) Registration
Statement Amendments. After the date of this Agreement and during any period in which a Prospectus relating to any Placement Shares
is required to be delivered by the Agents under the Securities Act (including in circumstances where such requirement may be satisfied
pursuant to Rule 172 under the Securities Act or similar rule), (i) the Company will notify the Agents promptly of the time
when any subsequent amendment to the Registration Statement, other than documents incorporated by reference, has been filed with the Commission
and/or has become effective or any subsequent supplement to the Prospectus has been filed and of any request by the Commission for any
amendment or supplement to the Registration Statement or Prospectus or for additional information, (ii) the Company will prepare
and file with the Commission, promptly upon the Agents’ request, any amendments or supplements to the Registration Statement or
Prospectus that, in the Agents’ reasonable opinion, may be necessary or advisable in connection with the distribution of the Placement
Shares by the Agents (provided, however, that the failure of the Agents to make such request shall not relieve the Company
of any obligation or liability hereunder, or affect the Agents’ right to rely on the representations and warranties made by the
Company in this Agreement and provided, further, that the only remedy the Agents shall have with respect to the failure
to make such filing shall be to cease making sales under this Agreement until such amendment or supplement is filed); (iii) the Company
will not file any amendment or supplement to the Registration Statement or Prospectus relating to the Placement Shares or a security convertible
into the Placement Shares unless a copy thereof has been submitted to the Agents within a reasonable period of time before the filing
and the Agents have not objected thereto (provided, however, that the failure of the Agents to make such objection shall
not relieve the Company of any obligation or liability hereunder, or affect the Agents’ right to rely on the representations and
warranties made by the Company in this Agreement and provided, further, that the only remedy the Agents shall have with
respect to the failure by the Company to obtain such consent shall be to cease making sales under this Agreement) and the Company will
furnish to the Agents at the time of filing thereof a copy of any document that upon filing is deemed to be incorporated by reference
into the Registration Statement or Prospectus, except for those documents available via EDGAR; and (iv) the Company will cause each
amendment or supplement to the Prospectus to be filed with the Commission as required pursuant to the applicable paragraph of Rule 424(b) of
the Securities Act or, in the case of any document to be incorporated therein by reference, to be filed with the Commission as required
pursuant to the Exchange Act, within the time period prescribed (the determination to file or not file any amendment or supplement with
the Commission under this Section 7(a), based on the Company’s reasonable opinion or reasonable objections, shall be
made exclusively by the Company).
(b) Notice
of Commission Stop Orders. The Company will advise the Agents, promptly after it receives notice or obtains knowledge thereof, of
the issuance or threatened issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, of
the suspension of the qualification of the Placement Shares for offering or sale in any jurisdiction, or of the initiation or threatening
of any proceeding for any such purpose; and it will promptly use its commercially reasonable efforts to prevent the issuance of any stop
order or to obtain its withdrawal if such a stop order should be issued. The Company will advise the Agents promptly after it receives
any request by the Commission for any amendments to the Registration Statement or any amendment or supplements to the Prospectus or any
Issuer Free Writing Prospectus or for additional information related to the offering of the Placement Shares or for additional information
related to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus.
(c) Delivery
of Prospectus; Subsequent Changes. During any period in which a Prospectus relating to the Placement Shares is required to be delivered
by the Agents under the Securities Act with respect to the offer and sale of the Placement Shares, (including in circumstances where such
requirement may be satisfied pursuant to Rule 172 under the Securities Act or similar rule), the Company will comply with all requirements
imposed upon it by the Securities Act, as from time to time in force, and to file on or before their respective due dates all reports
and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Sections 13(a),
13(c), 14, 15(d) or any other provision of or under the Exchange Act. If the Company has omitted any information from the Registration
Statement pursuant to Rule 430B under the Securities Act, it will use its best efforts to comply with the provisions of and make
all requisite filings with the Commission pursuant to said Rule 430B and to notify the Agents promptly of all such filings if not
available on EDGAR. If during such period any event occurs as a result of which the Prospectus as then amended or supplemented would include
an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the
circumstances then existing, not misleading, or if during such period it is necessary to amend or supplement the Registration Statement
or Prospectus to comply with the Securities Act, the Company will promptly notify the Agents to suspend the offering of Placement Shares
during such period and the Company will promptly amend or supplement the Registration Statement or Prospectus (at the expense of the Company)
so as to correct such statement or omission or effect such compliance; provided, however, that the Company may delay any such amendment
or supplement if, in the reasonable judgment of the Company, it is in the interests of the Company to do so, and shall promptly provide
the Agent with a written notice to that effect setting forth with reasonable details the grounds for such judgment. Until such time as
the Company shall have corrected such misstatement or omission or effected such compliance, the Company shall not instruct the Agent to
resume the offering of Placement Shares.
(d) [Reserved.]
(e) Delivery
of Registration Statement and Prospectus. The Company will furnish to the Agents and their counsel (at the expense of the Company)
copies of the Registration Statement, the Prospectus (including all documents incorporated by reference therein) and all amendments and
supplements to the Registration Statement or Prospectus that are filed with the Commission during any period in which a Prospectus relating
to the Placement Shares is required to be delivered under the Securities Act (including all documents filed with the Commission during
such period that are deemed to be incorporated by reference therein), in each case as soon as reasonably practicable and in such quantities
as the Agents may from time to time reasonably request and, at the Agents’ request, will also furnish copies of the Prospectus to
each exchange or market on which sales of the Placement Shares may be made; provided, however, that the Company shall not
be required to furnish any document (other than the Prospectus) to the Agents to the extent such document is available on EDGAR.
(f) Earning
Statement. The Company will make generally available to its security holders as soon as reasonably practicable, but in any event not
later than 15 months after the end of the Company’s current fiscal quarter, an earning statement covering a 12-month period that
satisfies the provisions of Section 11(a) and Rule 158 of the Securities Act. The Company’s compliance with the periodic
reporting requirements of the Exchange Act shall be deemed to satisfy the requirements of this Section 7(f).
(g) Use
of Proceeds. The Company will use the Net Proceeds as described in the Prospectus in the section entitled “Use of Proceeds.”
(h) Notice
of Other Sales. Without the prior written consent of the Agents, the Company will not, directly or indirectly, offer to sell, sell,
contract to sell, grant any option to sell or otherwise dispose of any Common Stock (other than the Placement Shares offered pursuant
to this Agreement) or securities convertible into or exchangeable for Common Stock, warrants or any rights to purchase or acquire, Common
Stock during the period beginning on the fifth (5th) Trading Day immediately prior to the date on which any Placement Notice
is delivered to the Agents hereunder and ending on the fifth (5th) Trading Day immediately following the final Settlement Date
with respect to Placement Shares sold pursuant to such Placement Notice (or, if the Placement Notice has been terminated or suspended
prior to the sale of all Placement Shares covered by a Placement Notice, the date of such suspension or termination); and will not directly
or indirectly in any other “at the market” or continuous equity transaction offer to sell, sell, contract to sell, grant any
option to sell or otherwise dispose of any Common Stock (other than the Placement Shares offered pursuant to this Agreement) or securities
convertible into or exchangeable for Common Stock, warrants or any rights to purchase or acquire, Common Stock prior to the sixtieth (60th)
day immediately following the termination of this Agreement; provided, however, that such restrictions will not be required
in connection with the Company’s issuance or sale of (i) Common Stock, options to purchase Common Stock or Common Stock issuable
upon the exercise of options, pursuant to any employee or director stock option or benefits plan, stock ownership plan or dividend reinvestment
plan (but not Common Stock subject to a waiver to exceed plan limits in its dividend reinvestment plan) of the Company whether now in
effect or hereafter implemented, (ii) Common Stock issuable upon conversion of securities or the exercise of warrants, options or
other rights in effect or outstanding, and disclosed in filings by the Company available on EDGAR or otherwise in writing to the Agents
(iii) Common Stock or securities convertible into or exchangeable for shares of Common Stock as consideration for mergers, acquisitions,
other business combinations or strategic alliances occurring after the date of this Agreement which are not issued for capital raising
purposes and (iv) Common Stock or securities convertible into or exchangeable for Common Stock pursuant to the Company’s registration
right obligations to selling shareholders.
(i) Change
of Circumstances. The Company will, at any time during the pendency of a Placement Notice, advise the Agents promptly after it shall
have received notice or obtained knowledge thereof, of any information or fact that would alter or affect in any material respect any
opinion, certificate, letter or other document required to be provided to the Agents pursuant to this Agreement.
(j) Due
Diligence Cooperation. The Company will reasonably cooperate with any reasonable due diligence review conducted by the Agents or their
representatives in connection with the transactions contemplated hereby, including, without limitation, providing information and making
available documents and senior corporate officers, during regular business hours and at the Company’s principal offices, as the
Agents may reasonably request.
(k) Required
Filings Relating to Placement of Placement Shares. The Company shall disclose, in its annual report on Form 20-F and any periodic
report on Form 6-K under which the Company furnishes its half-year report with its results of operations for the prior six-month
period, in each case to be filed by the Company with the Commission from time to time, the number of the Placement Shares sold through
the Agents under this Agreement, and the net proceeds to the Company from the sale of the Placement Shares pursuant to this Agreement
during the relevant six month period (in the case of a periodic report on Form 6-K in which the Company furnishes its half-year report
with its results of operations for the relevant six-month period) or, in the case of an Annual Report on Form 20-F, during the fiscal
year covered by such Annual Report. The Company agrees that on such dates as the Securities Act shall require, the Company will (i) file
a prospectus supplement with the Commission under the applicable paragraph of Rule 424(b) under the Securities Act (each and
every filing date under Rule 424(b), a “Filing Date”), which prospectus supplement will set forth, within
the relevant period, the amount of Placement Shares sold through the Agents, the Net Proceeds to the Company and the compensation payable
by the Company to the Agents with respect to such Placement Shares, and (ii) deliver such number of copies of each such prospectus
supplement to each exchange or market on which such sales were effected as may be required by the rules or regulations of such exchange
or market; provided, however, that no such filing shall be required if the Company shall have disclosed such information in its most recent
periodic report filed pursuant to the Exchange Act, and such disclosure is sufficient pursuant to the Exchange Act.
(l) Representation
Dates; Certificate. (1) Prior to the date of the first Placement Notice and (2) each time the Company:
(i) files
the Prospectus relating to the Placement Shares or amends or supplements (other than a prospectus supplement relating solely to an offering
of securities other than the Placement Shares) the Registration Statement or the Prospectus relating to the Placement Shares by means
of a post-effective amendment, sticker, or supplement but not by means of incorporation of documents by reference into the Registration
Statement or the Prospectus relating to the Placement Shares;
(ii) files
an annual report on Form 20-F under the Exchange Act (including any Form 20-F containing amended financial information or a
material amendment to the previously filed Form 20-F);
(iii) files
a report on Form 6-K containing quarterly or half-year financial statements (including any Form 20-F/A or Form 6-K/A containing
amended financial statements or a material amendment to the previously filed annual report on Form 20-F six-month report on Form 6-K),
in each case, of the Company; or
(iv) files
a report on Form 6-K containing amended financial information under the Exchange Act that is incorporated by reference into the Registration
Statement
(each date of filing of one or more of the documents
referred to in clauses (i) through (iv) shall be a “Representation Date”); the Company shall furnish
the Agents (but in the case of clause (iv) above only if the Agents reasonably determine that the information contained in such Form 6-K
is material) with a certificate dated the Representation Date, in the form and substance satisfactory to the Agents and their counsel,
substantially similar to the form previously provided to the Agents and its counsel, modified, as necessary, to relate to the Registration
Statement and the Prospectus as amended or supplemented. The requirement to provide a certificate under this Section 7(l) shall
be waived for any Representation Date occurring at a time a Suspension is in effect, which waiver shall continue until the earlier to
occur of the date the Company delivers instructions for the sale of Placement Shares hereunder (which for such calendar three- month period
shall be considered a Representation Date) and the next occurring Representation Date. Notwithstanding the foregoing, if the Company subsequently
decides to sell Placement Shares following a Representation Date when a Suspension was in effect and did not provide the Agents with a
certificate under this Section 7(l), then before the Company delivers the instructions for the sale of Placement Shares or
the Agents sell any Placement Shares pursuant to such instructions, the Company shall provide the Agents with a certificate in conformity
with this Section 7(l) dated as of the date that the instructions for the sale of Placement Shares are issued.
(m) Legal
Opinion. (1) Prior to the date of the first Placement Notice and (2) within five (5) Trading Days of each Representation
Date with respect to which the Company is obligated to deliver a certificate pursuant to Section 7(l) for which no waiver
is applicable and excluding the date of this Agreement, the Company shall cause to be furnished to the Agents a written opinion and negative
assurance letter of Skadden, Arps, Slate, Meagher & Flom LLP, U.S. counsel for the Company (“U.S. Counsel”),
and a written opinion of Ogier, British Virgin Islands Counsel for the Company (“BVI Counsel”) and written opinion
of Harneys, Cypriot Counsel for the Company (together with U.S. Counsel and BVI Counsel, “Company Counsel”)
or other counsel satisfactory to the Agents, in form and substance reasonably satisfactory to the Agents and their counsel, or, as applicable,
substantially similar to the form previously provided to the Agents and their counsel, modified, as necessary, to relate to the Registration
Statement and the Prospectus as then amended or supplemented; provided, however, the Company shall be required to furnish to the
Agents no more than one opinion and negative assurance letter of each Company Counsel, as applicable, per calendar three-month period
and the Company shall not be required to furnish any such opinion and letter, as applicable, if the Company does not intend to deliver
a Placement Notice in such calendar three-month period until such time as the Company delivers the next Placement Notice, provided,
that in lieu of such opinions for subsequent periodic filings under the Exchange Act, Company Counsel may furnish the Agents with letters
(each, a “Reliance Letter”) to the effect that the Agents may rely on a prior opinion, and, if applicable, negative
assurance letter, delivered under this Section 7(m) to the same extent as if it were dated the date of such letter (except
that statements in such prior opinion and negative assurance letter shall be deemed to relate to the Registration Statement and the Prospectus
as amended or supplemented as of the date of the Reliance Letter).
(n) Comfort
Letter. (1) Prior to the date of the first Placement Notice and (2) within five (5) Trading Days of each Representation
Date with respect to which the Company is obligated to deliver a certificate pursuant to Section 7(l) for which no waiver
is applicable and excluding the date of this Agreement, the Company shall cause its independent registered public accounting firm to furnish
the Agents letters (the “Comfort Letters”), dated the date the Comfort Letter is delivered, which shall meet
the requirements set forth in this Section 7(n); provided, that if requested by the Agents, the Company shall cause
a Comfort Letter to be furnished to the Agents within ten (10) Trading Days of the date of occurrence of any material transaction
or event requiring the filing of a Current Report on Form 6-K containing financial information ( including the restatement of the
Company’s financial statements). The Comfort Letter from the Company’s independent registered public accounting firm shall
be in a form set in the AS 6101: Letters for Underwriters and Certain Other Requesting Parties or any other subsequent accounting standard.
(o) Market
Activities; Compliance with Regulation M. The Company will not, directly or indirectly, (i) take any action designed to cause
or result in, or that constitutes or would reasonably be expected to constitute, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of Common Stock or (ii) sell, bid for, or purchase Common Stock in violation
of Regulation M, or pay anyone any compensation for soliciting purchases of the Placement Shares other than the Agents.
(p) Investment
Company Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that neither it nor any of its Subsidiaries
will be or become, at any time prior to the termination of this Agreement, required to register as an “investment company,”
as such term is defined in the Investment Company Act.
(q) No
Offer to Sell. Other than an Issuer Free Writing Prospectus approved in advance by the Company and the Agents in their capacity as
agents hereunder, neither the Agents nor the Company (including its agents and representatives, other than the Agents in their capacity
as such) will make, use, prepare, authorize, approve or refer to any written communication (as defined in Rule 405 under the Securities
Act), required to be filed with the Commission, that constitutes an offer to sell or solicitation of an offer to buy Placement Shares
hereunder.
(r) Blue
Sky and Other Qualifications. The Company will use its commercially reasonable efforts, in cooperation with the Agents, to
qualify the Placement Shares for offering and sale, or to obtain an exemption for the Placement Shares to be offered and sold, under the
applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Agents may reasonably designate and to
maintain such qualifications and exemptions in effect for so long as required for the distribution of the Placement Shares (but in no
event for less than one year from the date of this Agreement); provided, however, that the Company shall not be obligated
to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction
in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise
so subject. In each jurisdiction in which the Placement Shares have been so qualified or exempt, the Company will file such statements
and reports as may be required by the laws of such jurisdiction to continue such qualification or exemption, as the case may be, in effect
for so long as required for the distribution of the Placement Shares (but in no event for less than one year from the date of this Agreement).
(s) Sarbanes-Oxley
Act. The Company and the Subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal
accounting controls in a manner designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with IFRS and including those policies and procedures that (i) pertain
to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets
of the Company, (ii) provide reasonable assurance that transactions are recorded as necessary to permit the preparation of the Company’s
consolidated financial statements in accordance with IFRS, (iii) that receipts and expenditures of the Company are being made only
in accordance with management’s and the Company’s directors’ authorization, and (iv) provide reasonable assurance
regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could have
a material effect on its financial statements. The Company and the Subsidiaries will maintain such controls and other procedures, including,
without limitation, those required by Sections 302 and 906 of the Sarbanes-Oxley Act, and the applicable regulations thereunder that are
designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange
Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms,
including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in
the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company’s management, including
its principal executive officer and principal financial officer, or persons performing similar functions, as appropriate to allow timely
decisions regarding required disclosure and to ensure that material information relating to the Company or the Subsidiaries is made known
to them by others within those entities, particularly during the period in which such periodic reports are being prepared.
(t) Secretary’s
Certificate; Further Documentation. Prior to the date of the first Placement Notice, the Company shall deliver to the Agents a certificate
of the Secretary of the Company and attested to by an executive officer of the Company, dated as of such date, certifying as to (i) the
Amended and Restated Memorandum and Articles of Association of the Company, (ii) the resolutions of the Board of Directors of the
Company authorizing the execution, delivery and performance of this Agreement and the sale of the Placement Shares and (iii) the
incumbency of the officers duly authorized to execute this Agreement and the other documents contemplated by this Agreement. Within five
(5) Trading Days of each Representation Date, the Company shall have furnished to the Agents such further information, certificates
and documents as the Agents may reasonably request.
(u) Emerging
Growth Company Status. The Company will promptly notify the Agents if the Company ceases to be an Emerging Growth Company at any time
during the term of this Agreement.
8. Payment
of Expenses. The Company will pay all expenses incident to the performance of its obligations under this Agreement, including (i) the
preparation and filing of the Registration Statement, including any fees required by the Commission, and the printing or electronic delivery
of the Prospectus as originally filed and of each amendment and supplement thereto, in such number as the Agents shall deem necessary,
(ii) the printing and delivery to the Agents of this Agreement and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Placement Shares, (iii) the preparation, issuance and delivery of the certificates,
if any, for the Placement Shares to the Agents, (iv) the fees and disbursements of the counsel, accountants and other advisors to
the Company, (v) the reasonable and documented fees and expenses of Agents including but not limited to the fees and expenses of
the counsel to the Agents, payable upon the execution of this Agreement, (a) in an amount not to exceed $100,000 in connection with
the execution of this Agreement and (b) in an amount not to exceed $25,000 quarterly thereafter payable in connection with each Representation
Date with respect to which the Company is obligated to deliver a certificate pursuant to Section 7(l) for which no waiver
is applicable and excluding the date of this Agreement, unless a Suspension is in effect pursuant to Section 4, (vi) the
qualification or exemption of the Placement Shares under state securities laws in accordance with the provisions of Section 7(r) hereof,
including filing fees, but excluding fees of the Agents’ counsel, (vii) the printing and delivery to the Agents of copies of
any Permitted Issuer Free Writing Prospectus and the Prospectus and any amendments or supplements thereto in such number as the Agents
shall reasonably deem necessary, (viii) the preparation, printing and delivery to the Agents of copies of the blue sky survey, (ix) the
fees and expenses of the transfer agent and registrar for the Common Stock, (x) the filing and other fees incident to any review
by FINRA of the terms of the sale of the Placement Shares including the fees of the Agents’ counsel (which fees will be included
in and subject to the cap, set forth in clause (v) above), and (xi) the fees and expenses incurred in connection with the listing
of the Placement Shares on the Exchange, to the extent applicable. The Company agrees to pay the fees and expenses of counsel to the Agents
set forth in clause (v) above by wire transfer of immediately available funds directly to such counsel upon presentation of an invoice
containing the requisite payment information prepared by such counsel.
9. Conditions
to Agents’ Obligations. The obligations of the Agents hereunder with respect to a Placement will be subject to (i) the
continuing accuracy and completeness of the representations and warranties made by the Company herein, (ii) the due performance by
the Company of its obligations hereunder, (iii) the completion by the Agents of a due diligence review satisfactory to it in its
reasonable judgment, and (iv) the continuing satisfaction (or waiver by the Agents in their sole discretion) of the following additional
conditions:
(a) Registration
Statement Effective. The Registration Statement shall have become effective and shall be available for the (i) resale of all
Placement Shares issued to the Agents and not yet sold by the Agents and (ii) sale of all Placement Shares contemplated to be issued
by any Placement Notice.
(b) No
Material Notices. None of the following events shall have occurred and be continuing: (i) receipt by the Company of any request
for additional information from the Commission or any other federal or state Governmental Authority during the period of effectiveness
of the Registration Statement, the response to which would require any post-effective amendments or supplements to the Registration Statement
or the Prospectus; (ii) the issuance by the Commission or any other federal or state Governmental Authority of any stop order suspending
the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; (iii) receipt by the Company
of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Placement Shares
for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) the occurrence of any event
that makes any statement of a material fact made in the Registration Statement or the Prospectus or any document incorporated or deemed
to be incorporated therein by reference untrue or that requires the making of any changes in the Registration Statement, the Prospectus
or documents incorporated by reference therein so that, in the case of the Registration Statement, it will not contain an untrue statement
of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading
and, that in the case of the Prospectus, it will not contain an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) No
Misstatement or Material Omission. The Agents shall not have advised the Company that the Registration Statement or Prospectus, or
any amendment or supplement thereto, contains an untrue statement of fact that in the Agents’ reasonable opinion is material, or
omits to state a fact that in the Agents’ reasonable opinion is material and is required to be stated therein or is necessary to
make the statements therein not misleading.
(d) Material
Changes. Except as contemplated in the Prospectus, or disclosed in the Company’s reports filed with the Commission, there shall
not have been any material adverse change in the authorized shares of the Company or any Material Adverse Effect or any development that
would cause a Material Adverse Effect, or a downgrading in or withdrawal of the rating assigned to any of the Company’s securities
(other than asset backed securities) by any rating organization or a public announcement by any rating organization that it has under
surveillance or review its rating of any of the Company’s securities (other than asset backed securities), the effect of which,
in the case of any such action by a rating organization described above, in the reasonable judgment of the Agents (without relieving the
Company of any obligation or liability it may otherwise have), is so material as to make it impracticable or inadvisable to proceed with
the offering of the Placement Shares on the terms and in the manner contemplated in the Prospectus.
(e) Legal
Opinions. The Agents shall have received the opinions and negative assurance letters required to be delivered pursuant to Section 7(m) on
or before the date on which such delivery of such opinions is required pursuant to Section 7(m).
(f) Comfort
Letter. The Agents shall have received the Comfort Letter required to be delivered pursuant to Section 7(n) on or
before the date on which such delivery of such Comfort Letter is required pursuant to Section 7(n).
(g) Representation
Certificate. The Agents shall have received the certificate required to be delivered pursuant to Section 7(l) on
or before the date on which delivery of such certificate is required pursuant to Section 7(l).
(h) No
Suspension. Trading in the Common Stock shall not have been suspended on the Exchange and the Common Stock shall not have been delisted
from the Exchange.
(i) Other
Materials. On each date on which the Company is required to deliver a certificate pursuant to Section 7(l), the Company
shall have furnished to the Agents such appropriate further information, opinions, certificates, letters and other documents as the Agents
may reasonably request. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof.
(j) Securities
Act Filings Made. All filings with the Commission required by Rule 424 under the Securities Act to have been filed prior to the
issuance of any Placement Notice hereunder shall have been made within the applicable time period prescribed for such filing by Rule 424.
(k) [Reserved.]
(l) FINRA.
If applicable, FINRA shall have raised no objection to the terms of this offering and the amount of compensation allowable or payable
to the Agents as described in the Prospectus.
(m) No
Termination Event. There shall not have occurred any event that would permit the Agents to terminate this Agreement pursuant to Section 12(a).
10. Indemnification
and Contribution.
(a) Company
Indemnification. The Company agrees to indemnify and hold harmless the Agents, their affiliates and their respective partners, members,
directors, officers, employees and agents and each person, if any, who controls the applicable Agent or any affiliate within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act as follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading,
or arising out of any untrue statement or alleged untrue statement of a material fact included in any related Issuer Free Writing Prospectus
or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, joint or several, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding by any Governmental Authority, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided
that (subject to Section 10(d) below) any such settlement is effected with the written consent of the Company, which
consent shall not unreasonably be delayed or withheld; and
(iii) against
any and all expense whatsoever, as incurred (including reasonable fees and disbursements of counsel), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or proceeding by any Governmental Authority, commenced or threatened,
or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission (whether or
not a party), to the extent that any such expense is not paid under (i) or (ii) above,
provided,
however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out
of any untrue statement or omission or alleged untrue statement or omission made solely in reliance upon and in conformity with the Agents’
Information (as defined below).
(b) Indemnification
by the Agents. Each Agent, severally but not jointly, agrees to indemnify and hold harmless the Company and its directors and each
officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in Section 10(a), as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement (or any amendments thereto), the Prospectus (or any amendment
or supplement thereto) or any Issuer Free Writing Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity
with information relating to such Agent and furnished to the Company in writing by such Agent expressly for use therein. The Company hereby
acknowledges that the only information that the Agents have furnished to the Company expressly for use in the Registration Statement,
the Prospectus, any Prospectus Supplement or any Issuer Free Writing Prospectus (or any amendment or supplement thereto) are the statements
set forth in the seventh and eighth paragraphs under the caption “Plan of Distribution” in the Prospectus (the “Agent
Information”).
(c) Procedure.
Any party that proposes to assert the right to be indemnified under this Section 10 will, promptly after receipt of notice
of commencement of any action against such party in respect of which a claim is to be made against an indemnifying party or parties under
this Section 10, notify each such indemnifying party of the commencement of such action, enclosing a copy of all papers served,
but the omission so to notify such indemnifying party will not relieve the indemnifying party from (i) any liability that it might
have to any indemnified party otherwise than under this Section 10 and (ii) any liability that it may have to any indemnified
party under the foregoing provision of this Section 10 unless, and only to the extent that, such omission results in the forfeiture
of substantive rights or defenses by the indemnifying party. If any such action is brought against any indemnified party and it notifies
the indemnifying party of its commencement, the indemnifying party will be entitled to participate in and, to the extent that it elects
by delivering written notice to the indemnified party promptly after receiving notice of the commencement of the action from the indemnified
party, jointly with any other indemnifying party similarly notified, to assume the defense of the action, with counsel reasonably satisfactory
to the indemnified party, and after notice from the indemnifying party to the indemnified party of its election to assume the defense,
the indemnifying party will not be liable to the indemnified party for any other legal expenses except as provided below and except for
the reasonable costs of investigation subsequently incurred by the indemnified party in connection with the defense. The indemnified party
will have the right to employ its own counsel in any such action, but the fees, expenses and other charges of such counsel will be at
the expense of such indemnified party unless (1) the employment of counsel by the indemnified party has been authorized in writing
by the indemnifying party, (2) the indemnified party has reasonably concluded (based on advice of counsel) that there may be legal
defenses available to it or other indemnified parties that are different from or in addition to those available to the indemnifying party,
(3) a conflict or potential conflict exists (based on advice of counsel to the indemnified party) between the indemnified party and
the indemnifying party (in which case the indemnifying party will not have the right to direct the defense of such action on behalf of
the indemnified party) or (4) the indemnifying party has not in fact employed counsel to assume the defense of such action or counsel
reasonably satisfactory to the indemnified party, in each case, within a reasonable time after receiving notice of the commencement of
the action; in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the indemnifying
party or parties. It is understood that the indemnifying party or parties shall not, in connection with any proceeding or related proceedings
in the same jurisdiction, be liable for the reasonable fees, disbursements and other charges of more than one separate firm (plus local
counsel) admitted to practice in such jurisdiction at any one time for all such indemnified party or parties. All such fees, disbursements
and other charges will be reimbursed by the indemnifying party promptly as they are incurred. An indemnifying party will not, in any event,
be liable for any settlement of any action or claim effected without its written consent (such consent not to be unreasonably withheld
or delayed). No indemnifying party shall, without the prior written consent of each indemnified party, settle or compromise or consent
to the entry of any judgment in any pending or threatened claim, action or proceeding relating to the matters contemplated by this Section 10
(whether or not any indemnified party is a party thereto), unless such settlement, compromise or consent (1) includes an express
and unconditional release of each indemnified party, in form and substance reasonably satisfactory to such indemnified party, from all
liability arising out of such litigation, investigation, proceeding or claim and (2) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) Settlement
Without Consent if Failure to Reimburse. If an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for reasonable fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement
of the nature contemplated by Section 10(a)(ii) effected without its written consent if (1) such settlement is entered
into more than 45 days after receipt by such indemnifying party of the aforesaid request, (2) such indemnifying party shall have
received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (3) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
(e) Contribution.
In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in the foregoing paragraphs
of this Section 10 is applicable in accordance with its terms but for any reason is held to be unavailable or insufficient
from the Company or the Agents, the Company and the Agents will contribute to the total losses, claims, liabilities, expenses and damages
(including any investigative, legal and other expenses reasonably incurred in connection with, and any amount paid in settlement of, any
action, suit or proceeding or any claim asserted) to which the Company and the Agents may be subject in such proportion as shall be appropriate
to reflect the relative benefits received by the Company on the one hand and the Agents on the other hand. The relative benefits received
by the Company on the one hand and the Agents on the other hand shall be deemed to be in the same proportion as the total net proceeds
from the sale of the Placement Shares (before deducting expenses) received by the Company bear to the total compensation received by the
Agents from the sale of Placement Shares on behalf of the Company. If, but only if, the allocation provided by the foregoing sentence
is not permitted by applicable law, the allocation of contribution shall be made in such proportion as is appropriate to reflect not only
the relative benefits referred to in the foregoing sentence but also the relative fault of the Company, on the one hand, and the Agents,
on the other hand, with respect to the statements or omission that resulted in such loss, claim, liability, expense or damage, or action
in respect thereof, as well as any other relevant equitable considerations with respect to such offering. Such relative fault shall be
determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the Company or the Agents, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Agents agree that
it would not be just and equitable if contributions pursuant to this Section 10(e) were to be determined by pro rata
allocation or by any other method of allocation that does not take into account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss, claim, liability, expense, or damage, or action in respect thereof, referred
to above in this Section 10(e) shall be deemed to include, for the purpose of this Section 10(e), any legal
or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim
to the extent consistent with Section 10(c) hereof. Notwithstanding the foregoing provisions of this Section 10(e),
the Agents shall not be required to contribute any amount in excess of the commissions received by it under this Agreement and no person
found guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled
to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 10(e),
any person who controls a party to this Agreement within the meaning of the Securities Act, any affiliates of the Agents and any officers,
directors, partners, employees or agents of the Agents or any of their affiliates, will have the same rights to contribution as that party,
and each director of the Company and each officer of the Company who signed the Registration Statement will have the same rights to contribution
as the Company, subject in each case to the provisions hereof. Any party entitled to contribution, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim for contribution may be made under this Section 10(e),
will notify any such party or parties from whom contribution may be sought, but the omission to so notify will not relieve that party
or parties from whom contribution may be sought from any other obligation it or they may have under this Section 10(e) except
to the extent that the failure to so notify such other party materially prejudiced the substantive rights or defenses of the party from
whom contribution is sought. Except for a settlement entered into pursuant to the last sentence of Section 10(c) hereof,
no party will be liable for contribution with respect to any action or claim settled without its written consent if such consent is required
pursuant to Section 10(c) hereof. The Agents’ respective obligations to contribute pursuant to this Section 10(e) are
several in proportion to the respective number of Placement Shares they have sold hereunder, and not joint.
11. Representations
and Agreements to Survive Delivery. The indemnity and contribution agreements contained in Section 10 of this Agreement
and all representations and warranties of the Company herein or in certificates delivered pursuant hereto shall survive, as of their respective
dates, regardless of (i) any investigation made by or on behalf of the Agents, any controlling persons, or the Company (or any of
their respective officers, directors, employees or controlling persons), (ii) delivery and acceptance of the Placement Shares and
payment therefor or (iii) any termination of this Agreement.
12. Termination.
(a) Each
of the Agents may terminate this Agreement with respect to itself, by notice to the Company and the other Agent, as hereinafter specified
at any time (1) if there has been, since the time of execution of this Agreement or since the date as of which information is given
in the Prospectus, any change, or any development or event involving a prospective change, in the condition, financial or otherwise, or
in the business, properties, earnings, results of operations or prospects of the Company and its Subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, which individually or in the aggregate, in the sole judgment of the Agents
is material and adverse and makes it impractical or inadvisable to market the Placement Shares or to enforce contracts for the sale of
the Placement Shares, (2) if there has occurred any material adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development
involving a prospective change in national or international political, financial or economic conditions, in each case the effect of which
is such as to make it, in the judgment of the Agents, impracticable or inadvisable to market the Placement Shares or to enforce contracts
for the sale of the Placement Shares, (3) if trading in the Common Stock has been suspended or limited by the Commission or the Exchange,
or if trading generally on the Exchange has been suspended or limited, or minimum prices for trading have been fixed on the Exchange,
(4) if any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market shall have occurred
and be continuing, (5) if a major disruption of securities settlements or clearance services in the United States shall have occurred
and be continuing, or (6) if a banking moratorium has been declared by either U.S. Federal or New York authorities. Any such termination
shall be without liability of any party to any other party except that the provisions of Section 8 (Payment of Expenses),
Section 10 (Indemnification and Contribution), Section 11 (Representations and Agreements to Survive Delivery),
Section 17 (Governing Law and Time; Waiver of Jury Trial) and Section 18 (Consent to Jurisdiction) hereof shall
remain in full force and effect notwithstanding such termination. If the Agents elects to terminate this Agreement as provided in this
Section 12(a), the Agents shall provide the required notice as specified in Section 13 (Notices).
(b) The
Company shall have the right, by giving ten (10) days’ notice as hereinafter specified to terminate this Agreement in its sole
discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other party
except that the provisions of Section 8, Section 10, Section 11, Section 17 and Section 18
hereof shall remain in full force and effect notwithstanding such termination.
(c) Each
of the Agents shall have the right, by giving ten (10) days’ notice as hereinafter specified to terminate this Agreement, with
respect to such Agent’s rights and obligations under this Agreement, in its sole discretion at any time after the date of this Agreement.
Any such termination shall be without liability of any party to any other party except that the provisions of Section 8, Section 10,
Section 11, Section 17 and Section 18 hereof shall remain in full force and effect notwithstanding
such termination.
(d) This
Agreement shall remain in full force and effect unless terminated pursuant to Sections 12(a), (b), or (c) above
or otherwise by mutual agreement of the parties; provided, however, that any such termination by mutual agreement shall
in all cases be deemed to provide that Section 8, Section 10, Section 11, Section 17 and
Section 18 shall remain in full force and effect.
(e) Any
termination of this Agreement shall be effective on the date specified in such notice of termination; provided, however,
that such termination shall not be effective until the close of business on the date of receipt of such notice by the Agents or the Company,
as the case may be. If such termination shall occur prior to the Settlement Date for any sale of Placement Shares, such Placement Shares
shall settle in accordance with the provisions of this Agreement.
13. Notices.
All notices or other communications required or permitted to be given by any party to any other party pursuant to the terms of this Agreement
shall be in writing, unless otherwise specified, and if sent to the Agents, shall be delivered to:
Cantor Fitzgerald & Co.
110 East 59th Street
New York, NY 10022
Attention: Capital Markets
Email:
and:
Cantor Fitzgerald & Co.
110 East 59th Street
New York, NY 10022
Attention: General Counsel
Email:
and:
Oppenheimer &
Co. Inc.
85 Broad Street, Floor 23
New York, NY 10004
Attention:
Email:
and:
Oppenheimer &
Co. Inc.
85 Broad Street, Floor 23
New York, NY 10004
Attention:
Email:
with a copy to:
Cooley LLP
55 Hudson Yards
New York, NY 10001
Attention:
Email:
and if to the Company,
shall be delivered to:
GDEV Inc.
55, Griva Digeni
3101, Limassol
Attention:
Email:
with a copy to:
Skadden, Arps, Slate, Meagher &
Flom (UK) LLP
22 Bishopgate
London, EC2N 4BQ
United Kingdom
Attention:
Email:
Each party to this Agreement
may change such address for notices by sending to the parties to this Agreement written notice of a new address for such purpose. Each
such notice or other communication shall be deemed given (i) when delivered personally on or before 4:30 p.m., New York City
time, on a Business Day or, if such day is not a Business Day, on the next succeeding Business Day, (ii) by Electronic Notice, as
set forth below, (iii) on the next Business Day after timely delivery to a nationally-recognized overnight courier and (iv) on
the Business Day actually received if deposited in the U.S. mail (certified or registered mail, return receipt requested, postage prepaid).
For purposes of this Agreement, “Business Day” shall mean any day on which the Exchange and commercial banks
in the City of New York are open for business.
An electronic communication
(“Electronic Notice”) shall be deemed written notice for purposes of this Section 13 if sent to the electronic
mail address specified by the receiving party under separate cover. Electronic Notice shall be deemed received at the time the party sending
Electronic Notice receives verification of receipt by the receiving party. Any party receiving Electronic Notice may request and shall
be entitled to receive the notice on paper, in a nonelectronic form (“Nonelectronic Notice”) which shall be
sent to the requesting party within ten (10) days of receipt of the written request for Nonelectronic Notice.
14. Successors
and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and the Agents and their respective successors
and the parties referred to in Section 10 hereof. References to any of the parties contained in this Agreement shall be deemed to
include the successors and permitted assigns of such party. Nothing in this Agreement, express or implied, is intended to confer upon
any party other than the parties hereto or their respective successors and permitted assigns any rights, remedies, obligations or liabilities
under or by reason of this Agreement, except as expressly provided in this Agreement. Neither party may assign its rights or obligations
under this Agreement without the prior written consent of the other party; provided, however, that the Agents may assign
its rights and obligations hereunder to an affiliate thereof without obtaining the Company’s consent.
15. Adjustments
for Stock Splits. The parties acknowledge and agree that all share-related numbers contained in this Agreement shall be adjusted to
take into account any share split, share dividend, share combination, or similar event effected with respect to the Placement Shares.
16. Entire
Agreement; Amendment; Severability; Waiver. This Agreement (including all schedules and exhibits attached hereto and Placement Notices
issued pursuant hereto) constitutes the entire agreement and supersedes all other prior and contemporaneous agreements and undertakings,
both written and oral, among the parties hereto with regard to the subject matter hereof. Neither this Agreement nor any term hereof may
be amended except pursuant to a written instrument executed by the Company and the Agents. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable as written by a court of competent
jurisdiction, then such provision shall be given full force and effect to the fullest possible extent that it is valid, legal and enforceable,
and the remainder of the terms and provisions herein shall be construed as if such invalid, illegal or unenforceable term or provision
was not contained herein, but only to the extent that giving effect to such provision and the remainder of the terms and provisions hereof
shall be in accordance with the intent of the parties as reflected in this Agreement. No implied waiver by a party shall arise in the
absence of a waiver in writing signed by such party. No failure or delay in exercising any right, power, or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise
of any right, power, or privilege hereunder.
17. GOVERNING
LAW AND TIME; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME. EACH PARTY HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
18. CONSENT
TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE
CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH ANY TRANSACTION CONTEMPLATED
HEREBY, AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY
SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT THE VENUE
OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS
BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF (CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED)
TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT
SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY
MANNER PERMITTED BY LAW.
19. Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Delivery of an executed Agreement by one party to the other may be made by electronic mail (including
any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures
and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be
deemed to have been duly and validly delivered and be valid and effective for all purposes.
20. Construction.
The section and exhibit headings herein are for convenience only and shall not affect the construction hereof. References herein
to any law, statute, ordinance, code, regulation, rule or other requirement of any Governmental Authority shall be deemed to refer
to such law, statute, ordinance, code, regulation, rule or other requirement of any Governmental Authority as amended, reenacted,
supplemented or superseded in whole or in part and in effect from time to time and also to all rules and regulations promulgated
thereunder.
21. Permitted
Free Writing Prospectuses. The Company represents, warrants and agrees that, unless it obtains the prior written consent of the Agents,
and the Agents represent, warrant and agree that, unless they obtain the prior written consent of the Company, they have not made and
will not make any offer relating to the Placement Shares that would constitute an Issuer Free Writing Prospectus, or that would otherwise
constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such free
writing prospectus consented to by the Agents or by the Company, as the case may be, is hereinafter referred to as a “Permitted
Free Writing Prospectus.” The Company represents and warrants that it has treated and agrees that it will treat each Permitted Free
Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with
the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where
required, legending and record keeping. For the purposes of clarity, the parties hereto agree that all free writing prospectuses, if any,
listed in Exhibit 21 hereto are Permitted Free Writing Prospectuses.
22. Absence
of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) the
Agents are acting solely as agents in connection with the public offering of the Placement Shares and in connection with each transaction
contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company
or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand,
and the Agents, on the other hand, have been or will be created in respect of any of the transactions contemplated by this Agreement,
irrespective of whether or not the Agents have advised or are advising the Company on other matters, and the Agents have no obligation
to the Company with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) it
is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated
by this Agreement;
(c) neither
the Agents nor their affiliates have provided any legal, accounting, regulatory or tax advice with respect to the transactions contemplated
by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it
is aware that the Agents and their affiliates are engaged in a broad range of transactions which may involve interests that differ from
those of the Company and the Agents and their affiliates have no obligation to disclose such interests and transactions to the Company
by virtue of any fiduciary, advisory or agency relationship or otherwise; and
(e) it
waives, to the fullest extent permitted by law, any claims it may have against the Agents or their affiliates for breach of fiduciary
duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that the Agents
and their affiliates shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such
a fiduciary duty claim or to any person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or
creditors of Company.
23. Appointment
of Agent for Service. The Company hereby appoints Puglisi & Associates, with offices at 850 Library Avenue, Suite 204, Newark,
Delaware 19711 as its agent for service of process in any suit, action or proceeding described in Section 18 and agrees that service
of process in any such suit, action or proceeding may be made upon it at the office of such agent. The Company waives, to the fullest
extent permitted by law, any other requirements of or objections to personal jurisdiction with respect thereto. The Company represents
and warrants (i) that such agent has agreed to act as the Company’s agent for service of process, and the Company agrees to take
any and all action, including the filing of any and all documents and instruments, that may be necessary to continue such appointment
in full force and effect and (ii) that it shall appoint any other agent for service of process, including the filing of any and all documents
and instruments, as it is necessary to replace Puglisi & Associates if for any reason such appointment ceases to be in full force
and effect.
24. Judgment
Currency. If for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder into any currency
other than United States dollars, the parties hereto agree, to the fullest extent permitted by law, that the rate of exchange used shall
be the rate at which in accordance with normal banking procedures the Agents could purchase United States dollars with such other currency
in The City of New York on the Business Day preceding that on which final judgment is given. The obligation of the Company with respect
to any sum due from it to the Agents or any person controlling the Agents shall, notwithstanding any judgment in a currency other than
United States dollars, not be discharged until the first Business Day following receipt by the Agents or any person controlling the Agents
of any sum in such other currency, and only to the extent that the Agents or controlling person may in accordance with normal banking
procedures purchase United States dollars with such other currency. If the United States dollars so purchased are less than the sum originally
due to the Agent or controlling person hereunder, the Company agrees as a separate obligation and notwithstanding any such judgment, to
indemnify the Agents or controlling person against such loss. If the United States dollars so purchased are greater than the sum originally
due to the Agent or controlling person hereunder, the Agents or controlling person agrees to pay to the Company an amount equal to the
excess of the dollars so purchased over the sum originally due to the Agents or controlling person hereunder.
25. Definitions.
As used in this Agreement, the following terms have the respective meanings set forth below:
“Applicable Time”
means (i) each Representation Date, (ii) the time of each sale of any Placement Shares pursuant to this Agreement and (iii) each
Settlement Date.
“Governmental
Authority” means (i) any federal, provincial, state, local, municipal, national or international government or governmental
authority, regulatory or administrative agency, governmental commission, department, board, bureau, agency or instrumentality, court,
tribunal, arbitrator or arbitral body (public or private); (ii) any self-regulatory organization; or (iii) any political subdivision
of any of the foregoing.
“Issuer Free Writing
Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433, relating to the Placement
Shares that (1) is required to be filed with the Commission by the Company, (2) is a “road show” that is a “written
communication” within the meaning of Rule 433(d)(8)(i) whether or not required to be filed with the Commission, or (3) is
exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Placement Shares or of the offering
that does not reflect the final terms, in each case in the form filed or required to be filed with the Commission or, if not required
to be filed, in the form retained in the Company’s records pursuant to Rule 433(g) under the Securities Act Regulations.
“Rule 164,” “Rule 172,”
“Rule 405,” “Rule 415,” “Rule 424,” “Rule 424(b),”
“Rule 430B,” and “Rule 433” refer to such rules under the Securities
Act Regulations.
All
references in this Agreement to financial statements and schedules and other information that is “contained,” “included”
or “stated” in the Registration Statement or the Prospectus (and all other references of like import) shall be deemed to mean
and include all such financial statements and schedules and other information that is incorporated by reference in the Registration Statement
or the Prospectus, as the case may be.
All references in this Agreement
to the Registration Statement, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy
filed with the Commission pursuant to EDGAR; all references in this Agreement to any Issuer Free Writing Prospectus (other than any Issuer
Free Writing Prospectuses that, pursuant to Rule 433, are not required to be filed with the Commission) shall be deemed to include
the copy thereof filed with the Commission pursuant to EDGAR; and all references in this Agreement to “supplements” to the
Prospectus shall include, without limitation, any supplements, “wrappers” or similar materials prepared in connection with
any offering, sale or private placement of any Placement Shares by the Agents outside of the United States.
[Signature Page Follows]
If the foregoing correctly
sets forth the understanding among the Company and the Agents, please so indicate in the space provided below for that purpose, whereupon
this letter shall constitute a binding agreement among the Company and the Agents.
| |
Very truly yours, |
| |
|
| |
GDEV Inc. |
| |
|
| |
By: |
/s/ Andrey Fadeev |
| |
|
Name: |
Andrey Fadeev |
| |
|
Title: |
Chief Executive Officer |
| |
|
|
|
| |
ACCEPTED as of the date first-above written: |
| |
|
|
|
| |
CANTOR FITZGERALD & CO. |
| |
|
|
|
| |
By: |
/s/ Sameer Vasudev |
| |
|
Name: |
Sameer Vasudev |
| |
|
Title: |
Managing Director |
| |
|
|
|
| |
OPPENHEIMER & CO. INC. |
| |
|
|
|
| |
By: |
/s/ Peter Bennett |
| |
|
Name: |
Peter Bennett |
| |
|
Title: |
Managing Director, Head of ECM |
SCHEDULE 1
Form of Placement Notice
| | From: | GDEV
Inc. |
| | | |
| To: | [Designated Agent] (the “Designated Agent”)
Attention: [•] |
| | | |
| | Subject: | Placement
Notice |
| | | |
| | Date: | [•],
202[•] |
Ladies and Gentlemen:
Pursuant to the terms and
subject to the conditions contained in the Sales Agreement by and between GDEV Inc., a British Virgin Islands business company (the “Company”),
Cantor Fitzgerald & Co. and Oppenheimer & Co. Inc. (each individually, a “Designated Agent”),
dated September 12, 2024, the Company hereby requests that the Designated Agent sell up to [•] of the Company’s ordinary shares,
no par value, at a minimum market price of $[•] per share, during the time period beginning [month, day, time] and ending [month,
day, time].
SCHEDULE 2
Compensation
The Company shall pay to the
Designated Agent in cash, upon each sale of Placement Shares pursuant to this Agreement, an amount equal to 3.0% of the aggregate gross
proceeds from each sale of Placement Shares.
SCHEDULE 3
Notice Parties
The Company
GDEV Inc.
Andrey Fadeev
Alexander Karavaev
The Agents
Cantor Fitzgerald & Co.
Sameer Vasudev
With copies to:
Oppenheimer & Co. Inc.
SCHEDULE 4
Subsidiaries
| Legal Name of Subsidiary |
Jurisdiction of Incorporation |
| Nexters Global Limited |
Cyprus |
| Nexters Studio Armenia LLC |
Armenia |
Exhibit 21
Permitted Free Writing Prospectus
None.
Exhibit 5.1
GDEV Inc.
2nd Floor, Water’s Edge Building
Wickhams Cay II
Road Town
Tortola, VG1110
British Virgin Islands |
|
D +1 284 852 7309 |
| |
E michael.killourhy@ogier.com |
| |
|
| |
Reference: 500484.00004/MJK/HBT |
| |
|
| |
|
September 12
2024 |
Dear Sirs
GDEV Inc., incorporated in the British Virgin
Islands with company number 2053442 (the Company)
We have acted as counsel as to British Virgin
Islands law to the Company in connection with the Company’s registration statement filed with the Securities and Exchange Commission
(the Commission) under the United States Securities Act of 1933, as amended (the Securities Act), on Form F-3 (the
Registration Statement), relating to the offer and sale (the Offering) of up to 1,757,026 ordinary shares of no par value
in the Company (the Shares). This opinion is given in accordance with the terms of the legal matters section of the Registration
Statement.
In preparing this opinion, we have reviewed copies
of the following documents:
| (a) | the Registration Statement; |
| (b) | the Company's
prospectus included in the Registration Statement relating to the Offering of the Shares
(the Prospectus); |
| (c) | the Controlled
Equity Offering℠ Sales Agreement dated September 12 2024, entered into among the
Company, Cantor Fitzgerald & Co. and Oppenheimer and Co. Inc. (the Agreement); |
| (c) | (i) |
the constitutional documents and public records of the Company obtained from the Registry of Corporate Affairs in the British
Virgin Islands on 22 August 2024; |
| (ii) | the public information revealed from
searches (the Court Searches) of the electronic records of the Civil Division and
the Commercial Division of the Registry of the High Court and of the Court of Appeal (Virgin
Islands) Register, each from 1 January 2000, as maintained on the Judicial Enforcement
Management System (JEMS) by the Registry of the High Court of the Virgin Islands on 22 August 2024, |
(each of the searches in (c)(i) and
(ii) together and including as both updated on September 11 2024, the Public Records);
| (d) | a registered agent’s certificate issued
by the Company’s registered agent dated 23 August 2024 (the Registered Agent’s
Certificate); and |
| (e) | written resolutions of the director(s) of
the Company containing resolutions of the director(s) of the Company dated September 11
2024, approving and/or ratifying, inter alia, the Registration Statement (the Resolutions). |
We have not made any enquiries or undertaken
any searches concerning, and have not examined any other documents entered into by or affecting the Company or any other person, save
for the examinations referred to in paragraph 1 above. In particular, but without limitation, we have not examined any documents referred
to within the Registration Statement save as expressly referred to above and our opinion is limited accordingly.
This opinion is given only as to the circumstances
existing on the date hereof and as to British Virgin Islands law in force on this date. We have relied on the Registered Agent's Certificate
without further enquiry and upon the following assumptions, which we have not independently verified:
| (a) | all parties to the Agreement (other than the
Company) have the capacity, power and authority to exercise their rights and perform their
obligations under such Agreement; |
| (b) | the Agreement has been or, as the case may
be, will be duly authorised by or on behalf of all relevant parties (other than the Company); |
| (c) | copies of documents or records provided to
us are true copies of the originals which are authentic and complete; |
| (d) | all signatures and seals on all documents
are genuine and authentic and in particular that any signatures on the documents we have
reviewed are the true signatures of the persons authorised to execute the same; |
| (e) | the Resolutions remain in full force and effect; |
| (f) | the accuracy and completeness of the Registered
Agent's Certificate as at the date hereof; and |
| (g) | the information and documents disclosed by
the searches of the Public Records was and is accurate, up-to-date and remains unchanged
as at the date hereof and there is no information or document which has been delivered for
registration by any party (other than the Company), or which is required by the laws of the
British Virgin Islands to be delivered for registration by any party (other than the Company),
which was not included and available for inspection in the Public Records. |
Based upon the foregoing, and subject to the
qualifications expressed below, we are of the opinion that the Shares have been duly authorised for issue and, when issued by the Company
against payment in full of the consideration therefor in accordance with the terms set out in the Agreement, the Registration Statement
and the Prospectus and duly registered in the Company’s register of members, will be validly issued, fully paid and non-assessable.
We offer no opinion:
| (a) | in relation to the laws of any jurisdiction
other than the British Virgin Islands (and we have not made any investigation into such laws); |
| (b) | in relation to any representation or warranty
made or given by the Company in the Documents; or |
| (c) | as to
the commerciality of the transactions envisaged in the Documents or, save as expressly stated
in this opinion, whether the Documents and the transactions envisaged in relation to them
achieve the commercial, tax, legal, regulatory or other aims of the parties to the Documents. |
| 5 | Governing Law and Reliance |
| (a) | This opinion
shall be governed by and construed in accordance with the laws of the British Virgin Islands
and is limited to the matters expressly stated herein. This opinion is confined to and given
on the basis of the laws and practice in the British Virgin Islands at the date hereof. |
| (b) | We hereby consent
to the filing of this opinion as an exhibit to the Registration Statement and to the reference
to our firm in the legal matters section of the Registration Statement. In the giving of
our consent, we do not thereby admit that we are in the category of persons whose consent
is required under Section 7 of the Securities Act or the rules and regulations
of the Commission thereunder. |
Yours faithfully
Exhibit 23.1
KPMG Certified Auditors S.A.
44, Syngrou Avenue
117 42 Athens, Greece
| Telephone |
+30 210 6062100 |
| Fax |
+30 210 6062111 |
| Email: |
info@kpmg.gr |
Consent of Independent Registered Public Accounting Firm
We consent to the use of our report dated April 29, 2024, with
respect to the consolidated financial statements of GDEV Inc. as of December 31, 2023 and 2022 and for each of the years in the two-year
period ended December 31, 2023, incorporated herein by reference, and to the reference to our firm under the heading “Experts”
in the prospectus.
/s/ KPMG Certified Auditors S.A.
Athens, Greece
12 September 2024
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the use of our report dated April
29, 2022, with respect to the consolidated statements of profit or loss and comprehensive income, changes in equity, and cash flows for
the year ended December 31,2021, and the related notes, which report appears in the December 31, 2023 annual report on Form 20-F of GDEV
Inc. (formerly, Nexters Inc.), incorporated by reference herein, and to the reference to our firm under the heading "Experts"
in the prospectus.
/s/ JSC “Kept”
Moscow, Russia
September 12, 2024
Exhibit 107
CALCULATION OF FILING FEE TABLES
Form F-3
(Form Type)
GDEV INC.
(Exact Name of Registrant as Specified in its charter)
Not
Applicable
(Translation of Registrant’s name into English)
Table
1: Newly Registered and Carry Forward Securities
| |
Security
Type |
Security
Class
Title |
Fee
Calculation
or Carry
Forward
Rule |
Amount
Registered |
Proposed
Maximum
Offering
Price Per
Share |
Maximum
Aggregate
Offering
Price(1) |
Fee
Rate |
Amount
of
Registration
Fee(3) |
Carry
Forward
Form Type |
Carry
Forward
File Number |
Carry
Forward
Initial
effective
date |
Filing
Fee
Previously Paid
In Connection
with Unsold
Securities
to be Carried
Forward |
| Newly
Registered Securities |
Fees
to
Be Paid |
Equity |
Ordinary
Shares,
no par
value |
Rule 457(c) |
1,757,026 |
26.38 |
$46,350,345.88 |
0.00014760 |
$6,841.31 |
|
|
|
|
| Total
Offering Amounts |
|
$46,350,345.88 |
|
$6,841.31 |
|
|
|
|
| Total
Fees Previously Paid |
|
|
|
– |
|
|
|
|
| Total
Fee Offsets |
|
|
|
– |
|
|
|
|
| Net
Fee Due |
|
|
|
$6,841.31 |
|
|
|
|
| (1) | Estimated solely for the purpose of calculating the amount of the registration
fee in accordance with Rule 457(c) under the Securities Act of 1933, as amended, based on the average of the high and low prices of our ordinary shares on The Nasdaq Global Market on September 10, 2024. The proposed
maximum offering price per ordinary share will be determined from time to time in connection with, and at the time of, the sale of the
ordinary shares registered hereunder. |
Grafico Azioni GDEV (NASDAQ:GDEVW)
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